Volume 173 — Federal Reporter

<p>1. Carriers (§ 32*) — Interstate Commerce Act — Discrimination Between Shippers — “Simular Circumstances and Conditions.” ■</p> <p>In Interstate Commerce Act Feb. 4, 1887, c. 104, § 2, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3155), which prohibits discrimination between shippers under “substantially similar circumstances and conditions,” such phrase relates to the circumstances and conditions of carriage only, and does not include matters affecting individual shippers; and a railroad company is not authorized to charge one shipper of coal a lower rate than is charged another shipper between the same terminals, because the former is shipping under contracts extending over a term of years, based on lower rates which were in force when such contracts were made, while the other shipper has no such contracts.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 85; Dec. Dig. § 32.*]</p> <p>2. Carriers (§ 32*) — Interstate Commerce Law — Discrimination in Rater.</p> <p>Where a railroad company operating an interstate road treated points on a connecting road which it also operated as within a certain coal dis■triet, from all points in which, whether oil such line or its own line, it made and published the same rates, such road for freight purposes was a part of its line, and its relations with the owner thereof are immaterial.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 83; Dec. Dig. § 32.*]</p> <p>3. Carriers (| 36*) — Action for Discrimination in Rates — Measure on Damages.</p> <p>In an action by a coal mining company against a railroad company under Interstate Commerce Act Feb. 4, 1887, c. 104, § 8, 21 Stat. 382 (U. S. Comp. St. 190.1, p. 3159), to recover damages because of discrimination in rates made in favor of other shippers between the same terminals, the measure of damages recoverable is the difference between the amount paid by plaintiff and the amount it would have paid at the lowest rate charged on any other shipments carried under substantially the same circumstances and conditions during the same time, and not the difference between the rates paid by it and the average rate paid by any other shipper.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 36.*]</p> <p>4. Carriers (§ 30*) — Interstate Commerce Law — Action for Discrimination in Kates.</p> <p>To entitle a shipper to maintain an action against a railroad company under Interstate Commerce Act Feb. 4, 1887, c. 104, § 8, 24 Stat. 382 (U. S. Comp. St. 19,01, p. 3159), to recover damages for being unjustly dis'criminated against in rates, it is not necessary that he should have paid the freight charged under protest.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 36.*J</p> <p>5. Abatement and Revival (§ 41*) — Transfer of Title by Plaintiff.</p> <p>A pending action to recover damages is not abated by a judicial sale of the plaintiff’s property, including the chose in action in suit, and proof of such sale constitutes no defense to the action.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § 212; Dec. Dig. § 41.*]</p> <p>6. Carriers (§ 36*) — Interstate Commerce Act — Action for Discrimination in Rates.</p> <p>A coal shipper, which, with others, was given rebates by a railroad company in’ violation of law, cannot maintain an action against the company to recover damages for discrimination because others were granted larger rebates.</p> <p>LEd. Note. — For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 36.*]</p>

<p>Fbaud (§ 20*) — False kbubesentations — Failure to Collect Claim.</p> <p>Defendant, while acting for a trust company to which a corporation was largely indebted, induced plaintiff’s attorney to refrain from pressing plaintiff’s claim against the corporation then due by attachment or other process by falsely representing to such attorney that the corporation was in good financial condition, that the trust company would extend the corporation’s credit by loaning an additional $25,000, and that, if plaintiff and the trust company and another constituting the corporation’s largest creditors would permit the corporation to continue, the corporation would make pro rata payments, and would be able to relieve itself from its difficulties. The trust company at this time, however, was secretly gaining absolute control of the corporation’s assets, and recovered for itself a large portion of its indebtedness before plaintiff discovered defendant’s duplicity, when the corporation was found to be bankrupt and proceedings in bankruptcy were instituted against it. Held, that such facts were insufficient to sustain an action for deceit against defendant Bradley v. Fuller, 118 Mass. 230, applied.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 18; Dec. Dig. § 20.*]</p>

Bill by the city of Helena against the Helena Waterworks Company to enjoin the issuance and sale of water bonds and the making of a contract for the construction of the city water system. From an order granting an interlocutory injunction, the city appeals.

Action by C. Z. Sailing against the National Cash Register Company. Judgment for plaintiff, and defendant brings error.

<p>1. Salvage (§■ 16*) — Theory and Purpose op Remuneration — Services Rendered Under Employment.</p> <p>The principles which govern the allowance of compensation for a salvage service are not the same where the service is rendered under an employment and where it is volunteered. In the latter case it is more meritorious, and the salving vessel takes the risk of receiving nothing if the service is unsuccessful, and if successful is entitled to a liberal reward; while if employed she is entitled to payment on a quantum meruit in any event, and whether entitled to more in case of success depends on the circumstances and the spirit in which the service is rendered.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. § 29; Dec. Dig. § 16.*]</p> <p>2. Salvage (§ 30*) — Amount op Compensation — Services Rendered Under Employment.</p> <p>The steamship Manchuria grounded on a coral reef in the bay of Waimanalo on the northeast side of the island of Oahu, Hawaii. Being unable to free herself with the aid of three other vessels which went to her assistance, the owners’ agent applied for the assistance of libelant’s cable ship, Restorer, a vessel of 4,000 horse' power, then lying idle at Honolulu. Libelant’s superintendent stated that she could not go without permission from New York, which was cabled for and obtained. In the meantime the master refused to fire up unless the expense was guaranteed, and such guaranty was given. On receiving permission libelant’s agent required a written request for her services, which being given, the Restorer went to the assistance of the Manchuria; but her efforts, added to those of the other vessels, were unsuccessful, and on 1116 next day an expert salvor employed by the underwriters with a powerful wrecking outfit started from San Francisco, arriving nine days after the stranding. In the meantime the Restorer and other vessels had assisted in keeping the Maiic-lmria in position and from further injury, and she was retained by the expert who took charge of the work, and who understood that she was under employment, until the Manchuria was finally released. Throughout libelant and'its representatives worked with a view to making as large a salvage claim as possible. The Restorer was at no time in any special peril, nor did it appear that her services were indispensable to the safely or rescue of the Manchuria. Held, that she was entitled to recover for her consumption and loss of stores and expenses on account of tiie salvage operations, and to a per diem allowance for the time employed, but to no bonus in addition asa purely salvage reward.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 72-74; Dec. Dig. § 30.*]</p>

