Volume 169 — Federal Reporter

<p>1. Courts (§ 347*)—Federal Courts—Procedure—Amendments to Conform to Proofs.</p> <p>It was within the discretion of a federal court to permit the amendment of a declaration at the close of the evidence in a case by alleging a different act of negligence on the part of defendant, to conform to the evidence.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 921; Dee. Dig. § 347.*]</p> <p>2. Courts (§ 347*)—Federal Courts—Procedure—Motion to Strike Pleading.</p> <p>The action of a federal court in striking out a plea of the statute of limitations before trial held within its discretion under the New Jersey practice, where ail the facts appeared from the pleading.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]</p> <p>3. Limitation of Actions (§ 72*)—Infancy of Plaintiff—Action for Negligence—New Jersey Statute.</p> <p>- 2 Gen. St. N. J. 1895, p. 1975, § 4, provides that if any person entitled to an action for a personal injury, the bringing of which is limited by the preceding section to two years, “shall be at the time of any such cause of action accruing within the age of 21 years, * * * then such person * * * shall be at liberty to bring said action so as he * * * institute or take the same within such time as is before limited after his * * * coming to * * * full age.” Held, that such provision authorized the bringing of an action for an injury to a minor child at any time between the accrual of the cause of action and the expiration of two years after its majority, and that the bringing of an action during minority, which was dismissed, did not start the statute to running, so as to bar another action in two years thereafter.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 398; Dec. Dig. § 72.*]</p> <p>4. Courts (§ 365*)—Federal Courts—State Laws as Rules of Decision-Authority of State Decisions.</p> <p>Under Rev. St. § 721 (U. S. Comp. St. 1901, p. 581), which makes the laws of the several states rules of decision in trials at common law, so far as the construction of the state Constitution and statutes is concerned, the decisions of the highest court of the state are controlling but upon the question as to what is the common law of the state, unless such decisions have so clearly established a settled rule in the premises as to make it a part of the peculiar and local law of that state, the federal courts exercise an independent judgment, their jurisdiction being co-ordinate with, and not subordinate to, the state court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. •§ 950; Dec. Dig. § 365.*</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>5. Negligence (§ 29*)—Dangerous Structures—Duty oe Care as to Children.</p> <p>One who maintains a dangerous structure or appliance, whether on his own land or lawfully on a public highway, is under duty to use reasonable care to protect from injury, not only those of mature age, who are bound to use their faculties to protect themselves, but also children of tender years, who may without their fault become exposed to the danger.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 41; Dec. Dig. § 29*1</p> <p>8. Negligence (§ 55*)—Piling oe Material in Street—Liability eor Injury to Child.</p> <p>Defendant, a contractor for the building of a structure in which heavy steel I-beams were used, piled the same on the sidewalk in front of the lot, which it had the right to do with the owner’s consent. Plaintiff, who was 4y2 years old, was accustomed to play with other small children in the street near such piles, and they frequently climbed or sat upon the same. In some manner one of the beams became crossed diagonally over the pile where it rested in an insecure position, and the evidence tended to show had remained so for two or three days, when the children in playing caused it to fall, and plaintiff was struck by it and injured, Held, that defendant, having actual or constructive knowledge that the children were in the habit of playing in the street and would naturally be attracted by th.e piles of beams, owed them the duty to pile and keep such beams in a reasonably secure manner to prevent their falling and injuring the children, and that its failure to do so was negligence, which rendered it liable for plaintiff’s injury.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 68; Dec. Dig. § 55.*]</p> <p>7. Negligence (§ 85*)—‘Contributory Negligence—Children.</p> <p>A child 4% years old, who was injured while playing on a pile of steel beams in a street, could not by reason of her age be charged with contributory negligence, or with being a trespasser.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 124; Dec. Dig. § 85.*]</p> <p>8. Judgment (§ 570*)—Conclusiveness oe Adjudication—Judgment on Discontinuance.</p> <p>Where the plaintiff in an action in a state court for a personal injury, grounded on defendant’s negligence, after a verdict in her favor and an order granting a new trial on the ground that under the facts defendant was not negligent, voluntarily discontinued the action, the judgment did not bar a second action in a federal court on the same cause of action.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1030; Dec. Dig. § 570.*</p> <p>Conelusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468.]</p> <p>9. Courts (§ 372*)—Federal Courts—State Laws as Rules op Decision.</p> <p>The question of liability for negligence, when not modified or governed by statute law, is one of general law, upon which federal courts are not required to follow the state decisions, although there may be such a decision based on the identical facts.</p> <p>fEd. Note.—For other cases, see Courts, Cent. Dig. § 977; Dec. Dig. § 372.*)</p>

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

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

<p>1. Bankruptcy (§ 184*)—Transfers Void Under State Laws.</p> <p>A contract for the sale of a saloon provided that the receipts of all sales should be deposited in a certain bank to the credit of the saloon, and used for no other purpose than the payment of the saloon indebtedness, necessary running expenses, and the balance of the purchase price, and in ease of a failure on the part of the buyers to well and truly comply with the conditions of the agreement, the contract should be void and the saloon should become the property of the seller, with all moneys belonging thereto. Held that, whether such agreement was a conditional sale or chattel mortgage, it was one or the other, and was void until filed in the recorder’s office of the county in which the mortgagors or vendors resided, as required by Rev. St. Mo. 1899, §§. 3404, 3410, 3412 (Ann. St. 1906, pp. 1936, 1940, 1945), especially as against subsequent creditors of'the purchasers, whose claims were represented by the purchaser’s trustee in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 276; Dec. Dig. § 184. *J</p> <p>2. Bankruptcy (§ 160*)—Preferences—In solvency.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 60a, 30 Stat 562 (U. S. Comp. St. 1901, p. 3445), provides that if the bankrupts at the time of the transfer in question were insolvent, and the effect of the transfer was to enable the transferee to obtain a greater percentage of his debt than any other creditors of the same class, such transfer constituted a preference. Held, that under the provision of the same section that the four months’ time within which transfers by the bankrupt are presumed to be invalid shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required, the effect of a transfer by the bankrupts as constituting a preference must be judged as of the date it was filed for record, and if the bankrupts were then insolvent, and the transfer would enable the transferee to obtain a greater percentage of his debt than other simple contract creditors, it constitutes a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent Dig. §§ 249-258; Dec. Dig. § 160.*]</p> <p>.3. Bankruptcy (§ 160*)—Preferences—Insolvency.</p> <p>A contract for the sale of a saloon required subsequent receipts to be used for tbe payment of running expenses, the indebtedness of the seller, and the balance of the purchase price, and declared that on default the contract should be void and the saloon become the property of the seller, with all moneys belonging thereto. When the buyers purchased, their capital amounted to only $500. They agreed to pay $3,900 for the saloon, including the seller’s outstanding obligations, amounting to $2,600. In seven months they had lost their capital and had paid the seller’s indebtedness, but in its place had incurred a like amount of unpaid indebtedness to their current merchandise creditors, when default was made in payment of one of the purchase-money notes, whereupon the seller recorded his contract on July 7, 1905, and took possession, after which the buyers became bankrupts. Held, that the buyers were insolvent when the transfer was recorded, and that such transfer constituted a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, 'Cent. Dig. §§ 249-258; Dec. Dig. § 160.*]</p> <p>4. Bankruptcy (§ 303*)—Preferences—Knowledge of Insolvency.</p> <p>Evidence held to show that the seller of a saloon business to the bankrupts, taking a lien thereon for an unpaid portion of the price, had knowledge of the bankrupt’s insolvency at the time he filed his lien contract for record, and had reasonable cause to believe that the preference which was actually given him by the bankrupts in surrendering possession under such contract was intended by the bankrupts to constitute a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. § 303.*]</p> <p>•5. Bankruptcy (§ 305*)—Preference—Restoration1 of Property in Kind.</p> <p>Where property transferred by a bankrupt to a lien creditor pursuant to a voidable preference could not be restored In kind to the trustee, the latter could recover its value.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 466-468; Dec. Dig. § 305.*]</p> <p>■6. Bankruptcy (§ 205*)—Preferences—Creditors—Diability.</p> <p>Where a seller of a saloon business to the bankrupts, at the time of retaking possession under a lien contract, constituting a voidable preference, accounted to the bankrupts for the difference between his debt and tbe fair, value of the property, such seller was not accountable to the bankrupt’s trustee for the difference so paid, whether it was returned by the bankrupts or paid over to another creditor.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 234; Dec. Dig. § 205.*]</p> <p>7. Bankruptcy (§ 303*)—Voidable Preference—Good Will.</p> <p>In a suit by a bankrupt’s trustee to recover the value of the property1 of a saloon business retaken by a lien creditor pursuant to a contract of sale, constituting a voidable preference, evidence held insufficient to show that the business, at the time defendant resumed possession thereof, had any appreciable good will, and hence the court erred in charging defendant for the value thereof.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Gent. Dig. § 462; Dec. Dig. § 303.*]</p> <p>•'& Bankruptcy (§ 293*)—Preferences—Action by Trustee—Jurisdiction.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), confers plenary jurisdiction on courts of bankruptcy, as well as other courts therein mentioned, of an action by a bankrupt’s trustee to recover the value of property taken by a lien creditor pursuant to a voidable preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 410-412; Dee. Dig. § 293.*]</p>

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

<p>1. Master and Servant (§ 116*)—Injuries to Servant—Defective Scaffold —Improper Materials.</p> <p>Plaintiff, an experienced carpenter, was injured by the collapse of a temporary scaffold constructed by plaintiff and fellow carpenters in the erection of a sawmill in defendant’s lumber yards. The scaffold was constructed according to the directions of defendant’s foreman out of certain hemlock pieces lying on the third floor of the building. Plaintiff did not construct the part of the scaffold that broke, and had no knowledge of its defective condition. While the carpenters were directed to use the material designated; there was other material in the yards that could have been secured by merely requesting the foreman to furnish it in case any of that designated was found unsuitable. Held, that the foreman’s directions only amounted to an order to use such part of the material as was suitable and was nearest at hand, and that defendant was not negligent.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.*]</p> <p>2. Trial (§ 165*)—Direction or Verdict.</p> <p>It is the duty of the judge, on a motion to direct a verdict, to take that view of the evidence most favorable to the party against whom it is moved, and from such inferences, reasonably and justifiably to be drawn therefrom, determine whether or not a verdict might not be found for the party having the burden of proof, and, if not, he should direct the verdict against such party.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 402; Dec. Dig. § 165.*]</p> <p>8. Trial (§ 143*)—Direction op Verdict—Conflicting Evidence.</p> <p>A mere dogmatic assertion, which does not appeal to the reason of the court nor have substance and relevant consequence, is not sufficient to constitute a conflict of evidence which will prevent the direction of a verdict, but a conflict of evidence, to have such effect, must be positive and real.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. ' I 143.*]</p> <p>4. Master and Servant (§ 116*)—Injuries to Servant—Defective Scaffold —Employer’s Liability Act.</p> <p>Rev. St. Ohio 1908, §§ 4238-18, 4238-19, 4238-0, 4238-01, do not create a liability on the part of a master for injuries sustained by a servant resulting from defective scaffolding, where there is no evidence, of the master’s negligence.</p> <p>[Ed. Note.—For other eases, see Master and Servant, Dec. Dig. § 116.*]</p>

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

<p>í. Pleading (§ 34*)—Construction—General and Specific Allegations.</p> <p>A general averment in a pleading is always controlled and limited by specific allegations on the same subject-matter.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 68; Dec. Dig. § 34.*]</p> <p>2. Carriers (§ 37*)—Interstate Carriers of Lave Stock—Twenty-Eight Hour Law—“Willfully.”</p> <p>In Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), known as the “28-hour law,” which prohibits carriers of live stock from keeping the same confined in cars, etc., for more than 28 consecutive hours without unloading for rest, water, and feeding, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight, and imposes a penalty on any carrier which “knowingly and willfully” fails to comply with its provisions, the word “willfully" is not used as implying a vicious or evil intent, but as meaning intentionally or voluntarily.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 37.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835-7836.]</p> <p>3. Carriers (§ 37*)—Carriers of Live Stock—Violation of Twenty-Eight Hour Law—.Defenses.</p> <p>A great and unusual press of business does not, unexplained and of itself, excuse the confinement of live stock by a railroad company beyond 28 hours limited By Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), nor constitute a defense to an action to recover the penalty for its violation.</p> <p>I Ed. Note.—For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 37.*]</p>

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

<p>1. Courts (§ 356*) — Federal Courts — Practice — Trial to District Court Without a Jury—Review.</p> <p>Where an action at law in a District Court, triable by jury under Rev. St. § 566 (U. S. Comp. St. 1901, p. 461), is by consent of the parties tried to the court without a jury, no question of fact or law decided upon or in connection with the trial is subject to re-examination in an appellate court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 937: Dec. Dig. § 356*</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>2. Courts (§ 356*)—Federal Courts—Practice—Review.</p> <p>Rev. St. 81 649, 700 (U. S. Comp. St. 1901, pp. 525, 570), providing for waiving a jury and for the review of judgments rendered in causes where there is such a waiver, relate exclusively to trials in the Circuit Courts, and there are no similar provisions in respect of trials in the District Courts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 937: Dec. Dig. § ■ 356.*]</p> <p>(Syllabus by the Court.)</p>

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

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

This is a writ of error to the District Court for the Southern District of Ohio. The plaintiffs in error were indicted jointly, entered a plea of not guilty, waived a jury, and were tried upon the evidence submitted to the District Judge, and adjudged guilty upon some counts and not guilty upon others. There were two indictments, one of which contained four counts, the other three counts.

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

<p>1. Treaties (§ 8*)—Italian Treaty—Construction.</p> <p>Italian Treaty 1871 (17-Stat. 846) art. 3, provides that the citizens of. each of the contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be: granted to the natives, on their submitting themselves to the conditions imposed on the natives, and article 23 (page 856)</p> <p>. declares that the citizens of each «party shall have every access to the courts in order to maintain and defend their own rights without any other conditions, restrictions, or taxes than such as are imposed on the natives, etc. Held, that such sections do not create in Italian subjects not resident in the United States any new or substantial rights of person or property to be enforced in the United States; their purpose, so far as they concern rights of person or property of nonresident Italians, being limited to the prevention of invidious discriminations in favor of citizens of the United States and against subjects of Italy, with respect to the enjoyment or enforcement in the United States of privileges and rights of person and property, arising and existing wholly independently of such provisions.</p> <p>[Ed. Note.—For other cases, see Treaties, Dec. Dig. § 8.*]</p> <p>2. Courts (§ 366*)—Federal Courts—Rules of Decision—Decisions of Highest State Court.</p> <p>Whether a nonresident alien may recover for wrongful death of an alien resident in Pennsylvania depends on the statutes of that state, aside from the Italian treaty, as to which the federal courts sitting in Pennsylvania are bound by the decisions of the Pennsylvania Supreme Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 957; Dec. Dig. § 366*</p> <p>Conclusiveness of judgment between federal and state courts, see note .. to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & ' . Planters’ Bank ,v. City of Memphis,. 49 C. C. A. 468.]</p> <p>8. Death (§ 31*)—Right to Sue—Nonresident Alien.</p> <p>A nonresident alien is not entitled to the benefit of Act Pa. April 15, .1851 (P. L. 674), §§ 18, 19, nor Act April 26, 1855'(P. L. 309) § 1, giving a right of action to members of the family of a person whose death has been caused by the wrongful act of another.</p> <p>[Ed. Note.—For. other cases, see Death, Dec. Dig. § 31.*]</p>

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

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

This cause comes here upon appeal from a decision of the Circuit Court, reversing a decision of the Board of General Appraisers (G. A. 6,452; T. D. 27,644), which sustained the collector’s classification of certain importations under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, pars. 339, 346, 30 Stat. 181 (U. S. Comp. St. 1901, pp. 1662, 1663)

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>Actions by the United States against the Swan & Finch Company (two cases), F. A. Marsily & Co., the National Aniline & Chemical Company, and Smith & Nichols.</p> <p>The decisions below affirmed decisions by the Board of" United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of New York, except that one decision by the board, which had affirmed the assessment, was reversed.</p> <p>The following provision in Tariff Act July 24, 1891', c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685), is involved:</p> <p>“626. Oils: * * * Petroleum, crude or refined: Provided, that if there be imported into the United States crude petroleum, or the products of crude petroleum produced in any country which imposes a duty on petroleum or its products exported from the United States, there shall in such cases be levied, paid, and collected a duty upon said crude petroleum or its products so imported equal to the duty imposed by such country.”</p> <p>The court below filed the following opinion in the Swan & Finch Cases:</p> <p>PLATT, District Judge. The importations in question consisted of refined petroleum imported from Great Britain. The crude petroleum from which this merchandise was produced originated in Russia. The Board of General Appraisers sustained the importers’ claim that under the proviso in paragraph 626 of the act of 1897 petroleum products are not subject to the countervailing duty there provided, where the country of production imposes no duty on such products imported from the United States. The government contends that a duty should be assessed equal to that imposed on the crude petroleum by the country from which it originated.</p> <p>The decisions of the Board in the above-entitled suits are affirmed, on the authority of United States v. Downing, 146 Fed. 56, 76 C. C. A. 376.</p>

<p>Patents (§ 328*)—Invention—Bolsteb foe Railway Cabs.</p> <p>The Schoen patent, No. 574,116, for a bolster for railway cars, Is void for lack of invention.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

The decree appealed from dismissed the bill for want of equity. The bill is to restrain infringement of Letters Patent No. 586,996, issued July 27th, 1897, to Joseph H. Glauber, for an improvement in Liquid Shut-Offs.

In Equity. Suit to restrain alleged infringement of United States letters patent No,. 719,216, dated January 27, 1903, on application filed September 16, 1902, and issued to Ernst Hentschel, for composition for digester linings and for an accounting.

<p>1. Patents (§ 26*)—Invention—Combination op Old Elements.</p> <p>The combination of a well-known and unpatentable idea with a particular form of device described in an expired patent cannot be made the basis for a valid patent for a new term when no new use or device is shown, except in that the particular combination has never been made between exactly the same elements before, and when the same use has been shown in connection with equivalent devices differing only in immaterial respects.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig: §§ 27-30; Dec. Dig. § 26.*]</p> <p>2. Patents (§ 328*)—Invention—Drill-Chuck.</p> <p>The Jacobs patent, No. 709,014, for a drill-chuck having means for opening and closing the tool-holding jaws with a key, construed, and held void for lack of invention in view of the prior art. Claim 3 also held not infringed if conceded validity.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. On demurrer to bill. The purpose of this suit is to enjoin the infringement of a patent. By the averments of the bill it appears that the complainant is the owner of a patent upon an invention for pulp digesters. The life of the patent extended to January 27, 1908.

