Volume 170 — Federal Reporter

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Clarksburg.</p>

In the court helow there was a consolidation of the causes styled “Emma Y. Powell vs. George E. Downs,” and “E. A. Blount vs. George E. Downs et… Held: and in his cross-action against the intervener he alleged that the claim of the intervener was a pretended and fictitious claim, and invalid and known to the intervener to be invalid, or it could have been known by the exercise of- ordinary prudence, and asked for judgment for the timber cut and .removed by said intervener.

The appellants filed their bill in the Circuit Court, as complainants, against the city of Superior and the county of Douglas, joined as defendants, for an accounting and equitable relief in respect of taxes alleged to be collected and. received by the city and county respectively, as described in the bill, which were assessed to be paid and are payable upon so-called “improvement bonds” issued by the city and owned by the- appellants.

<p>1. Cotjets (§ 306*) — Federal Courts — Authority oj? Decisions of State Courts — Construction of Statutes.</p> <p>The construction which the courts of a state have placed upon its statute of frauds is binding upon the federal courts.</p> <p>TEd. Note. — For oilier cases, see Courts, Cent. Dig. § 957; Doc. Dig. § 306.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 31 C. O. A. 71: Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Alin. Co., 33 C. ü. A. 7.J</p> <p>2. Frauds, Statute on (§ 110*) — Sufficiency of Writing — Signature iiy Agent.</p> <p>Under the statute of frauds, Rev. St. Ohio, 1900, | 4.199, which provides that no action shall he maintained on any contract for the sale of lands, “unless the agreement upon which such action is brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized,” an undisclosed principal can be charged on a contract for the purchase of real estate when the memorandum, otherwise sufli-eient, is signed by his agent in his own name and the agency is not disclosed by the writing, and such agency may bo proved by parol evidence.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 252; Dec. Dig. § 136.*]</p>

The defendant in error Solomon Davies Warfield was appointed Postmaster by President Cleveland on May 9, 1891, and reappointed by President McKinley on May 6, 1899. lie gave two bonds. The first was dated May 16, 1894, with the Fidelity & Deposit Company of Maryland and Edwin Warfield as sureties. The second was dated March 10. 1899, with the Fidelity & Deposit Company of Maryland. Edwin Warfield, and TIonry A. Parr, as sureties. The suit below was on Ihe bonds thus executed.

<p>Appeal* from the District Court of the United States for the Southern District of New York.</p> <p>The claimants of the tug Three Brothers appeal from a decree of the District Oourt for the Southern District of New York holding the tug solely in fault for causing the scow Atlas, which was being towed by the tug, to collide with an abutment of Kingsbriclge in the Harlem river. The damages to the Atlas were assessed at $1,184.15 and a decree was entered in her favor for 81,265.81. The petition against the Clare was dismissed with costs. The facts are sufficiently stated in the opinion of the District Judge, reported in 162 Fed. 388.</p>

<p>1. Public Lands (§ 55*) — School Lands — Leases—Instruction—What Law Governs.</p> <p>Whether leases of school lands in Mississippi for 99 years create a leasehold estate, or a determinable fee, or some estate greater than a leasehold, must be determined by the law of Mississippi, as enunciated by her highest judicial tribunal.</p> <p>[Ed. Note. — For other eases, see Public Lands, Dee. Dig. § 55.*]</p> <p>2. Public Lands (§ 55*) — School Lands — Leases—Rights of Lessee — Cutting Timber.</p> <p>Under the law of Mississippi, a lease of school lands for 99 years creates in the lessee but a leasehold estate, conferring on him only the right to cut timber for estovers or to clear the estate for cultivation, and not merely for the sale thereof.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 55.*]</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>Action by Simpson County against Arthur J. Cox and another. With this action have been consolidated in this court actions brought by Simpson County against the Forest Products & Manufacturing Company, against the Green Bay Lumber Company, and against Eastman, Gardiner & Co.</p>

<p>1. Equity (§ 145*) — Bum—Double Aspect.</p> <p>A bill may be originally framed with a double aspect, so as to be of that character if the alternative case slated is the foundation for the same relief.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. § 339; Dec. Dig. § 145.*]</p> <p>2. Equity (§ 152*) — Bj.eadjng—Exhibits—Effect.</p> <p>Complainants alleged that they were employed to provide materials and labor to construct a smelter, the reasonable value of the work performed and materials furnished, but referred to a notice of a mechanic’s lien and a written contract under which the work was done, which were attached to the bill as exhibits, which contract contained an express waiver of a right to a lien. Haiti, that the written contract so made a part of the bill controlled the allegations thereof, and hence the cause of suit stated was not a quantum meruit but an express contract.</p> <p>TEd. Note. — Jfor other cases, see Equity, Cent. Dig. § 383; Dec. Dig. § 152.*]</p> <p>3. Estoppel (§ 92*) — Equitable Estoppel-Acceptance of Benefits--Contracts.</p> <p>Where complainants, who had agreed to construct a smelter under an express contract by which they had waived their right to a lien, claimed that the contract had been rendered void by defendant’s fraud, but there was nothing to show when the fraud was discovered and that it had not been waived by the notice of lien, which was an express affirmation of the contract, claimants could not claim that they were absolved from the contract waiver of lien and at the same time sue in equity on the contract and notice of lien to foreclose the same.</p> <p>[Ed. Note. — Dor other cases, see Estoppel, Cent. Dig. § 261; Dec. Dig. § 92.*]</p>

<p>Shipping (§ 46*) — Chaeteb Party — Construction—Optional Employment or Vessel.</p> <p>A charter of a steamship “for one round trip to west coast of South America. Charterers have the option of employing the steamer in general trade for the period of about three months up to five months, but in any event not to exceed five months” — gave the charterers the option of a round trip to the west coast without limitation of time, or of using the vessel in general trade not to exceed five months, and their use of her in such trade for some three months was an election, and they were not then entitled to send her to the west coast, which would require a longer time than five months in all.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 171-176; Dec. Dig. § 46.*]</p>

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

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

<p>Bankruptcy (§ 188*) — Liens—Equitable Assignment.</p> <p>An auctioneer, employed by a stable company to sell its property, wbo made an advance to the company, taking a receipt which authorized him to deduct the amount from the proceeds of the property when sold, acquired thereby no lien which entitled him to priority over other creditors, on the bankruptcy of the company before the time for sale arrived; the bankrupt having retained possession of the property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 188.*]</p>

<p>Patents (g 258*) — Infringement — Use of Article Brought from Foreign Country.</p> <p>The use of an article covered by a United States patent in the United States can no more be controlled by foreign law than its sale can, and a purchaser of such an article in a foreign country, although from one there authorized to sell it, is chargeable with infringement if he brings it into the United States and there uses it.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 398; Dec. Dig. § 258.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, dismissing a bill in equity charging infringement of two patents granted to complainant, viz., No. 554,874 (February 18, 1896) and No. 580,281 (April 6, 1897),. both for improvement in typewriting machines. The second of these patents was by Judge Ray held valid and infringed in Hillard v. Fisher Book Typewriter Co. (C. C.) 151 Fed. 34. That decision was affirmed by this court. 159 Fed. 439, 86 C. C. A. 469. The earlier patent was first adjudicated by Judge Hough in the decree now appealed from. His opinion is reported in 163 Fed. 281.</p>

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

<p>Patents (§ 328*) — Vatimty and Inkiungeiient — Railway Switch.</p> <p>The iUoxliam patent, No. 539,878, for railway switch work, embodying a single center piece with hardened surfaces to be connected with the rails by a separate body of cast metal, discloses patentable invention of some degree of merit, but must be limited to the particular construction described. As so construed, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*!</p>

<p>1. Patents (§ 129*) — 'Suit fob Infringement — Estoppel.</p> <p>A corporation charged with infringement of a patent is not estopped to deny its validity merely because the patentee who sold and assigned it is a subordinate in its employment</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182%-186; Dec. Dig. § 129.*]</p> <p>Patents (§ 328*) — Invention—Improvements in Water-Tube Boilers. Tho Park patents, No. 747,329, for a baffle wall brick used in the construction of baffle walls of water-tube boilers, and No. 744,015, for a hand-hole cover for closing the hand-holes in the headers of water-tube boilers, are both void for lack of patentable invention over the prior art.</p> <p>LEd. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 828*) — Validity op Infringement — Bed Pan.</p> <p>Tire Hogan patent, No. 651,310, for a bed and douche pan, was not an-tieipated and discloses invention; also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>j. Patents (§ 13*) — Subjects oe Patents — Advertising Card.</p> <p>An advertising device made oí’ cardboard is a manufacture, and patentable ns such, if novel and involving invention.</p> <p>[Ed. Note. — B'or other cases, see Patents, Cent. Dig. §§ 11, 12; Dec. Dig. § 13.*]</p> <p>2. Patents (§ 328*) — Invention-Advertising Device.</p> <p>The Mitchell patent, No. 801,747, for an advertising device, held, not void on its face for lack of novelty or invention.</p> <p>[Ed. Note. — Por other cases, see Patents, Dec. Dig. § 328.*]</p>

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

<p>1. Coltasiow (§ 82*) — Pbeoatjtions rois Pbeventing Collision — Speed in Fog.</p> <p>A steam vessel in a dense fog is bound to observe unusual caution and to maintain only such a rate of speed as would enable her to come to a standstill by reversing her engines at full speed before she could collide with a vessel which she could see through the fog.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. if 170-! 72; JJtec. Dig. § 82.*</p> <p>Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A, 532.]</p> <p>2. Collision (§ 85*) — Steadier and Ancuoked Dbedge — Excessive Speed in Fog.</p> <p>A collision in the Willamette river in a dense fog between a steamer passing down the river at a speed of 10 to 12 miles an hour and a dredge working in the fairway held due to the fault of the steamer because of her excessive speed, which was such that, although she reversed as soon as the dredge could be seen, she could not be stopped in time to avoid the collision. The dredge held not in fault; it appearing that she was ringing her bell at intervals of not more than a minute.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 10(1; Dec. Dig. § 85.*]</p>

<p>Shipping (§ 69*) — Master — Wrongful Discharge — Bights Under English Law.</p> <p>Under the English admiralty law the master of a vessel wrongfully discharged abroad before the termination of the voyage has a lien for his wages earned and his action in rem therefor, but can have no relief against the ship for wages from the time of his discharge to the termination of the voyage, nor for the expenses necessary to carry him to his home port.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 305; Dee. Dig. § 69.*]</p>

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

In Bankruptcy. On petition of the First National Bank of Dubuque, Iowa, for review of the order of the referee denying its claim against said bankrupt estate.

<p>1. Trade-Marks and Trade-Names (§ 93*) — Nature of Article — -Evidence.</p> <p>Evidence hold to justify a finding that complainant’s tobacco to which tiie trade-mark in controversy was attached was suitable for smoking and might be so used in cigarettes. r</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p> <p>2. Tkade-Mabks and Trade-Names (§ 93*) — Infringement—Custom.</p> <p>In a suit to restrain the infringement of a traflo-mark attached to tobacco, the fact that manufacturers of tobacco had customarily allowed their trade-name for a smoking brand to be used by a manufacturer of cigarettes is irrelevant, unless the infringing use has been open, notorious, and acquiesced in by complainant.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p> <p>3.Tbade-Mabks and Trade-Names (§ 93*) — Infringement—Evidence.</p> <p>In a suit to restrain the infringement of a trade-name used in the sale of tobacco, the introduction of two packages of tobacco having the same name and apparently manufactured by different individuals is irrelevant when unaccompanied by proof of the circumstances surrounding the origin and use of the packages.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p> <p>4. Trade-Marks and Trade-Names (§ 84*) — Destruction—Custom.</p> <p>A valid trade-mark cannot be destroyed by proof of a custom to disregard trade-marks generally.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 84.*]</p> <p>5. Trade-Marks and Trade-Names (§ 8*) — “Virgin Deae.”</p> <p>The trade-name attached to complainant’s tobacco “Virgin Deaf’ was not synonymous with “Virginia Leaf,” nor was it descriptive of the tobacco used, but was an arbitrary, fanciful name intended to denote the purity of the tobacco, and was therefore a valid trade-name.</p> <p>LEd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 12; Dec. Dig. § 8.*]</p> <p>6. Trade-Marks and Trade-Names (§ 61*) — Application oe Name to Different Goods.</p> <p>A trade-name used by a manufacturer of smoking and chewing tobacco cannot be appropriated by a manufacturer of cigarettes.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 76; Dee. Dig. § 61.*]</p> <p>7. Trade-Marks and Trade-Names (§ 65*) — Infringement — Intent to Mislead.</p> <p>A competitor may not use a name, whether fictitious or real, a description, whether true or not, which is intended or calculated to represent to the world that his business is that of another, and by such fraudulent misstatements deprive the latter of business which would otherwise come to him.</p> <p>[Ed. Note.- — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 64; Dec. Dig. § 65.*</p> <p>Misleading or false labels, see note to Raymond v. Royal Baking Powder Co., 29 C. C. A. 250.]</p> <p>8. Trade-Marks and Trade-Names (§ 61*) — Infringement—Injunction.</p> <p>Where complainant and its predecessors for over 60 years had used the trade-name “Virgin Leaf” to designate a brand of fine-cut tobacco, and defendant used such a name in connection with his sale of cigarettes, repudiating any intent to deceive the public, but claiming his use of the word to be a substitute for “Virginia” and descriptive of the tobacco of which the cigarettes were made, complainant was entitled to a preliminary injunction, defendant being relegated to his right to use the word “Virginia” instead of “Virgin.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 76; Dec. Dig. § 61.*]</p>

<p>On Motion by Defendant for Peremptory Instructions for Verdict in His Favor.</p>

<p>In Equity. On supplemental bill for injunction.</p>

<p>1. Shipping (§ 86*) — Diability op Vessel poe Toets — Punitive Damages.</p> <p>In a suit in rem to recover for an injury done by a vessel, punitive damages cannot be awarded, altbougb the tort was willful and malicious, where the owner of the vessel had no knowledge of or part in the injury.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 86.*]</p> <p>2. Shipping (§ 86*) — Action Against Vessel job Tout — Damages.</p> <p>In a suit to recover for (lie destruction of a flsh trap by a vessel, damages may be awarded for loss of flsh resulting from the breaking of the net and interruption of the business, where there is sufficient evidence of surrounding catches to afford a reasonable basis for computation ol' the loss.</p> <p>[Ed. Noto. — Eor other cases, see Shipping, Dec. Dig. § 86.*]</p>

<p>On Motion to Punish for Contempt.</p>

Action at law by plaintiffs in error, Maggie Thomas and John Thomas, her husband, brought in the United States Circuit Court for the Southern District of California, Southern Division, against the defendant in error, the San Pedro, Los Angeles & Salt Lake Railroad Company, for damages in the sum of $25,000 for the loss of their son, John Thomas, who was injured and killed in the derailment and wreck of defendant’s train while riding as a passenger near Los Angeles, Cal., on…

This was an action at law brought by the defendant in error against the plaintiff in error to recover damages for injuries sustained by him by reason, of the alleged negligence of the plaintiff in error.

<p>In Krror to the Circuit Court of the United States for the Southern District of New York.</p> <p>This is a writ of error to review a judgment of the Circuit Court, Southern District of New York, entered on a verdict against plaintiff in error, who was defendant below. The action was brought by the plaintiff to recover damages for personal injuries resulting from the ■blowing out of a steam pipe in a boiler room on defendant’s premises on Sunday, December 3, 1905.</p>

<p>1. Master and Servant (§ 243*) — Rules—Obedience by Servant.</p> <p>When the duties of a servant in given circumstances are plainly specified in reasonable rules of the master, of which the servant has knowledge, his nonobservanee of them at a time when they are capable of observance is negligence as matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 0S2, 759-775; Dee. Dig. § 243.*]</p> <p>2. Master and Servant (§ 281*) — Rules—Interpretation by Court.</p> <p>When Hie printed rules of tlie master, specifying the duties of a servant in given circumstances, contain no terms which arc not made plain by the rules, their interpretation falls within the general rnle that the interpretation of a written instrument is a question of law for the court, and not a question of fact for the jury.</p> <p>LEd. Note. — For other cases, see Master and Servant, Dec. Dig. § 284.*]</p> <p>3. Railroads (§ 816*) — CrossingsCare Required — Speed — “Under Control.”</p> <p>The rules of a railroad company required an engineer in approaching stations to do so with his train “under control,” and so to proceed until the track was “plainly seen to lie clear,” and then, after providing that engines, freight trains, and work trains might occupy tho main track between the outside switches, at a designated station, declared that the responsibility for a collision within those limits would rest “entirely” with, the approaching train. Hold, that such rules plainly required an engineer in approaching those limits and proceeding therein in the nighttime, to adjust his control over his train to the distance he could see along the trade as he advanced thereon, so that, if the track was already occupied at any point, he could stop ids train and avoid a collision after that point came within the range of ids observation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1006-1008; Dec. Dig. § 316.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7158.]</p> <p>(Syllabus by the Court.)</p>

The plaintiff in error in Ibis case was indicted in the District Court of the United States for tlie Northern Division of tlie District of Idaho for subornation of perjury in proceedings relating to the entry of public lands under the timber and stone act (Act .Tune 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901. p. 15151). The indictment contains six counts.

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

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

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

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

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

This canse comes here upon a writ of error to review a judgment of the Circuit Court, Northern District of New York, entered upon verdict in favor of defendant in error, who was plaintiff. The action is for personal injuries sustained in defendant’s silk mill.

