Volume 172 — Federal Reporter

Appeal and Cross-Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

This is an appeal from the final decree of the Circuit Court for the Northern District of Ohio, in equity, upon the report of the special master on the accounting directed by. the Supreme Court under its mandate in the foreclosure suit of Jessup et al. v. Wabash, St. Louis & Pacific Railway Company, sustaining the validity of the lien asserted by James Compton as against the so-called “Ohio division” of the Wabash system, on account of his ownership of a large block of the…

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

Jurisdiction in this case rests upon admitted diversity 4of citizenship. The cause came to trial before the court and a jury. At the close of the evidence offered by both sides, tlie court, on motion of defendant, directed a verdict to be returned in his favor. Motion for new trial being overruled and judgment entered on tlie verdict, the cause was brought here upon proceedings in error.

This was a libel in admiralty of the United States of America, as owner of the steamship Hancock, against the' steamer Binghampton, of Buffalo, to recover damages sustained by a collision occurring August 15, 1905, between the two vessels in Lake St. Clair.

<p>1. Estoppel (§ 22*) — By Deed — Consideration.</p> <p>"Where certain guaranties recited a consideration of $1 to the subscriber in hand paid, the receipt whereof was thereby acknowledged, the guarantors were estopped to deny that any consideration had been in fact paid.</p> <p>[Ed. Note. — Eor other eases, see Estoppel, Cent. Dig. § 35; Dee. Dig. § 22.*]</p> <p>2. Guaranty (§ 7*) — Acceptance—Necessity.</p> <p>In order to obtain credit for a corporation, two of its officers executed certain instruments reciting that, for a consideration paid, they guaranteed plaintiff! payment in full for all merchandise sold and delivered to the corporation from time to time, not to exceed a specified amount, to continue until notice of discontinuance given to plaintiff in writing. Held, that such contract was not a mere offer of guaranty requiring notice of acceptance, but was complete from delivery and sale of goods in reliance thereon.</p> <p>[Ed. Note. — For other eases, see Guaranty, Cent. Dig. § 9; Dec. Dig. § 7.*]</p> <p>8. GUARANTY (§ 28*) — Construction—What Law Governs.</p> <p>A corporation doing a mercantile business in Jackson, Term., desiring to purchase goods on credit from plaintiff in Chicago, two of its officers executed contracts of guaranty, both of which contained nothing to show the residence of either of the guarantors, except that the first was dated “Jackson, Tenn.” Both contracts were silent as to the place of performance. The goods sold thereunder were delivered to the buyer in Chicago, and it paid both the cartage in Chicago and the freight thence to .Tack-son. Payments on account wore made by the corporation’s checks drawn on a Jackson bank payable to the seller without collection charges. Held, that the contracts wore made to be performed in Chicago, and were therefore governed by the law of Illinois.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 29; Dec. Dig. I 28.*]</p> <p>4. Evidence (§ 29*) — Judicial Notice — Statutes,</p> <p>Courts of the United States, being required to take judicial notice of the laws of the various states, whether depending on statutes or judicial opinions, such courts may look to the whole of a statute which it is required to apply, though merely a portion thereof is pleaded.</p> <p>\ [Ed. Note. — -For other cases, see Evidence, Dec. Dig. § 29.*</p> <p>Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, 44 C. C. A. 4.J</p> <p>5. Courts (§ 366*) — Decisions of State Courts — Conclusiveness.</p> <p>Interest being a matter of local regulation only, the decisions of the state courts of last resort thereon are binding on the courts of the United* States.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 366.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. 11. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>6. Guaranty (§ 38*) — Construction—Present and Future Sales — “On and After the Date Hereof.”</p> <p>Where guaranties were in terms to apply to sales made “on and after the date hereof,” they applied alike to present and future sales.</p> <p>[Ed. Note. — For other cases, see Guaranty, Dec. Dig. § 38.*]</p> <p>7. Interest (§ 34*) — Statutes—“Due and Owing.”</p> <p>Where there had been no sale and delivery of goods by plaintiff to a corporation prior to the execution of certain guaranties by its officers to secure subsequent contemplated sales, there was no loan of money in any manner due and owing, within 2 Starr & O. Ann. St. Ill. 1896, e. 74, par. 6, declaring that it shall be lawful to agree that 7 per cent, per an-num may be taken for money loaned or in any manner due and owing, etc.</p> <p>[Ed. Note. — For other cases, see Interest, Dec. Dig. § 34.*]</p> <p>8. Guaranty (§ 38*) — Continuing Guaranty— Construction — Interest.</p> <p>Where certain guaranties of payment expressly applied to all goods sold on credit on and after their dates, from time to time, and for any balance or balances of account of such goods, including interest thereon “after maturity,” and which were made to continue until notice of their discontinuance of further liability thereon, given by the subscribers in writing to the seller, the guaranties were continuing, notwithstanding the amount of the liability was limited, and were applicable to all future sales made prior to notice of discontinuance.</p> <p>[Ed. Note. — For other cases, see Guaranty, Dec. Dig. § 38.*]</p> <p>9. Interest (§ 34*) — Guaranties—Statutes—1“Due and Owing.”</p> <p>2 Starr. & C. Ann. St. Ill. 1896, c. 74, par. 6, provides that it shall he lawful to agree that 7 per cent, per annum shall be paid for money loaned or in any manner “due and owing,” etc. Hold, that it was not essential, to entitle a party to recover interest under such section on contracts of guaranty, that there should be a sum “due and owing” at the time the guaranties were executed, but that it was sufficient that the guaranty was made to apply to the principal’s obligations as they were incurred; the guarantor’s promise being operative whenever there was money “due and owing” by the principal.</p> <p>[Ed. Note. — For other cases, see Interest, Dee. Dig. § 34.*]</p>

The plaintiff in error was tried and convicted under each of three counts in an indictment alleging violations of section 5480, Rev. St., as amended (3 U. S. Comp.

<p>1. Master and Servant (§ 137*): — Injuries to Servant — Railroads—Operation oe Cars — 'Warning Rule — Violation.</p> <p>Movement of a string of freight cars on a storage track, in violation of a rule enacted to protect persons at work in the yard, requiring warning to be given that the cars were about to be moved, resulting in injury to plaintiff, a section water boy, constituted negligence sufficient to support a recovery therefor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 269-278; Dec. Dig. § 137.*]'</p> <p>2. .Master and Servant (§ 289*) — Injuries to Servant — Railroads—Contributory Negligence — Failure to Look and Listen — Question for Jury.</p> <p>Plaintiff, a section water boy, was injured by the sudden movement of a string of freight cars coupled together on a storage track, as plaintiff attempted to cross the track 10 feet from the end of the last car. There was a curve in the track, which, together with the train of standing cars thereon, and other cars on an adjacent track, obstructed the view and prevented seeing the approaching engine and cars by which the train was moved. Plaintiff had also for hours prior to his injury heard another engine working in and about the place from which the engine and cars were brought, nor was any warning given, as required by a rule, that the cars were about to be moved. Held, that plaintiff was not negligent as a matter of law in failing to look and listen before attempting to cross the track.</p> <p>[Ed. Note. — For other, cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>3. Master and Servant (§ 96*) — Injuries to Servant — Railroads—Persons Liable.</p> <p>Where the S. Railroad Company used a railroad yard owned by the T. Company under a contract with the latter, and plaintiff, an employs of the T. Company, was injured by the movement of a train of cars on a storage track by an engine belonging to the S. Company, without warning, in violation of a rule, and the evidence was sufficient to justify an inference that both companies were negligent, the T. Company was not entitled to relief from liability, on the theory that it had leased the right to use its yards to the S. Company, and was therefore not liable for the latter’s negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 158; Dec. Dig. § 98.*]</p>

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

<p>Appeal from the District Court of the United States fpr the Western District of Wisconsin.</p> <p>The appeal is by the trustee in bankruptcy, from an order of the Court below (158 Fed. 885), directing the trustee to turn over to appellee, the Mish-awaka Woolen Manufacturing Company, certain goods described in its petition.</p> <p>February 14th, 1907, upon petition, filed Dec. 8th, 1906, George B. Bement was declared a bankrupt, and Frank D. Smith duly appointed trustee of the estate. The petition of appellee, a corporation organized under the laws of the state of Indiana, alleges that on the 3d of February, 1906, it and Bement entered into two contracts in writing, by the terms of which petitioner agreed to sell and deliver to Bement, certain personal property therein described, a portion of it described as lot No. 1, and. a portion of it as iot No. 2, all of which was subsequently delivered; that by the terms of the contracts “the title and property in all the goods herein mentioned shall remain in the vendor until fully paid for in cash, if payment for .the same shall not be properly made when due ,or if at any time before the same shall he fully paid for the purchaser shall become insolvent, or shall, in the opinion of the vendor, be in danger of insolvency, or the vendor, in its judgment, shall, for any reason, whatever, deem itself in danger of losing the price of the said goods, then the vendor may, at its option, reclaim and take possession of so much of the said goods as shall then remain in the hands of the purchaser unsold”; that no Xiart of the purchase price of said goods has been paid, whereby the title remains in the petitioner; that upon a rexfievin suit in the Circuit Court of Green County, Wisconsin, the possession of said goods known as lot No. 1, were recovered; that the possession of said goods known as lot No. 2 were not recovered, although at the time Bement was adjudged a bankrupt, they were still in his possession, and are now in the possession of the trustee; and praying for an order upon the trustee to deliver over to petitioner the goods known as lot No. 2, and to ratify and confirm the taking of the goods embraced in lot No. 1; to which the trustee answers that by section 2317 of the Wis-cousin Statutes of 1898, every contract of the nature set forth, in order to bo valid, must be filed in the office of the clerk of the town, village or city in which the vendee resides, or in which the goods are located; and Unit no such contract has ever been filed in file manner required; to which answer appel-lee filed a general demurrer; which demurrer, though overruled by the referee, was sustained by the Court and the order appealed from was entered.</p>

<p>1. Ihdictment and Information (§■ 202*) — Requisites and Sufficiency — Language of Statute.</p> <p>An indictment, under Rov. St. § 5480 (U. S. Comp. St. 1901, p. 3696), for using the mails to defraud, which substantially follows the language of the statute, is sufficient after verdict.</p> <p>LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 640-645; Dec. Dig. § 202.*]</p> <p>2. Post Office (§ 48*) — Use of Mails to Defraud — Indictment.</p> <p>In an indictment for using the mails in and for executing a scheme to defraud, it need not be alleged that the contents of a letter or circular charged to have been mailed pursuant to such scheme were false.</p> <p>LEd. Note. — For other cases, see Post Office, Cent Dig. § 72; Dec. Dig. § 48.*]</p> <p>8. Criminal Daw (§ 878*) — Former Jeopardy — Prosecution for Using Mails to Defraud — Verdict.</p> <p>Where an indictment, under Rev. St. § 5480 (U. S. Comp. St. 1901, p. 3696), for using the mails to defraud, contained three counts, each charging the same scheme, but the sending of letters pursuant thereto to different persons, an acquittal on two of the counts does not invalidate a ' conviction on the remaining count.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 209S-2101; Dec. Dig. § 878.*</p> <p>Nonmailable matter, ’ see note to Timmons v. United States. 30 C. C. A. 79.]</p> <p>4. Post Office (§ 49*) — Prosecution fob Using Mails to Defbaud — Evidence.</p> <p>On the trial of a defendant, charged with having conducted a scheme to defraud by the use of the mails, evidence that defendant’s predecessor in the business had been indicted for the same offense was competent on the question of intent, if defendant was shown to have had knowledge of the fact and thereafter continued the business.</p> <p>[Ed. Note. — For other eases, see Post Office, Dec. Dig. § 49.*]</p> <p>5. Post Office (§ 35*) — Prosecution fob Using Mails to Defbaud — Defenses.</p> <p>Where the evidence established the charge that defendant advertised as a matrimonial agency, and obtained money from a person by means of correspondence through the mails by false representations made in the advertisement, the offense of using the mails to defraud was complete i and it was no defense that defendant afterwards put the person defrauded in correspondence with a woman whom he married.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 35.*]</p>

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

Plaintiff in error, who was plaintiff below, seeks the reversal of a judgment based on a directed verdict for the defendants. One Flagler was also named as a defendant in the declaration; but he was not served with process and did not appear, so the case was tried without him.

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This was an action in assumpsit upon the common counts. It was commenced in the Circuit Court of the United States for the Eastern District of Michigan, Southern Division, by plaintiffs below, partners under the firm name of Gosline & Co., of Toledo, Ohio, against Hoffman, defendant below, of Detroit, Mich. The action grew out of a contract, notice of which was given under the plea of the general issue. The cause was tried to the court and a jury, and resulted in a verdict in favor of the firm for $4,574.78. Judgment with interest thereon was entered, and in due course the cause was brought here upon proceedings in error.</p> <p>The bill of particulars of the demand made and of the recovery sought was the "purchase price of fifty cars, containing 1,858.45 tons Kanawha gas run of mine coal, at $2.25 per ton, f. o. b. mine, $4,181.51.” The contract before alluded to was made through correspondence. On March 30, 1906, Hoffman telegraphed an order to Gosline & Co. in substance:</p> <p>“Please ship to Jules G. Hoffman, at Junction Yards, Mich. Route, M. C. R. R. * * * 50 cars * * * Kanawha gas run-of-mine; * * * price $2.25, f. o. b. mines * * * to be shipped first week in April, 1906. Shipment at above date guaranteed.” On March 31st Gosline & Co. accepted this order by letter, stating among other things: “Shipment next week. Mines have agreed to ship this regardless of conditions, and in selling it to you we understand you are to take the coal on the same basis.” On April 2d Hoffman acknowledged receipt of this letter, and, after allusion to his order, closed with the words, “for shipment this week, regardless of conditions.” It seems that at the time there was some prospect of a coal strike in the soft coal regions, though no strike occurred and the prices of coal declined. Gos-line & Co. had on March 28th purchased 50 cars of the same grade of coal at $1.50 per ton f. o. b. mines from a company of Charleston, W. Va., which was operating coal mines at Paint Creek on the Chesapeake & Ohio Railroad, in that state. Gosline & Co. undertook to fill the Hoffman order from that source. As the coal was loaded on the cars at the mines, card bills, as they were called, were made out by representatives of tlie coal operating company, showing the numbers of the cars, consignor, consignee, route, and destination. The cards were then deposited by the operating company at an agreed place, from which they were taken by the railroad conductors when the loaded cars were removed by the railroad company. The loaded cars were automatically weighed as they passed over ihe scales at Paint Creek Junction, and "were thence transported to their destination. These card bills were taken up at the weighing station and waybills were made and substituted, with the addition,1 however, of the weights of the coal. No bills of lading were issued, and the waybills were, as was usual, given only to the conductors who were in charge of the trains, as means of identifying and directing the cars to their destination. Gosline & Co. kept trace of the cars through their numbers, which were furnished them' both by an agent they had at the mines, and by the railroad agents. The card hills and waybills representing the coal in question contained the name of Gosline & Co., by their direction, both as consignors and consignees, destination and route in each instance being Junction Yards, Mich., via Michigan Central Railroad.</p> <p>Evidence was offered tending to show that 50 cars were loaded at the mines with coal of the required grade and quality, billed in the maimer mentioned, and turned over to the railroad company within the first seven days of April, 1900; that Gosline & Co. notified Hoffman of the shipments of the coal as often as made, giving numbers of cars and destination, Junction Yards, and at the same time notified the proper railroad agents that the coal belonged to Hoffman and to deliver same to him; that the railroad agent at Junction Yards, upon arrival of cars, seasonably notified Hoffman, who declined to receive the coal. The evidence tended to show that 23 of the cars were loaded and delivered to the railroad on or before April Cth, and the remainder on April 7th; also, that seven of the cars were weighed and ilieir transportation commenced prior to the 7th. and the remainder upon the 7th, and at various dates thereafter until the 15th. In the forenoon of April 71h Hoffman sent a telegram to Gosline & Co. stating: “I hereby cancel my order. * * » you will have to divert.” Gosline & Co. communicated with Hoffman both by telephone and telegraph, the telegram reading; “Every car in your order * * * is either en route or will go forward to-day. This is per agreement. We cannot cancel.” Hoffman wired in return at 11:57 a. in.: “Your telegram order is absolutely canceled; will not accept coal.” At 3:14 p. m., Hoffman wired again: “My order was canceled and you ship coal at your own risk.” Gosline & Co. confirmed their course by letter of April 7th, which Hoffman answered on the 9rh, alluding to telephone conversation and confirming his telegrams. The 50 car loads of coal were subsequently sold by the railroad company for demurrage. Each of the parties to the action disclaimed any interest in the coal, and refused to have anything to do with it</p>

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

In Equity. Suit for alleged infringement of United States letters patent No. 541,138, to Thomas ty. Willson, dated June 18, 1895, for an alleged new product existing in the form of crystalline calcium carbide, and for an accounting.

. In Equity. Suit originally to restrain alleged infringement and for an accounting; but, the patent having expired soon after suit brought, there can be an accounting only in case the patent is held valid, and infringed.

<p>Patents (§ ‘528*) — Invention—Metallic Riño Packing.</p> <p>The Paine patent. No. 774.490. for a metallic ring packing, is void for lack of novelty or invention in view of the prior art.</p> <p>[Ed. Note. — For oilier cases, see Patents, Dec. Dig. § 328.*]</p>

<p>PATENTS (§ 32S*)-INVENTION — ruNOTCJHE-CROSEBS POE PNEUMATIC TlRES.</p> <p>The (Hidden patent, No. (502,743, and the Sampson patent, No. (532,540, each fot a device for dosing- punctures in pneumatic tires, disclose invention, are valid, and entitled'to a fairly liberal construction. As so construed, both held Infringed.</p> <p>[Ed. Note. — I'or other cases, see Patents, Dec. Dig. § 828.*]</p>

<p>In Equity. Demurrer to bill of complaint for alleged infringement of United States letters patent.</p>

<p>In Admiralty. Suit for collision. On libelant’s exceptions to interrogatories propounded in claimant’s answer.</p>

<p>In Equity. Final hearing on the merits.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, G. A. 6,813 (T. D. 29,27'9), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board of General Appraisers reads as follows:</p>

<p>On Application for Review of Decisions by the Board of United States General. Appraisers.</p> <p>These proceedings are also entitled in the names of Hartman, Goldsmith & Co. (two cases), Weidemann Company, and Batjer & Co. (two cases.)</p> <p>The decisions below affirmed the assessment of duty by the collector of customs at the port of New York on numerous importations containing vermuth. The case turns on the construction of Tariff Act July 24, 1897', c. 11, § 1, Schedule H. par. 296, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1654), reading as follows:</p> <p>“296. Still, wines, including ginger wine or ginger cordial and vermuth, in casks or packages other than bottles or jugs, if containing fourteen per centum or less of absolute alcohol, forty cents per gallon; if containing more than fourteen per centum of absolute alcohol, fifty cents per gallon. In bottles or jugs, per case of one dozen bottles or jugs, containing each not more than one quart and more than one pint, or twenty-four bottles or jugs containing each not more than one pint, one dollar and sixty cents pet-ease; and any excess beyond these quantities found in such bottles or jugs shall be subject to a duty of five cents per pint or fractional part thereof, but no separate or additional duty shall be assessed on the bottles or jugs: Provided, that any wines, ginger cordial, or vermuth imported containing more than twenty-four per centum of alcohol shall be classed as spirits and pay duty accordingly: And provided further, that there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled .spirits. Wines, cordials, brandy, and other spirituous liquors. including hitters of all kinds, and hay rum or bay water, imported in bottles or jugs, shall be packed in packages containing not less than one dozen bottles or jugs in each package, or duty shall be paid as If such package contained at least one dozen bottles or jugs, and in addition thereto, duty shall be collected on the bottles or jugs at the rates which would be chargeable thereon if imported empty. The percentage of alcohol in wines and fruit juices shall be determined in such manner as the Secretary of the Treasury shall by regulation prescribe.”</p>

<p>Courts (§§ 264, 290, 307*) — Jurisdiction of Federal Courts — Federal Question.</p> <p>An action, by the owner of a judgment recovered against a corporation ! for infringement of a patent, to charge directors of such corporation with payment of the judgment on the ground that they were joint trespassers with the corporation, is not within the jurisdiction of the federal court . as one arising under the patent laws, nor as ancillary to the former suit; and unless there is diversity of citizenship such court is without jurisdiction.</p> <p>[Ed. Note.- — For other cases, see Courts, Dec. Dig. §§ 264, 290, 307.*</p> <p>Jurisdiction in cases involving federal question, see note to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & 51. C. C. & S. Blining Co., SB C. C. A. 7.]</p>

<p>On Application for Review of Decisions by the Board of United States General Appraisers.</p> <p>The Board of Appraisers held that powdered opium imported at the port of New York had been improperly classified by the collector of customs at that port as opium crude or unmanufactured, under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 43, 30 Stat. 153 (U. S. Comp. St. 1901, p. 1629), and sustained the importers’ contention that the article should have been classified as a drug advanced in value or condition under paragraph 20, 30 Stat. 152 (U. S. Comp St. 1901, p. 1628).</p>

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

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,809 (T. D. 29,266), reversed the assessment of duty by the collector of customs at the port of New York. The question at issue is whether Singapore buffalo hides are'classifiable under paragraph 437-, Tariff Act July 24, 1897, c. 1-1, § 1, Schedule N, 30 Stat. 192 (U. S. Comp. St. 1901, p. 1676), or under paragraph 664, Free List, § 2, 30 Stat. 201 (U. S. Comp. St. 1901, p. 1688), the pertinent portions of which read as follows:</p> <p>“437. Hides of cattle, raw or uncured, whether dry, salted, or pickled, fif- • téen per centum ad valorem: Provided, that upon all leather exported, made from imported hides, there shall be allowed a drawback equal to the amount of duty paid on such hides, to be paid under such regulations as the Secretary of the Treasury may imescribe.”</p> <p>“664. * * * Hides not specially imovided for in this act.” •</p>

On Application for Review of Decisions by the Board of United States General Appraisers. The decisions below affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 6,412 (T. D. 27,542).