<p>Shipping (§ 175*) — Demurrage—Liability op Charterer.</p> <p>The steamship Eva was chartered to carry a cargo of coal to be loaded at Philadelphia; the charter party providing for “customary steamer dispatch loading, steamer to take turn with -other steamers loading coal.” By the rules of the Greenwich coal pier, where she was to load, each vessel was required to register when ready to load, and was loaded in turn, unless she failed to dock when her bearth was ready, in which case she lost her place and must re-fegister. The Eva registered, and her master was told by the charterer’s agent that she could not be loaded for about a week. She then went to a shipyard to have some changes made in her bulkheads, which, however, were not necessary for her coal cargo, and could be suspended at any time on .notice, and she could have reached the coal dock within an hour. When her turn for loading was reached, she was not notified; but another vessel was given'her place apparently at the instance of the' charterer, and she: was delayed for several days. Held that, after registering, she was not required to remain anchored near the docks, but was within her rights in utilizing the time while waiting for repairs, and was entitled to joasonnble notice when her turn to load came, and that the charterer was liable for demurrage for the time she was delayed.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 572-574; Dec. Dig. § 175.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Iingerman v. Norton, 46 C. C. A. 4.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.</p> <p>John M. Hanger was convicted of counterfeiting, and lie brings error.</p>

Action by William H. Winfree, as administrator of the estate of Albert E. Phipps, against the Northern Pacific Railway Company. A demurrer was sustained to plaintiff’s complaint (164 Fed. 698), and he brings error.

<p>Adverse Possession (§ 7*) — Against Whom Prescription may be Claimed— Public Lands.</p> <p>Possession of land, although in admitted subordination to the United States, from which the person in possession is seeking to obtain title, may nevertheless be adverse io every one else, and, when continued for the sta tutory period, may be set up in bar to an action by one claiming -under a prior grant.</p> <p>IlOd. Note. — For other cases, see Adverse Possession, Gent Dig. §§ 33 — 1»; Dec. Dig. § 7.*)</p>

<p>In Equity. Suit by Murray Corrington and the Corrington Air Brake Company against the Westinghouse Air Brake Company for alleged infringement of United States letters patent No. 762,282, dated June 14, 1904, application filed September 28, 1903, granted to Murray Corrington for “fluid-pressure brake apparatus,” and for an injunction and an accounting. The bill of complaint was filed March 6, 1907, the answer May 6, 1907, and the replication June 3d following. On final hearing.</p>

<p>In Equity. Suit by the Westinghouse Electric Manufacturing Company against the Condit Electrical Manufacturing Company for infringement of patent. On motion to punish for contempt in violating injunction.</p>

<p>In Equity. Suit by the JEolian Company against the Simpson-Crawford Company for infringement of patent. On final hearing.</p>

<p>Patents (§ 328*) — Infbingeiieni^-Pafer Shell Cartridge.</p> <p>The Gardner patent, No. 563,157, for a paper shell cartridge, as voluntarily narrowed by the patentee to meet objections of the Patent Office, held not infringed.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 828.*]</p>

In Equity. Suit for infringement of letters patent No. 621,563, for a process of making artificial stone, granted to Charles W. Stevens May 9, 1899. On motion for preliminary injunction.

<p>1. Courts (§ 328*) — Jurisdiction of Federal Courts — Amount in Dispute.</p> <p>In a suit by a railroad company to quiet title to a specific portion of its right of way which lies more than 100 feet from its tracks, and has never been used in the operation of its road, the amount in dispute for the purpose of determining the jurisdiction of a federal court is the value of the land in controversy, and not the value of the company’s right to operate its road.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-890; Dec. Dig. § 328.*</p> <p>Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-StriblingShoe Co. v. Roper, 30-C. C. A. 459.]</p> <p>2. Quieting Title (§ 4*) — Federal Courts — Equity Jurisdiction — Remedy at Law.</p> <p>The grant by Congress to the Union Pacific Railway Company of right of way for its road over the public lands vested such company with title in reo simple to ilio right of way appropriated thereunder, subject lo defeasance by abandonment only, and the company or its successor, having an adoomale remedy by ejectment against one who has taken possession of a portion of its right ol' way, cannot maintain a suit in equity to quiet title thereto.</p> <p>| Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § (>; Dec. Dig. § 4.*]</p> <p>8. Courts 87:1*) — Federad Courts — Equity Jurisdiction — Kejiedy at Daw.</p> <p>In view of ihe provision of Rev. St. § 72,8 (TJ. S. Comp. St. 1901, p. 588), that suits in equily shall not be sustained in the federal courts in any case where a plain adequate and complete remedy may be liad at law, a state statute authorizing the legal owner of real estate to maintain an equitable action to quiet his title against another party in possession cannot confer jurisdiction of such a suit on a federal court.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. § 907; Dec. Dig. § 371.*]</p>

<p>In Admiralty. Libels by Leta D. Potter and others and by William B. McElwee and others against the barge Pocomoke.</p>

In Bankruptcy. On petition for review of order by the referee disallowing petition by the R. H. White Company to establish a lien upon proceeds of certain personal property.

