Volume 171 — Federal Reporter

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

<p>Principal and Agent (§ 103*) — Rights of Third Persons — Acts Done in’ Reliance of Statements by Agent — Implied Authority.</p> <p>Plaintiff sold a herd of 1,300 cattle to a third person, who gave a draft on defendant, a live stock commission company, for $2,000 to apply on the purchase price. This draft plaintiff took to a bank and requested the cashier to telephone defendant and ascertain whether it would pay the draft. On being told by the cashier that the draft was given for cattle which had been shipped, defendant agreed to and did pay the draft. Two days later, having been told by the bank that the draft would be paid, plaintiff made a partial delivery of the cattle, which were shipped to defendant by the purchaser, who gave another draft on defendant for over $10,000 in full payment therefor. Defendant received the cattle, but, on being advised of the second draft, refused to pay it or to surrender the cattle on demand to plaintiff without repayment of the $2,000. Defendant had no knowledge of the actual transaction, but supposed the draft to have been given in whole or part payment for cattle which had been shipped to it; nor had it any such relations with the purchaser as would authorize him to make the drafts. SelcL, that plaintiff was bound by the statements made by the bank as its agent, and chargeable with knowledge that defendant accepted and paid the first draft on such statements, and in reliance on the supposed shipment to it of the cattle, to which it had the right to look for security and repayment, and that the plaintiff was not entitled to recover the cattle without repayment of the amount of such draft.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 103.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

In 1897 the city of Akron and the Barber Asphalt Paving Company entered into a contract whereby the latter agreed, under a certain guaranty for a period of 10 years from the date of opening to traffic, to improve Howard street between Main and Federal (formerly Tallmadge) streets of that city with stone curbing, and paving with genuine Trinidad pitch lake asphalt.

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

This is an appeal from an order which enjoined the Guardian Trust Company, a corporation, from prosecuting three actions at law against the Kansas City Southern Bailway Company, another corporation, which the Trust Company had commenced on March 15, 1905, March 28, 1905, and July 2, 1906, in the circuit court of the county of Jackson, in the state of Missouri, to recover personal judgments against the Southern Company for about $545,-000.

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

• The decision below reversed a decision by the Board of United States General Appraisers (G. A. 6,536; T. D. 27,887). This is a Revenue case which came before the trial court on appeal from the Board of General Appraisers. Appellee’s mother-in-law, while traveling in Europe, purchased for him a number of pictures, and shipped them to this country without an invoice.

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The decision below reversed a decision by the Board of United States General Appraisers (G. A. 6180, T. D. 26,808), and reads as follows:</p> <p>HAZEL, District Judge. The articles in controversy consist of ornaments, loops, medallions, etc. When imported they are sewn together with silk thread for the purpose of saving the expense of separately mounting or carding them. The question now arises whether such articles are dutiable as trimmings at 60 per centum ad valorem under paragraph 390 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 3, Schedule L. 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]), or, as claimed by the importer, as manufactures of silk at 50 per centum ad valorem under paragraph 391.</p> <p>The articles are ornaments or decorations for garments, and not trimmings, as that term is understood in commercial parlance. The figures, scrolls, or designs are manufactured separately, are not regular In size, and doubtless were s1 itched together for convenience in handling and to avoid expense of separate carding. The individual pieces wore sewn together after their manufacture and after their importation such pieces were cut apart, and sewn upon cards, and sold to the trade by the dozen as ornaments. While such articles might be used as trimmings, they are usually used separately for the purpose of decorating portions of a dress or garment and to impart a distinctive effect. The importer testified that at first he purchased articles of this description abroad at a certain price per dozen, and later he purchased them by the yard. The stipulation in evidence shows the goods were imported in pieces six yards in length, and are invoiced and bought at a price per dozen yards.</p> <p>The government contends that, as the goods are bought by measure, they are dutiable as trimmings, and not as manufactures of silk. It is pointed out that in the case of Garrison, Wright & Co. v. United States (C. c.) 121 Fed. 149, it was held by Judge Wheeler that where articles analogous to those in question are bought and sold by the piece they are not dutiable as trimmings, which are usually bought and sold by linear measure. The principle of the case indicates, I think, that when the imported article, design, or ornament is intended for separate decorative effect, as distinguished from a continuous extension of ornamentation on a garment, such as trimmings, the former retains its specific designation of ornaments for tariff purposes. In the Garrison Case the court, speaking of the known distinction between trimmings and ornaments, says: “The dropping of the word ‘ornaments’ from the act of 1897 (U. S. Comp. St. 1901, p. 1020), does not indicate that what would be ornaments are to be trimmings, rather than manufactures or anything else, for which apt words are retained, or otherwise seem to show that the well-established distinction between trimmings and other articles was intended to be removed.”</p> <p>The exhibits in this case are separate and distinct articles, are not uniform in appearance or size, and are entirely independent pieces, appropriate for individual use and effect. The fact that such articles are bought in six-yard lengths to lessen the expense of carding and not at a fixed price for each separate ornament is not thought to require their classification as trimmings. I think the articles have been incorrectly assessed, and that they are dutiable at 50 per centum ad valorem under paragraph 391.</p> <p>The protest of the importer is sustained, and the decision of the Board of General Appraisers reversed.</p>

The court below affirmed a decision by the Board of United States General Appraisers (G. A. 6,686 [T. D. 28,592]), which approved the action of the collector of the port of New York in assessing certain importations for duty under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626). The opinion of the Circuit Court reads as follows: MARTIN, District Judge (orally).

<p>1. Railroads (§ 344*) — Crossing Accidents — Declaration—Negligence.</p> <p>A declaration for injuries at a railroad crossing, charging that defendant negligently, by and through its agents and employes, operated and managed one of its locomotive engines, so that it ran into a vehicle driven by plaintiff at a crossing, etc., causing the injury complained of, was not demurrable under the West Virginia practice for failure to particularize in what the negligence consisted.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §• 1107; Dec. Dig. § 344.*]</p> <p>2. Appeal and Error (§ 1078*) — Assignments oe Error — Review—Waiver.</p> <p>An assignment of error, abandoned in argument, will not be considered. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4236-4261; Dec. Dig. § 1078.*]</p> <p>3. Railroads (§ 347*) — Crossing—Accident—Absence oe Safeguards — Evidence.</p> <p>In an action for injuries at a railroad crossing, evidence of the absence of a gateman or electric bells at the crossing was not objectionable, because neither were required by' statute, since ordinary prudence might have required them in the absence of statutory requirement.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1131; Dec. Dig. § 347.*</p> <p>Duty to give warning signals at crossing, see note to Chesapeake & O. Ry. Co. v. Steele, .29 C. C. A. 90.]</p> <p>4. Appeal and Error (§ 215*) — Objections Not Made at Trial.</p> <p>Objections to the court’s charge cannot be first made on a writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1309; Dec. Dig. § 215 ;* Trial, Cent. Dig. §§ 683-685.]</p> <p>5. Appeal and Error (§ 977*) — Discretion—New Trial — Vacation—Verdict.</p> <p>A refusal to set aside a jury’s verdict and grant a new trial is discretionary, and not reviewable on writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3864; Dee. Dig. § 977.*]</p>

<p>1. Trial (§ 418*) — Demurrer to Evidence — Waiver.</p> <p>An exception to the ruling of the court denying defendant’s motion for judgment at the close of plaintiff’s case is waived by the introduction of evidence by defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 981; Dee. Dig. § 418.*]</p> <p>2. Appeal and Error (§ 849*) — Review.—Action Tried Without Jury.</p> <p>Where a jury is waived in an action at law in a federal court, and the cause submitted to the court, without any motion for judgment at the close of the evidence, and the court makes a general finding only, and no exceptions are taken to any rulings made during the progress of the trial, no question of law is presented by the record for the consideration of the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3363-3365; Dec. Dig. § 849.*]</p>

The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 6,663; T. D. 28,423), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion below reads as follows: PLATT, District. Judge (orally). The merchandise in question consists of pickled walnuts.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal from a decision of the Circuit Court, which affirmed the Board of General Appraisers in sustaining the action of the collector.</p>

<p>Customs Duties (p 47*) — Dutiable Value — Coverings—“Cases and Similar Coverings.”</p> <p>Customs Administrative Act .lime 10, 1890, c. 407, § 19, 20 Stat. 189 (U. S. Comp. St. 1901, p. 1921), providing that the value of “cases * * * and similar coverings” shall be added to the dutiable value of their contents, includes tin cans and stoneware receptacles.</p> <p>[Ed. Note — For other cases, see Customs Duties, Dec. Dig. § 47.*]</p>

<p>Bankruptcy (§ 350*) — Debts Entiieed to I’rigkity Under Laws oe State— “Debt” — “Debt Owing to State.”</p> <p>Money duo to the state of Minnesota for binding twine manufactured by the state in its penitentiary and sold is a “debt,” and a “debt owing to the stale,” within the meaning o£ Rev. Laws Minn. 1905, §§ 4618, 4633, which give priority in distributing the estates of insolvents to “debts owing to the United States and to the state,” and is also entitled to priority of payment from the estate of a bankrupt under Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 (U. S. Comp'. St. 1901, p. 3448), as one owing to a person “who by the laws of the state * * * is entitled to priority.”</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §■ 537; Dec. Dig. § 350.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1864-1886, vol. 8, p. 7628.J</p>

<p>Public Lands (§• 21*) — Making False Affidavit under Timber and Stone Act — Criminal Liability.</p> <p>An indictment will not lie under Rev. St. § 4746, as amended by Act July 7, 1898, c. 578, 30 Stat. 718 (U. S. Comp. St. 1901, p. 3279), for the making of a false affidavit under the provisions of Timber and Stone Act June 3, 1878, c. 151, § 2, 20 Stat. 89, as amended by Act Aug. 4, 1892, c. 375, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1545); and an illegal conviction based on such an indictment cannot be sustained under the general perjury statute (Rev. St. § 5392 [U. S. Comp. St. 1901, p. 3653]). •</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 21.*]</p>

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

<p>1. Patents (I 165*) — Tnfiíingement—Features Disclosed, but Not Claimed.</p> <p>A patentee is entitled to the benefit accruing from a characteristic: of his device which is clearly disclosed, although not specifically claimed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>2. Patents (§ 328*) — Infringement—TooituRegulating Device.</p> <p>The Angle patent, No. 626,476, for a tooth-regulating device, was not anticipated, and is valid; also held infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*]</p>

<p>1., Patents (§ 328*) — Validity—Infringement—Book Typewkitebs.</p> <p>The Hatch & Hillard patent, No. 620,125, for improvements in book typewriters, was not anticipated, and discloses invention. While not of a pioneer character, it covers a meritorious improvement in the art, and is entitled to be given a corresponding scope and a reasonable range of equivalents. As so construed, held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 328*). — Invention—Book Typewkitebs.</p> <p>The Halle patent, No. 621,660, for mechanism relating to book typewriters, claims 1, 4; 5, 7, 9, 19, and 64 are void for lack of patentable invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>3. Patents (§ 328*) — Infringement— Book Typewriters.</p> <p>The Fisher & Baganke patent, No. 632,681, for means for supporting the platen of book typewriters, conceding its validity, must be given a narrow construction, and as so construed held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>4. Patents (§• 328*) — Infringement—Book Typewriters.</p> <p>The Fisher patent. No. 6:52,680, for a book and machine support for book typewriters, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p> <p>5. Patents (§ 112*) — Suit for Infringement — Defenses—Scope of Decision of Patent Office.</p> <p>The defeated party in an interference proceeding in the Patent Office is not estopped to contest the validity of the patent granted to the successful party when sued for its infringement, although he took no appeal, and did not raise the question of patentability in such proceeding.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. §§ 162-165; Dec. Dig. § Ü2.*]</p> <p>6. Patents (§ 26*) — Invention—“Combination of Old Elements.”</p> <p>To constitute a patentable combination of old elements, they must cooperatively perform a different function from what they did before, unless it is shown that, in the combination as applied to a machine or device in its entirety, a new and useful result is produced.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 27-30; Dee. Dig. §• 26.*]</p> <p>7. Patents (§ 328*) — Invention—Book Typewriters.</p> <p>The Elliott patent. No. 665,774, for a book support for book typewriters. is void as for a mere aggregation of old elements, each of which performs its old function and without producing any new result.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>8. Patents (§ 328*) — Anticipation—Book Typewriters.</p> <p>The Smith patent, No. 669,355, for clamps for holding the typewriting work down on the platen in book typewriters, is void for anticipation.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>9. Patents (§ 328*) — Infringement—Work Gage for Book Typewriters.</p> <p>The Halle patent, No. 705,527, for a work gage attachment for book typewriters, held valid and infringed.</p> <p>[Ed. Note. — For otlier cases, sep Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*) — Validity and Inebingeiient — Pneumatic IIammeb.</p> <p>The Boyer patent, No. 667.863, for a pneumatic hammer having a length of stroke greater than the •length of the hammering piston, as to claims 1 to 9 and 32, is void for anticipation; also held not infringed, if conceded validity.</p> <p>TEd. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

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

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

<p>Time (§ 9*) — Computation —Days—Construction of Statute.</p> <p>In computing time under Rev. St. § 4887, as amended by Act March 3, 1903, c. 1019, 32 Stat. 1225 (U. S. Comp. St. Supp. 1907, p. 1003), permitting the filing of an application for a patent in this country within 12 months after the filing of an application for a patent for the same invention in a foreign country, the day of the application in the foreign country is excluded, and where the foreign application was filed on February 23d, an application filed in this country on February 23d of the following year was in time.</p> <p>[Ed. Note. — For other cases, see Time, Cent Dig. §§ 11-32; Dec. Dig. § 9.*]</p>

<p>In Equity. This, in effect, is an application for a rule or order limiting the master, on the accounting directed by the interlocutory decree, to proof of damages, etc., since the filing of the bill.</p>

<p>Patents (§ 326*) — Suit fob Infringement — Fine foe Violation of Injunction.</p> <p>A motion to set aside an order, entered three years previously, imposing a fine for contempt for violation of an injunction against infringement of a patent, denied.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 326.*]</p>

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

<p>1. Trade-Marks and Trade-Names (§ 3*) — Marks Subject to Appropriation-Descriptive Names.</p> <p>The word “Keepclean” as a name for toilet brushes is descriptive, and cannot be appropriated as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 6; Dec. Dig. § 3.*]</p> <p>2. Trade-Marks and Trade-Names (§§ 69, 75*) — Unfair Competition.</p> <p>To entitle a manufacturer to an injunction to prevent a competitor from imitating a name used by him to designate his goods which is descriptive, and therefore not a valid trade-mark, the imitation must be with fraudulent intent or such as is calculated to deceive the public.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 80, 86; Dec. Dig. §§ 69, 75.*]</p>

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

<p>1. Injunction (§ 114*) — Indispensable Parties — Suits Involving Validity of Contracts.</p> <p>To a suit by a long-distance telephone company having exclusive contracts with local companies binding the latter not to make or permit connections with their lines by any other long-distance company for a term of years, to enjoin other companies doing a long-distance business from making connections and interchanging business with such local companies in violation of their contracts with complainant, the local companies are indispensable parties, the validity of the alleged contracts between them and complainant and their rights thereunder being necessarily involved.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 211-218; Dec. Dig. § 114.*]</p> <p>2. Monopolies (§ 20*) — Combinations Prohibited — Contracts fob Exclusive Connections Between Telephone Companies.</p> <p>Under the public policy of the state of Ohio, as evidenced by the decisions of its courts and its general statutes relating to monopolies and contracts in restrain of trade, a contract between a local telephone company and a long-distance telephone company for a connection between their lines and the use of the local lines for the sending and receiving of long-distance messages, which binds the local company not to permit any similar connection by any other long-distance company for a term of 99 years, thus disabling it from giving its subscribers the benefit of competition in long-distance service and from extending the field of such service beyond the lines of the other party, Is void both as tending to create a monopoly and as denying to persons similarly situated the same privileges accorded to others. Conceding that a local company is not bound to permit any long-distance connection with its exchange, yet when it extends that right to one company it is under legal duty as a public service corporation to extend the same right to others.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20*</p> <p>Monopolistic contracts — Validity as affected by public policy, see note to Cravens v. Carter-Grume Co., 34 C. C. A. 486.]</p>

<p>1. Insurance (§• 421*) — Construction of Policy-Exceptions.</p> <p>In a policy insuring property against loss by fire except as otherwise provided, a clause excepting "loss caused directly or indirectly by invasion, insurrection, riot.” etc., must be construed as an exemption of the insurer from liability for a loss from fire caused by a riot; a loss otherwise than by fire being entirely outside the terms of the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1133; Dee. Dig. § 421.*]</p> <p>2. Insurance (§ 146*) — Construction of Contract.</p> <p>Insurance policies are contraéis by the terms of which both parties are bound, when clear and unambiguous.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 292; Dec. Dig. § 146.*]</p> <p>3. Insurance (§ 141*) — Exceptions in Policy — Waiver.</p> <p>The fact that an insurance agent, who issued policies to plaintiff, urged as an inducement to procure such insurance the very danger which afterward caused a loss, but which was within the exception contained in the policies, does not constitute a waiver by the insurer of such exception, where there was no agreement to that effect, and the policies were delivered and accepted with such clause retained.</p> <p>[Ed. Note.- — For other cases, see Insurance, Cent. Dig. § 255; Dec. Dig. § 141.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below is reported as G. A. 6,641 (T. D. 28,299), and reversed the assessment of duty by the collector of customs at the port of Philadelphia.

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

<p>1. Perpetuities (§ 8*)--Remoteness oe Gift to Charities — -Conditions.</p> <p>If a charitable gift is present in its terms, and is intended to take effect at once, without any intermediate estate, and has therefore vested, the rule against accumulation does not apply; but where it is contingent, or is not intended to vest until the happening of some inevitable future event, the test of the rule against remoteness is to be applied, and if the contingency or the happening of the condition precedent may by possibility be deferred beyond a life or lives in being and 21 years and a fraction thereafter, the limitation is bad under the rule, and a resulting trust will immediately arise in favor of the settlor, and he may reclaim the fund at any time.</p> <p>[ Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 57-66; Dec, Dig. § 8.*]</p> <p>2. Perpetuities (§ 8''-) — 'Validity oe Chabitajble Trust — Remoteness.</p> <p>A settlor deposited money in trust, to be “accumulated for the benefit of the state of Pennsylvania in the way and manner hereinafter mentioned.” The contract then provided that the trustee should invest the money and all its accumulations in the public stocks of the state whenever they could be purchased within a certain price, otherwise in government or other stocks, until the time should arrive when the fund so accumulated, together with any other sums which might be deposited with the trustee for a like purpose, should “be equal to (he debt at that tina owed by the state,” when it should he paid over lq the Treasurer of the state, “for the purpose of discharging the whole indebtedness of the stale, and for no other purpose whatsoever.” The amount deposited was $2,000, and the indebtedness of the state at that time was $40,000,000. Held, (hat the state took no vested interest in the fund, but was to receive the benefit of it only on a contingency which might never happen, or might happen at some indefinite time in the future, which might exceed the limitation of the rule against remoteness or accumulations, and that the trust was therefore void, and the fund recoverable by the personal representative of the settlor after his death, as held by the trustee on a resulting trust'for the benefit of the decedent.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§• 57-66; Dec. Dig. § 8.*]</p>

<p>Parties ($ -95*) — Misnomer of Defendant — Amendment of Record After Judgment.</p> <p>A ferry company, which, was a corporation of New Jersey, operated a line of excursion boats from Philadelphia under the assumed name of the “Washington Park Steamboat Company.” A passenger to whom it sold a ticket under such name was injured, and brought suit against the steamboat company. The attorney for the ferry company, who was also a director, accepted service for the defendant, and appeared and defended the case on the merits; the trial resulting in a judgment for the plaintiff. Neither plaintiff nor the court was informed of the true facts until after an attempt to collect the judgment failed, and plaintiff moved to amend the record by substituting the name of the ferry company as defendant. Held, that such company, which was the real defendant, having in fact appeared and defended the suit, and there being no such person as the defendant named, the court had power to permit such amendment, under Rev. St. §§ 948, 954 (U. S. Comp. St. 1901, pp. 695, 696), authorizing amendments to cure defects of form.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 164; Dec. Dig. S 95.*]</p>

<p>1. Shipping (§ 132*) — Cabeiage op Goods — Action por Damage to Cargo-Burden op Proof.</p> <p>A vessel which was new, properly constructed, and in all respects seaworthy cannot be held liable for leakage under bills of lading exempting her from loss on that account and from weather, heat, and pierils of the sea, unless it is affirmatively shown that there was negligence in the stowage which it should reasonably have been anticipated would cause such damage, and the libelant must make out a case showing the cause of injury with sufficient clearness before the burden is cast upon the vessel to show that the exemption is broad enough to cover the damage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 479-482; Dec. Dig. § 132.*]</p> <p>2. Shipping (§ 132*) — Carriage op Goods — Action por Damage to Cargo— Sufficiency op Proop.</p> <p>A new steel steamer carried for libelant a consignment of eocoanut oil in casks from Colombo, Ceylon, to New York in the winter, under bills of lading exempting her from liability for loss or damage caused by heat, leakage, or perils of the sea. A part of the consignment was stowed in the lower hold and a part on the bridge deck, and in the latter part there was an excessive leakage, but the cause of it was not definitely shown. Held that, under the evidence, there was not sufficient proof that the bridge deck, which appeared to be well ventilated, was an improper place for such cargo, to charge the master with negligence, or render the vessel liable for the loss.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 484; Dec. Dig. § 132.*]</p>