<p>1. Equity (§ 196*)—Cross-Bill—Necessity to Entitle Defendant to Affirmative Relief.</p> <p>It is the general rule in equity that a defendant can obtain affirmative relief, as by injunction, only by filing a cross-bill.</p> <p>[Ed. Note.—Eor other cases, see Equity, Cent. Dig. § 450; Dec. Dig. § 196.*]</p> <p>2. Patents (§ 294*) — Suit for Infringement—Notice of Suit Sent by Complainant to Defendant’s Customers—Injunction.</p> <p>An injunction denied to the defendant in a pending suit for infringement of a patent to restrain complainant from sending circulars to defendant’s customers giving notice of the suit, and warning them against contributory infringement, where the statements made in such circulars were true, and there was no evidence of bad faith.</p> <p>[Ed. Note.—Eor other cases, see Patents, Dee. Dig. § 294.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p>

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

<p>Bankruptcy (§ 143*)—Property Passing to Trustee—Reward Awarded to Bankrupt.</p> <p>An award made by the Secretary of the Treasury to an informant as a reward for information leading to the seizure of smuggled goods, under Act June 22, 1874, c. 391, § 4, 18 Stat. 186 (ü. S. Comp. St. 1901, p. 2019), although not paid over, is property of the claimant, and. being assignable, under Rev. St. § 3477 (U. S. Comp. St. 1901, p. 2320), is property which the claimant could have transferred, and passes to his trustee on his subsequent bankruptcy, under Bankr. Act July 1, 1898, c, 541, $ 70a (5), 30 Stat 565, 566 (ü. S. Comp. St 1901, p. 3451).</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. 1143.*1</p>

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

<p>1. Master and Servant (§ 60*)—Confidential Employment—Trade Secrets.</p> <p>Where a confidential employé learns his employer’s trade secret in the course of the employment, such employé cannot make use of the secret to his employer's disadvantage, whether an agreement that he will not do so is expressed in the employment contract or only implied.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 60.*]</p> <p>2. Injunction (§ 56*)—Trade Secrets—Disclosure.</p> <p>Mere. hiring of complainant’s former confidential servant, who had acquired knowledge of the complainant’s trade secret, by complainant’s business rival, in the absence of anything more than mere opportunity on defendant’s part to learn and use complainant’s secret, was insufficient to justify the issuance of an injunction, either against defendant or the employé, restraining the employé from imparting, and defendant from receiving or using, information concerning such secret in defendant’s business, to complainant’s prejudice.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. } 110; Dec. Dig. § 56.*]</p>

<p>In Bankruptcy. On rule against the bankrupt to show cause why he should not be ordered to file his schedules.</p>

<p>1. Removal of Causes (§ 25*) — Grounds — Cause Arising Under United States Laws.</p> <p>Whether an'action is removable as arising under the laws of the United States must be determined on the averments of plaintiff’s petition alone.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. jj§ 58, 59; Dec. Dig. § 25.*]</p> <p>2. Removal of Causes (§ 19*)—Case in Law or in Equity.</p> <p>A case in law or in equity consists of the right of one party as well as the other, and is removable as arising under the Constitution or laws of the United States whenever its correct decision depends on the construetion of either, or when the title or right set up by the party may be defeated by one construction of the Constitution or laws of the United States and sustained by the opposite construction.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 37; Dec. Dig. § 19.*]</p> <p>3. Death (§ 47*)—Petition—Negligence.</p> <p>Under the Kentucky practice to which federal courts sitting in that state are required to conform in suits at law by Rev. St. § 914 (U. S. Comp. St. 1901, p. 684), it is not essential for plaintiff, in an action for wrongful death, to state any more in his petition than that the death of his intestate was caused by defendant’s negligence, a specification of the details of the acts constituting the negligence being unnecessary.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 61; Dec. Dig. § 47.*]</p> <p>4. Death (§ 57*)—Issues and Pbooe.</p> <p>In an action for wrongful death alleging negligence generally, evidence showing defendant’s failure to observe a federal or state statute, or a federal, state, or municipal regulation, is admissible to prove negligence.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 74; Dec. Dig. § 57.*]</p> <p>5. Evidence (§§ 34, 47*)—Judicial Notice—United States Laws—Executive</p> <p>Regulations.</p> <p>State and federal courts take judicial notice of the laws and executive regulations of the United States.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 49, 50, 69; Dec. Dig. §§ 34, 47.*</p> <p>Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, -44 C. C. A. 4.]</p> <p>6. Removal of Causes (§ 19*j—Gbounds—“Laws of the United States.”</p> <p>The phrase, “laws of the United States,” as used in the removal acts, authorizing removal of a cause arising under the laws of the United States, means acts of Congress, and does not include executive rules and regulations, unless a recovery of damages is expressly authorized by statute for a disregard of such regulations.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. § 37; Dec. Dig. § 19.*]</p> <p>7. Collision (§ 16*)—Regulations—Statutes—Constbuction.</p> <p>Rev. St. § 4412 (U. S. Comp. St. 1901, p. 3020), requiring the board of supervising inspectors to establish regulations to be observed by steam • vessels in passing each other, which are to be printed, signed, and posted, applies only to regulations to be observed by passing steam vessels.</p> <p>[Ed. Note.—For other cases, see Collision, Dec. Dig. § 16.*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>8. Shipping (§ 158*)—Injuries—Statutes—Constbuction.</p> <p>Rev. St. § 4413 (U. S. Comp. St. 1901, p. 3020), provides that every pilot, engineer, mate, or master of any steam vessel who neglects or willfully refuses to observe the regulations established pursuant to section 4412 shall be liable for all damages sustained by a passenger in his person or baggage by such neglect. Held, that such section only authorizes a recovery of damages by passengers against pilots, engineers, mates, and masters, as distinguished from the owners of vessels.</p> <p>[Ed. Note.—For other cases, see Shipping, Dea Dig. § 158.*]</p> <p>9. Pleading (§ 63*)—Statutory Action—Petition.</p> <p>Where plaintiff founds his right of action on a special statute, his petition must state facts showing that the action is within the terms of the statute.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 133; Dec. Dig. § 63.*]</p> <p>10. Shipping (§ 158*)—Regulations—Statutes.</p> <p>Act Cong. Jan. 18, 1897, c. 61, 29 Stat. 489 (TJ. S. Comp. St. 1901, p. 3029), provides that all vessels above 15 tons burden carrying passengers and propelled by gas, fluid, naphtha, or electric motors are subject to the provisions of Rev. St. § 4426 (U. S. Comp. St. 1901, p. 3029), relating to inspection, and requiring engineers and pilots therefor, and declaring that all vessels so propelled, without regard to tonnage, are subject to section 4412 (page 3020) and so much of sections 4233 (page 2893) and 4234 as the board of supervising inspectors shall deem applicable and practicable for such navigation. Held, that such provisions apply to vessels propelled by gas, fluid, naphtha, or electric motors, and do not relate to steam vessels employed in inland navigation.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 158.*]</p> <p>1L Collision (§ 75*)—Signal Regulations—Statutes—Application—“Mercantile Marine.”</p> <p>Rev. St. § 4233 (U. S. Comp. St. 1901, p. 2893), providing that steam vessels, when towing other vessels, shall carry two bright, white masthead lights vertically, in addition to their side lights, which shall be of such a character as to be visible on a dark night with a clear atmosphere for at least 5 miles and show a uniform unbroken light over an arc of the horizon at 20 points of the compass. Held, that such section applied only to the navy and mercantile marine of the United States, “mercantile marine” being used to mean the merchant service or business of commerce at sea, and that the section did not apply to steam vessels engaged in towing on the inland rivers of the United States.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 105-108; Dec. Dig. § 75.*]</p>

In Equity. On motion for preliminary injunction. The bill is exhibited by the Western Union Telegraph Company, a citizen of New York against Frank N. Julian, Secretary of State of Alabama, and the other defendants, clerks of circuit and city courts in the stale of Alabama, all of whom are citizens of Alabama.

<p>In Equity. On demurrer to bill. Sustained, with leave to amend.</p>

<p>1. Courts (§ 85*)—Rules—Effect.</p> <p>The rules promulgated by the Supreme Court of the United States for the guidance of federal courts have the force and effect of law.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 294; Dec. Dig. § 85.*]</p> <p>2. Equity (§ 321*)—Pleading—1Time—Equity Rules—Compliance by United States.</p> <p>Where the United States voluntarily comes into a federal court, seeking relief against an individual, her rights are those of an ordinary suitor, and not those of a sovereign, and hence she is equally bound to comply with general equity rule 66, regulating the time for the filing of pleadings.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. § 629; Dee. Dig. § 321.*]</p> <p>3. Equity (§ 210*)—Pleading—Filing After Time.</p> <p>Where, in a suit by the United States to set aside certain patents to timber land, no replication was filed within the time required, owing to the mistake or inadvertence of a former district attorney, his successor would be permitted to file a replication nunc pro tune, subject, however, to an order requiring him to speed the cause.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. § 483; Dec. Dig. 8 210.*]</p>

<p>1. Partnership (§ 241*)—Retiring Partner—Liability for Firm Debts—Estoppel.</p> <p>The principle underlying the responsibility of a partner, who retires without publishing proper notice, to subsequent creditors of the firm, is that of estoppel, implying that the partner induced or knowingly permitted such subsequent creditors to extend credit to the firm on the assumption that the partner was a member thereof.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 479%, 480; Dec. Dig. § 241.*]</p> <p>2. Estoppel (§ 110*)—Defenses—Pleading.</p> <p>Estoppel is a defense, which must be affirmatively pleaded and proved by one seeking to avail himself thereof.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.*]</p> <p>3. Partnership (§ 241*)—Dormant Partner—Withdrawal—Notice.</p> <p>An unknown or dormant partner need not give notice of his withdrawal from the firm.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 480; Dee. Dig. § 241. *J</p> <p>4. Partnership (§ 241*)—Retiring Partner—Notice of Withdrawal—Subse-</p> <p>quent Creditors.</p> <p>Since one holding himself out as a partner, though he be not such, is only liable to those who deal with the firm in the belief that he is a partner, subsequent creditors of a firm were not entitled to assert the responsibility of a former partner, who retired without publishing notice of his withdrawal, unless such creditors knew that the partner represented himself to be a member of the firm and were misled by the fact that the formal notice of withdrawal had not been given.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 241.*]</p> <p>5. Evidence (§ 459*)—Parol Evidence—Written Contracts—Notes of Firm.</p> <p>Parol evidence is admissible to show that certain notes signed by the individual members of the firm evidenced a partnership obligation and that the form of the signature was mere inadvertence, so as to establish the notes as a firm debt.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1909, 2111; Dec. Dig. § 459.*]</p> <p>6. Partnership (§ 217*)—Debts—Nature of Obligation—Evidence.</p> <p>The terms of a note signed by the individual members of a firm will com trol in determining the nature of the obligation as to whether it is a debt of the firm or of the partners signing it, unless the prima facie case made by the instrument is overcome by clear and convincing evidence.</p> <p>[Ed. Note.—For other eases, see Partnership, Dec. Dig. § 217.*]</p> <p>7. Partnership (§ 146*)—Debts—Notes for Interest of Retiring Partner.</p> <p>Notes given by a remaining to a retiring partner in payment for the latter’s interest, sold to the partner making the notes, and not to the firm, were not firm obligations.</p> <p>[Ed. Note.—For other cases, see Partnership, Dee. Dig. § 146.*]</p> <p>8. Bankruptcy (§ 326*)—Liens—'Voluntary Release—Liability of Creditor.</p> <p>Where a creditor of a firm, holding a firm mortgage as security for $12,-000, voluntarily released the same, that the bankrupt firm might sell the property and out of the proceeds pay firm debts on which the claimant was liable as surety and such- debts were paid to the amount of $11,625, the claimant was liable for $375, the amount lost to creditors by such voluntary release.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 326.*]</p> <p>9, Bankruptcy (§ 477*)—Claims—Attorney’s Fees.</p> <p>Claims for fees by attorneys for objecting creditors should be filed with the referee in the first instance, so that any party aggrieved by the referee’s ruling thereon may have the same reviewed by appropriate proceedings.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Dec. Dig. § 477.*]</p>

<p>1. Partnership (§ 9*)—Contkagt1—Construction.</p> <p>A contract for acrobatic performances described plaintiff as the “manager” and defendant as the “performer”; defendant agreeing to perform special acts on such days and at such times as plaintiff should direct. Defendant agreed not to perform except with plaintiff’s consent; plaintiff agreeing in the summer season to meet all expenses necessary for the production of defendant’s exhibition with the option to renew for succeeding summer seasons and pay defendant one-half of the proceeds after running expenses had been deducted. Held, a contract of employment, and not a partnership.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 23, 24; Dec. Dig. § 9.*]</p> <p>2. Partnership (§ 1*)—What Constitutes—Authority of Partners.</p> <p>The test of “partnership” is whether the parties are jointly interested as principals and may bind each other by their acts or engagements within the scope of the enterprise.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5191-5202; rol. 8, pp. 7746-7747.]</p> <p>3. Master and Servant (§ 3*1—Contract of Employment—Construction.</p> <p>Two contracts were made between plaintiff and defendant on the same day; the first employing defendant to perform certain acrobatic feats at plaintiff’s places of amusement during the winter seasons of 1908 and 1909 at $300 per week, with plaintiff’s right to renew the same on giving a specified notice, and defendant binding herself not to perform except in accordance with plaintiff’s directions. The other contract covered the summer season of 1909, with the right to renew for subsequent summer seasons; defendant to receive one-half of the net profits. Held, that the two agreements should be construed as constituting one contract.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 3.*]</p> <p>4. Master and Servant (§ 3*)—Contract of Employment—Construction-Equitable Mutuality.</p> <p>A contract for acrobatic performances required defendant to perform in such theaters and other places and on such days as might be designated by plaintiff, and required that plaintiff pay defendant $300 at the end of each week after the last performance on Saturday for services rendered or produced by defendant as previously provided. Held, that the contract should not be construed as imposing no obligation on plaintiff to designate and provide places and days for defendant’s performances, nor as relieving plaintiff from the obligation to pay plaintiff in case he should refuse or omit to designate such times and places, and did not therefore lack equitable mutuality..</p> <p>[Ed. Note.—For ether cases, see Master and Servant, Dec. Dig. § 3.*]</p> <p>5. Injunction (§ 60*)—Subjects of Relief—Employment Contract.</p> <p>Defendant, an acrobatic performer, whose performances in diving and swimming were unique, and who could not be replaced, contracted to perform for plaintiff at such places as he should designate during the winter seasons of 1908 and 1909 for $300 per week; plaintiff at his option being entitled to renew the contract by giving notice for the seasons of 1910 and 1911, and defendant agreeing not to present any act or specialty in any place other than those designated by plaintiff, or for any other person than plaintiff, without his consent during the term of the contract or of any renewal. Held, that defendant having refused to continue to perform, and having made a new contract with plaintiff's principal competitor for a term beginning March 22, 1909, plaintiff was entitled to an injunction restraining her from performing for any one other than plaintiff during the remainder of the seasons of 1908 and 1909, and the seasons of 1909 and 1910; plaintiff having exercised his option to renew the agreement for the latter season.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 118; Dec. Dig. § 60.*]</p> <p>6. Master and Servant (§ 3*)—Contract of Employment—Enforcement-Mutuality of Obligation.</p> <p>Where a contract for the employment of defendant to perform certain acrobatic' feats, under plaintiff’s management and at such places as he should designate during the summer season, neither expressly nor by necessary implication fixed any periods when such performances should be given, and plaintiff for any reason satisfactory to him might omit exhibitions during any part of the season during which defendant would be without compensation, though bound not to work for any one else, such agreement was unenforceable against defendant for want of mutuality of obligation.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 3.*]</p> <p>7. Sunday i§ 17*) — Employment Contract — Construction — “Days” — “Week.”</p> <p>An acrobatic performer’s contract provided that she should receive $300</p> <p>. at the end of each “week” after the last performance on Saturday for services rendered, to be performed at such theaters and such other places arid on such "days” as might be determined by plaintiff. Held, that it was no objection to the enforcement of such contract by injunction that it provided for exhibitions on Sunday, in violation of statute, since, if such exhibitions were prohibited, the words “days” and “week” as used in the contract would be construed to mean week days only.</p> <p>[Ed. Note.—For other cases, see Sunday, Cent. Dig. §§ 48, 49; Dee. Dig. § 17.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1832-1837; vol. 8, pp. 7427, 7428, 7626.]</p>

<p>On Demurrer to Petition by the United States to Cancel a Naturalization Certificate.</p>

<p>1. Corporations (§ 656*)—Foreign Corporations—State Law—Failure to Comply—Co ntr acts—Validity—Statutes .</p> <p>Rev. St. Idaho 1887, § 2653, as amended by Act March 10, 1903 (Laws 1903, p. 49), requires foreign corporations doing business in the state to comply with certain conditions, and declares that no contract or agreement made in the name of, or for the use or benefit of, a foreign corporation, failing to perform such conditions, can be sued on or enforced in any court of the state by such corporation, nor can such corporation take or hold title to' any realty within the state, and that any pretended deed or conveyance of real estate to such corporation shall be absolutely null and void, etc. Held, that such section did not make void a mortgage to a foreign corporation not having complied with such conditions, on land In Id*11™.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 656.*]</p> <p>2. Corporations (§ 661*)—Foreign Corporations—Business Within State-Contracts—Enforcement—Statutes—Federal Courts—“Any Court op This State.”</p> <p>Rev. St. Idaho 1887, § 2653, requiring foreign corporations to comply with certain conditions before doing business within the state, and deelar- ■ ing that no contract made in the name or for the use or benefit of a foreign corporation, not having performed such conditions, can be sued on or enforced in “any court of this state” by such corporation, did not preclude a foreign corporation, not having complied with the prescribed conditions, from resorting to the federal courts in Idaho to enforce a mortgage to it on land Id that state.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 661.*</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & G. Meakin, 33 C. C. A. 585; Ammons v. Brunswick-Balke-Collender Co. 72 C. C. A. 622.]</p>

<p>1. United States (§ 70*)—Public Improvement Contract—Termination— Stipulations.</p> <p>A provision in United States improvement contract that the United States might treat any assignment or transfer of the contract or subletting of the work as an annulment thereof, or might recognize the acts of the contractors as valid, as it should feel disposed, was for the sole benefit of the government, the observance of which could not be insisted oh by other parties in interest.</p> <p>[Ed. Note.—For other cases, see United States, Dec. Dig. § 70.*]</p> <p>2. United States (§ 70*)—Improvement Contract—Specifications—Termination—Use of Appliances—“Employed on Any of the Works”— “Materials Belonging to Contractor Delivered on Ground.”</p> <p>One of the specifications of United States improvement contract provided that if the contractor should fail to prosecute the work, or begin the delivery of material in such manner as to insure a full compliance within the time limit, or if any question should arise as to whether the contractor was properly carrying out the contract in its true intent and meaning, and on his neglect or refusal after notice to provide means for a more energetic compliance with the contract, the Secretary of the Interior might suspend the work and take possession of all machinery* tools, appliances, and animals “employed on any of the works,” and all-“materials belonging to the contractor delivered on the ground,” and use the same to complete the work, etc. Held, that on the termination of the contract, under such specification, the Secretary of the Interior's right to take possession of machinery, tools, appliances, and animals was not limited to those employed by the contractor, but included all that were “employed on any of the works,” by any one, whether contractor or subcontractor, but that the government’s right to materials was limited _t© those on the ground and owned by the contractor.</p> <p>[Ed. Note.—For other cases, see United States, Dec. Dig. § 70.*)</p> <p>3. Trover and Conversion (§ 23*)—Personal Property—Rights of Possession.</p> <p>Where the United States had taken possession of a crusher and a power plant under lawful authority, on termination of the contract for a public improvement, because of the contractor’s default, and the government turned over such plants to defendant for use in the completion of the work as the contractor’s surety, defendant's possession of the plants was lawful, and it was not therefore chargeable for conversion thereof.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. '§§ 163-166; Dec. Dig. § 23.*]</p> <p>■4. United States (§ 70*)—Contract—Termination—Right to Material— “Delivery.”</p> <p>Where a public improvement contract provided for termination at the election of the United States on the contractor’s default, in which event the Secretary of the Interior might take possession of all materials belonging to the contractor delivered on the ground, and might use the same to complete the work, rock excavated by certain subcontractors and placed in position convenient to a crusher plant to be crushed, though material' placed or “delivered” within the contract, was nevertheless not the property of the contractor, and hence was not subject to appropriation by the? government on terminating the contract.</p> <p>[Ed. Note.—For other cases, see United States, Dec. Dig. § 70.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1958-1970':-vol. 8, p. 7632.]</p>

<p>Towage (§ 11*)—Injubt to Tow—Collision Between' Tows—Fault of Tug.</p> <p>A tug proceeding down the Passaic river with a scow on one side and a schooner in tow on a hawser was compelled to wait the passing of trains before the opening of the draw in a railroad bridge, and while doing so kept to the east side of the river because the ebb tide was setting toward the southwest. The draw, which was on the east side, was opened in time to permit the tug to pass, but in doing so the master miscalculated and went so near the east side that the scow struck the trestle, and the schooner came into collision with it and was injured. Held, that the fault was that of the master, which rendered the tug liable for negligent towage.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 11, 19; Dec. Dig. § 11.*]</p>

<p>1. Seamen (§ 23*)—Validity of Contract fob Service—Advancements.</p> <p>The fact that the master of a vessel took possession of notes given by seamen to a hoarding house keeper after the signing of shipping articles, and held the same with the intention of paying them on the discharge of the seamen, if on inquiry it was found to be legal, did not constitute a violation of Act Dec. 21, 1898, c. 28, § 24, 30 Stat. 763 (U. S. Comp. St. 1901, p. 3079), prohibiting advancements to seamen, nor render the shipment void so as to entitle the seamen to quit the service before the expiration of the term of service under Rev. St. § 4523 (U. S. Comp. St. 1901. p. 3075), where the amount was not charged to the seamen nor any agreement made to pay the notes.</p> <p>[Ed. Note.—For other cases, see Seamen, Dec. Dig. § 23.*]</p> <p>2. Admiralty (§ 13*) —Jurisdiction —Suits fob Wages Between Foreign Seamen and Foreign Vessels.</p> <p>Where the aid of an American court of admiralty is invoked in a settlement for wages between foreign seamen and a foreign vessel, in the absence of treaty stipulations it rests in the discretion of the court whether it will take jurisdiction, and the courts are inclined to take jurisdiction when, but only when, it is necessary to prevent a failure of justice.</p> <p>[Ed. Note.—For other cases, see Admiralty, Dec. Dig. § 13.*</p> <p>Jurisdiction of suits between foreigners, see note to Fairgrieve v. Marine Ins. Co. of London, 37 C. C. A. 193.]</p>

<p>1. Wharves (§ 20*)—Injury to Vessels—Obstructions in Berth.</p> <p>Where a wharf used for hire is so located as to have a very small amount of water in a berth at low tide, so that boats lying there necessarily rest on the bottom, the owner must be held responsible for injuries resulting from anything in the nature of permanent obstructions in the bottom.</p> <p>[Ed. Note.—For other cases, see Wharves, Cent. Dig. §§ 36, 37; Dec. Dig. § 20.*]</p> <p>2. Wharves (§ 20*)—Injury to Vessels—Contributory Negligence.</p> <p>Where those, in charge of a scow, in a berth where she was injured by an obstruction on the bottom at each succeeding low tide, allowed her to remain after knowledge of the obstruction and when the boats’ position could have been changed, the owner is entitled to recover from the wharf owner only for the injury received before they had such knowledge.</p> <p>[Ed. Note.—Eor other cases, see Wharves, Cent. Dig. § 40; Dec. Dig. § 20.*]</p>

<p>Associations (§ 18*)—Contract by Voluntary Association—Authority of Officers.</p> <p>The so-called contract between the International Printing Pressmen and Assistants’ Union and the United Typothetse of America, signed by the directors of each of such associations on January 8, 1907, for the purpose of governing the relations between the members of the two as employers and employés, is invalid and not binding for want of authority on the part of the directors of the Union to execute the same. It was designed to take the place of a prior agreement between the parties which was to expire by limitation Elay 1, 1907, but contained certain provisions differing therefrom. Such prior contract had been similarly negotiated, subject to ratification by each association, and had been so ratified. The new agreement was also ratified by the Typothetse, but the directors of the Union assumed to have authority to conclude the contract. The minutes of the last preceding convention of the association at which their authority was given show, however, that their negotiations as to some of the matters covered by the agreement were to be reported to the next annual convention for its action, and such convention, which met in June following, voted to ratify the contract only subject to certain changes, which were never made.</p> <p>[Ed. Note.—For other cases, see Associations, Dec. Dig. § 18.*]</p>

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

App.eals from the District Court of the United States for the Northern District of New York. In the first appeal, the H. Remington & Son Pulp & Paper Company (designated in the opinion following as the “Pulp Company”) appeals from an order disallowing a claim of $72,775.45 presented by it against the bankrupt estate of the Watertown Paper Company (designated in the opinion as the “Paper Company”).