<p>1. Corporations (§ 682*) — Foreign Corporations —Solvenoy—Administration oe Assets — State Statutes — Validity.</p> <p>Acts Tenn. 1877, p. 45, c. 31, § 5, authorizing foreign corporations to do business within the state, and providing that, while the property of such corporations shall be liable for debts as the property of natural persons, resident creditors shall have priority in the distribution of assets, or subjection of the same, or any part thereof, to the payment of debts, over ail simple contract creditors, while constitutional, as an exercise of the state’s power to prescribe conditions on which a foreign corporation might enter its territory, in so far as it gave the claims of Tennessee creditors priority over those of other foreign corporations, was unconstitutional in so far as it attempted to give the claims of Tennessee creditors of a foreign corporation doing business within the state priority over those of natural persons.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2662; Dec. Dig. § 682.*]</p> <p>2. Corporations (§ 682*) — Foreign Corporations — Distribution of Assets— Priority.</p> <p>Acts 1877, p. 45, c. 31, § 5, giving Tennessee creditors of a foreign corporation doing business in that state priority over the claims ol' other nonresident corporations in the distribution of the corporation’s assets, gives Tennessee creditors a constitutional priority in the distribution of the assets of a foreign corporation over other foreign corporations likewise engaged in business in Tennessee in compliance with its statutes, where such foreign corporation has retained its principal place of business in the state of its creation, especially where its claim is based on transactions conducted through such foreign office.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2662; Dec. Dig. § 682.*]</p> <p>3. Corporation,s (§ 682*) — Foreign Corporations — Distribution of Assets— Compliance with State Daws — Effect.</p> <p>Acts Tenn. 1877, p. 44, c. 31, authorizing foreign corporations to do business within the state, as amended by Acts Tenn. 1891, p. 264, c. 122, and Acts Tenn. 1895, p. 123, c. 81, did not make a foreign corporation doing business in Tennessee, on compliance with such act, a de facto resident of that state, with all the rights of a domestic corporation, in such a sense as to make it a Tennessee creditor, within Acts Tenn. 1877, p. 45, c. 31. § 5, giving resident creditors priority in the distribution of the assets of a foreign corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 682.*]</p> <p>4. Corporations (§ 634*) — Existence—Domicile.</p> <p>A corporation can have no legal existence outside the boundaries of the sovereignty by which it is created, and must dwell in the place of its creation, though its residence in one state creates no insuperable objection to its power to transact business in another, provided the laws of such other state permit it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2497-2502; Dec. Dig. § 634.*]</p> <p>5. Constitutional, Daw (§ 43*) —Foreign Corporations — Business Within State — Statutes—Constitutionality.</p> <p>A foreign corporation, having complied with Acts Tenn. 1877, p. 41, c. 31, and its amendments, authorizing foreign corporations to do business in Tennessee under certain circumstances, subjected itself to the jurisdiction of the state in accordance with Hie ierms prescribed by such act, and lienee could not object that section 5, giving to natural resident parsons priority in the distribution of the assets of a foreign insolvent corporation, was unconstitutional, as a denial of the equal protection of the laws.</p> <p>[Ed. Note. — F'or other cases, see Constitutional Law, Dec. Dig. § 43.*]</p> <p>6. Corporations (§ 682*) — Foreign Corporations — Insolvency—Protection oe. Resident Creditors — National Banks — Residence.</p> <p>Under Rev. St. § 5134 (U. S. Comp. St. 1901, p. 3454), providing that the articles of association of a national bank shall state the place where its operations are to be carried on, designating the state, territory, or district, and the county, city, town, or village, a national hank, the articles of which fixed its principal place of business at Johnson City, Tenn., should be regarded as a resident of that state, within Acts Tenn. 1877, p. 45, c. 31, § 5, giving to resident creditors of an insolvent foreign corporation priority in the payment of debts over all other creditors.</p> <p>[Ed. Note. — For other eases, see Corporations, Dec. Dig. § 6S2.*]</p> <p>7. Bankruptcy (§ 9*) — State Daws — Vacation.</p> <p>The rule that the enactment of' the federal bankruptcy act superseded all state insolvency or bankruptcy laws relating to persons or acts declared by Congress to be subjects of bankruptcy, applied merely to the administration of the state laws iu proceedings in the state courts, and did not prevent the enforcement in federal bankruptcy proceedings of general priorities recognized by the state laws and conferred by state statutes as substantive rights, not depending on the resort to particular remedies accessible only in proceedings in the state courts, and where such priorities are not in conflict with the express priorities declared by the bankruptcy act.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 9.*]</p> <p>8. Bankruptcy (§ 9*) — State Statutes — Insolvency Daws.</p> <p>Acts Tenn. 1877, p. 45, c. 31, § 5, conferring on resident creditors priority in the distribution of assets of foreign corporations doing business in Tennessee, was not a state insolvency law, but a statute prescribing conditions on which foreigD corporations might do business within the state, and was therefore not superseded or affected by the bankruptcy act.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 9.*]</p> <p>9. Corporations (§ 682*) — Foreign Corporations — Insolvency—Protection op Resident Creditors.</p> <p>Claims by receivers of a foreign corporation for expert accountant's services rendered to a foreign insolvent corporation doing business iu Tennessee was a claim due to the receivers personally, and not to the corporation for whom they acted, within Acts Tenn. 1877, p. 45, c. 31, § 5, giving to resident creditors of a foreign corporation priority of payment over claims due to foreign corporations.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 682.*]</p>

<p>Action by John Newman and others against the steam tug Edmund Moran.</p>

Action by Robert Lyons, as receiver of the Cosmopolitan National Bank, against James Westwater. On plaintiff's motion for a new trial and for judgment non obstante veredicto.