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

<p>1. Bankruptcy (§ 320*) — Provable Debts — Contingent Claims — Future Salary of Employ®.</p> <p>Bankr. Act July 1, 1898, c. 541, § 63a, 30 S'tat. 562 (ü. S. Comp. St. 1901, p. 3447), does not authorize the proving in bankruptcy of contingent debts or liabilities, nor is anything added in that respect by section 63b, providing for the liquidation of unliquidated demands, and on that ground an employs of a bankrupt whose contract of employment had not expired, but whose services were dispensed with by reason of the bankruptcy, cannot prove for salary beyond the date of the filing of the petition, which would he for a contingent liability.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 479; Dec. Dig. § 320.*]</p> <p>2. Bankruptcy (§ 318*) — Provable Debts — Effect of Adjudication in Bankruptcy — Contracts of Employment.</p> <p>An adjudication in involunlary bankruptcy against an employer terminates a contract of employment by operation of law, especially where the bankrupt is a partnership, and the employs has no claim for damages for breach of the contract provable against the estate in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 318.*]</p>

<p>1. Bankruptcy (§ 314*) — Cdatms—Determination—Time.</p> <p>The rights of creditors to share in the distribution of a bankrupt’s es-ta Le are fixed by the status of their claims at the beginning of the proceedings.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 470; Dec. Dig. § 314.*]</p> <p>2. Bankruptcy (§ 314*)— Corporations — Prkekkred Stock — Bonds—Exchange — Eduction.</p> <p>Where a corporation provided a bond issue with which to take up the preferred stock, and the holder of such stock, on being tendered bonds in the place thereof, refused the tender and demanded money, to which he was entitled under the retirement proceedings, after which the bonds so tendered were kept in the corporation safe in an envelope, with the stockholder’s name indorsed thereon, for more than a year, until the corporation became bankrupt, the stockholder was bound by his election, and could not then demand the bonds from the trustee in exchange for his stock.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p>

<p>1. Collision (§ 90*) — Vessels on Crossing Courser — Starboard-Hand Rule.</p> <p>The starboard-hand rule for vessels on crossing courses, requiring the one which has the other on her starboard hand to keep out of the way and the other to keep her course and speed, has Us usual application upon the open sea or upon a comparatively broad expanse of water, where each vessel is free to maneuver, and ordinarily cannot be applied to vessels in a narrow and winding channel.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 182, 183; Dec. Dig. | 90.*]</p> <p>2. Collision (§ 20*) — Rules—Duty or Privileged Vessel.</p> <p>A privileged vessel entitled under the rules 1o keep her course and speed as between her and another vessel approaching loses such privilege as soon as it appears tha1 the other vessel is failing in her duty to take such course as to keep out of the way, and is then required by Pilot Rules (Ed. 1905) p. 4, rule 3, to sound alarm signals, and, if the vessels are within half a mile of each other, to slow down, Until an understanding is reached.</p> <p>[Ed. Note. — For oilier cases, see Collision, Cent. Dig. § 17; Dec. Dig. § 20.*]</p> <p>3. Collision (§ 102*) — Steam Vessels on Conveeging Coueses — Mutual Faults.</p> <p>, The steam barge Florence, passing down the Delaware from Philadelphia at night, came into collision with the steamship Bennett, coming Up. The vessels saw each other when a mile and a half apart, and were on converging courses; the Florence having the Bennett on her starboard hand. The evidence as to the signals was conflicting; the Florence claiming to have blown two whistles, and starboarded, although she received no answer, and to have then again given the same signal, which was crossed, while the Bennett claimed to have given the first signal of one whistle, which was assented to, when she ported. Held, that both vessels were in fault accepting their own testimony; the Florence for attempting to cross ahead of the Bennett without an agreement, and the Bennett for being on the left-hand side of the channel, and both for continuing their speed after it. was apparent that they were not maneuvering in harmony.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 102.*]</p>

<p>A. S. Van Valkenburgh, U. S- Dist. Atty.</p>

<p>1. United States (§ 67*) — Contractors’ Bonds-Actions — Rights of Creditors Supplying Dabor and Materials.</p> <p>Act Pel). 24, 3.905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 3907, p. 709), requiring bonds given by contractors for government work to contain an additional obligation securing the payment of claims for labor and materials supplied to the contra dor, and providing for the enforcement of such obligation, has no relation to actions on such bonds by the United States, and, while labor and material creditors are authorized to intervene in such actions and have their claims adjudicated subject to the prior right of the United States, the government, in commencing such,an action, is not required to serve or publish notice to such claimants/nor to bring the suit in the district where the contract was to be performed; such provisions of the act being applicable only to suits brought thereunder.</p> <p>[Ed. Note. — For other eases, see United States, Gent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. United States (f 67*) — Contractors’ Bonds — Actions—Right of Creditors for Dabor and Materials to Intervene.</p> <p>Act Feb. 24, 1905, e. 778. 33 Stat. 811 (U. S. Comp. St. Supp. 3907. p. 709), which provides that, in an action by the United States on the bond of a contractor for public work, persons having claims for labor or materials supplied to such contractor may intervene and be made parties and have their claims adjudicated subject to the prior claim of the United States, gives them such right only subject 1:o the ordinary rules and practice governing interventions, and such creditor will not be allowed to intervene after the action has been dismissed as to the contractor for want of service and as between the plaintiff and the surety has been fully tried and submitted for decision.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dee. Dig. 8 67.*]</p>

On Demurrer to Indictment. The defendants, who are,Oneida Indians, are indicted under the law of 1897 (Act Jan. 30, 1897, c. 109, 29 Stat. 506), for carrying ardent spirits into the Indian Reservation. A demurrer has been interposed to the indictment.

<p>1. Corporations (§■ 99*) — Stock Issues — Issuance to Promoters — Consideration — Inadequacy.</p> <p>Plaintiff, who had assisted in devising a scheme to organize a co-operative sugar refining company, made an agreement that it should issue to him 750,000 shares of its capital stock at the par value of $100 each, in consideration of which he agreed thereafter to pay the company $10,-000,000, less $1,000,000 commissions, from the proceeds of shares of stock to be sold by him to retail grocers. The scheme, if carried out, would have resulted in obtaining $9,000,000 from the grocers in return for 207,-107 shares of stock, while plaintiff would receive 417,873 shares, and defendants, under the financial contract sued on, would receive 125,000 shares, in consideration of their providing $100,000, in installments of $10,000 each, to finance the company, to be repaid to them when $10,000,-000 had been received from stock sales. Plaintiff had no good will to transfer to the corporation, and there was no actual exchange of property for stock. Held, that the transfer of the stock by tbe corporation to plaintiff was invalid for want of sufficient consideration as a matter of law.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. § 99.*]</p> <p>2. Corporations (§ 99*) — Stock Issues — Consideration.</p> <p>Under Gen. St. Minn. 1894, § 3415, providing that corporations having capital stock divided into shares, unless specially authorized, shall not issue any shares for a less amount on each share than the par value of the share first issued, a scheme to dispose of the capital stock óf a Minnesota corporation, giving to each purchaser as a bonus an amount of stock equal to that subscribed and paid for, was invalid.</p> <p>[Ed. Note. — For other cases, seo Corporations, Cent. Dig. §§ 444-446; Dec. Dig. § 99.*]</p> <p>3. Contracts (§ 138*) — Validity—Public Policy -Sam op Corporate Stock.</p> <p>Where a corporation’s agreement to transfer 750,000 shares of its stock to plaintiff for promoter’s services was invalid for lack of consideration, and defendants, in return for 417,873 shares, contracted to finance the corporation to the extent of $100,000, to be paid in installments, to be repaid to defendants when $1,000,000 bad been received from the sales of the stock, such agreement was contrary to public policy, and hence an action could not bo maintained for defendant’s failure to perform.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]</p>

In Equity. The Nashville, Chattanooga & St. Louis Railway, and four other railroad companies, filed their bills in the Circuit Court of the United States against the Railroad Commission of Alabama and others, to enjoin the enforcement of certain statutory rates, and obtained a preliminary injunction.

In Equity. These cases are submitted on excéptions for impertinence to the first and second supplemental bills. The nature of the exceptions will readily be gathered from the opinion.

<p>1. Shipping- (§ 43*) — Charter—Readiness and Dispatch.</p> <p>Where a charter of a vessel contains no stipulation as to the day on which she shall load, she is required only to sail for the port of loading within a reasonable time and proceed with reasonable dispatch, and unavoidable delays due to perils of the seas do not release the charterer from his contract.</p> <p>fEd. Note. — For other cases, see Shipping, Cent. Dig. §§ 165-168; Dec. Dig. § 43.*]</p> <p>2. Shipping (§ 52*) — Oxiabteb—-Breach by Charterer.</p> <p>Where a schooner chartered to carry a cargo of ice from Boothbay, Me., was then in the harbor at Salem, Mass., where she was detained some days by ice, but left as soon as practicable and reported for loading two days thereafter, the refusal of the charterer to load her on .account of the delay was not justified and was a breach of the contract.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 211; Dec. Dig. § 52.*j</p> <p>3. Shipping (§ 58*) — Charter—Action for Breach — Damages.</p> <p>Where a charterer refused, without legal excuse, to load a schooner with a cargo of ico, and after some delay she obtained a part of a cargo-tor the same voyage at an advanced freight, the measure of her damages recoverable for breach of the first charter was the difference between what she would have earned thereunder and what she did earn under the second, plus damages for the additional time required to complete the second voyage after she would have completed the first; her expenses being practically the same while in port as on a voyage.</p> <p>LKd. Nole. — For other cases, seo Shipping, Dec. Dig. § 58.*]</p> <p>4. Garnishment (§ 130*) — Liability of Garnishee — Set-Off.</p> <p>A garnishee, which at the time of the service of process upon it had in its hands a sum of money belonging to respondents, but also had a contract with them to protect it against a claim of a third party which -it paid, held entitled to set off such amount against the sum in its hands and to be discharged on paying the remainder to the libelant.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. $ 255; Dec. Dig. § 130.*]</p>

<p>TTa-rtc«s Corpus (§ 16*)^-Army and Navy (§ 44*) — Detention Under Military Authority — Unlawful Enlistment of Minor.</p> <p>The fact that a person was enlisted in the navy before reaching the required age and in violation of the statute does not render his enlistment void, and he is subject to arrest and punishment for desertion or other infraction of the rules, and regulations of the navy, and cannot be discharged on writ of habeas corpus pending proceedings against him therefor.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. I 16; Dec. Dig. § 16 ;* Army and Navy, Cent. Dig. § 92; Dec. Dig. § 44.*]</p>

In Admiralty. Libel by the owner of the steamship Drumgeith to recover $753.36, deducted by the charterer from freight money for an alleged shortage of 415 cases of oil upon delivery of the cargo. The vessel was chartered to carry a full cargo of case oil from New York to Whampoa, China. At Whampoa the cargo was discharged into lighters provided by the charterer, under the direction of a Chinese stevedore and tally clerks engaged by the captain of the steamship-.

<p>Customs Duties (§ 44*) — Classification—Fkrko Alloys — “Unwrottght Metals.”</p> <p>Proof that the alloys ferro-chrome, ferro-tungsten, and forro-vanadium have been experimentally wrought does not sufficiently show them to be capable of being wrought to enable them to be classified as “unwrought metals” under Tariff Act July 24, 1897, e. 11, § 1, Schedule C, par. 183, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1645). Those alloys are dutiable by similitude as ferro-manganeso under paragraph 122, 30 Stat. 159 (U. S. Comp. St. 1901, p. 1686).</p> <p>[Ed. Note. — For other cases, seo Customs Duties, Dec. Dig. § 44.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7221.]</p>

<p>United States (§ 07*) — Contracts tor Public Works — Action Against Surety on Contractor’s Bond.</p> <p>Act Feb. 24, 1905, c. 778, 33 Slat. 811 (U. S. Comp. St. Supp. 1907, p. 709), amendatory of Act Aug. 13, 1891, c. 280, 28 Stat 278 (U. S. Comp. St. 1901, p. 2523), and relating to the right of persons furnishing labor or materials for the construction of public works to enforce payment therefor against the bonds of the contractors, is not retroactive, and the limitation therein does not apply to a cause of action which accrued before its passage ivy the default of the contractor, which gave the labor or material-man a right of action at once under the old statute, without reference to the time when he applied for and obtained from the department certified copies of the contract, and bond.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dee. Dig. | 67.*]</p>

<p>Habeas Corpus. Hearing on the merits. Writ discharged, and petitioner remanded.</p>

<p>Raii.eoads (§ 144*) — Consolidation—Ohiginal Stockholders — Rights.</p> <p>Where a railroad consolidation agreement provided for an exchange of the stock oí a consolidated company for the stock oí one of the constituent companies at the rate of two for one, and provided that any stockholder declining to exchange should continue to have the right to share proportionately in the earnings and assets of the party of the first part (the consolidated corporation), a stockholder declining to exchange was entitled to have the books of the consolidated company so kept as to show at all times the earnings of that part of the consolidated property which represented the portion contributed by such stockholder’s company, and to have money paid out of surplus earnings of such company to the benefit of other property either returned to such surplus or his share thereof distributed to him.</p> <p>I Ed. Note.-For other cases, see Railroads, Cent. Dig. §§'451-455; Dec. Dig. § 144.*</p> <p>Rights and liabilities of stockholders of railroads on consolidation, see note to Bonner v. Terre Haute & I. R. Co., 81 C. C. A. 480.)</p>

In Bankruptcy. The question involved in this case is whether, if upon the bankruptcy ot a broker he has in his possession a number of shares of stock which is less .in amount than tlxat which he is bound to deliver to his customers, such shares are to be regarded as a common fund to which, in equity, all such customers are entitled. In this case the claimant had purchased 100 shares of Bay State Gas stock through the bankrupt firm.

<p>In Bankruptcy.</p>

<p>1. Bankruptcy (5 228*) — Referee’s Finding — Conflicting Evidence.</p> <p>A referee’s finding, based on conflicting evidence, that certain collateral was pledged for specific debts, and not for all the bankrupt’s indebtedness to the pledgee, will not be set aside by the District Judge on certificate of the referee.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 228.*]</p> <p>2. Bankruptcy (§ 400*) — Exemption—Jurisdiction.</p> <p>A court of bankruptcy has no jurisdiction over a debtor’s exemption, except to set it aside.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 400.*]</p> <p>8. Bankruptcy (g 147*) — Judgment—Judgment Lien — Exemptions—Jurisdiction.</p> <p>Two judgments against a bankrupt contained waivers of the debtor’s exemption, and were liens on real estate which was sold for enough to pay the exemption and also the full amount due the judgment creditors. The bankrupt elected to take out of the real estate, and was entitled to $300 out of the proceeds of a sale thereof, and this amount, coming into the hands of a trustee, was attached by the judgment creditor in the state court to satisfy in part the uncollected balance due thereon. Held, that the trustee held the amount of such exemption as an individual, and not as a trustee, the fund being subject to the exclusive jurisdiction of the state court, independent, of the bankruptcy proceeding; and hence its attachment did not justify the trustee in deducting that amount from the sum which would otherwise have been paid to the holder of the judgments in a bankruptcy proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 147.*]</p> <p>4. Bankruptcy (§ 399*) — Waiver of Exemptions.</p> <p>Where a bankrupt elected to take his exemption out of the proceeds of a sale of real estate, the amount thereof while in the hands of the trustee was subject to seizure under a judgment containing a waiver of exemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 399.*]</p>

<p>Bankruptcy (§ 206*) — Assets—Liquor License — Sale.</p> <p>The terms on which a bankrupt’s liquor license was sold required a cash deposit, and provided that the balance should be deposited, with the receiver or trustee on or before a day set for the hearing of an application for transfer, and that the whole amount would be refunded to the purchaser unless the license was transferred, provided the license was not transferred because of purchaser’s disability, in which case the money should be forfeited. Held, that a transfer having been refused, specifically because the purchaser was not a proper person to hold a license, he was not entitled to a return of the earnest money paid.</p> <p>(Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 266.*]</p>

<p>1. Bankruptcy (§ 270*) — Liquor License— Sami — Transfer—Refusal by State Court.</p> <p>Where a bankrupt’s liquor license was sold subject to transfer, an inquiry by the bankruptcy court to ascertain the grounds on which the state court refused to transfer the license to the purchaser was not a collateral attack on the state court’s order.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 270.*]</p> <p>2. Bankruptcy (§■ 303*) — Sale of Assets — Liquor License — Conditions— Fraud — Burden of Proof.</p> <p>Where a bankrupt’s liquor license was sold subject to transfer, and transfer was refused, the burden of proof that such refusal was brought about by the purchaser's fraud was on those asserting fraud as a defense to the purchaser’s right to recover the amount paid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>3. Bankruptcy (§ 266*) — Assets — Sale — Conditions—Earnest Money — Return.</p> <p>Where a bankrupt’s liquor license was sold by the trustee subject to transfer by the court of quarter sessions, and the court refused a transfer without giving a reason for the refusal, the purchaser was entitled to a refund of the earnest money paid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 266.*]</p>

<p>1. Bankruptcy (§ 228*) — Decision op Referees — Review—Objections to Evidence.</p> <p>An objection to certain evidence, not made before the referee in bankruptcy, could not be considered on review of file decision on certificate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 228.*]</p> <p>2. Bankruptcy (§ 228*) — Referee’s Decision — Review.</p> <p>Decision of a referee in bankruptcy on a question of fact on conflicting evidence will not be disturbed on a certificate to the District Judge, except for plain mistake.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §■ 228.*]</p>

<p>In Bankruptcy. Exceptions to specifications of objection to discharge and motion to amend.</p>

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

<p>1. Abatement and Revival (§ 54*) — Actions That Survive — Action for Injuries — Death.</p> <p>Where death does not ensue from the injuries complained of, but from other causes, an action for the injuries survives.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §$ 255-278; Dec. Dig. §• 54.*]</p> <p>2. Death (§§ S2, 83*) — Elements op Liability — Pain and Suffering — Earning Capacity During Lifetime.</p> <p>In an action for wrongful death, alleged to have ensued in consequence-of decedent’s injuries, allegations of pain and suffering, and incapacity to earn wages during life, were irrelevant.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 106, 107; Dec. Dig. $•§ 82, 83.*</p> <p>Mental suffering as element of damages, see note to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 063.]</p> <p>S. Action (§ 48*) — Joinder—Action for Injuries and Death.</p> <p>Counts for injuries received by plaintiff’s intestate, from which death did not ensue, were properly joined with counts for wrongful death, alleging that the death resulted from the injuries.</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. § 48.*]</p>

<p>Removal of Causes (§ 102*) — Grounds for Remand — Want of Jurisdiction.</p> <p>No cause is removable unless it is concurrently cognizable by the state and federal courts, and if a defendant, having removed a cause, thereafter moves to dismiss because of lack of jurisdiction of the state court over the subject-matter, it is the duty of the federal court, at least where the question is in doubt, on seasonable motion therefor to remand the cause, that the state court may for itself determine the question of its jurisdiction.</p> <p>[I3d. Note. — For other cases, see Removal of Causes, Cent. Dig. § 220; Dec. Dig. § .102.*)</p>

<p>1. Phíádike (!§ 358, 359*) — Feivovouskbss—Sitam.</p> <p>Under Code Civ. Proc. N. Y. § 500. subd. 1, providing that an answer must contain a general or specific denial of each material allegation of the complaint controverted by defendant, or of any knowledge or information thereof sufficient to form a belief, a general denial of any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in.the complaint presents an issue which may not be stricken as frivolous or sham, though the answer may contain separate independent defenses which are inconsistent therewith.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1096-1128; Dec.'Dig. §§ 358, 359.*]</p> <p>2. Pleading (§ 378*) — Issues and Proof — Denial of Knowledge.</p> <p>Where an answer contained a general denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint and separate independent defenses of new matter, plaintiff was bound to prove the material nonadmitted facts alleged in the complaint.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1232-1234; Dec. Dig. § 378.*]</p> <p>8. Pleading (§ 121*) — -Information and Belief.</p> <p>A defendant, who has no information or knowledge of the appointment of a guardian ad litem, is not required to examine the records to ascertain the fact, but may plead denial of information sufficient to form a belief, and rely on plaintiff to prove such appointment.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 245-248; Dec. Dig. § 121.*]</p> <p>4. Taxation (§■ 593*) — Assessment—Burden of Proof.</p> <p>In a suit to recover an unpaid tax, the burden of attacking the assessment is on the defendant, he being presumed to have had notice of all proceedings, to establish it.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1215; Dec. Dig. § 593.*]</p> <p>5. Pleading (§ 359*) — Sham..</p> <p>Where there is no allegation in an answer that could be stricken, the denials thereof could not be treated as sham, though they were palpably untrue in relation to some of the material matters alleged in the complaint.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1120-1128; Dec. Dig. § 359.*]</p>

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

<p>1. Courts (§ 262*) — Federal Courts — Jurisdiction.</p> <p>The jurisdiction in equity in the federal courts is concurrent with that of law.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 797, 798; Dec. Dig. § 262.*]</p> <p>2. Account (§ 6*) — Proceedings in Relief — Equitable Jurisdiction.</p> <p>Where a bill for an account to ascertain the wages paid by defendant to its various employes to determine the correct basis of premium charge for employers’ liability insurance was open to the inference that the accounting was involved in complication, and that an examination of a large number of employes, and books and pay rolls, was necessary, equity had jurisdiction thereof.</p> <p>[Fid. Note.- — For other cases, see Account, Cent. Dig. §§ 17, 18; Dec. Dig. § 6.*]</p> <p>3. Equity (§ 148*) — Bill—Multifariousness.</p> <p>Under the rule that a bill is not mutifarious because of the joinder of two different matters which would prevent a multiplicity of suits and does not inconvenience the defendant or cause additional expenses, a bill by an employer’s liability company for an accounting to ascertain the wages paid by defendant, insured, to its various employes to determine the premium payable on certain liability policies, was not multifarious because it included causes of action of ’the same sort arising under different policies.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §■§ 341-367; Dec. Dig. § 148.*]</p> <p>4. Equity (§ 219*) —Laches—Demurrer.</p> <p>An objection that complainant’s right to relief was barred by laches need not be considered on demurrer.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 498; Dec. Dig. 219.*]</p> <p>5. Limitation oí Actions (§ 180*) — Objections—Demurrer.</p> <p>Where, in a suit for an accounting to compel a disclosure of defendant’s pay rolls as a basis of computation of premiums on employer's liability policies, complainant alleged that defendant had persistently declined to permit an examination of its boolcs, to which complainant was entitled under the policy contract, a claim that a part of complainant's claims was barred by limitations would not be considered on demurrer.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 670-675; Dec. Dig. § 180.*]</p> <p>6. Equity (§ 223*) — Bill—Demubber.</p> <p>In a suit for an accounting to determine the premium chargeable on certain employer’s liability policies, complainant being entitled to the relief demanded with reference to certain of the policies described in its bill, it was no objection thereto on demurrer that some of the policies disclosed that no additional premium was ascertainable.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 223.*]</p>

<p>. Iii Bankruptcy. On petition to review referee’s denial of priority to claim for wages.</p>

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

In Bankruptcy. This is a proceeding for the involuntary adjudication of the corporation.