<p>Appeal and Erbok (§ 1008*) — Review—Questions op Fact.</p> <p>In a Chinese deportation proceeding it was assigned as error that the court did not find that defendant was a citizen and entitled to remain in the United States, in sustaining the judgment and order' of the commissioner, and in remanding defendant to the custody of the marshal, and adjudging he was unlawfully in the United States. Held, that the issues presented by such assignments were issues of fact, and could not, therefore, be reviewed on a writ of error.</p> <p>|TCd. Note. — For other cases, see Appeal and Error, Cent. I)ig. §§ 8935-8989; Dec. Dig. § 1008.*)</p>

<p>Patents (§ 326*) — Suits for Infringement — Violation of Injunction— Sales in Foreign Country.</p> <p>"An injunction against the infringement of a patent is not violated by the sale in a foreign country of infringing articles manufactured before the injunction was issued.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 614; Dec. Dig. § 326.*]</p>

<p>Patents (§ 326*) — Suits fob Infbingement — Violation of Injunction.</p> <p>A defendant adjudged in contempt for violation of an injunction against infringement of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 613-619; Dea Dig. § 326.*]</p>

<p>Patents (§ 328*) — Infbingement — Pbocess of Exhausting Aib fbom Lamp Bulbs.</p> <p>The Howell patent. No. 726,293, for an improved process for exhausting the air from incandescent lamp bulbs, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p>

<p>Patents (§ 328*) — INFRINGEMENT—Process of Marin® ARTIFICIAL Ston®.</p> <p>The Stevens patent, No. 624,563, for an improved process of forming artificial stone, the principal feature of which is the use in the mold of relatively dry sand to extract the moisture from the plastic stone compound from which the hloc-ks are cast, was not anticipated, and discloses invention, the process being novel and one of a high degree of merit. Also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*) — InekiNgmext—Safety Razor.</p> <p>The Seheuber patent, No. 079,039, for a safety razor having a movable and spring-adjustable guard, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Aliens (§ 3S*) — Offenses Against Immigration Daws — Liabilitv of Master of Vessel fob Permitting Landing of Chinese- — Indictment.</p> <p>An indictment charging the master of a vessel with a Violation of Act Sept. 13, 3888, e. 1015, § 9, 25 Stat. 478 (U. S. Comp. St. 1901, p. 1316), which makes it a misdemeanor if the master of any vessel “shall knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed any Chinese laborer or other Chinese person in contravention of the provisions of this act,” must aver that defendant “knowingly” permitted such Chinese person to be landed.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 38.*]</p>

<p>Copyrights (§ 85*) — Suit jtor Inertngbmbnt — Pmuiminary Injukotioh.</p> <p>A preliminary injunction restraining infringement of a copyright should not be granted, where on the showing made and the facts appearing the question of infringement is ill serious doubt.</p> <p>i'Kd. Note. — For other cases, see Copyrights, Cent. Dig. § 78; Dec. Dig. § 85.*]</p>

<p>1. Seamen © 2*) — Scope op Statutoby Provisions — '“American Seaman.”</p> <p>Every sailor on an American vessel is an “American seaman,” within the meaning of Act Dec. 21, 1898, c. 28, § 1, 30 Stat. 755 (U. S. Comp. St. 1901, p. 3081), and entitled to the protection thereof, regardless of his nationality.</p> <p>[Ed. Note. — Eor other cases, see Seamen, Dee. Dig. § 2.*]</p> <p>Z. Seamen (§ 20*) — Wages—Reduction bv Master.</p> <p>The master of a vessel has no authority to arbitrarily reduce the wages of a seaman, signed as such, on the ground that he proved incompetent to fill the position of a mate, although there may have been a verbal agreement on the subject.</p> <p>[Ed. Note. — Eor other cases, see Seamen, Cent. Dig. §§ 86-91; Dec. Dig. § 20.*]_</p>

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

In Equity. On demurrers to amended bills. In August, 1890, Staggers procured from the farm owners contracts touching about 1.500 acres of the Pittsburg or River seam of coal with mining rights in Marshall county. \V. Ya. In these writings the same form was used in all, and they are practically identical, except as to names and descriptions of the lands. The material part of them is that the landowners “agree to sell and convey to II.

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

Appeals from the Circuit Court of the United States for the Middle District of Alabama. Bill against the Railroad Commission of Alabama and another by the Central of Georgia Railway Company.

The plaintiff in error (plaintiff below) brought suit against the defendant (hereafter called the lioclc Island Company) for the recovery of damages on account of the breaches — first, by the Choctaw, Oklahoma & Gulf Railroad Company (hereafter called the Choctaw Company); and. second, by the defendant company, in failing to deliver cars as required by a contract of November 22, 1!)00, between the Choctaw Company and the Oifford-Frisbee Dumber Company.

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

<p>Appeal from the Cir.cuit Court of the United States for the District of Nebraska.</p>

<p>1.Shipping (§ 42*) — Citabtees—Fitness op Vessel.</p> <p>A ship which is fit for the carrying of an article Is one which will carry such article without injury, and the liability of a shipowner for breach of a warranty of fitness is not limited to such injury to the cargo as is apparent before its delivery, but extends to a latent injury.</p> <p>[Ed. Note.- — For other cases, see Shipping, Cent. Dig. § 158; Dec. Dig. § 42.*]</p> <p>2. Shipping (§ 42*) — -Chaetees—Injubv to Caego.</p> <p>A warranty of the fitness of a vessel chartered to carry a cargo of whisky barrel shooks known by the owner to be intended for use in making wine casks, whether express or implied, rendered the owner liable for injury to the shooks by being so impregnated by creosote fumes that they were unfit for use, due to the fact that the vessel had last carried a cargo of creosote, in the absence of any stipulation in the charter against such liability.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 158; Dec. Dig. ' § 42*</p> <p>Implied warranty of seaworthiness, see notes to The Carib Prince, 15 C. C. A. 388; Neilson v. Coal, Cement & Supply Co.. 60 C. C. A. 179.]</p> <p>3. Shipping (§ 42*) — Chabtees—Consteuction—Waekantv op Fitness.</p> <p>A charter of a vessel to carry a cargo of whisky barrel shooks and heads contained a general warranty of fitness for the voyage. It also recited that the vessel was then on a voyage with a cargo of creosote, and provided that “vessel agrees to have holds as clean as possible.” Held, that such provision did not limit or modify the absolute warranty of fitness, but was an additional requirement to prevent injury owing to the known character of the preceding cargo, and that the fact that such cleaning was done did not abridge the right of the charterer to recover for damage done to the cargo by creosote fumes which the cleaning failed to prevent.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 158; Dec. Dig. § 42.*]</p> <p>4. Shipping (§ 42*) — Chabteks—Wabbantt op Fitness — Waives.</p> <p>The fact that the cleaning was done under direction of the charterer’s agent and to his satisfaction, and that he thereafter accepted and loaded the vessel and refused to cancel the charter as offered by the owners, did not constitute a waiver of the fitness, nor did a release given by the charterer on payment of a small sum for damage which was known when the cargo arrived, the damage from the creosote fumes not being known until some of the casks had been made up and found unfit for the use intended.</p> <p>[Ed. Note.- — For other cases, see Shipping, Dee. Dig. § 42.*]</p> <p>5. ApPEAI. AND EiUiOR (§ 722*) — ASSIGN VENT OP ERRORS — FORM—DESIGNATION op Court.</p> <p>An assignment ol! errors filed in a District Court for an appeal should bear the title of tha t court and not of the Circuit Court of Appeals, but such informality will not invalidate the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 722.*]</p>

<p>MASTER AND SERVANT (§ 96*) — MASTER’S IjABILTTY FOB INJURY TO SERVANT —Negligence oe Third Person.</p> <p>Plaintiff was employed, by defendant railroad company as a boiler maker’s helper, and. worked at a roundhouse to which an addilion was being built by an independent contractor. At a time when the new part was nearly completed and in use, and plaintiff was working therein, he was injured as he was about to enter one of the doors. The evidence did not show directly tlie cause of injury, but tended to show that he was struck by a brick swept from the roof by one of (he contractor’s employes. Held, that defendant was not liable on the ground that it had failed to provide plaintiff with a reasonably safe place to work; the place itself being safe, and the injury having been caused by an act of negligence of one over whom it had no control, and which it had no reason to antici-pa ie.</p> <p>LEd. Note. — Por other cases, see Master and Servant, Dec. Dig. § 96.*]</p>

<p>1. Explosives (§ 7*) — Carriage or Goods — Dangerous Cargo — Duty op Shipper.</p> <p>It is the duty of a shipper of a commodity which is liable to cause an explosion or is otherwise dangerous as part of the cargo of a ship to fully disclose its dangerous character to the carrier before shipment.</p> <p>[Ed. Note. — For other cases, see Explosives, Dec. Dig. § 7.*]</p> <p>2. Explosives (§ 7*) — Injury fkosi Dangerous Cargo —Action by Carrier Against Shipper — Burden of Proof.</p> <p>Where a suit by a steamship company to recover for an- injury to a vessel by an explosion caused by a commodify shipped by respondent is based on the alleged fact that responden!: failed to disclose the dangerous character of such commodity before shipment, the burden of proving such allegation rests on the libelant.</p> <p>[Ed. Note. — For other cases, see Explosives, Dec. Dig. § 7.*]</p> <p>3. Explosives (S 7*) — Injury from Dangerous Cargo — Liability of Shipper.</p> <p>Respondents, who were manufacturers of “Eels-Naptha” soap, which contained from 0 to 9 per cent, of chemically free naphtha, before making any shipments of the same on the vessels of libelant steamship company notified its agent of the character of the soap, that it gave off naptha fumes, which, if the soap were stowed in a confined space, might be dangerous, and arranged that it should be stowed in a place where there was a free circulation of air. A subsequent shipment of 1,000 boxes was stowed by libelant in the lower hold, and an explosion occurred which injured the vessel. Hold,, that the disclosure made by respondents was a full compliance with the requirements of the law and the bills of lading in that respect, and that libelant itself was in fault for negligent stowage and could not recover from defendants for the loss.</p> <p>[Ed. Note. — Eor other cases, see Explosives, Dec. Dig. § 7.*]</p>

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

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>On December 12, 1899, the Seattle Bridge Company, a copartnership consisting of II. T. McPherson and D. McL. Brown, as party of the first part, entered into an agreement with Alexander Watt, party of the second part, in contemplation of the award to the parties thereto of a dredging contract in the harbor of Everett, Wash., for which they had submitted bids. By the terms of the agreement it was provided that, in case said dredging contract should be so-awarded to said parties, a dredger should be built, embodying the invention covered by tlie United States patent issued to A. B. Bowers, which invention the said Watt claimed to have the right to use, and it was agreed, further, that the said Watt should have the charge and supervision of the contract, and that the profits thereof should bo shared between the said parties, two-thirds to the Seattle Bridge Company and one-tlxird to Watt, and that of the dredger forty-nine hundredths should belong to the bridge company and fifty-one hundredths to Watt. The agreement contained the following express provision: “It is further agreed that the said first party shall have the right to hypothecate, by mortgage or other suitable instrument in writing, all interests of both parlies hereto in any dredger constructed as aforesaid to the First National Bank of Seattle, or such other corporation, person, or persons as may furnish money for building said dredger or for carrying out such dredger contract, to secure to such bank, corporation, person, or persons the repayment of all moneys so advanced. And the said second party hereby constitutes the said party of the first part, by its managers, H. T. McPherson and D. McL. Brown, his attorney in fact, to make, execute, and deliver in the name and behalf of said second party any instrument necessary or proper for the purpose.” On July 24, 1902, a bill of sale, intended as a mortgage of the dredger, was executed to the First National Bank of Seattle, and signed by D. McL. Brown, W. A. Brown, D. A. Brown, and O. M. Nettleton, who then composed the co-partnership of the Seattle Bridge Company, and to the bill of sale the name of Alexander Watt was signed by D. McL. Brown as attorney in fact. There 'was attached to the bill of sale an affidavit, in compliance with the laws of the state of Washington, sworn to by all the parties whose names were appended thereto, save and except Alexander Watt. On July 25, 1902, the bill of sale was filed of record in the Miscellaneous Records of the office of the auditor of King county, Wash., and on January 5, 1903, a certified copy thereof was recorded in Miscellaneous Records of the auditor of Snohomish county, and on January 21, 1905, a certified copy was filed in Miscellaneous Records of the office of the auditor of Pierce county, and on January 21, 1905, a certified copy was recorded in the Records of Chattel Mortgages of the office of the auditor of Pierce county.</p> <p>On December 31, 1901, the Seattle Bridge Company had borrowed from the First National Bank of Seattle $55,517.35. At the date of the bill of sale the debt had been reduced to $50,517.35. Subsequently it was further reduced, so that on August 29, 1904, it was $24,517.35. Thereafter other loans were made by the bank to the copartnership, and other payments were made on the debt by the copartnership. On February 25, 1903, Watt sold to the Seattle Bridge Company his interest in the dredger, and took in payment thereof three notes, of $9,160.66 each, secured by a chattel mortgage on the dredger. The mortgage was duly executed and recorded on April 25, 1903, in the Records of Chattel Mortgages in the office of- the auditor of King county, Wash. At the date of its execution the bridge company owed the bank $28,517.35. On February 23, 1905, for a consideration of $14,000, Watt transferred his mortgage to the appellant herein. The mortgage to the bank was transferred to the appellee, and thereafter the latter filed its answer to the intervening libel of the appellant in the court below do enforce its lien upon the dredger, alleging that the amount thereof was $51,510.87. The question in controversy in the court below was one of the relative rank of the two chattel mortgages. The court found that the lien of the appellee was prior, and awarded it the sum of $45,781.51, which was the amount in the registry of the court after the sale of the dredger and the payment of certain liens thereon adjudged to be maritime. The sum so awarded was less than the total sum due on the appellee’s mortgage.</p>

<p>1. Abatement and Revival (§ 71*) — Death oe Defendant — Revivor Against Administrator.</p> <p>Rev. St. § 955 (U. S. Comp. St. 1901, p. 697), provides that the executor or administrator of a deceased party, if the cause of action survives, may prosecute or defend to final judgment, and if the executor or administrator neglects or refuses, after being served with scire facias, for 20 days to become a party, the court may render judgment as if he were a party. After the sustaining of a demurrer to a bill to set aside a divorce decree, with leave to amend, complainant elected to stand by her bill, after which defendant died. Held, that it was improper, without revivor, for the court, on suggestion of defendant’s alleged surviving wife, who had not previously been a party to the proceeding, to render judgment of dismissal nunc pro tunc as of the day following the expiration of the time allowed complainant to amend, and, complainant’s prayer for appeal having been allowed, to direct service of citation on defendant’s administrator and such alleged surviving wife.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 71.*]</p> <p>2. Estoppel (§ 68*) — Parties—Voluntary Appearance.</p> <p>Where dismissal of a suit to set aside a divorce decree was rendered at the request of the defendant’s alleged surviving wife, she was estopped to deny that she was a party.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 68.*]</p> <p>3. Appeal and Error (§■ 4*) — Irregularities Reviewable — Mode of Review.</p> <p>Irregularity in treating the alleged surviving wife of the defendant in a suit to sot aside a divorce decree as a quasi party could be corrected only on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Doc. Dig. § 4.*]</p> <p>4. Abatement and Revival (§ 88*) — Want of Revivor — Estoppel.</p> <p>A person who proceeds in a suit and takes an order or decree therein without revivor is estopped to object for want of revivor.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § 512; Dec. Dig. § 88.*]</p> <p>5. Appeal and Error (§ 435*) — Appearance by Administrator — Revivor.</p> <p>Where an administrator appeared generally in the Circuit Court of Appeals without objecting that he had not been properly joined by bill of revivor, and argued and submitted the case on its merits, he thereby ratified the decree as if he were a party, and could not object for want of re-vivor, but should be formally substituted as a respondent in tbe appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 435.*]</p> <p>6. Divorce (§ 165*) — Decree—Application to Vacate — Laches.</p> <p>Where complainant in a suit to set aside a divorce decree for fraud did not file her bill until 18 months after discovering the decree and alleged no facts to excuse or explain the delay, injuiy from the delay would be presumed, to establish that claimant was guilty of laches, especially where there was another woman claiming to be the wife of the defendant by virtue of the decree.</p> <p>[Ed. Note. — For other cases, see Divorce, Dec. Dig. § 165.*]</p> <p>7. Equity (§ 72*) — Laches—Prejudicial Delay — Presumptions.</p> <p>While only prejudicial delay will constitute laches, yet prejudice need not always be affirmatively shown, but will be presumed, where the interests of innocent third, persons might be affected by the delay, which in such eases claimant must satisfactorily explain or excuse.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. §§ 207, 210-220, 225, 226; Dec. Dig. § 72.*]</p>

<p>Sales (§ 52*.) — Evidence oe Agreement — Presumption from Reduction to Writing.</p> <p>Plaintiff claimed to have a parol contract to furnish all the cooperage required at defendant’s packing plant for one year, the prices to be subject to adjustment between the parties at intervals of about two months, and sued for its breach. The only testimony as to such contract was that of plaintiff’s president who testified that at an interview with defendant’s' purchasing agent the latter said he wished a contract for a year or longer ; that witness then prepared a written contract “in pursuance of the understanding” between them, which was signed by the parties and pro- • vided for the supplying of cooperage for a term of about two months at prices therein stated. Shortly before such contract expired another was made and signed for two months longer, after which defendant made no further purchases from plaintiff. Held, that the rights of the parties were measured by the written contracts, which, in the absence of fraud or mistake, must be presumed to embody the agreement of the parties in full; that the testimony did not in any event establish any further binding agreement between them, because it did not show that plaintiff assented thereto and did show that any future sales were subject to further agreement as to prices.</p> <p>|Ed. Note. — ¿''■or other cases, see Sales, Dec. Dig. § 52.*]</p>

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

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

The decree (148 Fed. 1007) held both vessels in fault for a collision between the steamer Nord America and the tug Transfer No. 6, which occurred in the harbor of New York at 1:45 p. m. November 23, 1904. The tug alone appeals.