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>These are cross-appeals from a decision reported as G. A. 6,837 (T. D. 29,408) and relating to merchandise imported at the port of New York. This merchandise was classified by the collector of customs as a medicinal preparation, under Tariff Act July 24,1897, c. 11, § 1, Schedule A, par. 68, 30 Stat. 1S4 (U. S. Comp. St. 1901, p. 1631). The Board held it dutiable under paragraph 20, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1628), relating to drugs such as “balsams * * * advanced in value or condition.” The government contends in its appeal that the collector’s assessment was correct. The importers contend that their further claim for free entry should have been sustained under the provision in section 2, Tree List, par. 548, 30 Stat.'197 (U. S. Comp. St. 1901, p. 1683), for drugs, including “balsams, * * * in a crude state and not advanced in value or condition.”</p>

<p>Customs Duties (f 24*) — Cjuassivioation—Ox,kiii—'“Wool Grease” — '“Distilled On,.”</p> <p>So-called olein, a distillate from wool grease, in the form of an oil, is not “wool grease,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 279. 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), but is dutiable as a “distilled oil,” under Schedule A, par. 3, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1627).</p> <p>|Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 24.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7515.)</p>

<p>1. Bankruptcy (§ 72*) — Corporations Subject to Adjudication — Brewery— . Nature of Corporate Business — Manufacturing—Corporation “En- * ' GAGED BRINCIPALLY IN MANUFACTURING.”</p> <p>A brewing company, chartered to manufacture and sell malt liquors, which has done nothing except in preparation for such business, by constructing a brewery plant at large expense, taking out a brewer’s license, and hiring a brew master, although it has never nlade any beer, nor bought materials therefor, is a corporation engaged principally in manufacturing, and subject to proceedings in involuntary bankruptcy, under Bankr. Act July-1, 1898, c. 041, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 17; Dee. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7000-7031.]</p> <p>2. Bankruptcy (§ 72*) — Corporations Subject to Proceedings — AYiien Cor- . poration Engaged in Business for Which Chartered.</p> <p>A corporation chartered for a certain purpose is to be regarded in bankruptcy as engaged in the purpose of its charter from the time it starts to put itself in shape to pursue the objects for which it is incorporated, and takes character as a manufacturing or other corporation accordingly.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 72.*</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>Petition for Review from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>For opinion of court below, see In re Millbourne Mills Co., 162 Fed. 988.</p>

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

<p>In Error to. the District Court of the United States for the Northern District of Illinois.</p> <p>The judgment brought here by the writ of error is one adjudging that the United States do have and recover of and from the plaintiff in error the sum of one hundred dollars, with costs; such judgment being based upon the verdict of a jury finding appellant “guilty as charged in the information.”</p> <p>-The proceeding was by petition by Edwin W. Sims, United States Attorney, averring that the plaintiff in error was a common carrier engaged in interstate commerce, and that in violation of the act of Congress known as the “Safety Appliance Act,” approved March 2, 1893 (27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174]), as amended by an act approved April 1, 1896 (29 • Stat. 85, c. 87), and as amended by an act approved MaTCh 2, 1903 (32 Stat. 943, c. 976, § 1 [U. S. Comp. St. Supp. 1907, p. 885]), plaintiff in error on or about June 19, 1907, hauled on its line of railroad a certain car — one regularly used in the movement of interstate traffic, and loaded at the time with steel rails, and hauled in a train containing interstate traffic — such car not being provided with secure grab irons or hand holds, as provided for in said act; to which a plea averring that plaintiff in error did not owe the sum or money demanded, or any part thereof, in manner and form as complained of was filed. A trial followed, resulting in the verdict and judgment above stated. v</p> <p>The verdict was the result of an instruction to the jury (plaintiff in error having asked for no instruction to find for plaintiff in error) as follows: “The court instructs you to find a verdict for the government, and that the defendant, the Atchison, Topeka & Santa Fé Railway Company is guilty as charged in the information. Now you will please have your foreman sign this verdict for all.”</p> <p>Motions were duly entered for a new trial, and in arrest of judgment; upon the overruling of which exceptions were duly taken and preserved.</p>

The action in the court below was in assumpsit by the defendant in error, a corporation of the state of Utah, against the plaintiff in error, a corporation of the state of Illinois, to recover damages by reason of the alleged failure of plaintiff in error to perform its contract to furnish the defendant in error all the finishing lumber and mill work required by it, under its contract with the United States, for the construction of the United States Post Office building at…

<p>1. Masteb and Servant (§ 221*) — Master’s Liability fob Injury to Servant — Assumption of Risk.</p> <p>A miner, going to work in a place which he knew would otherwise be dangerous, in reliance on a representation by a superior, who represented the employer, that it had been protected and made safe, and where the insufficiency of the protection was not obvious, cannot be charged with having assumed the risk.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 221.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Depositions (§ 13*) — Perpetuation of Testimony — Construction of Utah Statute.</p> <p>Rev. St. Utah 1898, §§ 3460, 3467, provides for the perpetuation of the testimony of a witness on presentation by the applicant of a verified petition stating “(1) that the applicant expects to be a party to an action in a court in this state, and in such case the names of the persons whom he expects will be adverse parties; or (2) that the proof of some fact is necessary to perfect the title to the property in which he is interested, or to establish marriage, descent, heirship or any other matter which it may hereafter become material to establish, though no suit may at the time be anticipated, or if anticipated he may not know the parties to "such suit; and (3) the name of the witness to be examined,” etc. Held, that it was the intention by such statute to prescribe in the first two paragraphs two separate and distinct classes of cases, in either of which testimony might be perpetuated; that under the first the testimony of a per-. son7 injured and not expected to recover might be taken and perpetuated for use in a contemplated action on behalf of his wife and minor children to recover for his death.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 28; Dec. Dig. § 13.*]</p> <p>3. Courts (§ 350*) — Federal Courts — Use of Depositions Taken to Perpetuate Testimony.</p> <p>itev. St. § 867 (U. S. Comp. St. 1901, p. 664), providing that “any court of the United States may in its discretion admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam which would be so admissible in a court of the state wherein such cause is pending according to the laws thereof,” does not limit the use of such depositions to any particular cases, nor to those taken in any particular manner, but leaves such matters to be determined by the laws of the state.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 923; Dee. Dig. § 350.*]</p> <p>4. Master and Servant (§ 270*) — Master’s Liability for Injury to Servant — Actions—Evidence.</p> <p>In an action to recover from a mining company for the death of a miner, who was killed by the falling of the roof of the entry in which he was working, alleged not to have been properly supported, testimony of an experienced mine timberman as to the ordinary practice in timbering in mines under similar conditions, as compared with what was done at the place of the accident, was admissible in support of such allegation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 270.*]</p>

<p>1. Negligence (§ 122*) — Contributory Negligence — Pleading and Pboof in Federal Courts.</p> <p>In the federal courts, in actions grounded upon negligence, the plaintiff is entitled to rest upon the presumption that he was without fault or negligence until the contrary is in some way made to appear; and the burden of alleging and proving the contrary rests upon the defendant.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Big. § 221; Dec. Dig. § 122.*]</p> <p>2. Pleading (§■ 34*) — Construction—Implication.</p> <p>What is plainly implied in a pleading is as much a part of it as what is expressed.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. I 34.*]</p> <p>S. Pleading (§ 494*) — Waiver oe Defects.</p> <p>Where a pleading contains an allegation which is not a nullity, but is subject to criticism as being indefinite and largely a conclusion of law, and the opposite party, without questioning its sufficiency in a timely way, takes issue thereon and proceeds to trial, the defect is waived.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 1349; Dec. Dig. § 404.*]</p> <p>4. Master and Servant (§ 305*) — Torts of Servant — Responsibility of Master.</p> <p>A master is responsible for the tortious acts of his servants, done in his business and within the scope of their employment, although he did not authorize, or know of the particular act, or even if he disapproved or forbade it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. § 305.*]</p> <p>5. Master and Servant (§ 305*) — Scope of Employment.</p> <p>Servants do not depart from the scope’of their employment merely because in executing the work assigned to them they exceed or violate their instructions in respect of its details or the manner of doing it.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. § 1223; Dec. Dig. § 305.*]</p> <p>6. Damages (§ 62*) — Duty of Injured Party to Avoid or Lessen — Effect of Failure. ‘</p> <p>While one whose property is endangered through the negligence of another is required to exercise reasonable care to avoid or lessen the threatened injury, the consequence which the law attaches to a negligent failure so to lessen the injury is not the loss of all right of recovery, but the elimination from the recovery of such damages as could have been avoided by the exercise of reasonable care.</p> <p>[Ed. Note. — For other cases, see .Damages, Cent. Dig. § 119; Dec. Dig. § 62.*]</p> <p>(Syllabus by the Court.)</p>

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

<p>1. INDEMNITY (§ 9*) — CONSTRUCTION OF CONTRACTS — SCOPE AND EXTENT OF INABILITY.</p> <p>Contracts of indemnity, such as those given by a contractor for work done in public streets, are usually intended to provide against loss or liability of one party through the operations of the other, or caused by physical conditions which are under the control of the other, and over which the indemnified has no control, and are not ordinarily to be construed as covering liability for injuries or accidents the proximate cause of which is the negligence of the party indemnified.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 16; Dec. Dig. §' 9.*</p> <p>2. Indemnity (§ 9*) — Construction of Contract — Scope of Liability.</p> <p>A contract for the rehabilitation of the tracks of a street railroad company, the work to be done without interfering with the operation of its cars, provided that the contractor should indemnify the company against all suits brought against it on account of claims for damages done or caused in the course of construction of the work, “or in consequence thereof,” including injury to persons, land, or buildings. At a place where tho company switched its east-bound cars onto the west-bound track to pass around a long excavation, 34 inches in depth, made by the contractor for replacing the east-bound track, a car was stopped in the night between street crossings, and a passenger alighting on the right-hand side fell into the excavation and received injuries for which she recovered a judgment against the company. TIeld, that the injury was not one received “in consequence” of the contractor’s work, but was proximately due to the negligence of the company’s employes operating the car, who with knowledge of the excavation permitted the passenger to alight on that side of the car at an unusual place, and that the company could not recover over on its indemnity contract.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 16; Dee. Dig. § 9.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The facts are stated in the opinion.</p>

<p>Shipping '(§ 132*) — Inability fob Injuby to Caego — Effect of Exceptions in , Bill of Lading.</p> <p>To entitle a shipper to recover for damage to cargo from heat, when ' liability for such damage is excepted in the bill of lading, the burden rests on him to show that the carrier was negligent in stowing or ventilating the cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 4S1; Dec. Dig. § 132*</p> <p>Burden of proof as to cause of loss or injury to goods shipped by- vessel and diligence or negligence of carrier, see note to The Patria, 68 C. C. A. 398.]</p>

<p>1. Patents (§ 325*) — Suit fob Infringement — Costs—Failure to File Disclaimer.</p> <p>Rev. St. | 4922 (IT. S. Comp. St. 1901, p. 3396), which provides that a patentee who has inadvertently claimed more than he is entitled to cannot recover costs in a suit for infringement unless he has filed a disclaimer as to the invalid claims before commencement of the suit, makes it obligatory on the courts to deny costs in such case both in the Circuit and appellate courts, although the decision that certain claims are invalid is first made by the latter court in affirming the decree of the court below as to other claims on general assignments of error which challenge the validity of all of the claims.</p> <p>[Ed. Note.. — For other cases, see Patents, Cent. Dig. §§ 607-012; Dec. Dig. § 325.*]</p> <p>2. Patents (§ 325*) — Suit for Infringement — Costs on Appeal — Pleadings.</p> <p>The question does not depend on the pleadings in the appellate court, and cannot be made to. Even, therefore, if the assignments of errors are severable or distributive between the different claims of patents, and in consequence have to be overruled, the costs must nevertheless be denied; such assignments only going to the issues raised according to which the decree below is to be considered.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 325.*]</p> <p>172 FEDERAL REPORTER.</p> <p>3. Patents (§• 325*) — Suit por Infringement — Failure to Disclaim — Costs.</p> <p>The effect of failure to disclaim is negative merely. The statute denies costs, but does not give them, and defendant is not entitled to recover costs, because of the want of disclaimer.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 325.*]</p> <p>4. Patents (§ 322*) — Suit fob Infringement — Failure to Disclaim — Profits and Damages.</p> <p>Much less is the plaintiff upon that account to be refused an account for profits and damages. ,,</p> <p>[Ed. Note.. — For other cases, see Patents, Dec. Dig. § 322.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois. ,</p> <p>The bill filed. December 19th, 1907, was in the usual form for an injunction (no prior adjudication or other special equity being set forth) restraining the infringement of letters patent No. 493,553, issued March 14th, 1893, and letters patent, No. 428,741, issued May 27th, 1890, upon machines for covering books and binding books — the latter patent expiring May 27th, 1907, about seven months before the commencement of the suit.</p> <p>. To the bill appellees filed a demurrer on the ground that the bill showed a misjoinder of an expired and a living patent, thereby making the bill multifarious. Upon the, demurrer having been sustained by the court below, appellant elected to stand thereby, and thereupon the bill was dismissed, and this appeal taken. •</p>

<p>1. Patents (§ 256*) — Infringement—Machines Sold Under License Contracts — Violation oi' Conditions.</p> <p>A manufacturer of patented machines for applying a special pattern of seal or cork to bo-tiles may lawfully sell such machines under license contracts binding the purchasers to use the same only in connection with seals or corks made by the seller, and a violation of such contract by a purchaser or by a secondhand purchaser having knowledge of such restriction will constitute an infringement of the patent.</p> <p>ÍEd. Note. — For other cases, see Patents, Bee. Dig. § 256.*]</p> <p>2. Patents (§ 259*) — Contributory Infringement.</p> <p>Complainant made machines for applying a special form of seal or cork to bottles, protected by patents, which it sold only under license contracts providing that they should be used only with seals or corks made hy complainant, which were not protected by patent. Its machines were practically the only ones iu use In this country. Defendants, with knowledge of such facts, made a similar seal, which could be used on complainant’s machines, and sold the same to all whom they could induce to buy; the result being that they were chiefly bought for use and used on complainant’s machines. Held, that defendants were chargeable with contributory Infringement of complainant’s patents, and would be enjoined from selling their product to any purchaser who was bound by the restrictions of complainant's license contracts.</p> <p>I'Kcl. Note. — For other cases, see Patents, Cent. Dig. § 401; Dec. Dig. § 259.*</p> <p>Contributory infringement of patents, see notes to Kdison Klectric Light Co. v. Peninsular Light, Power & Heat Go., 43 O. O. A. 485; ¿Folian Co. v. Hurry 11. Juelg Co., 86 C. C. A. 206.]</p> <p>S. Patents (§ 290s) — -Suit fob Infringement — Parties Liable.</p> <p>Individuals, who organized a corporation with a small capital for the sole purpose of enabling them as individuals to make and sell an Infringing article through the corporation without being subject to personal liability, may be joined with the corporation as defendants in a suit for the infringement: and held jointly liable therefor.</p> <p>[K(l. Note. — For other eases, see Patents, Dec. Dig. § 290.*</p>

<p>Patents (§ 328*) — Validity and Infringement — Tjibead Package.</p> <p>The Schroeder patent, No. 540,251, for a thread package, is a pioneer patent of merit, and entitled to a liberal construction, being the first device for packing individual skeins of embroidery silk which protected them from being tangled and soiled, and enabled the user-to draw out the silk thread by thread without breaking /the package. The Schroeder patent, No. 546,123, is also valid as covering a specific improvement on the package of No. 546,251, which was the earlier invention. Both patents also held infringed.</p> <p>LEd. Note. — JTor other cases, see Patents, Dec. Dig. § 328.*]</p>

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

On Motion for New Trial. The trial court instructed the j'ury in this case as fellows: You have heard the testimony in this ease, and you have listened to the argument of counsel, and it becomes my duty at this time to advise you touching the law of the case as applied to the facts which have been narrated in your hearing.

.On Application for Review of a Decision by the Board of United States General Appraisers. • The decision below, which is reported as G. A. 6,651. (T. D. 28,350), affirmed the assessment of duty by the collector of customs at the port of New York. The Board’s opinion reads as follows: FISCHER, General Appraiser. This protest relates to the assessment .of duty under Tariff Act July 24, 1897, e. 11, § 1, Schedule M, par. 407, 30 Stat. 189 (U. S. Comp.

On Application for Review of Decisions by the Board of United States General Appraisers. The articles in controversy were held in the board’s decisions not to be subject to classification as joss sticks or joss light, under Tariff Act July 24, 1897, c. 11, § 2, Tree List, par. 587, 30 Stat. 198 (U. S. Comp. St. 1901, p. 1(584), because not shown to be so known in trade and commerce.