<p>Customs Duties (§ 80*) — Reappraisement—Invalidity.</p> <p>Where it is not shown that the original appraisement by a local appraiser was incorrect, it is immaterial that a reappraisement held on appeal from such appraisement was invalid, if the value found was the same in each proceeding; because in such event the original appraised value would be taken as the dutiable value.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 196; Dec. Dig. § 80.*]</p>

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

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

<p>Bankruptcy (§ 408*) — Discharge—Grounds por Refusal — Obtaining Property by False Statements.</p> <p>Where it is clearly shown that a bankrupt obtained goods on credit by means of a statement in writing made for the purpose, and which contained one or more material statements which were false, and known by him to be so, it is the plain duty of the court to refuse him a discharge, under Bankr. Act July 1, 1898, c. 541, §• 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427) as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (ü. S. Comp. St. Supp. 1907, p. 1026).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-734; Dec. Dig. § 408.*]</p>

<p>Extradition (§ 13*) -Batl — Power of Court.</p> <p>A Circuit Court of the United States has power independently of statute to admit to bail in a case of foreign extradition pending examination, but such power shouid be exercised only under the most pressing circumstances. However, where the plaintiff in an action in New York involving his whole fortune was arrested on an extradition warrant from Canada the clay before the trial of his case was to begin, at the instance of the adverse party, the hardship is such that the court is justified in enlarging him on bail until the trial of his case can he completed.</p> <p>[Ed. Note. — For other cases, see Extradition, Dec. Dig. § 13.*]</p>

<p>Habeas Corpus.</p>

<p>Bankruptcy (§ 438*) — Discharge—Effect on Garnishment op Bankrupt’s Salary.</p> <p>Where a percentage of the salary of an employé of the city of New York was retained by the city to apply on an execution against him, pursuant to an order of a state court made under Code Civ. Proc. N. Y. § 1391, the discharge of such employé in bankruptcy releases' the lien of the execution upon such fund, so far as relates to salary earned after the adjudication in bankruptcy, where the judgment was a provable debt upon which the discharge operated.</p> <p>[Ed. Note. — Eor other cases, "see Bankruptcy, Dec. Dig. § 433.*]</p>

<p>Customs Duties (§ 41*) — Classification—Herbs in Alcohol — “Alcoholic Compounds.”</p> <p>The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 2, 30 Stat. 351 (U. S. Comp. St. 1901, p. 1627), for “alcoholic compounds*’/ does not include herbs immersed in alcohol. Such merchandise is'dutiable under section 6 of said act (30 Stat. 205 [U. S. Comp. St 1901, p. 1693]), relating to unenumerated unmanufactured articles. - ■ ■ ■ _</p> <p>[Ed. Note. — Eor other cases, see Customs Duties, Dec. Dig. § 41.*</p> <p>Eor other definitions, see Words and Phrases, vol. 1, pp. 295-296; vol. 8, p. 7570.]</p>

<p>Aliens (§ 61*) — Naturalization—Construction of Statute — “Free White Persons.”</p> <p>Qusere, whether the words “free white persons,” as used in the naturalization statutes, should be held to include all branches of the Aryan race, or limited to those races who were represented in this country at the time the first naturalization statute was enacted.</p> <p>[Bd. Note. — For other cases, see Aliens, Dec. Dig. § 61.*</p> <p>Citizenship under state and federal laws, see note to City of Minneapolis v. Reum, 6 C. C. A. 37.]</p>

<p>1. Injunction (§ 114*) — Parties -Joinder of Complainants.</p> <p>Two corporations, one of which is the successor in business of the other, may join in a bill to enjoin acts of defendant which will injure both complainants.</p> <p>TEd. Note. — For other cases, see Injunction, Cent. Dig. § 210: Dee. Dig. § H4.*J</p> <p>2. Equity (.§ 148*) — Pleading—Multifariousness.</p> <p>A bill to enjoin defendant from using a secret formula alleged to have been fraudulently obtained from complainant, and also from so dressing and naming the product as to constitute unfair competition, is not necessarily multifarious, where it alleges that the acts complained of are all parts of the same enterprise.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 341-367; Dec. Dig. § 148.*]</p>

In Equity. On demurrer to a bill for unfair competition by defendant in the sale of cigars not made in Key West in packages so marked and labeled as to indicate that they are made there.

<p>In Bankruptcy.</p>

<p>Bankruptcy (.§ 140*) — Preference—Possession.</p> <p>A bankrupt executed certain deeds, which he delivered as security for a loan under an agreement that, if the loan was not paid on May 15, 1909, the lender should have, between May 15th and June 1st, an option to cancel the notes and purchase the land. The deeds were recorded as deeds March 27, 15)09, and again with the agreement as mortgages on May 28th following. The record as deeds was made on the grantee’s paying an equity of $400 cash, on it becoming apparent that the bankrupt would not he able to meet the notes when due. He was adjudicated a bankrupt on June 7, 1909. I-Teld, that since, if the arrangement to exercise the option and pay a cash consideration constituted a preference, the relief of the bankrupt’s trustee must he by action, during pendency thereof, the grantee was entitled to possession and to collect the rents and profits.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. 6 140.*]</p>

<p>Aliens (§ 61*) — Naturalization—Persons Capable — Half-Breeds—'‘‘White Person.”</p> <p>Petitioner was born on a British schooner in tko Yellow Sea. Ilis father was an Englishman, and his mother half Chinese and half Japanese, their marriage having occurred at Shanghai under the British flag. Petitioner enlisted in the United States navy off the coast of China in "1882, and first came to the United States August 5, .1892. He had served honorably since his enlistment until his application for citizenship, when he was 43 years old. Held, that petitioner was not a free “white person,” and was therefore not enlitled to naturalization, under Ildv. St. § 2169 (U. S. Comp. St. 1901, p. 1333), providing that the act shall apply to aliens being free white persons and those of African nativity and descent, and Act Cong. ‘May 6, 1882, c. 126, § 14, 22 Stat. 61 (U. S. Comp. St. 1901, p. 1333), prohibiting the admission of Chinese to citizenship.</p> <p>[Eld. Note. — For-other eases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig- § 61.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7446, 7447.</p> <p>Citizenship of Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee' Sing. v. United States, 35 C. C. A. 332.]</p>

This is an action to recover $22,156 paid by the plaintiff under protest as a tax claimed by the defendant, a collector of internal revenue, to be. due under War Revenue Act June 13, 1898, c. 448, § 2, 30 Stat. 448 (U. S. Comp. St. 1901, p. 2286). The relevant parts of the section read as follows: “Sec. 2.

<p>On Application for Review oE a Decision by the Board of United States General Appraisers.</p> <p>The decision of the Board of General Appraisers, which is reported as G. A. 6,208 (T. D. 26,856), sustained the protests of F. C. Perry and others against the assessment of duty by the collector of customs at the port of Boston. The Board’s opinion reads as follows:</p> <p>FISCIIER. General Appraiser. These protests cover a very large number of imporfations of mackerel, halibut, and salmon, packed in ice for preservation and contained Iu packages each of which is of a capacity not less than one half barrel. Duty was assessed thereon at the rate of 1 cent per pound under the last: subdivision of Tariff Act July 24. 1897, c. It, § 1. Schedule G, par. 261, 30 Stat. 171 (IT. S. Comp. St. 1901, p. 1651), and the merchandise Is claimed to he dutiable properly at fhroe-fourths of 1 cent, per pound under the first subdivision of said paragraph.</p> <p>Paragraph 261 reads as follows:</p> <p>“261. Fish, fresh, smoked, dried, salted, pickled, frozen, packed in ice, or otherwise prepared for preservation, not specially provided for in this act, three-fourths of one cent per pound; fish, skinned or boned, one and one-fourth cents per pound: mackerel, halibut or salmon, fresh, jnckled or salted, one cent per pound.”</p> <p>It is obvious that the first subdivision of this paragraph is broad enough to cover all fish (except, perhaps, living) in every conceivable condition, fresh or preserved, and that, if the lawmakers had omitted all other reference to fish in the tariff, all denizens of the "deep would, be dutiable under said subdivision. It follows that, unless a particular kind of fish, whether considered with reference to its species or its condition or manner of preservation, is specifically provided for in other portions of the fish schedule, it is dutiable under the opening clause of paragraph 261.</p> <p>With these considerations in mind we shall apply ourselves to the question before us. There is here no dispute as to the facts. The-fish are mackerel, halibut, and salmon, respectively. They are fresh, in the sense of not having been dried, smoked, salted, or pickled, and they are imported packed in ice. The question to be determined, then, is one of law — whether or not the provision for “mackerel, halibut or salmon, fresh,” includes such varieties of fish when imported frozen or packed in ice. It seems to us that, by the terms of the paragraph itself, this query must be answered in the negative. Congress, by separately enumerating fish fresh, fish frozen, and fish packed in ice. lots differentiated the three classes of fish; and that this is no mere redundancy of terms, but, on the contrary, is a legislative recognition of a distinction that is well attested by decisions of the courts and the Hoard, by rulings of the Treasury Department, and by the testimony of numerous trade witnesses in other hearings before the Board, is indisputable.</p> <p>We are referred to the ease of Cross v. Seeberger (O. C.) 30 Fed. 427, as an authority adverse to the claim of the protestants in the cases at bar; but on examination and full consideration of it we do not find that this is accurate. That case arose under Tariff Act March 3, 1883, c. 121, 22 Stat. 488,«which contained a provision for fresh fish, but none for frozen fish or fish packed in ice, and it held that an importation of frozen fish in bulk was free of duty under paragraph 699 of that act as “fish, fresh, for immediate consumption”; that is, under a statute which contained no provision for frozen fish, it was held that the provision therein for fresh fish was broad enough to cover frozen fish — a conclusion that is obviously sound, because the only other styles of fish mentioned were those pickled, salted, dried, etc. When, however, a subsequent statute makes a denominative provision for frozen fish, it follows as a logical consequence, and by an elementary rule of construction that it is thereby removed from the operation of the broader provision and is dutiable under its specific enumeration,- which is the precise condition we have in the tariff act of 1897, under which these importations were made.</p> <p>We hold, therefore, that mackerel, salmon, and halibut, when frozen or packed in ice, are not dutiable as “mackerel, salmon or halibut, fresh,” but fall within the terms of the opening clause of paragraph 261, and are dutiable at three-fourths of 1 cent per pound, as claimed. The protests are accordingly sustained, and the decision of the collector reversed in each ease.</p> <p>This conclusion is in exact accord with that announced by the Board in G. A. 5,727 (T. D. 25,430), on frozen halibut. It is true that in G. A. 6,127 (T. D. 26,646), a ruling of a different tenor was made; but it appears that in that case the fish had been assessed at 30 per cent, ad valorem under; paragraph 2.58, and the only claim of the protest was at 1 cent per pound under paragraph 261, no-mention being made of the three-fourths of a cent per pound. ■The point at issue here was not squarely presented in that case, and the Board which made the decision inadvertently overlooked the previous ruling of G.</p> <p>A. 5,727. G. A. 6,127 may be considered as overruled.</p> <p>Precisely in point is G. A. 5,726 (T. D. 25,429) where the Board overruled a claim that certain smoked herring upon which duty had been assessed as smoked fish were properly dutiable as “herrings, pickled or salted,” on the ground that herrings are salted before they are smoked, and that consequently the provision for salted herring is sufficiently broad to include smoked herring. The Board negatived this contention, and held that “smoked,” having a narrower signification than “salted,” was a more specific provision. On appeal this decision was affirmed in Mattlage v. U. S. (O. C.) 139 Fed. 704, T. D. 26,037.</p>

<p>1. Sales (§ 202*) — Tránseme of Title as Between Parties — Waiver or Default in Payment of Price on Delivery.</p> <p>Where personal property sold, to he paid for on delivery in cash and notes, was delivered and held and used by the purchaser for five months before any settlement was made, during which time the seller was urging pavment but at no time questioned the sale, the legal title as well as possession of the property passed to the purchaser, any right the .seller may have had to reclaim it having been waived and lost by Ms failure to exercise it promptly on the purchaser’s default.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. .Dig. § 545; Dec. Dig. § 202.*]</p> <p>2. Bailment (is 8*) — Estoppel to Deny Title of Bailor.</p> <p>While the principle of estoppel which precludes a tenant from disputing his landlord's title applies as well to leases or bailments for hire of personal property, it applies only in either case where the person sought to be estopped obtained possession of the property under and h.v virtue of the contract of lease or bailment, and no estoppel arises where he was already in possession when the contract was made and asserts ownership in himself prior to and independently of such contract.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. § 32; Dec. Dig. § 8.*]</p> <p>3. Sales (§ 450*) — Conditional Sale — Distinguished from Lease.</p> <p>Where personal property sold to lie settled for on delivery was delivered without settlement, and retained and used, by the purchaser until it became vested with the legal title, an instrument ihen executed between the parties, without change of possession, by which the seller purported to lease the property to the purchaser for three months in consideration of payments aggregating the amount of the original purchase price with interest, covenanting on such payments being made to execute a bill of sale of the property, and also that in case it retook the property on default it should sell the same and pay over any surplus proceeds to the lessee, was not in fact a lease, although so denominated and one in form, but in effect a contract ol' conditional sale, which was void because title had already passed.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1327-1331 ; Dec. Dig. § 456.*</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 80 C. C. A. 448.]</p> <p>4. Corporations (§ 560*) — Receivers—Title or Rights Acquired — Succession to Rights of Creditors.</p> <p>A receiver l’or an insolvent corporation, appointed at suit of general creditors, has the rights of an attaching or levying creditor as to property of the corporation of which he takes possession, and his possession defeats a secret lien on any of the property, which was purely equitable, although it may have been enforceable as between the parties, and especially where such lien was given to one who was at the time a general creditor, and to enforce it would give him an inequitable preference over other general creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. § 500.*]</p>

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

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

These suits involve conflicting claims to two 80-acre allotments of land on the White Earth Indian reservation under the general allotment act (Act Feb. 8, 1887, c. 119, 24 Stat. 388), the Nelson act (Act Jan. 34, 1889, c. 24, 25 Stat. 642), and the Steenerson act (Act April 28, 1904, c. 1780, 33 Stat. 539).

<p>1. Wills (§ 433*) - ■ Documentary Evidence--Exemplification op Wílls — South Cakolina Statute.</p> <p>Tinder Civ. Code S. C. 1902, § 2994, which provides that “in all actions the exemplifications of wills under the hand of the judge of probate and the seal of the court in which such will may have been admitted to probate * * * shall be admissible in evidence in any of the courts of this state,” a copy of a will, unaccompanied by a certificate signed and sealed, is not an exemplification of the will, and is not admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Wills, Dec. Dig. § 433 ;* Evidence, Cent. Dig. § 1321.1</p> <p>% Wills (§ 433*) — Doouiientaby Evidence — Exemplification of Will — Copy of Recokd.</p> <p>Act S. C. Dec. 20, 1866 (13 St. at Barge, Ex. Sess. p. 384) § 7, provides that “in all cases in which any instrument in writing is required by law to be recorded or registered and sucb record or registry, together w'th the original, is lost or destroyed, but a copy thereof, certified to under the hand of a proper officer, has been preserved, sucb certified copy shall be recorded or registered and be in the room and stead o-f the original.” Section 4 of the same act provides for obtaining an order for such substitution from the court or judge In chambers on service of notice. JTeld, that the entry on the records of a probate court of what purported to be a copy of a will, accompanied by a certificate signed by a former judge, but not bearing the seal of the court, nor showing that such will had ever been admitted to probate, and without any record of any order of a court or judge authorizing such recording, was not such a substitution as authorized by the statute, and that a certified copy of such record was not an exemplified copy of the will admissible in court as an evidence of title to real estate, under Civ. Code S. C. 1902, § 2994; there being, furthermore, no record of the probate of the original of such will.</p> <p>[Ed. Note. — For other cases, see Wills, Dec. Dig. § 433 ;* Evidence, Cent. Dig. § 1321.]</p> <p>3. Evidence (§ 181*) — Secondary Evidence — Grounds for Admission.</p> <p>What purports to be a copy of a will is not admissible as secondary evidence of its contents, without proof of the due execution and existence of the original and that it'has been lost or destroyed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 600; Dec. Dig. § 181.*]</p>

This action was brought by the plaintiff below, being also the plaintiff in error, to recover the purchase price of a threshing outfit consisting of an engine, separator, feeder, and some other minor parts. The price was $2,150 and a second-hand machine, which the jury found to he worth $800. The defendant signed an order for tins machinery, upon a printed form prepared by ilie plaintiff.