<p>•On Application of Sureties for Remission of Judgment on Recognizance.</p>

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

In the matter of Louis Levin, bankrupt. On petition by the bankrupt’s trustee for review of the referee’s allowance of a claim of M. L. & C. Ernst. The following is the opinion of the referee; DEXTER, Referee. Messrs. M. L. & C. Ernst were bankers in the city of New York, whose business consisted mainly of making loans to merchants on their accounts receivable. Tbe bankers did not make a practice of loaning on warehouse receipts or goods in store.

<p>In the matter of one Acretelli, bankrupt. On application by the trustees for the sale of the bankrupt’s real estate free from the inchoate dower interest of the bankrupt’s wife.</p>

Rufus Moore and others were indicted for conspiracy. On demurrer to the indictment. The pending controversy is upon the demurrer to an indictment charging the defendants with having entered into a conspiracy to defraud the government.

Bill in equity by William E. Watkins, administrator with the will annexed of Elizabeth S. Eaton, deceased, against Hervey E. Eaton, as executor of the last will and testament,, and of the codicil and memorandum thereto attached, of Elizabeth S. Eaton, deceased. On demurrer to bill.

<p>In Bankruptcy. Sur petition of. William Hughes for reclamation of certain property.</p>

<p>Bankruptcy (§ 397*) — Exemptions—Partnership Property.</p> <p>Evidence held to entitle bankrupt partners to exemption from the partnership property under the statute of North Carolina.</p> <p>[Ed. Note — For other cases, see Bankruptcy, Dee. Dig. | 397.*]</p>

<p>Shipping (§ 81*) — Liability op Vessels — Injuey to Moobed Scow by Swell ebom Passing Vessel.</p> <p>A dredge, engaged in deepening the main channel into Boston Harbor, was left anchored in the channel on a holiday, when not at work, with a scow made fast to her south side by lines. No one was on the scow, and no one on the dredge was giving her any attention. During the day the battleship Vermont came in from a trial trip made by tlie builders, and, passing to the south of the scow at a distance of about 200 feet, her swell caused the scow to break her lines and she drifted ashore and received some injury. Held that, while it was the duty of the Vermont to use reasonable care to avoid injury to the scow 'and dredge by her swell, which, owing to her construction, ivas unusually heavy, she ivas entitled to use the channel, and under the evidence, it did not appear that she failed in such duty, her speed having been reduced as much as was safe, having reference to her draft and the stale of the tide, which was ebb and nearly out, and that she ivas not.liable for the injury to the scow, which under the circumstances, and considering that her lines were old, should not have been left with no one in charge.</p> <p>(Ed. Note. — For other cases, see Shipping, Cent. Dig. § 343; Dee. Dig. § 81 *</p> <p>Liability of vessel for Injuries caused by creation of swell, see note to The Asbury Park, 78 C. C. A. 3.]</p>

<p>J. H. Raley and another were indicted for conspiracy, and demurred to the indictment.</p>

<p>Action by Richard F. Gundry against Margaret L. Reakirt, in which .the Cumberlánd-Georges Creek Coal Company was summoned as garnishee. On exceptions to the answer of the garnishee.</p>

•Action by John O. Maxey against Walton K. Rideout. On plea in abatement.

<p>1. Commerce (§ 3*) — Anti-Trust Act — Congressional Restriction of Use of Contracts and Methods of Holding Titles to Restrain Interstate Commerce Authorized by Constitution.</p> <p>Congress has power, under the commercial clause of the Constituí ion, to regulate and restrict the use, in commerce among the several states and with foreign nations, of contracts, of the method of holding title to property, and of every other instrumentality employed in that commerce, so far as it may be necessary to do so in order to prevent the restraint thereof denounced by Anti-Trust Act July 2, 1890, c. 047, 20 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 3; Dec. Dig. 1 3.*]</p> <p>2. Monopolies (§ 12*) — Anti-Trust Act — Test of Legality of Combination Its Necessary Effect upon Competition.</p> <p>The test of the legality of a combination under this act is its necessary effect upon competition in commerce among the states or with foreign nations.</p> <p>If its necessary effect is only incidentally or indirectly to restrict that competition, while its chief result is to foster the trade and increase the business of those who make and operate it, it does not violate that law.</p> <p>But, if1 its necessary effect is to stifle or directly and substantially to restrict free competition in commerce among the states or with foreign nations, it is illegal witbin the meaning of that statute.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. I 12.*]</p> <p>3. Monopolies (f 12*) — Anti-Trust Act —Power to Restrict. Competition Vested by Combination Indicative of Its Character.</p> <p>The power to restrict competition in commerce among the several states or with foreign nations, vested in a person or an association of persons by a combination, is indicative of the character of the combination, because it is to the interest of the parties that sncli a power should be exercised, and the presumption is that it will be.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 1(); Dee. Dig. § 12.*]</p> <p>4. Monopolies (§ 20*) — Anti-Trust Act — Combination in One Person of Power of Many to Restrict Competition Renders That Power More Effective and Durable.</p> <p>The combination in a single corporation or person, by an exchange of stock, of the power of many -stockholders holding the same proportions, respectively, of the majority of the stock of .each of several corporations engaged in commerce in the same articles among the states or with foreign nations, to restrict competition therein, renders the power thus vested in the former greater, more easily exercised, more durable, and more effective than that previously held by the stockholders, and it is illegal.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>5. Monopolies (§ 20*) — Anti-Trust Act — Combination Restricting Competition in Interstate Commerce by Exchange of Stock of Trading Corporations Illegal — Facts—Conclusion .</p> <p>In 1899 the stockholders of the Standard Oil Company of New Jersey owned a majority of the stock of 19 other corporations in the same proportions that they owned the stock of the Standard Company, and those 20 corporations controlled, by the ownership, of the majority of -their stock or otherwise, many other corporations. Each of these corporations was engaged in some part of the business of producing, buying, refining, transporting, and selling petroleum and its products, and they were conducting about 30 per cent, of the production of the crude oil and more than 75 per cent, of the business of purchasing, refining, transporting, and selling petroleum and its products in this country. Many of them were engaged in commerce in these articles among the several states and with foreign nations, and were naturally competitive.</p> <p>During the 10 years prior to 1879 the 7 individual defendants had acquired control of many corporations, partnerships, and refineries that had been competing in this business, had placed the majority of the stock of those corporations and the interests in property and business thus obtained in various trustees, to be held and operated by them- for the stockholders of the Sandard Oil Company of Ohio, one of the, 19 companies in which the individual defendants were principal stockholders, and had thereby suppressed competition among these corporations and partnerships. In 1879 they and their associates caused' all the trustees to convey their interests in the stock, property, and business of all these corporations to 5 trustees, to be held, operated, and distributed by them for the stockholders of the Standard Company of Ohio. From 1879 until 1892 they prevented these corporations and others engaged in this business, of which they secured control, from competing in this commerce, by causing the control of their operations, and generally of a majority of their stocks, to be he!4 in trust for the stockholders of the Standard Company of Ohio, and from 1892 until 1899 they accomplished the same result by a similar stockholding device and by the joint equitable ownership of the majority of the stocks of the corporations.</p> <p>In the year 1899 the 7 individual defendants and their, associates caused the majority of the stock of the 19 corporations to be transferred to the Standard Oil Company of New Jersey in exchange for its stock, so .that the latter company thereby acquired the legal title to a majority of the stock of each of the 19 companies, the control of these companies and of all the companies which they controlled, and the power to fix the rates of transportation, and the purchase and selling prices of petroleum and. its products, which all these corporations should pay and receive in the conduct of their business in commerce among the states, and with foreign nations. Since that exchange of stock the 7 individual defendants have been and are stockholders and officers of the Standard Company of New Jersey, which has exercised, and is still using, that power, .and by its use it has prevented, and is still preventing, competition in commerce among the states and with foreign nations among these corporations.</p> <p>Held, the transaction constituted a combination and conspiracy in restraint of, and to monopolize, commerce among the states and with foreign nations, in violation of sections 1 and 2 of the anti-trust act of July 2, 1890 (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), and the government is entitled to an injunction against the farther continuance and operation thereof.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>{Syllabus by the Court.)</p>