<p>1. Contracts (| 130*) — Injunction (§ 61*)- — Agreements in Restbaint of Trade — Remedies.</p> <p>Agreements creating a monopoly in restraint of trade and against public policy, though invalid and unenforceable, are not illegal in the sense of giving a right of action to third persons for an injury sustained, nor as affording ground for an injunction against threatened injury.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 136 ;* Injunction, Dec. Dig. § 61.*]</p> <p>Monopolistic Contracts — validity as affected by public policy, see note to Cravens v. Carter-Crume Co., 34 C. C. A. 486.]</p> <p>2. Monopolies (§§ 24, 28*) — Federal Anti-Trust Act — Injunctive Remedy-Rights op Individuals.</p> <p>A person injured by a violation of the federal anti-trust act cannot sue for an injunction thereunder; his sole remedy being a suit to recover treble damages, and the injunctive remedy being available to the government only.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. §§ 17, 18; Dec. Dig. §§ 24, 28.*]</p> <p>3. Monopolies (§ 8*) — Definition.</p> <p>A “monopoly” is the concentration of business in the hands of a few.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 8.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4573.]</p> <p>4. Monopolies (§ 12*) — Statutes—Agreements.</p> <p>An agreement between á masoii builders’ association and bricklayers’ unions in the city of New York that the builders’ association should include in their contracts for building all cutting of masonry, interior brickwork, fireproofing, etc., and should not lump or sublet the installation thereof if the labor in connection therewith is bricklayers’ work, as recognized by the trade,' but that the men employed on the walls should be given preference, and that no members of the bricklayers’ union should work for any one not complying therewith, did not constitute a monopoly, within the New York statute providing that every contract or combination whereby a monopoly in the manufacture, production, or sale in the state of any article, or commodity of common use is or may be created, established, or maintained, etc., is against public policy, illegal, and void.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dee. Dig. § 12.*]</p> <p>5. Conspiracy (§ 1*) — Definition—“Civil Conspiracy.”</p> <p>A “conspiracy” is a combination to effect an illegal object as an end or means, and a “civil conspiracy” is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 1; Dec. Dig! § 1.*</p> <p>For other -definitions, see Words and Phrases, vol. 2, pp. 1193, 1454-1461; vol. 8, p. 7613.]</p> <p>6. Conspiracy (§ 6*) — Action—Elements.</p> <p>To warrant an action for conspiracy, damage must have resulted from the combination.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 5; Dec. Dig. 5 6.*]</p> <p>7. Injunction (§ 101*) — Conspiracy—Damage.</p> <p>To justify an injunction against a conspiracy, damage must have been threatened.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 101.*]</p> <p>8. Conspiracy (§ 3*) — Object—Illegality.</p> <p>The direct object or purpose of a combination furnishes the primary test of its illegality; it being insufficient to show that it works harm to others incidentally, unless it was entered into for the primary purpose of injuring another, in which case it is not rendered valid by the fact that it may incidentally benefit the parties thereto.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 3; Dec. Dig, § 3.*j</p> <p>9. Conspiracy (§ 3*) — Combination of Labobeks — Motive—Object—Means.</p> <p>Several laborers may combine for mutual advantage, and so long as the motive is not malicious, the object not unlawful or oppressive, and the moans neither deceitful nor fraudulent, the result is not a conspiracy, although it may necessarily work injury to others.</p> <p>,. [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 3; Dec. Dig. § 3.*J</p> <p>10. Conspiracy (§ 3*) — Combination of Laborers and Builders — Validity.</p> <p>An agreement between a master mason builders’ association and bricklayers’ unions in the city of New York prohibited the association from subletting interior brickwork, fireproofing, etc., but requiring that such work he included in tl\e building contracts, and that the men employed on the construction of the walls should be given a preference in performance thereof, and that no members of the bricklayers’ unions should work for any one not complying with the rules and regulations of the agreement. Held, that such agreement was for the special benefit of the bricklayers, and was not intended to injure complainant, a nonresident corporation authorized to do fireproofing alone, and hence, though the agreement operated to complainant’s prejudice, it was not a conspiracy against which complainant had any remedy.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 3: Dee. Dig. § 3.*]</p> <p>11. Conspiracy (§ 3*) — Statutes—Object.</p> <p>An agreement between a mason builders’ association and bricklayers’ unions in the city of New York, prohibiting the subletting of interior brickwork, fireproofing, etc., and requiring that the men employed on the outside walls of a building be given preference in the performance of such inside work, did not constitute a conspiracy prohibited by Ben. Code N. Y. § 168, subds. 5, 6; the test of the application of the statute being the purpose of the combination, which, if lawful and carried out by lawful means, shows absence of conspiracy, though a third person may be incidentally injured.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 3; Dec. Dig. § 3.*]</p>

<p>1. Sales (§ 4*)—Distinguished from Bailment.</p> <p>A contract between a mercantile company and the bankrupts provided that the company shóuld place its stock of merchandise and business in the hands of the bankrupts to be operated by them for a year as a general retail store on conditions agreed on, viz., that the bankrupt should take the stock as per inventory, conduct the business, paying all expenses, including rent, insurance, taxes, clerk hire, and sell the goods for cash only or to responsible parties, and that they would replenish the stock so that it should be at no time less than $500 below the inventory amount, and at the close of the term, if the value should be less than when taken by the bankrupts, they should pay the mercantile company the deficiency, and, if greater, the mercantile company would pay for the excess to $500. It was agreed that the title to the stock and the additions should remain in the mercantile company, and the bankrupts, for the use of the stock, should pay 12 per cent, on all sales to $30,000, 10 per cent, on sales above $30,000 and up to $40,000, and 9 per cent, above $40,000, during the year, and should have the balance of the profits for their services and operating expenses. Held, that the contract was one of bailment, and not a sale, and was valid under the Michigan law.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 7-11; Dee. Dig. § 4.*]</p> <p>2. Bailment (§ 3*)—Contracts—Registration oe Filing.</p> <p>A contract of bailment, by which possession of a mercantile stock and business was transferred t.o the bankrupts, who were to operate the same for a year in consideration of payment of certain percentages on sales, was not required by any law of Michigan to be recorded or filed.</p> <p>[Ed. Note.—For other cases, see Bailment, Dec. Dig. § 3.*]</p> <p>3. Bankruptcy (§ 326*)—Set-Off—“Mutual Debits and Credits.”</p> <p>A bailment contract transferring the possession of a mercantile business to the bankrupts to operate the same for a year provided that, for the use of the property, the bankrupts should pay to the bailor certain percentages on sales, and rent and insurance, that the bankrupts should keep the stock up to within $500 of the original inventory value, that on termination of the contract the bailor should pay any inventory excess up to $500, and that the bankrupts should be liable for any deficiency. On the termination of the contract, the inventory excess amounted to $1,323.42, but the bankrupts were indebted to the bailor on account of unpaid insurance and percentages on sales, etc., $679.73. Held, that such items were “mutual debits and credits” as defined by Bankr. Act July 1, 1898, c. 541, § 68, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), providing that such claims shall be set off in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. § 326.*]</p>

<p>1. Shipping (§ 39*)—Chabtees—Construction—Demise op Vessel.</p> <p>A time charter of a steamer to be officered, manned, provisioned, maintained, and navigated by the owner, and to be placed at the disposal of the charterer to the extent of her cargo space, is not a demise of the vessel,. although the charter party speaks of her “delivery” to the charterer.-</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 39.*]</p> <p>2. Shipping (§ 39*)—Chabtebs—Consteuction op Chaetee Pabty.</p> <p>A provision in a charter party, which contains' independent covenants to be performed by each party, that acts of God, enemies, perils of the seas, errors of navigation, etc., are mutually excepted, operates merely to relieve either party from liability to the other on account of the breach of any of such covenants on his part, where it results from any one of the excepted causes. Such exceptions do not apply, however, to a special provision for the suspension of charter hire for delay, resulting, from any one of certain enumerated causes, many of which are the same as those specified in the exceptions.</p> <p>[Ed. Note.—For other cases, see Shipping, Dee. Dig. § 39.*]</p> <p>3. Shipping (§ 49*) — Chaetee — Deduction of Chabteb Hibe—Detention of Vessel in Quabantine—"Deficiency of Men”—“Restbaint of Pbinces ob People.”</p> <p>The detention of a vessel under a time charter at an intermediate port on her voyage under a general quarantine regulation of the state because she came from a port which under such regulations was presumptively infected was not caused by a “deficiency of men” constructively or otherwise, within a clause of the charter party relieving the charterer from the payment of hire in case of delay from such deficiency, but was through “restraint of princes or people” within a provision mutually excepting such cause, and the charterer is entitled to no deduction therefor.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 49.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6186.</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.]</p>

States for the Southern District of New York. There was no written opinion below, the Circuit Court affirming a decision by the Board of United States General Appraisers, G. A. 6,-628 (T. D. 28,257), which had affirmed the assessment of duty by the collector of customs at the port of New York. The board held that by virtue of the similitude clause in Tariff Act July 24, 1897, c. 11, §■ 7, 30 Stat. 205 (U. S. Comp.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree awarding to the libelant, the owner of the steamship Dunholme, demurrage by reason of her detention in the port of Philadelphia from December 24, 1906, to January 4, 1907. The opinion of the District Judge will be found in 164 Fed. 441.</p>

This-cause comes here upon appeal from a decision of the Circuit Court, affirming a decision of the Board of General Appraisers (G. A. 6,647, T. D. 28,346), which affirmed the collector at the port of New York. The importation is commercially known as “chrome alum,” and was classified under Act July 24, 1897, c. 11, '§' 1, Schedule A, par. -3, 30 Stat. 151 (U. S. Comp.

<p>Shipping (§ 79*)—Liability of Vessels for Torts—Injury to Floating Dry Dock from Swell—Contributory Fault.</p> <p>The owners of a floating dry dock, permanently stationed alongside a pier,' where it was held by means of wooden collars passing over heavy spuds driven in the bottom, having room to move up and down with the rising and falling of the tide, which was injured by the excessive swell caused by a passing steamer, held not chargeable with contributory fault because of the manner of fastening the dock, where it had been the same for five years, during which time the dock had received no serious injury from passing vessels; and the steamer held liable for the entire damages. .</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 79.*</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>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>Cancellation of Instruments (§ 37*)—Right to Cancellation.</p> <p>A bill for the cancellation of a deed to lands sold to an Innocent purchaser to pay debts which were a legal charge upon them, where the complainant does not offer'to pay the debt, is without equity.</p> <p>[Ed. Note.—For other eases, see Cancellation of Instruments, Cent. Dig.- § 73; Dec. Dig. § 37.*]</p>

<p>Patents (§ 328*)—Infringement—Reinforced Concrete Girder.</p> <p>The Hennebique patent, No. 011,907. for a reinforced concrete beam or girder, construed, and held not infringed.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Patents (§ 234*)—Infringement—Identity of Machines.</p> <p>The claims of a patent should cover only what the patentee has in fact invented, and not what he imagines he has invented; and the inventor of a practical working machine will not be held to have infringed a prior patent for an unsuccessful machine, which added nothing of substantial value to the art, merely because the language of its claims is broad enough to include the successful structure.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 234.*]</p> <p>2. Patents (§ 328*)—Infringement—Book-Trimming Machines.</p> <p>The Lovell and Bredenberg patent, No. 490,877, and the Lovell and Williamson patent, No. 734,907, each for a book-trimming machine, construed, and held not infringed.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

470,813, granted to Adoniram J. Wilson for an electric railway signal. The cause was before this court in April, 1907, upon an appeal from an order granting a preliminary injunction restraining the infringement of the patent in suit and four other patents granted to Wilson for similar improvements. The bill alleged the infringement of 53 claims, but the discussion on the former appeal was limited to 6 claims only.

<p>Patents (§ 325*)—Suits for Infringement—Costs.</p> <p>Where, in a suit in equity on several patents, the complainant succeeds as to some and is defeated as to others, the costs are in the discretion of tlie court, and will be awarded according to the circumstances of the particular case.</p> <p>TEd. Note.—For other cases, see Patents, Cent. Dig. § GOT; Dee. Dig. § 325.*]</p>

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

On Demurrer to Indictment. The following is a copy of the charging part of the indictment, and the letters, postal cards, etc., claimed to constitute the overt acts: The grand jurors of the United States of America within and for said district and division, in the name and by the authority of the said United States of America, upon their oaths, present, that on or about the 10th day of March, 1007, and prior to all the days and dates hereinafter mentioned, at the city of…

In Equity. The receivers appointed by this court are operating the lines of the Cleveland Railway Company.

<p>Eminent Domain (§ 242*)—Proceedings to Take Property—Persons Concluded by Judgment.</p> <p>A landowner, who appeared in a state court in a condemnation proceeding by a railroad company, and filed a claim for damages on account of land taken from her, and had a hearing thereon, is estopped to deny the validity of the proceeding for want of notice or other irregularity, or to attack the decree collaterally by a suit in a federal court against the company, based on a claim of title in herself.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent Dig. § 626; Dec. Dig. § 242.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>At 5 o’clock in the afternoon of a cold blustering day in January, 1907, the assistant of the engineer of the waterworks of the city of Winona blew a steam whistle on the waterworks building for the purpose of notifying- union men and city employes that their workday was over, and thereby scared a team of horses which James N. Nichols was driving about 110 feet distant from the whistle over the city’s bridge across the Mississippi river, so that they ran away, throw him and Irene Botzet, a schoolgirl 33 years old who was riding with him, over the railing of the bridge to the frozen ground 40 feet below, killed him, and seriously injured her. Mary Alice Nichols, the administratrix of his estate, brought an action against the city for alleged negligence in causing the death of Mr. Nichols in tills way. August Botzet, the father of Irene, brought an action against the city for alleged negligence in causing the injuries to her. The two causes were tried together, and resulted in judgments for the plaintiffs, of which the city complains.</p> <p>For more than 20 years the city of Winona has maintained waterworks, and as a part thereof a building in which the pumping engines are located and operated. It has also maintained an organized fire department under legislative authority. In 3888, under this authority, it installed an electric fire-alarm system, and as a part of it a 12-inch fire whistle, which it placed on the roof of the waterworks building, and which automatically notified the members of the fire department and others by its blasts in what part of the city a fire was whenever an alarm was sent in from any one of some GO fire-alarm boxes scattered throughout the city. This whistle, including the fire* alarm system, was tested three times a day, so that it gave forth many blasts, sometimes about 100 in a day. After this whistle and fire-alarm system had been established, and in 1891, the city of Winona, under authority conferred upon it by the Legislatures of Minnesota and Wisconsin, constructed and has maintained ever since a toll bridge across the Mississippi river for the use of pedestrians, teams, and carriages. It constructed this bridge in such a way that the driveway of the approach to it upon the Minnesota side started on an easy ascent at the intersection of Second and Main streets in Winona, ran north on Main street about 400 feet, then turned and ran west one block of 300 feet to Johnson street, where it was at least 45 feet above the ground. At that point the driveway turned and ran east across the river about 300 feet to a point where it connected with a pile bridge and a road leading across the Wisconsin bottoms. Where the roadway turned east on the Minnesota side it was not more than 110 feet distant from the steam whistle on the waterworks building, which was in a plane not more than 15 feet below it. The roadway of the bridge was provided with a sidewalk on one side of it 6 feet in width, a driveway for carriages 18 feet in width, and substantial wooden railings 4 feet 2 inches in height. ,</p> <p>In May, 1905, the city council of Winona, on a petition of the trades and labor council, adopted a recommendation of its fire committee that this fire whistle should be blown at 5 in the afternoon to notify mechanics and others when their workday ceased. Thereupon the water commissioner dil'ected the engineer of the waterworks to blow this whistle at that hour each day, and he did so by means of a cord attached to the valve from that time until the injuries were inflicted which resulted in these action’s.</p> <p>By chapter 165, p. 238 of the General Laws of Minnesota, 1903, the management of the waterworks was transferred on Blay 1, 1906, to the board of municipal works of the city of Winoná; but that board gave no directions concerning the blowing of this whistle, and the engineer who continued in charge of the waterworks building continued to blow the whistle as before.</p> <p>The blast of this whistle was produced by a steam pressure of about 100 pounds to the square inch, and it sent forth a shrill, startling sound which could be heard 5 miles, and much farther under favorable conditions. In the discharge of its function as a fire whistle it was blown automatically by the action of the fire-alarm system. But in the discharge of its function as a time whistle it was blown by hand by the engineer of the waterworks, or his assistant, who pulled the valve open by means of a cord attached to it. Gentle and tractable horses had been scared by the blasts of this whistle and had attempted to run away while they were traveling upon the bridge, and this had occurred many times during the preceding nine years. Mr. Nichols was a dairyman who lived about-12 miles distant from Winona in the state of Wisconsin, and who had been accustomed for four years to drive over the bridge once a week and sometimes more frequently, so that he probably knew that the whistle sounded for fire alarms; but the evidence does not indicate whether or not he was aware that it blew at five in the afternoon. He drove into Winona on the morning of the day of the accident a pair of young horses, four and five years old, and started to return about 5 o’clock in the afternoon. Irene Botzet, a schoolgirl who lived in Wisconsin and attended school in Winona, asked him for a ride across the bridge, and he granted her request. As he drove, up the approach of the bridge toward the turn near the whistle, he was holding his horses down to a slow walk so that another team walked past him. There were then two teams in front of him on the bridge, and he was following. Just after he arrived at the turn of the driveway to the east the steam whistle blew, and his team, and that next in front of him, began to run. He held onto his horses and guided them past the two teams in front of him, but one, and a little later two more, of the tugs in his harnesses unhooked, the end of the tongue slipped out of the yoke, dropped, and broke, the horses ran on, drove the end of the broken tongue against the guard rail, raised the box on which the occupants were sitting, and threw them over the railing to the frozen ground on the Wisconsin side 40 feet below. The court submitted to the jury the questions, was the city guilty of negligence which was the proximate cause of the injuries inflicted by the runaway, and were the victims guilty of negligence which contributed to canse these injuries? and the jury answered the former in the affirmative, and the latter in the negative.</p>

In October, 1901, James Johnston, the owner of certain unpatented mining claims in Nevada, executed a written lease to one Hyde, and in the same instrument gave him an option to purchase the leased property on or before the expiration of the lease, upon the payment of $75,000, in installments as follows: $20,000 on or before December 20, 1901; $15,000 on or before February 20, 1902; $15,000 on or before April 20, 1902; $15,000 on or before June 20, 1902; and $10,000 on or…