<p>Courts (§ 353*) —Manner of Sale by Federal Courts — Construction ot Statute.</p> <p>Act March 3, 1893. c. 225, 27 Stat. 751 (U. S. Comp. St. 1901, p. 710), prescribing the manner in which “all real estate or any interest in land sold under any order or decree of any United States court, shall be sold,” etc., is mandatory and devests such courts of the discretion which theretofore existed of making sales otherwise than by public auction as therein prescribed, and a sale otherwise made is illegal and void and does not bind the purchaser even after confirmation, who cannot be required to pay for and accept a title which might be subsequently impeached for palpable legal defect in the proceeding itself under which the sale was made.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 935; Dec. Dig. S 355.*]</p>

The defendant in error filed its complaint against the plaintiff in error, a common carrier and lessee of railroads and lines of roads, alleging that on August 30, 1906, at Reno, Nev., the plaintiff in error received a consignment of sheep, consigned by T. Fallon to the Western Meat Company, of South San Francisco, Cal.; that after loading the sheep at Reno, and while transporting the same to South San Francisco, and until unloading was commenced at that place, the plaintiff…

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

<p>Appeal and Eebob (§ 659*) — Record—Amendment.</p> <p>A plaintiff in error is not entitled to a writ of certiorari with reference to perfecting a bill of exceptions which occurred through his own fault or neglect, where application for the writ was not made until the trial court had lost jurisdiction to amend the bill under rule 17 of the Circuit Court. N. Y. & N. E. R. R. Co. v. Hyde, 56 Fed. 188, 5 C. C. A. 461, applied.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2834; Dec. Dig. § 659.*]</p>

<p>1. Criminal Law (§ 1080*) — Proceedings for Transfer of Cause — Citation.</p> <p>The citation issued on a writ of etror should give the proper names of all of the persons applying for the writ.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1080.*]</p> <p>2. Criminal Law (§• 1023*) — Review by Appellate Court — Motion to Quash Indictment.</p> <p>The rule applied that error will not lie to the overruling of a motion to quash an indictment on account of anything which may be raised by demurrer.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1023.*]</p> <p>3. Indictment and Information (§ 90*) — Sufficiency of Accusation — Certainty.</p> <p>In an indictment against a bankrupt and others for conspiracy to conceal assets from his trustee in bankruptcy, an averment that a person named was “duly” appointed trustee is sufficient; the matter of appointment being an incidental matter only, and not a vital element of the crime.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. • § 90.*]</p> <p>4. Criminal Law (§ 395*) — Evidence—Matter of Procuring Documents.</p> <p>On the trial of an Involuntary bankrupt for conspiracy to conceal property from his trustee, it was not error to admit in evidence, over defendant’s objection and claim of privilege, his books of account which had been taken possession of by a receiver appointed by the bankruptcy court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 877; Dec. Dig. § 395.*]</p> <p>5. Criminal Law (§ 385*) — Evidence—Course of Business.</p> <p>Testimony from witnesses in reference to “course of business” is admissible in criminal cases as well as in civil suits.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 385.*]</p> <p>6. Criminal Law (§ 459*) — Evidence—Expert Testimony.'</p> <p>Evidence by a merchant, accustomed to the class of goods in question, to the effect that a certain invoice corresponded to the goods, is not tech-ideally expert testimony, Imt is admissible under the general rules admitting evidence ol' identification.</p> <p>LEd. Note. — Em- other eases, see Criminal Law, Cent. Dig. §§ 1048-1050; Dec. Dig. § 459.*]</p>

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

<p>1. Bankruptcy (§ 140*) — Title and Rights op Trustee — Property Held by Bankrupt as Bailee.</p> <p>Petitioner, a manufacturer of farm machinery, shipped machines by the car load to tlie bankrupt, which was a hardware company, under a contract by which the bankrupt received and stored the same and from time to time shipped machines out on orders from petitioner. The machines were not charged to the bankrupt, nor invoiced as part of its stock, but it was paid an agreed price for storage and transfer. It had the privilege of selling any of the same to its own customers, and machines, when so sold, were charged to it. At the end of the year an inventory was taken by petitioner of the machinery then on hand in storage. Held, that the transaction was a bailment, the title remaining in petitioner, and that on the bankruptcy it was entitled to reclaim possession of the machines on hand from the bankrupt’s trustee. .</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>2. Bankruptcy (§ 140*) — Definitions—“Transfer.”</p> <p>The definition of “transfer,” in Bankr. Act July 1, 1S98, c. 541, § la (25), 30 Stat. 544 (U. S. Comp. St. 1901, p.‘3420). as including “the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally as a payment, pledge, mortgage, gift or security,” does not apply to a bailment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7064-7070; vol. 8, p. 7819.]</p> <p>3. Bankruptcy (§ 140*) — Title and Rights of Trustee — Property Held by Bankrupt as Bailee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 70a(5), 30 Stat. 565 (U. S. Couip. St. 1901, p. 3451), vesting a trustee with the title of the bankrupt to all “property which * * * he could by any means have transferred or which might have been levied upon or sold under judicial process against him,” does not undertake to vest the bankrupt with title to property to which be had no title prior to bis adjudication, but only relates to property the title to which he had acquired to such an extent as to render the same liable to seizure and sale under execution for his debts, and does not in- ’ elude property which he held as bailee only, although he may have had an option to purchase any part of the same at any time.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>4. Bankruptcy (§■ 140*) — Title and Rights of Trustee — Construction of Contraot.</p> <p>A contract under which petitioner furnished certain machines to the bankrupt, and which provided that all goods on band and the proceeds of all sales of goods received under the contract, whether consisting of notes, cash, or book accounts should be held by the bankrupt as collateral security in trust for the benefit of petitioner and subject to its order until all obligations due it thereunder should be paid in full, was not one of conditional sale, but one creating a trust for the benefit of petitioner, and on the bankruptcy it was entitled to reclaim the goods on band from the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 140.*]</p>

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

<p>1. Master and Servant (§ 101*) — Master’s Liability for Injury to Servant —Defective Tools.</p> <p>A mere imperfection in a tool furnished by a master for the use of his servants, by reason of which bodily injury results to a servant, does not necessarily import actionable negligence on the part of the master, the extent of whose obligation is to exercise reasonable care to provide reasonably safe tools.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171-174, 180-184, 192; Dec. Dig. § 101.*] .</p> <p>2. Master and Servant (§ 125*) — Master’s Liability for Injury to Servant —Defective Tool.</p> <p>Plaintiff, employed by defendant as an iron worker, while holding a chisel which was being struck by another employs with a sledge, was struck In the eye and injured by a fragment which broke from the face of the sledge. The sledge was purchased from a manufacturer of high standing and was not known to be defective, nor did it appear that there was any defect therein which could have been discovered by a reasonable inspection. Held, that such facts did not establish any negligence ■mi the part of defendant which rendered it liable for the injury, which must be regarded as the result of an accident without culpable negligence on the part of any one.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 243-246; Dec. Dig. § 125.*]</p>

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

This cause comes here upon appeal to review a decree of the District Court (158 Fed. 379) dismissing the libel of libelant, a longshoreman, who was injured by the tipping up of a section of hatch cover, which caused him to fall into the hold of respondent’s steamer St. Eillans.

This is an action brought by the plaintiff against the township of St. Lawrence, in Hand county. S. D., to recover the principal and interest on six municipal bonds for $500 each. The bonds contain'the following statement: “'This bond is one of a series numbered from 1 to 23 inclusive, of like tenor and date.” The entire series was put out in three separate issues. Nos. 1 to 6 for $500 each were sold November <>. 1891.

<p>1. Fbaud (§ 58*) — Action fob Deceit — Burden and Sufficiency of Pboof.</p> <p>A plaintiff, who seeks to recover damages for deceit, has the burden of proving by a preponderance of the evidence, not only the false representations, but the amount of damages which he suffered thereby.</p> <p>[Ed. Note. — For other cases, see Fraud, Dec. Dig. § 58.*]</p> <p>2. Fkatid (§ 40*) — Actions—'Variance.</p> <p>An action for deceit, based on allegations that defendants gave plaintiffs a mortgage on property which they represented to he free of incumbrance, whereas it was in fact either not in existence or incumbered for more than its value, is not supported by evidence showing that the defendants sold the property and diverted the proceeds to other uses.</p> <p>LBd. Note. — For other cases, see Fraud, Dec. Dig. § 49.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>The Circuit Court affirmed without written opinion a decision by the Board of United States General Appraisers, which had been rendered on the authority of U. S. v. Scruggs, 156 Bed. 940, 84 C. C. A. 440.</p>

-}* [yj o QQO p|111 C A'ff’C The provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule C, pars. 124, 193, 30 Stat. 159, 167 (U. S. Comp. St. 1901, pp. 1636, 1645), referred to in the opinion herein, read as follows: “124. * * * Provided, that all iron in slabs, blooms, loops, or other forms less finished than iron in bars, and more advanced than pig iron, except castings, shall be subject to a duty of five-tenths of one cent per pound. “193.

<p>Post Office (§■ 21*) — Transportation of Maids — Bonds.</p> <p>Where a contract for transportation of mail provided that the contractor should account for and pay over all money of the United States which might come into his possession, he being only required to carry mail, and not to carry money as such, his surety was not liable, on his bond for the faithful carrying out of the contract, for the loss by robbery of money belonging to the United States, placed in his mail bag without his knowledge or acquiescence, even though he was an insurer of the safe delivery of money delivered to him for transportation with knowledge.</p> <p>[Ed. Note. — Por other cases, see Post Office, Dee. Dig. § 21.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of West Virginia, at Huntington.</p> <p>This action was originally brought in the circuit court of Mingo county, W. Va., by the plaintiff in error against the defendant in error to recover damages in the sum of $10,000 for the alleged wrongful killing of W. C. Little, the intestate of the plaintiff. Subsequently, upon the petition of the defendant, the case was removed for trial into the Circuit Court of the United States for the Southern District of West Virginia. The declaration was in trespass on the case, alleging generally that intestate was killed through the negligence of the defendant by and through its servants and employes. The defendant entered a plea of not guilty, and thus the issue was raised. 'Phe case was tried at Huntington in April, 1908, and after all the evidence, both for the plaintiff and defendant, had been introduced, the defendant demurred to the plaintiff’s evidence, in which demurrer the plaintiff joined. The case was permitted by the court to go to the jury, and a verdict was returned in favor of the plaintiff for $7,000 damages, subject, however, to the opinion of the court, thereafter to be rendered on the demurrer to the evidence. The court subsequently sustained the demurrer to the plaintiff’s evidence and entered judgment in favor of the defendant. This action of the court constitutes the basis of plaintiff’s exception and assignment of error upon which the case is before' us for consideration.</p> <p>Statement of Facts.</p> <p>The Camp Branch Goal Company operates a mine near the town of Dingoss, in Mingo county, W. Va., which mine is located near the main line of the Norfolk & Western Railway Company, tlie defendant in this action. The defendant owns a spur track, called the “Cam]) Branch switch,” extending from its main line to the mine of the coal company. The coal company, however, keeps the switch in repair. The defendant company, when requisitions were made, would place empty cars from its main line upon and along the switch, and when the cars were loaded with coal would then pull them out on the main line and transport them to market. The Camp Branch coal mine is situated on the right hand side going eastward of the defendant’s railway, and the switch or spur connecting the tipple thereof with the main line runs eastward from the tipple along the main line approaching nearer until a connection is effected.</p> <p>W. C. Little, the intestate of plaintiff, was employed by the Camp Branch Coal Company, and on the morning of July 1, 1901, between 6 and 7 o’clock, the day he was killed, was working together with a man by the name of Green, also employed by the coal company, engaged in repairing a rail on the switch. The rail had been broken, and Little and Green were drilling holes to put in fresh plates, or angle bars, as they are sometimes called, to mend it. While the two were thus engaged, a train of freight cars pulled up and stopped on the main line, and a brakeman standing on top of one of the freight ears in the train called out to the two men and asked how the track was, that they were going to put some empty cars in. Little replied: “A rail is broken, and the track is not fit to go over; but I think you can put empties in above.” The train, which was composed of 25 or 30 cars, had 6 empty cars to shift onto the switch. These 6 cars, however, were not 'all together; 3 of them being at one place in the train, and then, after some other intervening cars, were the other 3. When Little and Green were notified that empties were to be placed on tlie switch, they quit work, gathered up their tools and left the track in order that the empty cars might be moved in. The train then backed in upon the switch and left three freight cat's standing, the raid of the last one within about six feet of the place where Little and Green had been working. It then pulled out again onto the main line, moved about, and dropped the cars of tlie train until the oilier three empties to be moved upon the switch were in xwsition. The train then moved back onto the switch again and pushed the three remaining empties up against those that had theretofore been put upon tlie switch ; the time elapsing between the placing of the first three upon tlie switch and when the train moved back with the other three being variously estimated by the witnesses at from 5 to 20 minutes. In the meantime Little and Green, immediately after the placing of the first three cars, without notice to the operators of the train, and without being seexi by any of them, went back to work upon the track. Green sat down with his face towards the rear end of the last car of the first three, and Little, the intestate, sat astride the rail with his back towards the standing cars, and within about sfs feet of the end of the one in the rear.</p> <p>The operators of the train did not give any signals or notice that they were coming in on the switch the second time, and the conditions were such that those handling the train could not see Little and Green, nor could the latter see the moving cars on the switch from where they sat. The empty cars last moved in ran up against the three standing ears, and these were shoved back sufficiently far for the rear one to run over and crush Little so that his death ensued shortly thereafter. Green, who was sitting, as before stated, facing Little, escaped unhurt. The evidence in the case further shows that the point at which Little was sitting when lie was killed is about 90 feet in a direct course from the main line of tne defendant, and that there were cars which belonged to the train standing on the main line at this point of distance when the second three empty cars were moved onto the switch.</p> <p>' It may be stated further that Green, who was the principal witness for plaintiff as to what occurred at the time of the accident, upon cross-examination, was somewhat more explicit than on the direct. ITe said that Little and himself had a ratchet drilling a hole at the place the rail was broken when the freight train moved up on the main line and stopped, that the brakeman called out to know if the track was all right, arid that Bill (meaning Little) replied, “It is for empties, but not for loads.” He said, “Lou can put empties in, but you cannot take any loads out until this rail is mended.” Green said further: “They put in three cars and pulled out on the main line, and we put our ratchet back on the rail when they pulled out. We thought that they were going and that the train was not coming in. They were on the main line switching around.”</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This cause comes here upon appeal from an order of the Circuit Court, dismissing a writ of habeas corpus.</p>

<p>Appeal and Error (§ 1207*) — Reversal—Proceedings After Remand — Decree.</p> <p>In a suit for unlawful competition in the use of the name “Rowley,” the court restrained defendant from making or selling goods on which the address, covering, or appearance was such as would be likely to deceive (he public or prospective purchasers, and from using the name “Rowley,” with or without initials, in any manner whatever in the manufacture or sale of Ms goods. This decree was reversed solely on the ground that defendant was entitled to use “Rowley,” which was his own name, provided an explanation was added, whereupon, on remand, the court entered a new decree restraining defendant from using the name “Rowley,” without initials, in any manner whatever in the manufacture and sale of artificial limbs, and from using that name with initials in any manner whatever, unless accompanied by explanatory words sufficient to distinguish defendant’s goods from those manufactured by complainant. Held, that such decree was a compliance with the instructions of the Circuit Court of Appeals in remanding the cause.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4096-4699; Dec. Dig. § 1207.*]</p>

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

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

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

<p>1. Patents (§ 290*) — Suit fob Infringement — Parties.</p> <p>The owner of a patent, who has granted an exclusive license thereunder, with a reservation of an interest in damages recovered from infringers and the right to cancel the license under certain conditions, may properly be joined with the licensee as complainant in a suit for infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. & 470; Dec. Dig. § 290.*]</p> <p>2. Equity (§ 118*)' — Amendment of Pleadings — Bringing in New Parties.</p> <p>A court has jurisdiction to allow an amendment of a bill to bring in a necessary party complainant.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 554; Dec. Dig. § 118.*]</p> <p>3. Patents (§ 290*) — Suit for Infringement — Parties.</p> <p>The fact that a person is by contract entitled to a share of money recovered for infringement of a patent does not give him an interest in the patent, nor make him a proper party complainant in a suit for an injunction to restrain its infringement; and the same reason applies to a licensee, who has assigned his license, although he may have an interest in the damages recovered.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 470; Dee. Dig. § 200*]</p>

<p>Patents (§ 328*) — Validity and Infringement — Gabteb.</p> <p>The Dreyfus patent, No. 546,420, for a garter having a rubber lining with small protuberances thereon to engage the meshes of the fabric on which it is placed, was not anticipated and discloses invention; also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328. *]</p>

<p>Patents (§ 317*) — Suit for Infringement — Injunction.</p> <p>In a suit for infringement of a patent for a railway signaling apparatus and system, consisting of the use in a combination of old elements, which) expired pending the suit, the complainant held not entitled to a provision) in the final decree enjoining the defendant from selling any apparatus: made during the life of the patent; it appearing that the parts were capa-, ble of use in-noninfringing systems.</p> <p>[Ed, Note. — For other cases, see Patents, Dec. Dig. § 317.*]</p>

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

<p>1. Patents (§ 338*) — Suit for Infringement — Measure of Profits.</p> <p>In computing the profits realized by a defendant from the use of an infringing hag-filling machine, the master hold to liare properly taken as the basis the saving as compared with the cost of hand labor, and that the work was even then done at a loss is immaterial.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §■§ 566-576; Dee. Dig. § 318.*</p> <p>Accounting by infringer for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8.]</p> <p>2. Patents (§ 322*) — Suit for Infringement — Reference for Accounting.</p> <p>The question whether a defendant, after an interlocutory decree finding infringement of a patent, further infringed by the use of machines-not before the court, is one which may properly be determined by the master on an accounting.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 322.*]</p> <p>3. Patents (§ 319*) — Suit for Infringement — Right to Damages.</p> <p>Where there is not sufficient evidence to establish a uniform license fee or royalty for the use of a patented machine, a master is justified in. refusing to award damages for the use of an infringing machine.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 319.*]</p>

<p>1. Patent's (§ 312*) — Suit fob Infbingemeno>-Reissue.</p> <p>A delay of seven years before applying for a reissue raises a presumption of laches, and imposes the burden upon the complainant, in a suit for infringement of the reissue, to allege and prove facts in excuse.</p> <p>[Ed, Note. — Por other cases, see Patents, Dec. Dig. § 312.*]</p> <p>2. Patents (§ 310*) — Reissues—Construction of Claims.</p> <p>On demurrer, claims in a reissue patent should not be regarded as the same as those in the original patent, although in identical words, where the specifications are different, and the bill does not show that the changes in the specifications make no material change in the scope of the claim.</p> <p>[Ed. Note. — Por other cases, see Patents, Dee, Dig. § 310.*]</p>

On Application for Review of a Decision by the Board of United States' General Appraisers. The decision below, reported as G. A. 6,700 (T. D. 28,651), affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Collision (§ 39*) — Overtaking Vessel.</p> <p>Collision in the Dower New York Bay near the junction of the Mai Ship Channel and the Swash Channel between two steamers proceeding to sea. Held that the collision was due to the suction of the United States, which resulted from a too close approach in passing the Monterey and that the former was solely liable.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 39.*]</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.</p> <p>(Syllabus by the Judge.)</p>

<p>1. Shipping (§ 132*) — Loss of Cargo — 'Liability of Vessel.</p> <p>Where a loss of cargo occurred through the sinking of the carrying boats and it was found that no adequate cause appeared for the sinking, held that the boats should be detuned to have been unseaworthy and that their owner was liable to the shipper of cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 482-484; Dec. Dig. § 132.*]</p> <p>2. Shipping (§ 121*) — Carriage of Goods — Loss—Ska worthiness.</p> <p>The contract provided that the respondent company should furnish “good, sound, insurable” boats and look to one of the libellant companies for the loss in case of a marine disaster, field, that where unseaworthy boats were supplied, the respondent company was not entitled to resort to Hie agreement.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 449-451; Dee. Dig. § 121.*]</p> <p>3. Shipping (§ 141*) — Loss of Cargo — Limiting Liability.</p> <p>A conlention on the part of the respondent company that its liability should be limited to the value of the boats, not sustained because tbe responsible agent of tbe company neglected to avail himself of an opportunity to ascertain the condition of the boats.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 141.*</p> <p>Limitation of owner’s liability, see note to The Longfellow, 45 C. O. A. 387.]</p> <p>4. Shipping (§ 132*) — Loss of Cargo — Eights of Shipper.</p> <p>A claim by the respondent company that tbe libellant Trading Company was not entitled to recover because it was not tbe owner of tbe goods rejected, it being held that the Trading Company having obtained possession of them, with the right to sell and collect the proceeds, was entitled to bring the action here.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 132.*]</p> <p>(Syllabus by tbe Judge.)</p>

<p>Shipping (§■§ 203, 207, 209*) — Limiting Liability — AnMiRAr/ry—Jurisdiction.</p> <p>A loss to the owner of certain twine was suffered through fire on one of the railroad company's barges, and upon an action being brought against the railroad to recover the damages, the latter instituted proceedings to limit its liability to the value of the barge. The owner of the twine excepted to the petition. The questions involved were: (1) Was a</p> <p>single claim sufficient to give the court jurisdiction? (2) Did the petitioner's bill of lading, providing that water carriage should he subject to certain conditions, operate to prevent the application of the limitation of liability acts? (3)' Was the libellant precluded by a stipulation, providing that the agreement might be used in a New York state court from resorting to this court? and (4) Did the Hepburn act (Act Feb. 4, 18S7, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), repeal the provisions of sections 428A-4289, Rev. St. U. S. (U. S. Comp. St. 1901, pp. 2943, 2945), relating to limitation of liability. The first question answered in the affirmative and the others in the negative.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. §§ 203, 207, 209.*</p> <p>Limitations of owner’s liability, see note to The Longfellow, 45 C. C. A. 387.)</p> <p>(Syllabus by the Judge.)</p>

<p>In Equity. On motion to remane! to state court.</p>

<p>1. Collision (§ 69*) — Anchored Vessels.</p> <p>The Maraval held solely in fault for casting anchor in too close proximity to the Ciudad de Reus and for refusing to utilize her steam power to move away after the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 87; Dee. Dig. § 69.*]</p> <p>(Syllabus by the Judge.)</p> <p>2. Words and Phrases — “Windrode.”</p> <p>A vessel is “windrode” when it is held in equilibrium between the wind and tide.</p>

<p>In Equity. On motion by defendants to reopen case and admit further testimony.</p>