<p>In Error to the Circuit Court of the United States for the Southern District oí New York.</p> <p>On writ of error to the Circuit Court for the Southern District of New York to review a judgment entered upon the verdict of a jury-in favor of the defendant in error, plaintiff below, for $11,(590.</p>

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

<p>1. Burns Am) Notes (§ 173*) — Time or Maturity — Maturity on Nonpayment of Interest.</p> <p>A provision in a promissory note that it shall become due and payable at once on default in the payment of interest is not self-executory, hut merely gives the holder an option to declare the note due, and unless such option is exercised a default in the payment of the interest does not affect the negotiability of the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. §• 173.*]</p> <p>2. Bills and Notes (§ 369*) — Defenses as Against Bona Fide Pctrojiaskr— Conditional Delivery.</p> <p>That a negotiable note was delivered to the payee subject to a condition which has not been fulfilled is not a defense to the note in the hands of a bona fide indorsee for value before maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 9R1; Dec. Dig. ¡8 369.*]</p>

<p>Internal Revenue (§ 0*) — Special Tax on Rectifiers and Liquor Dealers —Manufacturers of Extracts — “Beverages”—“Liquors.”</p> <p>Flavoring extracts, composed of from 40 to 50 per cent, alcohol, 3 per cent, flavoring principle, and the remainder water, the quantity of alcohol being no greater than is required to hold the flavoring principle in solution, which are not made, sold, nor used, nor capable of being used, as a beverage, but which are chiefly used in flavoring soda water syrups, the quantity of extract used ip, each glass of the beverage being about 3 or 4 drops, are not “beverages,” nor “liquors,” within the meaning of Rev. St. § 3244 (U. S. Conrp. St. 1801, p. 2098), and the manufacturer is not subject to special tax thereunder as a rectifier or wholesale or retail dealer in liquors.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 9.*]</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 769; vol. 5, pp. 4180-4182.]</p>

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

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

<p>In Error to the Circuit Court of the United States for the Western District of Virginia, at Lynchburg.__</p>

<p>1-. Patents (§ 327*) — Suits ron Infringement — Effect of Prior Decision.</p> <p>As a general rule, which may be subject to exception in particular cases, when a patent after full hearing has been declared valid by a Circuit Court and its decree has been affirmed by the Circuit Court of Appeals, such decision will be followed by the latter court in a subsequent case involving the same patent, and not presenting any essentially different evidence, even though the claim of invalidity was not urged on such court on the prior appeal.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 622; Dee. Dig. § 327.*</p> <p>Effect of previous adjudication on Circuit Court of Appeals, see notes to National Cash Register Co. v. American Cash Register Co., 3 C. C. A. 565; Thomson-IIouston Electric Co. v. Hoosick Ry. Co., 27 C. 0. A. 4.27; United States Freehold L. & Em. Co. v. Gallegos, 32 C. 0. A. 475.]</p> <p>2. Patents (§ 28*) — Designs for “Manufacture” — Monument.</p> <p>A sarcophagus monument is a “manufacture” within the meaning of Rev. St. § 4929 (U. S. Comp. St. 1901, p. 3398), and a proper subject for a design patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 33; Dec. Dig. § 28.*</p> <p>For other definitions, see Words and Phráses, vol. 5, pp. 4344-4346; voi. 8, p. 7716.]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Design for Monument.</p> <p>The Young design patent, No. 27,115, for a design for a sarcophagus • monument, discloses novelty and invention, and is valid; also hold infringed.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dee. Dig. § 328.*]</p> <p>4. Patents (§ 317*) — Suits for Infringement-Permanent Injunction.</p> <p>The fact that a defendant has ceased to infringe, and has promised not to infringe in the future, does not necessarily prevent the granting of an injunction against him; but, as an injunction is only granted to prevent threatened injury, it should not issue if it is clear that no further infringement is to be anticipated.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 561; Dec. Dig. § 317.*]</p> <p>5. Patents (§ 224*) — Suits for Infringement — Penalty for Infringement of Design Patent.</p> <p>To entitle the owner of a design patent to recover the statutory penalty for its infringement provided by Act Eeb. 4, 1887, e. 105, 24 Stat. 387, Supp. Rev. St. 533 (U. S. Comp. St. 1901, p. 3398), he must have duly marked the patented articles made or sold by him, where there is no proof of infringement by defendant after notice.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 354, 335; Dec. Dig. § 224.*]</p> <p>6. Patents (§ 325*) — Suit for Infringement — Costs.</p> <p>Where the complainant in a suit for infringement established the validity of his patent and its infringement, but, owing to the peculiar circumstances of the case, was not entitled to any of the' relief prayed for, the costs may be divided as deemed equitable by the court.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 607, 609, 610; Dec. Dig. '§ 325..*]</p>

On appeal by the complainant from a decree dismissing the bill which alleges infringement of letters patent No. 688,739 granted to J. W. Jones for an improved production of sound-records.

<p>On Motion to Vacate Stay of Mandate.</p>

In Equity. On demurrer to bill. Plaintiff- has filed its bill, in substance alleging itself, prior to 1896, to have been the owner of about 2,500 acres of coal on Ten Mile creek, in Harrison county, W. Va.; that T. M. Jackson, its president and the owner of substantially all its stock, conceived the idea of building a railroad from New Martins-ville, on the Ohio river, to Clarksburg, and thence to Belington, in said state, by and through and for the purpose of developing…

<p>Receivers (§ 108*) — Successive Receiverships Representing Different Interests — Accounting Between Receivers.</p> <p>Suggestions made as to the settlement of accounts by a master between receivers appointed for the lessee of a street railroad system, and by whom it was- operated for a lime with the consent of the lessor and its mortgagees, and receivers subsequently appointed in foreclosure suits brought by the latter, to whom on their appointment the property was turned over, together with equipment, supplies, etc., purchased by the former receivers and remaining on hand; the accounting being in part for the purpose of determining to which estate various items of expenditure by the receivers for the lessee, such as those for equipment, repairs, and betterments, should be charged.</p> <p>[Ed. Note. — Por other cases, see Receivers, Doc. Dig. § 108.*]</p>

<p>In Equity. On motion to dismiss cross-bill.</p>

<p>1. Banks and Banking (§ 288*) — National Banks — Insolvency—Distribution oe Assets — Priority.</p> <p>The fact alone that a deposit of public funds in a national bank by a public officer was wrongful, and known to be so by the bank, does not entitle a claim therefor to priority of payment over those of general creditors on the insolvency of the bank.</p> <p>[Ed. Note. — JPor other cases, see'Banks and Banking, Dec. Dig. § 288.*}</p> <p>2. Basks and Banking (§ 288*)— National Banks — Inkot.vestcy—Distribution oír Assets — VuiobitY'—TRust Funds.</p> <p>In all cases where an Insolvent national bank held funds as trustee, to entitle a claim therefor to a preference over those of general- creditors in the distribution of the hank’s asseis, it must he shown that such funds have not been dissipated, but that they remain in the estate and can be identified, nor by earmarks, but by being traced into the estate and there now found, to its augmentation.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Dec. Dig. § 238.*J</p>

<p>1. Courts (| 374*) — Federal Oouisth — Rules of Decision — Service.</p> <p>Where a ease is removed from a stale court, and the defendant, a foreign corporation, appears specially, for the purpose of removal only, and objects to the sufficiency of the service, the Circuit Court must determine such objection for itself, and will not necessarily be controlled by the state law.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 874.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 O. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Removal op Causes (§ 115*) — Service—Sufficiency.</p> <p>Where service on a foreign corporation is objected to after removal to the federal Circuit: Court, the same rule should be applied in determining 1be sufficiency of the service as in a case originally brought in the Circuit Court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 115.*]</p> <p>3. Courts (§ 374*) — Federal Courts--Conformity to State Daws — Process.</p> <p>Defendant, an Ohio railroad corporation, was sued in Georgia oil a transitory canse of action arising in Kentucky. Defendant bad no tracks in Georgia and did no business in that state, except that it had a commercial agent, whose only duty was to solicit freight and passenger business, without authority to issue bills of lading, sell passenger tickets, or make contracts. Meld, that defendant was not doing business in Georgia, so that service on such commercial agent would confer jurisdiction over the corporation so far as the federal courts were concerned, though the state courts had decided the contrary.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 374.*]</p>

In Bankruptcy. On review of decision of referee. On petitions of the bankrupt and her husband, Larnard Maxson, for review of the orders of the referee denying their claims to a homestead exemption in real estate, scheduled by the bankrupt, Ethel Max-son, and of the trustee for review of an order denying his application to have the homestead of the bankrupt adjudged liable for the debts scheduled by her.

<p>CORPORATIONS (§ 263*) — Stockholders—Liability foe Corporate Debts— Suits to Enforce in Other Jurisdictions.</p> <p>Defendant, a citizen and resident of New York, was a stockholder in an Arizona corporation which contracted an indebtedness to complainant while doing business in California. Const. Cal. art. 12, §§ 3, 15, and Civ. Code Cal. § 322, provide that each stockholder of a corporation shall be personally liable, in the same proportion that his stock bears to the entire stock, for all debts of the corporation contracted while he is a stockholder, and that no foreign corporation shall be allowed to transact business in the state on more favorable conditions than are prescribed for domestic corporations. Held, that there was no contractual relation between defendant and complainant which would support a suit in New York to enforce the personal liability imposed on stockholders by the Constitution and statutes of California.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§• 831, 1065; Dec. Dig. § 263*</p> <p>Stockholder’s liability to creditors in equity, see notes to Bickerson Boiler-Mill Co. v. Farrell Foundry & Machine Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.]</p>

<p>Master and Servant (§ 316*) — Liability for Injuries to Third Persons — Acts of Independent Contractor.</p> <p>A contract between a general contractor for a building and a subcontractor, by which the latter was to take all the required structural steel work from the cars, and haul and erect the same in place as required by the principal contract, and to assume the responsibility of and pay for any damage to persons and property during the fulfillment of the contract, rendered the subcontractor an independent contractor, for whose negligence in piling material in the street, whereby a person, was injured, the principal contractor was not responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. § 316.*</p> <p>Who are independent contractors, see note to Atlantic Transport Co. v. Coneys, 28 C. C. A. 392.] •</p>

<p>1. Removal of Causes (§ 114*) — Proceedings After Removal — Process in State Court.</p> <p>Where a foreign corporation is doing some substantial business in a state, and a suit commenced in a state court by service of process valid under the state statute is removed into a federal court, such court will not set aside the service.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 114.*]</p> <p>2. Removal of Causes (§ 114*) — Proceedings After Removal — Process instate COURT.</p> <p>A foreign railroad corporation, wiiicli maintains offices in New York and there employs freight and passenger agents to solicit business, which also holds directors’ meetings, disburses dividends, and keeps an office for the transfer of its stock there, with an assistant secretary, is doing some substantial business in the. state, and is subject to service of process under the New York statute, and such service will not be set aside by a federal court, in a suit brought in a state court, after its removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 114.*]</p>

<p>Appeal and Ereos (§ 1213*) — Reversal—Emecii’ on Second Trial.</p> <p>Evidence held not to differ so materially from that on a former trial of the caso as to justify the court in entering a judgment notwithstanding the verdict under the Pennsylvania statute; the appellate court having held, in reversing a former judgment on a directed verdict, that there was an issue of fact which should bo submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1213.*]</p>

<p>Evidence (§ 81*) — Action eob Negligence — Master and Servant — Presumptions — Foreign Law.</p> <p>In an action in a federal court by a servant against the master to recover for a personal injury received by iffaiutiff while in the employ of defendant in a foreign country, by reason, as alleged, of the failure of defendant to furnish plaintiff with reasonably safe machinery with which to work, the action being one cognizable at common law, the plaintiff will not be denied a recovery because the law of the foreign country is not pleaded or proved, but, in the absence of such proof, the court will apply the law of the forum, which will be presumed to be that also of the country where the injury was received. Slater v. Mexican Nat. R. R., 191-U. S. 120, 21 Sup. Ct. 581, 48 L. Ed. 900, Mexican Cent. R. R. v. Eckman. 205 U. S. 588. 27 Sup. Ct. 791, 51 L. Ed. 920, and Mexican Cent. R. R. v. Chantry, 136 Fed. 316, 69 C. C. A. 454, distinguished.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. § 81.*]</p> <p>Contra, per Gray, Circuit Judge, dissenting, that it was essential to plaintiff’s case to allege and prove that the acts of defendant complained of gave him a right of action under the laws of the country where they occurred, which was in this case a Latin country, where the common law was not in force.</p>

<p>1. Indictment and Information (§ 71*) — Sotmciioncy of Accusation — Certainty AND PARTICULARITY.</p> <p>In determining Hie sufficiency of an indictment, the question is not whether it might llave been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprised Hie defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.</p> <p>LICd. Note. — For oilier cases, see Indictment and Information, Cent. Dig. § 193; Dec. Dig. § 71.*]</p> <p>2. Banks and Banking (§■ 257*) — National Banks — False Entry by Oeetcer —SUEEK'IKNCY 01’ INDICTMENT-</p> <p>All indictment under Rev. St. § 5209 (U. S. Comp. St. 1001, p. 3197), which charges the defendant as cashier of a national bank with having made a false entry in a report with intent to deceive an officer of the association, need not describe the report with technical accuracy, and an averment of the date when made, and that it was a report made to the Comptroller of the Currency showing the resources and liabilities of the bank on a certain date, is sufficient to authorize the presumption that it was a report made by the association under section 5211.</p> <p>TEd. Note —For other cases, see Banks and Banking, Cent. Dig. § 971: Dec. Dig. § 257.*]</p> <p>3. Banks and Banking (§ 256*) — National Banks — Offenses by Officers— Making False Report.</p> <p>Rev. St § 5209 (U. S. Comp. St. 1901, p. 3497), which makes it a criminal offense for any officer or agent of a national bank to make any false entry in any report of the association with intent to deceive any officer of the association, etc., includes a report voluntarily made as well as one required by law, if the false entry was made with thq requisite unlawful intent.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. § 960; Dec. Dig. § 256.*]</p> <p>4. Criminal Law (§ 377*) — Evidence—Reputation of Accused.</p> <p>On the trial of a defendant charged with making a false entry in a report of a national bank of which he was cashier, where witnesses were allowed to testify as to his reputation for truthfulness and honesty, it was not error to exclude testimony as to his reputation for morality and sobriety as irrelevant.</p> <p>[Ed. Note. — For other 'eases, see Criminal Law, Cent. Dig. §§ 836, 840; Dec. Dig. § 377.*]</p> <p>5. Banks and Banking (§ 257*) — National Banks — Prosecution of Officer for Making False Report — Instructions.</p> <p>Instructions given on the trial of, a defendant charged with having, while cashier of a national bank, made false entries in a report of the bank, with intent to deceive the president thereof, considered, and, taken together, held not erroneous.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Omitting the several letters and other exhibits referred to, the following are all the averments and statements of the plaintiff’s… Held: as the officers of the American Tobacco Company, the successor of the foregoing three companies, deny under oath knowing how the said stock was and is held, but admit that it was controlled by the American Tobacco Company and the composing companies. “Now your petitioner shows that after the first three years of its creation, through…

The defendant was indicted for a violation of section 3893 of the Revised Statutes (U. S. Comp. St. 1901, p. 2058), as amended, which prohibits the use of the mails for the circulation of obscene writings.

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

<p>Appeal and Error (§ 1195*) — Effect op Reversal — Decision as Law op the Case on Second Trial.</p> <p>Where the law of a case had been settled in favor of a plaintiff on a material issue by the appellate court, in reversing a prior judgment, on the facts as they then appeared, and on the second trial the evidence was substantially the same and without conflict, it was not error to instruct that plaintiff was entitled to recover on such issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*]</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of Oregon, in Bankruptcy.</p> <p>The J. M. Acheson Company, a mercantile corporation, was, with its expressed consent, duly adjudged a bankrupt on June 2, 1908. Thereafter a receiver was appointed by consent, and all assets of the corporation were turned over to him for the benefit of all the creditors. The receiver was afterwards named as trustee. Among ihe claims filed against the estate was, one by the firm of Ginsburg Bros., of Chicago, who set forth in their petition filed with the referee that the J. M. Acheson Company owed them $2,-228.50 on an open account for merchandise delivered by the firm of Ginsburg Bros, to the said J. M. Acheson Company on consignment within two years last past before filing the claim, bills for which were annexed to ihe petition and made part thereof. Claimants further set fortlwthat ‘‘the agreed value of the goods shipped by deponent’s said firm to said bankrupt was $4,-212.23, and all of said goods were disposed of by said bankrupt, excepting goods to the value of 81,483.75, which goods were returned by order of this honorable court. Of the moneys received for said goods which were sold, said bankrupt has paid this deponent’s firm the sum of $500 only, leaving said balance of 82,228.50 due this deponent’s firm; that no part of said claim has been paid; that there are no set-offs or counterclaims to the same; and that: this deponent has not, nor has his said firm, nor has any person by their order, or to this deponent’s knowledge or belief, for their use, had ol“ received any maimer of security for said claim whatever; that no note lias, been received for said account nor any judgment rendered thereon; that said items of said claim became due as soon as sales of said goods were made by said bankrupt, and all funds received by said bankrupt from the sales of said goods which were not paid over to this deponent’s firm were to be held in trust By said bankrupt and said funds were trust funds. This deponent is; informed and believes and therefore says that said bankrupt failed to keep said trust fund sepárale and distinct from other funds, but wrongfully mixed and commingled the same with the money of said bankrupt, and said bankrupt has used said trust fund in payment of its employés and other running expenses, in paying other creditors, and in purchasing sundry other goods, wares, and merchandise which composed the assets of said bankrupt, which assets were taken charge of by the receiver appointed by this court. Said assets were disposed of by said receiver for the sum of-. Said receiver was thereafter selected and now is the trustee of said bankrupt, and still has in his possession funds received from the sale of said assets more than sufficient in amount to satisfy this claimant’s claim in full.” The prayer was that the claim be allowed in full.</p> <p>The trustee filed a general demurrer to the petition, and, after hearing, the referee, without formal action upon the demurrer, disallowed the claim of petitioners as a preferred one, but directed that it be filed as a general claim.</p> <p>Petitioners sought a review of the referee’s order. The District Court affirmed the order of the referee, and allowed the claim as a general one against the estate. Petitioners appealed to this court.</p>