In Equity. Bill by the Pullman Company against Peter M. Tamble,, Trustee of Davidson County, Tenn., to enjoin collection of taxes. On motion for preliminary injunction. This bill was filed by the Pullman Company, an Illinois corporation, against Peter M. Tamble, trustee of Davidson county, Tenn., to enjoin the collection of certain ad valorem taxes on the sleeping cars, dining cars, and parlor cars of the complainant.

Application by Long Lock, a Chinese person, for a writ of habeas corpus to obtain his release from imprisonment under a deportation warrant.

<p>1. Indians (§ 18*) — Indian Lands — Allotment—'Wife of Allottee.</p> <p>AVhere the wife of a Puyallup Indian allottee died prior to the approved of the allotment list by the Commissioner of Indian Affairs, the Secretary of the Interior, and the President, her heirs took nothing under the allotment list or patent subsequently issued to her surviving, husband.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 18.*]</p> <p>2. Indians (§ 18*) — Indian Dands — Allotment—“Publio Lands” — Patents.</p> <p>Lands in an Indian reservation are not “public lands,” 'within Rev. St. % 2448 (U. S. Comp. St. 1901, p. 1512), providing that, where patents for public lands are issued pursuant to any law of the United States to a person who dies before the date of the patent, the title shall become vested in his heirs; nor are patents issued to Indian allottees of reservation lands issued pursuant to a law of the United States within such section.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 18.*</p> <p>For other definitions, see AVords and Phrases, vol. 6, pp. 5793-5795; vol. 8, p. 7772.]</p> <p>3. Indians (§ 18*) — Indian Lands — Descent—Indian Customs.</p> <p>So long as Indian tribal relations were maintained prior to the Indians becoming citizens of the United States, the rules of descent of Indian property would be governed by the customs of the Indians, if such customs existed, subject, however, to treaty provisions.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 49; Dec. Dig. § 18.*]</p> <p>4. Indians (§ 18*) — Customs—Occupation of Property — Death of AVife.</p> <p>In accordance with Indian customs, the death of an Indian’s wife caused no change in his right to occupy the ground which had theretofore been used by him and his family.</p> <p>[Ed. Note. — For other cases, see Indians, Dee. Dig. § 18.*]</p> <p>5. Indians (§ 13*) — Indian Lands — Patent.</p> <p>AVhere a Puyallup Indian patent was issued to an Indian allottee who was the head of the family, the fee vested in him; the other members of the family taking no interest, though named in the patent.</p> <p>[Ed. Note. — For other cases, see Indians, Dee. Dig. § 13.*]</p> <p>6. Indians (§ 18*) — Indian Lands — Descent—Community Pbopgbty.</p> <p>The state law governing the descent of community property did not apply to the descent of Indian reservation lands patented to a Puyallup Indian allottee who was the head of a family.</p> <p>[Ed. Note. — For other cases, see Indians, Dee. Dig. § 18.*]</p> <p>7. Indians (§ 13*) — Indian lands — patents—Depabtmental Opinion.</p> <p>A ruling by the Interior Department and the Indian Bureau that Puyallup Indian patents granted the land to all the persons named therein, whether minors or adults, as tenants in common, was erroneous, and not binding on the courts.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>8. Indians (§ 15*) — Indian Lands — Allotment—Tkansfeb.</p> <p>Since Puyallup Indian allottees had no powers of alienation prior to March 3, 1903, when the restriction against alienation was removed, they could not, by estoppel, acquiescence, or otherwise, prior to that date, transfer a title which had vested in them either by patent or inheritance; nor could a transfer of such land, prohibited by treaty and by the patent, be accomplished by departmental construction.</p> <p>[Ed. Note. — For oilier eases, see Indians, Dec. Dig. § 15.*]</p> <p>9. Landlord and Tenant (§ 62*) — Denial of Landlord’s Title.</p> <p>AVhere defendants were in possession of property patented to an allottee, who held the fee under his patent, and while in possession such allottee, conveyed the land to defendants, the fact that they had held the property under a lease from the allottee and others claiming an interest in the land did not estop them to deny the title of such other lessors, under the rule that where a tenant, in possession at the time he accepts a lease, is induced to accept it by mistake or misrepresentation of the lessor, or by mutual mistake of both parties, as to the law regarding the lessor’s title, the tenant is not estopped, at least after the term has expired.</p> <p>[Ed. No1e. — For other cases, see Landlord and Tenant, Gent. Dig. § 153; Dee. Dig. § 62.*]</p> <p>10. Indians (§ 13*) — Indian Lands — Allotments.</p> <p>When the Supreme Court of the state and the United States Circuit Court of the district where an Indian reservation is situated have concurred for about eight years in a certain construction of the patents issued to the allottees in such reservation, and there are no decisions of such, courts to the contrary, that construction will be regarded as a rule of property, and will be adhered to, although it does not agree with the eon■struetion adopted by the Interior Department.</p> <p>[Ed. Note. — For other cases, see Indians, Dee. Dig. § 13.*]</p>