<p>1. Courts (§ 314*) — Jurisdiction of Federal Courts — Citizenship of Corporation.</p> <p>The fact that foreign corporations licensed to do business in a state are declared by statute to be domiciled in such state for all purposes does not make such a corporation a citizen of that state so far as to affect the jurisdiction of the federal courts upon the question of diverse citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 860; Dec. Dig. § 314*</p> <p>Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>Jurisdiction over corporations, see note to St. Louis, I. M. & S. Ry. Co. v. Newcom, 6 C. C. A. 174.]</p> <p>2. Railroads (§ 142*) — Effect of Sale of. Road to Foreign Corporation— Consolidation — Oklahoma Statute.</p> <p>Under the statute of Oklahoma Territory (Wilson’s Rev. & Ann. St. 1903, § 1067), which authorized any railroad company owning any railroad in the territory to sell or lease the same to any other railroad company, domestic or foreign, and provided that the purchasing or leasing company “shall possess and enjoy all the rights, powers, privileges and franchises conferred by the laws of this territory upon a railroad corporation formed thereunder,” such a purchase did not effect a merger or consolidation of the two companies, so as to constitute a now domestic corporation, which is separately provided for by section 1028 of the same statutes.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 444: Dec. Dig. S 342.*]</p> <p>3. Courts (§ 303*) — Jurisdiction of Federal Courts — Suit Against State.</p> <p>Where officers of a state assuming to act under an unconstitutional statute, or under a valid law, hut going beyond the powers thereby conferred, threaten to commit an act of wrong and injury to the rights and property of another, a suit to enjoin them is not one against the state, and for that reason without the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 844% ; Dec. Dig. I 303.*</p> <p>Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>4. Courts (§ 259*) — Jurisdiction of Federal Courts — Nature and Source*</p> <p>The right to resort to the jurisdiction of the federal courts, including the right of removal thereto, is one conferred by the federal Constitution and the laws of Congress enacted in pursuance thereof that cannot be impaired or abridged by any statute of a state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 795; Dec. Dig. § 259.*]</p> <p>1 Constitutional Law (§§ 130, 303*) — Obligation of Contracts — Impairment by State — Revocation of License of Foreign Corporation — Due Process of Law.</p> <p>A railroad company which at the time of the admission of Oklahoma as a state, was the owner of railroad lines therein, acquired at a largo expenditure for construction and purchase, under the sanction of the laws of the territory of Oklahoma, and of Congress relating to the Indian Territory, was vested thereby with contract rights within the protection of the state Constitution, Schedule 1, which provides that existing rights and contracts shall continue unaffected by the change in form of government, and also within the protection of the contract clause of the federal Constitution, and as applied to such company Act Okl. May 26, 1908 (Laws 1908, p. 214, c. 16), providing in effect that on the filing by any foreign corporation of a petition for the removal of any suit into a federal- court on the ground that it is a citizen of another state or country, it shall forfeit its right and license to do business in the state, which shall at once be revoked, is unconstitutional and void both as impairing the company’s contract rights and as depriving it of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 301, 863; Dec. Dig. §§ 130, 303.*]</p> <p>6. Constitutional Law (§ 23*) — Construction of Constitutional Provisions — Retroactive Effect.</p> <p>Const. Okl. art. 9, § 31, which provides that no foreign railroad company shall be entitled to the benefit of eminent domain in the state until it shall incorporate under the laws of the state, is not retroactive and does not affect the right of a foreign railroad company to the use and enjoyment of its right of way previously lawfully acquired.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 20; Dec. Dig. § 23.*]</p> <p>7. Constitutional Law (§ 23*) — Construction of Constitutional Provisions — Retroactive Effect.</p> <p>Const. Okl. art. 9, §§ 8, 9, regulating the right of foreign corporations to lease or purchase parallel or competing railroad lines and to consolidate with domestic corporations, do not apply to past transactions. "</p> <p>[Ed. Note. — For other cases, see Constitutional law, Cent. Dig. § 20; Dec. Dig. § 23.*]</p> <p>8. Injunction (§ 22*) — Actions fob Injunctions — Jurisdiction.</p> <p>In a suit in a federal court to enjoin a state officer from proceeding under an alleged unconstitutional statute to revoke the .license of complainant, a foreign corporation, to do business in the state, it is not a defense that the order of revocation was signed before tbe restraining order became effective or was served on the defendant, where it was after the suit was begun and the court had acquired jurisdiction.</p> <p>[Ed, Note. — For other cases, see Injunction, Cent. Dig. §• 19; Dec. Dig. § 22.*]</p>

<p>1. Negligence (§ 2*) — Duty to Use Care.</p> <p>Where an employers’ liability company, on being notified of an action against plaintiff by an employe for injuries, assumed the defense of the cause, it thereupon became obligated to exercise reasonable care in such defense, whether it was required by its contract to defend the cause or not.</p> <p>[Ed. Note. — For other cast's, see Negligence, Dec. Dig. § 2.*]</p> <p>2. Action (§ 27*) — Natüru and Form — Contract or Tort.</p> <p>Where an insurer tinder an employers’ liability policy on being notified of an action for injuries to insured's servant assumed the defense thereof, and was negligent in conducting the suit, to the loss of the employer, the latter was entitled to sue the insurance company for breach of its Implied contract to exercise reasonable care in conducting the suit or in tort for negligence.</p> <p>| Ed. Note'. — For other cast's, see Action, Dec. Dig. § 27.*J</p>

In Equity. With this case were heard cases of the same complainant against.the Midland Valley Railway Company, A. H. Sharum, and others (No. 7), against H. B. Spaulding and others (No. 9), against C. N. Haskell and others (No. 11), against Frederick B. Severs and others (No. 12), against C. W. Turner and others (No. 14), against B. F. Colley and others (No. 258), against B. F. Colley and others (No. 260), against The Frisco Oil & Gas Company and others' (No. 261), against'Wm.

In Bankruptcy. Review of orders of referee disallowing and expunging claim of Mason M. Swan, for about $2,070, and claim of First National Bank of Baldwinsville, N. Y., for $1,000, and interest from July 18, 1907.

<p>1. Equity (§ 182*) — Pleading—Plea in Bar — Res Judicata.</p> <p>An answer to a bill in equity may plead a former judgment in bar. in connection witb matters of defense to the merits.</p> <p>182®!. Note — Eor other cases, see Equity, Cent. Dig. § 418; Dec. Dig. §</p> <p>'2; Judgment (§ 949*) — Res Judicata — Plea in Bar — Form.</p> <p>A plea of res judicata should not merely plead former judgment as an .ultimate fact, but should set forth the commencement of the suit in which the judgment was rendered, its general character, object, and the relief prayed, and aver the facts with reference to the subject-matter, so that it shall appear that there is identity of subject-matter.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1795-1803; Dec. Dig. § 919.*]</p> <p>8. Equity (§ 182*) — Pleading—Allegations oe Matters Judicially Noticed.</p> <p>An answer to a bill is not defective because it alleges matter of record which would be judicially noticed, as a predicate for defendant’s contention that by the course of pleading and action taken thereon complainant acquiesced therein.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 418; Dec. Dig. } 182.*]</p> <p>4. Equity (I 191*) — Pleading—Exceptions.</p> <p>The allegations of matter in a bill which the court would judicially notice is insufficient to sustain an objection for impertinency.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 434; Dec. Dig. § 191.*]</p> <p>5. Equity (§ 191*) — Answer—Objections—Estoppel.</p> <p>Whore a complainant charged defendants, parties to a prior suit in the state court for partition of the property in controversy, and their attorneys, in general terms with fraud in the allotment of parcels of land, to the prejudice of complainant’s rights, but did not set out the conduct constituting the fraud, complainant could not object that allegations in the answer, intended to show the good faith and regularity of the proceedings leading to the partition decree, etc., were impertinent.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 434; Dec. Dig. | 191.*]</p> <p>6. Equity (§ 191*) — Exceptions.</p> <p>Exceptions to allegations in an answer as impertinent are unsustainable, where they include facts pleaded which are responsive to the bill and admissible as defensive matter.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 434; Dec. Dig. 8 191.*]</p>

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

<p>1. Internal Revenue (§ 40*) — Whisky Containers — Reuse—Offenses—' Willfulness.</p> <p>Act Cong. March 3, 1897, c. 379, 29 Stat. 626 (U. S. Comp. St. 1901, p. 2150), prohibits the reuse oí bottles containing whisky bottled in bond, without removing and destroying the stamps. Held, that the criminality involved in the reuse of a bottle containing whisky bottled in bond, without removing and destroying the stamps, does not depend on its being knowingly and willfully done; the offense being complete if the bottle is reused without destroying the stamps.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §• 100; Dec. Dig. § 40.*]</p> <p>2. Internal Revenue (§ 40*) — Refilling Whisky Bottles — Destruction of Stamps — Acts of Agents.</p> <p>A seller of whisky is guilty of violating Act Cong. March 3, 1897, c. 379, 29 Stat. 626 (U. S. Comp. St. 1901, p. 2150), prohibiting the reuse of bottles containing whisky bottled in bond without the removal and destruction of the stamp, though the refilling of the bottle, without destroying the stamp, is the act of the seller’s bartender, or agent, acting within the scope of his employment.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 40.*]</p> <p>3. Criminal Law (§ .561*) — “Reasonable Doubt.”</p> <p>“Reasonable doubt,” sufficient to justify an acquittal, must be a substantial one, in view of all the evidence in the case, and not a mere possibility of innocence. It must be a doubt arising out of the evidence, for which a reason can be giren, and such as would exist in the mind of a reasonable man after free, full, and careful consideration of all the evidence, though the law does not require that the evidence should exclude all doubt and amount to absolute certainty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*</p> <p>For other definitions, see AVords and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.]</p> <p>Criminal Law (| 308*) — Presumption or Innocence.</p> <p>A person accused of crime is presumed to be innocent, and such presumption runs in his favor as to every element of the crime charged, and abides with him throughout the ease until removed beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*]</p> <p>5. Criminal Law (§ 309*) — Character—Presumptions.</p> <p>A person accused of crime is not required to call witnesses as to his general good character, but will be presumed to be of good character until such presumption is removed beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 738; Dec. Dig. § 309.*]</p> <p>6. Criminal Law (§ 553*) — Evidence—Credibility of AVitness.</p> <p>In considering the credibility of witnesses, the jury should consider their opportunities for knowledge, their intelligence,' conduct on the stand, probability or improbability of their statements, prejudice, or interest, if any, corroboration, and facts and circumstances disclosed by the evidence which reflect on tlieir credibility.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1252; Dec. Dig. § 553.*]</p>

<p>1. Bankruptcy (§ 341*) — Claims—Allowance—Statutes.</p> <p>Where the referee did not continue consideration of a claim on his own motion, the concluding clause of Bankruptcy Act of July 1, 1898, c. 541. § 57d, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), providing that all claims which have been duly proved shall be allowed on receipt by or on presentation to the court, unless objection to their allowance shall be made by parties in interest or their consideration be continued for cause by the court on its own motion, did not apply.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 341.*]</p> <p>2. Bankruptcy (§ 340*) — Claims—Proof.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 57d, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), providing that claims which have been duly proved shall be allowed upon receipt by or on presentation to the court unless objection to their allowance shall be made by parties in interest, a sworn proof of claim against the bankrupt is prima facie evidence of its allegations in case it is objected to.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>3. Bankruptcy (§ 331*) — Claims—Validity.</p> <p>Where a bank had a valid claim against a bankrupt, the fact that another person had previously filed a claim as a creditor on the same account did not prejudice the bank’s right to offer proof of its debt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 331.*]</p> <p>4. Bankruptcy (§ 340*)' — Claims—Proof.</p> <p>A claimant’s sworn statement declared that the goods were sold and delivered by claimant to the bankrupt who was indebted to claimant by reason of such sale and delivery. Held that the fact that the account attached to the claim and the affidavit also recited that the goods were sold for the account of R. brothers, a third person, in whose behalf another claim had been filed on the same account, did not destroy the pror bative force of the claim as prima facie evidence of its validity in favor of the claimant.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>5. Bankruptcy (§ 340*) — Claims—Objections—Evidence.</p> <p>On an issue as to the validity of a claim against a bankrupt presented for allowance, a previously allowed claim of another creditor on the same debt is inadmissible in support of the objections of the trustee and such other creditor.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 340.*]</p>

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

<p>Pledges (§ 11*) — Nature and Essentials — Delivery and Possession.</p> <p>A valid pledge may be made by a corporation, altbougli the property remains in its warehouse and one of its officers is made custodian for the pledgee, where it is set apart, distinctly marked, and where the pledgee in fact exercises full control over it.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 31-35; Dec. Dig. I 11.*]</p>

<p>1. Reformation of Instruments (§• 39*) — Mistake—Construction.</p> <p>On demurrer to a bill to reform a written contract for mistake or to cancel it and to enjoin an action at law brought thereon, it is not necessary to construe the contract.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Dec. Dig. § 39.*]</p> <p>2. Reformation of Instruments (§ 36*) — Mistake—Bill.</p> <p>WEere a bill to reform or cancel the memorandum of a contract for the payment of royalties for the manufacture and sale of a patented article, and to restrain the prosecution of an action at law thereon, alleged an agreement and the making of a written memorandum thereof which was made a part of the bill, and which was the memorandum sued on in the action at law, but did not plead that there was a prior contract which constituted the true agreement, nor allege that the written contract was intended to evidence the oral agreement, but by mistake and inadvertence failed to do so, it was insufficient, either as a bill for reformation or for cancellation.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Dec. Dig. § 36.*]</p> <p>8. Equity (§ 145*) — Bill—Double Aspect.</p> <p>Under the federal equity rules, a bill may be properly framed with a double aspect for the reformation of a written contract, or, if that cannot be allowed, for cancellation thereof.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 145.*]</p> <p>4. Equity (§ 142*) — Bill—Certainty.</p> <p>Relief in equity cannot be granted on facts merely suggested in the prayer and not charged with reasonable distinctness, under the rule that pleadings must be taken most strongly against the pleader.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. §< 142.*]</p> <p>5. Equity (§ 145*) — Bill—Double Aspect.</p> <p>A bill in equity with a double aspect must state each separately and distinctly.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 339; Dec. Dig. § 145.*]</p>

In Equity. This case is submitted on bill and amended bill and affidavits on motion for a preliminary injunction. The bill is filed by the Citizens’ Light, Heat & Power Company against the Montgomery Light & Water Power Company. The former is a corporation chartered under the laws of Alabama, and the latter under the laws of New Jersey.

<p>1. Food (§■ 2*) — State Regulations — “Food.”</p> <p>The fact that a “food” may also be a medicine or possess medicinal properties does not exempt it from the operation of a state statute regulating the sale of foods.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 2.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2856.]</p> <p>2. Food (§ 2*) — “Condiment.”</p> <p>A “condiment” is a food and not a medicine.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 2.*]</p> <p>8. Food (§ 2*) — Statutory Regulations.</p> <p>A manufacturer, who designates an article made and sold by him as a food, is estopped to deny that it is such within the meaning of a statute regulating the sale of food.</p> <p>[Ed. Note. — For other eases, see Food, Dec. Dig. § 2.*]</p> <p>4. Food (§ 2*) — Statutory Regulations — Articles Within Statute — “Food or Condiment.”</p> <p>The “International stock food” is a “food or condiment” within the meaning of the Kentucky pure food law (Laws 1906, p. 282, c. 48), and its sale is subject to regulation thereunder.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 2.*]</p> <p>5. Food (§ 1*) — State Inspection Laws — -Constitutionality oe Kentucky Statute.</p> <p>The Kentucky pure food law (Laws 1906, p. 282, c. 48), which requires articles of food sold in the state to be labeled to disclose their ingredients and authorizes the director of the agricultural experiment station to take samples from each package for analysis, is not unconstitutional, but is valid as an inspection law. Nor was it rendered invalid by the enactment of the national food and drugs act, which does not conflict with its provisions.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 1; Dee. Dig. § 1.*]</p>

<p>1. Bankruptcy (§ 458*) — Order of Referee — Review—Exceptions.</p> <p>Where a bankrupt filed no exceptions to a referee’s order determining his right to exemptions, the bankrupt could not object to any of its provisions on certificate for review.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 918; Dec. Dig. § 458.*]</p> <p>2 Pcbltc Bands (§ HO*) — Exemptions.</p> <p>Under Rev. St. § 2296 (U. S. Comp. St. 1901, p. 1398), declaring that a homestead acquired in public land should not become liable to the satisfaction of any debt contracted prior to the issuing of a patent therefor, the issuance of the patent, and not the issuance of a final receipt, to the homesteader entitling him to a patent, fixes the time from which the property may become liable for subsequent debts of the homesteader.</p> <p>[Ed. Note. — For other cases, see Public Bands, Cent. Dig. § 379; Dec. Dig. § MO.*]</p> <p>3. Bankruptcy (§ 396*) — Exemptions—Statutes—Repeal.</p> <p>Bankr. Act July 1, 1898, c. 541, § 6, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), providing that the act shall not affect the allowance to bankrupts of exemptions prescribed by state laws, deals solely with laws of the states, and does not repeal or affect Rev. St. § 2296 (U. S. Comp. St. 1901, p. 1398), providing that a federal homestead shall not be liable for debts of the homesteader before the issuance of a patent.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 668; Dec. Dig. § 396.*]</p> <p>4. Bankruptcy (§'396*) — Rights of Trustee — Federal Homestead.</p> <p>Since, under Rev. St. §§ 2288, 2291 (U. S. Comp. St. 1901, pp. 1385, 1390), a homestead entryman could not transfer his homestead, and by section 2296 (page 1398) creditors prior to patent could not subject the homestead to their claims, a homestead to which no patent had issued, though a final receipt had been granted, did not pass to the entryman’s trustee in bankruptcy under Act July j, 1898, c. 541, § 70(5), 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), declaring that the trustee is vested with the title of the bankrupt to all property which, prior to the filing of the petition. ho could by any means have transferred, or which might have been levied on and sold under judicial process.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 668; Dec. Dig. § 396.*]</p> <p>5. Bankruptcy (§ 4*) — Nature and Purposes.</p> <p>The purpose of the bankruptcy act is to give creditors only such rights which would have been theirs if bankruptcy had not supervened, and tosa ve to the bankrupt and his family every right and exemption which would have been tlieirs as against creditors enforcing their claims by ordinary judicial process.</p> <p>[Ed. Note. — E’or other cases, see Bankruptcy, Dec. Dig. § 4.*]</p>

<p>Shipping (§ 166*) — Who are “Passengers” — Injury to Licensee.</p> <p>Personal injury to a skip carpenter employed on the steamer Georgic through falling into a hatch in the after deck of the tug, by the cover giving way, while being taken by her to New York after the completion of his work on the steamer. Held that the libellant could not be deemed a passenger and he could not recover without showing negligence on the tug’s part, which he failed to do.</p> <p>[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5218-5227; vol. '8, p. 7748.]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 81*) — Swell Damage — Evidence.</p> <p>The steamship was obliged to stop at Quarantine and lost her headway, so that it was necessary to put her engines at half speed to regain steerage way. In doing so, she created a swell which caused damage to a tug and tow entering the channel to Greenville. Held that the steamship was in fault.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 345; Dec. Dig. § 81.*</p> <p>Diability of vessel for injuries caused by creation of swell, see note to The Asbury Park, 78 C. C. A. 3.]</p> <p>(Syllabus by the Judge.)</p>

<p>Carriers (§ 59*) -Damage to Cargo — Bill of Ladixg.</p> <p>Where a carrier receives goods for transportation knowing, or having reason to know, that some of them are not in good condition and issues a bill of lading reciting that they are “in good order and condition” and the bill of lading passes into the hands of an innocent purchaser for value, the carrier is not permitted to assert the contrary of the bill of lading statement.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 179; Dee. Dig. § 59.*]</p> <p>(Syllabus by the Judge.)</p>

<p>On Motion for an Order Directing the Return of Depositions to Permit Cross-Examination.</p>

<p>Equity (§• 296*) — Pleading—Supplemental Pleadings.</p> <p>An original bill, in the nature of a supplemental bill, filed by a complainant to bring in new facts, where a supplemental bill would have been proper, may be allowed to stand, where it is stipulated that proofs previously taken may be used, so that the defendant is not prejudiced.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. § 386; Dec. Dig. § 296.*]</p>

<p>On Demurrer to Separate Defense,</p>

<p>1. Master and Servant (§ 258*) — Injuries to Servant — Safe Place — Pleading.</p> <p>Since the law governing the relation of master and servant imposes the obligation on the master to furnish a safe place for a servant to work, a complaint for injuries, alleging that the master failed to furnish a safe place, was not objectionable for failure to charge that he contracted to do so.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 825-832; Dec. Dig. § 258.*]</p> <p>2. Negligence (§ 1*) — What Constitutes.</p> <p>Failure to do a duty is negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent Dig. § 1; Dec. Dig. §1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]</p> <p>3. Master and Servant (§ 86*) — Injuries to Servant — What Law Governs.</p> <p>An action for injuries to a servant by the master’s failure to furnish a safe place to work, being founded on tort, is governed by the law oí the place where the accident occurred.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 137; Dec. Dig. § 86*</p> <p>What law governs master’s liability for injuries to servant, see note to Mexican Cent. Ity. Co. v. Jones, 48 O. C. A. 232.]</p> <p>4. Master and Servant (§ 86*) — Injuries to Seamen — Foreign Law.</p> <p>Where a seaman was injured on a German vessel, carrying the German flag, on the high seas, his right to recover for his master’s failure to furnish a safe place to work was governed by the German statute, substituting fixed and certain liabilities for injuries in place of responsibility for negligence, so that compliance therewith constituted a defense to the action.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 1371 Dec. Dig. § 86.*]</p>