<p>1. Courts (§ 262*) — Bill to Perpetuate Testimony — Jurisdiction op Circuit Courts.</p> <p>The second clause of Rev. St. § 866 (U. S. Comp. St. 1901, p. 663), which provides that “any Circuit Court upon application to it as a court of equity, may, according to the usages of chancery direct depositions to be taken in perpetuara rei memoriam .if they relate to any matters that may be cognizable in any court of "the United States,’’ is wholly separate from the first clause authorizing any federal court, where necessary in order to prevent a failure or delay of justice in a pending case, to grant a dedimus protestatem to take depositions according to the common usage, and is a recognition and regulation of the general power of the federal courts as courts of chancery under Const, art. 3, § 2, to entertain bills to perpetuate testimony, where the complainant cannot himself bring the matter to which the desired testimony relates into present judicial investigation.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 262.*]</p> <p>2. Deposhioa's (§ 20*) — Burn to Perpetuate Testimony- — Federal Courts. A complainant may maintain a Dill in equity in a Circuit Court to perpetuate testimony, where it shows that defendant charges that an article manufactured and sold by complainant infringes a patent owned by defendant, and threatens suits against complainant and its customers but refuses to bring such suits, and that complainant can prove that such patent: is void by the testimony of certain designated witnesses but not otherwise.</p> <p>[Kd. Note. — For other cases, see Depositions, Cent. Dig. § 31; Dec. Dig. § 20.*]</p>

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

<p>Towage (§ 15*) — Injuey to Tow — Liability oe Tug — Evidence.</p> <p>Where two tugs charged with being in fault for the grounding of a heavily laden barge which they were towing down the narrow channel of the Kennebec river established by a preponderance of the evidence that the barge took a sudden sheer to starboard which made it necessary for them to maneuver as they did to break such sheer, the fact alone that the barge then swung too far to port and grounded raised no presumption of negligence on the part of the tugs, and to charge them with liability the burden rested on the barge to show that their maneuver was unskillful.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 34; Dec. Dig. § 15.*]</p>

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

<p>Bankruptcy (§ 455*) — Appeau—Appealable Orders.</p> <p>An order of a court of bankruptcy adjudging an individual to be a member of a bankrupt partnership and liable for its debts is not appealable, under Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 455.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. O. A. 9.]</p>

<p>Patents (§ 328*) — Validity and Infringement — Engraving Machines.</p> <p>The Chase patent No. 517,680, for an engraving machine, claims 1 8, inclusive, held, not anticipated, valid, and infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

This libel proceeding seeks to confiscate 65 casks of liquid extracts under and by virtue of section 10, Act Cong. June 30, 1906, c. 3915, 34 Stat. 771 (U. S. Comp. St. Supp. 1907, p. 934), known as the “Rood and Drugs Act.” The Knowlton Danderine Company has intervened as the owner and resists the confiscation. The facts have been agreed, trial by jury has been waived, and all matters in controversy submitted to the court.

<p>1. Penalties (§ 33*) — Safety Appliance Act — Evidence.</p> <p>An aetion for penalty under the federal safety appliance act (Act March 2, 1893, e. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) is a civil case, and the government is only required to prove its case by a preponderance of the evidence and not beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Penalties, Cent. Dig. § 34; Dee. Dig. .§ 33.*]</p> <p>2. Commerce (§ 27*) — Safety Appliance Act — Violation.</p> <p>If a railroad company hauls a car which is defective as to coupling appliances or grabirons or handholds, although the defective car does not contain any interstate traffic, yet if it is hauled in a train which contains another car that is loaded with interstate traffic, then the statute is violated.</p> <p>[Ed. Note. — For. other cases, see Commerce, Dec. Dig. § 27.*]</p> <p>3. Railroads (§ 229*) — Safety Appliance Act — Provisions-</p> <p>The safety appliance act (Act March 2, 1893, c. 196, §• 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) imposes upon a railroad company an absolute duty to maintain the prescribed coupling appliances, grabirons, and handholds in operative condition, and is not satisfied by the exercise of reasonable care to that end.</p> <p>' £E'd. Note. — For other eases, see Railroads, Dec. Dig. § 229.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>4. Raileoads (§ 229 *) — Safety Appliance Acts — Coupling Apparatus.</p> <p>The cou])lh)g and uncoupling apparatus on each end of every car must he in an operative condition.</p> <p>[33d. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>5. Evidencio (§ 586*) — Weight and Sufficiency — Negative and Positive: Testimony.</p> <p>Positive testimony is to be preferred to negative testimony, other things being equal; but where it was the duty of an inspector on the part of the railroad company to inspect cars, and he says that he did inspect the cars that came in and did not see certain defective appliances, that is not such negative testimony that it should not receive the same consideration', other things being equal between the witnesses, as positive testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 580.*]</p> <p><Syllabus by the Court.)</p>

In Equity. On demurrer to bill. Melville H. Carter and three other citizens of Maryland have filed their bill against Osbum Fortney and 33 other individual citizens of West Virginia, in which they charge the Merchants’ Coal Company to be a West Virginia corporation, the owner of valuable coal lands in Preston county, said state, and operating a coal mining plant at Tunneiton in said county, having mine openings, tipples, miners’ houses, electric mining machinery, and a…

<p>1. Deposits in Coubt (§ 11*) — Disposition oe Unclaimed Deposits — Fedebal Statute.</p> <p>Under the provision of Rev. St. § 996, as amended by Act Feb. 19, 1897, c. 265, § 3, 29 Stat. 578 (U. S. Comp. St. 1901, p. 711), that it shall be the duty of the judge or judges of the respective federal courts to cause any moneys which have remained in the registry of the court unclaimed for 10 years or longer to be deposited in a designated depository of the United States to the credit of the United States, after a fund has remained in its registry unclaimed for 10 years or more the court has no power to then award it to a claimant, but can only follow the statute, and any claim must be presented to the Treasury Department.</p> <p>[Ed. Note. — For other cases, see Deposits in Court, Cent. Dig. § 12; Dec. Dig. § 11.*]</p> <p>2. Salvage (§ 28*) — Dekelict Pkoperty — Rights oe Salvor.</p> <p>A salvor of derelict property found at sea wlio took the same to a court of admiralty and libeled it for salvage, claiming the entire proceeds, but was awarded a moiety only, the remainder being deposited in the registry of the court subject to its orders, is entitled to such balance where, after the lapse of a number of years, no owner or claimant of the property has appeared.</p> <p>[Ed. Note. — For other eases, see Salvage, Cent. Dig. § 69; Dec. Dig. § 28.*</p> <p>Awards in federal courts, see note to The Damington, 30 C. C. A. 280.]</p>

<p>1. Bail (§ 74*) — In Criminal Prosecutions — Discharge of Sureties.</p> <p>TRe arrest, trial, conviction, and inrprisonment of a defendant who is at large on bail in a criminal case in a federal court by the courts of another state into which he voluntarily went with knowledge that prior indictments were there pending against him do not exonerate his bail from liability for his nonappearance.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 291; Dec. Dig. § 74.*].</p> <p>2. Bail (§ 84*) — In Criminal Prosecutions — Discharge of Sureties.</p> <p>In such ease it was not part of the duty of the district attorney of the-United States to go into the foreign jurisdiction and institute or join in proceedings for the release or discharge of the prisoner from the custody of the state, and his failure to do so affords no defense to a proceeding to-forfeit the defendant’s bail.</p> <p>[Ed. Note. — For other cases, see Bail, Dec. Dig. § 84.*]</p> <p>3. Bail (§ 79*) — In Criminal Prosecutions — Discharge of Surety.</p> <p>A court will not exercise its discretion, where it is vested with such discretion, to refuse to forfeit a criminal recognizance to. enable a creditor of the principal to recover a sum deposited by him with his surety as indemnity.</p> <p>[Ed. Note. — For other cases, see Bail, Dec. Dig. § 79.*]</p>

<p>liAYKIUII’TCY (§ 166*) — VOIDABTJS PREFERENCES — GIVING SECURITY — PROOF OF INSOUVENOY.</p> <p>An assignment by a debtor corporation within four months prior to its bankruptcy of lire insurance policies under which there had been a loss to a creditor as security held, not voidable as a preference because of the insufficiency of the evidence to show, with the clearness required, that the corporation was in fact insolvent when the assignment was made, or that, if so, the creditor liad reasonable cause to believe it insolvent.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 100.*]</p>

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

<p>Judgment (§ 46*) — Warrant to Confess — Construction-—oe Ant ok Either oe Us.”</p> <p>A warrant of attorney contained in a joint and several note signed by eight makers authorizing the holder to have judgment confessed against “us, or any or either of us,” is not exhausted by the entry of judgment against one or more but not all of the makers, but is the equivalent of eight separate warrants each signed by one of the makers, and the holder may.at his election enter a several judgment against each maker.</p> <p>[Ed. Note.' — For other cases, see Judgment, Cent. Dig. § 65; Dec. Dig. § 46.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7223.]</p>

<p>Iii Bankruptcy. On review of decision of referee.</p>

<p>1. Mines and Minerals (§ 9*) — Public “Mineral Hands” — Coal Lands.</p> <p>Coal lands are “mineral lands” within the meaning of that term as generally employed in the laws regulating thp disposal of the public domain.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dee. Dig. § 9.*</p> <p>For other definitions, see Words and Phrases, yol. 5, pp. 4515-4516.]</p> <p>2. Public Lands (§ 81*) — Railroad Grants — Construction.</p> <p>An act of Congress giving a railroad company to which a grant of public lands has been made and patented, on the relinquishment of such of the lands as lay within a forest reservation, the right to select other public lands in lieu thereof, is to be construed in accordance with the rules governing grants, by which nothing passes by implication, and, unless the words used are clear and explicit as to the lands subject to selection, that construction should be adopted most favorable to the government.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 81.*]</p> <p>3. Public Lands (§ 81*) — Railroad Grant — Selections in Lieu oe Land in Reservation — Construction oe Statute.</p> <p>Act March 2, 1899, c. 377, § 3, 30 Stat. 994, which gives the Northern Pacific Railroad Company, on its conveyance to the United States of its lands previously granted and patented to it lying within the Mt. Ranier National Park and the Pacific Forest Reserve, the right to select in lieu thereof in any state through which its road runs “an equal quantity of nonmineral public lands, so classified as nonmineral at the time' of actual government survey,” must be construed, in harmony with the general policy of the .government in- making railroad grants, to limit the same strictly to -nonmineral lands, and the railroad company is not authorized thereby to select lands which are not actually nonmineral, even though they may have been erroneously so classified when surveyed.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 81.*]</p>

<p>1. Courts (§ 338*) — Federal Courts — Suit by Partnership — Conformity to State Practice.</p> <p>Rev. St. Ohio, §§ 3170-1 to 3170-7, provides that every partnership, with certain exceptions, transacting business in Ohio under a fictitious name or designation not showing the names of the persons interested as partners, must file in the county of its principal place of business a certificate stating the name and residence of each partner, and, in case of its failure to do so, shall not commence or maintain an action on, or on account of, any contracts made or transactions had in their partnership name in any court in the state until they have filed such certificate. Held,, that a partnership’s failure to comply with such act only affected its right to sue in the state courts, and did not impair or restrict the jurisdiction of the federal courts conferred by the federal Constitution and statutes.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 901; Dee. Dig. § 338.*]</p> <p>2. Mechanics’ Diens (§ 156*) — Notice of Lien — Form of “Notice.”</p> <p>Rev. St. Ohio, § 3185, provides that, within 30 days after a principal contractor shall have filed an affidavit for a mechanic’s lien on the owner’s property, he shall notify the owner, his agent or attorney, that he claims such lien, and, if he fails to do so, the lien shall be null and void. Held, that “notice” as so used meant information by whatever means communicated, knowledge given or received; and, written notice not being expressly required, oral notice was sufficient.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. 187; Dee. Dig. § 156.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4839-4844; vol. 8, p. 7733.]</p> <p>Corporations (§ 477*) — Seals—Failure to Use — Mortgages.</p> <p>AVhere a corporation had power to execute a mortgage, and there was neither a statutory nor charter provision directing the mode of procedure, the mortgage having been executed in the same manner as that of an individual, it was not defeated for want of the corporate seal.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1860; Dec. Dig. § 477.*]</p> <p>4. Bankruptcy (§ 331*) — Claims—Joinder of Petitioners.</p> <p>Where claimants indorsed notes for defendant corporation and received a mortgage on the corporation’s property to secure the indorsement, and thereafter claimants paid the notes at maturity, each advancing one-half of the funds, they were entitled as joint petitioners to assert a mortgage lien on the premises in bankruptcy proceedings against the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §• 520; Dec. Dig. § 331.*]</p> <p>5. MORTGAGES (§ 46*) — IlEOITALS AS TO CONSIDERATION.</p> <p>Where a mortgage, duly executed, was delivered and recorded and was a mortgage between the parties, It was not invalidated as to third persons by the fact that it did not accurately describe the consideration for which it was given, nor give any information as to the date of the notes, nor, except by implication, to whom the notes which it attempted to secure had been delivered.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 119; Dec. Dig. § 4(5.*]</p> <p>6. Evidence (§ 419*) — Parol Evidence — Mortgage—Description of Debt— Inaccuracy.</p> <p>Where a mortgage did not accurately describe the debt, it was permissible to show by parol what its true character was, and for what purpose and wliat consideration it was given, though it mentioned an amount differing from.the sum named in either of the notes it was given to secure.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1921; Dec. Dig. § 41!).*]</p> <p>7. Corporations (I 478*) — Mortgages—Consideration.</p> <p>Where a corporation’s notes would not have been discounted except for tile indorsement of claimants, whose liability as indorsers was secured by a mortgage on the corporation's property, claimants became creditors oí the corporation contingently at and from the time of the indorsement.</p> <p>|Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1871; Dec. Dig. § 478;* Mortgages, Cent. Dig. §§ 208-289.]</p> <p>8. Bankruptcy (§ 359*) — Liens—Corporate Notes — Indorsement—“Present Consideration."</p> <p>Where a corporation executed a mortgage to claimants to secure their indorsement of the corporation’s notes, such mortgage was based'on a present consideration wiiiiin 15sinkr. Act July 1, 3.898, c. 541, § 67d, 30 Slat 5(5-1, 5(55 (IT. S. Comp. St. 3 903, p. :U49), protecting liens given or accepted in good faith for a present consideration which have been recorded according to law, if record thereof is necessary, etc.</p> <p>[Ed. Noto. — For other cases, see Bankruptcy, Cent. Dig. § 259; Dec. Dig. S 159.*]</p> <p>9. Liens (§ 7*) — Equitadle Liens.</p> <p>Where a party by express agreement sufficiently indicates an intention to make specific property a security for a debt or other obligation and promises to transfer such property as security, equity impresses the properly with an equitable lieu in case security is not given.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 26-28; Dec. Dig.</p> <p>§ 7.*]</p> <p>10. Bankruptcy (§ 165*)— Liens — Preieeences.</p> <p>Where, at the time a corporation executed a mortgage to indorsors of its paper to secure the indorsement, it was financially embarrassed but solvent, and the mortgage was given and accepted in good faith and not in contemplation of or in fraud of the bankruptcy act or with intent to hinder, delay, or defraud the corporation’s creditors or any of them, it did not constitute a preference, but was valid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 265; Dec. Dig. § 165.*]</p>

<p>Indians (§ 10*) — Bands—Disclaimer op Title by State.</p> <p>Under the provision of Const. Wash. art. 20, by which the state forever disclaimed “all right and title * * * to all lands * * * owned or held by any Indian or Indian tribes,” the state has no title, and can convey no right, to any of the shore lands surrounding Squaxon Island, which prior to the admission of the state had been set apart by treaty as a reservation for the Squaxon Indians and was then actually used and occupied by them, including the beach and shore.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 10.*]</p>

Suit in equity to determine adverse claims to land situated in the rim of Tacoma Harbor between the line of high tide and deep water. Heard on the bill of complaint and the answers of the several defendants. Decree for the defendants.

In Bankruptcy. On exceptions to report of John S. Courtright, referee, sur rule on bankrupt to turn over certain goods and merchandise.

At Law. This is an action submitted upon agreed facts, and arising upon a contract between the parlies to share the “cost and expense” of defending certain suits brought by the Bumford Chemical Works upon patent No. 474,811. Both, plaintiff and defendant were concerned in the manufacture of granulated phosphate, upon the production of which the patent in question was taken.