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

<p>1. Admiralty (§ 101*) — Libel—Sale op Vessels — Distribution of Proceeds— Priority — Seamen’s Wages — Pees and Costs.</p> <p>Where a vessel is seized and sold under a libel, seamen’s wages and preferred fees and costs are entitled to be first paid out of the proceeds.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 697; Dee. Dig. § 101.*]</p> <p>2. Shipping (§ 62*) — Master—Authority.</p> <p>In admiralty law, the master of a vessel is the agent of the owner, with authority to bind the ship for repairs and supplies ordered in a foreign port, which he does by ordering such repairs, etc., without other agreement.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 257-269; Dec. Dig. § 62.*]</p> <p>3. Maritime Liens (§ 69*)* — Sale of Vessel — Lien fob Kepairs — Decree.</p> <p>Where libelant had procured a decree pro confesso on default for necessary reoairs to a vessel, ordered by the master while in a foreign port, for which the libelant had a lien, it was entitled to have the amount thereof allowed in full as a preferred claim out of the proceeds of the sale of the vessel.</p> <p>[Ed Note. — For other cases, seo Maritime Liens, Cent. Dig. § 107; Dec. Dig. § 69.*]</p>

<p>1. Towage (§ 11*) — Tug- and Tow — Collision with Tow — Use of Long Hawsers in New Tokk Harbor.</p> <p>The use of long tow lines in New York Harbor, while not to be commended, does not render the tug liable for damages caused to her tow by collision with another vessel through the fault of the latter, to which the length of the tow did not contribute.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. & 18; Dec. Dig. § 11.*]</p> <p>2. Collision (§ 95*) — Steamer and Vessel-in Tow — Negligent Navigation.</p> <p>A collision in New York Harbor between a steamer going out to sea and a schooner in tow coming through Gedney’s Channel into the Main Ship Channel held to have been due solely to the ¡fault of the steamer in failing to exercise care to avoid crossing the tow, although the schooner’s lights could be seen, showing that she was in tow.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec, Dig. § 95.-*]</p>

<p>United States (§ 07*) — Contbactobs.’ Bonds — Extent of Liability.</p> <p>A surety on the bond of a contractor with tbe United States for a public work, conditioned for tbe payment by such contractor of all claims for labor and materials, as required by Act Aug. 13, 1S94, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), is not released from liability to a subcontractor by tbe taking by tbe latter of a note from tbe contractor for bis claim due in three months, but which did not mature until final settlement bad been made between tbe contractor and tbe United States and a few days after receivers in insolvency had been appointed for tbe contractor.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §• 50; Dec. Dig. § 67.*]</p>

<p>1. Courts (§ 067*) — Federal Courts — Authority op State Statutes — Lis Pendens.</p> <p>Rev. Laws Minn. 1905, § 4689, jirovidiiig that the pendency of an action relating to real estate is notice' to purchasers or incumbrancers only from the time of the filing of notice thereof in the office of the register of deeds of the county in which the land is situated, is a rule of property of the state relating to real estate, and applies to a suit in equity pending in a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ £>58, 959; Dec. Dig. § 367.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson y. Perrin, 11 C. C. A. 71; Hill y. Hite, '29 C. C. A. 553.]</p> <p>2. Public Lands (§ 120*) — Patents—Bona Fide Purchaser.</p> <p>In a suit in equity by the United States to cancel a patent to lands, the rule as to what constitutes a bona fide purchaser is no different from what it would be if the complainant were an individual.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dee. Dig. § 120.*</p> <p>Bona Fide Purchasers, see note to United States y. Detroit Timber & Lumber Co., 07 C. C. A. 13.]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 0,835 ,(T. D. 29,-337), sustained the importers’ protest against the assessment of duty by the collector of customs at the port of New York. The Board’s opinion reads:</p> <p>SIIARRETTS. General Appraiser. The merchandise in controversy consists of precious stones, such as agate, cornelian, jasper, onyx, rock crystal, ote., advanced in value and condition by cutting, polishing, or engraving, not set, but intended to he set as jewelry. No articles of utility, such as handles, bearings, slabs, rollers, etc., are included in the importation. Duty was assessed by the collector upon said merchandise at the rate of. 59 per cent, ad valorem under paragraph .135, Schedule B; the importers claiming the same to be dutiable at. 30 per cent, ad valorem under paragraph 435. Schedule N, of the tariff act of 3897 (Act July 24, 1897, e. 11, § 1, 30 Stat. 192 [U. S. Comp. St. 1901, pp. 1636, 1676]).</p> <p>The provision of paragraph 115 for manufactures of agate, alabaster, chalcedony, chrysolite, coral, cornelian, garnet, jasper, jet, malachite, marble, onyx, rock crystal, or spar, not specially provided for, is no more specific than the provision of paragraph 193, Schedule O, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645), for articles or wares not specially provided for, composed wholly or in part of iron, steel, lead, copper, nickel, pewter, zinc, gold, silver, platinum, aluminum, or other metal. No one would seriously contend that, because Congress provided denominatively for articles composed wholly of gold in paragraph 393, gold mountings for diamonds or other precious stones wore removed from paragraph 434, Schedule N, 30 Stat. 192 (U. S. Comp. St. 1901, p. 1676), leaving the provision therein for parts of jewelry to apply only to such as were made of brass or other metal not named in paragraph 193. Precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, and not set, or, in other words, precious stones advanced from their natural state to a condition exclusively fitting them to he set as jewelry, comprise even a more limited class of goods than jewelry or parts thereof. Both terms have a commercial and popular moaning that differentiates them from manufactures of agate, garnet, etc., on the one hand, and articles or wares composed of iron, steel, gold, etc., on the other.</p> <p>It is instructive to note that paragraph 434 provides for jewelry, including l>rocious stones set. Hence tlie words “precious stones not set,” contained in paragraph 435, construed in pari materia, would seem to point conclusively to precious stones especially prepared to be set as jewelry; and in this connection it may he remarked that both paragraphs are grouped under the subheading of “Jewelry and Precious Stones.” It is an elementary principle of tariff construction that, when Congress has provided for an article dependent upon its use, such a provision dominates all others. For instance, white-wood, sycamore, and basswood planks prepared for use in the construction of vessels would be free under paragraph 099, § 2, Free List, 30 Stat. 202 (U. S. Comp. St. 1901, p. 1089), and not dutiable under Schedule D, par. 195, 30 Stat. 107 (U. S. Comp. St. 1901, p. 10-10), notwithstanding the fact that whitewood, sycamore, and basswood planks are provided for eo nomine in the last-named paragraph. Many other illustrations could lie cited, but they are deemed unnecessary.</p> <p>Both paragraphs 115 and 193 are catch-all provisions designed to cover manufactures not provided for either denominatively or descriptively in some other paragraph of the act. Parts of jewelry composed of gold are more specifically provided for in paragraph 434 than in paragraph 193; and by a parity of reasoning agates and other precious stones prepared by the lapidary to be set as jewelry are more specifically provided for in paragraph 435 than in paragraph 115. Indeed, we do not think the agate and other stones in question' would be included in the provision of paragraph 115 for manufactures of agate, etc., even were they not provided for descriptively in paragraph 435. The evidence shows conclusively that these stones have undergone no process other than to be cut and polished, and that they are still known commercially as precious stones — specifically as agates, garnets, etc. They have not undergone a process of manufacture whereby their name and intended purpose of use has been .changed into articles known as knife handles, penholders, scale bearings, etc. Precious stones cut are provided for in paragraph 434, and until they have been cut for some other purpose than to be set as jewelry they do not become manitfaetures of the minerals enumerated in paragraph 115. In Hartranft v. Wiegmann, 121 U. S. 015, 7 Sup. Ct. 1240, 30 L. Ed. 1012, the United States Supreme Court said in part: “In Schedule M, § 2504, of the Revised Statutes (page 475, 2d Ed.), a duty of 30 per cent. ■ ad valorem is imposed on ‘coral, cut or manufactured’; and in section 2505, (page 484) ‘coral marine manufactured’ is made exempt from duty. These provisions clearly imply that, but for the special provision imposing a duty on cut coral, it would not be regarded as a manufactured article.”</p> <p>In the case at bar the agates and other precious stones have been subjected to no process other than cutting, polishing, or a similar process. Hence, under the explicit language of the Supreme Court, they are not manufactures of agate, garnet, etc.; nor can we discover in any instance where the courts have departed from the rule laid down by the Supreme Court in I-Iartranft v. Wiegmann, supra. In Erhardt v. Hahn, 55 Fed. 273. 5 C. C. A. 99, the United States Circuit Court of Appeals, Second Circuit, in passing upon handles for knives, penholders, glove hooks, shoe hooks, etc., composed of agate and tiger eye, held that, having been advanced through one or more processes into commercial articles known and recognized in trade by specific and distinctive names other than the name of the material, and put into completed shapes designed and adapted for' a particular use, were manufactures. But the following dictum of the court shows how rigidly it adhered to the decision of the Supreme Court in the case cited: “If it could be shown that these articles at the date of the tariff act were bought and sold as precious stones, or were commercially known as such, then, no doubt, they would have to fall under that classification for duty. Not only had these articles (handles, paper weights, etc.) no such commercial designation, but the stones themselves (cut for jewelry purposes), when imported in the form of stones, were bought and sold, as were rubies, diamonds, and other precious stones, by their respective distinctive names. We think the term as used in Schedule N applies to' all stones ■known as ‘precious,’ whether in their original condition or advanced beyond it by cutting, polishing, etc., so long as they remain ‘stones’ in the commercial sense of the word.”</p> <p>In Hahn v. U. S., 100 Fed. 035, 40 O. O. A. 022, his honor, Judge Lacombe, speaking for the court, said in part': “This court further held in Erliardt v. Hahn, 55 Fed. 273, 5 C. O. A. 99, supra, that the term ‘precious stones’ applied only to the mineral substances embraced within it while they remained stones, and that articles like those in suit (handles, rollers, and slabs) had been advanced beyond that condition, and had become completed commercial articles, known and recognized in trade by specific and distinctive names other than the name of the material, and had been put into a completed shape designed and adapted for particular uses.”</p> <p>The government’s contention that the stones in the caso now pending are dutiable at 50 per cent, ad valorem under paragraph 115 is based, on the decision of tlie Circuit Court of Appeals, Second Circuit, in the case of IT. S. v. Tjorseh, 158 Fed. 508, 86 C. C. A. 54, T. 1). 28,513. We do not find anything in that decision, however, which justified such a classification. It must be borne in mind that the court in the Lorseh Case was dealing with agate hearings for scales — articles having a distinctive name and intended for utilitarian .purposes, and not with articles still commercially known as stones intended exclusively to be set as jewelry. The Board, in passing upon the case, had expressed the opinion that, inasmuch as paragraph 434, unlike paragraph 115, did not contain tlio qualifying words “not specifically provided for,” the agate bearings in question were more specifically provided for in paragraph 454 than as manufactures of agate under paragraph 115. His honor, Judge La-oombe, who reviewed the Board's decision said: “We do not concur in this conclusion. The group of arricies known as diamonds and other precious stones includes many different species. When Congress selects by name one of those species, and provides that manufactures of that particular stone should be dutiable at a different rate, it so clearly indicates its intention to withdraw the article from the general group as soon as it becomes a completed manufacture that the absence of the words ‘not specially provided for" in the paragraph covering the group is not particularly significant. Indeed, importers’ counsel concedes that agate paper weights, blotters, paper cutters, seals, and the like would be properly classified under paragraph 115. -These agate bearings, which have become completed manufactures, salable as such in trade, are plainly susceptible of a similar classification.” The italics are our own, and are inserted to emphasize the point that the court drew a distinction between stonés cut to be set as jewelry and agate made into completed articles for industrial uses.</p> <p>This difference is further emphasized by the court’s reference to the lower court having affirmed the Board in the agate bearings case on the authority of IT. S. v. Benedict, 145 Fed. 914, 76 C. C. A. 446, T. D. 27,052, and by the statement that the Benedict Case related to precious stones cut cabochon, intaglio, cameo, and other well-recognized cuts, mainly used for jewelry, while in the Borsch Case the court said: “We are clearly of the opinion that these agate bearings have become a manufacture separate and distinct from the ‘precious stones advanced’ of paragraph 435.” In all of the decisions cited it is manifest; that industrial articles manufactured from agate or the other minerals enumerated in paragraph 115 are dutiable thereunder at 50 per cent, ad valorem, while precious stones, including the species named in paragraph 115, advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, and not set, if known commercially as precious stones and designed for use in the manufacture of jewelry, are dutiable at 10 per cent, ad valorem under paragraph 455.</p> <p>In consonance with the views herein expressed, and on the authority of the decisions cited, we sustain the protests and reverse the collector’s decision.</p>

<p>Customs Duties (§ 37») — Classification—Rosaries—Ejusdem Generis.</p> <p>In Tariff Act July 24, 1897, e. 11, § 1, Schedule N, par. 408, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673), rosaries are not subject to duty as “articles * * * in part of beads,” because not ejusdem generis with the other goods (ornaments, trimmings, etc.) there enumerated.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 37.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, G. A. 5 (T. D. 29,596), affirmed the assessment of duty by the collector of customs at the port of New York on cloth composed in chief value of cotton, but of which 37 per cent, was jute.</p> <p>The importers had protested against the action of the collector in classifying the goods under Tariff Act July 24, 1897, c. 11, §- 1, Schedule I, par. 322, 30 Stat. 179 (U. S. Comp. St. 1901, p. 1001), and contended for classification under the provisions in said schedule for “cotton cloth.” The Board overruled this contention on the authority of a former ruling. G. A. 5,018 (T. D. 23,348), which had related to cloth chiefly of cotton, but containing, respectively, 44 per cent, of flax and 45 per cent, of jute. The pertinent portion of the opinion of the Board in the case last cited i@ as follows:</p> <p>“Somerville, General Appraiser. * * * Schedule I, ‘Cotton Manufactures,’ of Tariff Act July 24, 1897, c. 11, § 1, 30 Stat. 175 (U. S. Comp. St. 1901, p. 1655), embraces various kinds of cotton cloth, and among other things fixes a duty upon the basis of the quality of the cloth, regulated by the count of threads to the square inch and the weight of goods to the square yard. Paragraph 310, 30 Stat. 178 (U. S. Comp. St. 1901, p. 1659), defining the term ‘cotton cloth,’ reads as follows:</p> <p>“ ‘310. The term “cotton cloth” or “cloth,” wherever used in the paragraphs of this schedule, unless otherwise specially provided for, shall be held to include- all woven fabrics of cotton in the piece or otherwise, whether figured, fancy, or plain, the warp and filling threads of which can be counted by unraveling or other practicable means.’</p> <p>"The main question for decision is whether the goods under consideration are to be treated as falling within the term ‘cotton cloth,’ notwithstanding the fact that such cloth contains in one case over 45 per cent, of jute and in the other more than 44 per cent, of flax. This paragraph is a substantial reproduction of paragraph 257 of the tariff, act of 1897 (Act Aug. 27, 1894, c. 349, Schedule I, 28 Stat. 529), with some slight amendments not necessary to be considered. The term ‘cotton cloth’ appears not to have been used in the tariff acts in force prior to that of March 3, 1883, and it lias been construed 1o have no peculiar commercial meaning different from its popular meaning. Greenleaf v. Goodrich, 101 U. S. 278, 25 U. Ed. 845; Ullmnn v. Iledden (C. C.) 38 Fed. 95. The ‘countable clauses’ of the tariff act of 1874 as set out in section 2504 of the Revised Statutes, Schedule A, relating to ‘manufactures of cotton' and ‘plain woven cotton goods,’ were the subject of construction by the Supreme Court in Newman v. Arthur, 109 IT. S. 132, 3 Sup. Ot. 88, 27 L. lid. 883, where it was held that the thread count contemplated by Congress was such a couni as could be made by inspection by means of a glass, and was not confined to those cases where the counting was a matter of commercial usage.</p> <p>“In the case of Schmieder v. Arthur, decided by the Circuit Court for the Southern District of New York in 1880. not reported, but referred to in T. D. 4,505, it was held by Judge Shipman that certain cloths composed of cotton and silk, and other woven ('alivies composed in part of cotton and in part of flax, cotton being the component, of chief value in each instance. were not dutiable, under the countable clauses of Schedule A of the tariff act of 1874 (Rev. St. § 2504), as cotton fabrics of the kind there described, but were subject to duty under the last clause of said schedule, as manufactures of cotton not otherwise provided for, at 35 per cent, ad valorem, Jess a .10 per cent, deduction authorized by section 2503 of the Revised Statutes. It nowhere appears what percentage of material other than cotton the goods contained; but it seems probable that it was substantial to an extent that placed the matter beyond dispute.</p> <p>“We have examined the record in this case, as it is filed in the Circuit Court, and the fact is disclosed through the bill of exceptions that the portion of the merchandise containing silk had been assessed for duty at 50 per cent, ad valorem as manufactures of silk, under Schedule H of the act of 1871 (Rev. St. § 2504), and that the portion of the merchandise composed in chief value of cotton was assessed for duty according to weight and count of threads under said Schedule A. The importers claim that all of the goods were dutiable as manufactures of cotton not otherwise provided for, pursuant to the provisions of the last clause of Schedule A. It was admitted, as shown by the bill of exceptions, that the importations -were in fact textile fabrics, and were plain woven goods, and were generally known in trade and commerce as ‘Saxony dress goods,’ and that the component materials were as above stated; cotton in every instance being of chief value, but not being the only component material.</p> <p>"There were no disputed facts in the case, and the court directed a verdict in favor of the plaintiff, upon the ground that the goods in question were not composed wholly of cotton, hut of mixed materials. The opinion of Judge Shipman in this case is not now accessible, bur we are kindly favored by the present Attorney General of the United States with an unpublished copy of the opinion of Solicitor General Phillips, approved by Attorney General Devens under date of June 3, 1880, addressed to the Secretary of tlie Treasury, bearing on this case of Schmieder v. Arthur, and advising the department that the decision of the court was correct statement of the law. From the opinion we quote as follows ;</p> <p>“ ‘There are reasons for excluding goods of mixed materials from the first paragraph of section 2504 that do not apply to the last paragraph. In each of the former there is a context, wanting in the latter, that fixes the term “manufactures of cotton” as applying to manufactures of cotton only. That context is the reference to the number of “threads to the square inch” as establishing the duty; the latter becoming progressively higher as the number increases. This implies that the goods have a thread of uniform size throughout the piece, and does not permit that in some square inches they shall ¿ave fine silk threads and in others coarse cotton threads; nor is it intended thereby to impose the same duty upon goods which, because of an average of coarse cotton with fine silk threads, have as many countable threads to the square inch as are to be found iii other pieces Of very fine uniform cotton thread; nor, again, is it meant, because of such average, to levy (as I am informed by the chief of the customs division is sometimes the case) a higher duty upon goods of mixed silk and cotton than by other provisions of the tariff is leviable upon goods entirely of silk.</p> <p>“ ‘Upon consideration, therefore, there are reasons for believing that the former paragraphs of section 2504 apply only to goods exclusively of cotton that do not exist as to the last paragraph. It follows that the presumption-that goods of mixed materials are provided for somewhere in that section applies most naturally to such last paragraph, and, in conclusion, that such goods do not fall under the operation of any one of the former paragraphs.’</p> <p>“Since the rendition of this decision (more than 20 years ago), the practice at the various ports of this country seems to have been uniform in applying the countable clauses to goods made wholly or substantially of cotton, and to such goods only; mixed goods being placed under other provisions. In the report of this case by the Treasury Department, in T. D. 4,565, wherein the department states its intention to take no appeal to the Supreme Court, the following observation is made: ‘In order, however, to come within such classification, the goods must contain a substantial admixture of silk or flax; and cotton goods, which niay have a few threads of silk or-flax, which do not practically change the character or value of the goods, will not be considered as affected thereby.’</p> <p>“We are entirely satisfied that the goods now under consideration, containing so large a percentage of other materials than cotton, cannot be held to be cotton cloth within the meaning of that term as defined by Congress in said paragraph 310. We are not to be understood, however, as deciding that the term may not be held to embrace cloth which is commercially and commonly known as cotton and is substantially such in fact, although it may contain a small percentage 'of other materials,, where no special provision is made for such manufactures in the tariff act. The following adjudged cases seem to sustain this view and to be in harmony with'the suggestion of the department above stated: Chapón v. Smythe, 11 Blatchf. 120, Fed. Cas. No. 2,611, where it was held by the Circuit Court for the Southern District of New York, construing the eighth section of the act of June 30, 1864 (13 Stat. 210, e. 171), that the words ‘silk ribbons’ would include, ribbons made of silk and cotton, silk being the component material of chief value, provided it was shown to the satisfaction of the jury that the merchandise was bought and sold in trade and Commercially known as silk .ribbons, notwithstanding the percentage of cotton contained in the articles.’ Note, also, Lane v. Bussell, 4 Cliff. 122, Fed. -Cas. No. 8,053, 14 Opinions of Attorney General, 130; Thorpe v. Lawrence, 1 Blatchf. 351, Fed. Cas. No. 14,005; Sill v. Lawrence, 1 Blatchf. 005, Fed. Cas. No. 12,850. In Bobertson v. Edelhoff, 91 Fed. 642, 34 O. C. A. 34, it was held by the Circuit Court of Appeals for the Second Circuit, per Laeombe, J., that an article of silk and cotton, of which cotton constituted more than 25 per cent, of value, could not be classified as ‘silk’ goods of the kind described in a certain paragraph of the tariff act of 1874 (Bev. St. § 2504), in the absence of any commercial designation covering such goods.</p> <p>“How far commercial designation is to govern the classification of merchandise composed of mixed materials is further illustrated in the case of Drew v. Grinncll, 115 U. S. 477, 6 Sup. Ct. 117, 29 L. Ed. 453, and in Arthur v. Butterfield, 125 U. S. 70, 8 Sup. Ct. 714, 31 L. Ed. 643. The present decision must therefore be qualified, so as not to conflict with the principles announced in the foregoing decisions, so far as they may be applicable. It follows from what we have said that the goods under consideration are not ‘cotton cloth,’ within the meaning of paragraph 310 and of the ‘countable clauses’ of the cotton schedule, and that the claim of the importers was erroneous. We think they are properly provided for as manufactures of cotton under paragraph 322, where the collector classified them; and, being enumerated in said paragraph, there was no room for the operation of the similitude clause, which the importers have invoked in their alternative claim. Wolff v. TJ. S., 71 Fed. 291, 18 O. O. A. 41; Arthur v. Butterfield, 125 U. S. 70, 77, 8 Sup. Ct. 714, 5.1 L. Ed. 0415.</p> <p>“The protests are overruled, and the decision of the collector affirmed in each case.”</p>