<p>L Mines and Minerals (§ 97*) — Partnerships—Pleading.</p> <p>A complaint, after alleging conveyances by which plaintiffs and defendants became tenants in common in certain land containing a gold mine, alleged that after a specified date plaintiffs and defendants were and continued copartners and owners of the property, and under a specified firm name possessed, and continued as partners to develop and manage and mine, the property. Held to sufficiently charge the existence of a partnership to work the mine.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 222; Dec. Dig. § 97.*</p> <p>Mining partnerships, see note to G. V. B. Mining Co. v. First Nat. Bank, 35 C. C. A. 515.]</p> <p>2. Mines and Minerals (§ 97*) — Partnerships.</p> <p>Tenants in common of a mine may form a partnership to work it, in which the mine itself may or may not become a firm asset, or they may work the mine in common without a partnership.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 222; Dec. Dig. § 97.*]</p> <p>8. Mines and Minerals (§ 99*) — Partnerships—Accounting.</p> <p>Tenants in common having formed a partnership to operate a mine constituting the common property, one partner was entitled to sue his co-partners in equity for an accounting.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 223; Dec. Dig. § 99.*]</p> <p>•A. Equity (§ 148*)' — Bill—Multifariousness .</p> <p>A bill of certain members of a partnership between tenants in common of a mine for the operation thereof alleged a cause of action for an accounting, and also charged that it was claimed by the purchasers of two-tenths of the property that complainants were guilty of fraud in the sale thereof, and asked-for an adjudication of such questions in the suit for accounting. Held that, such sales having transpired prior to the alleged formation of the firm, the alleged fraud could not be litigated in the suit for accounting, and that the bill was therefore demurrable for multifariousness.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 355; Dec. Dig. § 148.*]</p> <p>5. Injunction (§ 26*) — Right to Relief — Suit at Daw.</p> <p>Where a bill by certain members of a firm organized to exploit a mine constituting the common property was demurrable in so far as it sought an adjudication of complainant’s alleged fraud in the sale of certain undivided interests in a mine, complainants were not entitled to an injunction restraining the purchasers of such interests from instituting or prosecuting suits at law against complainants to determine such question.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 24; Dec. Dig. i 26.*]</p>

<p>1. Carriers (§ 211*) — Transportation of Cattle — Food and Rest Act-Construction — -“Contingencies Hereinbefore Stated.”</p> <p>Act Cong. June 29, 1900, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), forbids railroads from confining cattle longer than 28 consecutive hours without unloading for rest, water, and feeding, unless prevented by storm or other accidental or other unavoidable unanticipated causes, provided that on the written request of the owner or custodian of that particular shipment, separate from any printed bill of lading or any other railroad form, the time may be extended to 36 hours; it being the intent of the act to prohibit continuous confinement for more than. 28 hours except “upon the contingencies hereinbefore stated.” Held, that “the contingencies hereinbefore stated” included both the case where the carrier was prevented from unloading by storm or other accidental or unavoidable causes and the contingency of the owner having filed a written request extending the time of confinement to 36 hours.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 211.*]</p> <p>2. Carriers (§ 211*) — Transportation of Dive Stock — Food and Rest Act.</p> <p>Under Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibiting the transportation of cattle for more than 28 hours without unloading, unless the owner or custodian requests in writing, apart from any printed bill of lading or railroad form, that the time be extended to 36 hours, the shipper of cattle, to justify their confinement longer than 28 hours, must file a written request for each shipment, and may not file a single general request applicable to all future shipments of his cattle.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 211.*]</p>

<p>Courts (§ 274*) — Federal Courts -District in Which Suit must be Brought.</p> <p>A suit in a federal court to enjoin a railroad company Irom filing and enforcing an interstate rato alleged to be unreasonable, jurisdiction being invoked on the ground that a federal question is involved, can only be brought in the state in which the defendant is incorporated and the district of which it is an inhabitant, unless such objection is waived.</p> <p>[Ed. Note. — For oilier eases, see Courts, Cent. Big. § 814; Bee. Big. § 274.*]</p>

<p>Bankruptcy (§ 1(53*) — Voidable Preference — Transfer of Exeaipt Property — “Wearing Apparel.”</p> <p>A ring, of whatever material or value, is within Ky. St. § 1697 (Bus-sell's St. § 4656), which exempts to a housekeeper with a family all “wearing apparel”; and, being so exempt, its transfer to a creditor by a bankrupt, who is such a housekeeper, does not constitute a voidable preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 163.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7425, 7426; 7834.]</p>

<p>Copyrights (§ 85*) — Suit for Infringement — Injunction.</p> <p>Two theatrical plays, although having different names, held, so similar in characters, plot, action, and dialogue as to render the production of one by defendant a violation of a preliminary injunction restraining her from producing the other.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. §■ 85.*]</p>

<p>In Bankruptcy. On petition of Froneberger Mills & Co. and others to dismiss the proceedings.</p>

<p>1. Process (§ 72*) — Nonresident—Substituted Service.</p> <p>In a suit against several defendants in personam, not affecting property within the district, jurisdiction could not be obtained over such of the defendants as were nonresidents of the district, over their obiectionby substituted service.</p> <p>[Ed. Note. — For other eases, see Process, Dec. Dig. § 72.*]</p> <p>2. Equity (§ 363*) — Bill—Amtidavits.</p> <p>On motion to set aside service on nonresident defendants and dismiss the bill, allegations in the affidavits used on the motion and statements of counsel in the argument could not be considered as supplying an omitted allegation in the bill, from which it could be found that the suit affected property within the district.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 363.*]</p> <p>3. Equity (§ 362*) — Bill—Dismissal.</p> <p>A bill in equity may be dismissed, when it appears that the relief prayed for cannot be granted without injuriously affecting persons not parties to the suit.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 362.*]</p> <p>4. Equity (§> 362*) — Bili>-Dismissal.</p> <p>Where it did not clearly appear that complainant might not be entitled, on his allegations, to some measure of injunctive relief against defendant, who was a resident of the district and properly served, independent of other nonresident defendants, as to whom the bill ,was dismissed, the resident defendant was not entitled to a dismissal of the bill on motion, filed in the place of a demurrer, because of the absence of the other defendants.</p> <p>[Ed. Note. — For other eases, see Equity, Dec. Dig. §< 362.*]</p>

<p>1. Bankruptcy (§ 413*) — Discharge—Oiwections—Concealment op Assets.</p> <p>Bankr. Act July 1, 1898, c. 541, §• 14b, 30 Stat. 550 (U. S. Comp. 1901, p. 3427), provides that a bankrupt shall be granted a discharge u-.dess he has committed an offense punishable by imprisonment, as provided, and section 29 provides that a person may be punished by imprisonment on conviction of having knowingly and fraudulently concealed, while a bankrupt or after his discharge, “from his trustee” any of the property belonging to his estate in bankruptcy. Held that, in order that such offense might be committed, there must be a trustee; and hence a specification, where no trustee had been appointed, that the bankrupt had concealed property “from his estate in bankruptcy,” was fatally defective</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 41».*]</p> <p>2. Bankruptcy (§ 413*) — Claims—Concealment.</p> <p>An allegation that a bankrupt turned over a plumbing business to his-wife under an agreement that he was to manage the business thereafter and take therefrom at such times as he saw fit whatever amount he might wish, and that he had drawn therefrom only from $2 to $4 a week, while his services were reasonably worth from $10 to $20, did not allege the existence of any indebtedness on the part of the bankrupt’s wife to him, which could be the subject of a fraudulent concealment or of a false oath on the part of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 413.*]</p>

<p>Application by Andras Martinovsky for Naturalization.</p>

<p>In ’ Equity. Application of special master for instructions, upon notice to all parties.</p>

<p>In Equity. Application by a special master for instructions as to the disposition of a fund.</p>

<p>In Bankruptcy.</p> <p>Motion to open and set aside adjudication and allow certain judgment creditors with an execution outstanding and levy made to interpose an answer and set up that the bankrupt is not subject to adjudication. Also, motion by other creditors to intervene and amend first petition filed by alleging acts of bankruptcy not set forth therein.</p>

<p>Shipping (§ 81*) — Towage (§ 11*) — Negligent Navigation — Injury to Tow-Negligence oe Tug.</p> <p>Swell damage to scow in tow of a tug on a liawser near the West Bank Light, lower New York Bay, held to have been caused by the navigation .of the St. Paul and other steamers in that vicinity, but that the St. Paul was not liable; the injury sustained by the scow being the result of an improper make up of the tow by her tug, in that the boats were fastened within four or five feet of each other.</p> <p>[Ed. Note.. — For other eases, see Shipping, Cent. Dig. § 345; Dec. Dig.' § 81 ;* Towage, Cent. Dig. § 15; Dec. Dig. § 11.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Admiralty (§ 124*) — Costs.</p> <p>Disbursemeirls made in giving stipulations for value, even if not to surety companies, are taxable if reasonable.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 124.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Pleading (§ 59*)- — Sufficiency of Allegation's —Performance of Conditions Precedent.</p> <p>Under Code Civ. Proe. N. Y. § 533, a general allegation of performance of conditions precedent is sufficient.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 124, 125; Dec. Dig. § 59.*]</p>

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

<p>1. Sales (§ 150*) — Performance—Place—Tender uy Seller.</p> <p>Where a contract for the sale of corporate stocks and bonds provided that the buyer agreed to pay the price on a specified day, and that the place of payment was to be a certain hank in Chicago, where the securities were to be assembled and all clearances made, the seller was bound to have the securities at that place on the day specified and then and there tender the same to the buyer in order to establish the buyer’s default, unless a tender was waived.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 150.*]</p> <p>2. Tender (§ 11*) — Requisites.</p> <p>In order to constitute a valid tender, there must he actual ability, accompanied by immediate physical possibility of reaching out and laying hold of the thing to he delivered and the making of a manual proffer thereof, or of placing it in such a xiosition that the xierson to receive it may lay hold of it if he chooses.</p> <p>[Ed. Note. — For oilier cases, see Tender, Cent. Dig. § 20; Dee. Dig. § 11.*</p> <p>For other'definitions, see Words and Phrases, vol. 8, pp. 6910, 6911.)</p> <p>3. Sales ® 176*) — Delivery—Waiver of Default or Delay.</p> <p>Where a buyer’s agent requested further time to accept a delivery of securities x>urehased, which was denied, and on the date specified for completing the sale the buyer notified the seller that' S. was the buyer’s agent, but would communicate with the seller, there was no waiver of the seller’s obligation to have the securities at the place specified for the completion of the sale in order to make a tender required to put the buyer in default.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 176.*]</p>

<p>Petition to Review an Order of the District Court of the United States for the Western District of Kentucky.</p>

Avery, trustee for J. A. Townsend & Co., bankrupts, filed his “complaint” on the law side of the Circuit Court below, seeking to set aside as fraudulent three contracts made by the bankrupt, J. A. Townsend; the one, a (hied of trust to Abernathy, trustee, dated January 13, 1903, to secure Westall $0,250, the second, bearing the same date, to AVesinll, whereby lie (Townsend) was to ship to AVestall all lumber manufactured from certain lands set forth in the deed of trust…

Appellee, who has been for more than 15 years a manufacturer and dealer in paper cigar pouches, filed his bill in the Circuit Court charging that appellant, a Wisconsin corporation engaged in the same business, for the purpose of suppressing competition, and with intent to break up and destroy appellee’s business, was, at the time the bill was filed, and had been theretofore, circulating among appellee’s customers and the trade generally, by letters and otherwise,…

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

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

<p>1. Insurance (§ 695*) — Generad Manauisr — Mutual Benefit Insurance-Authority.</p> <p>Where the constitution and general laws of a fraternal beneficial society provided that the supreme general manager should have charge of the agency force and should hire and appoint the agents and attend to the organization of different lodges, subject to approval of the board of trustees, such manager, without the approval or knowledge of the board of directors, had no authority to employ an attorney to secure control of a New York corporation with power from that state to issue endowment-policies to its members.</p> <p>[lid. Note. — For other eases, see Insurance, Dec. Dig. §■ G95.*j</p> <p>2. Corporations (§ 425*) — Contract for Services — Ratification.</p> <p>Whore-- the general manager of a corporation had no authority to employ plaintiff to perform certain legal services for it, and its hoard of directors repudiated the employment on acquiring knowledge thereof and refused the results of the services, it was not estopped to deny the authority of its general manager to bind it.</p> <p>[fid. Note. — For other cases, see Corporations, Cent. Dig. §§ 1697-.1701; Dec. Dig. § 425.*]</p>

<p>Account (§ 7*) — Eight op Action — Wrongful Acts or Conduct — Interference with Contract.</p> <p>The mere fact that a purchaser of bonds from a committee of bondholders authorized to sell the same at the time of the purchase had knowledge that the committee had previously contracted to sell them to another does not imitóse upon him any liability to account to such other for any profit be may have made in the transaction, in the absence of any allegation or proof of fraud or that he induced a breach of the prior contract by the committee.</p> <p>[Ed. Note. — For other cases, see Account, Cent. Dig. §§ 20, 21; Dec. Dig. £ 7.*]</p>

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

<p>1. Waters and Water Courses (§ 203*) — Supply op Water to City — Contract — Action poe Breach — Defenses.</p> <p>Evidence field not to sustain the defense of a city to an action by a water company to recover hydrant rentals on the ground that the company had failed substantially to perform its contract.</p> <p>fEd. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 203.*]</p> <p>2. Appeal and Error (§ 1047*) — Review—Harmless Error — Order of Introducing Evidence.</p> <p>The mere admission in rebuttal of evidence necessary to a plaintiff's case in chief is not reversible error.</p> <p>fEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4132; Dec. Dig. § 1047. *]</p>

Appellant failed in its suit to hold appellees for alleged infringement of patent No. 633,723, September 26. 1899, to Kress, and patent No. 555,171, February 25, 1896, to Krauss.

This appeal is from, a decree holding that claims 1, 2, 8, 10, 11, 13, 15, 16, 17, and 18 of patent No. 687.499, November 26, 1901, to Dean, for a telephone-transmitter, are valid and infringed.

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

<p>1. Patents (§ 328*) — Infringement—Attachment foe Motoe Controller.</p> <p>The Potter patent No. 671,232, for an attachment for notched quadrants, the purpose of which is to secure automatically a notch-to-notch movement of the handle of the contact-cylinder on an electric car, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p> <p>2. Patents (§ 312*) — Infringement—Evidence.</p> <p>The fact that a device is within the language of a claim of a patent does not necessarily prove infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 312.*]</p>

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

<p>Patents (§ 328*) — Invention—Bending Machine.</p> <p>The Fliim patent, No. 736,S34, for a bending machine adapted specially for bending pipes or tubes for car and locomotive builders, is void for lack of patentable novelty and invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*) — Infringement—Gramophones.</p> <p>An injunction granted against infringement of the Berliner patent, No. 534,543, for improvements in talking machines.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p>

<p>I. Bankruptcy (§ 328*) — Claims—Time for Proof — “Claim Liquidated by Judgment.”</p> <p>A creditor of a bankrupt, whose debt was paid within four months prior to the bankruptcy, but from whom the amount was recovered hy the trustee by suit as a preference, is one holding a “claim liquidated by judgment,” within the meaning of Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561 (U. S. Comp. St. 1907, p. 3444), and he may prove the same against the estate within 60 days thereafter, although more than » year after the adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 328.*]</p> <p>2. Bankruptcy (§§ 223, 368*) — Compensation oe Trustee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 72, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), added by amendment by Act B'eb. 5, 1903, c. 487, §■ 18, 32 Stat.' 800 (U. S. Comp. St. Supp. 1907, p. 1033), which provides that “neither the referee nor the, trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized and prescribed in this act,” is an absolute bar to any extra allowance, however onerous or valuable the service renderéd may have been.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 223, 368.*]</p> <p>3. Bankruptcy (§ 474*) — Costs and Fees — Allowance to Creditor.</p> <p>A court of bankruptcy will not allow costs or attorney’s fees from an estate to a creditor whose claim was unsuccessfully contested.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dec. Dig. § 474.*]</p>

<p>On Motion in Arrest of Judgment.</p>

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

<p>At Daw. On motion for judgment notwithstanding the verdict.</p>

<p>In Chancery. On motion in one case for permanent inj'unction, and in the second case for a preliminary injunction.</p> <p>In No. 29,247:</p>

In Equity. On demurrers to supplemental bill. This case is submitted on the demurrers to the supplemental bill by members of the Railroad Commission of Alabama, and the numerous parties defendant named as sheriffs, solicitors, and clerks of courts. The allegations of the bill are fully set forth in the report of the cases under the style of the Louisville & N. R. Co. v. Railroad Commission of Alabama et al. (O. C.) 157 Fed. 944, and Central of Georgia Ry.

In Equity. This is a suit for partition, originally instituted before the clerk of the superior court of the county of Graham, N. C. Upon application of the defendants, the cause was removed to this court and docketed on the equity side of the docket.

In Equity. Ori motion for preliminary injunction and demurrer •to hill.

<p>Commerce (§ 89*) — Interstate Commerce Act — Jurisdiction to Enjoin Establishment ok Enforcement of Rates.</p> <p>A Circuit Court of the United Stales is without jurisdiction to enjoin the establishment of an interstate freight rate by a carrier, or to enjoin the enforcement of n new rate which has been published and filed, before its reasonableness and validity have been passed on by the Interstate Commerce Commission.</p> <p>LE(1. Note. — For oilier cases, see Commerce, Dec. Dig. § 89.*</p> <p>Jurisdiction of federal courts of suits under interstate commerce act, see note to Bailey v. .Mosher, 11 C. C. A. 318.J</p>

In Equity. This is an application by the complainant for an injunction pendente lite to restrain the defendants, the city and county of San Francisco and its chief of police, from interfering by arrest or otherwise with the officers and employes of the complainant in operating a rock quarry and rock crushing plant within the municipality.

<p>1. Bankruptcy (§ 295*) — Officers of Bankruptcy Court — Misconduct—Actions.</p> <p>An action may be brought in. the state courts to recover damages for wrongful acts of officers of the bankruptcy court entirely beyond their authority or duty to the prejudice of third persons.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 295.*]</p> <p>2. Bankruptcy (§ 295*) — Actions—Jurisdiction of State Court — Injunction.</p> <p>Plaintiff’s husband having filed a voluntary bankruptcy petition, defendant was appointed trustee, and, ascertaining that there was danger of plaintiff and her husband removing assets without the state, defendant seized certain trunks, furniture, etc., at’ the direction of the referee. On opening the trunks he found them to contain wearing apparel and a man's wallet containing $1,940 in cash. This he kept, hut returned the balance of the articles in the trunks to plaintiff, who thereafter brought three actions in the state court against him, one to recover the $1,940 as money belonging to her, which defendant was charged to have converted, another for the value of household and kitchen furniture of the value of $1,000 taken by the trasloe and alleged by plaintiff to lie owned in her own right, and the third to recover $10,000 for damages sustained from alleged misconduct of the trustee in seizing such property, etc. Held, that the acts of the trustee in so far as the property taken was concerned were in his official capacity, and hence he was entitled to an injunction restraining the prosecution of such suits, bpt not as to the action for damages for alleged abuse of authority.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 295.*]</p>

<p>1. Taxation (§ 604*) — Tax on National Bank Shakes — Remedy foe Illegal Taxation.</p> <p>A national bank or stockholder therein has the right to go into a federal court of equity to test the validity, under Rev. St. jy 5219 (U. S. Comp. St. 1901, p. 3502), of a tax levied by state authority on the stock of the bank, where there is no adequate remedy at law in such court, notwithstanding a remedy provided by the state statute.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. § 1228; Dec. Dig. § 604.*]</p> <p>2. Taxation (§ 604*) — Tax on National Bank Shakes — Remedy fob Illegal Taxation — Suit by Bank.</p> <p>Where a state statute provides for a tax on the stock of a national bank and requires the bank to pay it, the bank is in effect made a trustee and has the right to resort to a court of equity to determine its duty for its protection against the state, on the one hand, and the stockholders, on the other.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1228; Dea Dig S 604.*]</p> <p>8. Taxation (§ 386*). — Tax on National Bank Shakes — Validity of Statute.</p> <p>The validity of a state statute providing for the taxation of national bank stock is not affected by the fact that it does not provide for any deduction from the valuation on account of any United States bonds'held by the bank.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. SS 646, 647: Dec. Dig. § 386.*]</p> <p>4 Taxation (§ 113*) — Tax on National Bank Shares — Validity of Statute.</p> <p>Provisions of a state statute for the taxation of national bank stock, requiring the cashier of the bank to pay the taxes assessed against its stockholders, and making him and the bank Hable therefor, and for a penalty in addition in case of default, are not illegal as applied to a bank which has in its possession dividends or' other funds belonging to its stockholders sufficient to pay the taxes assessed against them.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 207; Dec. Dig. § 113.*]</p> <p>5. Taxation (§ Gil*) — Tax on National Bank Shares — Remedy fob Wrongful Enforcement — Injunction.</p> <p>While a provision of a state revenue statute that stockholders in national banks shall not be entitled to any deduction from the assessed valuation of their shares because of debts owed by them, while owners of other “money, credits, or investments” are allowed such deduction, is invalid as applied to a stockholder who owes debts and who has not sufficient other money, credits, or investments from which such debts may be deducted, as subjecting him to taxation “at a greater rate than is assessed on other moneyed capital in the hands of individual citizens” of the state, in violation of Rev. St. § 5219 (U. S. Comp. St. 1901, p. 3502), it is not so invalid as to a stockholder who is not actually affected by it ■to his detriment, and a bill filed by a bank to enjoin the collection of taxes imposed on its stockholders because of such provision must allege facts showing the portion of the tax so rendered illegal, and that the valid portion has been paid or tendered, in order to entitle the complainant to equitable relief.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1250; Dee. Dig. § 611.*]</p>

<p>Bankruptcy (§ 324*) — Amount of Claims — Secured Claims — Interest.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 57h, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), a creditor of a bankrupt, holding security which is liquidated after adjudication by being converted into money “according to the terms of the agreement pursuant to which such securities were delivered” to him, is entitled to compute interest on his debt up to the time of such liquidation, and may marshal the proceeds of the security first upon tlie interest, and receive dividends on any unpaid balance of the principal. [Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 324.*j</p>

In Bankruptcy. On motion to vacate stay. This is a motion to vacate the stay of the petitioner, Roche, against pro- ' ceeding to the entry of judgment in an action brought by him against the bankrupts in the Supreme Court of the state of New York. The action was for the conversion of the petitioner’s stock, which had been purchased by the brokers for him and had been held by them as pledgees for the repayment of part of the purchase price.