<p>Towage (§ 15*) — Iiwuky to Tow — Mutual Faults.</p> <p>While a tug was towing four barges on a hawser down Pamlico Sound at night, during a storm, her hawser parted, setting the tows adrift. She signaled them to anchor, and herself proceeded to a port. One of the barges drifted upon a shoal and grounded, losing her cargo and receiving serious injury. Held, on the evidence, that the hawser supplied by the tug which had been spliced was unsuitable and insufficient for the service, and rendered her liable for the injury; that the barge was also in fault for failing to anchor properly, and -that the damages should be divided, the preponderance of the evidence showing that she drifted for an hour before grounding.</p> <p>[Ed. Note. — For other eases, see Towage, Cent. Dig. § 36; Dec. Dig. § 15.*]</p>

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

<p>1. Penalties (§ 40*) — Safety Appliance Act — Violation—Right to Appeal.</p> <p>An action against an interstate railroad to recover penalties for several violations of Safety Appliance Act March 2, 1893, c. 196, § 6, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3175), providing that each interstate railroad guilty of such violation shall be subject to a penalty of $100, is civil and not criminal in its nature, and hence the United States is entitled to a review on a writ of error.</p> <p>[Ed. Note. — For other cases, see Penalties, Dec. Dig. § 40.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Penalties (§ 40*) — Action—Appeal.</p> <p>The constitutional prohibition against subjecting a person to be twice put in jeopardy for the same offense does not apply to actions by the United States against an interstate railroad to recover penalties for violation of Safety Apxiliance Act March 2, 1893, c. 196, § 6, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3175), so as to prevent a review by the government of an adverse decision on a writ of error.</p> <p>[Ed. Note. — For other cases, see Penalties, Dec. Dig. § 40.*]</p> <p>3. Penalties (§ 33*) — Safety Appliance Act — Violation—Action foe Penalties — Degeee of Pkoof.</p> <p>An action by the government against an interstate railroad to recover penalties for violation of Safety Appliance Act March 2, 1893, c. 196, § 6, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3175), being civil in its nature, the government is only required to prove its case by a preponderance of the evidence and not beyond reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Penalties, Cent. Dig. § 34; Dec. Dig. § 33.*]</p> <p>4. Couets (§ 96*) — Federal Courts — Decisions of Supreme Court — Controlling Authority.</p> <p>While declarations of law bearing on the issues and indicating the proper judgment thereon by the Supreme Court of the United States are binding on the lower federal courts, expressions of opinion as to what the law would be on facts essentially different from those in issue are not controlling.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §•§ 327, 32S; Dec. Dig. § 96.*]</p> <p>5. Railroads (§ 229*) — Equipment of Trains — Safety Appliance Acts.</p> <p>An interstate railroad is guilty of violating Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), if it starts in transit a car containing interstate commerce with a defective coupling which could have been discovered by inspection, but not so, if the car when started had no discoverable defect but developed one in transit, and there was no subsequent lack of diligence either in discovering or repairing the same.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>6. Railroads (§ 254*) — Safety Appliance Act —Violation —Burden of Proof.</p> <p>Where, in an action against an interstate railroad for violating Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), the government proves that a car laden for interstate traffic and with defective couplings has been hauled on defendant’s tracks, the burden is then shifted to defendant to prove exculpatory facts, namely, that it has used all reasonably possible endeavor to discover and correct the l'ault.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 254.*]</p> <p>7. Railroads (§ 229*) — Equipment op Trains — Sapety Appliance Acts.</p> <p>Safety Appliance Act March 2, 1808, c*. 19(5, § 2, 27 Stat. 531 (U. S. Oornp. St. 1901, p. 3174), requires interstate carriers to equip their cars engaged in interstate commerce with automatic couplers, so that they “can be uncoupled without the necessity of men going between the ends of the cars.” Held, that the quoted clause is merely descriptive of the equipment required, and does not import that it is the duty of the carrier to keep such equipment in repair at all events.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>8. Railroads (Ü 229*) — Safety Appliance Act — Duty op Carrier.</p> <p>Where an Interstate carrier has equipped its cars, engines, etc., engaged in interstate commerce with automatic couplers, so that they can he coupled and uncoupled without men going between the ends of the cars, the carrier is then only required to use the utmost diligence in discovering and correcting defects in such equipment which may thereafter develop in the use thereof, and is not liable for violation of the act because of the mere transportation of a ear containing a defective coupler, under the maxim that the law does not require an impossibility.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p>

<p>1. imEATCNG (§ 120*) — ANSWER—SUFFICIENCY 01' DENIAL.</p> <p>Under the rule of code pleading which prevails in Kentucky, an answer winch coniines itself to denying in ipsis verbis the allegations of the petition, and does not attempt to deny their substance or spirit, is bad as being ei asive and tendering immaterial issues.</p> <p>l,Ed. Note. — For other cases, see Mending, Dec. Dig. § 120.*]</p> <p>2. Master asd Servant (§ 290*) — Master’s Liability for .-Injury to Servant —Contributory Negligence — Instructions.</p> <p>In an action by a brakemnn against a railroad company to recover for an injury received while uncoupling cars used in interstate commerce, one of which was being moved with a defective coupler in violation of Safety Appliance Act March 2, 1893, e. 190, § 2. 27 Sint. 531 (U. S. Comp. St. 1901. p. 3.17-J), it was error for the court to give a general instruction as to the eircct of conlributcry negligence where die cars could have been uncoupled from the oilier side of the train without the necessity of going between them as plaintiff did.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 290.*]</p> <p>3. Trial (§ 235*) — Instructions—'Weight and Sufficiency of Evidence.</p> <p>Where defendant pleaded a release in defense to an action for a personal injury, it was not error to refuse an instruction that to overcome the strong presumption arising therefrom the plaintiff must produce evidence to convince the minds of the jury beyond reasonable controversy.</p> <p>[Kd. Note. — For other cases, see Trial, Dec. Dig. § 233.*]</p>

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

<p>Appeal from the District 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 District of New Jersey.</p>

<p>1. Bankruptcy (§ 461*) — Appeals—Time por Taking.</p> <p>An appeal from a judgment making an adjudication of bankruptcy must be taken within the 10 days allowed by Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 (ü. S. Comp. St. 1901, p. 3432), and the time cannot be extended or revived by any subsequent proceeding in the case.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 920; Dec. Dig. § 461.*)</p> <p>2. Bankruptcy (§ 440*) — Mode op Review — Order Reposing to Vacate Adjudication.</p> <p>An order of a court of bankruptcy refusing to vacate an adjudication is not one of the orders from which an appeal is provided for by Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), nor is it one relating to a-controversy arising in bankruptcy proceedings ap-pealable under section 24a, but is an administrative order reviewable only on petition to revise under section 24b.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. § 440.*]</p> <p>8. Bankruptcy (§ 440*) — Mode op Review — Mistake in Procedure.</p> <p>The provisions for appeal made by Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), and those for revision under section 24b, are mutually exclusive, and, where an appeal has been erroneously taken, it cannot be'treated and sustained as a petition for review.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig, § 440*1</p> <p>4. Appeal and Error (§ 840*) — Review—Question op Jurisdiction.</p> <p>A Circuit Court of Appeals cannot remand a cause with directions to dismiss for want of jurisdiction, where the alleged want of jurisdiction in the court below is predicated upon an issue of fact adjudicated in the court below in favor of jurisdiction, and where the order or judgment making such adjudication is not properly brought up for review.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3302; Dec. Dig. § 840.*]</p>

<p>1. Criminal Daw (§ 674*) — Triat,—Reception of Evidence.</p> <p>The ruto applied that, on the trial of a criminal case, the judge may in his discretion exclude evidence of facts which, though relevant to the issue, appear to him to be too remote to be material under all the circumstances of the c-ase.</p> <p>LEd. Note. — For other cases, see Criminal Law, Dec. Dig. § 674.*]</p> <p>2. Criminal Law (§ 82.7*) — Instructions—Necessity of Requests.</p> <p>Tiie rule applied that, where the instructions of the court on a particular issue in a criminal case are correct as far as they go, the omission to call attention to a particular phase of such issue is not ground for reversal, unless the court’s attention was c-ailed to it.</p> <p>1 Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 8 2005- Dec. Dig. § 825.*]</p> <p>3. 35ANKRtIPTCY (§ 495*) — Oí FENSES AGAINST BANKRUPTCY LAW— CONCEALMENT of Property — Evidence.</p> <p>On the trial of a bankrupt, charged with concealment of property from his trustee, testimony of the trustin' is admissible to show that he was not informed by defendant that property belonging to him was stored in places where that charged to have been concealed was found by the trustee. Jacobs v. United States, 1G1 Fed. 694, 88 O. O. A. 554, and Johnson v. United States, 163 Fed. 30, 89 C. C. A. 508, construed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 495.*]</p>

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

<p>Appeal and Error (§ 78*) — Decisions ItEVir.wAiiLE — Finality or Order.</p> <p>A rule made on petition of a defendant requiring the plaintiff and a third party to interplead, but which does not discharge the defendant from liability nor make any disposition of the property which the action was brought to recover, is not a final order from which a writ of error will lie.</p> <p>LKd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 404; Dec. Dig. § 78.*</p> <p>Finality of judgments and decrees for purposes of review, see notes to Brush Electric Co. v. Electric Imp. Co., 2 C. C. A. «79; Central Trust Co. v. Madden, 17 O. C. A. 208; Prescott & A. O. Ry. Co. v. Atchison, T. & S. R. Co.. 28 C. O. A. 482.]</p>

<p>Bankbottcy (§ 166*) — Voidable I’reeeeence — Reasonable Cause eor Gked-JTOB TO BELIEVE INSOLVENCY OB INTENT OB’ DEBTOB.</p> <p>The fact alone that a creditor knows Ills debtor to be financially embarrassed and is pressing for payment of his claim is not sufficient to charge him with having reasonable cause to believe his debtor to be insolvent and that a transfer of property to liim as security is intended as a preference, so as to render such transfer voidable on tlie bankruptcy of the debtor, under Bankr. Act July 1, 1898, c. 541, § 601), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 256; Dec. Dig. i 166.*1</p>

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

<p>Patents (§ 328*) — Validity and Infringement — Electric Safety-Fuse.</p> <p>The Thalacker patent No. 502,541, for an electric safety-fuse, consisting of a combination of a main safety-fuse, a box or case inclosing the same, and a small auxiliary fuse, not fully inclosed, which blows at the same time as the main fuse, and the purpose of which is to indicate the blowing of the main fuse, was not anticipated and discloses invention, but is not infringed by a device which is without the combination and structurally different, except that it has an auxiliary fuse as an indicator.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. & 328.*]</p>

In Equity. On final hearing. With this action has been consolidated in this court the actions of Nina Little Hancock against George C. Lorrey, against Kabler & Donaldson, and against Matthias Dick.

<p>1. Patents (§ 320*) — Suit fob Infringement — Acts Constituting- Violation or Injunction.</p> <p>A party against whom a preliminary injunction has issued, restraining him from infringement of a patent and from construct ins: or selling a device found to infringe, and which clearly infringed if the patent was valid, is guilty of contempt for violating the injunction, where he merely makes a formal and immaterial change in such device, which does not in any way change the principle of operation, and which was apparently adopted for the express purpose of evading the injunction.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ ”613-619; Doc. Dig. § 320.*]</p> <p>2. Patents (§ 326*) — Suits fob Infkingement — 'Violation of Injunction.</p> <p>While the fact that a party, charged with contempt for violating an injunction against infringement of patent, acted under the advice of counsel, is to he considered in deciding whether he shall be punished, it is not a defense, if continued infringement is found.</p> <p>[Ed. Note.. — For other cases, see Patents, Dec. Dig. § 326.*]</p>

<p>Bail (§ 60*) — Natube asb Scorn on Ruinara — Pubpobk is Giving RECOGNIZANCE.</p> <p>It is within the discretion of a court or magistrate to refuse to accept, a profi'erefl. criminal-recognizance signed by a surety who Isas been fully indemnified against loss by third parties, and the bond should not be accepted where it appears that the indemnitors are not acting in good faith, in that it is not their purpose to secure the appearance of the accused, but to substitute the recognizance and indemnity for his person and enable him to flee from justice.</p> <p>[Ed. Note. — For other cases, see Bail, Dec. Dig. § 60.*J</p>

<p>At Law. On motion for new trial.</p>

<p>o & 1 I c p s* O XJ* o* g* * p 0 o 1-t o &f> ■-P .5 c ¡g 0 0 « C 43</p>

<p>On Motion to Quash Service of Summons.</p>

<p>1. Banks and Banking (§ 77*) — Action by Receiver on Notes — Defenses— Agreement by Officers to Accept Substituted Securities-</p> <p>An agreement by the officers of a bank holding notes of defendant to accept from a corporation satisfactory securities in substitution for such notes constitutes no defense to an action on the notes by a receiver for the bank, where no substitute securities were presented by the corporation prior to the bank’s failure.</p> <p>[Ed. Note. — Por other cases, see Banks and Banking, Cent. Dig. § 176; Dec. Dig. §• 77.*</p> <p>Actions by and against receiver and agents of national banks, see note to McCartney v. Earle, 58 C. C..A. 398.]</p> <p>2. Judgment (§ 852*) — Stay of Proceedings for Enforcement — Equitable Set-Off.</p> <p>Where the defendant in an action at law in a federal court by the receiver of a bank claims an equitable set-off, proceedings for collection of the judgment recovered may properly be stayed to give him an opportunity to establish his claim in equity.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1564; Dec. Dig. § 852.*</p> <p>Restraining enforcement of judgment pending establishment or enforcement of set-off or counterclaim, see note to Frye-Brulin Co. v. Meyer, 58 C. C. A. 532.]</p>

<p>At Uaw. On motions for new trial and for judgment notwithstanding the verdict.</p>

<p>Judgment (§ 199*) — Notwithstanding Verdict — Effect of Evidence.</p> <p>Wiiere the question of the modification of a contract sued on depends upon written evidence and also upon conflicting parol testimony, the whole issue is one-for the jury, and the court cannot enter judgment notwithstanding the verdict.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 367; Dec. Dig. § 199.*]</p>

<p>In Equity. On exceptions to master’s report.</p>

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

<p>In Equity. On motion to amend record in a foreclosure suit.</p>

<p>Equity (§ 410*) — Findings of Master — Review on Exceptions-</p> <p>The finding of a special master adverse to a claim for damages, involving an issue of fact which depended upon the credibility of witnesses who testified before him, confirmed.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 410.*]</p>

<p>1. Quieting- Title (§ 35*) — Actions- -Comitkiiotion of Pleading.</p> <p>An allegation, in a bill or complaint to quiet title, that the plaintiff “has been and now is the owner seised in fee and entitled to the possession of” the premises in suit, by implication is an assertion of plaintiff's possession, and, so construed, is sufficient to support a suit in equity under the settled ruie of the federal courts.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 73, 74; Dec. Dig. § 35.*]</p> <p>2. RhMoval of Causes (§ 23*) — -Suits Removable — Statutory Action to Determine Title.</p> <p>An action brought in a state court under Rev. Codes Idaho, § 4538, which provides that “an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim,” is removable into a federal court where the citizenship and amount involved are such as to give that court jurisdiction. Such actions, while in all cases the same in form under the code procedure, may be essentially either equitable or legal, depending upon the facts in each particular case, which question must be determined by the court, whether state or federal, at some stage of the case, since, if legal, the right to trial by jury is guaranteed by the state Constitution, and must be awarded in the state as. in the federal court</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 23.*]</p> <p>3. Removal of Causes (§ 118*) — Proceedings—Repleading.</p> <p>The right of removal is not to be determined by the form of action in the state court, but by the essential character of the case, and, regardless of form, the cause is removable if the federal court has jurisdiction upon either its equity or law side, and it. may require the plaintiff to replead accordingly.</p> <p>[Ed. Note. — For other cases, see Removal of Canses, Cent. Dig. § 250; Dec. Dig. § 118.*]</p>

<p>1. Bankruptcy (§ 228*)' — Withholding Assets — Orders—Review.</p> <p>A bankrupt’s petition to review a referee’s order requiring payment of money alleged to be withheld from the trustee raises the same questions as would be involved in a proceeding on citation for contempt, and hence the case would be so treated.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. § 228.*]</p> <p>2. Bankruptcy (§ 136*) — Withheld Assets — Payment to Trustee — Order.</p> <p>A referee’s order requiring a bankrupt to pay money alleged to have been withheld from the trustee is unsustainable, unless it is proven that the money directed to be delivered to the trustee is a part of the bankrupt’s estate and that the bankrupt had it in his possession or under his control at the time the order of delivery is made, so that it may be enforced by contempt proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 235; Dee. Dig. § 136.*]</p> <p>3. Bankruptcy (§ 130*) — Wirrami) Assets — Delivery to Trustee — Order.</p> <p>Where the bankrupt testified at the first meeting of creditors that he had no money or property in his possession or control for which he had not accounted, a referee’s order directing that he pay 1o the trustee money alleged to have been withheld, based mainly on approximate estimates, inferences, and conjectures which raised a strong suspicion that assets had been withheld, but which did not constitute direct and conclusive proof thereof, was insufficient to sustain the order.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. $ 235; Dec. Dig. § 136.*]</p>

<p>In Bankruptcy. Petition to review an order of a referee.</p>

<p>1. Taxation (§ 799*) — Tax Title —Quieting Title — Equity Jubisdicton— Adequate Remedy at Law.</p> <p>A federal court of equity lias jurisdiction of a suit authorized by a statute of the state by an assignee of a mortgage who has foreclosed the same and received a certificate of purchase to the mortgaged property to cancel tax deeds thereon, and establish and quiet his own title, although out of possession which is constructively in defendants, where under the state law he cannot obtain the legal title until an action against the defendants would be barred by limitation, and has therefore no adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1585; Dec. Dig. § 799.*]</p> <p>2. Couets (§ 312*) — Jurisdiction of Federal Court —Suit by Assignee — “Suit to Recover Contents of Chose in Action.”</p> <p>Such a suit is not one to recover the contents of a chose in action within the meaning of the federal judiciary act (Act March 3, 1875, § 1, c. 137,18 Stat. 470 [U. S. Comp. St. 1901, p. 50S]), and the fact that the assignor of the mortgage could not have sued thereon in the federal court does not deprive it of jurisdiction therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 871;.Dec. Dig. § 312.*]</p> <p>3. Mortgages (§ 13*) — Validity—Title of Mortgagor.</p> <p>xVn outstanding tax deed to land does not affect the validity of a mortgage made thereon by the general owner and containing covenants of warranty where such mortgagor subsequently acquired the tax title.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 15; Dec. Dig. § 13.*]</p> <p>4. Judgment (§ 683*) — Persons Concluded — Decree Construed.</p> <p>A decree foreclosing a tax deed under St. Wis. 1898, §§ 1197-1210, which by its terms barred the defendants, including a mortgagee, and all persons claiming under them after the filing of the lis pendens, of any interest in the property, following the terms of section 1200, does not conclude one claiming under such mortgagee by an assignment made before the suit, but not recorded, who was not made a party, although the fact of the assignment was known to the plaintiff.</p> <p>[Fid. Note. — For other cases, see Judgment, Cent. Dig. §' 1206; Dec. Dig. § 0S3.*] • ■</p> <p>5. Ootjets ($ 371*) — Fkijekax. Oouuts — State Daws as Rui.es of Decision.</p> <p>Where a state statute requires the repayment oE all taxes with a certain rate of interest as a condition precedent to relief against a sale for taxes, such condition will bo enforced in a federal court.</p> <p>[Fid. Note. — For other cases, see Courts. Cent. Dig. § 972; Dec. Dig. § 371.*</p> <p>State laws as rules of decisions in federal courts, see note to Wilson y. Perrin, 11 C. G A. 71; Hill v. Hite, 29 C. C. A. 553.]</p>