<p>1. Mistes and Minerals (§ 52*) — Contracts fob Sale oe Mining Property— Right to Cancellation tor Fraud.</p> <p>A contract giving an option to purchase mining property cannot be rescinded for fraud because of erroneous statements made by the sellers as to the quantity of ore on the property, or the title, where the purchasers were to take possession of and operate the property for several months before the option expired, and the statements were made in good faith and expressed the honest opinions of the sellers, who were not lawyers and had little knowledge of practical mining.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dee. Dig. § 53.*]</p> <p>2. Mines and Minerals (§ 53*) — Option to Purchase Mining Property-Right to Rescind Contract — Defective Title.</p> <p>Where complainants by a contract with defendants and on making a cash payment were given an option to purchase mining property until a given date, they were not entitled to rescind the contract on the ground that the title to the property was unmarketable prior to the expiration of such time, and without offering to make the payments to complete the purchase.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dee. Dig. § 53.*]</p>

<p>In Bankruptcy.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. _The decision below affirmed the assessment of duty by the collector of customs at the port of New York as to fashion-plate drawings intended for publication in the fashion department of Harper’s Bazar, which the importers contended should have been classified as “works of art.” The Board overruled this contention, on the authority of a previous decision (In re Vandiver, G. A. 6;542 [T.…

<p>Customs Duties (§■ 30*) — Classification—“Printed Matter” — Post Cards.</p> <p>Post cards, with the inscription “Post card” printed thereon in several languages, are “printed matter,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 403,' 30 Stat. 189 (U. S. Comp. St. 1901, p. 1073), because such printing has a useful and valuable connection with the article itself.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 36.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5563, 5504 ; vol. 8, p. 7763J</p>

On Application for Review of a- Decision by the Board of United States General Appraisers. The decision below (G. A. 6,818, T. D. 29,297) affirmed the assessment of duty by the collector of customs at the port of New York, The case depends upon the construction to be given the embroidery proviso in Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 (U. S. Comp.

<p>1. Customs Duties (§ 44*). — Classification—Concentrated Fbuit .Tuice.</p> <p>Concentrated fruit juice is dutiable by similitude at the rale provided for fruit juice in Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 299, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1655).</p> <p>[ lid. Note. — For other cases, see Customs Duties, Cent. Dig. § 148; Dec. Dig. § 44.*]</p> <p>2. Customs Duties (§ 44*) — Similitude — Substantial Resemblance — Inequality in Rates.</p> <p>Where an unenumerated article resembles an enumerated one, in any of the respects named in Tariff Act July 24, 1897, e. 11, § 7, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), it cannot be removed from the operation of that provision, even though great inequality in tariff treatment results, as where a very valuable article is subjected to the same specific duty that is prescribed for a far cheaper article.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 148; Dec. Dig. § 44.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 258, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), reading as follows: “258.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below is reported as G. A. 6,748 (T. D. 28,920).</p>

<p>Customs Duties (§ 37*) — Classification—Leatheb Gloves — “Singue Stbands ob Conns.”</p> <p>Tariff Act July 24, 1897, c. 11, §• 1, Schedule N, par. 445, 30 Stat. 193 (U. S. Comp. St. 1901, p. 1077), relating to gloves stitched with more than “three single strands or cords.” does not include gloves having but three points ouch, each point having three distinct rows of stitching, though the stitching shows nine chains of embroidery on the outside of the backs of the gloves and nine single rows of stitching on the inside.</p> <p>LEd. Note. — For other cases, see Customs Duties, Dec. Dig. § 37.*)</p>

<p>Customs Duties (§ 36*) — Classification — “Printing Paper Suitable for Books and Newspapers” — “Handmade Paper.”</p> <p>Handmade paper suitable for printing books and newspapers is dutiable .as “printing paper * * * suitable for books and newspapers,” under Tariff Act July 24, 1897. c. 13, § i, Schedule M, par. 396, 30 Stat. 187 (U. S. Comp. St. 1901, p. 1071), rather than as “handmade * * * paper,” under par. 401, 30 Stat. 189 (U. S. Comp. St. 1901, p. 3672).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 36.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,864 (T. D. 29,542), reversed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board reads as follows :</p> <p>SHARRETTS, General Appraiser. The' protestants in this case, Messrs. Tiffany & Co., imported into the United States 59 pearls, valued at 816,244.47, divided into four packages, containing, respectively, 13, 21, 15, and 10 pearls. These pearls were all loose and all drilled. The appraiser returned them as “pearls,” with the advisory rate of 10 per cent, ad valorem. The collector, however, disregarded the appraiser’s report and made the following return -on the invoice: “Classified as j'ewelry, dutiable at 60 per cent, ad valorem by similitude under section 7, Act July 24, 1897, by order of department.”</p> <p>It appears from the testimony adduced at the several hearings in the case that Mr. M. Guggenheim, the ultimate purchaser of these pearls, Visited the Paris establishment of Tiffany & Co. for the purpose of purchasing a necklace for his wife; but, finding nothing suitable in stock, he requested the salesman to get a number of pearls together to make the desired necklace. Mr. Guggenheim visited Tiffany & Co.’s establishment daily for probably a week, and inspected the loose drilled pearls as they were procured. At the expiration of that time the assortment was completed, and a final sketch made of the necklace as it would appea'r when finished. Then an order was given for a necklace to be made by Tiffany at New York from the pearls selected, at a cost not exceeding $25,000. These loose drilled pearls may have been and probably were temporarily strung in the Paris establishment one or more times, to show liow the string of pearls would appear as a necklace; but at no time were the pearls made into a completed necklace before importation. Nor were they even worn abroad, as far as the testimony discloses.</p> <p>The relevant facts in the case at bar are substantially the same as those found by the Board in the Bernard Citroen Case. G. A. 6,617 (T. D. 28,246). Evidence taken before a referee, for the court, subsequently to the Board’s decision, however, showed that the Citroen pearls had been made into a necklace in Patis and there worn on several occasions, after which they were removed from the string and shipped loose, in separate packages, to Mr. Leeds, the purchaser abroad, who had made a part payment thereon in Paris. The essential difference between tlie Citroen Case and the one here presented is that in the one the pearls were assembled in the form of a necklace and worn as such before importation, while in the other the pearls were never advanced beyond the condition of a collection of pearls for a necklace, probably temporarily strung for display. G. A. 6,617, supra, upon review, was reversed ‘by the Circuit Court for the Southern District of New York; the court holding that the pearls there in question were dutiable by similitude at 60 per cent, ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 434, 30 Stat. 192 (U. S. Comp. St. 1901, p. 1676). U. S. v. Citroen (C. C.) T. D. 29,124. The case having been appealed to the Circuit Court of Appeals, Second Circuit, that tribunal held that the pearls in question were dutiable by similitude to “pearls in their natural state,” at 10 per cent, ad valorem under paragraph 436, 30 Stat. 192 (IT. S. Comp. St. 1901, p. 676), reversing the lower court and affirming the Board’s decision. Citroen v. TI. S. (C. C. A.) 166 Fed. 693, T. D. 29,502.</p> <p>The opinion of the appellate court in the Citroen Case, supra, conclusively shows that the pearls now In question are dutiable at 10 per cent, ad valorem under paragraph 436, either directly or by similitude. The protest now before us is therefore sustained, and the collector’s decision in assessing duty on the merchandise at tiü per cent, ad valorem under paragraph 434 is reversed.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, reported ás G. A. 6,675 (T. D. 28,4-80), affirmed the assessment of duty by the collector of customs at the port of New York. The nature of the questions in the case appears from the following statement in the Board’s opinion of the character of the goods and the tariff provisions that are involved:</p> <p>HOWELL, General Appraiser. 'The merchandise in question consists of silk elastic belts, with fancy metal buckles, and more or less elaborately ornamented with steel points or studding. The webbing from which the belts are made is composed of silk, cotton, and india rubber, silk being the component material of chief value; but in the completed belts metal is the component material of chief value, as the' .value of the steel points or studding and the buckles is greater than the1 value of any other single component material. The articles were assessed with duty at the rate of 60 per cent, ad valorem under Act July 24,-1897, c. 11, § 1, Schedule L, par. 390, 30 Stat. 18.7 (U. S. Comp. St. 1901, p. 1670), the pertinent provision of which is as follows: “Articles of wearing apparel of every description, * * * made of silk, or of which silk -is the component material of chief value, not specially provided for in this act, * * * sixty per centum ad valorem: Provided, that any wearing apparel or other articles provided for in this paragraph (except gloves), when composed in part of india rubber, shall be subject to a duty of sixty per centum ad valorem.” The importers contend that, inasmuch as metal is the component material of chief value in the belts, they are excluded from paragraph 390, and are properly dutiable at 45 per cent, ad valorem under the provision in paragraph 193 for “articles or wares not specially provided for in this act, composed wholly or in part of iron, steel, * * * ' or other metal.”</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below (G. A. 6,810, T. D. -29,276) affirmed the assessment of duty by the collector of customs at the port of New York on an importation classified by the collector under paragraph 193, tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule 0, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645 |), as manufactures of metal.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,777 (T. D. 29,094), affirmed the assessment of duty by the collector of customs at the port of New York, on the authority of Denunzie v. U. S. (C. C.) 164 Fed. 909.</p>

<p>1. Indians (§ 13*) — Right to Shark in Trujad Property.</p> <p>Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by Act March 3, 1875, c. 131, § 15, 18 Stat. 420 (U. S. Comp. St. 1901, p. 1419), and Act Eeb. 8, 1887, c. 119, § 6, 24 Slat. 390, and other acts, as to place individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, upon 1he same footing in respect of this right as though they had maintained their tribal relations.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>2. Indians (§ 13*) — Act January 14, 1889, Relating to Chippewas in Minnesota — Interpretation.</p> <p>Act Jan. 14, 1889, c. 24, 25 Stat. 042, relating to the cession of part oí the Chippewa reservations in Minnesota and to the allotment in severalty of the remainder, does not expressly or by necessary implication displace the saving provisions of the acts of 1875 and 1887, above named, whereby individual Indians who have abandoned tribal relations, once existing, and have adopted tho customs, habits, and manners of civilized life, are accorded the same right to share in tribal property as though they had maintained their tribal relations; nor does it render those provisions less applicable to the Chippewas in Minnesota than to other Indians.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>3. Indians (§ 13*) — Act June 7, 1897, Relating to Rights or Children or Mixed Blood.</p> <p>Act June 7, 1897, e. 3, 30 Stat. 62, relating to the rights of children of a white man and an Indian woman in'tribal property, does not embrace the children of a mother who was living at the time of its passage and was not then recognized by the tribe as one of its members.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>4. Suit to Enforce Right to Allotment — Parties.</p> <p>Quaere: Whether in a suit against the United States under Act Feb. 6. 1901, c. 217, 31 Stat. 760, to enforce a right to an allotment of specified land, which has been allotted to another Indian, a decree displacing or annulling the existing allotment lawfully can be rendered without making the allottee a party and giving him_ an opportunity to defend.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>For opinion below, see 163 Fed. 621.</p>

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

<p>Shipping (§ 105*) — Carriage of Goods — Loss ok Injury — Lien.</p> <p>The claimant'owned the steamer Pokanoket, which it operated between Petersburg and Norfolk, Va. Claimant’s agent at Petersburg solicited cargo and signed bills of lading; the master being a pilot, charged only with the navigation of the vessel. The agent received from libelant, at claimant’s wharf in Petersburg, 275 bags of peanuts for carriage to Norfolk on the steamer, and issued a bill of lading therefor. Owing to a freshet, causing an obstruction in the river, the steamer could not reach the wharf, and the agent employed a lighter, which came into collision with an obstruction, and a part of the peanuts were lost and damaged before the lighter reached the steamer. Held, that the reception of the goods at the wharf was a delivery to the vessel, and that she was liable in rem for any loss recoverable.</p> <p>I Ed. Note.- — For other cases, see Shipping, Cent. Dig. f 411; Dec. Dig. § 105.*]</p>

<p>Railroads (§ 348*) — Injury to Person on Crossing — Contributory Negligence.</p> <p>Evidence held to establish contributory negligence of a plaintiff, who was struck and injured by a fast train while driving over a dangerous crossing on defendant’s railroad, where there were a number of tracks, with which she was familiar, where by her own testimony, after having stopped to look and listen at the usual place, some 40 feet before reaching the first track, and waiting for a freight train on such track to pass, which train, owing to a curve in the track, obstructed the view of any train approaching from the opposite direction, she at once drove on the crossing behind such train, without waiting until she could see whether the other tracks were clear, and was struck while crossing the second track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1144^-1150; Dec. Dig. § 348.*]</p>

<p>Bankruptcy (§ 236*) — Examination op Bankrupt — Right to Examine Before Adjudication.</p> <p>Bankr. Act July 1, 1898, c. 541, § 21a, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3430), which empowers a court of bankruptcy to require a bankrupt to appear before a referee “to be examined concerning the acts, conduct or property of a bankrupt, whose estate is in process of administration under this act,” does not authorize a reference for the examination of an alleged bankrupt before his adjudication and before the time has arrived when he is required to answer the petition, on motion of a receiver appointed for his property, which cannot be said to be “in process of ad1 ministration” under the act; the function of the receivership being solely preservative of the estate, and not administrative.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 236.*]</p> <p>Buffington, Circuit Judge, dissenting.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Appeal from order adjudging petitioners in contempt.</p>

For opinion below, see 159 Fed. 294. This is an appeal taken by an importer from a decision of the Circuit. Court:, ¡Southern District of New York (1.19 Fad. 294), ailirming a decision of the Hoard of General Appraisers, which affirmed a decision of the collector that certain imported merchandise, consisting of various loom-woven fabrics, was dutiable as braids under paragraph 339 of the tariff act of 1897 (Act July 24, 1897. c. 11, § 1. Schedule J. 30 Stal. 181 [IT. ft.

<p>1. Master and Servant .(§§ 135, 137*) — Methods op Operation Discretionary —Reasonable Selection Not Negligence.</p> <p>A railroad company, which selects a customary method of operation or construction which is neither palpably unreasonable nor clearly dangerous, owes its servants no duty to adopt a different method, and it is not guilty of negligence for a failure to do so.</p> <p>Its officers have and must exercise discretion and judgment in the selection of such methods, and their decisions of doubtful questions regarding such matters are presumptively right and may not be held to constitute actionable negligence, in the absence of (dear proof to that effect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 271: Dec. Dig. §§ 135, 137.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 O. O. A. 8.]</p> <p>2. Master and Servant (§ 111*1 — Railroad Companies not Liable for Negligence oe Shippers in Removing Means oe Loading.</p> <p>A railroad company is not liable to its servants for the negligence of shippers in their use and removal of instrumentalities foi' loading and unloading cars which form temporary obstructions to the safe movement of the cars.</p> <p>[Ed. Note. — For oilier cases, see Master and Servant, Cent. Dig. §§ 215-217; Dec. Dig. § 111.*]</p> <p>3. Master and Servant (§ 111*) — Leaving Duty to Remove Means oe Loading to Shippers Not Negligence.</p> <p>A railroad company is not guilty of negligence because it leaves to shippers who use them the duty of removing from its cars necessary in-strumentalities for loading or unloading them which form temporary ob-strudions near them, and to its servants wlio move the cars lho duty to see that loading or unloading is not in progress just before they start the cars.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 215 • 217; Dec. Dig. § 111.*]</p> <p>4. Master wd Servant (§■ 278*) — Facts—-Conclusion—Sake [Place to Work.</p> <p>A railroad company provided a cattle pen, a platform, and means to form a temporary chute from the pen to the door of the car to enable shippers to load stock into the car. A gate which opened from the pen upon the platform formed, when ojien, one side of this chute and extended to within four or five inches of the ear. The company left the duty of loading and unloading their stock and of dosing this gate when they had completed (heir work to the shippers, and the duty to ascertain, just before the cars were started, whether or not any loading or unloading was in progress io the plaintiff. He could not have discharged that duty without learning that the gate was open. He did not discharge that duty. He knew the method of using the gate, and that if it was open it would strike one riding on tlio ladder on the side of one of the cars toward the gate; but he did not think of tiie gate, and when he had failed to make his inspection, and the cars stalled, he rode along on tlio side of the ladder of one of them until the open gate knocked him off.</p> <p>Held, the company was not guilty of any lack of ordinary care to provide the plaintiff with ar reasonably safe place in which to discharge the duties of his employment</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954-972; Dec. Dig. § 278. *.[</p> <p>(Syllabus by the Court.)</p>

On April 10, 1908, a petition in involuntary bankruptcy was filed in the District Court for the Southern District of New York, against the Hudson Valley Bead Company, a corporation organized under the laws of that state, asking that it be adjudged bankrupt upon its confession in writing that it was insolvent and unable to pay its debts. The following day the court appointed Harry Arnold receiver of the property of the corporation and authorized him to conduct Ms business.