<p>1. Ejectment (§ 46*) — Parties—Tenant at Will.</p> <p>Where a tenant at will disclaimed all other interest in the property sued for in ejectment, he was not a necessary party.</p> <p>[Ed. Note. — For ether cases, see Ejectment, Cent. Dig. § 138; Dec. Dig. § 46.*]</p> <p>2. Removal op Causes (§ 30*) — Citizenship—Ejectment—.Toindek of Tenant.</p> <p>Joinder oí a tenant at will of the same citizenship as plaintiff a.s a party in ejectment did not prevent the removal of the cause otherwise removable to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. ¡j 79; Dee. Dig. § 30.*</p> <p>Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago & E. S. Co., 78 O. C. A. 302.]</p>

<p>111 Admiralty. Suit for collision.</p>

In Equity. On special plea. On the 12th of June, 1908, the plaintiff filed a suit at law, in the circuit court of Little River county, Ark., against the above-named defendants, and procured an attachment against certain lands, the alleged property of the defendant Bishop. The defendants being nonresidents, and no service being had, a warning order was issued.

In Rem. Proceedings for forfeiture of imported goods. These proceedings were brought under section 2802, Rev. St. (U. S. Comp. St 1901, p. 1873), and Customs Administrative Act June 10, 1890, c. 407, § 9, 26 Stat. 135 (U. S. Comp.

On Demurrer to Indictments for Conspiracy to Defraud the Customs Revenue. TMs is a demurrer by tbe defendants to an indictment charging them in six counts with conspiracy, under section 5440 of the United States Revised Statutes (U. S. Oomp. St. 1901, p. 3676). The first, third, and fifth counts charge conspiracies to violate section 2805 of the Revised Statutes (U. S. Oomp. St, 1901, p. 1947), and the second, fourth, and sixth counts to defraud the United States.

<p>1. Courts (§ 414*) — Federal Courts — Law and Equity — Jurisdiction.</p> <p>A federal Circuit Court, on its common-law side, had no jurisdiction either to foreclose a mechanic’s lien or to award plaintiff any relief against his failure to proceed to the enforcement thereof within the statutory time.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 414.*]</p> <p>2. Limitation op Actions (§ 119*) — Commencement op Action — Time.</p> <p>On the last day allowed by law for the commencement of an action to enforce a mechanic’s lien, plaintiff filed a petition therefor on the law side of the Circuit Court. The petition contained no prayer for process, and the summons thereon was returned unexecuted by the marshal by direction of plaintiff’s attorneys. Thereafter, on written praecipe, subpoenas in chancery were issued by the clerk and served, after which a bill in equity, contáining no prayer for process, was filed on the law side of the court. Held, that such proceedings were' insufficient to constitute the commencement of a suit to foreclose the lien within the time required.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Dec. Dig. § 119.*]</p> <p>3. Equity (§ 122*) — Bill—Subpoenas—Prayer por Process.</p> <p>Under equity rule 11, the clerk is expressly prohibited to issue chancery subpoenas until the bill is filed in his office.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 295; Dec. Dig. § 122.*]</p> <p>4. Equity (§ 222*) — Bill—Prayer por Process — Demurrer.</p> <p>A bill which contains no prayer for process is demurrable.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 222.*]</p> <p>5. Courts (§ 414*) — Bill—Filing.</p> <p>An amended petition or bill to foreclose a mechanic’s lien, filed on the law side of the Circuit Court, was demurrable.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 414.*]</p>

<p>In Equity. On cross-bill of revivor and supplement.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below the Board of General Appraisers reversed the assessment of duty by the collector of customs at the port of Boston. The Board’s opinion reads as follows: FISCHEB, General Appraiser. The merchandise consists of forged rifle barrels, rough-bored.

<p>1. Judgment (§ 714*) — Judgment as Bab — Identity of Question in Issue. _</p> <p>_ Where the parties in two actions were the same, and the question in issue is identical, as the construction of a provision of a will, the judgment in the first action is a bar to the second if properly pleaded, although different property is the subject-matter of litigation in the two actions.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1242; Dec. Dig. § 714.*]</p> <p>2. Appeal and Error (§§ 1097, 1195*) — Decision as Daw of the Case.</p> <p>Every question of fact or law which was before a Circuit Court of Appeals upon a writ of error and decided by its opinion, whether of affirmance or reversal, is conclusively settled both for such court and Hie court below in further proceedings in tlie same action, and the effect of such decision as the law of the case is not changed by the fact that an intermediate judgment by a state court: in a suit, between the same parties, and based on a contrary decision of the identical question, is pleaded as a bar ou a second trial in the lower court.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4661-4665; Dec. Dig. §§ 1097, 1195.*]</p> <p>3. Coubts (§ 365*) — Federal Coubts — Authority of Deoisions of State Courts.</p> <p>Aside from any effect which the construction of a will may have when seasonably presenied, as an adjudication in another case between the same parties when the same question is involved, there is no such duty devolving upon a court of the United States to follow a state court in its construction of a will as in case of the construction of a state statute, unless the opinion of the state court is declaratory of the settled law of the state and not merely a decision upon the particular instrument.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § 960; Dec. Dig. § 365.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>4. Courts (§ 370*) — Federal Courts — Authority of Decisions of State Courts.</p> <p>Where a Circuit Court of Appeals, on a writ of error in an action between citizens of different states, has construed a provision of a will in the exercise of its independent judgment, there being at the time no settled rule of decision in the state applicable thereto, such court will not reconsider and reverse its decision on a subsequent writ of error in the same case, because in the meantime the Supreme Court of the state in a different suit has rendered a contrary decision respecting the same will.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 953; Dec. Dig. § 370.*] _</p>

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

The questions here involved arose under intervening petitions filed in the consolidated mortgage foreclosure suits, styled “Jessup & Knox v. Wabash, St Louis & Pacific Railway and Others.” The interveners are the same who prosecuted their claims in the state courts of Ohio to a decree in accordance with their insistence.

<p>1. Sales (§ 420*) — Remedies of Buyes — Action for Breach of Contract-Questions for Jury.</p> <p>Where, under a contract for a sale, of yarn to a knitting mill to be delivered in weekly shipments of a stated amount, the purchaser made payments semimonthly, instead of 10 days after each bill of lading, as required by the contract, and such payments were accepted by the seller and shipments continued, the seller could not cancel the contract because of such deviation from its terms without reasonable notice to the purchaser, giving an opportunity to comply strictly with, such terms in the future, and, where the seller did cease shipments and cancel the contract, it was a question for the jury, in an action for its breach, whether such cancellation was justified.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. § 1202; Dec. Dig. § 42’0.*]</p> <p>2. Appeal and Error (§ 1033*)— Review — Harmless Error.</p> <p>The adoption by the court in its instructions of an erroneous measure of damages for breach of a contract is not ground for reversal by defendant, whore the result was that the judgment against it was smaller than it would have been had the correct rule been stated.</p> <p>| Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4036; Dec. Dig. § 1033.*]</p> <p>3. Appeal and Error (§ 263*) — Necessity for Exceptions — Instructions.</p> <p>It was not reversible error to assume the correctness of the testimony of witnesses as to the price of an article, without submitting the same to the jury, where such testimony was uncontradicted, and no exception was taken to the charge containing such assumption.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-3532; Dec. Dig. § 263.*]</p>

<p>1. Master and Servant (§ 284*) — Master’s Liability for Injury to Servant — Scope op Employment.</p> <p>Whether a servant was acting within the scope of his duty when injured is usually for the jury, in an action for the injury, especially where, by reason of the installation of new machinery shortly before his injury, his duties had been changed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1005; Dec. Dig. § 284.*]</p> <p>2. Master and Servant (§§ 286, 289*) — Master’s Liability for Injuries to Servant — Actions—Questions for Jury.</p> <p>Plaintiff was a ear loader at the coal breakers of defendant railroad company and was injured by having his feet caught in a cog gearing while executing the orders of the boss loader directing him to clear a screen which had become clogged. The gearing was part of the machinery for operating a new conveyor for the screenings which had just been put in. Before that the screenings which passed through the screens in the loading chutes fell into small cars, and the employ? operating such cars had attended to the clearing of the screens, and plaintiff had never before been inside the breaker, where he was required to go. The place was filled with coal dust and dark, and no lights could be used. The cogs were not covered, and the noise prevented their being heard. Plaintiff did not know their position and was given no warning- or instructions. Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were both properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050, 1089-1132; Dec. Dig. §§ 286, 289.*]</p>

<p>1. Conspiracy (§ 43*) — Federal Statute — Indictment.</p> <p>An indictment, under Key. St. § 5440 (ti. S. Comp. St. 1901, p. 3676), for conspiracy to commit an offense under section 5480, as amended by Act March 2, 1889, c. 393, § 1, 25 Stat. 873 (U. S. Comp. St. 1901,. p. 3696), by devising a scheme to defraud intended to be carried out by the use of the mails, must charge a conspiracy to commit acts which, if committed, would constitute an offense under the latter section; but it need not charge separately that defendants specifically conspired to commit each element of the offense.</p> <p>I Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 91; Dec. Dig. § 43.*]</p> <p>2. Post Office (§ 35*) — “Scheme to Defraud” — Elements of Offense.</p> <p>To constitute a “scheme to defraud” to be carried out by 1he use of the mails, in violation of Bey. St. § 5480, as amended by Act March 2, 1889, c. 393, § 1, 25 Stat. 873 (U. S. Comp. St. 1901, p. 3696), it is not necessary that the scheme should be fraudulent on its face; but, although it is apparently a legitimate business, it is within the statute if there was an intention not to conduct such business honestly, but to use it to defraud.</p> <p>FEd. Note. — For other cases, see Post, Office, Cent. Dig. § 55; Dec. Dig. § 35.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 0342.]</p> <p>3. Conspiracy (§ 43*) — Federal Statute — Indictment.</p> <p>An indictment, under Bov. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for conspiracy to use the mails to defraud, in violation of section 5480, as amended by Act March 2, 1889, c. 393, §■ 1, 25 Stat. 873 (U. S. Comp. Si. 1901, p. 3696), considered, and held to sufficiently describe the offense which defendants conspired to commit.</p> <p>[Ed. Note.. — For other cases, see Conspiracy, Cent. Dig. § 96; Dec. Dig. § 43.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79.]</p>

<p>Bankruptcy (§ 191*) — Materialmen—Lien—State Law — '“Materials an» Supplies.”</p> <p>Ky. St. $ 2487 (Russell’s St. § 2399), provides that, when the property of the operator of a manufacturing establishment shall be assigned for the benefit of creditors, persons who shall furnish material and supplies to carry on the business shall have a lien on the assets therefor. The bankrupt was a leather manufacturer, and also conducted a jobbing business in the same line as another department, in which it bought and sold leather goods. Held, that manufactured goods so purchased for resale were not “materials and supplies” for carrying on the bankrupt’s manufacturing business, and lienee the creditors furnishing the same were not entitled to a lien therefor.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 191.*]</p>

<p>1. Executors and Administrators (§ 443*) — -Action bt Administrator— Plea ding- -Nul Tiel Administrator.</p> <p>In an action by plaintiff as an administrator, an objection that plaintiff was not and .never had been administrator of the effects of deceased, may be taken by a special plea in bar or by plea in abatement.</p> <p>] E:cl. Note. — For oilier cases, see Executors and Administrators, Cent. Dig. S' 1838; Dec. Dig. § 443.*]</p> <p>2. Appeal and Ebbob (§ 102*) — Judgments Appealable — Ovebbuling Demurrer.</p> <p>A judgment overruling a demurrer to a plea In abatement without further order or judgment, in the cause, is not subject to review under Rev. St. § 1011 (U. S. Comp. St. 1901, p. 715), declaring that there shall be no reversal on a writ of error for error in ruling on a plea in abatement, other than a plea to the jurisdiction of the court or for an error in fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, .Cent. Dig. § 688; Dec. Dig. | 102.*]</p> <p>8. Courts (§ 405*) — Judgments Appealable — Plea in Abatement.</p> <p>A judgment of the United States Court for China, overruling a demurrer to a plea in abatement, was not a final judgment, and therefore not reviewable by the Circuit ■Court of Appeals under Act Cong. June 30, 1906, c. 3934, § 3, 34 Stat. 815 (U. S. Comp. St. Supp. 1907, p. 798), creating such court and declaring that appeals shall lie from its final judgments or decrees to the United States Circuit Court of Appeals for the Ninth Judicial Circuit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1100; Dee. Dig. § 405.*]</p> <p>4. Appeal and Ebbob (§ 4*) — Action at Law — Motive—Review.</p> <p>An action on the bond of a United States Consul General for alleged neglect of office is an action at law reviewable on writ of error and not by appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 10; Dec. Dig. § 4.*]</p>

<p>Appeal and Error (§ 215*) — Review—Instructions.</p> <p>A judgment will not be reversed because of a statement of the issues by the court in its charge, expressly made subject to correction by counsel if erroneous, and to which no objection was made or exception taken.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1309; Dee. Dig. § 215.*]</p>

<p>Courts (§ 382*) — Federal Courts — Jurisdiction oe Supreme Court — Election.</p> <p>Where, in a case removed on the ground of diversity of citizenship, the defendant subsequently raises a question of jurisdiction, and, being defeated both on that question and on the merits, takes the case for review by writ of error to the Circuit Court of Appeals, and is again defeated, the decision of such court is final, and he cannot take another writ of error to the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 382.*]</p>

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

<p>Patents (§ 328*) — Infringement—Desk Calendar.</p> <p>The Wilson patent, No. 585,944, claim 1, for a holder for desk calendars, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This is a bill to restrain infringement of the Henry Deitz patent, No. 576,-094, issued February 2, 1897, for an improvement in car couplers. The alleged infringing device is known as the “Major coupler,” and is made under three patents to J. Timms, being Nos. 679,115, 685,802, and 734,9,99.</p> <p>. The Deitz patent cannot be well explained without the drawings and their descriptions, as shown in the patent. We therefore set out same below.</p> <p> </p> <p>Figure 1 is plan sectional view through the coupler. Fig. 2 is a vertical sectional view on line '2 2 of Fig. 1. Fig. 3 is an end vertical sectional view on line 3 3 of Figs. 1 and 2. Fig. 4 is a perspective view of the lower end of the locking-pin. Fig. 5 is a perspective view of the end of the knuckle which comes into engagement with the locking-pin. Fig. 6 is a similar plan view to that of Fig. 1, showing the locking-pin in a different position. Fig. 7 is a similar view to that of Fig. 2, showing the locking-pin in a different position. Fig. 8 is a similar view to that of Fig. 3 with the locking-pin in the position shown in Figs. 0 and 7.</p> <p>In the drawings, A designates the ordinary main cast piece of car couplers of this class, and B designates the knuckle thereof.</p> <p>D is the locking-pin, which is made in a manner to serve the purpose of automatically locking the knuckle and also to throw open the knuckle when the pin is lifted, as will be described. This pin, D, has a slot, d, in its forward edge (shown by the dotted lines in Figs. 3, 7, and 8), which engages a projection, E, in the front wall of the main casting. This slot, d, is inclined and offset at its lower end, as is shown in Figs. 3 and 8, for the purpose of throwing the lower end of the pin at an incline when the pin is lifted, whereby the shoulder D' of the pin engages a lip B' of the knuckle end, as is shown in Figs. 6, 7, and 8. The purpose of this is to provide that when the locking-pin is lifted and let fall back again before the cars are pulled apart, perm,ii ling the knuckle to be opened, the pin will fall back and rest upon the end of the knuckle and ride thereon until the knuckle is pulled open, whereby the pin rides off Ihe knuckle end and drops in its normal position ready to couple automatically. The pm when down in its normal position, locking the knuckle, is shown in Fig. 2, and when in this position and the knuckle is open and a coupling is made, the pin swings back, td free the end of the knuckle, to the position of the dotted lines in Fig. 2, the lip 1/ of the pin engaging the projection P of the main casting, and thereby acting a» a center about which the pin revolves when automatically colliding, and when the knuckle is home the pin swings back to its normal vertical position between the end of the knuckle and the side wall of the casting,.thereby locking the knuckle.</p> <p>On the lower end of the pin D, there is a projection, I>2, having a lip, D», and the outer end of the knuckle is cut away on an incline, as is shown at 152, which leaves an inclined way, 153, and upon the lifting of the pin forcibly the inclined slot, d, throws the lip, D», into engagement with the inclined way, lis (see Figs. 7 and 8), whereby the further upward movement of the pin, the lip, I>3, engaging the way B3 by virtue of the incline, forces the knuckle end outward and open in the position of the dotted lines in Fig. 6, provided, however, the knuckle is free to open, not being in contact with any other coupler. The purpose of this means of throwing open the knuckle is to avoid the necessity of the brakeman entering between the ears at any time for any purpose when coupling, and. should he find the knuckle closed when he desires to couple, all that he is required to do is to lift the cutting-out lever, thereby lifting the locking-pin, which unlocks the knuckle and throws it open by the vertical movement, as above described, and this means of throwing open the knuckle is secured by the simple addition of the end-projection locking-pin and by the cutting away of a portion of the end of the knuckle, making no new part to the coupler nor adding any additional expense in its construction, which is a great desideratum.</p> <p>The court below dismissed the bill upon the ground of noninfriugement. Complainants have appealed.</p>

<p>1. Patents (§ 20*) — Invention—Change in Movabimtt of Parts.</p> <p>Mailing one of iwo coaeting parrs stationary and the other movable, where before the first had been movable and the second stationary, does not amount to invention.</p> <p>|Ed. Note. — For other cases, see Patents. Dec. Dig. § 20.*J</p> <p>2. Patents (§ 328*) — Infringement—Hand-Poxes fob Cars.</p> <p>The Duner patent, No. 639,891, for a sand-box for cars, claim 3, given the only construction which will save it from anticipation, held not infringed.</p> <p>(Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*)</p>

<p>1. Patents (§ 2G*) — Invention—Combination of Old Elements.</p> <p>If ordinary mechanical skill is adequate to make the selection of elements from machines in the prior art and their union or combination in a new machine, operating in the old way and accomplishing the same result, although it may be an improved result, and no new idea is involved in the process, there is no patentable invention, however great the improvement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p> <p>2. Patents (§ 328*) — Invention—Ikoning-Maohines.</p> <p>The Wendell patent, No. 466,813, for an ironing-machine, is void for lack of patentable invention in view of the prior art.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. Suit to restrain alleged infringement of United States letters patents for “clothes-drier” and “improvements in drier,” respectively, and for an accounting.

<p>Patents (§ 828*) — Validity and Infktnuemknt — Astektn.</p> <p>The Hoffman patent, No. 644,077, Cor acetyl salicylic acid, known medically as “asperin,” is for the product of a new process which for the first time produced it in a pure state and rendered it valuable for medicinal use and is valid. Also, held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*) — Tnertnoement—Carpet.</p> <p>The Heald patent, No. 601,640, for a woven fabric intended especially for carpets, claim 1, strictly construed as required by the prior art, held not infringed.</p> <p>[Ed.' Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Equity (§ 429*) — Di.okeh non Accounting — Power to Modify.</p> <p>A decree entered in a federal court in a suit for an accounting in pursuance of equity rule 39, following an order that the bill be taken pro confesso, except that it renders such order absolute, is interlocutory only, and may be modified by the court where it directs the account to be stated in a manner not authorized by the allegations of the bill.</p> <p>| Ed. Note. — For other cases, see Equity, Cent. Dig. $ 1027; Dec. Dig. § 429.*]</p>

In Bankruptcy. This comes up on an order to show cause why a stay, should not be granted to prevent certain creditors of the bankrupt from collecting their claims out of the wages of the bankrupt in the state courts. The petition and adjudication took place on May 25, 1909.