<p>Removal of Causes (§ 30*) — Risht of Removal — Separable Controversies.</p> <p>Where plaintiff’s declaration in an action on a contract in a state court against three defendants alleged that the defendant which made the contract in its own name acted in doing so as the agent for its codefendants, who were the real parties, they cannot be treated as merely nominal or unnecessary parties to the suit, fcr the purposes of removal of the cause to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 70; Dec. Dig. § 30.*</p> <p>Separable controversies, see notes) to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p>

<p>On application for a warrant of commitment for Delavan Smith and Charles ,R. Williams, and an order for their removal to the District of Columbia for trial on indictment for criminal libel.</p>

<p>In Bankruptcy. In the matter of Israel Maaget, bankrupt. On motion to vacate stay.</p>

In Bankruptcy. In the matter of Herman Hoffman and Sigmund Engel, bankrupts. Heard on review of order of referee. This is a proceeding to review the order of the referee disallowing a claim for $1,000 additional attorney’s fees, and $202.90 for disbursements actually advanced by such attorneys in the conduct of the case.. The claimants were attorneys for the trustee. The adjudication took place on the 20th of November 1900.

<p>In Equity. On motion to compel witness to answer question.</p>

<p>At Law. Actions by G. B. Kyle and E. P. Kyle against the Chicago, Rock Island & Pacific Railway Company. On motions to remand to state court.</p>

Action by the Riverside Trust Company, Eimited, against the East Riverside Water Company. Judgment for defendant on demurrer, and plaintiff brings error. The plaintiff in error filed a complaint containing 31 separate counts on an equal number of separate contracts to recover certain expenses incurred by it in furnishing water to the defendant in error.

Action by John Smith against the Griffin Wheel Company. Judgment Lor plaintiff, and defendant brings error.

This was a suit brought by the plaintiff in error for the purpose of recovering judgment upon an alleged guaranty by defendants in error of an account of one P. H. Brader for goods, wares, and merchandise purchased by him from the plaintiff in error in November, 1904, for the purpose of furnishing the labor and materials for the installment of a heating plant and necessary-plumbing and other pipe-fitting for the Havre Hotel at Havre, Mont.

<p>1. Criminal Law (§ 1192*) — Appeal and Error — Proceedings on Mandate.</p> <p>Where, upon the death of a defendant in a criminal case in a federal court pending proceedings in error in the Supreme Court to review a judgment of conviction, the writ of error was dismissed and the cause was remanded for such further proceedings as “according to right and justice and the laws of the United States ought to be had,” on the filing of such mandate the jurisdiction of the trial court reattached, and continued until action was taken pursuant to the mandate, and the court had authority to consider and act upon a motion in abatement.</p> <p>[E"d. Note. — For other cases, see Criminal Law, Dec. Dig. § 1192.*]</p> <p>2. Courts (§ 405*) — Circuit Court op Appeals — Appellate Jurisdiction-Decisions Reviewable.</p> <p>An order of a Circuit Court of the United States declaring a judgment in a criminal action abated by reason of the 'death of the defendant after the entry of the judgment is in an independent proceeding of a civil nature, and reviewable on writ of error by the Circuit Court of Appeals at the instance of (he United States.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1103; Dee. Dig. § 405.*</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Dau Ow Bew v. United States, 1 C. C. A. (>; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>3. Fines (§ 17%*) — -Death oe Dependant Aeter Judgment — Arateacent oe Cause.</p> <p>A judgment entered against a defendant convicted under Rev. St. § 1782 (U. S. Comp. St. 1901, p. 1212), which provides that any person violating the same shall be deemed guilty of a misdemeanor and shall be imprisoned and fined, is wholly penal, and the death of the defendant after judgment and while the ease is pending in an appellate court on writ of error operates to abate ihe entire cause of action, and the fine is not collectible' from the defendant’s estate.</p> <p>[ImI. Note. — For other cases, see Fines, Cent. Dig. § 2701; Dec. Dig. § 17%.*]</p>