The defendant in the court below brings this writ of error to review a judgment for the plaintiff entered upon the verdict of a jury in the United States Circuit Court for the Southern District of New York.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Por opinion below, see 167 Ped. 223.</p> <p>In the policy sued upon the respondent insured the libelant, “for account of whom it may concern, on all kinds of grain and flaxseed, against any and all risks and perils of fire, inland navigation and transportation, the property of the assured or held in trust or custody, or as freighter, forwarder, bailee or common carrier, while on board barge or barges, lighter or lighters, boat or boats, float or floats.” On January- 23, 1903, while the policy was in force. 4,500 bushels of wheat covered by it and in the course of transportation by the libelant as common carrier were damáged by the sinking of a canal boat upon which, they were loaded. The owners of the wheat assigned their claim for its loss to one Bradley, who in March, 1906, obtained a decrée against the libelant in the District Court. In April, 1907, this decree was affirmed on appeal by this court. The libelant paid the amount of the decree and within 12 months thereafter brought this action to recover the amount so paid together with expenses.</p> <p>The District Court held that the respondent was not liable because: (1) The action was not commenced within the time limited by the following provision of the policy: “It is further hereby expressly provided that no suit or action against said company for the recovery of any claim upon, under, or by virtue of this policy shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the time of 12 months next after the disaster causing such loss or damage shall occur; and in case any such suit or action shall be commenced against said company after the expiration of 12 months next after the disaster causing such loss or damage shall have occurred, the lapse of time shall be taken and claimed as conclusive evidence against the validity of the claim thereby attempted to be enforced.” (2) The policy provided that it should not apply, should there be any existing insurance by the owner of the goods, and there was such insurance.</p>

<p>Shipping- (§ 27*) — Sale op Vessel — Action por Price — Failure to Deliver.</p> <p>A purchaser of a half interest in a steamer, which contracted to pay therefor one-half her cost, to be shown by an itemized bill to be furnished by the seller, and on the transfer of such half by a good and sufficient bill of sale free from Hons, held not btfmid for the purchase price, where no bill of the cost nor bill of sale was tendered prior to the time when the .vessel was lost.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 27.*]</p>

<p>1. Shipping (§ 132*) — Connecting Carriers — Suit foe Shoet Delivery of Caego — Burden of Proof.</p> <p>AVlien it is sliown that goods, when delivered by a vessel which was the last carrier to the consignee, were deficient in quantity, the presumption is that the missing goods were delivered to such vessel, and the prima facie ease so made out is not only one of liability against the owner, but of a maritime lien against the ship, and the burden rests upon her to prove that she delivered all that she received.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Dee. Dig. § 132.*</p> <p>Presumptions and burden of proof as to cause of loss or injury to goods shipped by vessel, and diligence or negligence of carrier, see note to The Patria, 68 C. C. A. 398.]</p> <p>2. Shipping (§ 141*) — Loss of Cargo — Exemption of Liability in Bill of Lading.</p> <p>An exemption in a bill of lading of liability for loss of cargo by theft does not relieve the vessel, where there was negligence on her part which contributed to or facilitated the theft.</p> <p>[Ed. Note. — Bor other cases, see Shipping, Dec. Dig. § 141.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>For opinion below, see 163 Fed. 591.</p>

<p>3. Patents (§ 157*) — Construction—Paper Patents.</p> <p>While The fact that 1he device of a patent has never been put in use does not affect ilie validity of the patent, it is ground for giving it a strict construction.</p> <p>I Ed. Note. — For other cases, see Patents, Dec. Dig. § 157.*]</p> <p>2. Patents (§ 312*) — Validity-Presumption prom Issuance.</p> <p>The presumption of the validity of a patent arising from its issuance is weakened by ihe fad that certain prior patents, claimed to anticipate, were not cited to nor considered by the examiner.</p> <p>i'Ed. Xote. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. § 112.*]</p> <p>3. Patents (§ 328*) — Anticipation—Electric Controller.</p> <p>The Brown patent, No. 618,163, claim 6, for a method of electrical control, designed to secure an acceleration of speed of motors and at the same time protect them from injury, is void for anticipation by the Potter patent, No. 524,396. '</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p>

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

<p>1, PATENTS (§ 34*) — INEBINGEMENT—ACTION AT X„A W — EVI DEN CE.</p> <p>Where the question of invention is left to the jury in an action for infringement of a patent, no evidence tending to show the true state of the art at the date of the claimed invention should be excluded.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 38; Dec. Dig. i 34.*]</p> <p>2. Patents (§ 276*) — Scope op Invention — Combined Steam Harvester and Thrasher.</p> <p>The Best patent, No. 410,306, for a combined steam harvester and thrasher, is for a cláimed combination of elements all of which were old; the chief feature of novelty claimed for the combination being the operation of the cutting and thrashing machinery by rnpans of a supplementary engine mounted upon the thrasher frame, to which steam is supplied from the boiler of the traction engine by means of a flexible pipe. Such supplementary engines had previously been used for the same purpose on similar machines driven by horse power. Held, that such patent was not a pioneer patent, but an improvement patent only, and that it was error in an action for its infringement to refuse to so instruct the jury, and to submit the question to them for decision.</p> <p>[Ed. Note. — F'or other cases, see Patents, Dec. Dig. § 276.*]</p>

In Equity. See, also, 166 Fed. 309. The bill in this case is filed by Warren Bros. Company, the owners of letters patent No. 727,505, issued to J. S'. Warren, to prevent infringement of a new and useful improvement in street pavements. The defendants are the city of Montgomery and the Metropolitan Engineering & Construction Company, to whom the former lot the paving of a part of one of the streets in the city of Montgomery.

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

<p>Patents (§ 328*) — Infringement—Manure Spreader.</p> <p>The Kerup patent, No. 632,124, for an' improvement in manure spreaders, consisting of a tailboard placed immediately in front of the beater to prevent it from becoming clogged in loading, means for raising and lowering the same, and a stop device to prevent the wagon bottom and beater from being operated until the tailboard is raised, discloses invention in such means of operation and stop device, but is limited by the prior aft to the precise construction shown, with a narrow range of equivalents. As so narrowly construed, it is not infringed by the device of the Brown patents, Nos. 731,539 and 821,779.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>PATENTS (§ 328*) — INFRINGEMENT -DRUM.</p> <p>The Oschatz patent, No. 772.743, for a drum, construed, and, as limited by the prior art, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Customs Duties (§ 30*) — Classification—“Tutirographic Prints”--Folded Post Cards — -“Booklets.”</p> <p>Under Tariff Act July 24, 1807. e. II. § 1, Schedule M, par. 400, 30 Star. 188 tU. S. Comp. St. 1901, p. 1(572), relating respectively to “lithographic prints” and to “booklets,” articles consisting of several post cards folded together and ready to be detached, with a paper cover pasted thereon, are covered by the former rather than the latter term.</p> <p>I Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 8G.*]</p> <p>2. Customs Duties (§ 30*) — -Folded Post Cards — “Cutting Sisas.”</p> <p>The “cutting size” of post cards, imported in a folded, undetached condition, should bo ascertained, under Tariff Act July 24, 1897, c. 14, § 1, Schedule >1. par. 400. 30 Suit. 188 (IT. S. Comp. St. 1901, p. 1072), by measuring each card l>y itself, rather than taking the whole series as the unit of measurement.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.*]</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 Bridgeport; the decision being rendered on the authority of a former decision. G. A. 6,721 (T. D. 28,774). The case involves construction of Tariff Act July 24, 3897, c. 11, § 3, Schedule B, pars: 100, 130, 30 Stat. 158, 159 (U. S. Corap.

<p>Post Office (§ 20*) — Fraud Order — Suit to Enjoin Enforcement.</p> <p>A fraud order issued by a postmaster, excluding complainant from the use of the mails, hold not so entirely unsupported by evidence as to authorize the court to enjoin its enforcement.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 26.* Nonmailable matters, see note to Timmons v. United States, 30 C. C. A. 79.]</p>

<p>Carriers (§ 37*) — Carriers of Live Stock —Twenty-Eight Hour Law — Liability of Connecting Carrier.</p> <p>Where the initial carrier of live stock has been subjected to the penalty imposed by Act June 29, 1900, c. 3591, § 1, 34 Stat. 607 (IT. S. Comp. St. Supp. 1907, p. 918), for confining live stock longer than thereby permitted without unloading for rest, water, and feeding, in a second action against a connecting carrier to recover for the same confinement, the first 28 hours of the confinement, or 36 hours in case it was requested by the owner, which was necessarily included in the period covered by the judgment in the first action, cannot be counted against the defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The merchandise in controversy consisted of birch bark, classified by the collector of customs at the port of N ew York as an unenutner-ated unmanufactured article, under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693). The importers cop-tended for classification under paragraph 566 or 617, § 2, Free List, 30 Stat. 198, 199 (U. S. Comp.

<p>1. Courts (§ 347*) — Federal Courts — Adoption of Practice of State Courts.</p> <p>While the burden of proving contributory negligence is on the defendant in the federal courts, the question as to whether he must plead it specially or not depends on the practice of the state in which the court is sitting.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]</p> <p>2. Courts (§ 347*) — Federal Courts — Adoption of Practice of State Courts.</p> <p>Under the practice in the state courts in Minnesota, contributory negligence may be proved under a general denial; and in a federal court in that state a general allegation of contributory negligence in the answer is sufficient.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §-921; Dec. Dig. § 347.*]</p>

<p>1. Chimin’al Law (§ 552*) — Trial—Circumstantial Evidence.</p> <p>To warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but must clearly and satisfactorily exclude every other reasonable hypothesis, except that of guilt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1257, 1259-1202; Dec. Dig. §' 552.*]</p> <p>2. Monopolies (§ 29*)< — Conspiracy in Restraint of Interstate Commerce-</p> <p>Criminal Prosecution.</p> <p>Where an indictment against a number of defendants charges them with a conspiracy among themselves and with others in restraint of interstate trade and commerce, in violation of section 1 of the anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), or to monopolize any part of such trade and commerce, in violation of section 2, to warrant a conviction, it must be found that at least two of the defendants were parties to such a conspiracy.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. $ 29.*]</p> <p>8. Monopolies (§ 12*) — Federal Anti-Trust Act — Combinations Prohibited — ' ‘Monopoly. ’ ’</p> <p>The size of a business alone does not constitute a “monopoly” In restraint of interstate commerce, in violaüon of section 2 of the anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]); but to render a combination illegal thereunder it must intentionally and necessarily prevent other persons from engaging in such business, thereby stifling competition.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dee. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4574.]</p> <p>4. Monopolies (§ 31*) — Federal Anti-Trust Act — Conspiracy in Restraint of Interstate Commerce — Criminal Prosecution.</p> <p>The elements of a combination or conspiracy in restraint of interstate trade and commerce and to monopolize such trade and commerce, in violation of the anti-trust act (Act July 2, 1890, c. 647, §§ 1 and 2, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), and the facts necessary to a conviction thereunder, explained in a charge to the jury.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 31.*]</p>

<p>In Equity. On pleas to jurisdiction and motions for preliminary injunction.</p>

<p>Removal or Causes (5 19*) — Federal Question — Action Based on Federal Statute.</p> <p>An action against a railroad company for an injury to an employé, brought under and in reliance upon the employer’s liability act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65), where the declaration contains no statement or suggestion that the result of the suit will depend upon the construction of the act, is not removable on the ground that it is one arising under a law of the United States.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 37; Dee. Dig. § 19.*]</p>

<p>1. Contracts (§ 03*) — 'Work and Labor (§ 10*) — 'Validity of Assent — Mutual Mistake.</p> <p>Where two parties enter into a contract to perform specific work, neither having knowledge of the facts actually existing, and the contract proves to involve work essentially different from that which the parties had in mind, it will not be enforced by a court; but if the work is proceeded with after knowledge of the facts, under circumstances from which a contract may be implied, a recovery may be had therefor bn a quantum meruit.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 415; Dee. Dig. § 93 ;* Work and Labor, Cent Dig. § 25; Dec. Dig. § 10.*]</p> <p>2. Admiralty (§• 1*) — Jurisdiction—Suit Involving Equitable Issues.</p> <p>A court of admiralty may entertain a suit for salvage, in which the claimant pleads a contract under which it is alleged the services were performed, but which libelant seeks to avoid on the ground of fraud or mistake; such court having equitable Jurisdiction, in the sense of applying rules of equity to questions incidentally arising in a suit, within its general Jurisdiction, at least where no objection is made prior to the hearing.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>Jurisdiction as to matters of contract, see notes to The Richard Wins-low, 18 C. C. A. 347; Boutin v. Rudd, 27 C. O. A. 536.]</p> <p>8. Salvage (§ 36*) — Contracts as to Compensation — Validity.</p> <p>Claimant purchased a wrecked schooner, lying on her side, partly submerged in Cape Fear river, and contracted with libelant, through its representative, who made an examination of so much of the vessel as could be seen, to raise, pump out, and deliver her and her cargo in New York for the sum of $3,750. On righting her, it was found that the underside, on which she lay, and her keel, were seriously damaged, necessitating quite extensive repairs before she could be pumped out and towed. Libel-ant notified claimant of such facts, stating that it would do the work, but should expect additional compensation, to which claimant replied, in ef-feet, that ho oonsidorocl the contract binding. Libelant delivered the ves> sol in New York at an expense largely exceeding the contract price, and brought suit to recover as for a salvage without contract. Held that, as no fraud, misrepresentation, or concealment of known l'ac.ts was shown on the parr of claimant, but both parties contracted with reference to what appeared from inspection, botli were bound by the contract, and. the services rendered by libelant being within its terms, there could Iks no recovery therefor beyond the contract price.</p> <p>Píd. Note. — For other cases, sens Salvage, Cent. Dig. § 87; Dec. Dig. § 36.*]</p>

<p>1. Constitutional Law (§ 205*) — Gkant of Rreirr to Use Streets — “Special Privilege ob Immunity.</p> <p>A franchise or privilege granted by a city to an electric company to use its streets, not being exclusive, is not a “special privilege or immunity,” prohibited by Neb. Const, art. 3, § 15.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 595; Dec! Dig. § 205.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 65S6.]</p> <p>2. Electricity (§ 4*) — Electric Companies — Franchise to Use Streets — Duration.</p> <p>A franchise granted by a city to an electric company to use its streets is not necessarily limited in duration to the corporate life of the company.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 1; Dec. Dig. § 4.*J</p> <p>3. Electricity (§ 4*) — Electric Companies — Franchise to Use Streets— Construction.</p> <p>A city ordinance, passed in 18S4, granting to a company the right to construct and maintain in the streets poles and wires “for the purpose of transacting a general electric light business,” does not confer the right to use the streets for the transmission of current for power or heating purposes ; such uses being practically undeveloped and little known at that time.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 1; Dec. Dig. § 4.*J</p> <p>4. Contracts (§ 170*) — Construction—Interpretation isy Parties.</p> <p>The interpretation given to contracts by tlie parties, as shown by their acts, can only bo considered in construing the contract when it is ambiguous and susceptible oi' different meanings.</p> <p>[Kd. Note. — For other cases, set; Contracts, Cent. Dig. § 7ño; Dec. Dig. § 170.®]</p> <p>5. Electricity (§ 4*) — Grant oe Higiit to Use Streets — Construction—Es-toppel.</p> <p>A city, which granted the right to a company to use its streets for electric: light purposes, is not estopped to deny that the grant conferred the right to use them for the transmission of current for other jiurposes because, with knowledge that the company was so using them, it passed general ordinances regulating such use, nor because, under an ordinance imposing a gross earnings tax on all companies furnishing electricity for lighting, heating, and power purposes, it accepted taxes from such company based on its income from electricity furnished for power as well as lighting purpose's.</p> <p>I Ed. Note. — For other cases, see Electricity, Cent. Dig. § 1; Dec. Dig. § 4.®J</p>

<p>1. Shipping (§■ 47*) — Demurrage—Construction op Charter — Change op Poet op Delivery.</p> <p>Where a charter of a vessel to carry a cargo of ties to Boston, to be discharged with customary dispatch, was change^ by consent of the parties to make the port of discharge New York, instead of Boston, the other terms of the charter to remain unchanged, the effect was to substitute the customary dispatch of the new port, if there was any difference between that and the old.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 47.*]</p> <p>2. Shipping (§ 47*) — Demurrage—Customary Dispatch in Discharging.</p> <p>The rules of a maritime association of a port relating to the time allowed for discharging cargo are not conclusive ns to what constitutes customary dispatch at such port, as applied, to a charter the parties to which were not members of the association.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 47.*]</p> <p>3. Shipping (§ 177*) — Demurrage—Customary Dispatch in Discharging. .</p> <p>Customary dispatch at the port of New York for discharging a cargo of railroad ties held- to require that the vessel be given a berth within 24 hours after she .reported, and bé discharged thereafter at the rate of 50,000 feet, board measure, each working day.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 582; Dec. Dig. § 177.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 057; Randall v. Sprague, 21 C. C. A. 337; Ilagernnm v. Norton, 40 G. C. A. 4.]</p> <p>4. Shipping (§ 177*) — Demurrage—Delay in Discharge — Refusal op Berth.</p> <p>A chartered schooner laden with ties hold within her right to decline a berth at New York, where she would have projected some distance beyond the end of the pier, and thus been in danger from currents and from other vessels, and where the cost of discharging, to be paid by the vessel, would have been increased because of her inability to lie alongside for trie whole length.</p> <p>[Ifd. Note. — For other cases, see Shipping, Cent. Dig. § 581; Dee. Dig. § 177.*]</p> <p>5. Shipping (§ 174*) — Demurrage—Parties Liable.</p> <p>Where the consignee of a cargo, named in the bill of lading, which ran to him or his assigns, did not assign the same, and received the cargo, and paid the freight, he cannot avoid liability for demurrage on the ground that he acted only as broker in the transactions.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 571; Dec. Dig. § 174.*]</p>

<p>1. Equity (§ 197*) — Cross-Bill—Right to Pile — Persons Not Parties.</p> <p>It is a rule of equity pleading prevailing in the federal courts that one who is not a party to a suit cannot file or join in a cross-hill or other pleading to the merits until he has been made a party by some recognized method of equity procedure.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 458; Dee. Dig. § 197.*]</p> <p>2. Corporations (§ 630*) — Dissolution by Act op Stockholder under Iowa Statute — Right to Sue after Dissolution — Suit to Set Aside Judgment-Parties.</p> <p>Under Code Iowa, §§ 1617, 1629, which provide that, on the dissolution, of a corporation by the voluntary act of the stockholders, notice shall be given as is required on its organization, and that it may nevertheless continue to act for the purpose of winding up its affairs, an allegation in a pleading that prior to the time a corporation commenced an action and recovered a judgment it had been dissolved by the consent of its stockholders, without more, does not state any ground for setting aside such judgment for want of its capacity to sue, nor relieve the pleader from the necessity of making it a party to the suit; there being no allegation that it has transferred the judgment.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2482; Dee. Dig. § 630.*]</p>

<p>1. Trade-Marks and Trade-Names (§§ 59, 70*) — Infringement—'Unfair Competition.</p> <p>The use by a defendant of the name “Murafreseo” for a wall finish was not an infringement of complainant’s trade-name “Muresco” for a similar product, nor did it constitute unfair competition, where it appeared that a number of very similar names were used in the trade for wall coverings, and that there was no imitation of complainant’s packages or labels, or attempt to deceive purchasers.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Dee. Dig. §§ 59, 70.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 105; Lare v. Harper & Bros., 30 C. O. A. 376.]</p>

<p>On Petition for Rehearing on Motion to Remand to State Court.</p>

<p>Applications for Orders Quashing Subpoenas.</p>

<p>Bankruptcy (§§ 408, 480*) —Discharge—Contempt op Coijet.</p> <p>While the perjury of a bankrupt in his testimony on proceedings for his discharge will not prevent the granting of the discharge where the other evidence shows him to be entitled to it, such perjury is a contempt of court for which he may be punished.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 408, 486.*)</p>

<p>1'. Judgment (§ 713*) — 1Conclusiveness of Adjudication— Scope' and Extent of Estoppel — Matters Which Might Have Been Litigated.</p> <p>A decree for the defendant in a suit for the cancellation of a contract is conclusive against the complainant upon every ground for cancellation or avoidance of the contract which existed and was known to him when the suit was brought.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1211; Dec. Dig. § 713.*]</p> <p>2. Estoppel Os 90*) — Acquiescence-Invalid Contkact — Payment.</p> <p>A licensee under a patent is estopped to set up tlie invalidity of the contract as a defense to an action to recover royalties thereunder, when, after obtaining knowledge of all the facts, lie continued to pay royalties for 15 months without objection.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 244; Dec. Dig. § 90.*]</p> <p>S. Pleading- (§ 319*) — Motion foe Judgment on Pleadings — When Au-TiromzHD.</p> <p>A motion for judgment on the pleadings is proper when the defendants’ pleadings admit the cause of action, and no assessment of damages is necessary.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. § 349.*]</p>

Suit in rem to recover the value of merchandise alleged to have been converted to his own use by the master of a vessel on which the same was delivered for carriage from Seattle to Seward, Alaska. Heard on the merits. Decree for claimants.