<p>On Motion for Leave to Amend Petition for Removal.</p>

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

<p>1. Internal Revenue (§ 40*) — Misbranding- oe Liquors — Scope oe Statute.</p> <p>" Rev. St. § 3449 (Ü. S..Comp. St. 1901, p. 2277), making it a penal offense for any person to ship or remove any spirituous or fermented liquors or wines under any other than the proper name or brand by which they are known to the trade, is intended to prevent frauds on the revenue, and has no application to marks or brands placed on packages by government officers.</p> <p>[Ed. Note. — For other cases, see' Internal Revenue, Dec. Dig. §■ 40.*]</p> <p>2. Food (§ 7*) — Regulations eor Branding Liquors — Imitation Liquors— * ^KrECTIPIEBS ^</p> <p>Rev. St. § 3244 (U. S. Comp. St. '1907, p. 2096), in defining rectifiers, includes “every person who, without rectifying, purifying or refining distilled spirits, shall, by mixing such spirits, wine or other liquor with any materials manufacture any spurious imitation or compound liquors for sale under the name of whisky, brandy * * * or any other name.” Sett, that in view of such statutory recognition of the manufacture of “imitation whisky,” etc., and of the process of such manufacture, the regulation promulgated by the Commissioner of Internal Revenue May 5, 1908, for the guidance of officers and employes of. the department which directs that “alcohol, commercial alcohol or high wines which have been manipulated by the aid of artificial flavors, colors or extracts, or otherwise, so as to resemble some particular kind of potable spirits, will be marked with the name of such spirits preceded by the word ‘Imitation,’ as for example ‘Imitation Whisky,’ ” is a xiroper and reasonable regulation, having also in view the provisions of Food & Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1907, p. 928), notwithstanding the fact that such compounds may have been previously sold in the trade under the name of the liquors they imitate.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 7.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6022.]</p> <p>3. Words and Phrases — “Whiskt”—“Neutral Spirits.”</p> <p>Whisky, within the purview of Food & Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1907, p. 928), is the product of sound grain, distilled, at a low temperature so as to retain in the distillate the congeneric properties of the grain, which give to the liquor, when matured by aging in charred casks, its desirable potable character. Neutral spirits, wMdi are distilled at. a high temperature, may be made from different materials and do not contain such properties, and which are not rendered potable by aging, although reduced by water to potable strength and from which most of the fusel oil has been removed, are not whisky nor a like substance with whisky.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7115.]</p>

<p>1. Courts (§ 366*) — Federal Courts — Authority os' Decisions of State Courts.</p> <p>A decision by the Supreme Court of a state construing the Constitution or statutes of the state, rendered after a suit in a federal court, involving rights previously accrued or liabilities incurred under such Constitution or statutes, has been tried and submitted for decision, is not binding on such federal court in the case, but it is entitled to exercise its independent judgment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 950; Dec. Dig. § 366.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Eminent Domain (§ 2*) — Statutory Provisions — Constitutionality.</p> <p>The Iowa statute of 1904 (Acts 30th Gen. Assem. 1904, p. 61, c. 68), which authorizes county boards of supervisors to create drainage districts and to drain lands and change natural water courses to promote the public health, convenience and general welfare, and which, as amended in 1907 (Acts 32d Gen. Assem. 1907, p. 100, c. 95), provides that any railroad company whose right of way shall be crossed by any drainage ditch or channel shall not be allowed damages on'account of bridging the same, is not unconstitutional as taking the property of the railroad company without compensation, the state having the right in the exercise of its police powers, for the purposes expressed in such act, to impose expense or burdens on property without the allowance of an equivalent by way of damages.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Gent. Dig. §§ 4-8;. Dec. Dig. § 2.*]</p> <p>3. Drains (§ 82*) — Assessment of Benefits — Review of.</p> <p>Under the Iowa drainage law (Acts 30th Gen. Assem. 1904, p. 61, c. 68),. which authorizes the supervisors of a county to create drainage districts,, to construct ditches or change water courses, and to appoint commissioners to classify lands within such districts and assess the benefits, the findings of fact of such tribunals are conclusive, and their action can be reviewed by the courts only as to questions of law, and upon the question of the amount of benefits assessed, which by the express terms of the statute is reviewable on appeal.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 84-86; Dec. Dig. § 82.*]</p> <p>4. Drains (§ 69*) — Assessments of Benefits — Reasonableness of Amount.</p> <p>An assessment of abofit $10,000 against the property.of a railroad company for benefits accruing to such property from the construction by public authority of a new channel down the valley of a river to prevent overflows, in which valley the railroad company had approximately eight miles of track which had previously been ovérflowed in times of high-water and damaged and trafile delayed, considered, and, on the evidence, held not excessive.</p> <p>[Ed. Note. — For other cases, see Drains, Gent. Dig. § 75; Dec. Dig. § 69.*]></p>

Petition to cancel and set aside defendant’s certificate of naturalization as having been illegally or fraudulently procured, brought under authority of act of Congress approved June 29, 1906 (Act June 29, 1906‘, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. 1907, p. 419]). On May 4, 1901, the defendant received a certificate of naturalization from the District Court of the United States for the Eastern District of New York.

<p>ALIENS (§ 71%*) — NATURALIZATION—SUIT FOB CANCELLATION OF CERTIFICATE— Pleading.</p> <p>A suit for the cancellation of a certificate of naturalization under Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1907, p. 427), is a special proceeding, and, while the proof must be of the kind and force required to set aside a judgment, the pleadings and procedure may be molded in any way best calculated to meet the ends of justice.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 71%.*]</p>

<p>X. Bankruptcy (§ 100*) — Adjudication—Validity.</p> <p>Where a creditor did not offer to plead to the original bankruptcy petition, but expressed himself as willing that the adjudication should stand, only desiring a change of referee, the adjudication was not invalidated because it was made without the issuance of a subpoena and the lapse of time incident to awaiting the return day and five days thereafter.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 60, 142; Dec. Dig. § 100.*]</p> <p>8. Bankruptcy (§ 100*) — Voluntary Appearance — Waiver of Process.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 18, 30 Stat. 551 (U. S. Comp. St. 1901, p. 3429), providing for process, pleadings, etc., in bankruptcy, does not preclude a waiver of process and an adjudication on the same day the petition is filed on the bankrupt’s voluntary appearance and answer admitting bankruptcy.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 141; Dec. Dig. § 100.*]</p> <p>8. Bankruptcy (§ 222*) — -Reference—Particular Reference — Convenience of Parties.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 22, 30 Stat. 552 (ü. S. Comp. St. 3901, p. 3431), provides that the judge may refer the proceeding generally to any referee within the territorial jurisdiction of the court, if the convenience of the parties in interest will be served thereby, or for cause, or if the bankrupt does not do business, reside, or have his domicile in the district. Held, that the judge is thereby authorized in his discretion to refer the proceedings to any referee within the territorial jurisdiction of the court to subserve the convenience of the parties, none of the referees in the district being personally disqualified.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 222.*]</p>

<p>1. Aliens (§ 67*) — Naturalization—Cancellation oe Naturalization Certificate— Jurisdiction oe Courts.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1907, p. 427), which makes it the duty of district attorneys on affidavit showing good cause therefor to institute proceedings to cancel the certificate of naturalization of any naturalized citizen on the ground of fraud or on the ground that such certificate was illegally procured “in any court having jurisdiction to naturalizé aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit,” confers jurisdiction on such court to cancel a certificate, whether granted by that or any other court, state or federal.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 67.*]</p> <p>2. Aliens (§ 71%*) — Naturalization — Cancellation oe Certificate — Constitution ality oe Statute.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 15, 34 Stat 601 (U. S. Comp. St. Supp. 1907, p. 427), which authorizes a court to cancel a naturalization certificate although granted by another court, is constitutional.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 71%.*]</p> <p>8. Aliens (§ 71*) — Naturalization—Certificate Illegally Obtained.</p> <p>The continuous residence of an alien in the United States for five years, necessary for his ‘naturalization, is broken by a physical absence from the United States for seven months, during which time he obtains naturalization into another allegiance, and a certificate of naturalization into the United States granted under such circumstances is subject to cancellation either on the ground of fraud, if he misrepresented the facts, or on the ground that it was illegally procured.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 71.*]</p>

<p>In Bankruptcy/ On applications for discharge.</p>

<p>Aliens (§ 71%*) — Naturalization—Cancellation of Certificate — Illegal Procurement.</p> <p>A certificate of naturalization will not be canceled, as having been illegally procured, on the ground that the holder had not during the 5 years immediately preceding his application behaved as a man. of good-moral character, on a showing that prior to such 5-year period he had sev- ■ -eral times, and.once thereafter, been arrested.and convicted for drunkenness,'■where it is clearly shown that he reformed^ and had remained, sober- for .more than 4% years prior to his application.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 71%.*]</p>

<p>In Bankruptcy. On review of order of referee disallowing homestead exemption.</p>

The Evansville Contract Company, a corporation under the laws of the state of Indiana, entered into four several contracts with the United States for improvements to be made by the contract company in the Ohio, Big Sandy, and Congaree rivers.

The plaintiff in error brought suit to recover damages for personal injuries which he alleged he sustained at Lookout in the state of Wyoming on September 28, 1901, while being carried as a passenger on a freight train belonging to the defendant in error.

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

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

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

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon petition to revise and reverse an order made in the bankruptcy court, Southern district of New York. The order sought to be revised was entered upon notice; it denied a mo-rion to vacate a prior order of the same court, made ex parte, enjoining further proceedings for the enforcement of a contempt order of the City Court of the City of New York fining the bankrupt $1,759.16.</p>

<p>Bankruptcy (§ 391*) — Stay op Proceedings Againsi: Bankrupt — “Dih-CJIARGKABTJG DEBTS” — FINE FOR COVIEUP'I.</p> <p>A fine imposed on a bankrupt. although after the filing of the pelition against him. by a state court for a criminal contempt is not a dischargea-ble debt under Bankr. Act July 1, 1898, c. 513, § 17a, 30 Stat. 550 (ü. S. Comp. St. 1901, p. 3428), and proceedings for its enforcement will not be stayed by the court of bankruptcy, if the contempt have itself occurred prior to the filing of the petition.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. §| 019-054; Dec. Dig. § 391.*]</p>

<p>At Raw. On motion to strike off nonsuit.</p>

<p>Attorney and Client (§ 99*) — Receiving Payment or Judgment — Authority to Discharge Judgment.</p> <p>An attorney, who has recovered a money judgment in favor of his client, has general authority to receive money, or a certified check, which is the equivalent of money, in payment of the judgment, and to satisfy tlie same of record, but has no right, without express authority, to accept as part payment outstanding notes of his client held by the defendant; and where he does so, and satisfies the judgment, the satisfaction will to that extent be set aside on motion of the plaintiff and on return of such notes.</p> <p>[fid. Note. — For other cases, see Attorney and Client, Cent. Dig. §■§ 200, 201; Dec. Dig. § 99.*</p> <p>Authority of attorney after judgment, see note to Brown v. Arnold, G7 C. C. A. 130.]</p>

In Equity. With this case has been consolidated in this court the cases of the Nevada & California Railway Company, the San Pedro, Los Angeles & Salt Lake Railroad Company, the Eureka & Palisade Railway Company, the Tonopah & Goldfield Railroad Company, and the Virginia & Truckee Railway against the same defendants.

<p>1. Railroads (§ 134*) — Construction of Lease — Assumption by Lessee of Indebtedness of Lessor.</p> <p>A provision ot a lease of railroad property for a term of 999 years, to he maintained in good condition by the lessee, that the lessee should save the lessor harmless from suits of ‘‘any and all kinds whatsoever arising out. of, or in any manner appertaining 1o or connected with, the maintenance, operation or management ot said demised railways, premises.” etc., cannot he construed to render the lessee liable for ail indebtedness of the lessor for original construction of its road, then in suit and upon which a judgment was subsequently rendered, which would ignore the limitations therein and hold the lessee liable for all of the lessor’s indebtedness.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 134.*]</p> <p>2. Corporations (§ 145*) — Conveyance of Corporate Property — Rights of Creditors.</p> <p>A transferee of all of the property of a corporation takes and holds the same subject to the rights of creditors of the transferring corporation which as to the property are unaffected by the transfer, but the transferee does not become personally liable to such creditors except where it has disi>osed of, misapplied, or converted Ihe property in fraud of the rights of such creditors, in which case a court of equity may require an accounting.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 445.*]</p> <p>3. Railroads (§ 134*)--Leases — Liability of Lessee to Creditors of Lessor-Conversion of Assets.</p> <p>A railroad company leased for a long ferm the road and all of the property of another company, except material and supplies on hand which it purchased, and also acquired the ownership of all of the stock of the, lessor company. It covenanted to keep the property in good condition,' and to pay as rental the interest on an issue of bonds to be made by the lessor, a part of which were reserved to pay off a prior issue, and the remainder, comprising the greater part, were used by the lessee or for its benefit. The operation of the leased road was in fact profitable, and produced net earnings more than sufficient to pay the interest on the bonds; but the lessee so apportioned such earnings between its own and the leased line as to show a deficit, and, making default in the payment of interest, the mortgages were foreclosed and all of the property of the lessor sold. Held, that the conversion by the lessee of the bonds of the lessor and-the earnings from its property was in fraud of the rights of a general creditor of the lessor, who had an equitable lien upon all its property, and ren- • dered the lessee liable for a judgment recovered by him on his claim, which was less in amount than the property so converted.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 134.*]</p> <p>4. Railboads (§ 30*) — Reorganization of Railroad Company — Liability - for Debts oe Original Corporation.</p> <p>The Northern Pacific Railroad Company in 1888 leased all of the property of the Coeur d’Alene Railway & Navigation Company, consisting of a railroad line and equipment in Idaho, for 999 years, and also acquired the ownership of all its stock. It converted to its own use certain bonds of the lessor and net earnings of its property, which rendered it personally liable to'complainant, who was a general creditor of the lessor, recovering final judgment against it in 1897. A creditors’ suit and foreclosure suits were instituted against the Northern Pacific Railroad Company in 1893, which were consolidated and receivers appointed. Issues were joined, but no further action taken until 1896, when a reorganization scheme was perfected between a protective committee of the stockholders and the bondholders purs.uant to which defendant the Northern Pacific Railway Company was organized, in which stock was issued to stockholders of the old company in exchange for their stock on payment of a small bonus in cash. A consent decree of foreclosure was then entered, and pursuant to the plan the mortgaged property was brought in by the new company, to which a large amount of the bonds had been transferred. Subsequently a supplemental bill was filed in the suit on behalf of certain general creditors, including' the reorganized company, and on the same day a consent decree was entered under which unmortgaged lands of the mortgagor were sold and the proceeds distributed, the reorganized company receiving $1,200,000 as a dividend on account of unused bonds, etc. In the meantime the old company had made default in the payment of interest on the bonds of the Coeur d’Alene Railway & Navigation Company, and suits had been instituted to foreclose the mortgages in which the property of such' company was sold and bought in by the Northern Pacific Railway Company, which had become the owner of practically all of the bonds. Complainant was then a general creditor only, and was not made a party to ,any of such suits, nor did he have actual notice of the supplemental bill, filed in Wisconsin, under which the unmortgaged property of the Northern Pacific Railroad Company was sold and the proceeds distributed. Held, that he was not bound by any of such proceedings, which, in so far as they deprived his debtors, the Coeur d’Alene Railway & Navigation Company and the Northern Pacific Railroad Company, of property on which he had an equitable lien, were in fraud of his rights; that since the stockholders of the latter company continued in interest as stockholders of the reorganized company, and also as such received the benefit of the unmort-' gaged property of the old company to the extent of over .$1,000,000, the Northern Pacific Railway Company was liable in equity for the payment of his judgment.</p> <p>. [Ed. Note. — For other cases, see Railroads, Dec. Dig. § 30.*</p> <p>Liabilities enforceable against reorganized corporations, see note to Armour v. Bement’s Sons, 62 C. C. A. 147.</p> <p>Rights and liabilities of stockholders of railroads on consolidation, see note to Bonner v.-Terre Haute & T. R. Co., 81 C. C. A. 480.]</p> <p>5, Equity (§ 82*) — Laches—Delay Caused by Adverse Party.</p> <p>The claim of complainant against the original debtor having been in continuous litigation in various suits and proceedings for many years, during most of which time it was being contested by the Northern Pacific Railroad Company or its successor, the Northern Pacific Railway Company, through both trial and appellate courts, complainant is not chargeable with laches because nearly 20 years elapsed after the first action was instituted before lie commenced' suit to charge the latter company directly with liability, which suit he was not previously in a position to maintain.</p> <p>[Eel. Note. — -For other cases, see Equity, Cent. Big. § 23(1; Bee. Big. § 82.*]</p>

<p>Bankruptcy (§ 347*) — Pjropekty Sold tn Admiralty Proceedings — Liability for Costs and Expenses.</p> <p>An adjudication in bankruptcy operates in rom, and from the time it is entered the bankrupt’s property is in the custody of the court, and where a part of such property consists of vessels they cannot be thereafter taken from its custody by the marshal in admiralty proceedings without its consent ; and if by such consent they are so taken and sold in suits to enforce maritime liens, the proceeds are subject to the payment of the necessary cost incurred by the bankruptcy court in preserving the property before it was turned over and the costs of administration, which by Bankr. Act July 1, 1898, c. 541, § (¡ib (1), (3), 30 Stilt. 503 (U. S. Comp. St. 1901, p. 3447), were entitled to priority over the admiralty liens.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 347.*]</p>

<p>On Demurrers to Petition.</p>

<p>On Motion by Plaintiff for a New Trial.,</p>

The following is the opinion of A. R. Everett, Special Master: This proceeding is brought to determine the right to a certain fund deposited in bank pursuant to order by the receivers of the York… Held: “We consider it well settled that under circumstances similar to those in this case a banker making advances and retaining the title is the owner and not a mortgagee or pledgee.” See note, p. 20.