<p>1. Removal of Causes (§ 89*)—Procedure—Petition—Bond.</p> <p>Judiciary Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 435 (U. S. Comp. St. 1901, p. 510), authorizes the removal of a cause on the filing of a petition disclosing a right to remove and the giving of the prescribed bond.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 189-201; Dec. Dig. § 89.*]</p> <p>2. Removal of Causes (§ 89*)—Jurisdiction—Surrender by State Court.</p> <p>On the filing of a removal petition, it becomes a part of the record, and if, on the face of the record as so constituted, the suit appears to be a removable one, the state court is bound to surrender jurisdiction.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. §§ 189-201; Dec. Dig. § 89.*]</p> <p>3. Removal of Causes (§ 89*)—Petition—Determination by State Court.</p> <p>A removal petition presents for the state’s court consideration a question of law only as to whether, assuming the facts stated in the petition to be true, the face of the record discloses a removable cause.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. §§ 189-201; Dec. Dig. § 89.*]</p> <p>4. Remuval of Causes (§ 107*)—Grounds—Controverting Facts,</p> <p>Plaintiff, in order to controvert the facts stated in a removal petition must make an issue with respect thereto in the federal court in which the issue must be tried.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Dec. Dig. § 107.*]</p> <p>5. Removal of Causes (§ 92*)—Petition—Deniai>-Filing Record.</p> <p>■ Where a state court refuses to order the removal of a cause, defendant within the prescribed time may file a copy of the record in the proper federal court and have the cause docketed there, after which the federal court is required to proceed in the exercise of the jurisdiction lost by the state court, which can be regained only by an order of the federal court remanding the cause.</p> <p>[Ed. Note.—For other case's, see Removal of Causes, Dec. Dig. § 92.*]</p> <p>6. Removal of Causes (§ 97*)—Grounds—Wrongful Exercise of Jurisdic-</p> <p>tion,</p> <p>Where a state court wrongfully attempted to exercise jurisdiction after the case had been transferred to the federal court by defendant filing a copy of the record therein after the denial of his petition to remove, such subsequent exercise of jurisdiction by the state court would be enjoined.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Dec. Dig._ § 97.*]</p> <p>7. Removal of Causes (§ 86*)—Petition—Verification.</p> <p>Under Judiciary Act Aug. 13, 1888, c. 866, § 3, 23 Stat. 435 (U. S. Comp. St. 1901, p. 510), providing for the removal of causes on petition, a removable petition is not defective because not verified.</p> <p>I Ed. Note.—For other cases, see Removal of Causes, Cent Dig. § 177; Dec. Dig. § 86.*]</p> <p>8. Removal of Causes, (§ 89*)—Petition—Sufficiency.</p> <p>Where a petition for the removal of a cause is demurrable on Its face, the state court may properly decline to order the removal, and will not lose jurisdiction; but, if the petition is not demurrable, jurisdiction thereby passes, however inartificial the petition may he.</p> <p>[Ed. Note.—For other cases, see Removul of Causes, Cent Dig. §§ 192- . 195; Dec. Dig. § 89.*]</p> <p>9. Removal of Causes (§ 86*)—Petition.</p> <p>Where a removable petition alleged the requisite diversity of citizenship, that the matter in dispute exceeded, exclusive of interest and costs, the sum of $2,000. that a separable controversy existed between plaintiff and petitioner, and that a codefendant was fraudulently joined to defeat federal jurisdiction and prevent removal, it was sufficient for that purpose, though it was defective in detail as to what constituted the alleged fraud.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. §§ 166-179; Dec. Dig. § 80.*j</p> <p>10. Removal of Causes ($ 107*)—Petition—Amendment.</p> <p>Where a removal petition set forth the ultimate facts required by law, but did not allege in detail the,facts constituting an alleged fraudulent joinder of parties defendant, it was amendable in the federal court in that regard.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 178; Dec. Dig. § 107.*]</p> <p>11. Removal of Causes (§ 89*)—Parties—Fraudulent Joinder—Burden of Proof.</p> <p>A petitioner for the removal of a cause was not bound to prove an alleged fraudulent joinder of defendants to prevent a removal, until issue was joined on such allegation.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 192-193; Dec. Dig. § 89.*]</p> <p>12. Removal of Causes (§ 107*)—Parties—Fraudulent Joinder—Joinder of Issue.</p> <p>Where a petition for-removal alleged fraudulent joinder of defendants, it was plaintiff’s duty to appear and submit to the jurisdiction of the court on the merits or to plead in abatement, putting in issue the allegations of fact on which the removability of the cause depended, in which case the federal court would acquire jurisdiction to hear and determine the issue of such joinder.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. § 226; Dec. Dig. | 107.*</p> <p>Fraudulent Joinder of parties to prevent removal, see note to Oliner v. Chicago & E. R. Co., .78 C. C. A. 362.]</p> <p>13. Courts (5 2S0*)—Federal Courts—Determination of Jurisdiction.</p> <p>The rule that federal courts must take notice of a want of jurisdiction whenever it appears does not apply when such want of jurisdiction depends. not on a single uncontroverted fact, but on. a finding of an issue of fact as to the fraudulent joinder of defendants to prevent a removal, which is determinable only after a hearing on the facts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. § 280.*]</p> <p>14. Removal of Causes (§ 97*)—Proceedings in State Court After Removal —Injunction—Jurisdiction of State Courts.</p> <p>A bill to restrain a state court from proceeding in an action at law after jurisdiction had been removed to the federal court until the question of removability had been determined was maintainable as an auxiliary proceeding to protect the federal court’s jurisdiction and to prevent unnecessary, embarrassing, fruitless, and expensive litigation.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Dec. Dig. §• 97.*)</p> <p>15. Removal of Causes (§ 97*)—Proceedings in State Court After Remov al—State Court’s Jurisdiction—Scope of Determination.</p> <p>Where a state court, after denying a petition to remove an action at law to the federal court, continued to exercise jurisdiction notwithstanding the cause was removed by the filing of a certified transcript of the record, whereupon the removing party obtained an injunction restraining plaintiff from proceeding in the state court until the federal court could pass on the issue determinative of its jurisdiction, the determination of such issue should have been by the federal court having jurisdiction of the action at law, and not as a part of the injunction suit.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Dec. Dig. § 97.*]</p>

Defendant in error as plaintiff below recovered judgment for damages on account of personal injuries. The two counts on which the case was submitted to the jury were based on an alleged violation of the safety appliance acts. Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174); Act April 1, 1896, c. 87, 29 Stat. 85; Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885).

<p>1. Courts (§ 259*)—Jurisdiction of Federal Courts—Powers of State Legislature.</p> <p>Jurisdiction of cases at law or in equity involving controversies between citizens of different states is conferred by the Constitution and laws of Congress upon the courts of the United States, and such jurisdiction cannot be defeated or impaired by the laws of a state. If a suit, when viewed in the light of recognized principles of jurisprudence, appears to be a suit of a civil nature at common law or in equity, it matters not that by a local statute exclusive cognizance has been in terms reserved to the courts of the state generally or to some specially designated local tribunal.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 795; Dec. Dig. § 259.*</p> <p>Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 C. C. A. 513.</p> <p>Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Courts (§ 259*)—Jurisdiction of Federal Courts—Power of State Legislatures.</p> <p>Where the laws of a state enlarge the jurisdiction of the probate courts, which ordinarily embraces proceedings in rein in respect to estates of decedents, as the probating of wills and the administration of estates by which the property of a decedent is devolved, to include also suits formerly cognizable in the form of ordinary suits at law or in equity in courts of general jurisdiction, they are dealing with that which may also be subject to the judicial power of the United States, and, while they may properly regulate the jurisdiction of the courts of the state, they cannot restrict that of the federal courts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 795; Dec. Dig. § 259.*]</p> <p>3. Courts (§ 262*) — Jurisdiction of Federal Courts —Cases in Law and</p> <p>Equity.</p> <p>A suit by heirs at law of a testatrix, brought after the will has been probated and the estate fully administered, except the payment of a bequest of the residuary estate for charitable purposes, against the executors and a corporation organized to take and administer the charity, to have the bequest declared void as contrary to the laws of the state, is not a probate proceeding, but has all the elements of a' plenary suit inter partes, and is within the jurisdiction of a federal court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 797; Dec. Dig. § 262.*]</p> <p>4. Judgment (§ 570*) — Merger and Bar of Cause of Action—Judgment on Motion to Dismiss.</p> <p>A testator left as his only heirs his widow and daughter, and by his will bequeathed a part of his estate in trust in part for their benefit, and ultimately, in case the daughter should die without leaving children, to be devoted to a charitable purpose. The daughter died without issue, and later the widow died testate, bequeathing her residuary estate to found a charity in conformity with the wills of her husband and daughter, and a corporation was formed to take and administer the same. The trustees under the husband’s will brought a suit in a state court to obtain a construction of the same, in which heirs of the widow intervened, claiming that the charitable bequests in both wills were void, and that the widow's residuary estate, including the property inherited as an heir of her husba»3, descended to her heirs. To such suit the executors of both wills and the charitable corporation were parties. A motion to strike out the complaint in intervention, equivalent under the statute to a demurrer, was sustained on the ground that the bequest in the widow’s will was valid, and interveners therefore had no standing to attack the will of the husband, which judgment was affirmed by the Supreme Court of the state. Held, that such question was directly in issue, and the judgment was an adjudication thereof on the merits, which bound all parties, and was a bar to a subsequent suit brought by the heirs in a federal court to have the bequest declared invalid.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1032; Dee. Dig. § 570.*]</p> <p>5. Judgment (§ 584*) — Bab of 'Cause of Action — Nature, Rendition1, and Form of Judgment.</p> <p>To render a judgment conclusive as an estoppel between parties to a suit, it is not always essential that there should have been a formal joinder of issue between such parties; nor does it matter that the question decided was purely one of law, and the decision rendered on motion or demurrer, provided the merits were involved and decided, and the decision was final.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1079; Dec. Dig. § 584.*]</p>

<p>Copyrights (§ 15*) — Extent of Rights Acquired—Official Reports of Su. preme Court.</p> <p>Conceding the right of the official reporter of the Supreme Court of the United States to secure a copyright on his work in the volumes of published Reports, the mere arrangement of reported cases in sequence, and their paging and distribution into volumes, are not features of such importance as to entitle him to copyright protection of such details.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 12; Dec. Dig. § 15.*</p> <p>Matter subject to copyright, see note to Cleland v. Thayer, 58 C. C. A. 273.)</p>

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

<p>1. Perjury (§ 34*)—Evidence—Weight—Single Witness—Corroborating Circumstances. ■</p> <p>A conviction of perjury may be sustained by the testimony of a single witness corroborated by circumstances proven by independent evidence sufficient to warrant the jury in saying that they believed one rather than the other, as where the evidence of one witness with other facts and circumstances proved are more than sufficient to counterbalance the oath of defendant and the legal presumption of his innocence.</p> <p>[Ed. Note.—For other cases, see Perjury, Cent Dig. §§ 125-132; Dec. Dig. § 34.*]</p> <p>2. Perjury (§ 34*)—Evidence—Falsity of Testimony.</p> <p>In a prosecution for perjury, the testimony of one witness and corroborating circumstances held sufficient to sustain a finding that the evidence alleged to have been perjured was false.</p> <p>fEd. Note.—For other cases, see Perjury, Cent. Dig. §§ 129, 130; Dec. Dig. § 34.*] '</p>

<p>In Error to 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 District of Nebraska.</p>

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

<p>1. Bankruptcy (§ 446*)—Petition to Revise—Scope op Review.</p> <p>Where, on a petition to revise and review an order requiring a bankrupt to pay into the registry of the court a certain sum of money or stand committed, the record did not contain the evidence, only such matters of law as were apparent on the face of the record could be considered ; it being' presumed that the facts disclbsed by the evidence were sufficient to sustain the finding and order.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dec. Dig. § 446.*]</p> <p>2. Bankruptcy (§ 446*)—Concealed Assets—Order for Delivery.</p> <p>Where the court found, in an order requiring a bankrupt to pay over money, that the bankrupt had concealed assets, and the order required the payment of money, it would be presumed that the court found that the assets consisted of money which was under the bankrupt’s control when the order was made and that he was able to comply therewith.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dec. Dig. § 446.*]</p> <p>3. Bankruptcy (§ 136*)—Adjudication—Effect.</p> <p>A bankruptcy adjudication operates to transfer to the trustee title to all the bankrupt’s property subject to distribution among his creditors, and, if it appears to the court’s satisfaction that property of the bankrupt’s estate was in the bankrupt’s control or possession, a lawful order for its delivery may be made.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dec. Dig. § 136.*]</p> <p>4. Bankruptcy (§ 136*)—Withheld Assets—Payment.</p> <p>An order' requiring a bankrupt to pay over withheld money should require payment to the trustee, and not into the registry of the court.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dec. Dig. § 136.*]</p> <p>5. Bankruptcy (§ 136*)—Withheld Assets—Payment^-Contempt.</p> <p>An order required a bankrupt to pay over withheld money, and declared that in default thereof he be held guilty of contempt, and directed the marshal to arrest and confine him in a specified jail and there safely keep him until the order of the court was complied with or he was discharged. Held, that such order was erroneous as leaving the question of the bankrupt’s default and consequent contempt to the determination of the marshal, the bankrupt being entitled to a hearing after default on an order to show cause why he should not be punished for contempt.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dee. Dig. § 136.*]</p>

<p>¡L Patents (§ 39*)—Novelty—Use of New Means of Construction.</p> <p>The validity of a patent for a product or structure is not affected by the process or means by which it is made or whether it is made by hand or by machinery. ■</p> <p>[Ed. Note.—For other cases, see Patents, Dee. Dig. § 39.*]</p> <p>2. Patents (§ 328*)—Invention—Woven Wire Fence.</p> <p>The Bates patent, No. 561,193, for woven wire fencing having parallel strand wires and a series of single plain stay wires connecting the strand wires together by being coiled at their end portions around the strand wires and intercoiled at their meeting ends, and in one form having the spaces between both the strand wires and stay wires graduated so as to form graduated meshes, in view of the prior art, is void for lack of invention.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*)—Validity and Infringement—Electric Railway Signal System.</p> <p>The Jordan patent No. 497,408, for an electrical signaling system for railways, has for its special object the setting of a light or other signal at electric street railroad crossings to give notice of the proximity of a ear. It coves a combination of devices by which an auxiliary wire extending a distance either way from a crossing is placed parallel with and near to the trolley wire or main circuit, but normally insulated therefrom. The trolley wheel or other contact device on the car, however, connects the two wires and keeps them in connection until it passes beyond the auxiliary wire, and a current is sent through the same to and through a signal circuit, where it lights a lamp or sets some other danger signal and passes to the earth or other return circuit. Held, that such patent was not anticipated, and discloses invention if limited so as to include as an element the signal circuit, but as so construed it is not infringed by a train-signaling device by which a signal is normally held at safety by a current through an auxiliary wire which is shunted by an approaching train.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 828.*]</p>

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

<p>1. Patents (§ 310*)—Suits foe Infringement—Demurrer to Bill.</p> <p>■ A patent will not be held invalid, on demurrer to a bill for its Infringement, unless the court- is entirely satisfied from its face that by no possible proof can patentable invention and validity be made to appear.</p> <p>■ , [Ed. Note.—For other, cases, see Patents, Cent. Dig. §§ 536, 538; Dec. - Dig. § '310.*] -</p> <p>2. Patents (§ 328*)—Validity — Method of Assimilating Printed and Typewritten Work.</p> <p>The Neidich patent, No. 640,013, for a method of assimilating printed and typewritten work, held not void on its face.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>In Equity. On demurrer to bill and motion for preliminary injunction.</p>

At Law. Action to recover, in behalf of F. Lewis Smith, the sum of $642.08, with interest from August 1, 1905, under a statute of the United States providing for the giving of a bond by contractors with the United States for the performance of work, etc., containing a provision that the obligors shall and will in all respects 1 duly and fully observe and perform all the covenants, etc., of the contract, and that the obligors will promptly make full payment to all persons…

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

<p>In Admiralty. Petition for limitation of liability.</p>

<p>1. Public Lands (§ 51*)—Grants—Nebraska Organization Act.</p> <p>Act Cong. May 30, 1854, c. 59, § 16, 10 Stat. 283, organizing the territory of Nebraska, and providing that sections 16 and 36 in each township in the territory shall be and are reserved to be applied to schools in the territory and the states and territories to be erected out of the same, was a mere reservation of the sections for the purpose specified; no grant of such sections being made until by Enabling Act April 19, 1864, c. 59, § 7, 13 Stat. 49, declaring that such sections in each township not otherwise disposed of, or other equivalent lands, were granted to the state for school purposes.</p> <p>[Ed. Note.—For other cases, see Public Lands, Gent. Dig. § 138; Dec. Dig. § 51.*]</p> <p>2. Public Lands (§ 7*)—School Lands—Rights of State—Vested Rights.</p> <p>Prior to Act Cong. April 19, 1864, c. 59, 13 Stat. 47, organizing the state of Nebraska, that state acquired no vested right in sections 16 and 36 in each township granted by the act for school purposes, and hence, prior to such act, Congress had full power to dispose of such sections as it saw fit</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 7; Dec. Dig. § 7.*]</p> <p>3. Public Lands (§ 6*)—Statutory Provisions—Construction.</p> <p>The rule that the words “public lands” mean such land as Is subject • to sale or further disposition under general laws, and not such as is reserved by competent authority for any purpose, or in any manner, although no exception thereof is made, does not conflict with the doctrine that, where it clearly appears from the statute that the term is intended to include lands theretofore reserved for a specific purpose, such intention will prevail, under the rule that a legislative act is to be interpreted according to the plain intention of the Legislature.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 6.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5793-5795; vol. 8, p. 7772.]</p> <p>4. Public Lands (§ 71*)—Grants to Railroads—Construction—Vesting Title in Company.</p> <p>Act July 1, 1862, c. 120, § 2, 12 Stat. 491, granted to the Union Pacific Railroad the right to take from the public lands adjacent to its line a right of way 400 feet wide, where the railway passes over the public lands, and that the United States should extinguish as rapidly as possible Indian titles to all lands falling under the operation of the act and required for such right of way. Held, that such act granted to the railroad company a right of way across land reserved for school purposes in Nebraska prior to the state acquiring a vested right therein by virtue of Enabling Act (Act Gong. April 19, 1864, c. 59, 13 Stat. 49) § 7.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 232; Dec. Dig. § 71.*]</p> <p>5. Adverse Possession (§ 8*)—Property Subject—Public Lands—Railroad Right of Way.</p> <p>The right of way over public land, granted by Congress to the Union Pacific Railway Company by Act July 1, 1862, c. 120, § 2, 12 Stat. 489, could not be lost to the railroad company by adverse possession; such right of way being regarded as a public highway, and essential to the performance by the railroad company of public duties assumed on its acceptance of the grant.</p> <p>[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. § 43; Dec. Dig. § 8.*</p> <p>Acquisition or loss of right to railroad right of way by prescription, see note to Louisville & N. R. Co. v. Smith, 63 C. C. A. 7.]</p>

<p>1. Railroads (§ 186*)—Suit to Foreclose Mortgages—Intervention—Controversies Between Bondholders.</p> <p>In a suit by the trustee in a railroad mortgage securing bonds to foreclose the same, where a decree pro confesso had been entered and a reference made to a master to ascertain the property covered, and the amount of the bonds outstanding and the interest due thereon are mere matters of computation, leave will not be granted to certain bondholders to intervene for the purpose of litigating the validity of notes to which others of the bonds are held as collateral in advance of the entry of a decree of sale, and especially where the insolvency of the mortgagor is conceded, the property is being operated by receivers at a loss, and the notes attacked are negotiable and in the hands of unknown holders who are not parties.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 616; Dec. Dig. § 186.*]</p> <p>2. Railroads (§ 190*)—Suit to Foreclose Mortgages—Procedure—Controversies Between Bondholders.</p> <p>In a suit to foreclose a railroad mortgage securing bonds, the court has power to order a sale before the final determination of the validity and amount of bonds held by each holder, and it is a recognized practice in such cases to postpone the final determination of all such questions until after the sale.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 623; Dec. Dig. § 190.*]</p> <p>8. Railroads (§ 186*)—'Pledge oe Bonds in Trust—Representation oe Creditors by Trustee.</p> <p>A trustee appointed by a railroad company to hold mortgage bonds pledged as security for negotiable notes issued by the company is the agent of the company only, and not of the holders of the notes, and notice to the trustee of defenses against the notes is not notice to bona fide holders or purchasers; nor does the fact that the trustee is a party to a suit to foreclose the mortgage in a different capacity make the note holders parties by representation, and no action can be taken in such suit respecting the validity of the notes unless such holders are brought in as parties.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 615; Dec. Dig. § 186.*]</p> <p>4. Equity (§ 115*)—Parties—Bringing in Parties by Cross-Bill.</p> <p>It is not proper practice to permit one who is not a party to the original suit to be brought in by a cross-bill.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. § 280; Dec. Dig. § 115.*]</p> <p>5. Railroads (§ 180*)—Mortgages—Duty of Trustee.</p> <p>A trustee under a railroad mortgage is bound to recognize tbe rights of the holders of all bonds which are prima facie valid, and to act on, their request to foreclose when made by the requisite number.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 609; Dec. Dig. § 180.*]</p> <p>6. Railroads (§ 186*)—Suit to Foreclose Mortgage—Representation of Bondholders by Trustee.</p> <p>A trustee in a railroad mortgage in bringing a suit to foreclose acts for the benefit of every bondholder who may show his right to share in the proceeds of sale, and the fact that it may in a different capacity represent certain of the bondholders does not incapacitate it from acting for the others in bringing and maintaining the suit, although there may be controversy between them as to distribution of the proceeds.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 615; Dec. Dig. i 186.*]</p>