Action by Charles B. Mason, as trustee in bankruptcy of the National Herkimer County Bank of Little Ralls. From a decree of the District Court (163 Fed. 920) for complainant, defendant appeals. Reversed and remanded, with instructions to dismiss.

<p>1. Admiralty (§ 73*) — Documentary Evidence — Ship’s Log. It is the better practice to introduce the log of a vessel in evidence, aft-</p> <p>• er being duly authenticated, to prove facts stated therein, rather than to rely on the testimony of the officer who made the entries after reading the same, when much time has elapsed, and the facts are of such a character, that he cannot be supposed to have any independent recollection of them.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dee. Dig. § 73.*]</p> <p>2. Shipping (§ 153*) — Action to Recover Freight — Sufficiency op Evidence. '</p> <p>Evidence held sufficient to sustain a finding that the weight of a cargo of chalk carried by a vessel was in excess of that reported by the consignee and on which freight was paid.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 153.*]</p>

<p>Bankbutoy (§ 163*) — Voidable Pt.efekenoes — Tbansfeb or Piiopekty — Dis-LIVEKY PURSUANT TO PBIOK LIEN.</p> <p>A New York banking house, by agreement, and in order to provide security for drafts drawn by it in the course of business on its correspondent in Manchester. England, placed certain stocks and bonds either transferable by delivery or indorsed in blank in an envelope in its safe deposit vaults marked “Escrow, for account of” the Manchester house, which was furnished with a list of the securities giving their market value. The New York house also entered the transfers on its books and with permission of the Manchester house, from time to time, withdrew certain of the securities and substituted others of equal value. The arrangement was made in entire good faith and continued for a number of years, when the New York house, having then outstanding unprotected drafts, and its condition having become uncertain by reason of a panic, delivered the securities to an agent of the Manchester house and within four months thereafter was adjudged a bankrupt. Held: That the Manchester house had an equitable lien on the securities while in the possession of its debtor in the nature both of a mortgage and an agreement for a pledge which gave it the right to take possession of the same at any time; that, when it took possession, it did so by virtue of such prior right, and its title was that of mortgagee and pledgee, relating back to the time of the original transaction, and did not constitute a transfer of property within four months of the bankruptcy, which could be avoided as a preference under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3145).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 163.*)</p>

In Equity. On motions for preliminary injunctions and demurrers to bills. Bills by the Marnet Mining Company, by A. W. Lewis, and by O. A. Bleakley against the same defendants are also governed by the opinion reported herewith.

<p>1. Navigable Waters (§ 44*) — Littoral Rights — Lands Formed in Sea.</p> <p>Land within the original boundaries of a shore owner, reformed by the sea after having been washed away, is to be considered as restored rather than as a growth or addition to other property to which the actual accretion may have attached; but new land formed in the sea in front of the property of such an owner beyond the original high-water mark which constituted his boundary, and with a navigable channel between through which the sea.may be reached, if not an accretion to different property, belongs to the state.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 266; Dec. Dig. § 44.*]</p> <p>2. Navigable Waters (§ 44*) — Rights of Owners of Shore Lands — -Land Formed in Sea.</p> <p>At the time the earliest maps were made of the locality, in 1797, and subsequently, the inlet to Jamaica Bay on the southern coast of Long Island extended nearly north and south between what is now Barren Island on the west, and Rockaway Point or Beach on the east. Since then it has changed to a southwesterly direction from the bay, washing away a portion of the island, while Rockaway Point has been extended westward for several miles to the southward of the island. Held, on the evidence, that the land forming such extension was formed by the shifting and growth of shoals and bars which were not within the original boundaries of the island, nor attached to it. above high-water mark, and does not belong to the shore owners thereon; also, that it did not form originally wholly as an accretion to Rockaway Beach, but rather by accretions to such bars as well as to the beach and the gradual filling of the shoals, the whole becoming subsequently attached to, and an extension of, the beach, and that the title to such parts as first formed separately vested in the state.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 267; Dee. Dig. § 44.*]</p> <p>3. Quieting Title (§ 12*) — Right of Action — Possession of Land.</p> <p>A suit to quiet title by one claimant of land against adverse claimants which has been fully tried will not be dismissed on the ground that complainant’s remedy was by action of ejectment, where the evidence shows that complainant has the legal title, and both parties have been for some years claiming and exercising some sort of possession, tenants originally leasing from defendants having later leased from complainant and been allowed to remain by both parties.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 8-12; Dec. Dig. § 12.*</p> <p>Necessity of possession in suits to quiet title, see nóte to Jackson v. Simmons, 39 C. C. A. 522.]</p> <p>4. Adverse Possession (§ 40*) — What Law Governs — Land Acquired from State.</p> <p>Code Civ. Proc. N. Y. § 362, providing that adverse possession will not give title against the state unless continued for 40 years, does not operate in favor of a grantee of the state whose rights are governed by the general statute.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent Dig. § 172; ■Dec. Dig. § 40.*] *</p> <p>5. Adverse Possession (§ 96*) — Nature and Requisites — Extent of Possession.</p> <p>The building and occupancy of a shanty or a fishing- cabin on the beach on a large tract of sand extending for some miles between a bay and the sea, formed by accretion, or the setting of stakes or planting of small gardens without any inclosures, does not constitute an adverse possession of any more of the tract than is actually occupied under Code Civ. Proc. N. V. §§ 370-372, providing that occupancy such as to constitute adverse possession shall be where the land has been substantially inclosed or is usually cultivated or improved.</p> <p>[Ed. «Note. — For other eases, see Adverse Possession, Cent. Dig. § 533; Dee. Dig. § 96.*]</p> <p>£. Adverse Possession (§ 25*)- — Nature and Requisites — Hostile Character of Possession.</p> <p>Where tenants leasing from defendants took new leases from complainant, an adverse claimant, before their occupancy had been long enough to give defendants title by adverse possession, their further occupancy cannot be counted as possession by defendants.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 116-120; Dec. § 25.*]</p> <p>7. Adverse Possession (§ 53*) — Nature and Requisites — Continuity of Possession.</p> <p>An occupant of land who after being ejected, although the judgment in ejectment was afterward reversed for want of jurisdiction in tlie court, abandoned the land, and did not return, cannot set up title by adverse possession in a suit commenced several years later.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 268; Dec. Dig. § 53.*]</p> <p>8. Quieting Title (§ 10*) — Right of Action — Title of Plaintiff.</p> <p>Where the complainant in a suit to quiet title holds the legal title his right to maintain the suit cannot be attacked by defendants, who are without title, on the ground that he holds his title as trustee, or that the conveyance to him was ehampertous.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 37; Dec. Dig. § 10.*]</p>

<p>1. Bankruptcy (§ 175*) — Fraudulent Transfers — Conveyance by Wife to Husband.</p> <p>A conveyance by a wife to ber husband, made on the eve ©f bankruptcy, leaving her nothing to pay creditors, is prima facie fraudulent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 175.*)</p> <p>2. Bankruptcy (§ 227*) — Report of Master — Review.</p> <p>A master’s report, finding that a conveyance by a member of a bankrupt firm to her husband was fraudulent, could not be set aside on certificate, unless clearly and manifestly erroneous.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 227.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.)</p> <p>8. Bankruptcy (§ 303*)! — Fraudulent Transfers — Conveyance by Wife to Husband — Findings—Evidence.</p> <p>Evidence held to sustain a finding that a conveyance by a member of a bankrupt firm to her husband was made with intent to defraud her creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p>

Bill by the Delaware, Lackawanna & Western Railroad Company against Frank W. Stevens and others, constituting the Public Service Commission of the Second District of the state of New York. Defendants’ amended plea to the bill overruled.

<p>1. CORPORATIONS (§ 88*) — 1ÁA1HXJTY 01’ STOCKHOLDERS — STOCK SUBSCRIPTIONS —Payment in Property — Fraudulent Valuation.</p> <p>The capital stock of a corporation is a trust fund for the benefit of creditors, and stock subscriptions are primarily payable in money, but may be paid in property contributed and accepted in good faith at a fair valuation. If, however, the valuation of the property is so extravagant, sis to make the transaction practically fraudulent, while it is good as between the corporation and stockholders who consent, it is not binding upon «'editors, who llave the right to assume that the stock stands for property of substantial value, and who presumptively deal with the corporation on that assumption.</p> <p>|Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 31>8, 342, 361; Dec. Dig. § 88.*</p> <p>¡Stockholders’ liability to creditors in equity, see notes to Rickersoii Roller-Mill Co. v. Farrell & M. Foundry Co., 23 O. C. A. 315; Scott v. Lati-mer, 33 C. C. A. 23.]</p> <p>2. Corporations (§ 76*) — Contract of Subscription to Stock — Requisites.</p> <p>A formal subscription is not necessary to create a liability for stock of a corporation, but whoever accepts shares allotted to him undertakes to pay for them, if necessary to meet, the demands of creditors; and, when the only payment that can be shown is by property fraudulently overvalued, he is not íelieved from liability thereby.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 197; Dec.. Dig. § 76.*]</p> <p>3. Bankruptcy (§ 318*) — Corporations— Claim .Proved by Delinquent Stockholder.</p> <p>Partners who owned a mercantile business, the liabilities of which in fact exceeded the value of its assets, organized a corporation with an authorized capital stock, of 850,000. They subscribed and paid for practically all of the $5,000 of stock necessary to be issued to comply with the law, and then made a contract with the corporation, through the other stockholders, by which it purchased from them the business and property of the partnership for $25,000, paying in casli the $5,000 received for the stock, and issuing to them $20,000 of stock for the remainder. One of the partners then, in accordance witii a prior agreement, took over the stock and interest; of the other and agreed to protect him from liability. The corporation was shortly after adjudged bankrupt, and such stockholder sought to prove a large claim against its estate for money lent. Held, that the entire transaction was clearly fraudulent, and that, having given no value whatever for his stock, he was liable to the estate therefor, and not entitled to the allowance of his claim until oilier creditors were satisfied.</p> <p>ÍEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 481; Dec. Dig. i 318.*]</p>

<p>1. EmixeNt Domain (§ 60*) — Government Irrigation Wobks — Condemnation Proceedings.</p> <p>In a proceeding by the United States to condemn land for reservoir purposes under Irrigation Act June 17, 1902, e. 1093, § 1, 32 Stat. 388 (TJ. S-Comp. St. Supp, 1907, p. 511), whether a more feasible plan of irrigation than the one adopted might be devised, or some other site selected for the reservoir, is immaterial; the determination of the proper government 'authorities being conclusive. _ ,</p> <p>_ [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 165- 107 ; Dec. Dig. § 66.*]</p> <p>2. Eminent Domain (§ 14*) — Government Irrigation Works — Construction</p> <p>óf Statute. ■</p> <p>The fact that an irrigation scheme projected by the government under Irrigation Act June 17, 1902, c. 1093, § 1, 32 Stat. 388 (U. S. Comp. St. Supp. 1907, p. 511), contemplates the irrigation of private lands, as_well as a large tract of government land, and that the owners of the.private lands are assisting and co-operating therein, does not render the project illegal, nor deprive the Secretary of the Interior of the power given by the act to condemn lands necessary to carry it out.</p> <p>. [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 54; Dec. Dig. § 14.*]</p>

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

In Bankruptcy. On petition for review of order by referee dismissing trustees’ petition asking that the bankrupt and others be required to turn over certain property.

<p>Judgment (§ 928*) — Action in Eedebal Court on Judgment of Coubt of Anothee State — Peoceduee.</p> <p>An action m a federal court in one state on a Judgment rendered in the ■ courts of another state is governed by the practice and procedure in the courts of the state' where the action is brought, and under Civ. Code Ga. 1895, § 5126. which provides that “no trial in any civil cause shall be had at the first term except specially provided for by law,” the plaintiff in such an action is not entitled to a judgment at the first term, even though no sufficient answer is filed.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 928.*]</p>

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

<p>1. Bankruptcy (§ 368*) — Resignation op Trustee in Lieu op Removal-Compensation.</p> <p>Where a bankrupt’s trustee was allowed to resign to avoid the odium of removal because of his friendly attitude to the bankrupts, and his apathy to proceedings instituted to compel the bankrupts to turn over property which they had withheld, his claim for compensation should be at least partially denied.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. I 368.*]</p> <p>2. Bankruptcy (§ 482*) — Administration of Estate — Attorney’s Fees.</p> <p>Where attorneys for a bankrupt’s trustee took a position antagonistic to the creditors and in favor of the bankrupts, and by their advice concerning proceedings to compel the bankrupts to turn over withheld property probably brought about the trustee’s resignation, they were not entitled to more than a nominal sum for their services.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 482.*]</p> <p>8. Bankruptcy (§ 248*) — Expenses of Administration — Appraisement.</p> <p>In the ordinary case, appraisers of a bankrupt’s esiate are entitled to but $5 a day for three days; the trustee being required to justify any. greater allowance.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 248.*]</p> <p>4. Bankruptcy (§ 482*) — Administration of Estate — Counseu Fees.</p> <p>At the commencement of the administration of a bankrupt’s estate, D. represented certain creditors, and took steps to recover concealed property from the bankrupts, necessitating a removal of the trustee and the appointment of another, which he accomplished in the face of serious opposition. .After the appointment of the new trustee, D. acted as attorney for the estate, and prosecuted a rule on the bankrupts, by which they were ordered to return $3,400 worth of property. The bankrupts, for failure to comply with the rule, were imprisoned, and thereafter released on payment of $500. Held, that D. was entitled to an allowance from the state for his services of $250, being entitled to recover from the estate only for such services as he rendered after he appeared as attorney for the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 482.*]</p> <p>5. Bankruptcy (§ 482*) — Administration—Removal of Trustee — Expenses.</p> <p>Where an attorney for creditors took steps to procure the removal of á trustee which he subsequently accomplished, and was employed to represent the trustee’s successor, he was entitled to reimbursement -for disbursements necessarily made from the time he took steps to have the original trustee removed.</p> <p>[lid. Note. — For other cases, see Bankruptcy, Dec. Dig. § 482.*]</p>

<p>Public Lands (§ 19*) — “Unlawful Inolosube” — Acts Constituting.</p> <p>Defendant owned a tract of 5,000 acres of grazing land with a mountain range to the east and north of it. He built a fence from the range on the east westward to the south of his land, and then northwestward to the north range, inclosing between such font» and the mountains his own land and also public lands, which he used for a pasture. There were two breaks in the fence through which, as well as over the mountains, trails led into the pasture, but for practical purposes the fence and mountains prevented defendant’s stock from straying out and other stock from coining in. Held, that such fence did not constitute an unlawful inclosure of public lands within Act Feb. 25, 1885, c. 149, 28 Stat. 821 (U. S. Comp. St. 3901. p. 1524).</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 25; Dec. Dig. § 15).*]</p>

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

<p>In Equity. On motions to amend order, etc.</p>

<p>Bill by John W. Peale against the Marian Coal Company. On de-murfer to the bill. Overruled with leave to answer.</p>

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

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

Bill by The Pennsylvania Steel Company and others against the New York City Railway Company and others, in which the National Conduit & Cable Company filed claim. From an order of the Circuit-Court (170 Fed. 623) overruling exceptions of claimant to the report of a special master disallowing the claim against the Metropolitan Street Railway Company, claimant appeals.

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

In Equity. On motion for preliminary injunction and motion to strike out cross-bill.

<p>Patents (§ 328*) — Infringement—Suspender Buckle.</p> <p>The Peller patent, No. 847,811, for a suspender buckle, was not anticipated, and discloses patentable invention; also held infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. Suit for infringement oí letters patent, reissue number 12,437, original number 695,508, for a frictional retarding means for spring'vehicles, granted to Jules Michel Marie Truffault March 18, 1902, assigned to Edward V. and George H. Hartford, two of the complainants. On motion for preliminary injunction.

In the matter of F. W. G. Bartlett, bankrupt. On exceptions to the report of referee sur claim of First National Bank of Sayre to the proceeds of certain personal property. Exceptions overruled.

<p>Bankruptcy (§ 399*) — Exemptions—Financial Conditions — Change—Concealment op Assets.</p> <p>Where a bankrupt made a statement to a commercial agency on July 23,. 1907, that his assets aggregated $5,750 and his total indebtedness $1,700, and his schedules filed June 11, 1908, showed his assets to be $2,-000 and his total indebtedness $2,616.27, he having given no satisfactory explanation for the change and having kept no satisfactory books of account, his application for exemptions should be denied under a state law providing that a debtor shall forfeit his right to exemptions if he is guilty of fraud in concealing from his creditors any part of the property which he possesses at the time he seeks the exemption, etc.</p> <p>[Ed. . Note. — For other cases, see Bankruptcy, Dee. Dig. § 399.*]</p>

<p>1. Eminent Domain (§ 237*) — Condemnation op Land by United States— Award of Damages.</p> <p>Awards of damages by commissioners for lands condemned by the United States for fortification purposes confirmed.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 237.*J</p> <p>2. Eminent Domain (§ 233*) — Condemnation Proceedings--Damages.</p> <p>The fact that a petition by the United States for condemnation of land states that it is to be used for “erecting fortifications and other purposes incidental thereto and connected therewith” does not preclude commissioners, in awarding damages, from considering the land in connection with adjoining laud already owned by the government.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Dec. Dig. § 233.*]</p>

Action by Mrs. Clyde Duke, administratrix, etc., against the St. Louis & San Francisco Railroad Company to recover damages for the death of her husband. Plaintiff had judgment for $17,545, and defendant moved for a new trial. Motion granted unless plaintiff file a remittittr of her recovery above $6,000.

In Equity. In this cause, upon filing the bill, a temporary restraining order, enjoining the enforcement of the provisions of the statute in regard to inspection, but not as to the payment of the tax, was granted, with an order returnable on August 2, 1909, to defendants to show cause why an injunction should not be granted to the hearing.

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

<p>Injunction (§ 152*) — Preliminary Injunction — Restraining Unlawful Acts of Striking Workmen.</p> <p>A preliminary injunction granted on conflicting affidavits restraining striking miners formerly in the employ of a coal company from interfering with the property of the company or assaulting, threatening, or intimidating its employes pending final hearing on a bill for a permanent injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 337; Dec. Dig. § 152.*</p> <p>Restraining boycotts, strikes, and other combinations by employes interfering with commerce or business, see note to Shine v. Fox Bros. Mfg. Co., 86 C. C. A. 313.]</p>

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

Action by J. W. Rogers, as trustee in bankruptcy of A. C. Reifel, against tbe Fidelity Savings Bank & Loan Company and another to recover an alleged preference. Judgment for plaintiff as against the Fidelity Savings Bank & Loan Company alone. In this case the jury was waived, and the case submitted to the court, sitting as a jury.