In'Bankruptcy. On review of decision of referee. This is a statutory review of an adjudication made by Hon. E. Q. Nye, referee in bankruptcy, whereby the claim of Jacob Baskin against the bankrupt corporation was allowed. The objections filed by the trustee to such claim are as follows: First. That no amount is due or owing from said bankrupt to said Jacob Baskin. Second.

<p>1. Patents (§ 286*) — Infringement—Damages Recoverable.</p> <p>Where the owner of a patent was not individually engaged in the manufacture or sale of the patented article, he cannot recover from an infringer as damages the profits of which a corporation licensee in which he was a stockholder was deprived by the infringement where such corporation is not a party to the suit, nor any part thereof, in the absence of proof of the terms of the license.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 453-456; Dec. Dig. § 286,*]</p> <p>2. Patents (§ 318*) — Infringement—Profits Recoverable.</p> <p>Where the claims of a patent infringed are for a combination of old elements, the invention consisting in the combination, the infringer is liable for all of the profits made by the use of such combination.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dee. Dig. § 318.*]</p> <p>3. Patents (§ 318*) — Infringement—Profits Recoverable.</p> <p>The profits recoverable from the user of an infringing machine include all of the profits made upon the product of such machine, where the in-fringer could have made no profits by the use of any other machine then known and open to his use.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p> <p>4.Patents (§ 318*) — Infringement—Profits Recoverable.</p> <p>That the profits made by an infringer were in part the result of an alleged unlawful agreement between competing manufacturers to maintain prices, to which agreement a corporation in which the owner of the patent is a stockholder was a party, does not lessen the liability of such infringer for the profits made by his infringment.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p>

<p>Salvage (§ 28*) — Rescue op Derelict — Naval Coal Barge — Amount op Compensation.</p> <p>An award of $4,000 made against the United States for the salvage of a derelict iron coal barge belonging to the navy and worth $18,000, which was picked up off the southern coast of Florida and towed to Jacksonville by the steamship Nordkyn, worth about $100,000, then on a voyage under a time charter at a monthly hire of $4,000, which was delayed 46 hours. The barge was in the track of vessels, and would probably have been picked up by some other vessel, but, being without lights, was a menace to navigation. The sea was somewhat rough, and the service attended with some danger, and the award included $350 for the towage of the barge by a tug up the St. Johns river.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §■§ 69, 71; Dec. Dig. § 28.*]</p>

<p>1. COT.T.TSTON (§ 95*) — ¡ÍTKAMER AND TUG WITH TOW — MUTUAL FAULT.</p> <p>After dark a tug started to tow a car float about a mile and a half down the Delaware river at Philadelphia from one pier to another. The float was alongside the tug on the starboard side, and the cars thereon obstructed the side lights and perhaps the towing lights of the tug from that side, and the float carried but a single white lantern placed on the rail at the starboard corner of the bow. Owing to the wind and ebb tide they missed the pier and swung to the eastward to make a turn, and when heading east the tug stopped, allowing the vessels to drift downstream broadside on, and while in such position the float was struck by a steamship coming upstream, which immediately proceeded without stopping or giving her name. Held, that the steamship was in fault because of her failure to stand by as required by Act Sept. 4, 1890, c. 875, § 1, 26 Stat. 425 (U. S. Comp. St. 1901, p. 2902), and prima facie responsible for the collision, and was also in fault for being on the wrong side of the river without giving any good reason therefor; that the tug was also in fault for placing herself and tow in a position where her lights were probably obscured from an approaching vessel by the cars on the float without sounding any warning of her presence to the approaching steamer, and for . not mounting a green light on the starboard bow of the tow as required by the Pilot Rules for Inland Waters (Ed. 1905) rule Í2, par. 3. •</p> <p>[Ed. Note. — For other cases, see Collision, Cent Dig. §§ 200-202; Dec. Dig. § 95.*]</p> <p>2. Collision (§ 75*) — Lights—Barge in Tow Alongside; — Pilot Rules.</p> <p>Pilot Rules for Inland Waters (Ed. 1905) rule 12, par. 3, applies to the Delaware river, and requires a car float in tow alongside of a tug on the starboard side, where the cars obscure the side lights of the tug, to carry a green light at night on her starboard bow.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 75.*]</p>

Action at Law. The declaration in this case is as follows: “The plaintiffs, * * * residents of the Ninth civil district of Washington county, Teun., sue the defendant, the National Home for Disabled Volunteer Soldiers, a corporation created under the laws of the United States of America, before the court by issuance of proper service of process, for that: “The plaintiffs are the owners of a certain tract of land consisting of about 17 acres, adjoining the lands of defendant…

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

<p>Removal on? Causes (§ 79*) — Time foe Taking Proceedings — Effect of Amendment of Plaintiff’s Petition.</p> <p>Where the original pleadings and record in a cause in a state court do not disclose a fact which entitled the defendant to remove the same, he may file a petition for removal after an amended pleading filed by plaintiff for the first time discloses such fact.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 135, 136, 139-160; Dec. Dig. § 79.*]</p>

<p>Master and Servant (§ 217*) — Master’s Liability for Injury to Servant-Assumption of Risk.</p> <p>A defect in a machine and the danger from it are not necessarily to be identified, and an employs may know of the one without appreciating the other; but where both were plainly visible and apparent, and the employs injured was of mature age and average intelligence, and familiar with the use of the machine, which was not complicated, and continued to use it without complaint, he must be conclusively presumed to have assumed the risk, and cannot recover from the master for the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-GOO; Dec. Dig. § 217.*]</p>

<p>Public Lands (§ 79*) — Railroad Grant — Exceptions prom Grant — Abandoned Homestead Entry.</p> <p>Land within the place limits of the grant to the Northern Pacific Railroad Company of May 31, 1870, which at such date, as shown by the books of the land office, was subject to a homestead entry, but which, entry had in fact been abandoned and was canceled prior to the definite location of the road, was vacant public land which passed under the grant.</p> <p>[Ed. Note. — Por other cases, see Public Lands, Cent. Dig. § 246; Dec. Dig. & 79.*]</p>

<p>1. Partnership (§ 199*) — Contracts—Action foe Breach— Name in Which Action must be Brought.</p> <p>A partner cannot maintain an action in his own name on a contract made by the partnership.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 362: Dec. Dig. § 199.*]</p> <p>2. Trial (§ 34*) — Pleadings—Necessity of Offering in Evidence.</p> <p>An affidavit of defense filed under the Pennsylvania practice cannot be used in evidence to prove admissions by defendant, unless offered in evidence the same as other written instruments.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 87;' Dec. Dig. § 34.*]</p>

<p>In Bankruptcy. On application for discharge.</p> <p>This is a motion for discharge of the bankrupt upon the certificate of the referee acting as special master. The petition was originally filed before the referee, and, upon coming up before the court, Joseph F. Duffy appeared as objecting creditor and subsequently filed specifications. No objection was taken to these specifications before the court, and the matter was referred to the referee as special master. Upon the hearing, the special master reported that the specifications failed to state any grounds for refusal of the discharge of the bankrupt, ihat they should be dismissed and the discharge granted. No testimony was taken upon the hearing. The specifications were as follows:</p> <p>“(1) The testimony taken before the referee, lion. Peter B. Olney, is contradicting in a material sense, in that said bankrupt willfully conceals the amount of his assets in his business.</p> <p>“(2) The alleged transaction between the bankrupt and one Elizabeth Filz-morris, the mother-in-law of the bankrupt, lie states that he borrowed ipl.OOt' from her in 1906; the record of the bank shows that the money was taken out of the bank on May 6, 1904.</p> <p>“(8) There are other discrepancies in bankrupt’s testimony as to dates, and as to the fact of ownership in the business in which he states that he was the owner, yet he admits that he was doing business under the name of McCarthy Bros., and had an account in bank under that name.</p> <p>“(4) That being the owner of said business and the license in the name oi Michael McCarthy is in itself sufficient to show that the bankrupt’s statements are untrue, under the laws of tills state, as no license is granted to any one unless they are the owners of the business.</p> <p>“(15) That said bankrupt further testified that Michael McCarthy had no interest in the business, did not particípale in the profits or losses, and that the bank account in the name of McCarthy Bros, was simply an accommodation.</p> <p>“(6) That on the whole the bankrupt’s testimony is a series of contradictions and glaring improbabilities, and the application for a discharge should be dismissed.”</p>

<p>In Bankruptcy. On petition to distribute fund.</p>

<p>In Equity. Suit for infringement of letters patent Nos. 339,998 and 446,151. On application for leave to take testimony.</p>

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

Appeals from the District Court of the United States for the Northern District of Ohio. Libelant, McCann, claims to have received personal injuries through negligence of the owners and master of the steamship William Payne, for which he seeks to recover $20,000. The Pioneer Steamship Company appeared and executed the usual bond as owner of the ship and filed answer.

<p>1. Towage (§ 14*) — Contracts—Assumption op Risks by Tow.</p> <p>A contract of towage, by which the tow assumes all risks, releases the1 tug from liability for her own negligence, resulting in injury to the tow.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 28; Dec. Dig. § 14.*]</p> <p>2. Towage (§ 14*) — Injury. to Tow — Liability on Tug.</p> <p>Where a contract for the'towage of a barge to Buffalo provided that the tow assumed all risks, and after reaching Buffalo, through some arrangement between the masters, the towage was continued for another port, and on the way the barge was wrecked, the tug cannot be held liable therefor, since, if the continuance of the voyage was against the orders of her owner, neither he nor his vessel is liable, because both masters knew that the contract extended to Buffalo only, while, if authorized, the contract must bo regarded as extended and applying in all its terms to the towage beyond Buffalo.</p> <p>[Ed. Note/ — For other eases, see Towage, Cent. Dig. § 28; Dee. Dig. § 14.*]</p> <p>3. Towage (§ 3*) — Contracts—Authority op Vessel to Represent Cargo.</p> <p>A contract for towage, made by the owners of a vessel, is binding on the owners of the cargo, which, as bailees, the owners of the vessel have authority to represent in all matters necessary to its transportation.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 3; Dec. Dig. § 3.*1</p> <p>4. Towage (5 14*) — Contract Exempting Owner prom Liability — Effect on Liability op Tug.</p> <p>While a towing tug may he liable in rein for negligence as a tort, even though the owner is not’ liable, yet, when the owner is exempted froiii liability by contract, his vessel is also exempted.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. g 28; Dec. Dig. § 14.*]</p> <p>Coxe, Circuit Judge, dissenting.</p>

Appellant filed a petition which her attorneys summarize as follows: “That Smith, Thorndike & Brown Company, a corporation, was duly declared a bankrupt June 24, 1907, and that for two years prior to May 25, 1907, one Ira B. Smith, the president of the said Smith, Thorndike & Brown Company, had also been the treasurer of the National Wholesale Grocers’ .Association of the United States; that the moneys of the Grocers’ Association coming into the hands of Mr. Smith as such…

<p>1. Deeds (§ 123*) — Construction—'“I-Ieies.”</p> <p>In a deed to the grantee and her heirs, a restriction upon alienation by the grantee is not alone sufficient to show clearly that the grantor used the term “heirs” as meaning “children,” or otherwise than according to ;its recognized legal meaning.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 410, 417; Dec. Dig. •§ 123.*]</p> <p>2. Deeds (§ 135*) — Cor steuction — Conveyance of Property in Trust por</p> <p>Wipe — Effect op Restriction on Alienation.</p> <p>A deed conveying property to trustees for the benefit of a married woman contained a provision that “it is understood * * * that the above-granted premises are conveyed as aforesaid for the sole and separate use and benefit of the said * * * and her heirs, and not to her assigns.” Held, that it was the evident purpose of the grantors to secure the property to the equitable grantee free from the marital rights and influence of her husband, and construed in the light of such purpose the restriction on alienation continued only during her coverture, and that after the death of her husband, and while she remained a widow, the trustees having conveyed the legal title to her, she had full power to sell and convey the property in fee simple.</p> <p>[Ed. Note. — For other cases, see Deeds, Dec. Dig. § 135.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>On writ of error to the Circuit Court for the Southern District of New Yoi'k to review a judgment entered upon the verdict of a jury, in an action of libel, for $15,000 in favor of the plaintiff.</p>

<p>Appeal from 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>

34. The action was originally brought against Charles A. Hanna, as receiver of the National Bank of North America in New York. After judgment and on November ]7, 1908, by consent of both parties, the action was continued in the name of John W. McKinnon, as agent for the shareholders of the said bank, and he was duly substituted as defendant in the place and stead of the said Hanna.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>On writ of error to review a judgment entered upon the verdict of' a jury in the Circuit Court for the Southern District of New York, for $8,271.46 in favor of George H. King, who was the plaintiff below. The decision on the previous appeal to this court is reported in 161 Eed. 91, 88 C. C. A. 255.</p>

<p>Sales (§ 173*) — Action by Seller fob Bkeacii oe Contract — Defenses.</p> <p>Under a contract for the sale of a stated number of car loads of potatoes, to be shipped between January 1st and February 28th following, wliore the sellers had the potatoes ready for shipment, and a few days before the expiration of the time for delivery, haying shipped all those ordered, requested the buyer to order or receive the remainder, but at his request, and on his assurance that he would receive the same later, delayed shipment until after the time stipulated in the contract had expired, the buyer cannot urge such delay as a bread! of the contract, which justified him in refusing to receive any further shipments.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 173.*]</p>

<p>Collision (§< 75*) — 'Tow—Contributory Fault op To.w — Failure to Carry Proper Lights.</p> <p>• Under rule 11 of the supervising inspectors of steam vessels, adopted pursuant to section 2 of the inland rules (Act June 7, 1897, c. 4, 30 Stat. 102 [U. S. Comp. St. 1901, p. 28841), the lights thereby required to be carried by a scow in tow are not solely to prevent collision with herself, but also to assist in indicating to approaching vessels the number and length of the tow and positions -of the vessels; and she may be charged with contributory fault for a collision with another vessel of the tow because of her failure to comply with such rules.</p> <p>[Ed. Note. — For other cases, see Collision, Dee. Dig. § 75.*]</p>

This cause comes here upon appeal from a decree of the District Court in favor of the owners of the lug boat Hiawatha against the canal boat Macy for damages resulting from a collision.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steam tug No. 32 solely responsible for the damages resulting from a collision between the coal barge West barms, in tow of No. 32, and a car float, which it is alleged was in tow of Transfer No. 18.

This is an action for personal injury. The plaintiff in error, the defendant below', is the owner of the Five and Ten Cent Store at Minneapolis. The store room is 44 feet wide and 127 feet deep, and extends east and west fronting on Nicollet avenue. It advertised a special sale of granite ware, which attracted a large crowd, and among them the plaintiff.

<p>Collision (§ 82*)— Steamship and Bark Meeting in Fog — Excessive Speed. A decree affirmed, holding a steamship solely in fault for a collision at sea, at night, in a dense fog, with a meeting bark, for excessive speed and inattention to the bark’s fog signals.</p> <p>[Ed. Note. — For other cases, soo Collision, Cent. Dig. §§ 170-174; Dec. Dig. § 82*</p> <p>Collision rules — Speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

The decree of the District Court was for $720.69 in favor of the libelants for damages sustained by them through the failure of the.steamship Gutenfels to deliver a quantity of shellac in New York.

<p>Bankruptcy (§ 310*) — Claims—Time foe Proving.</p> <p>A mortgagee, whose mortgage is foreclosed within a year after the mortgagor’s bankruptcy, is not entitled to prove his claim for a deficiency after the expiration of such year, having the right to prove it in the first instance as a secured claim, under Bankr. Act July 1, 189S, c. 541, §§■ 57a, 57e, 30 Stat. 500 (U. S. Comp. St. 1901, p. 3443).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 505; Dee. Dig. § 310.*]</p>

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

46. The controversy grows out of the litigation against Greene and Gtiynor in lire Northern District of Georgia. This action is upon a recognizance providing for the appearance of Greene in Georgia to answer any indictments which might be found against him. lie failed to appear, and the bond was duly estreated. There are no disputed facts. Both sides moved for a direction of a verdict.

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

<p>Hammer and Servant (§ 230*) — Master’s Liability foe Injury to Servant— Dangerous Premises — Contributory Negligence.</p> <p>Plaintiff was employed as a workman in the engine house of defendant railroad company, and while in front of the loclcer, in which he kept his tools, in the evening, ai'ler dark, fell into a drive wheel drop pit three feet from the locker and was injured. There were a number of open pits in the building, constructed in the usual manner, as he knew. The house was a new one, and the work of moving into it was still going on. He knew there was one pit near his locker, lmt had not observed the one into which he foil. He had a torch among his tools, which was lighted when he quit work, but he extinguished it and proceeded to the locker • in the dark. Held, that in doing so ho was guilty of contributory negligence, which precluded his recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 081, 083, 723-742; Dec. Dig. § 230.*]</p>

Appeals from the District Court of the United States for the Southern District of New York. This cause comes here upon cross-appeals from decrees of the District Court, Southern District of New York, holding Transfer No. 9 and the Calderon both in fault for a collision between the latter and a car float in tow of the former. The opinion of the District Judge will be found in 148 Fed. 456.