Edward C. Dean, appellant, brought a libel in rem against the whaling vessel Thrasher to recover $000 damages on account of alleged breach of the contract of good treatment.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by William W. Dadd, as receiver of the New York City Railway Company, against the Metropolitan Securities Company. Judgment for plaintiff, and defendant brings error.</p> <p>On writ of error to review a judgment entered February 11, 1909, in the Circuit Court for the Southern District of New York in favor of the plaintiff for $5,271,582.54. The action was tried by the court, a jury trial being waived by written stipulation. The court made numerous findings of fact, those numbered 13, 15, 16, 17, 23, 25, 26, and 32 being duly excepted to by the defendant. The defendant also presented numerous proposed special findings which the court declined to adopt, the defendant reserving an exception to the refusal of the court to find those numbered 11, 15, 16, 17, 21, 24, 25, 28, 29, 30, and 33 to 41 inclusive. The defendant also presented 22 proposed conelusion's of law which the court declined to affirm, except the one numbered 22, and the defendant reserved an exception to each refusal.</p> <p>The action was originally brought by Messrs. Joline and Robinson, as receivers of the New York City Railway Company. The present plaintiff was appointed receiver in place of said Joline and Robinson on the 27th day of July, 1908, and was duly substituted as plaintiff by an order of the Circuit Court entered February 10, 1909.</p> <p>The complaint, after reciting the appointment of the receivers of the New York City Railway Company and the authority to bring this suit, alleges that all the times therein mentioned the defendant, the New York City Railway Company, and the Metropolitan Street Railway Company were New York corporations, and that the latter on the 14th day of February, 1902, was operating as owner, lessee, and by means of subsidiary companies, practically the entire surface street railway system of the city of New York. That on the said 14th day of February, 1902, the Metropolitan Company leased its systems and lines to the New York City Company for the term of 999 years, and the City Company took possession and operated the same under the lease, and continued to do so until the appointment of the receivers by order made Sep^ tember 24, 1907.</p> <p>The complaint alleges further that on the 22d day of May, 1907, the City Company entered into an agreement with the Metropolitan Company whereby the City Company promised that it would when required, on reasonable notice, and in any event before January 1, 1909, furnish the Metropolitan Company $8,000,000 in cash. The agreement further provided that the Metropolitan Company would forthwith issue and deliver to the Metropolitan Securities Company, the defendant herein, its three-year 5 per cent, improvement notes to the face value of $8,000,000, and for security would assign to the Securities Comxiany all claims, notes, and accounts of every description which the Metropolitan Street Railway Company had at the date of said agreement or thereafter might have against any of its subsidiary companies. That the securities were assigned as provided in said agreement.</p> <p>It is alleged further that on the same day (May 22d) the City Company entered into an agreement with the Securities Company whereby it agreed that the Securities Company would when required on reasonable notice, and in any event before January 1, 1909, furnish to the City Railway Company such-sums as might be required by it to carry out said agreement between the Metropolitan Street Railway Company and the City Company. That- this covenant upon the part of the Securities Company formed the consideration for-the said agreement on the part of the City Company to make said payments to the Metropolitan Street Railway Company, and induced the making of the agreements to do so. Both of these contracts are in writing, and are set out in full in the opinion of the Circuit Judge, and are known as schedules A and. B. They need not be repeated.</p> <p>The complaint alleges further that the City Comxiany and its receivers fully performed its agreement with the Metropolitan Company, and $8,000,000 has been_ paid, and incurred pursuant to its terms, for which no consideration has been received except the promise of the defendant to repay said sum. That the Metropolitan Company has performed the agreement on its part with the-City Company, and has delivered to the defendant prior to September, 1907",, the full consideration for the defendant’s said agreement to repay the sums paid by the City Company, to wit, the $8,000,000 of improvement notes of the Metropolitan Company, and as collateral thereto the notes of the Third Avenue Railroad Company, Twenty-Eighth and Twenty-Ninth Streets Crosstown Railroad Company, Twenty-Third Street Railroad Company, and Second Avenue-Railroad Company, aggregating $8,148,209.91. That the defendant accepted the said notes, and has continued to hold the same for its own use. That the said payments to the Metropolitan Company were made at the instance of' the Securities Company, and in reliance upon its agreement to repay the New York City Railway Company for such advances, no other consideration having been received by said City Company. That the Securities Company has-paid only the sum of .$3,036,000 to the City Company, and there is due a balance of $4,964,000. That the agreements heretofore mentioned were made to-enable the Metropolitan Company to discharge a floating indebtedness and. make necessary Improvements and changes of motive power necessitating the expenditure of 88,000,000.</p> <p>Judgment is demanded for $4,961,000.</p> <p>The answer admits the appointment of receivers of the New York City Railway Company, and that on the 14th of February, 1902, and for some time prior thereto, the Metropolitan Street Railway Company operated a large portion of the street surface railroads in the borough of Manhattan. It admits the execution of schedules A. and B, the reception by it of certain pajxirs purporting to be improvement notes of the Metropolitan Street Railway Company for the face amount of $8,000,000, and, as collateral thereto, paper writings purporting to be promissory notes of the companies as alleged in paragraph 7 of the complaint, and if admits the payment of $3,036,000 as therein alleged.</p> <p>The answer puts in issue the other allegations of the complaint, and as an affirmative defense alleges the insolvency of the New York Cify Railway Company and of the Metropolitan Street Railway Company.</p> <p>The opinions of the court below are reported sub nom. Joline v. Metropolitan Securities Co. (C. C.) 164 Fed. 144, 650.</p>

In .Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.