<p>In Admiralty. Libels for cargo damage.</p> <p>The Messina is an Italian cargo steamer of 2,564 gross and 1,556 net tons, and was in the year 1908 plying between Mediterranean ports and New York in what was known as the “Creole Line.”</p> <p>From July to October vessels in this trade bound for the United States frequently stop at the Spanish ports of Gandía and Denia for onions, and during the same months, or some of them, stop also at Almería and Malaga for grapes and other local products. The “onion ports” are but 15 miles apart, and at them between August 31 and September 2, 1908, the Messina received a large number of onions consigned to libelants and others in New York.</p> <p>On September 3d she left Denia (the last onion port), and arrived at Almería on the morning of September 4th. She went there pursuant to owners’ orders, advising the master that he would “probably get 12,000 barrels of grapes.” I find that this expectation was the result of information given or promises made to the owners by one Canet, who was at once the ship’s agent in Almería, and largely engaged- in the business of collecting and exporting grapes on behalf of producers in the vicinity.</p> <p>The Messina remained in Almería until the evening of September 16th, and during that time she received, instead of the large quantity of grapes expected, no more than 651 barrels, and none at all came on board from the 4th to the 8th of September. The 651 barrels could have been laden in half a day.</p> <p>While the Messina was lying at Almería other vessels, thought to be faster or otherwise more desirable, came into port and took away whatever grapes were ready for shipment. Canet had no grapes legally engaged, grape owners were entirely at liberty to ship by any vessel they pleased, and they preferred vessels other than the Messina. Being advised of a partial cargo awaiting him in Malaga, the Messina’s master finally telegraphed his owners for permission to leave Almería, and was at once authorized so to do.</p> <p>At Malaga the Messina had good dispatch and made her usual trip across the Atlantic. On arrival in New York on October 5th the onion cargo was found to be extensively decayed; 1,028 eases of the total of 25,203 were seized and destroyed by the department of health, and the merchantable quality of the rest was much impaired by decaying onions producing stains on the erates and contaminating the sound contents.</p> <p>The bills of lading under which the shipments were made recited that the Messina was bound for New York, “but with liberty to the steamer either before or after proceeding towards that port to proceed to and stay at any ports or places whatsoever, although in a contrary direction to or out of or beyond the route to the said port of discharge, once or oftener, in any order backwards or forwards, for loading or discharging cargo or passengers or for any purpose whatsoever; and all such ports, places and sailings shall be deemed included within the intended voyage.” It was further agreed in and by the bills that the steamer was “not answerable for * „ * * decay * * * or inherent deterioration,” and also that “steamer not to be responsible for any loss or damage which may arise to fruit or other perishable goods on board, through delay, or loss of time in obtaining and loading other goods to complete the cargo at this or other ports at which she may hereafter call.”</p> <p>Under favorable conditions onions of the kind under consideration will last without rotting' for between three and four months after arrival in the United States. Such conditions require storage in a place with a temperature of not over 60 degrees. While lying in Almeria the master of the Messina declares that he had “good weather same as spring,” it “was cool,” as in “that part of Spain the heat is never felt”; although another witness testifies that the sun temperature at Almeria in September may be 100° Fahrenheit. I do not find the two statements inconsistent, and believe the weather to have been comfortably cool, but higher than was favorable for keeping onions sound.</p> <p>There is little ventilation in the hold of a ship at anchor, even though hatches be kept open and ventilators up, and this was the Messina’s condition at Almeria. Onions, grapes, almonds, and raisins (called in the evi- , dence “Spanish products”) are shipped to the United States only during three or four months of the year, beginning in July. The business is not sufficient to furnish full cargoes for west-bound vessels, and it has for years been attended to by steamers like the Messina, which started partly laden from an Italian port.</p> <p>Visiting four Spanish ports en. route is not uncommon, and is expected in the trade. It is also well known that tramp steamers do not usually have as quick dispatch as swifter passenger vessels, because cargo will be diverted by the shippers to the most desirable vessel in any given port at any time. It was therefore not surprising that the Messina did not get her hoped-for Almeria cargo, but 13 days for loading and waiting in one Spanish port is not expected by the trade. Nor does the evidence show any instance of such long delay at one port. In my opinion 15 days for four Spanish ports is thought a long time, and 20 days excessive. The Messina spent August 31st to September 18th (18% days) between Gandia and Malaga (both inclusive).</p> <p>The onions laden at Gandia seemed to the master to have been recently harvested. He doubted whether they were ripe, and they had to be packed in crates after his ship arrived at the port; a little more than half his cargo was obtained there. There is no evidence as to the time of harvesting the Denia onions.</p> <p>The libels allege that damage to the onions was due to the negligence of the Messina “in remaining in the port of Almeria from the 3d to the 16th September, 1908, which was entirely unnecessary and constituted a deviation.”</p>

<p>On the Merits.</p>

<p>1. Bankruptcy (§ 149*)—Persons Subject to Jurisdiction—Partnership-Proceedings Against Partners.</p> <p>Bankr. Act July 1, 1898, c. 541, § 5h, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), which provides that “in the event of one or more, but not all, of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy unless by consent of the partner or partners not adjudged bankrupt,” contemplates a case where one or more, but not all, of the members of a partnership are adjudged bankrupt, while the partnership as such is not before the court.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 149.*</p> <p>What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Bankruptcy (§ 42*)—Partnership—Proceedings by Partner.</p> <p>A partner may file a petition in voluntary bankruptcy on behalf of himself and of the partnership, and in such case the proceedings are voluntary as to both himself and the partnership and their respective creditors, and no act of bankruptcy on the part of the partnership need be shown; but as to a nonassenting partner the proceedings are involuntary, and he may under general order 8 (32 C. C. A. xi, 89 Fed. vi), on being served with notice, appear and make proof, if he can, that the partnership is not insolvent pr had not committed an act of bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 42.*]</p> <p>3. Bankruptcy (§ 51*) — Adjudication Against Partnership — Rights oe Nonassenting Partner.</p> <p>Where a voluntary petition is filed by a partner on behalf of himself and the partnership, on which the partnership is adjudged bankrupt, a nonassenting partner cannot be adjudicated a bankrupt, and, if solvent, has the right to take upon himself the settlement of the partnership business, reporting to the court the residuum of assets remaining to be distributed by the court among the partnership creditors; but in any event he is required under general order 8 (32 C. O. A. xi, 89 Fed. v’) to file a schedule of his debts and an inventory of his property, since the surplus of his property over his debts is an asset of the firm to be applied by the court, if necessary, to the payment of the partnership debts.</p> <p>[E¡d. Note.—For other cases, see Bankruptcy, Dec. Dig. § 51.*]</p>

<p>In Bankruptcy. On petition for rehearing by the bankrupt.</p>

<p>Shipping (§ 84*)—Liability of Vessel fob In juey to Stevedobe’s Employ# —Negligence of Winchman.</p> <p>A ship, under agreement to furnish to stevedores a winch and winch-man to be used in loading, which furnished a winch in good order and a competent winchman, is not responsible for an act of negligence on the part of the winchman in loading, by which a stevedore’s employe was injured.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p>

<p>1. Indictment and Information (§ 150*)—Demurrer—Use of Post Office Establishment to Defraud.</p> <p>Where an indictment in several counts purported, to charge in each a separate and different scheme to defraud by selling stocks on false representations, by using the post office in the mailing of a particular letter in executing each scheme, whether the scheme would prove to be one and the same for the different offenses, on which more than one of the counts were based, could not be considered on demurrer.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 150.*]</p> <p>2. Post Office (§ 48*)—Scheme to Defraud—Indictment—Value of Property Sold.</p> <p>Where an indictment charged defendant with devising a scheme to defraud, by inducing others to purchase stock on false representations of fact, and alleged that the scheme was to be effected by correspondence through the post office, and that a letter was actually mailed in furtherance thereof, the indictment was not demurrable for failure to charge that the stock was lacking in value to such an extent as to defraud those who paid the price asked therefor.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. § 48.*]</p> <p>3. Post Office (§ 48*)—Use of Mails to Defraud—Indictment.</p> <p>An indictment for devising a scheme to defraud, to be furthered by use of the post office establishment, was not demurrable for failure to allege the particulars in which the representations charged were false, as such defect could be cured by furnishing a bill of particulars.</p> <p>[Ed. Note.—For other cases, see Post Office, Dec. Dig. § 48.*]</p>

<p>In Equity. On petition of John Wanamaker to intervene.</p>

<p>Maritime Liens (§ 25*) — Statutory Liens — Construction oe Statute — Scope.</p> <p>Under Act N. J. March 20, 1857 (P. L. p. 382), as amended by Act April 24, 1884 (P. L. p. 248), giving a lien for any debt which “shall be contracted by the master, owner, agent or consignee of any ship or vessel within this state * * * on account of any work done or materials or articles furnished in this state for or towards the building, repairing, fitting, furnishing or equipping such ship or vessel,” one who contracted to furnish and install the machinery for a new steamship at cost, with a certain per cent, added, is found to be entitled to include in his lien, as a part of the cost of the machinery, an amount paid to the owner of a patent on certain of the machinery which was essential to the proper equipment of steamships of that class.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 20-35; Dec.,Dig. § 25.*</p> <p>Created by state laws, see note to The Electron, 21 C. C. A. 21.]</p>

<p>On Settlement of Order on Mandate.</p>

<p>New Trial (§ 108*)—Newly Discovered Evidence.</p> <p>Newly discovered evidence held insufficient to justify the granting of a new trial of an action tried before the court, which, if introduced, would have been insufficient to have required different findings.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*],</p>

<p>1. Appeal and Error (§ 843*)—Matters Review able—Academic Questions.</p> <p>The power of a federal court' to grant an order for the disinterment of the body of assured, in order that an autopsy might be held thereon for purposes of discovery, would not be reviewed after such disinterment and autopsy; the question being then largely academic.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 843.*]</p> <p>2. Discovery (§ 20*)—Bill for Relief.</p> <p>Where a bill asks both for relief and discovery, the right to discovery is dependent on the right to relief, and, if the bill is insufficient for relief, it cannot be sustained as to discovery.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 27; Dec. Dig. § 20.*]</p> <p>3. Insurance (§ 249*)—Cancellation of Policy—Remedies—Equity.</p> <p>After the death of assured, a suit in equity will not lie for the surrender and cancellation of the policy because obtained by fraud; the insurer having a plain, speedy, and adequate remedy by interposing the fraud as a defense to an action at law on the policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § S37; Dec. Dig. § 249.*]</p> <p>4. Specific Performance (§ 4*)—Subjects of Relief—Insurance Policy.</p> <p>A bill will not lie for the specific enforcement of an insurance policy, providing for the delivery of bonds instead of the payment of money on insured’s death, since, on the insurer’s refusal to perform, the beneficiary may recover as damages the money value of the bonds.</p> <p>[Ed. Note.—Eor other cases, see Specific Performance, Dec. Dig. § 4.*]</p> <p>5. Insurance (§ 611*)—Policy—Breach.</p> <p>The filing of a bill by insurer for the cancellation of a policy, providing for the delivery of bonds on insured’s death, after such event, alleging that the policy had been obtained by fraud, constituted a repudiation by insurer of its obligations, rendering it liable to an action at law for damages.</p> <p>[Ed. Note.—Eor other cases, see Insurance, Dec. Dig. § 611.*]</p> <p>• 6. Insurance (§ 249*)—Cancellation of Policy.</p> <p>Since a beneficiary under a policy payable in bonds could not on assured's death maintain a suit in equity for specific performance by the delivery of the bonds, that feature of the policy presented no circumstance to support a suit in equity by the insurer for the surrender and cancellation of the policy for fraud.</p> <p>[Ed. Note.—Eor other cases, see Insurance, Dec. Dig. § 249.*]</p> <p>7. Equity (§ 44*)—Remedies Subject to Election—Action at Law or Suit</p> <p>in Equity.</p> <p>Under Rev. St. § 723 (U. S. Comp. St. 1901, p. 583), providing that suits in equity shall not be sustained in either of the courts of the United States in a case where a plain, adequate, and complete remedy may be had at law, where a defendant has such a remedy for fraud, there is no concurrent remedy in equity therefor within the rule that plaintiff may elect which remedy he will choose, if the remedies at law and in equity are concurrent.</p> <p>[Ed. Note.—Eor other cases, see Equity, Cent. Dig. §§■ 141-145; Dec. Dig. § 44;* Courts, Cent. Dig. § 1230.]</p> <p>8. Discovery (§ 17*)—-Parties.</p> <p>Since any person interested in an action at law and having possession of evidence sought by discovery may properly be made a defendant to a _ bill for discovery, a widow, who was the owner of a cemetery lot in which her husband’s body was interred and was the legal custodian thereof, was a proper party to a discovery proceeding to have the body disinterred, that an autopsy might be made which was expected to furnish evidence to be used in an action at law on a policy on the husband’s life, though the widow was not a party to such action.</p> <p>[Ed. Note.—Eor other cases, see Discovery, Cent. Dig. § 18; Dee. Dig. § 17.*]</p> <p>9. Discovery (§ 27*)—Use of Evidence.</p> <p>Where insurer, after insured’s death, brought a suit in equity to cancel a policy to which relief it was not entitled, and in that suit obtained by moti&n for discovery the disinterment of insured’s body and an autopsy ’thereon, it was complainant’s duty thereafter to take the discovery as evidence into the action at law, instead of drawing such action into the suit in equity.</p> <p>[Ed. Note.—Eor other cases, see Discovery, Cent. Dig. § 39; Dec. Dig. § 27.*]</p>

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

This was an action of unlawful detainer started before a Kentucky justice of the peace and removed, upon diversity of citizenship, into the court below. The defendants in the suit were citizens of Illinois, the plaintiffs a corporation under the laws of the state of Kentucky. The writ was sued out to recover possession of a property known as the “Masonic Theatre,” and its appurtenances, fixtures, etc., situated in Louisville, Ky., and owned by the Grand Lodge.

<p>1. Teial (§ 280*)—Exceptions—Instructions—Assumed Facts.</p> <p>An exception to so much of a paragraph of the charge as assumed a certain state of facts was defective as too broad, where it did not except to any particular fact but to a collection of facts, and failed to call attention to any explanation or additional fact.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 691, 692; Dec. Dig. § 280.*]</p> <p>2. Trial (§ 192*)—Instructions—Assumed Facts.</p> <p>A federal court in its charge may assume facts which have been well established.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 432; Dee. Dig. § 192.*]</p> <p>3. Master and Servant (§ 80*)—Contract of Employment—Evidence.</p> <p>Evidence held to warrant a finding that plaintiff understood that its services were being rendered for and on the credit of defendant company, and not for an indefinite committee of coal operators who were each to contribute a proportionate share.</p> <p>[Ed. Note.—Por other eases, see Master and Servant, Cent. Dig. § 118; Dec. Dig. § 80.*]</p> <p>4. Master and Servant (§ 7*)—Contract of Employment—Modification— Meeting of Minds.</p> <p>Where plaintiff originally contracted for the rendition of services and the making of disbursements for defendant company, there could be no subsequent modification of such contract, substituting for complainant a committee of coal operators who had agreed to' contribute pro rata to the expense of plaintiff’s employment, without a meeting of minds.</p> <p>[Ed. Note.—Por other cases, see Master and Servant, Cent. Dig. § 7; Dec. Dig. § 7.*]</p>

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

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

<p>Bankruptcy (§ 424*) — Discharge—“Liabilities” Discharged.</p> <p>The change made in Bankr. Act July 1, 1898, c. 541, § 17a(2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), which as originally enacted provided that a discharge should release a bankrupt from all of Ms provable debts except such as “are judgments in actions * * * for willful and malicious injuries to the person or property of another,” and which was amended Pel). 5, 1903, c. 487, § 5, 32 Stat. 798 (XI. S. Comp. St. Supp. 1907, p. 1020), by substituting for the words “judgments in actions” the word “liabilities,” did not have the effect of removing judgments for such causes from the excepted class, but of including such liability, whether judgment has been rendered npon it or not.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 424.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 41X1-4116.]</p>

<p>1. Master and Servant (§ 210*)— Injuries to Servant — Assumed Risk.</p> <p>Plaintiff, an experienced railroad fireman 24 years old, and who had been in defendant’s service for 11 months, was directed to accompany a wrecked engine to the shops and keep it oiled. In order to make the engine safe, the cab had been entirely removed, and with it the handholds usually attached thereto. Plaintiff, after oiling the engine at an intermediate station, attempted to mount it, and, reaching for the handhold which was absent, lost his balance, fell, and was injured. He testified that he thought the handholds had been replaced, though there was nothing on the engine to which they could have been attached. Hold, that plaintiff assumed the risk of injury by the absence of such handholds.</p> <p>LEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 554; Dec. Dig. § 210.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Master and Servant (§ 111*) — Injuries to Servant — Defective Railroad Cars.</p> <p>The rule requiring the master to furnish reasonably safe and suitable machinery, tools, appliances, premises, etc., does not apply to defective ears and engines being removed to repair shops for repairs.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 215- ' 217; Dec. Dig. % 111.*]</p> <p>3. Master and Servant (§ 217*) — Injuries to Servant — Assumed Risk.</p> <p>A servant in general takes on himself the risk of dangers which ordinarily attend or are incident to the business in which he voluntarily engages. so that, if he handles defective appliances, the defects of which are known to or plainly observable to him without complaint to his employer, he assumes the risk of injury resulting therefrom.</p> <p>rEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574r-600; Dec. Dig. § 217.*]</p>

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

<p>1. Master and Servant (§ 101*)—Injuries to Servant—Defective Appliances.</p> <p>It is the duty of the master to furnish appliances free from defects discoverable by the exercise of ordinary care.</p> <p>[Ed. Note.—Eor other cases, see Master and- Servant, Cent. Dig. § 171-184; Dec. Dig. § 101*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Master and Servant (§ 285*)—Injuries to Servant—Railroads—Defective Freight Cabs—Negligence—Question for Jury.</p> <p>In an action for injuries to a railroad brakeman by a defective handhold on the corner of a freight car, whether the end of the handhold which came loose was fastened with a lag screw, or whether the wood comprising the roof of the car to which it was fastened had been permitted to become decayed so that it was insufficient to hold the screw, and, if so, whether such condition could have been discovered by reasonable and ordinary inspection, or whether the handhold had been fastened by bolts which had broken off by reason of some latent defect which could not have been so discovered, hold for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 285.*]</p> <p>3. Master and Servant (§ 208*)—Injuries to Servant—Assumed Risk.</p> <p>While an employé assumes all the ordinary risks incident to the service or business in which he is engaged, he does not assume the risk arising from the neglect of the employer to perform a positive duty as to furnishing proper appliances, except where the employe receives or uses a defective appliance, and, with knowledge of the defect, continues to use it without notice to the employer.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 551-558; Dee. Dig. § 208.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>4. Negligence (§ 136*)—'Contributory Negligence—Question for Jury.</p> <p>Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is one of fact for the jury; and this whether the uncertainty arises from a conflict of the testimony, or be cause, the facts being undisputed, fair-minded men may honestly draw different conclusions therefrom.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p>

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

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Action by vendor for breach of contract for the purchase of 3,000 tons of pig iron. The contract was upon a printed form. The vendor was the Georgia Iron & Coal Company, whose furnace was at Rising Fawn, Ga. The vendee was Isaac C. Hirseh, doing business in Cincinnati, under the name of “The General Manufacturing & Supply Company of America.” The contract was in these words:</p> <p>“Sale Memorandum,</p> <p>Issued from the Office of Rogers, Brown & Company,</p> <p>Furnace Agents.</p> <p>“Cincinnati, November 25, 1904.</p> <p>“No. 79,342.</p> <p>“Sold to General Manufacturing & Supply Company of America, Cincinnati, Ohio.</p> <p>“3,000 tons Rising Fawn, No. 2, Foundry Pig Iron.</p> <p>“Price (freight cash), $13.85, cash 30 days, per ton 2,240 lbs. f. o. b. cars furnace.</p> <p>“If this lot is divided in delivery, settlement to be made for each lot promptly when delivered.</p> <p>“Deliverable about equally during April, May and June.</p> <p>—^Ordered chipped -(thle—includes all ■ shipping-directions—roe’cL—with year-</p> <p>[With the line across as set out above.]</p> <p>“Subject to possible delay from strikes, accidents or other cause, or delays in transit, unavoidable delaying manufacture or delivery.</p> <p>“Via. 11-26, 1904. Cinti., O.</p> <p>“Georgia Iron & Coal Company,</p> <p>“Per Rogers, Brown & Company, Agents.</p> <p>“The General Manufacturing & Supply Company of America, “Per I. C. Hirseh.</p> <p>“(Dup. spn. formerly accepted by Hirseh, sent for 12-23-04).</p> <p>There was jury and judgment for the plaintiff below.</p>

<p>1. Sales (§ 71*) — Validity of .Contract — Certainty as to Quantity.</p> <p>Contracts for the supply of the material required for use in a certain business for a certain time limited are sufficiently certain as to quantity and are valid.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 71.*]</p> <p>2. Contracts (§ 169*) — Construction—Extrinsic Circumstances.</p> <p>Where a written contract is ambiguous or contains provisions which may be conflicting, extrinsic evidence is admissible to show the surrounding conditions and circumstances, in the light of which the parties made it, to aid in its construction.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 752; Dec. Dig. § 169.*]</p> <p>3. Sales (§ 71*) — Construction oe Contract — Quantity.</p> <p>A written memorandum of a sale of malt to a brewing company was made on November 12, 1906, on an order blank furnished by the seller, and contained the following items: “Quantity. All their requirements to December 31, 1907,” and at the bottom: “Amount of malt to be used will be between 15,000 and 20,000 bushels.” The buyer had previously used from 15,000 to 20,000 bushels per year, hut was then building an addition to its plant which would considerably increase its requirements, as was known by both parties. Held, that the contract was for the sale of whatever quantity the purchaser should require in its business, the statement of the number of bushels being merely an estimate of the probable amount.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.*]</p>

<p>Petition for Review of Order of the District Court of the United States for the District of New Hampshire, in Bankruptcy.</p>

<p>Public Lands (§ 21*)—Wrongful Inclosure—Statutes—Construction—Indictment—‘ ‘Made. ’ ’</p> <p>Act Cong. Feb. 25, 1885, c. 149, § 1, 23 Stat. 321 (U. S. Comp. St. 1901. p. 1524), declares illegal all inclosures then or thereafter made, erected, or constructed on lands to any of which the person making or controlling the inclosure had no claim or color of title or asserted right at the time when the inclosure was made, and also declares unlawful “the maintenance, erection, construction or control of any such inclosure.” Held, that the word “made,” as so used, had a more comprehensive meaning than the words “constructed” or “erected,” that a person “makes” an inclosure so long as he maintains it, and that since the statute was therefore violated, where a person maintained the inelosure of land to which he had no claim, color of title, or asserted right, an indictment charging such an inclosure was not defective for failure to allege that, at the time the inclosure was made, defendant had no claim or color of title to the land made or acquired in good faith or a right thereto asserted with a view to entry.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 21.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4269, 4270.)</p>