<p>1 Public Lands (§ 92*) — Grant or Right of Wat to Railroads — Vesting of</p> <p>' Under Act March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), granting right of way through the public lands to any railroad company duly organized which shall have filed with the Secretary of the Interior a copy of its ariicles of incorporation and proofs of its duo organization. and providing that any company desiring to secure the benefits of the act shall within 12 months after the location of any section of its line, if the land is surveyed, file with the register of the local land office a profile of its road, “and upon approval thereof by the Secretary of the Interior the same shall be noted upon (lie plats in said office, and thereafter all such lands over which sncli right of way shall pass shall be disposed of subject to such right of way,” the approval of the map showing such profile is equivalent to a patent, and vests in the corporation title to the definite right of way shown thereon. Such title, however, dates from the time of such approval, and does not relate back to the date of the filing of the articles of incorporation or to the time of survey, and, as between two companies each seeking to secure the same right of way in whole or in part, the one whose map is first approved obtains the title.</p> <p>LKd. Note. — Ifor other cases, see Public Lands, Cent. Dig. § 27G; Dec. Dig. § 92.*]</p> <p>2. Public Lands (§• 92*) — Grant of Bight of Way to Railroads — Bight to Attack.</p> <p>A railroad company cannot attack the title of another company to a right of way over the public lands, confirmed to it by the Secretary of the Interior under the statute, unless it shows that at the time of the grant it had .itself an interest in such right of way, and was lawfully entitled to it instead of fhe grantee.</p> <p>[Ed. Note. — Por other cases, see Public Lands, Dec. Dig. § 92.*]</p>

In the matter of the Lewis F. Perry & Whitney Company, an alleged bankrupt. On motion to dismiss the petition of Francis T. Leahy to join in the original petition. Petition denied.

<p>1. Bankruptcy (§ 76*) — Petition—Right to Join — “Creditor.”</p> <p>Since a “creditor” within the bankruptcy act includes every one wno owns a provable demand or claim, a creditor within such definition is not disqualified as a petitioner because he acquired the claim by assignment after commission of an act of bankruptcy.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. § 99; Dec. Dig. § 76.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1.727; vol. 8, pp. 7622, 7623.]</p> <p>2. Bankruptcy (§ 76*) — Petitioning Creditors--Assigned Claims.</p> <p>Where an assignment of claims against an alleged bankrupt to employes of the petitioning creditors was a deliberate splitting of claims by such petitioner, in order to secure an advantage in the bankruptcy proceeding to which neither he nor the assignor was lawfully entitled, and for no other1 purpose, the assignees were not entitled to .loin.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 99; Dec. Dig. § 76.*]</p> <p>3. Bankruptcy (§ 76*) — Involuntary Petition — Petitioning Creditors.</p> <p>Where W., a creditor of an alleged bankrupt, did not appear in the proceeding, but the petitioning creditor, under a power from W., attempted to assign her claim to two of his employés in order to make the requisite number to sustain the petition, the fact that W. owned a claim which would have made her a competent petitioner was immaterial on the question of the sufficiency of the petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 99; Dec. Dig. § 76.*]</p> <p>4. Bankruptcy (§ 91*) — Claims—Transfer—Evidence.</p> <p>Evidence held insufficient to sustain a referee’s finding that a claim against a bankrupt had been absolutely transferred to two of the alleged petitioning creditors, and that the original petitioner had authority from the owner of the claim to make such transfer.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 138; Dee. Dig. § 91.*]</p> <p>5. Bankruptcy (§ 76*) — Assignments—Consent op Creditors — Eppect.</p> <p>Where an assignment for creditors constituted the act of bankruptcy relied on, creditors who had assented to the assignment were not entitled to join in an involuntary bankruptcy petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 97; Dec. Dig. § 76.*]</p> <p>6. Principal and Agent (§ 137*) — Acts op Agent — Authority—Estoppel.</p> <p>Where the clerk of a creditor of an alleged bankrupt gave his employer’s assent to an assignment by the bankrupt for the benefit of creditors, and had in many previous instances of the same character given similar assents, the creditor was estopped to deny the clerk’s authority, and was bound' by his act.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 492; Dec. Dig. § 137.*]</p> <p>7. Assignments por Benefit op Creditors (§ 44*) — Assent—Fraud.</p> <p>Affidavits seeking to avoid creditors’ assents to an assignment for the benefit of creditors on the ground of misrepresentation or concealment were insufficient, where no misrepresented facts existing before the assents were given were specified.</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 197; Dec. Dig. § 44.*]</p> <p>8. Assignments fob. Benefit op Creditors (§ 215*) — Acts op Assignee — Imputation to Assignor.</p> <p>That an assignee for the benefit-of creditors made an arrangement with a bank to assume the claim of auy creditor.is not imputable to the assignor, unless the assignee was acting at the instance or as agent of the assignor. '</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 725; Dec. Dig. § 215.*]</p> <p>9. Bankruptcy (§ 95*) — Involuntary Petition — Majority Creditors.</p> <p>That only an inconsiderable minority of creditors desired administration of an insolvent estate in bankruptcy, and the greater proportion in' number and amount regarded the bankrupt’s common-law assignment as more for their interest, did not justify the court in resolving every, doubtful question of fact or law against the petitioning creditors, if there were three bona fide creditors applying for administration in bankruptcy whose claims amounted to $500.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 140; Dec. Dig; § 05.*]</p>

<p>In the matter of the Lewis F. Perry & Whitney Company, an alleged bankrupt. On petition of Francis T.-Leahy to join as a petitioning creditor. Petition dismissed.</p>

<p>In Equity. On motion to dissolve restraining order.</p>

<p>Suit by the New Jersey Patent Company and others against E. H. Martin and others for patent infringement. Demurrer to amended bill. Overruled.</p>

<p>Or.and .Triir (§ 5*) — QuAT.TFK’.vrioN oír ,Tdbobs — XoKTir Caboxana Statute.</p> <p>Codo N. O. 11122, as it stood in 1897, providing that grand jurors should he selected from persons only who had paid tax for the preceding year, does not disqualify a person from being a legal grand juror who did not own xu'operty above the amount exempt from taxation, and was not therefore assessed with any tax for the preceding year.</p> <p>I Ed. Note. — For other eases, see Grand Jury, Cent Dig. § 12; Dec. Dig.' § 5.*]</p>

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

<p>Cakeikbs (§ 199*) — Cvkkjagio ov Goods — Validity or Regula lions.</p> <p>Discrimination by a carrier against a particular commodity is not necessarily illegal if reasonable grounds therefor can bo shown.</p> <p>IEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 901-903; Dec. Dig. § 199.*]</p>

<p>Carriers (§ 199*) — Carriage or Intoxicating Liquors — Legality oe Discrimination.</p> <p>A rule of an express company by which it declines to receive shipments of liquor C. O. D. is reasonable and valid where it applies to all shippers and all localities alike, and where it is shown that the acceptance of such business has resulted iñ loss to the company and detriment to its business through unclaimed packages, delays in deliveries, rendering its places of business unpleasant to other patrons and in other ways, such as to justify the rule as a business regulation.</p> <p>FEd. Note. — For other cases, see Carriers, Cent, Dig. § 991; Dec, Dig. | 199. *</p>

<p>Bankruptcy (§ 884*) — Composition—Motion fob Confirmation.</p> <p>An application for .confirmation of a composition by a bankrupt referred to a referee to ascertain and report as to tbe reason for tbe withdrawal of objections, charging the bankrupt with acts which would be a bar to his discharge, and in general as to whether the composition would be for the best interests of creditors; holders of a bare majority in amount of claims scheduled having accepted, the same, including probable relatives of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 591, 592; Dec. Dig. § 384.*]</p>

Dibel by the United States against Sixty-Eight Cases of Syrup, to condemn the same for violation of the food and drug act. Demurrer to libel sustained. Proceeding dismissed.

<p>1. Master and Servant (§ 129*) — Master’s Liability foe Injury to Servant — Proximate Cause of Injury.</p> <p>Plaintiff, a miner employed by defendant, was coming out of the mine, riding on the front bumpers of a cable car being drawn up a slope, with his arm resting on the top edge of the car, when he was struck by a stream or sheet of water escaping from a defective Joint in a pipe used for pumping water from the mine, which was supported along the roof of the tunnel, was thrown around to one side, and his arm was crushed against the roof timbers, which were some six inches above the top of the car. Held that, to render defendant liable for the injury, it was not necessary to show that the force of the water was such as to physically throw plaintiff around and bring his arm in contact with the timbers, but that it was sufficient if it caused him to instinctively throw up his arm.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p> <p>2. Master and Servant (§ 217*) — Master’s Liability for Injury to, Servant-Assumed Risk.</p> <p>The fact that there had been a small leak in the pipe at the same place for some time was not sufficient to charge plaintiff as matter of law with assumption of the risk, where it had not before been such as to cause any reasonable apprehension of danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Master and Servant (§ 129*) — Master’s Liability for Injury to Servant-Proximate Cause of Injury.</p> <p>In such case the primary act of negligence was that of defendant in maintaining the pipe in its defective condition, which was a breach of its legal duty to furnish plaintiff with a reasonably safe passageway to and from his work, and was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p>

<p>1. Waters and Water Courses (§ 177*) — Flowage—Injunction.</p> <p>A court of equity has jurisdiction to enjoin the diversion of water from a stream by means of canals, whereby the property of complainant is flooded and threatened with irreparable injury.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig1. §§ 260, 264; Dec. Dig. § 177.*]</p> <p>2. Injunction (§ 197*) — Continuing Trespass — Damages in Addition to Injunction.</p> <p>Where a court of equity has acquired jurisdiction of a suit to enjoin a continuing trespass upon land, it may also, to prevent a multiplicity of suits, award damages for the injury already done, although the same would also be recoverable by an action at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 417; Dec. Dig. § 197.*]</p> <p>3. Courts (§ 262*) — Jurisdiction—Adequate Remedy at Law — Federal Statute.</p> <p>Rev. St. § 723 (U. S. Comp. St. 1901, p. 583), providing that suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had. at law, is merely declaratory, and does not narrow the jurisdiction of courts of equity, nor prevent the granting of legal relief therein where jurisdiction has been acquired to grant equitable relief, and the legal remedy Is not as practical and efficient.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 798; Dec. Dig. | 262.*]</p> <p>4, Waters and Water Courses (§ 263*) — Suit to Enjoin Injury by Flow-age — Parties.</p> <p>Defendant corporation undertook to divert water from the Colorado river near the boundary line between California and Mexico through canals for irrigation purposes. It contracted with a Mexican company, which it owned, and with other local irrigation companies which it organized in California, to deliver water to their canals and ditches, it constructed three intakes from the river, two of which were on Mexican territory on land of the Mexican company and nominally under its control, but which were, in fact, constructed and controlled by defendant. These intakes were so constructed without controlling gates that in a time of flood one of those in Mexico was so enlarged by washing that a large part of the water of the river poured through and passing through canals of the other companies overflowed and damaged, and finally destroyed the property of complainant situated in the Saltón Basin below the level of the river. Helé, that having sole control of the intakes, from the im-, proper construction of which the damage resulted, defendant was responsible therefor, and that to a suit to enjoin further flooding and to recover for the damage done the other corporations were not necessary parties.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. I 263.*]</p> <p>6. Equity ($ 36*) — Preventing Injury to Beal Property — Jurisdiction op Court.</p> <p>A court of equity having jurisdiction of the parties may enjoin a continuing injury to real property within its jurisdiction by flooding caused by the improper construction of works maintained by defendant for diverting the water of a river into a canal, although such works are across the boundary within the republic of Mexico.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 94, 96; Dee. Dig. § 36.*]</p> <p>6, Waters and Water Courses (§ 177*) — Injury to Beal Estate- -Injunction.</p> <p>A court of equity has jurisdiction to enjoin the maintenance of works which caused the flooding and injury of lands owned by complainant, notwithstanding the fact that pending the suit the flooding continued and entirely destroyed the present value of the property for which damages were awarded; the title to the land still remaining in complainant.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §| 260-264; Dec. Dig. § 177.*]</p> <p>7, Waters and Water Courses (§ 262*) — Irrigation Companies — Liability for Flooding op Lands — Concurring Natural Causes.</p> <p>An irrigation company which negligently constructed the intakes from the Colorado river into its canal without headgates or other means of controlling the flow, by reason of which in a time of flood the water flowed through in such volume as to wash away the river bank and overflow the lands of others, is not relieved from liability therefor by the fact that the flood was extraordinary.</p> <p>(Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. $ 262.*]</p>

<p>Injunction (§ 223*) — Acts Constituting Violation — Construction op DeCREE.</p> <p>Defendant by the negligent construction of the works by which it diverted water from the Colorado river into its irrigation canal caused an overflow through a breach in the bank, creating a lake in the Saltón Basin, which covered and practically destroyed the value of complainant’s property situated in the basin. In a suit by complainant it was awarded damages for the injury, and also an injunction restraining defendant from diverting water from the river in excess of the substantial needs of the people dependent on its canal, from permitting any waste water to flow on or over complainant’s land, or into the lake in such amount as would “substantially increase the amount of water therein,” or prevent the decrease .thereof by natural causes. Defendant’s canal was the only source of water supply for an arid valley some 30 miles long and containing 20,-000 people, who were wholly dependent thereon for water for domestic purposes and the raising of crops. It appeared that in order to supply their needs, and especially to meet emergencies, as in case of hot winds to which the valley was subject, it was necessary to run through the canal, which was 61 miles long, a quantity of water somewhat in excess of the .average consumption, and that the excess, when-unused, was discharged through waste gates and flowed into the lake at a point some 40 miles from complainant’s land, but not in such quantity as to materially affect its volume. Held, that, giving the decree a proper and reasonable construction, such waste of water, into the lake did not work substantial injury to complainant, and was not a violation of the injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. § 448; Dec. Dig. § 223.*]</p>

<p>L Tbade-Marks and Trade-Names (§ 84*) — Registration oe Mark — Common-Law ■ Trade-Mark.</p> <p>In a suit for infringement of a trade-mark, objection to the validity of complainant’s registration of the mark was uot material where complainant had a common-law trade-mark in the device alleged to have been infringed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 84.*]</p> <p>2.-.Trade-Marks and Trade-Names (§ 71*) — Infringement—Unfair Competition.</p> <p>The use of complainant’s trade-mark on horseshoe nails to simulate complainant’s nails, and produce confusion in the minds of dealers and users, was unfair competition.</p> <p>. [Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. § 71.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare v. Harpet & Bros., 30 C. C. A. 376.]</p> <p>8. Courts (§ 292*) — Jurisdiction—Infringement of Trade-Mark.</p> <p>A bill may be maintained in the federal Circuit Court to restrain the infringement of a common-law trade-mark where other jurisdictional facts are present.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 834 ; Dee. Dig. § 292.*]</p> <p>4.- Trade-Marks and Trade-Names (§ 19*) — Character of Marks — Ornamentation.</p> <p>That a trade-mark, consisting of a check figure formed by intersecting lines impressed on the bevel face beneath the edge of horseshoe nails, was an ornamental device which added to the appearance of the nails, and also came to represent quality, did not prevent it from operating as a valid trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 22; Dec. Dig. § 19.*]</p> <p>5. Trade-Marks and Trade-Names (§ 84*) — Infringement — Necessity — Horse Nails.</p> <p>It was no defense to a suit to restrain the infringement of plaintiff’s trade-mark consisting of a cheek figure formed of intersecting lines impressed' on the bevel face beneath the heads of horseshoe nails that such mark was produced while the nail was passing through one of the rolls of the manufacturing machinery by which the nail was gripped and held in place; it not appearing that the pattern of the gripping surface of the roll was required to be the same as the trade-mark stamped on complainant's nails in order to their successful manufacture.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 84.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Southern District of California.</p> <p>For opinion below, see 164 Fed. 561.</p>

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

<p>1. Banks and Banking (§■ 109*) — Purchase op Securities — Acts op Officer-Title.</p> <p>Where a bank purchased certain securities at the suggestion of its vice president, who announced that he would make the purchase on behalf of the bank, and subsequently informed the directors that he had done so, and still later turned over certain of the securities to the bank with a letter authorizing it to receive the balance, and at the trial of an action for conversion acknowledged that his intention had been to turn over the securities to the bank on payment of a note for which they were pledged, his possession of the securities was the possession of the bank, and title to the securities was in it.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 109.*]</p> <p>2. Subrogation (§ 22*) — Redemption of Pledged Securities.</p> <p>Where certain stock was purchased by a bank’s vice president and another in separate shares, and all of the stock was pledged for a loan to both, the bank, being oonypelled to pay the whole loan in order to release its share of the stock, was subrogated to the rights of the pledgee as against the balance.</p> <p>[Ed. Note. — For other eases, see' Subrogation, Cent. Dig. § 48; Dec. Dig. § 22.*]</p> <p>3. Banks and Banking (§ 260*) — Ultra Yires Acts — Purchase of Bank Stock.</p> <p>Purchase of national bank stock for speculation by a national bank is ultra vires.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 977; Dec. Dig. I,- 260.*]</p> <p>4.Corporations (§ 385*) — Ultra Yires Contract.</p> <p>The obligation of an ultra vires contract is void, whether executed or executory.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1545-1547; Dec. Dig. § 385.*]</p> <p>5. Banks and Banking (§ 101*)- — Purchase of Stock — Ultra Vires Act.</p> <p>That a bank’s purchase of stock in another hank was ultra vires did not prevent it from getting title to the stock, both because an ultra vires contract is simply unauthorized and not forbidden by law, and because the passing of title depends on the intention of the parties and the performance of the requisite formalities by the parties, regardless of whether they are engaged in an illegal enterprise.</p> <p>fEd. Note. — For other cases, see Banks and Banking, Cent. Big. §§ 237, 238; Dec. Dig. § 101.*]</p> <p>6. Estoppel (§ 56*) — Change of Position.</p> <p>Where a pledgee of certain bank stock did not act on the owner’s repudiation of the pledge, the owner was not estopped to change its position, and by subsequently tendering the amount of the debt, acquire a right to the stock.</p> <p>[Ed. Note. — For other eases, see Estoppel, Cent. Dig. § 342; Dec. Dig. § 56.*]</p>

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

<p>Aliens (§ 24*) — Exclusion — Chinese Person — Minob Son of Chinese Merchant.</p> <p>The minor son of a Chinese merchant lawfully domiciled in the United States, who immigrated and entered the United States while a minor without trick, deception, or fraud, under a certificate issued by the Registrar General at Hongkong and vised by the acting United States Consul General at the same place, and who during the remainder of his minority labored and studied in/the United States, is entitled to remain after attaining his majority, though he has since worked as a laborer.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent Dig. §§ 76-78: Dec. Dig. § 24.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 85*) — Right to Protection — Misleading Name.</p> <p>Manufacturers of hosiery under the name “Holeproof” are not precluded from an injunction protecting the use of such name by the fact that it is false and misleading; it being merely a boastful and fanciful word not intended as a representation that the hose manufactured and sold by complainant thereunder would never wear out.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85 *</p> <p>Misleading or false labels, see note to Raymond v. Royal Baking Powder Co., 29 O. O. A. 250.]</p> <p>2. Trade-Marks and Trade-Names (§ 3*) — Descriptive Name.</p> <p>A trade-mark “Holeproof” used in the manufacture and sale of hosiery is not objectionable as descriptive.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 6; Dec. Dig. § 3.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Ilereth v. Warner, 50 C. C. A. 323.]</p> <p>8. Trade-Marks and Trade-Names (§ 59*) — Infringement—Injunction.</p> <p>The word “Knotair” is not an infringement of the word “Holeproof” as applied to the manufacture and sale of hosiery.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68, 72; Dec. Dig. | 59.*]</p> <p>4. Trade-Marks and Trade-Names (§ 95*) — Infringement—Preliminary Injunction.</p> <p>Where, in a suit to restrain the infringement of plaintiffs trade-mark and for unlawful competition, there was some evidence that defendants had sold hose of other manufacture for “Holeproof” hose of complainant’s manufacture, a preliminary injunction restraining sales of such goods unless the customer is informed that the goods offered are not complainant’s was properly granted.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 198; Dec. Dig. § 95.*]</p>

<p>Master and Servant (§ 265*) — Action eob Death on Servant — Burden or Proof.</p> <p>In an action against a railroad company for the death of a brakeman, alleged to have resulted from a defective hand hold on a car, where the right of recovery depended upon whether the defect existed when the car was inspected on the evening before, and was of such nature that it should have been disclosed by a careful inspection, or whether it was caused by the subsequent handling of the ear, an instruction that the burden rested upon the defendant to prove a proper inspection by a preponderance of the evidence was erroneous and prejudicial to defendant, since, while it was its duty to produce evidence of the inspection, the burden of proof to establish its negligence remained on the plaintiff.</p> <p>[Ed. Note. — Ifor other cases, see Master and Servant, Cent. Dig. § 9021 Dec. Dig. § 265.*]</p>

The writ of error is to reverse a judgment entered in favor of the United States for one hundred dollars upon each of four counts of a declaration charging violations of section 2 of the Safety Appliance Act of March 2, 1893 (27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174]).