<p>Cotjbts (§ 810*) — Indispensable Parties.</p> <p>The bill alleged that the complainant directed C. to buy certain stock on the New York Stock Exchange; that the order was transmitted by O. to the defendant, or to some other person; that the stock was bought, and the certificate came into the defendant’s hands with knowledge that the stock belonged to the complainant; that the complainant, having paid O. in full, demanded tlie stock both of C. and of the defendant, but failed to obtain it; that if the defendant sold the stock, as the complainant was informed, its proceeds were in the defendant’s hands free from lien; that the defendant had been paid in full on account of the transaction. The defendant pleaded that C. was a necessary party to the bill. Held, that the plea should be sustained.</p> <p>FEd. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. S 310. *]</p>

<p>Courts (§ 274*) — Federal Courts — District in Which Suit Must be Brought — Proceedings Against Corporation.</p> <p>A federal court of equity will not entertain jurisdiction of a suit to wind up a corporation or appoint a general receiver therefor, where neither the domicile nor property of the corporation are within the state or district and the residence of the stockholders is immaterial.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 274.*</p> <p>Citizenship as affecting the jurisdiction of the federal courts, see note to Shipp v. Williams, 10 C. C. A. 249.]</p>

<p>1. Carriers (§ 132*) — Express Companies — Loss of Goods — Presumptions.</p> <p>Since an express company performs its services as carrier by various lines of railroad and other conveyances, it would be presumed, from an. allegation in a declaration against an express company for loss of goods that the company received the goods addressed to a certain person and. destination, that it was a common carrier between the points of receipt and delivery.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 578; Dec. Dig. i 132 .*]</p> <p>2. Carriers (§ 131*) — Delivery to Carrier — Declaration.</p> <p>"Where various counts in a declaration against an express company alleged delivery of the goods to defendant for transportation at different places, there was no other ambiguity or uncertainty than is permissible under a videlicet, so that proof of delivery at either of the places named would be sufficient.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 574; Dec. Dig. i 131.*]</p> <p>3. Carriers (§ 95*) — Transportation—“Promptly and Without Delay.”</p> <p>The words “promptly and without delay,” used to define a carrier’s duty with reference to the transportation of goods, mean “with reasonable promptness, and without unreasonable delay.”</p> <p>[Ed. Koto. — For other cases, see Carriers, Cent. Dig. § 396; Dec. Dig. § 95.*]</p>

<p>Towage (§ 11*) — Injury to Tow — Stranding.</p> <p>A tug held liable for the stranding of a barge which she was docking in a difficult place, where, owing to the shallowness of the water and the presence of rocks at certain places, great care was required in handling the tow and in waiting for a favorable tide.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 17; Dec. Dig. §' 11.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, which is reported as G. A. 6,250 (T. D. 26,-965), affirmed the assessment of duty by the collector of customs at the port of Boston. The Board’s opinion reads as follows: WAITE, General Appraiser.

<p>1. Courts (§ 802*) — Jurisdiction of Federal Courts — Suits to Which United States is Party.</p> <p>By virtue of Const, art. 3, § 2, and the federal judiciary acts (Act March 8, 1875. c. 137, § 1, 18 Stat. 470. as amended by Act March 3, 1887, c. 373, § 1, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 806, § 1, 25 Stat. 433 [II. 'S. Comp. St. 1901, p. 508]), a Circuit Court of the United States has jurisdiction of any suit in which the United States properly appears as plaintiff.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 843; Dec. Dig. § 302.*]</p> <p>2. Indians (§ 13*) — United States — Capacity to Sue — -Suit in Relation to Indian Lands.</p> <p>The several acts of Congress and treaties by which the United States made unconditional grants of lands in fee simple to each of the Five Civilized tribes of Indians in Indian Territory in their tribal capacity, subject to defeasance only in case the tribe should cease to exist or to occupy the lands, followed by the allotment of such lands in severally to members of such tribes with the consent of the national government, left no vestige of title to lands so allotted in the United States which will support an action by it in its own behalf in respect to such lands.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>8. Indians (§ 13*)' — Status of Members of Five Civilized Tribes — Suits Respecting Lands — Parties.</p> <p>By act March 3, 1901, c. 868, 31 Stat. 1447, amending section 6 of the general allotment act of February 8, 1C07 (24 Stat. 390, c. 119), and providing. inter alia, that “every Indian in the Indian Territory is hereby declared to be a citizen of the United States and is entitled to all the rights, privileges and immunities of such citizens,” all members of either of the Five Civilized Tribes in such territory became and remain citizens, unaffected by the fact that by subsequent legislation their tribal existence was continued to await the final disposition of the tribal property, or that restrictions still exist on their power to alienate their lands after allotment in severalty; and such being their political and civil status, with full power to maintain suits to protect their rights, the United States occupies no such relationship of trust or guardianship toward them as entitles it to maintain in their behalf suits in its own name, to which they are not parties, to cancel conveyances made by them of their allotted lands.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p> <p>4. Equity (§ .148*) — Bill—“Multifariousness.”</p> <p>A bill filed by the United States to cancel for fraud a large number of separate conveyances made by individual Indians to the several defendants, and having no connection with each other, the suit being on behalf of tlie various grantors, is multifarious (citing Words and Phrases, vol. 5, p. 4616).</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 341-367; Dec. Dig. § 148.*]</p>

<p>In Admiralty. On exceptions to libel.</p>

<p>L Bankruptcy (§ 303*) — Equitable Lien — Evidence.</p> <p>Evidence helé to establish an agreement between complainant and a ■ bankrupt that complainant should have security for advances of money and supplies to be made to the bankrupt from time to time to enable him to perform certain logging contracts, by a lien on the lumber manufactured and the proceeds thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. § 303.*]</p> <p>2. Sales (§ 235*) — Bill op Sale — Bona Fide Purchasers.</p> <p>Bills of sale not properly acknowledged, and so not entitled to record, are invalid as against persons without notice, or innocent purchasers for value.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 684; Dec. Dig. § 235.*]</p> <p>3. Liens (§ 7*) — Equitable Liens.</p> <p>An agreement between complainant and a bankrupt that complainant should have present security on the timber covered by certain logging contracts, the logs cut therefrom, and the lumber manufactured from the logs, in return for money and supplies advanced, to enable the bankrupt to complete his lumber operations, constituted an equitable lien, effective against all save purchasers for value without notice, under the rule that equity looks on things agreed to be done as actually performed.</p> <p>[Ed. Note. — For other cases, see Liens, Cent Dig. § 26; Dec. Dig. § 7.*]</p> <p>4. Bankruptcy (§ 267*) — Funds op Estate — Equitable Lien.</p> <p>Where complainant had an equitable lien on timber and lumber manufactured by a bankrupt, the lien attached to a fund derived from a sale thereof in the hands of the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 380; Dec. Dig. g 267.*]</p> <p>5. Bankruptcy (§ 198*) — Attachment Lien — Termination.</p> <p>Where no attempt was made in a bankruptcy proceeding to reserve a prior attachment lien of a creditor for the benefit of the estate, as authorized by Bankr. Act July 1, 1898, e. 541, § 67f, 30 Stat. 565 (U. S. Comp. 'St 1901, p. 3450), and no order of the bankruptcy court was made to that end, the lien was dissolved by the bankruptcy proceedings.</p> <p>Dig. § 198.*]</p> <p>6. Bankruptcy (§ 207*) — Attachment—Preservation.</p> <p>Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat 565 (U. S. Comp. St. 1901, p. 3450), authorizing the preservation of an attachment lien for ike benefit of the estate, was designed only to preserve some interest acquired by virtue of the attachment which would not otherwise pass to the bankrupt’s trustee by virtue of the proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 207.*]</p> <p>7. Bankruptcy (§ 155*) — Interest op Trustee.</p> <p>A trustee in bankruptcy takes the bankrupt’s property m cases unaffected by fraud in the same condition that the bankrupt held it, and subject to the equities thereon in the bankrupt’s hands, except where there has been a conveyance or incumbrance void as against the trustee by some express provision in the act.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 155.*]</p> <p>8. Bankruptcy (§ 177* Bills of Sale — Prior Equitable Dien.</p> <p>Bills of sale, assignments, etc., executed by a bankrupt within four months prior to the filing of the bankrupt’s petition, but to carry into effect a prior agreement for security for advances and supplies made more than eight months prior to the filing of the petition, were not void because made within four months of the bankruptcy adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 263; Dec. Dig. § 177.*]</p> <p>9. Frauds, Statute of (§ 72*) — “Interest in Band” — Timber Contracts.</p> <p>A contract for the sale of standing timber, contemplating separation from the soil within a reasonable time, without any stipulation for the beneficial use of the soil, but with a mere license to enter and take them away, is not a sale of an “interest in land” within the fourth section of the statute of frauds, but is a sale of goods only.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 117; Dec. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3700; vol. 8, p. 7091.]</p> <p>10. Frauds, Statute of (§ 63*) — Timber Contracts — Assignment.</p> <p>Assignment of timber contracts, contemplating a removal of the timber within a reasonable time, need not be by deed.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 100; Dec. Dig. § 63.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 58*) — Infringement—Imitation.</p> <p>A red seal or label, containing a trade-mark, placed in the center of a talking machine disc record, is not imitated so as to give the maker a remedy in equity for infringement of trade-mark by reason of the placing by another manufacturer of a label in the same place on his discs, or because it is surrounded by a red band, where .it has no other resemblance to complainants’.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 66, 67; Dec. Dig. § 58.*]</p> <p>2. Trade-Marks and Trade-Names (§ 67*) — Unfair Competition — Right to Maintain Suit.</p> <p>The fact that an article is made under a patent, and that the manufacturer might have a remedy against another manufacturer for infringement of such patent, does not preclude him from maintaining a suit, against such manufacturer for unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 78; Dec. Dig. § 67.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare v. Harper & Bros., 30 C. O. A. 376.]</p> <p>3. Injunction (§ 34*) — Subjects of Protection — Property Bights.</p> <p>Complainants manufacture, under patents, disc records for use in machines for the reproduction of sound containing records of vocal and instrumental music originally rendered by artists of distinction, who receive payments and royalties from complainants. Defendant made and sold records'containing the same songs or music, advertising and claiming them to be duplicates of the originals, equal to them in all respects, and sold at one half the price. Such records were made by taking a matrix from one of the commercial records of complainants from which copies were made. Held, that aside from any question of infringement of trade-mark or imitation of label, or deception of the public, complainants were entitled .to relief in equity by injunction to restrain the sala of such copies as a wrongful appropriation of their property.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §■ 74; Dee. Dig. § 34.*]</p> <p>4. Injunction (§ 114*) — Parties.</p> <p>To such a suit the artist whose music is reproduced, and who receives a royalty on the number of records sold, is not a necessary or an indispensable party.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 202; Dec. Dig. § 114.*]</p> <p>5. Monopolies • (§ 12*) — Federal Anti-Trust Act — Contracts Prohibited.</p> <p>An agreement between competing manufacturers to maintain the prices of their respective products may not be in restraint of trade nor within the prohibition of the federal anti-trust law (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p>

<p>1. Reference (§§ 24, 100, 101, 106*) < — Practice in Federal Courts — Consent of Parties — Report and Findings of Referee.</p> <p>It is a recognized practice in the federal courts to make a reference in law actions by consent of the parties, when either party may file objections to the referee’s report, and the court may make a re-reference for further findings or enter judgment on the record, in which case, while it will be strongly inclined to follow the findings of the referee upon the facts, it is not bound to do so either as to the facts or law.</p> <p>[Ed. Note. — For other cases, see Reference, Cent Dig. §■§ 157-180, 206; Dec. Dig. §§ 24, 100, 101,106.*]</p> <p>2. Estoppel (§ 94*) — Acts Creating Equitable Estoppel — Assent to Mortgage of Property by Another.</p> <p>One representing that he had purchased certain cattle went in company with the seller and obtained a loan from defendants, giving -a chattel mortgage on the cattle as security. The mortgage recited the sale, and the seller signed the note as surety and received the benefit of the proceeds in paying off a prior note and mortgage given by him. Held that, as against defendant, neither he nor his privies could thereafter assert title to the cattle, nor could he by any subsequent act affect defendant’s rights under Ms mortgage.</p> <p>[Ed. Note.- — -For other cases, see Estoppel, Cent. Dig. §§ 245, 247, 276-284; Dec. Dig. § 94.*]</p> <p>8. Evidence (§> 271*) — Competency—Statements by Agent as Against Adverse Party.</p> <p>In an action between two mortgagees of the same property, each claiming priority of lien, statements made by an agent of one in a report to his principal are not evidence admissible against the other.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1087; Dec. Dig. § 271.*]</p> <p>4. Chattel Mortgages (§ 178*) — Action Between Mortgagees — Action—■ Burden oe Proof.</p> <p>In an action of trover brought by a chattel mortgagee against one claiming under a prior mortgage, given by another, where the general issue is pleaded, the burden rests on the plaintiff to prove not only that the property was within his mortgage, but also that it was owned by the mortgagor when such mortgage was made before defendant can he required to prove Ms own title.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 178.*]</p> <p>5. Chattel Mortgages (§ 178*) — Validity—Impeachment of Mortgagor’s Title.</p> <p>Defendant took a chattel mortgage on certain cattle to secure a loan ot money which was used to pay off a prior mortgage given by one from whom the mortgagor claimed to have purchased the cattle; the mortgage reciting that the cattle were so purchased. The former owner was present and assisted in negotiating the loan and signed the note as surety. The mortgage was duly' recorded. Subsequently such former owner gave a mortgage to plaintiff covering a larger number of cattle, and containing a general description claimed by plaintiff to include the cattle mortgaged to defendant. Such cattle having been shipped to defendant by its mortgagee and sold, plaintiff sued for their conversion. Held,, that the evidence was insufficient to sustain the burden of proof resting on plaintiff to impeach the validity of defendant’s mortgage or the title of its mortgagor.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 178.*]</p>

<p>1. Slaves (§ 24*)- — “Peonage”—Defined.</p> <p>“Peonage,” within the meaning of Rev. St. §§ 1990, 5526 (U. S. Comp. St. 1901, pp. 1266, 3715), which make the same uhlaAvful. and the holding of any person to peonage a criminal offense, is the holding of persons in unwilling servitude in payment of debts, by means either of force or intimidation.</p> <p>[Ed. Note. — For other cases, see Slaves, Dec. Dig. § 24.*</p> <p>Ifor-othér definitions; see Words 'and Phrases, Vol. 6, pp. 5281, 5282.]</p> <p>2. Slaves (§ 24*) — Peonage—Intimidation.</p> <p>Inducing a person to labor in payment of debts by threats of prose-cution may constitute intimidation and amount to peonage, if by reason of the different character of the parties such threats overcame the will of the servant and the service ivas involuntary.</p> <p>[Ed. Note. — For other cases, see Slaves, Dec. Dig. §• 24.*]</p> <p>3. Slaves (jj 24*) — Peonage—Statutory " Prohibition — Elements of Criminal Offense.</p> <p>In order to constitute the crime of holding another person in peonage, it is not necessary that the defendant should have acted corruptly.</p> <p>[Ed. Note. — For other cases, see Slaves, Dee. Dig. § 24.*]</p> <p>4. Slaves (§ 24*) — Peonage—Elements of Offense.</p> <p>The fact that persons were induced to work for another in payment of debts through fear of prosecution if they refused did not render the master guilty of peonage, unless such fear was caused by threats of prosecution made by him at the time.</p> <p>[Ed. Note. — For other cases, see Slaves, Dec. Dig. §■ 24.*]</p> <p>5. Criminal Daw (§ 881*) — Evidence oe Good Character — Weight.</p> <p>While evidence of the good character of a defendant charged with crime is always admissible, and to be considered by the jury, yet, & determining the weight to which it is entitled, they should take into account the nature of the offense charged, and the nature and disposition of the witnesses ; and if the jury believe that such witnesses are in sympathy with the act of the defendant, and would ¡is readily testify io ids good character, even if they believed him guilty, the testimony is not sufficient alone to raise a reasonable doubt of his guilt.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 84(5; Dec. Dig. § 381.*]</p>

At L,aw. This is an action by the Da Moine Dumber & Trading Company, a corporation organized and existing under the laws of the state of California, against H. G. Kesterson and A. W. Silsby, who are citizens and residents of the state of Oregon, to recover damages for the breach of a contract entered into between the Griffin & Skelley Company, which is also a California corporation, and the defendants.

In Equity. The facts attending this cause, necessary to an understanding of the present controversy, are as follows: On April 14, 1893, the Northwest Electric Company recovered a decree in this court against L. L. Hurd, defendant above, and his wife, Josephine Hurd, for the sum of $13,138.50.

In Equity. On motion for preliminary injunction. Complainant seeks by this suit to enjoin the defendant from using the word “cream” to designate the defendant’s product of rolled oats, which it has put upon the market in competition with complainant’s trade in the same commodity.

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

In Bankruptcy. On petition of Win. S. Hart for review of an order of the referee summarily requiring him to- pay $869 to the trustee.

In Bankruptcy. On petition of the trustee for review of an order of the referee allowing a claim of Stevens & Pedersen for rent, and entitled to priority under section 64b (5) of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448]).

In Bankruptcy. On petition of Wm. S. Hart for review of an order of the referee. Dexter D. Horsey, a merchant doing business at Waterville in Allamakee county, was adjudged bankrupt by this court February 24, 1908, upon his own petition filed that day. January 27th preceding he made a chattel mortgage upon his stock of merchandise to the petitioner, Wm.

<p>1. Frauds, Statute or (§ 131*) — Conveyance or Band — Equitable Mortgage.</p> <p>A bankrupt borrowed $1,500 from decedent, and executed as security a warranty deed, taking back a bond for title, providing for reconveyance wbén the debt was paid. Two years thereafter the bankrupt obtained an additional loan from decedent, making the total indebtedness $3,593.53. The original note was then canceled, a new one made, and the bond for title altered by striking out the due date and interlining a description of the new note; but by inadvertence the words “fifteen hundred dollars,” originally appearing in the bond, were not stricken, nor was the bond re-executed. Sold, that the deed and bond, as a mortgage for the increased indebtedness, was not unenforceable under tbe statute of frauds, on the theory that the new agreement was by parol.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Dec. Dig. § 331.*]</p> <p>2. Mortgages (§ 257*) — Liens—Priority.</p> <p>A bankrupt executed a deed to decedent to secure a loan for $1,500, and afterwards borrowed more money, so as to increase the debt to $3,593.53; the bond for reconveyance being then changed to describe the new note, but omitting to strike; the words “fifteen hundred dollars,” originally describing the debt. Thereafter the bankrupt conveyed all his interest in the bond for title to petitioner. Held, that petitioner was charged with notice of the fact that the deed and bond were intended to secure the increased indebtedness, and was therefore not entitled in equity to a re-conveyance of the property on payment of the $1,500 and Interest. ,</p> <p>I Ed. Note. — For other cases, see Mortgages, Cent. Dig. § «84; Dec. Dig. § 257.*]</p>

<p>Salvage (§ 13*) — Nature of Service — Salvage or Towage Service.</p> <p>A schooner, which had been cast adrift by her towing steamer in a gale on Take Superior, after anchoring during the night, made sail and was proceeding down the lake toward the Portage with a fair wind, but slowly, when she engaged a small fishing tug which came,' alongside to assist, and by means of the tug and sails she reached the Portage, where, after once stranding, she was safely anchored. Although there was some wind, the weather was fair, and neither lug nor tow was in any serious danger. Held, that the service of the tug was not a salvage, but only a towage, service, and entitled to compensation as such.</p> <p>fKd. Note. — For other cases, see Salvage, Cent. Dig. § 25; Dec. Dig. i 13.*]</p>

' In Equity. Application by complainant for allowance of an appeal to the United States Supreme Court from decree of foreclosure and sale (168 Eed. 937) made herein March 18, 1909.

In Equity. This is an application made by receivers to amend an order, entered March 17, 1908, appointing receivers under bill of complaint of the Guaranty Trust Company, trustee under the first mortgage.

<p>In Equity. Petition of receivers for instructions with reference to expenditures upon carhouses at Lenox avenue and 148th street ■and elsewhere.</p>

<p>Courts (§ 492*) — Priority of Jurisdiction — Federal or State Courts.</p> <p>Wiiere street railroad property, which, was in the possession of receivers of a federal court appointed for a lessee, has been turned over by them' to the receiver of a state court appointed in a suit to foreclose a mortgage thereon, the federal court is without jurisdiction to entertain a suit in relation thereto in which there is no diversity of citizenship, although it was commenced before the one in the state court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1345; Dec. Dig. § .492.*</p> <p>Jurisdiction in mortgage foreclosure, see note to Seattle, L. S. & E. Ry. Co. v. Union Trust Co., 24 C. C. A. 533.]</p>

On Motion in Arrest of Judgment. This is an indictment under section 5388, Rev. St. (U. S. Comp. St. 1901, p. 3619), for cutting timber upon certain unallotted lands, being a portion of the Menominee Indian reservation in the state of Wisconsin.