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

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

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

<p>1. Mines and Minerals (§ 38*)—Ownership—Presumptions.</p> <p>While the presumption that an owner of the surface of a mining claim owns all minerals beneath it ceases when it is made to appear that some vein found beneath the surface has its apex in a claim belonging to another, yet the burden of proving ownership of such apex vein and its dip and descent to and underneath another claim so as to overcome the presumptive ownership of the surface owner is on him who asserts it.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 38.*]</p> <p>2. Mines and Minerals (§ 38*)—Adverse Claim—Action—Judgment—Effect.</p> <p>The Utah statute provides that an action may be brought by any person against another who claims an estate or interest in real property adverse to him to determine such adverse claim.. Held that, since it is only when a claim of an adverse estate or interest is made that the owner can avail himself of such remedy, a locator of a claim in a mining district, where there may be extralateral rights existing in favor of those owning contiguous or neighboring claims, cannot compel them in such an action to assert and make proof thereof, or be forever barred from claiming or asserting them, and hence a judgment in such an action is only conclusivo as to the rights of the parties in the ownership of discovered veins.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 38.*]</p> <p>3. Judgment (§ 948*)—Res Judicata—Pleading.</p> <p>Where an action at law to recover for ore mined by defendants from a certain mining claim and a suit in equity to quiet title to the claim both depended on whether defendants were entitled to mine a particular vein within the surface limits of plaintiffs’ claim by virtue of defendants’ extralateral rights, and both causes were instituted and disposed of nearly simultaneously, the rendition of the judgment at law in favor of defendants, and its subsequent affirmance by the Circuit Court of Appeals having occurred after the final submission of the equity suit, such judgment was available as res judicata in the equity suit without being so pleaded.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent Dig. § 1787; Dec. Dig. § 948.*]</p> <p>4. Appeal and Error (§ 790*)—Dismissal—Moot Question.</p> <p>Where an action at law and a suit in equity were instituted and submitted to the trial court nearly simultaneously and were based on the same question, a determination of the action at law in favor of defendants, affirmed by the Circuit Court of Appeals, constituted ground for a dismissal of the appeal in the equity suit on the theory that it thereafter presented a mere moot question.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 47, 3132, 4383, 4384; Dec. Dig. § 790.*]</p> <p>5. Appeal and Ebror (§ 712*)—Moot Question—Facts Outside Record.</p> <p>The Circuit Court of Appeals may take notice of facts appearing outside the record, which disclose the moot character of a question presented to it and decline for that reason to consider it.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 712.*]</p>

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

<p>Negligence (§ 121*)—Res Ipsa Loquitur—Rebuttal.</p> <p>Plaintiff, a railroad lumber inspector, was inspecting piling being loaaea by defendant contractor onto fiat ears by means of skids and a rope, one end of which was hitched to a horse or team. The rope, which was seven-eighths of an inch in diameter and had only been used once before to secure a raft of logs in the river, broke, causing a piece of piling to roll back rapidly to the ground and injure plaintiff, who was standing near the center of the pile of timbers <5n the ground, before he could escape. Defendant’s evidence showed that the rope was purchased but a short time before, that it was a good rope, had been inspected at the time it was purchased, and that its size was amply sufficient for the purpose, the cause of the break not being shown. Held that, even if the doctrine res ipsa loquitur applied, defendant’s evidence tended to rebut any presumption of negligence raised thereby to warrant the submission of such question to the jury, and it was therefore error to charge that from the mere fact that the rope broke and the accident happened defendant was negligent in not providing a safe rope.</p> <p>[Ed. Note.—For other cases, see Negligence, Gent. Dig. § 218; Dee. Dig. § 121.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This is an appeal by the receiver of the bankrupt from an order of the District Court, Southern District of New York, directing the receiver to pay to the Home Metallic Refrigerator Company the sum of $500 now in his hands as the proceeds of the sale of certain goods with costs and disbursements to be paid out of general funds of the bankrupt estate. .</p>

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

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

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>The plaintiff in error was convicted upon an indictment drawn under Act April 18, 1884, e. 26, 23 Stat. 11 (U. S. Comp. St. 1901, p. 3679), which charged that, with intent to defraud one Josephine C. Dabney, he falsely assumed and pretended to be an officer and employé, acting under authority of the United States and of the Treasury Department thereof, to wit, as an officer of the United States Secret Service, and in such pretended character as such officer and employé as aforesaid, did unlawfully, knowingly, and feloniously demand and obtain from said Josephine C. Dabney a thing of value, to wit, etc. There were four counts, charging, respectively: First, that he obtained board and lodging at the house of the prosecuting witness of the amount and value of $30; second, that he obtained of her $2 in money; third, that he obtained of her $5 in money; fourth, that he obtained of her $600 in money. The evidence was that Josephine C. Dabney, with her two daughters, aged 16 and 17 years, conducted a rooming house in Seattle, Wash., for the support of herself and her daughters, and that they had no other means of support. In answer to a matrimonial advertisement which she published in a newspaper, the plaintiff in error appeared at her house, and by way of reference stated that he was an officer of the United States Secret Service, and was then in Seattle to superintend and hasten the work on the Federal building, and other works which the government was then constructing. He made arrangement with Mrs. Dabney for board and lodging at her house at $6 a week. Subsequently he borrowed from her the sum of $2, and later the sum of $5. About four weeks after he first appeared at her house, Mrs. Dabney sold out her lodging house business, obtaining therefor the sum of $950, and upon the application of the plaintiff in error, and his representation that, if he had $600 available at once, he could make an excellent investment, she loaned to hirh $600, for which he gave her a draft on a man in Detroit who, he said, was his father.</p>

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

<p>Ceiminal Law (§ 427*)—Using Mails to Defbaud—Ceiminal Pkosecution— Evidence.</p> <p>In a prosecution for using the mails in conducting a scheme to defraud in violation of Rev. St. § 5480 (U. S. Comp. St. 1901, p. 3696), there is no hard and fast rule requiring that concert of action between two defendants should first be shown before evidence of acts of one can be admitted against the other, but the order of evidence is within the discretion of the court, and it is sufficient if the jury, before considering such evidence, are satisfied either by direct evidence or by proof of facts and circumstances from which it may be reasonably inferred that such concert existed, and that defendants were conducting a joint scheme.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1013; Dee. Dig. § 427.*]</p>

<p>Time (§ 10*)—Federal Courts—Procedure—Review—Time of Taking Proceedings—Construction of Limitation in Statute.</p> <p>Under the provision of section 11 of Act March 3, 1891, c. 517, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552), creating the Circuit Courts of Appeals, that “no appeal or writ of error by which any order judgment or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order judgment or decree sought to be reviewed,” when the last day of the six months is Sunday it is not excluded, and an appeal cannot be taken on the next day.</p> <p>[E3. Note.—For other cases, see Time, Cent. Dig. §§ 34-52; Dec. Dig. $ 10.*]</p>

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

<p>1. Patents (§ 328*) — Validity and Infringement — Automatic Circuit Breaker.</p> <p>The Wright and Aalborg patent No. 633,772, for an automatic circuit breaker, claims 2 and 5, were not anticipated and disclose patentable invention, the device being a distinct advance on the prior art Also held infringed by devices, operating on the same principle and different only in the substitution of equivalent parts.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 22*)—Infringement—Substitution of Equivalent Parts. .</p> <p>The substitution of a cam for a toggle joint in a patented mechanical combination does not avoid infringement, where the two have the same purpose in the combination and effect it in substantially the same manner.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 24; Dec. Dig. § 22.*]</p>

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

In Equity. On final hearing. This suit is based upon alleged infringement of reissued letters patent to Peter T. Coffield, No.” 12,719, applied for July 28, 1906, granted November 12, 1907, the original patent, No. 806,779, having issued to Coffield December 12, 1905. The assignments of both the reissued and original patents by Coffield to the complainants are not controverted.

<p>Patents (§ 328*) — Validity and Infringement — Machine fob Engraving Metal Blanks.</p> <p>The Chase patent, No. 517,680, for a machine for engraving metal blanks, was not anticipated and discloses invention; nor is it void on the ground of prior public use of the machine, nor that the patentee was not the original inventor. Also, held infringed.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>X Patents (§ 214*)—Licenses—Forfeiture.</p> <p>Under a contract of exclusive license by a patentee providing for the payment of royalties, the making of periodical reports, and that in case of default on the part of the licensee the licensor might, on notice, terminate the contract, the failure to make reports at the specified times was not alone ground for such termination, where in several instances it was waived and reports made at longer intervals accepted without objection, and where, by reason of extensive infringements and litigation respecting the patent, it was for a time considered of doubtful value by both parties.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 214.*]</p> <p>2. Patents (§ 218*)—Licenses—Construction and Operation.</p> <p>A provision in an exclusive license contract under a patent that, in case the patent should be held not infringed by a certain manufacture by “any court of competent jurisdiction,” the royalty should be reduced and limited in all to a certain sum, must be construed as meaning a decision which should finally settle the question of such infringement and a decision of noninfringement by a trial court, which was reversed on appeal, did not have the effect of reducing the royalty.</p> <p>[Ed. Note.—For other eases, see Patents, Dec. Dig. § 218.*]</p> <p>3. Patents'(§ 214*)—Licenses—Right oe Forfeiture.</p> <p>By an exclusive license contract under a patent it was provided tnai, on failure of the licensee to pay royalties to the amount of $3,500, at the end of two years, the licensor might terminate the contract on notice. At the end of the two years, such notice was given; the licensee having then paid royalties of about $3,450. The licensee had also expended a large sum in establishing a manufacturing business under the patent. The licensor was obligated by the contract to protect the validity of the patent and protect the licensee from infringements, but although one suit was finally carried to a successful issue, and a decision of the appellate court sustaining the patent obtained, other infringing articles were in the market which practically evicted the licensee from enjoyment of the-patent right. Held, that under such facts a court of equity would-not decree a cancellation of the contract</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 214.*]</p>

In Equity. Suit for infringement of letters patent No. 906,498, for shunts or electrical resistances, granted to Edward Weston December •8, 1908. Motion for preliminary injunction. Motion granted.

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

<p>1. Customs Duties (§ 44*)—Classification—Horsehair Goods.</p> <p>Trimmed and untrimmed hats, and braids, composed of horsehair, are respectively dutiable by similitude as straw hats, trimmed and untrimmed, and straw braids, suitable for hats, under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 409, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673). [Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 44.*]</p> <p>2. Customs Duties (§ 52*)—Evidence—Production of Samples.</p> <p>In the proof of the character of imported goods it is not essential that samples should be produced. Proof by other means is permissible.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 52.*]</p>

On Application for Review of a Decision by the Board of United ■States General Appraisers. The decision below, which is reported as G. A. 6,606 (T. D. 28,217), affirmed the assessment of duty by the collector of customs at the port of Philadelphia on importations by John Wanamaker.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below, which is reported as G. A. 6,293 (T. D. 27,131), reversed the assessment of duty by the collector of customs at' the port of New York. The opinion filed by the Board of General Appraisers reads as follows: FISCHER, General Appraiser.

<p>On Application for Review of a Decision by the Board of United otates General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,744 (T. D. 28,888), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the board reads as follows:</p> <p>FISCHER, General Appraiser. According to the invoice description the merchandise is an engraved steel table. It was assessed with duty under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 193, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645), as a manufactured article composed of steel, not specially provided for, and is claimed to be dutiable properly at the applicable specific rate, according to value per pound, as “plates and steel in all forms and shapes not specially provided for,” under par. 135, 30 Stat. 161 (U. S. Comp. St 1901, p. 1638).</p> <p>It appears, from the testimony of the importer taken at the hearing, that the so-called steel table is in fact a slab of steel 15 feet long, 4 feet 2 inches Wide, 6.6 inches thick, weighing 13,384 pounds, and worth 17,850 marks. The article is not imported as a table, but as a table top, to be mounted after importation on a wooden frame. It is a slab of steel covered on one side by an engraved or depressed design, which runs to within about 1 or 1.5 inches of its edge, and is to be used in the manufacture of a certain kind of plate glass. Glass is pressed or rolled against this steel table top, and takes the impression of the pattern from its engraved surface.</p> <p>In G. A. 4,650 (T. D. 21,975), an engraved plate in the form of a table top, which was used by glass manufacturers for making devices or figures on plate glass, was not regarded as a plate of the kind provided for in paragraph 166, 30 Stat. 165 (U. S. Comp. St. 1901, p. 1643), which were held to be only such as are used for printing on paper or similar material. In that case the present issue under paragraph 135 was not raised. A question similar to that here involved arose in G. A. 5,409 (T. D. 24,626), wherein the importers’ present contention was sustained; the board following Morris v. U. S. (C. C.) 140 Fed. 774 (T. D. 25,183). In the Morris Case the Circuit Court for the Southern District of New York, Hazel, X, reversed the board without opinion and sustained the claim of the importers that the article, differing in no particular from the merchandise here under review, fell within the provision for “plates and steel in all forms and shapes.”</p> <p>The issue again arises in view of the opinion of the court, Hazel, X, in the case of U. S. v. C. Newman Wire Co. (C. C.) 152 Fed. 488 (T. D. 27,896), affirmed (C. C. A.) 159 Fed. 123 (T. D. 28,600). It is claimed that in the last-mentioned opinion of the Circuit Court the Morris Case is disapproved. The court observed: “Conceding, however, an analogy between the articles under •consideration and the steel table in the Morris Case, I am nevertheless constrained by the evidence and the reasoning of counsel for the government to now hold that Congress primarily intended by paragraph 135 to simply include steel plates that have not been manufactured into some other completed commercial article.” The appellate court, in its affirming opinion, considers the term “plates” as a sheet of metal, and distinguishes between articles which may be called, but not described, by that term.</p> <p>In this case we hold that the article has been changed in character from its condition as a steel plate or slab by reason of the depressed design worked out on its surface, and that the amount of work which has been done on the steel, as material, does involve a change in the dutiable classification. The ease of U. S. v. Wood (C. C.) T. D. 28,655, affirming G. A. 5,886 (T. D. 25,915), may be referred to, as in that case the steel floor plates are not only called, but properly described, by the term “plates.” Those plates had not been advanced by any process of manufacture from their condition as plates, and their character had in no way been changed. That would distinguish the case from the one at bar. It is proper to add that the rulings of this board as to “ball mill plates,” “kominuter plates,” and “steel casting grinding plates,” were to a certain extent influenced by and decided on the authority of the Morris Case, supra.</p> <p>With reference to the article now before us, which is considered in the light of the rulings as to the scope to be given to the provisions of paragraph 135, here applicable, it would seem to us that a steel table top over 6 inches thick, weighing over 6 tons, formed from steel and then further advanced by having a design engraved on its surface, useful only on account of its incised pattern, which acts somewhat as a mold, cast, or model, to give shape or form to plate glass, is in fact steel “manufactured into some other completed commercial article.” Newman Case, supra. Its character as a steel plate must be considered as having “merged into the higher mechanical plane of a manufactured article.” Bromley v. U. S., 156 Fed. 958, 84 C. C. A. 458 (T. D. 28,520), affirming (C. C.) 154 Fed. 399.</p> <p>The protests must be overruled, and the decision of the collector affirmed.</p>

<p>Bankruptcy (§ 345*)—Debts Entitled to Preference—Trust Funds.</p> <p>A trust creditor of a bankrupt is not entitled to a preference over general creditors merely because of the character of his claim; but he must show that the trust fund or property into which it was converted came into the hands of the trustee in bankruptcy, although the specific property need not be identified.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 539; Dec. Dig. § 345.*]</p>

<p>In Equity. Upon demurrer filed by all defendants except the Union Switch & Signal Company.</p>

<p>1. Courts (§ 260*)—Federal Courts—Equity—Probate Jurisdiction.</p> <p>Since the United States Circuit Courts in equity have the jurisdiction of the High Court of Chancery at the adoption of the Constitution, such courts have no jurisdiction of pure probate proceedings quasi in rem establishing the succession of a decedent’s property, which at that time was within the exclusive jurisdiction of the ecclesiastical courts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 792; Dec. Dig. 5 260.*</p> <p>Probate jurisdiction, see note to Bedford Quarries Co. v. Tomlinson, 36 C. C. A. 276.]</p> <p>2. Courts (§ 260*)—Federal Courts—Claims Against Estates.</p> <p>Federal courts act with reference to estates of deceased persons only to ascertain and enforce claims between citizens of different states after the state courts have probated the will or established intestacy.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 260.*]</p> <p>3. Courts (§ 260*) — Appointment of Receivers — Jurisdiction of Federal Courts.</p> <p>While proceedings for the probate of a will or the establishment of intestacy of a decedent’s estate are in abeyance or in dispute, the federal Circuit Court has jurisdiction, at the instance of a noncitizen creditor, to appoint receivers to preserve the estate.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 260.*]</p> <p>4. Equity (§ 427*)—Bill—Prayer for Relief.</p> <p>Where a bill prays for general relief, a court of equity may give any relief consistent with the case made, though it is more, less, or different from the relief specifically prayed for.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 1005-1008; Dec. Dig. § 427.*]</p> <p>5. Courts (§ 260*)—Federal Courts—Appointment of Receiver.</p> <p>Nonadministration of a large estate had continued for four years, and was likely to continue much longer. Large charges had accumulated, and taxes had remained unpaid for several years. An art gallery had been advertised for sale under a mortgage amounting to nearly $300,000, and no insurance had been taken out on the decedent’s house or its contents. Decedent’s real estate was worth over $2,000,000, and his collections, worth over $1,000,000, were in the possession of one not entitled to the possession of the real estate, who had paid no rent therefor, and who was not entitled to a large part, if any, of the collections, which might at any time be removed from the state. The Surrogate’s Court in New York had previously taken jurisdiction constructively of the personalty, but the executor was enjoined from proceeding therein until further order of the circuit court of Cook county, 111., which injunction had not been’ set aside. Reid, that a nonresident creditor was entitled to the appointment of a receiver by a federal court to take charge of the property until proceedings were taken for its disposition in the probate court.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 260.*]</p> <p>•6. Wills (§ 801*)—Widow’s Election—Effect.</p> <p>Where a will authorized testator’s widow to occupy the home as long as she desired, her election, after the expiration of 40 days, as provided by Real Property Law N. Y. (Laws 1896, p. 587, c. 547), § 184, to take against the will, was tantamount to a refusal to occupy the premises, so as to require her to vacate them.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 2077-2090; Dec. Dig. § 801.*]</p> <p>7. Receivers (§ 14*)—Grounds of Appointment—Preservation of Property.</p> <p>Where a widow continued in possession of property of her husband’s estate more than the 40 days, during which she was authorized by Real Property Law N. Y. (Laws 1896, p. 587, c. 547), § 184, to occupy the homestead after her husband’s death, and subsequently elected not to take under her husband’s will, bequeathing to her the use of the home for life at her election, her possession of the property after such election was unavailable to her in the federal courts as against the legal title as affecting the right to the appointment of a receiver of the property.</p> <p>[Ed. Note.—For other cases, see Receivers, Dee. Dig. § 14.*]</p>

<p>Damages (§ 106*)—Negligence in Performing Contract—Measure.</p> <p>Exceptions to commissioner’s report that the libellant had failed to prove any damages. The evidence showed that the steamer would have sailed if it had not been for the damage repairs on the 8th of September, 1906, and as, owing to such repairs, she did not get away until the 17th, the exception sustained and held, that the libellant was entitled to compensation for nine days’ detention less the amount it saved by not being obliged to pay overtime charges.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 272; Dec. Dig. § 100.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 141*)—Carriage of Goods—Limitation of Liability—Improper Stowage.</p> <p>During the voyage of a steamship across the Atlantic burlap bags containing walnuts, stowed with other cargo in the hold, which was without partitions, were torn, apparently by wooden cases containing other cargo which were thrown around by the pitching of the vessel, and the walnuts were lost or damaged. The voyage was rough, but no more so than should reasonably have been anticipated at the season. Meld, that the loss was not due to perils of the sea, within the exceptions in the bills of lading, but to negligent stowage,’ for which the vessel was liable; due care requiring that the bags should have been kept separate from the other cargo which was likely to injure them, by means of partitions or otherwise.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 498; Dec. Dig. § 141.*</p> <p>Loss by perils of the sea, see notes to The Dunbritton, 19 C. C. A. 4G5; Southerland-Innes Co. v. Thynas, 64 C. C. A. 118.]</p>

<p>1. Public Lands (§ 120*)—Suit by United States for Cancellation of Patent-Measure of Proof Required.</p> <p>In a suit by tbe United States to cancel a patent to public land on tbe ground of fraud tbe burden of proof to establish tbe fraud is on tbe government, and the evidence, whether direct and positive or circumstantial, must be clear, unequivocal, and convincing.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 335; Dec. Dig. § 120.*]</p> <p>2. Public Lands (§ 120*)—Suit by United States for Cancellation of Patent-Fraud in Homestead Entry.</p> <p>Defendant, a young unmarried man, without means, working by tbe day, his compensation including bis board, filed a homestead claim on government land a few miles distant from bis place of employment. 1-Ie went upon the land, built a bouse, chicken bouse, and horse stable, and inclosed a small part of tbe land. During tbe five years before making final proof be had tenants, mostly negroes, living in the house and cultivating the land on shares. He boarded and slept for the most part where he worked, but visited the land every few days, and once in every four or five months slept there. Held, that under Rev. St. § 2291 (U. S. Comp. St. 1901, p. 1390), which requires proof that a homestea.d entry-man has “resided upon or cultivated” the land for five years, such facts were not sufficient to establish fraud in the entry or final proof, which entitled the government to a cancellation of the patent issued for the land, there being no substantial evidence that defendant did not act in good faith and in the belief that he had complied with the law.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 120.*]</p>

<p>At L,aw- This is an action to recover the sum of $245.39, with-interest thereon from September 6, 1907, making a total at the date of April' 6, 1909, of $268.70, claimed to have been wrongfully' collected by the defendant as taxes on cigarettes from one Hagop Epremiam, now deceased, by means of an -assessment levied and made because of alleged insufficient stamping.</p>

In Admiralty. On January 12, 1907, R. Wild filed his libel against the steamer Avalon for debt.