<p>1. Patents (§ 328*) — Pbess for Making Glass Insulatobs — Valid and Invalid Claims.</p> <p>The Kribs patent, No. 642,565, for improvements in presses for making screw insulators, although made up of old elements and of narrow scope, . was not anticipated and discloses invention; and claim 2, which is accurately expressive of the device is valid, although claim 1 is bad as being too broad, as well as claims 3, 6, 7, and 8, which are merely duplicates of 1, and 2, differentiated by elements necessarily implied or by simple mechanical expedients, which any one could supply. 'Claim 2 also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 34*) — Invention—Efforts of Other Inventors — Success of the Device.</p> <p>In judging of invention, in case of doubt, regard may be properly had to the efforts of other inventors in the same field, particularly where there are not a few both before and since, as well as to the difficulties to be overcome and the success of the device, where in the number and quality of the articles produced it has been marked.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 38; Dec. Dig. § 34.*]</p> <p>3. Patents (§ 2G*) — Combination and Aggregation — Successive Steps in Operation of Machine — Unitary Result.</p> <p>The tost as to whether a device is a patentable combination or a more aggregation of parts having no combined action is whether there is a new unitary result to the production of which the different elements c-o-act; and where this appears it is immaterial that there are different steps in the operation to which the different parts are successively addressed. It is not necessary that the' article manufactured shall be produced at a single stroke, in which all the elements are involved.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. | 20*]</p> <p>4. Patents (§ 91*) — Original Inventos — Minor Features.</p> <p>Upon conflicting claims of different parties to have been the originator of the invention, the question is whose was the main idea, and the fact that minor features may be attributable to others is not controlling. Evidence examined, and Kribs, and not Jordan or others at the Brook-field Works, where experiments were made, hold to be the original and first inventor of the device in suit.</p> <p>[Ed. Note.' — For other cases, see Patents, Cent. Dig. §§ 321-123; Dec. Dig. § 91.*]</p> <p>5. Patents (§ 112*) — Interference Proceedings — Effect oe in Subsequent Suit.</p> <p>Where, upon conflicting applications, interference proceedings have been declared, upon which the application of one party is dropped and the other decided to be the original and first inventor, and a patent issued to him, upon a subsequent suit for infringement, in which the same issue is raised, while the interference proceedings are not conclusive, it is for the losing party to overcome their effect.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 1G2-165; Dec. Dig. § 112.*]</p> <p>6. Patents (§ 17G*) — Claims—Omission of Essential Element — Duplication —“Movable Mold Adapted to Travel.”</p> <p>Where, in a press for making screw insulators, an essential element, to differentiate the prior art, is a rotary table or its equivalent to support the molds and carry them in a fixed and predetermined path to and from other parts of the machine, by which the process involved is carried out, the specification of a “movable mold adapted to travel,” although under some circumstances competent to imply a structural arrangement by which the mold is moved back and forth mechanically, in a predetermined way, between designated points, the specific means employed for doing so in the patent in suit being of the essence of the invention, a claim in which it is not made an element of the combination is invalid, as being too broad; or if, disregarding this, the omitted element is read into the claim as being implied, it will also be bad where, as here, it thereby duplicates another claim.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 251-252; Dec. Dig. § 170.*]</p> <p>7. Patents (§ 318*) — Infringements—Accounting for Profits for Use of Infringing Machine — Micasube of — Saving Thereby Over Use of Other Noninfringing Machines.</p> <p>In an accounting for profits for the use of an infringing machine, the patent not being for the product, but for the machine itself, the complainant is entitled merely to what was saved to the defendants by the use of the patented machine over others which were open to them lo use; that is to say, in the present instance, the difference between the cost of insulators as made by the machine of the patent and the cost as made by other machines which had gone into public use which it displaced. But where, according to the evidence, 'salable articles at the market prices could not be so made without loss, the whole profit on such arti-elcs made by tbe use of tlie infringing machines may properly be taken as having been so saved.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §■§ 56G-576; Dec. Dig. § 318.*] ■</p> <p>8. Patents (§ 318*) — Infringement—Accounting for Profits — Nonessential Features Not Used.</p> <p>Incidental, but nonessential, features not used, which do not enter into the profits made, although contributing possibly to the general efficiency of the patented machine, do not need to be considered in the result.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 5G6-576; Dec. Dig. § 318.*]</p> <p>'•9. Patents (§ 312*) — Accounting for Profits — Willful and Deliberate Infringement-Burden.</p> <p>Where an infringement is deliberate, with every means taken to avoid being responsible for it, if there’is any uncertainty on the subject of profits made, it is for the defendants, and not the complainant, to clear it up.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 545; Dec. Dig. § 312.*]</p> <p>10. Patents (§ 318*) — Accounting—Use of Infringing Machine as Distinguished from Infringing Sales — Profits from Single Distinguishing Noninfringing Feature.</p> <p>Although the difference between an infringing and a noninfringing machine may consist of a single feature, the profits recoverable upon an accounting for the use of such machine are not to be confined to the saving secured by this one feature. Infringement being of the whole machine, and the defendants having got the benefit, not of one feature, but of the whole, it is not to be divided around. It is not as though they were being charged for infringing sales, where the profits recoverable would properly be so limited.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 5G6-576; Dec. Dig. § 318.*]</p> <p>11. Patents (§ 226*) — Infringement to be Judged by State of Art at the Time.</p> <p>Infringement is to be judged by the state of the art when it took place, and not by something which has been brought in since, and is not, therefore, to be stated in terms of such subsequent device. Nor, in holding the defendants liable for profits on the use of the infringing machine, can it be said that they are made responsible for the improvements so subsequently introduced.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. § 357; Dec. Dig. § 220.*]</p> <p>12. Patents (§ 318*) — Infringement—Profits.</p> <p>While courts of equity will do nothing directly or indirectly to aid either party to realize or recover fruits of a transaction prohibited by law, it is immaterial, in the present case, that the defendants’ profits may have been enhanced by a combination in restraint of the trade in glass insulators, in violation of the Sherman anti-trust act, which 'combination was negotiated by Mr. Brookfield, the controlling stockholder in the Brookfield Glass Company, one of the participating parties; the illegal contract having been fully executed, and the complainants not having to set it up or rely upon it in order to recover, which is a test, the law under such circumstances leaving the parties where they are.</p> <p>■ [Ed. Note. — For other eases, see Patents, Dee. Dig. § 318.*]</p> <p>13. Patents (§ 318*) — Infringement—Profits.</p> <p>Neither could the complainants be made responsible for the illegal agreement charged, whatever be its character, or whatever stage it had reached; the Brookfield Glass Company being the party who got the benefit of it, and not Mr. Brookfield, the complainants’ testator, even though he may have assisted in bringing ii about.</p> <p>[Ed. Note. — For other cases, see Patents, I>ec. Dig. § 318.*]</p>

<p>1. Patents (§ 286*) — Suits fob Infringement — Damages Recoverable.</p> <p>The individual owner of a patent suing for its infringement for himself alone cannot recover damages sustained by reason of the infringement against a corporation licensee in which he is a stockholder, such damages being recoverable only in a suit by or on behalf of the corporation.</p> <p>[EdT Note. — For other cases, see Patents, Cent. Dig. §§■ 453-456; Dec. Dig. § 286.*]</p> <p>2. Patents (§§ 286, 310*) — Pleading (§ 236*) — Appeal and Error (§ 959*) — ■</p> <p>Suit for Infringement bt Owner — Damages to Nonexclusive Licensee —Pleadings—Amendment After Proofs — Discretion of Court.</p> <p>While, no doubt, the damages suffered by the nonexclusive licensee by sufferance of a patent, by reason of its infringement, must be recovered, if at all, by the owner of the patent prosecuting in behalf of such licenses, yet, where a bill apparently proceeds in the interest and for the benefit of the owner alone, nothing by way of damages can be claimed thereunder on such licensee’s account. There should be something in the bill to indicate it, both on the ground of estoppel and notice, if that is to be the case; and the refusal to allow an amendment to meet this, after the proofs are all in, while not necessarily too late on that account, is within the discretion of the court below, with which, under all the circumstances in this case, the appellate court will not interfere.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 455; Dec. Dig. §§■ 286, 310 ;* Pleading, Cent. Dig. § 601; Dec. Dig. § 236 ;* Appeal and Error, 'Cent. Dig. §§ 3825-3833; Dec. Dig. § 959.*]</p> <p>3. Patents (§ 310*) — Suits fob Infringement — Supplemental Bill to CHARGe Officers of Corporation.</p> <p>The granting of leave to the complainant in a suit for infringement against a corporation to file a supplemental bill to charge the officers of the corporation with personal liability for the profits recovered, on the ground that they fraudulently disposed of the property of the corporation to evade payment, is within the discretion of the court, and its action in refusing such leave will not be disturbed by the appellate court, complainant having a complete remedy by an. independent creditors’ bill.</p> <p>' [Ed. Note. — For other cases, see Patents, Dec. Dig. § 310.*]</p>

This cause comes here upon appeal from an order granting an injunction pendente lite in an infringement suit under patents No. 639,-669, of December 19, 1899, No. 679,553 of July 30, 1901, and No. ■706,326 of July 22, 1902, all granted to Charles A. Dearborn, and all relating to blind stitch sewing machines.

This appeal is from a decree of the Circuit Court, dismissing the appellant’s bill, alleging infringement of claim 1 of letters patent No. 585,465, for “means for operating washing machines,” issued to John Schroeder March 12, 1895. The opinion of the trial court on final hearing is reported in 159 Fed. 161, and a prior opinion oil motion for an interlocutory injunction appears in 149 Fed. 430.

<p>Patents (§ 328*) — Infringement—Means fob Operating Washing Machines.</p> <p>The Schroeder patent, No. ,"¡35,403, for moans for operating washing machines, held infringed.</p> <p>[Ed Note. — For other cases, see Patents, Dec. Dig. | 328.*]</p>

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

<p>1. Attests (§ 04*)- — Naturalization—Necessity of Previous Declaration of Intention — Widow of Soldier.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 4, subd. 6, 34 Stat. 598 (U. S. Comp. St. Supp. 3907, p. 422), which authorizes the naturalization of tite widow and minor children of an aiien, who dies after having declared his intention to become u citizen, but before ho was actually naturalized, without making such declaration, does not entitle the widow of an_ alien Who never declared his intention to naturalization without previously making such declaration because he was an honorably discharged soldier of the United States and as such entitled to naturalization without making any declaration, under Rev. St. § 2166 (U. S. Comp. St ]901, p. 3331).</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 128; Dec. Dig. § 64.*]</p> <p>2. Aliens (§ 07*) — Naturalization - - Cancellation of Certificate — Jurisdiction of Court.</p> <p>Act June 29, 1906, e. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Snpp. 1907, p. 427), confers jurisdiction on any court authorized io naturalize aliens in the district where a naturalized citizen resides to cancel the certificate of naturalization of such person, although granted by another court, where its issuance was illegal.</p> <p>[Ed. Note.- — For other cases, see Aliens, Dec. Dig. § 67.*]</p> <p>8. Aliens (§■ 05*) — Naturalization—Honorably Discharged Soldiers.</p> <p>Rev. St. § 2366 (It. S. Comp. St. 3901, p. 1383), which provides that honorably discharged soldiers of the United States may be admitted to citizenship without any previous declaration of intention, was not repealed by Natura Lizaiion Act June 29, 1906, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 1907, p. 419).</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 65.*]</p>

<p>Bankruptcy (§ 136*) — Order on Bankrupt to Turn Over Property— Sufficiency op Evidence.</p> <p>To justify an order requiring a bankrupt to turn over property, tbe proof that he has withheld property should be clear, and, where it depends upon the comparative estimates of the value of a stock of goods at different times, the discrepancy must be great and such as cannot be otherwise explained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

<p>1. Jury (§ 66*) — Drawing cut Jury in Federal Court — Drawing from Part oe District.</p> <p>While a federal court is given discretion by Rev. St. § 802 (U. S. Comp. St. 1901, p. 625), to direct the selection of jurors from any part of the district instead of the district at large, such power should only be exercised when there is some reason for it, and in a criminal prosecution against a corporation in the district including Chicago, which contains two-thirds of the population of the district, where the case involves in a large way questions of the transportation of commerce, a panel of jurors drawn almost entirely from without the city and composed largely of farmers will be set aside, as not best calculated to return a fair and intelligent verdict, and a panel drawn from the entire district.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 66.*]</p> <p>2. Carriers (§ 38*) — Interstate Commerce — Prosecution eor Receiving Concessions.</p> <p>In a prosecution against a shipper for receiving concessions from the published rates of a railroad company in violation of Elkins Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), which involves continuous shipments covering a number of years, there can be no greater number of offenses than there were payments of freight, in which concessions were granted and received, such receipt being the completion of the transaction which constitutes the offense.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p> <p>3. Carriers (§ 88*) — Prosecution for Accepting Berates — Variance.</p> <p>In an indictment charging a shipper with having received írom a railroad company a rebate or concession in violation of Elkins Act Fob. 19, 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), whereby oil was transported for it in interstate commerce at a less rate than that named in the tariffs published and filed by the railroad company, an averment that such company established, published, and filed a rate on oil between Chicago & St. Louis of 19% cents per hundred pounds is not sustained by proof that its schedules named only the rate over its own line from Chicago to East St. Louis at 18 cents, and that the tariff on connecting lines between East St. Louis and St. Louis was 1% cents.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Dec. Dig. § 38.*]</p> <p>4. Carriers (§ 38*) — Interstate Commerce — Prosecution eor Receiving Rebates — Publication or Tariffs.</p> <p>Upon the trial of an indictment against a shipper for a violation of El-kins Act Peb. 19, 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), by receiving from a railroad company a rebate or concession whereby its property was transported in interstate commerce at a less rate than that named in the tariffs published and filed by such railroad company, it is essential for the government to prove that such tariffs were posted, at least in the depot, station, or office of the railroad company where the shipments were received, as required by section 6 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]).</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. # 38.*]</p> <p>5. Carriers (§ 30*) — Interstate Commerce — Prosecution for Receiving Rebates — Established Rates.</p> <p>Freight rates required to be established by carriers, according to the provisions of section 6 of the interstate commerce law (Act Fel). 4, 1887, c. 104, 24 Stat. 880, as amended by Act March 2, 1889, c. 382, § 1, 25 Stat. 855 [U. S. Comp. St. 1901, p. 31561), are not established by tariff's naming class rates that do not contain a classification of freight, but merely refer to a classification published by other parties and subject to change by such parties. A departure by a shipper from such rates does not constitute an offense under Elkins Act Feb. 19. 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880).</p> <p>[Ed. Note.' — For other eases, see Carriers, Dec. Dig. § 30.*]</p>

<p>1. Pleading (§§ 192, 367*)--Answer— Sueeioienoy of Allegations.</p> <p>In an action to recover the purchase price of liquors, an allega tion in tho answer that such liquors were sold in violation of the laws of the state, and with intent on tho part of plaintiff to enable defendants to violate such laws, is not demurrable as stating a legal conclusion; the rem edy for any indofiniteness or uncertainty of statement being by motion and. not by demurrer.</p> <p>[Ed. Note. — For other cases, sec Pleading, Cent. Dig. §§ 409, 1173-1193; Dec. Dig. §§ 192, 307.*]</p> <p>2. Courts ($ 371*) — Jurisdiction of Federal Courts — Action to Recover Penalties Under State Statute.</p> <p>Code Iowa 1897, § 2382 et soq., forbids the sale of liquors in that state in violation of its provisions under severe penalties, to be recovered by Hie state by criminal prosecution. Section 2423 provides that all pay-meats made for liquors sold in violation of the statufe shall be held to have been received under a valid promise to repay the same on demand. Held, that an action to recover money so paid is not penal, but civil and remedial, and may be maintained in a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 973; Dec. Dig. § 871.*]</p>

<p>1. Raxleoads (§,254*) — Safety Appliance Act — Care of Carrier.</p> <p>The fact that a carrier had used reasonable care or diligence to provide and repair the appliances prescribed by the federal safety appliance act cannot be pleaded as a defense to an action for penalty under the act, because the question of reasonable care or diligence on the part of the carrier does not enter into such a controversy. The duties imposed by the act are absolute, and failure to perform them is a violation of, the act.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 254.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Railroads (§ 229*) — Safety Appliance Act — Couplers.</p> <p>The federal safety appliance act requires that each coupler must be operative of its own mechanism, irrespective of the condition of the appliances on other or adjacent cars.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. s 743; Dec. Dig. § 229.*]</p> <p>3. Railroads (§ 229*) — Safety Appliance Act — Construction.</p> <p>The safety appliance act is remedial in its character, enacted for the better protection of railroad employés and travelers by rail, and it should be construed by the courts, as far as its terms will admit, so as to carry out fully the intention of Congress.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>4 Railroads (§ 229*) — Safety Appliance Act — Empty Cars.</p> <p>An empty car hauled in a train with other cars carrying interstate commerce must be equipped with appliances required by law, and such appliances kept in repair to the same extent as those of a loaded car. It is just as dangerous to couple and uncouple empty cars as loaded cars.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>5. Railroads (§ 254*) — Safety Appliance Act — Action for Penalty.</p> <p>An action to recover a penalty under the safety appliance act is civil in its nature, and requires the plaintiff, in order to establish the allegations of the complaint, to produce a preponderance of evidence only.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. § 254.*]</p> <p>6. Railroads (§ 254*) — Safety Appliance Act — Evidence—Defective Couplers.</p> <p>The facts in this case, as affected by the foregoing principles of law, discussed and explained.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. ¡j 254.*]</p> <p>(Syllabus by the Court.)</p>

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

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

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

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United Stales for the Eastern District of New York.</p>

<p>In Equity. On exceptions to report of special master on claim of William W. Ladd, receiver of the New York City Railway Company.</p>