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

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

<p>1. Patents ($ 132*) — Term—Limitation by Term os Prior Foreign Pathht.</p> <p>Tile provisions of Rev. St. § 4887, before its amendment in 1897 (IT. S. Comp. St. 1901, p. 3382), that “every patent granted for an invention which lias been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent,” related to mat tors of substance and not of form merely, applying only where there is a valid foreign patent, and a United States iialent for an alleged invention which was covered by a prior certificate of addition to a French patent is not limited to the term of the French patent, where the same was adjudged null and void by the French courts on the ground of anticipation; the effect of such judgment under the law of Franco being to render the patent, with any certificates of addition (hereto, a nullity from the beginning. Buffington, Circuit ,'Iudge, dissenting.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 132.*]</p> <p>2. Treaties (§ II*) — Statutes—Effect oí*' Treaty.</p> <p>By the convention concluded at Brussels December 14, 1900, by the International Conference for the Protection of Industrial Property, at which the United States was represented, it was among other things ordained: “Art. 4 his. Patents applied for in the different contracting states by persons admitted to the benefit of the convention under the terms of articles 2 and 3 shall bo independent of the patents obtained for" the same invention in the other states, adherents or nonadherents to the Union.This provision shall apply to patents existing at the time of its going into effect. The same ride applies in the ease of adhesion of new states to patents already existing on both sides at the time off the adhesion.’’ This convention was ratified by the Senate March 7, 1901, and proclaimed by the President to go into effect September 14, 1902. 32 Stat. 1930. Held, that such treaty was self-executing, and the effect of its ratification was a complete doing away with the interdependence of foreign and domestic patents, and of the limitation imposed on the term of domestic patents for inventions previously patented in foreign countries by Itev. St. § 4887, prior to its amendment in 1897 (U. S. Comp. St. 1901 p. 3382). Per Archbald, District Judge, and Gray, Circuit Judge, concurring.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. § 11.*]</p>

In Equity. Suit by the Bates Manufacturing Company against the Bates Numbering Machine Company to restrain an alleged unfair competition in trade. On motion for preliminary injunction. Heard on bill, with supporting and opposing affidavits.

At Law. On motion to dismiss. This is an action to recover damages for the destruction by fire of certain houses in the village of South Lima, Livingston county,. N. Y., by sparks projected .from the defendant’s engines. At the close of the plaintiff’s opening the defendant moved to dismiss the action upon three separate grounds: First, under section 657 of the Revised Statutes (ü. S. Comp.

In Equity. On plea in abatement. The bill in this case is filed by Robert P. Stewart and Mrs. Etta Stone, by her husband and next friend, Lowry Stone, citizens of the state of Kentucky, and Roy Adcock, a citizen of the state of Alabama, against O. E. Gardner, H. C. Ward, N. C. Swearingen, J. L. Mc-Adams, J. B. McAdams, A. C. Aiken, J. B. Reed, H. F. Hudson, Joe Hatcher, J. L. Shannon, R. D. Jones, W. M. Capps, and W. W. Mitchell, J. W. Dudley, F. M. Jackson, Nathan Mitchell,…

<p>1. Penalties (§ 41*) — Costs—Natube or Subject-Matter — Action fob Penalty bob Violation of Twenty-Eight Houb Law.</p> <p>An action by the United States to recover from a carrier the penalty imposed by Act June 29, 1900, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), for confining live stock more than 28 consecutive hours, is a civil-action, with all the ordinary incidents of such an action, including liability of the defeated party for costs; but, if regarded as penal, on a recovery by the government, the defendant is subject to the payment of costs by. the terms of'Rev. St. § 974 (U. S. Comp. St. 1901, p. 703).</p> <p>[Ed. Note. — For other cases, see Penalties, Dec. Dig. § 41.*]</p> <p>2. Costs (§ 173*) — Items—Attorney’s Fees — Action for Violation of Twenty-Eight Hour Law.</p> <p>On a recovery by the government in an action for violation of Act June 29, 1906, c. 3594,- 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), known as the “Twenty-Eight Hour Law,” in the district of Oregon, a docket or attorney’s fee of $40 is taxable against the defendant, under the provisions of Rev. St. §§ 824, 837 (U. S. Comp. St. 1901, pp. 632, 644).</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 688; Dec. Dig. § 173.*]</p> <p>3. Courts (§ 357*) — Federal Courts — Costs—Mileage of Witnesses.</p> <p>The prevailing party in a civil action in a federal court is entitled to-tax as a part of his costs mileage for his witnesses for the distance necessarily traveled by them from any point to which a subpoena would run, viz.: From any point within the district, and for not exceeding 100 miles-for witnesses coming from without the district.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. §. 357.*]</p> <p>4. Courts (§ 357*) — Federal Courts — Costs—Marshal’s Fees.</p> <p>. The prevailing party in a suit in a federal court is not entitled to tax against his opponent as a part of his costs- the fees of the marshal for-serving subpoenas on witnesses residing without the district and more-than 100 miles from the place of trial.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*]</p> <p>6. Courts (§ 357*) — Federal Courts — Costs—Action by United States — Witness Fees.</p> <p>Under Rev. St. § 850 (U. S. Comp. St. 1901, p. 655), the United States,, wh.en the prevailing party in a suit in a federal court, is entitled to tax as ’ costs the necessary expenses of a salaried employe taken away from his-place of business to attend as a witness for the government, regardless of ■the distance traveled by him.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. £ 938; Dec. Dig. § 357.*]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Pi. H. Steinman was convicted of aiding and abetting the willful abstraction of the funds of a national bank, and he brings error. Reversed.</p>

<p>1. Master and Servant (§ 289*) — Injury to Servant — Contributory Negligence — When Question ifor Jury.</p> <p>In an action by a servant against the master to recover for an injury resulting from the explosion of a can of wood alcohol, which he had set upon a bench on which was also a lighted lamp, contributory negligence as matter of law in setting the can very close to the lamp was not established by the opinion of an expert that there could have been no explosion if the can had been placed at the distance testified by plaintiff, where such opinion was based on the assumption that the vapor from the can would distribute itself evenly in all directions, without allowance for actual conditions, such as drafts or surrounding objects by which it might be affected.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1119, 1120; Dec. Dig. § 289.*]</p> <p>2. Evidence (§§ 546, 547*) — Experts—Examination—Discretion of Court.</p> <p>The exclusion of a question asked an expert witness, either on the ground that he was not shown to be qualified or because too general, is largely within the discretion of the court.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2363, 2364; Dec. Dig. §§ 546, 547;* Witnesses, Cent. Dig. § 849.]</p>

In Admiralty. Action by the Merritt & Chapman Derrick &■ Wrecking Company, as owner of a derrick, against the steam tug James Mc-Williams for collision. Decree for libelant, and claimant appeals.

<p>Collision (§ 96*) — Collision at Entrance to Slip — Negligent Maneuvers.</p> <p>A collision between a tug coming out from a basin and a carfloat on the side of another tug, which had just passed out, held, due to the fault of the latter in backing her tow across the narrow entrance in maneuvering to get her direction, without taking any precaution to notify vessels which might be coming out.</p> <p>[Ed. Note. — Eor other eases, see Collision, Cent. Dig. §§ 203-205: Dec. Dig. § 96.*]</p>

In Equity. Suits by the Electric Vehicle Company and George B. Salden against C. A. Duerr & Co. and the Ford Motor Company, against the O. J. Gude Company, against John Wanamaker and others, against Société Anonyme Des Anciens Establissements, Panhard & Eevassor, and Andre Massenat, and against Henry & A. C. Neubauer, for infringement of letters patent No. 549,160 for a road locomotive, granted to George B. Selden November 5, 1895. On final hearing.

<p>In the matter of Nic H. Terens, bankrupt. Heard on objections to the granting of a discharge.</p> <p>Objections to the discharge are filed by the International Harvester Company of America (to be hereinafter designated as the Harvester Company). The specifications of objections may be briefly summarized as follows:</p> <p>First. That the firm of Terens & Oswald entered into a commission contract with the Harvester Company, whereby the firm was to sell goods consigned to them on commission, the title to such goods to remain the property of said vendor. That while such contract was in existence, and on the 18th of December, 1907, the bankrupt on behalf of his firm made a property statement to the Harvester Company in writing and signed the firm name thereto, and liis own name as a member of the firm, representing certain facts as to the financial standing of the copartnership “for the purpose of obtaining credit from you, or as a basis of credit for future business or extending past due indebtedness,” etc. This statement was made upon a printed blank furnished by the Harvester Company. Opposite the printed interrogatory, “Owe bank (loan or overdraft),” there was written in pencil the word “None.” This blank was filled up by Mr. Jakle, an agent of the Harvester Company, from information given him by Mr. Terens as the several questions were read and propounded to him.</p> <p>Evidence was offered showing that this statement was relied upon in shipping goods and extending credit to the firm. Within four months of bankruptcy goods were shipped by the Harvester Company to the firm, as it alleges, upon the strength of 1his continuing representation. At the time this property statement was made, tile firm did owe the Bank of Two Rivers-about $5,000. The Harvester Company also sold several bills of goods to the firm absolutely, and at the time of the bankruptcy there was due to the Harvester Company a considerable amount for such goods so sold outright to the firm. The Harvester Company filed a claim in the bankruptcy court for the entire amount claimed by it, including the commission and sales account, and such claim was allowed at $2,170. About a month before the bankruptcy the firm was dissolved; ill'. Oswald stepping out, and Mr. Terens assuming all liabilities and taking all assets. Before the bankruptcy an effort was made by the Harvester Company to collect the amount due from the bankrupt, and for that purpose an aguit of the Harvester Company went with the bankrupt to the Bank of Two Rivers, where the situation of the firm was thoroughly examined, and an effort was made by the bankrupt to secure a loan sufficient to pay off the Harvester Company's claim. To facilitate such efforts the general agent of the Harvester Company extended the time for payment of the entire claim for 30' days. Before the expiration of this period a voluntary petition was filed by the bankrupt. When such extension was granted, the agent of the Harvester Company was in possession of the true state of affairs as to the indebtedness of the bankrupt at the bank.</p> <p>The second specification was predicated upon the alleged embezzlement by the bankrupt of the proceeds of the sales of the commission goods; demand having been made therefor by the Harvester Company and refusal by the bankrupt.</p> <p>On the hearing a large amount of testimony was taken, which disclosed the situation as hereinabove ■ briefly summarized.</p>

<p>Suit by Adolf De Bary and others against David M. Dunne, as Collector of Internal Revenue for the District of Oregon. Judgment for defendant.</p>

<p>Application for citizenship by Tgnatz Neugebauer, to which the United States filed objections. Objections overruled, and application granted.</p>

<p>1. BANKRUPTCY (§ 136*) — CONTEMPT— PROOF.</p> <p>Disobedience of referee’s order involving incarceration of the bankrupt for contempt must be established beyond a reasonable doubt.</p> <p>[Ed. Note.' — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p> <p>2. Bankruptcy (§ 136*) — Orders—Surrender of Funds to Trustee — Contempt.</p> <p>Whether a bankrupt is guilty of contempt in failing to comply with a referee’s order directing him to pay funds alleged to have been withheld to his trustee depends on the bankrupt’s present ability to comply therewith.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p> <p>3. Bankruptcy (§ 136*) — Withheld Funds — Contempt—Evidence.</p> <p>Where the bankrupt denied having any money other than that declared exempt in his possession, the fact that moneys unaccounted for were traced to the bankrupt within the few months of bankruptcy, and that his explanation of disposition of some of the Hems was unsatisfactory, was insufficient to justify an order committing him for contempt for failure to pay over the money to the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

<p>In the matter of George T. Stone, bankrupt. Heard on objections to the granting of a discharge.</p>

<p>1. Public Lands (§ 120*) — Cancellation of Patents —Suit by United States.</p> <p>In a suit by the United States to cancel patents to land for fraud, the bill must allege specifically and in detail in what the fraud consists, and the complainant can recover only on the case so made, and the allegations must be established affirmatively by .clear and convincing proof.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 335; Dec. Dig. § 120.*]</p> <p>2. Evidence (§ 591*) — Objections by Party Introducing Evidence.</p> <p>A party who introduced witnesses, while not bound by their testimony, cannot insist that they are unworthy of belief, and, unless their testimony is self-contradictory or inherently improbable, it cannot be disregarded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2440; Dec. Dig. § 591.*]</p> <p>3. Public Lands (§ 139*) — Timber and Stone Entries — Legality.</p> <p>An applicant for the purchase of land under the timber and stone act (Act June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545]), as amended, has the right after he has made his initial application and before final proof- to contract to sell the title thereafter to be acquired, and the intending purchaser may lawfully advance to him the money with which to make final proof in order that he may comply with his contract.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 369-374; Dec. Dig. § 139.*]</p> <p>4. Public Lands (§ 120*) — Cancellation of Patents — Suit by United States —Sufficiency of Evidence.</p> <p>The fact that a defendant purchased a large tract of timber lands substantially in a body from persons who had entered the same under the timber and stone act shortly after their entry is not sufficient to establish the fraudulent character of the entries, and entitle the United States to a cancellation of the patents, even though some of the entrymen knew that defendant was buying or desired to buy timber land in the vicinity, and made their entries with the expectation of selling to defendant at an advance over the government price, where there were no relations between the parties prior to the entries and no agreement or understanding direct or implied for the sale of the lands.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p>

In Equity. On motion to modify preliminary injunction. Upon October 21, 1007, the plaintiff corporation presented its bill for injunction to a judge of this court against John Mitchell and nine others, alleging itself to be a corporation under the laws of West Virginia and the defendants to be citizens and residents of several different states other than West Virginia ; that nine of said defendants first named are presidents, vice presidents, and secretary-treasurers,…

<p>1. Attorney and Orient (§ 155*) — Compensation of Attorney — Allowance from Fund in Court.</p> <p>Where suits in equity, instituted on behalf of the bondholders and stockholders of an insolvent corporation, resulted, through the appointment of a receiver and suits instituted by him, in gathering a fund which made the defendant corporation solvent, leaving a surplus after paying its indebtedness, such fund, being purely equitable, is subject to the payment of equitable costs, including the fees and disbursements of the solicitors for the original complainants for services rendered up to the time of final decree.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 316; Dec. Dig. § 155.*]</p> <p>2. Attorney and Client (§ 155*) — Compensation of Attorneys — Allowance from Fund in Court.</p> <p>It is the general rule that the right to equitable costs, such as counsel fees, exists only with respect to a fund created by the services charged for; hut where proceedings on behalf of bondholders by'intervention, having a reasonable basis and which might have resulted in establishing the right of the interveners to a large sum as interest from a fund in the hands of a receiver, were compromised by a consent decree, which provided that the receiver should retain from the fund in his hands a sum sufficient to cover, inter aiia, allowances to counsel for the interveners, the allowance of such fees from the fund must be taken as one of the terms of the compromise, and enforced as such, so that the interveners may receive the amount stipulated on their bonds without being subjected to a charge for counsel fees.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. $ 310; Dec. Dig. f 155.*]</p> <p>3. Receivers (§ 163*) — Payment of Claims — Interest.</p> <p>On the allowance of counsel fees out of a fund in the hands of a receiver, interest will not be awarded beyond that obtained by the receiver on the fund.</p> <p>[Ed. Note. — For other cases,' see Receivers, Cent. Dig. § 313; Dec. Dig. § 163.*]</p>

In Admiralty, Suit by the Perth Amboy Dry Dock Company, as owner of the schooner Marshall O. Wells, for limitation of liability, in which Jacob Elzer, Sr., administrator, claimed damages for the death of Rudolph Elzer in collision. Claim for limitation allowed, and decree for damages in favor of claimant.

<p>In Equity. On motion by complainant to dismiss.</p>

<p>1. Constitutional Law (§ 296*) — Due Process op Law — Banking—Restricting Business to Oorporatton.s- Guaranty Funo.</p> <p>The Nebraska act of March 2-5, 1909 (Laws Neb. 1909, p. 60, c. 10), which prohibits individuals from engaging in the banking business unless they do so through the agency of a corporation, and which also conditions the right to engage in that business in that form upon the making of enforced contributions from time to time to a depositors’ guaranty fund to be employed in tbe payment of the claims of depositors of any hank which shall become insolvent, is in conllict with section 1 of the fourteenth amendment to the Constitution of the United States, which provides: ,-No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law” — and is in conllict with section 3 of article 1 of the Constitution of Nebraska, which declares: ‘'No person shall be deprived of life, liberty or property without due process of law," and therefore is void.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 825 ■ 830, 834-846; Dee. Dig. § 296.* 1</p> <p>2. Statutes (§ 64*) — Void Provision, IVuen Inducement to Passage op Act, Renders Entire Act Invalid.</p> <p>The provisions of the Nebraska act of Jlarch 25, 1909 (Laws 1909, p. 66, e. 10). which prohibit individuals from engaging in the banking business unless they do so through the agency of a corporation, and also condition the right to engage in that business in that form upon the making of enforced contributions from time to time to a depositors’ guaranty fund to be employed in the payment of the claims of depositors of any bank which shall become insolvent, were the inducement to the passage of that act; and as those provisions, so coupled together, are void, the entire act is thereby rendered invalid.</p> <p>I Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66; Dec. Dig. § 64.*]</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. Action by the Surpass Leather Company against the steamship Hudson. Libel dismissed.</p>

<p>In Admiralty. Action by the Maryland Dredging & Contracting Company against Frank L. Neall and the barque Fort George. Decree for libellant.</p>

<p>Injunction (§ 226*) — Violation—Excuse—Agreement op Parties.</p> <p>Where an agreement between the parties to a suit in a federal court for the entry of a consent decree for an injunction also contained provisions intended to modify the operation of the decree, and inconsistent with its terms, the court will not impose a fine for violation of the decree as for a civil contempt for the benefit of the other party, when such violation arose from a difference of opinion as to the construction of the agreement.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Cent. Dig. § 478; Dec. Dig. § 226.*]</p>

<p>Shipping (§ 132*) — Injuey to Oakgo — Negligence in Loading.</p> <p>Damage to cotton on a lighter in the harbor of Savannah, Georgia. Held that the damage was due to water being pumped on the lighter by the steamer Dalton Hall, belonging to Furness, AVithy & Co., and that there was no fault on the part of the Atlantic Coast Line Railroad Com-, pany.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 484; Dec. Dig. § 132.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Seamen 11, 29*)--Nhgu:gence or Fu,mw Sebvant — In.tuby to Seaman- - Damages.</p> <p>Injury to seaman trom becoming entangled in a winch when engaged in hoisting the spanker. Held that the vessel was not liable for the injuries as they happened through the negligence of the mate, but that the seaman was entitled to care and maintenance under the doctrine of The Osceola, 189 XT. S. 158, 23 Sup. Ot. 483, 47 L. Ed. 760.</p> <p>|Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 39, 40; Dec. Dig. §§ 11, 29;* Master and Servant, Cent. Dig. 211, 492, 592, 734J</p> <p>(Syllabus by the Judge.)</p>

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Motion to take new proofs on appeal.</p>

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

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