<p>In Bankruptcy. On review of order of referee fixing attorney’s fees for petitioning creditors.</p>

<p>Shipphstg (§ 176*)—Rights op Charterer—Detention op Vessel.</p> <p>Where a vessel is detained by port authorities on account of the illness of her master and steward, and she is afterwards obliged to put into another port through this cause, the hire ceases for the time lost to the charterer.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 176.*</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 166*)—Injuries to Passenger—Evidence—Damages.</p> <p>Personal injury to a child through stumbling on a mat at an entrance to a saloon of a passenger steamer and wounding her ’forehead. She was in the charge of her mother and a nurse and in .going carefully from the latter to the former met with the accident, which happened a little after 7 o’clock, on the 23d of August, 1907. A conflict of testimony with respect to the lighting of the cabin and passageways determined in favor of the libellant’s contention that there was an absence of artificial light which rendered the passageway dark and unsafe and caused the accident. Also held that the caretakers of the child were not negligent and that there was no contributory negligence. The sum of $600, allowed to the libellant to compensate the child for her suffering and the remains of a scar.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 549, 551;' Dec. Dig. § 166.*]</p> <p>(Syllabus by the Judge.)</p>

<p>1. Removal of Causes (§ 107*) — Motion to Remand — Time for Making.</p> <p>Under Judiciary Act March 3, 1875, c. 137, § 5,18 Stat. 472 (U. S. Comp. St. 1901, p. 511), which provides that, if it shall appear to a Circuit Court that a cause brought therein or removed thereto is not within its jurisdiction, it shall proceed no further therein but shall dismiss or remand the same, such court has the right to determine whether or not a cause has been properly removed to it immediately upon the filing of the record therein either by the removing defendant or the plaintiff, and to make such orders as such determination may require.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dee. Dig. § 107.*]</p> <p>2. Removal of Causes (§ 86*) — Proceedings fob Removal — Petition in State Court.</p> <p>A petition for removal may allege the citizenship of the parties regardless of the allegations of the plaintiff’s pleading, and where its allegations show the requisite citizenship to authorize the removal they are to be deemed true unless controverted by the plaintiff.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 170; Dec. Dig. § 86.*]</p> <p>3. Removal of Causes (§ 107*) — Proceedings for Remand — Issues of Fact.</p> <p>A motion to remandas properly determinable on the facts appearing on the face of the record, but, where it controverts allegations of fact in the ' petition for removal necessary to sustain the jurisdiction of the court, it may by the practice of the court be treated as a plea to the jurisdiction and the parties required to take evidence on such issues.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 230; Dec. Dig. § 107.*]</p>

<p>1. Shipping (§ 3*)—Regulation op Vessels Carrying Passengers—Power op Congress.</p> <p>All vessels carrying passengers within the jurisdiction of the United States are subject to regulations prescribed by Congress, even if the waters navigated are entirely within a state.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent Dig. § 2; Dec. Dig. § 3.*]</p> <p>2. Shipping (§ 16*)—Regulation op Passenger Vessels—Offenses Against Navigation Laws.</p> <p>Where a scow temporarily equipped for the purpose and in tow of a tug carried a picnic party of 350 persons without being provided with life-preservers as required by the regulations of the board of supervising inspectors, adopted pursuant to Rev. St. § 4492 (U. S. Comp. St. 1901, p. 3058), she is not relieved from liability for the penalty thereby provided by the fact that she was furnished to the party without charge except for expenses.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent Dig. § 30; Dec. Dig. § 16.*]</p>

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

<p>1. Bankruptcy (§ 340*)—Preferences—Borden- of Proof.</p> <p>Where a lien is claimed under a trust deed executed within four months-prior to the grantor’s adjudication in bankruptcy, the burden is ordinarily on the objecting creditors to show that the bankrupts were insolvent at the time the deed was executed, that it created a preference in favor of the secured creditor, and that he had reasonable cause to believe that a preference was intended.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 340.*]</p> <p>2. Bankruptcy (§ 340*) — Preferences — Burden of Proof—.Prima Facie Case.</p> <p>.Claimant, a sister-in-law of one of the bankrupts, claimed that she loaned sums of money to them at different times without taking any obligation therefor, and without being able to recall the dates of the loans. Less than a month before the voluntary bankruptcy petition was filed,, she secured from the brother-in-law and his partner a negotiable note which did not disclose her connection, and which was secured by a deed of trust in general terms to any holder thereof. Held, that such facts established a prima facie case of both claimants’ knowledge of the bankrupt's insolvency and their intention to give her a preference, and that the burden was therefore on her to show that the transaction was in good faith and without knowledge of such purpose or intention.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 340.*]</p>

<p>Bankruptcy (§ 407*)—Discharge—False Financial Statement.</p> <p>Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Cong. Feb. 5, 1903, c. 487, §• 4, 32 Stat. 797 (Ü. S. Comp. St. Supp. 1907, p. 1026), denies a discharge to a bankrupt who has obtained property on credit from any person on materially false statements in writing, made to such person to obtain such property on credit. Held that, where a creditor relied on a bankrupt’s statement, which was materially false in fact, in selling him goods on credit, the bankrupt was not entitled to a discharge, though the mistake was made in good faith and was not intentional.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 729; Dee. Dig. § 407.*]</p>

<p>In Bankruptcy. On an application for a discharge.</p>

In Chancery. In consideration of love and affection, on June 17, 1898, J. P. Ashcraft and wife conveyed to. William C. Cole, in fee simple, 97% acres of land in Wetzel county, W. Va., reserving, however, one-sixteenth part of the oil within and thereunder and one-half of all money thereafter paid for gas produced from said land, as also the rental for that year under the oil and gas lease, but not longer.

<p>In re Decree Following Mandates.</p>

<p>In Equity. On amended bill.</p>

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

<p>1. Insurance (g 285*)—Fidelity Insurance—Bond op Bank Cashier—Misrepresentations as to Previous Alleged Dishonest Conduct.</p> <p>Where, in the application to an indemnity company by a bank for a bond indemnifying such bank against loss by reason of the dishonesty or bad faith of the cashier, a. certificate by the officers of the bank that the cashier, who had been in the service of the bank for a number of years, had at all times, so far as known, faithfully and satisfactorily performed his duties, and to the best of said officers’ knowledge and belief had given satisfaction in his personal conduct and in the performance of his duties, and had kept and rendered his accounts correctly and without default, no reason being known why his bond should not be renewed, the assurances so given are material, and if untrue to the knowledge of the officers of the bank, or if made without proper effort on their part to inform themselves. thereon, the bond is invalid, and cannot be enforced.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 657; Dec. Dig. § 285.*]</p> <p>2. Insurance (§ 668*) — Fidelity Insurance — Avoidance op Contract por Misrepresentation—Jury Question.</p> <p>Statements in a certificate made by the president of a bank to a bonding company with an application on which the company executed a bond indemnifying the bank against loss or damage resulting from the dishonesty of its cashier, and in a second certificate for a renewal, that the cashier had previously “faithfully and satisfactorily performed his duties,” and had “given satisfaction in his personal conduct, * * * and kept and rendered his accounts correctly and without default,” although to the knowledge of the president and directors he had previously allowed a customer to make large overdrafts contrary to instructions and similar to subsequent overdrafts by the same customer which were made the basis of action on the bond, did not constitute knowing and fraudulent misrepresentations which avoided the bond as matter of law, where there was ground for the belief on the part of the officers that such acts were merely errors of judgment and not dishonest, as they afterward proved to be, and the fact that they retained the cashier in his position tended to show that they did so believe.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1735; Dec. Dig. § 668.*]</p> <p>3. Insurance (§ 285*)—Bond op Bank Cashier—Warranty as to Previous Conduct—Breach op Warranty—Knowledge When Not Material.</p> <p>Where a fact is warranted to be true, it is material; and it does not matter, therefore, ordinarily whether or not the party had knowledge. Its truth is affirmed, and, if it turn out to be otherwise, a contract based upon it is invalid, at least where it is so stipulated. Where, therefore, in a bond indemnifying a bank against the dishonesty and bad faith of a cashier, it was warranted that he had discharged his duties in good faith (mere negligence or error of judgment not being considered) and with honesty so far as the bank had knowledge, if this was not true, there was a breach of warranty by which the bond, those being its terms, would be avoided.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 657; Dee. Dig. § 285.*]</p> <p>4. Insurance (§§ 285, 668*)—Qualified Warranty, as Far as There is Knowledge—Knowledge by Oefioers of Corporation—Juey Question.</p> <p>But where the warranty was not absolute, but qualified, so far as the party, a bank, had knowledge, and by a further elause in the bond the knowledge required to avoid was the knowledge of the board of directors or of an executive officer, such as the president, who was receiving a salary and was active in the affairs of the corporation, it must have been known to the president or board of directors that the cashier was in fact dishonest; and whether they so knew, or whether they ought to have known, that the acts of the cashier were dishonest, was for the jury.</p> <p>■ [Ed. Note.—For other cases, see Insurance, ■Cent. Dig. § 1735; Dec. Dig. §§ 285, 668.*]</p> <p>5. Insurance (§ 285*)—Avoidance of Contract for Breach of Warranty-Fidelity Insurance.</p> <p>A warranty by an employer corporation in a fidelity bond indemnifying it against loss by the dishonesty of an employé that such employé has while in the service of the employer discharged his duties in good faith and with honesty “so far as the employer has knowledge,” although it appears that he had not in fact done so, does not invalidate the bond, unless it is shown that the officers, whose knowledge was by the bond made that of the corporation, had knowledge of such fact when the bond was executed.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 657; Dec. Dig. § 285.*]</p> <p>6. Insurance (§ 332*)—Forfeiture for Breach of Condition Subsequent Fidelity Insurance.</p> <p>A provision in a fidelity bond indemnifying a bank against dishonesty of its cashier that it should be void if the bank failed to promptly notify the insurer in case any act of dishonesty came to its knowledge did not become operative because the officers or directors of the bank learned of acts of the cashier which were in fact dishonest if they were not known to be so at the time.</p> <p>[Ed. Note.-—For other cases, see Insurance, Cent. Dig. §§ 875, 875%; Dec. Dig. § 332.*</p> <p>Fidelity insurance, see note to American Credit Indemnity Co. v. Wood, 19 C. C. A. 273.]</p> <p>7. Trial (§• 279*)—Instructions—Exceptions.</p> <p>The ground of an exception to an instruction or the refusal of an instruction must be stated at the time in order that the court shall have its attention directed to the error alleged to have been committed and may correct it.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 690; Dec. Dig. § 279.*]</p>

<p>Insurance (§ 669*)—Fires—Proximate Cause—Action—Instructions.</p> <p>A fire policy exempted against loss caused directly or indirectly by earthquake, or when the property is endangered by fire in neighboring premises, or unless fire ensues, and in that event for the damage by fire only or by explosion of any kind. Plaintiff’s property was destroyed by fire following the San Francisco earthquake, and the court charged that if the earthquake directly or indirectly caused the fire in one of several specified places in the city, and any one or more of such fires so caused spread by flame, spark, or heat and burned uninterruptedly 'from building to building or from block to block until any one or more of them reached and destroyed plaintiff’s property, then the jury should find for defendant, their determination being limited to the origin of the fires by which plaintiff’s property was destroyed, and if the fires by which it was destroyed, no matter at what point or from where they started, were caused by the earthquake, plaintiff could not recover. The court also charged that if the fire originating on premises named ensued on an explosion, and such fire destroyed plaintiff’s property, then plaintiff was entitled to recover, unless plaintiff’s property was destroyed directly or indirectly by the earthquake; but if the earthquake was the proximate and efficient cause of the fire, defendant would not be liable, though the means by which the earthquake caused the fire was an explosion. Held erroneous as eliminating the question whether the fires which were started by the earthquake extended “at once” to the insured property, and whether there were new and intervening causes between fires and the burning of the property, such as explosion, back-fire, dynamiting, and the course or force of the wind.</p> <p>• [Ed. Note.—For other cases, see Insurance, Dec. Dig. § 669.*]</p>

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

<p>1. Bills and Notes (§ 123*)—Notes of City—Signing by Offices.</p> <p>Notes of a city were in the form of a promise by the city to pay “to the order of J. V. Felker, City Treas.,” and, when negotiated, the notes were indorsed in blank, “J. V. Felker, City Treas.” Held, that the treasurer’s name was only used to give the notes currency, and that they became payable to bearer under the law merchant, and passed by delivery.</p> <p>[Ed. Note.—For other cases, see Bills and. Notes, Cent. Dig. § 447; Dec. Dig. § 188.*]</p> <p>2. Courts (§• 312*) — Federal Courts — Ghoses in Action—Assignment—Negotiable Notes.</p> <p>The rule applied that notes of a city payable to bearer are excepted from Judiciary Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), declaring that an assignee of a chose in action cannot sue in a federal court unless his assignor could have done so, whether the notes were first negotiated to a citizen of a state other than that of the maker or not.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 868; Dec. Dig. § 312.*]</p> <p>3. Municipal Corporations (§ 60*) — Ordinances — Powers of Subsequent City Council.</p> <p>An ordinance declaring that a finance committee shall be appointed at the commencement of each municipal year to negotiate all loans to the city which may be authorized by the city council could not deprive a subsequent council of its right to pass an order authorizing the city treasurer, with the approval of the finance committee, to borrow from time to time sums not exceeding $160,000 in anticipation of taxes.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 60.*]</p> <p>4. Municipal Corporations (§ 908*)—Loans—Proceedings of City Council.</p> <p>Defendant council on January 1, 1906, ordered that the city treasurer, with the approval of the finance committee, borrow, in anticipation of taxes, a sum not exceeding $160,000, evidenced by notes of the city to be discounted, etc. On January 9th the finance committee gave the mayor authority to approve for the finance committee all notes of the city duly negotiated on any loan made for or in the city’s behalf, and at the same meeting voted that the mayor and city treasurer be authorized to negotiate notes under the order of the city council passed January 1, 1906, from time to time as required. Held, that the first vote was general, and was therefore superseded by the second, which covered everything required by the council’s order of January 1st, so that notes executed by the mayor and' city treasurer and approved by the mayor for the finance committee were valid obligations of the city.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1896; Dec. Dig. § 908.*]</p> <p>5. Courts (§ 372*)—Federal 'Courts—Rules of Decision—Decision of State ■Courts.</p> <p>The rule applied that where, in an action on city notes, defendant claimed that the city was not liable because the notes sued on constituted an overissue, but the facts concerning such defense were not known to plaintiffs when they purchased the notes and they did not appear on the face thereof, plaintiffs’ right to recover in a federal court was not a question of local law, but of general law concerning the rights of bona fide holders of commercial paper, concerning which the federal courts are not bound by local decisions.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 979; Dec. Dig. § 872.*</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>6. Municipal Corporations (§ 948*)—Notes of City—Overissue—Bona Fide Purchasers—Defenses .</p> <p>A city treasurer, with the approval of the city’s finance committee, was authorized to borrow sums in anticipation of taxes, not exceeding $160,000. The committee then voted that the mayor and city treasurer should negotiate notes in accordance with such provision, whereupon notes were executed payable to bearer, each of which was numbered and was accompanied by a statement of the treasurer certifying that the total amount borrowed under such authorization, including the note certified, was an amount within that authorized. The city, however, maintained no independent register of the notes, so that there was no method by which a purchaser could ascertain whether there was an overissue, either as to the extent of the loan or with respect to the gross amount of the notes. Held, that the fact that some of the notes constituted an overissue was no defense as against a bona fide holder.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 948.*</p> <p>Bona fide purchasers of municipal bonds, see note to Pickens Tp. v. Post, 41 C. C. A. 6.]</p> <p>7. Municipal Corporations (§• 948*)—Discount—Proceeds—Disposition.</p> <p>A purchaser of notes executed by a municipal corporation is not bound to follow a check given therefor and see that the proceeds are not used to pay a note of the city which was an illegal issue and had been deposited in the bank in which the check was deposited, for collection.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dee. Dig. § 948.*]</p> <p>8. Municipal Corporations (§ 948*)—Ordinances—Statutory Provisions.</p> <p>There being no statutory provision corresponding to a city ordinance providing that no money shall be drawn out of the city treasury except on the written order of the mayor addressed to the treasurer and countersigned by the city clerk, a bona fide holder of negotiable paper issued by the city is not required' to assure himself that a warrant has issued in accordance with such provision before accepting payment through the bank which he has employed for its collection.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 948.*]</p>

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

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

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

The indictment In this case was founded on the act of Congress approved June 3, 1878, c. 151, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545), entitled “An act for the sale of timber lands in the states of California, Oregon, Nevada, and in Washington Territory,” as amended and extended to all the public land states by Act Aug. 4, 1892, c. 375, 27 Stat 348 (U. S. Comp. St. 1901, p. 1547), and consisted of two counts, upon the first of which the plaintiff in error was convicted.

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

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

The following is the opinion of the District Court by Adams, District Judge: This action was brought by the owner of the barge Acme which was in tow of the Dictator on the Dictator’s starboard side, against that tug and also against the New York, New Haven & Hartford Railroad tug Transfer No. 7 to recover for damages caused by collision with the tow of the lighter.

<p>Appeal from the United States Court for China.</p>

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

In Equity. Suit to restrain alleged infringement of certain claims of United States letters patent No. 780,011, dated March 28, 1905, for new and useful improvements in time-recorders, and which letters patent were issued to John Dey and Alexander Dey.

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

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

<p>Patents (§ 328*)—Infringement—Pneumatic Tibes.</p> <p>The Jeffery patents, Nos. 454,115 and 558,956, for pneumatic wheel tires, held not infringed.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 310*)—Suits foe Infein&ement—Pleading—Multifabiousness of Bill.</p> <p>■ A bill for infringement of two different patents, which, while alleging that the inventions covered thereby are capable of being conjointly used in one apparatus, fails to allege' that they are so used by defendant, or to allege that they were not patented in a foreign country more than seven months before applications for patents were filed in the United States, is insufficient, and subject to demurrer.</p> <p>[Ed. Note.—Eor other cases, see Patents, Cent. Dig. §§ 507, 518; Dec. Dig. § 310.*]</p>

<p>In Equity. Bill by West Publishing Company against Edward Thompson Company to restrain defendant from infringement of complainant’s copyrights and for accounting for profits. Bill dismissed, ■without costs.</p>

<p>Railroads (§ 33*) — Foreign Companies—Process—Service—“Doing Business.”</p> <p>Where a railroad operates its tugs, boats, and barges in the waters of New York, and delivers coal to piers in that state, it is “doing business” therein, and subject to the service of process there, though its railroad is not within the state. .</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 71; Dec. Dig. ■ § 33.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640-7641.]</p>

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

<p>Courts (§ 272*)—Federal Courts—Proper Trial District.</p> <p>Where plaintiff’s assignor was an alien, and defendant a citizen, so that the Circuit Court of the United States had jurisdiction of the controversy, and the suit might have been brought in the Southern district of New York if no assignment had been made, had defendant waived its right to object because it was an inhabitant of New Jersey, the controversy, after assignment to a citizen of New York, became one between citizens of different states, and the action was properly brought in the district where the assignee resided.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 811; Dee. Dig. § 272.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

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

<p>Criminal Law (§ 108*)—Violation of Immigration Laws—Venue.</p> <p>Tbe offense of bringing into and landing in tbe United States an alien not lawfully entitled to admission, made a misdemeanor by Act Feb. 20, 1907, c. 1134, § 8, 34 Stat. 900 (U. S. Comp. St. Supp. 1907, p. 394), can be prosecuted only in tbe district where such alien is landed, and the fact that a person who unlawfully brought in a child under 16 years of age, unaccompanied by one or both of her parents, afterward took such child into another district, does not confer jurisdiction on the court in such district.</p> <p>[Ed. Note.-—For other cases, see Criminal Law, Dec. Dig. § 108.*]</p>

<p>Equity (§ 198*)—Pleading—Cboss-Bill—Defense of Laches.</p> <p>Tbe defense of laches in bringing a suit or in prosecuting it after it is brought may be considered on final hearing although not pleaded, and a defendant will not be granted leave to file a cross-bill raising such issue to be disposed before the hearing on the original bill, especially where under the rules he might have expedited the hearing, but made no effort to do so.</p> <p>[Ed. Note.—For other cases, see Equity, Dec. Dig. § 198.*]</p>

<p>In Admiralty. Suit in rem to enforce lien.</p>

<p>Commerce (§ 93*) — Interstate Commerce Commission — Suits Against — Parties.</p> <p>In a suit by a railroad company against the Interstate Commerce Commission to enjoin or annul an order or requirement of the commission, third parties interested in such order are not entitled to intervene as of right, but may be permitted to do so at the request of the commission, on condition that the hearing shall not thereby be delayed.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 144; Dec. Dig. § 93.*]</p>

<p>Equity (§ 229*) — Pleading—Demurrer.</p> <p>A defendant will not be permitted to delay the trial of a cause by filing a second demurrer on grounds which should have been set up and disposed of in the first, but may be allowed to plead such matter in the answer.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. § 505; Dec. Dig. § 229.*]</p>

<p>In Admiralty. On motion for order of sale.</p>

<p>Towage 11*)—Loss of Tow—Liability.</p> <p>A tug, losing her tow while seeking an entrance in a fog to New Haven harbor through a sudden change of wind, held not liable for the losses, but the petition to limit granted.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 11-23; Dee. Dig. § 11.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§§ 141, 153, 179*)—Delay—Liability—Acts op God.</p> <p>The conclusion that such speed as was due from the respondent’s steamer Ligonier was not attained on a voyage, which was a subject of dispute because of the use of one tug instead of two, sustained. The conclusion thát the respondent was not' entitled to recover for the detention of the steamer near Port Arthur because she did not go to the Sea Buoy to proceed with the towing, there having been a storm which constituted a vis major, sustained. Also held that in view of a general provision in the contract, viz., the acts of God, etc., special words of exemption from liability for the effects of a storm were not needed.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. §§ 141, 153, 179.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 51*)—Charter—Deficient in Speed—Diabilities op Owneb.</p> <p>The owner stated in the contract that the vessel would steam 8% knots per hour on about 17 tons of best Welsh coal per 24 hours, but that the particulars “are not guaranteed.” The quality of coal mentioned was not furnished by the charterers. Held that the owner was bound by its agents’ representations but that in order to entitle the libellants to recover it was incumbent upon them to show that the owner’s representations were designedly false and that the libellants relied thereon. Also held that the owner had some justification for believing that the statement with reference to speed was true and that the clause containing the words quoted was at least a notice to the libellants not to rely upon it.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. § 51.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 166*)—Injury to Passenger.</p> <p>The libellant, a female passenger about 16 years of age, went to the ship’s pantry to obtain some hot water and in delivering a teapot to a stewardess it was so handled by the latter that the spout of the pot struck and destroyed the girl’s eye. Held.that the accident was caused by the stewardess carelessly or willfully striking the pot and the respondent was liable.</p> <p>(Ed. Note.—For other cases, see Shipping, Dee. Dig. § 166.*]</p> <p>(Syllabus by the Judge.)</p>

In Equity. Tbe defendant Leopold & Feron Company obtained a judgment in this court against George Frank, the husband of this plaintiff, and thereafter' the defendant Elliott, acting in his official capacity as United States marshal for this district, under and by virtue of a writ of execution duly issued out of this court, levied upon certain real estate situate in the county of Santa Clara as the property of said George Frank, and advertised the same for sale in…

<p>Master and Servant (§ 60*)—Wrongful Acts of Servant—Carrying Away Confidential Documents of Master.</p> <p>An employe, on the termination of his employment, has no right to carry away records or documents containing trade secrets or other confidential matters relating to the master’s business; and if he does so a court of equity will grant relief by requiring him to return the same and enjoining him from using or communicating their contents to others.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 60.*]</p>

<p>On Final Hearing of Petition.</p>

On Petition to Superintend and Revise, in Matter of Raw, Proceedings of the District Court of the United States for the Western District of North Carolina, at Statesville. This is a petition to superintend and revise in a matter of law the proceedings of the court in bankruptcy for the Western district of North Carolina.

This is an appeal from a decision and judgment of the District Court in a proceeding in bankruptcy affirming the findings of fact and conclusions of law of George H. Howell, Esq., one of the referees in bankruptcy.

<p>1. Master and Servant (§ 231*)—Death of Servant—Railroads—Following Trains.</p> <p>Where decedent was lawfully on the tracks over which defendant was operating trains, in the prosecution of his work of inspecting signals and ' signal lights by means of a gasoline motor car, decedent was entitled to expect that those in control of following trains would use due caution, where there was a full opportunity for view, not to run him down, though such right would not excuse want of due care on his part.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 675-677; Dec. Dig. § 231.*]</p> <p>2. Master and Servant (§ 289*)—Death or Servant—Railroads—Contributory Negligence.</p> <p>Whether decedent, a railroad employe lawfully operating a gasoline motor car at the rate of 25 miles an hour, was negligent in not looking back for a following extra train, of the existence of which he had no knowledge, for a minute and a half or two minutes occupied by the train in approaching him at a negligent and improper rate of 50 miles an hour, in violation of the rules of the railroad company, was for the jury.</p> <p>[Ed. Note—For other eases, see Blaster and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>3. Courts (§ 322*)—Federal Courts—Diverse Citizenship.</p> <p>A declaration describing defendant as a corporation organized under and by virtue of the laws of Pennsylvania and plaintiff as being of the state of New Jersey did not sufficiently allege diverse citizenship to confer jurisdiction on a federal Circuit Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 876, 877, 878; Dec. Dig. § 322.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298].</p> <p>4. Courts (§ 322*)—Federal Courts—Diverse Citizenship.</p> <p>A declaration alleging that plaintiff was a corporation organized under the laws of Pennsylvania and that letters of administration had been taken out by plaintiff in New Jersey was insufficient to confer federal jurisdiction on the ground of diverse citizenship.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 876, 877, 878; Dec. Dig. §■ 322.*]</p> <p>5. Courts (§ 280*)—Federal Courts—Jurisdiction—Presumptions.</p> <p>United States courts being of limited jurisdiction, no presumption will be entertained as to the existence of jurisdictional facts, which must be both alleged and proved.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 817; Dec. Dig. § 280.*]</p> <p>6. Courts (§ 405*)—Record—Jurisdictional Questions.</p> <p>Where the record on a writ of error to the Circuit Court of Appeals does not show a case within the jurisdiction of the Circuit Court, the Circuit Court of Appeals will notice the fact, though no jurisdictional question is raised by the parties.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1103; Dec. Dig. § 405.*]</p> <p>7. Appeal and Error (§ 653*)—Record—Amendment.</p> <p>The record on a writ of error to a federal court cannot be amended there so as to show federal jurisdiction.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 2816-. 2829; Dec. Dig. § 653.*]</p>

On Demurrer to the Complaint. The plaintiff, as administratrix of the estate of her deceased husband, seeks by this action to recover damages under the act of Congress approved April 22, 1908 (chapter 149, 35 Stat. 65) generally referred to as the “Employer’s Liability Act.” The material allegations of the complaint are: That the defendant is a railway corporation, a common carrier engaged in commerce between the states of Arkansas and Missouri; that on June 19,. 1908,…

Action by Richard Fisher against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. On plea in abatement to jurisdiction after removal. Sustained. Plaintiff Richard Fisher lived in Covington, Ky., and was employed by defendant railway company as night car cooper and sealer at its freight depot in Cincinnati, Ohio. Defendant Michael Igo was also employed by the railroad company in the same capacity and place in the daytime.

<p>In Bankruptcy. Review of action of referee.</p>

<p>1. Civil Rights (§ 13*)—Statutory Provisions—Action for Damages.</p> <p>Rev. St. § 5510 (U. S. Comp. St. 1901, p. 3713), declaring that every person who, under color of any law, statute, ordinance, regulation, or custom, subjects an inhabitant of any state or territory to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States or to different punishments, pains, or penalties, on account of his "being an alien, or by reason of his color or race, than that prescribed for the punishment of citizens, shall be punished, is a penal statute, the infringement of which will not give rise to a civil action for damages.</p> <p>[Ed. Note.—For other cases, see Civil Rights, Cent. Dig. § 11; Dee. Dig. § 13.*]</p> <p>2. Civil Rights (§ 13*)—Statutes—Construction.</p> <p>Rev. St. § 1979 (U. S. Comp. St. 1901, p. 1262), declares that every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law. Held, that the rights, privileges, and immunities referred to were those secured by the Constitution and the laws of the United States and did not include the right of an individual to life, liberty, or property, which were primary rights within the protection of the state of which the individual is an inhabitant.</p> <p>[Ed. Note.—For other cases, see Civil Rights, Dec. Dig. § 13.*]</p> <p>3. Courts (§ 282*) — Federal Courts — Constitutional Questions — Four-</p> <p>teenth and Fifteenth Amendments.</p> <p>The fourteenth and fifteenth amendments of the federal Constitution are limitations on the states and did not confer primary rights enforceable by a person of color in the first instance in the federal courts.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 282.*]</p> <p>4. Civil Rights (§ 1*)—Statutes—Citizens—Negroes.</p> <p>Persons of African descent have the same, but no greater, rights than . other citizens in the state where they make their home; the rights and privileges protected from infringement by Rev. St. § 1979 (U. S. Comp. St 1901, p. 1262), and the infringement of which creates a cause of action for damages, being common to all citizens.</p> <p>[Ed. Note.—For other cases, see Civil Rights, Dec. Dig. § 1.*]</p> <p>5. Courts (§ 282*)—Federal Courts—Jurisdiction.</p> <p>The federal courts have no jurisdiction of an action for damages by a citizen of African descent against an Anglo-Saxon citizen of the same state for an alleged unlawful assault committed under color of executive authority.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 282.*]</p>

<p>1. -Sadrs- (§ 52*)—Buyer—Evidence.</p> <p>Evidence held to warrant a finding that a contract of sale of certain railroad equipment, etc., was made with defendant’s testator and on his . credit, and not on the credit of certain railroad corporations in which tes- ." . tator was interested.</p> <p>. [Ed. - Note,—For other cases, see Sales, Cent. Dig. § 138; Dec. Dig. §5-2.*].';.- _ _</p> <p>2. Sales (§ 370*)—Executory Contract—Repudiation—Action for Breach.</p> <p>Where defendant, immediately after the death of his testator, who had contracted with plaintiff for certain railroad equipment, repudiated the contract before time for performance had arrived, the contract' being executory, plaintiff was authorized to treat it as terminated and to sue at once for its breach.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1085; Dec. Dig. § 370.*]</p> <p>3. Sales (§ 384*)—Breach oe Contract—Damages—Profits.</p> <p>In an action for breach of an executory contract for the construction and delivery of railroad equipment of a special character and gauge, prior to the time for delivery, the seller’s measure of damages was his outlay and expenses, less the value of materials on hand and the profits which might have been realized by performing the contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1098; Dec. Dig. § 384.*]</p>

<p>1. Pledges (§ 30*)—Collateral—Conservation—Duty of Pledgee.</p> <p>Where a trust company received certain corporate bonds as collateral security for complainant’s liability on an underwriting agreement, and the corporation became a bankrupt, it was the trust company’s duty to employ reasonable diligence to conserve the collateral and collect thereon all moneys which it was reasonably possible for it to secure through a prompt presentation of the bonds in the bankruptcy proceedings.</p> <p>[Ed. Note.—For other cases, see Pledges, Dec. Dig. § 30.*]</p> <p>2. Pledges (§ 1*)—Choses in Action—'Transfer as Collateral—Rights of Pledgee.</p> <p>A bond, or any chose in action, which is transferred as collateral security, is not in the nature of or subject to the incidents of a pawn or pledge, but is under the dominion of the creditor, to make his claim out of it.</p> <p>[Ed. Note.-—For other cases, see Pledges, Cent. Dig. §§ 1, 4, 5; Dec. Dig. § 1.*]</p> <p>3. Judgment (§ 735*)—Res Judicata—Questions Determined.</p> <p>Complainant subscribed to an underwriting agreement for the bonds of a corporation in the sum of §15,000. The bonds were delivered to defendant trust company, and, the corporation having become a bankrupt, the trust company surrendered the bonds and released the lien of the mortgage on receiving 8 per cent, of their face value. In an action by the trust company on the underwriting agreement, complainant denied liability thereon, and the case was tried on that theory, though it was also alleged that the bonds which the trust company had held as collateral to defendant’s subscription had been converted, and the amount realized thereon stated. Meld, that a judgment establishing complainant’s liability on the agreement was not res judicata of the question whether the trust company had exercised reasonable diligence in conserving the collateral and collecting all that was possible therefrom.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 735.*]</p> <p>4, Judgment (§ 735*)—Res Judicata.</p> <p>Wliere defendant trust company received the bonds of a corporation as collateral to an underwriting agreement, and later surrendered the bonds in bankruptcy proceedings against the corporation for 8 per cent, of their face value, complainant, in a suit to restrain the collection of a judgment recovered by the trust company against him on his underwriting subscription, was entitled to a determination of the question whether the trust company had used reasonable diligence in conserving and collecting the collateral.</p> <p>[Ed. Note.—For ether cases, see Judgment, Dec. Dig. § 735.*]</p>

In Equity. The basis of this suit is an alleged infringement of a copyright of a dramatic composition.

<p>1. Pleading (§ 236*)—Amendment—State Law.</p> <p>Wis. St. 1898, § 2830, provides that the court may on the trial, or at any other stage of the action before or after judgment, in furtherance of justice, and on such terms as may be just, amend any process, pleading, or proceeding by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. Held that, under such section as construed by the highest state court, the only limitation of judicial power to allow an amendment to the complaint is that plaintiff’s “claim” shall not be substantially changed and that sound discretion shall not be overstepped.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236.*</p> <p>Following state practice, 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>2. Courts (§ 347*)—Federal Courts—Pleadings—Amendment.</p> <p>Congress having itself legislated on the subject of amendments to pleadings by enacting Rev. St. § 954 (U. S. Comp. St. 1901, p. 696), regulating such subject, the federal courts are not bound to follow the state courts in their construction of local statutes regulating the amendment of pleadings in suits at law.</p> <p>[Ed. Note.—For other cases, see Courts, Cent Dig. § 921; Dec. Dig. I 347.*]</p> <p>3. Courts (§ 347*)—Amendment—Amount Demanded.</p> <p>Rev. St. § 954 (U. S. Comp. St. 1901, p. 696), provides that no declaration in a civil cause shall be abated for any defect or want of form, but the court shall give judgment according to the right of the cause, and shall amend every defect and want of form other than those which a party demurring so expresses, and may permit either of the parties to amend any defect on such conditions as it shall in its discretion and by its rules prescribe. Held, that a federal court under such section was authorized in the exercise of judicial discretion to permit an amendment, after trial, of the ad damnum clause of plaintiff’s complaint, so as to raise the amount sued for to conform to the proof.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]</p> <p>4. Pleading (§ 245*)—Amendment—Damages Demanded—Estoppel. ,</p> <p>Plaintiff’s failure to apply for the amendment of the ad damnum clause of its complaint, so as to raise the amount sued for to conform to the proof, when the court announced, while answering an interrogatory of a juror, after submission of the cause, that plaintiff would in the end be limited to the amount named in such clause, did not estop plaintiff from asking permission so to amend after verdict, defendants not having changed their position to their prejudice by plaintiff’s conduct.</p> <p>[Ed. Note.—For other eases, see Pleading, Cent. Dig. § 667; Dec. Dig. § 245.*]</p> <p>5. Pleading (g 245*)—Amendment—Damages.</p> <p>Plaintiff sued for breach of a contract by which defendants agreed to furnish plaintiff 400,000 bushels of barley during the year 1907 and 1908, which plaintiff agreed to malt at 13% cents a bushel. Defendants defaulted in shipments to the amount of 322,000 bushels, whereupon plaintiff sued for damages in the sum of $10,000. At the trial it was shown that the cost of malting to plaintiff was $.06784 per bushel, and that the damages actually sustained were $21,664.54, for which amount a verdict was returned. Held, that plaintiff was entitled to leave to amend the ad damnum clause of its complaint after verdict to conform to the proof, there being no showing that they had been injured or misled, or that they had any additional proofs which would lead to a different result on a second trial.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 667; Dec. Dig. § 245.*]</p>

<p>Shipping (§ 140*)—Carriage of Goods—Loss—Limiting Liability.</p> <p>Provision in bill of lading that carrier shall not be liable for more than $100 unless a greater value is expressed. 'Held, that the case was not distinguishable from the U. S. Lace Curtain Mills v. Oceanic S. Nav. Co. (D. C.) 145 Fed. 701, and the libellant is entitled to recover the value of the lost case without regard to limitation of liability to $100, as provided by the bill of lading.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 495; Dec. Dig. § 140.*</p> <p>Limitation of shipowner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p> <p>(Syllabus by the Judge.)</p>

<p>-Admiralty (§ 61*)—Practice—Exceptions to Portion's op Answer.</p> <p>Held that matters in connection with the subject of the libel can, under analogy to the 59th Rule, be properly litigated in one action; but the rule cannot be extended to bring in matters not connected with the original controversy, though arising under the same charter party.</p> <p>. [Ed. Note.—For other cases, see Admiralty, Cent Dig. § 497; Dec. Dig. § 61.*]</p> <p>•(Syllabus by the Judge.)</p>

<p>Pilots (§ 16*)—Liability fob Negligence.</p> <p>Respondent, shown to have been a competent and experienced pilot, well acquainted with the harbor, was taking a ship into a slip with two tugs, being in charge of the navigation of all three vessels. A barge was lying at the end of the pier, and when the ship was passing it she struck on an obstruction on the bottom, unknown to any of the pilots, and began to swing towards the barge. Respondent at once gave orders to the tugs which attempted to stop her swinging, but before it could be done a col lision occurred. Held, that respondent was not chargeable with want of reasonable care which rendered him liable for the damage done either because he did not move the barge, or drop the ship’s anchor; it appear ing that vessels were usually taken in with safety under the same circumstances, and that the dropping of the anchor would not have availed to prevent the collision.</p> <p>[Ed. Note.—For other cases, see Pilots, Cent. Dig. § 19; Dec. Dig. § 16.*]</p>

<p>1. Liens (§ 1*)—Definition.</p> <p>' The term “lien,” in a narrow technical sense, signifies a right by which a person in possession of personal property holds and detains it against the owner in satisfaction of a demand. The term, however, has a more extensive meaning, being used to denote a legal claim or charge on property, real or personal, for the payment of a debt or duty; every such claim or charge being still a “lien,” though the property be not in the possession of him to whom the debt or duty is due. It is a hold or claim which one has on the property of another as security for some debt or charge and may exist independent of possession. As in maritime law and in equity, the term is used as synonymous with a charge or incumbrance on the thing where there is neither jus in re nor ad rem, nor possession of the thing. [Citing Words and Phrases, vol. 5, p. 4144 et seq.]</p> <p>[Ed. Note.—For other cases, see Liens, Cent. Dig. § 23; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4144-4152; vol. 8, p. 7707.]</p> <p>2; Bankruptcy (§ 195*)—Administration of Estate—Garnishment.</p> <p>More than four months prior to the filing of a bankrupt’s petition, claimant sued the bankrupt on an open account and garnished certain debtors of the bankrupt, who held sufficient funds to cover any judgment that might ■ be rendered in the main suit. The bankrupt gave a bond dissolving the garnishment, depositing with the sureties $1,000 to secure them against loss. Held, that claimant acquired a lien as against the garnishees under the express provisions of Laws Ga. 1901, p. 55.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 195.*]</p> <p>3. Bankruptcy (§ 415*)—Application for Discharge—Stay.</p> <p>A claimant holding a lien against garnishees indebted to a bankrupt is entitled to a stay of the bankrupt’s discharge for a reasonable time to enable claimant to enforce his rights against the garnishees and sureties on a bond to dissolve the garnishment.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p>

<p>In Bankruptcy. Certificate of referee to the judge for review.</p>

<p>1. Bailment (§ 25*)—Misappropriation by Bailees—Rights of Bailors.</p> <p>Goods were shipped under bills of lading consigned to claimant bank, and on arrival drafts accompanying the bills were paid by the bank, which thereupon drew other bills for an equivalent amount on the bankrupts, which were accepted. The goods were then delivered to the bankrupts on their executing trust receipts by which the bank retained title to the goods and their proceeds; the bankrupts agreeing to sell the goods and account and pay over the proceeds to the bank as collected. This they did not do, but misappropriated the same. Held, that the bankrupt firm ■ and its members were jointly liable to the bank on a -simple contract liability on the acceptances, and also jointly and severally liable on a claim either in tort, or quasi contract at the bank’s election for such misappropriation.</p> <p>[Ed. Note.—For other cases, see Bailment, Dec. Dig. § 25.*]</p> <p>2. Bankruptcy (§ 309*)—Partnership—Composition of Claim Against Partner-Effect.</p> <p>Where a bankrupt firm and its partners were jointly liable to a bank on certain acceptances, and were jointly and severally liable in tort, or on a quasi contract for misappropriation of the proceeds of goods belonging to the bank, the latter was entitled to file a double proof of claim against the partnership assets, and against the individual assets of each partner, and hence the bank, by releasing its claim against one of the partners for a payment of 20 per cent, of its original claim, expressly reserving all other rights, did not elect to treat the indebtedness as a simple contract debt of the firm on the acceptances nor preclude itself from enforcing the remainder of its claim against the firm assets and those of the other partner.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 309.*]</p>

In Bankruptcy. On petition of the Hercules Buggy Company for review of the order of the referee denying its claim to certain property in the custody of the trustee.

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

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

<p>On Demurrer to Amended Answer.</p>

<p>Pleading (§ 64*)—Declaration—Duplicity.</p> <p>The declaration in an action to recover damages for a personal injury resulting from the derailment of a street car is not bad for duplicity because it alleges in the same count as acts of negligence defects in both the car and roadbed; plaintiff being entitled to allege and prove any or</p> <p>. all of such defects to establish the primary proposition that the car was derailed as a result of defendant’s negligence.</p> <p>[Ed. Note.—For other eases, see Pleading, Dec. Dig. § 64.*]</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy (§ 143*)—Assets—Life Insurance Policies.</p> <p>Partly paid up life insurance policies, with the usual contingencies and provisions as to changing the beneficiaries and as to surrendering policies and receiving the benefits thereof, are assets of the insured’s estate in bankruptcy to which creditors are entitled.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent Dig. § 201; Dec. Dig. § 143.*]</p> <p>2. Bankruptcy (§ 396*)—Exemptions—Life Insurance.</p> <p>Pub. St. N. H. 1901, c. 171, §§ 1, 2, provide that a life insurance policy for the benefit of a married woman shall inure to her benefit, or in case of her death to her children, if any, against the claims of creditors or representatives of the person effecting it, and, if effected for a third person or his representatives, the beneficiary shall be entitled against the claims of the creditors or representatives of the party effecting it. Held, that insurance policies on the life of a bankrupt which would otherwise constitute assets for the benefit of his creditors are by such sections exempt from any claim by the trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 396.*]</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of North Carolina, at Raleigh, in Bankruptcy.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Raleigh, in Bankruptcy.</p>

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

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

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

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina, at Raleigh.</p>

<p>On Motion for Production of Books. Leventritt, Cook & Nathan, for plaintiff.</p>

<p>Second Motion for Preliminary Injunction.</p>