<p>1. Patents (§ 72*) — Anticipation—Prior Devices.</p> <p>A device whieh does not operate on the same principle as that of a patent cannot be an anticipation.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 90; Dec. Dig. § 72*3</p> <p>2. Patents (§ 72*) — “Anticipation”—Pbiob Devices.</p> <p>It is not sufficient to constitute anticipation that the devices relied upon might, by a process of modification, reorganization,- or combination, be made to accomplish the function performed by the device of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 90, 91; Dec. .Dig. 5 72.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 411.]</p> <p>3. Patents (§ 174*) — Improvement Patents — Operations op Device.</p> <p>A patent expressly for an improvement on the device of a prior patent to the same inventor should he read in connection with the first, and will not be declared void because, standing alone, it does not describe an operative apparatus.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 174.*]</p> <p>4 Patents (§ 328*) — Vacidity and Infringement — Load-Dumping Apparatus.</p> <p>The Carroll patent No. 561,485, for a load-dumping apparatus, claims 1 and 2, which cover a combination of elements in an apparatus especially designed to dump wagon loads of beets, and which is highly successful .in accomplishing such purpose in much less time than required by any previously known means, were not anticipated, although the elements of the combination were separately old, and disclose invention. Patent No. 595,-236 to the same inventor for an improvement on the apparatus of the prior patent also held valid, and both held infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*]</p> <p>5. Patents (§ 312*) — Suit for Infringement — Laches.</p> <p>The defense of laches to a suit for infringement of patents held not sustained by the evidence.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 312.*</p> <p>Laches as defense in suits for infringement, see notes to Taylor V. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 33 C. C. A. 613.]</p>

<p>1. Patents (§ 45*) — Anticipation—Invention—Date of Conception and EX- ■ ercise of Due Diligence, When Immaterial — Prior Patents as Anticipating Publications — Date of Application Therefor.</p> <p>Where there is a mere comparison of a patent with others, to determine the novelty of the device, it is immaterial just when the invention was coneeivéd or reduced to practice, or whether due diligence was used; these being important only in interference proceedings, or where an issue of priority is raised. And neither are the dates of the applications of alleged anticipating patents of any account in such a case; a patent taking rank as a publication, negativing novelty, only when it comes out, and a mere application having no such effect.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 51-53; Dec. Dig. § 45.*]</p> <p>2. Patents (§ 108*) — Interference Proceedings — Issues Between Narrower and Broader Claims — Right of Successful Party to Appropriate Latter.</p> <p>Where application is made for a specific form of invention by one inventor, and the claims embodying the same are thrown into interference proceedings with generic claims in the pending application of another inventor, upon the issue of priority being decided in favor of the former, he is not entitled to the broader conception of the other, being confined to the particular mechanical construction for which he has declared. The fact that the device of which he was found to be the original and first inventor shut out the broader conception of the other did not make the latter, or the claims by which it was expressed, his.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 146; Dec. Dig. § 196.*] ,</p> <p>3. Patents (§ 106*) — Interference Proceedings — Right to Appropriate Issues.</p> <p>Where, therefore, in an application for a typewriting machine, the invention as described in the specifications consisted substantially in mounting the type-bar series in a rocking cradle, arranged to carry both type bars and keyboard, by means of which the type bars were shifted vertically, according as one type or the other was to be brought to the printing point, a rocking frame or cradle, carrying keyboard and type bars, and shifting the latter vertically, was of the essence of the invention, and anything outside of and beyond this could not be consistently claimed. The issues in interference proceedings, taken from the application of another inventor, in which a vertical shifting of the type-bar frame, without more, was broadly claimed, could not, merely because of the interference proceedings being decided in favor of the narrower invention, be written into the application therefor.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 146; Dec. Dig. § 106.*]</p> <p>4. Patents (§ 120*) — Reissue—Enlargement by- Amendment of Later Patent —Improvements.</p> <p>A reissue is ordinarily the only remedy when a patent is found not to be expressive of an invention to its full breadth. An enlargement of it is not to be effected by the engrafting of broad claims upon a later patent,' based upon an application of narrow scope, particularly where the second patent is applied-for as an improvement on the first; it not being the office of an improvement to enlarge or broaden, but only to better in detail.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 172; Dec. Dig. § 120.*]</p> <p>5. Patents (§ 120*) — Successive Patents — Too Broad to be Following Narrower First — Co-Pending Application.</p> <p>Where an application, in which an invention is expressed broadly, is pending at the same time with one upon narrower lines, the taking out of the latter does not necessarily preclude the subsequent allowance of tlie other in broader form. As, for instance, (a) where the application for a broad patent ivas made first, aud is delayed by the Patent Office through no fault of the inventor; or (b) where the later generic patent and the earlier specific one bear a divisional relation, the two being in effect one: but not (c) necessarily where one is a continuance of the other, particularly where the later patent is in terms for an improvement on the other and conforms strictly to that idea.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. § 172; Dec. Dig. § 120.*]</p> <p>6. Patents (§ 120*)— Attempted Broad Construction op Dateb Patent — Double Patenting.</p> <p>Where, therefore, an earlier patent, with specific narrow claims, is allowed to come out, and after it has issued, claims of alleged broad or generic scope are brought in by way of amendment to another patent, which is axiplied for ns an improvement on the first, the claims of the second patent, if construed broadly, being conflicting with and anticipated by tbo first patent, are void as amounting to a second patenting of the same invention, which the law does not allow, a result which the copendency or overlapping of the second application is powerless to prevent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 172; Dec. Dig. § 120.*]</p> <p>7. Patents (§ 328*) — Infringement—Typewriting Machine.</p> <p>The Daugherty patent, No>. 481,477, for a typewriter of the type in which the writing is visible when being written, claims 37 and 38, the dominating feature of the device being the vertical shifting of the type-bar frame to bring into position one or the other of the different kinds of type carried thereby, while generic in form, must bo limited, in view of a prior patent to the same inventor, to the specific means disclosed for shifting such frame. While not anticipated by anything in the prior art as so construed, field not infringed by the defendants’ device.</p> <p>[Ed. Note. — For other cases, see Patents-, Dec. Dig. § 328.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Patents (§ 138*) — Reissue—Time of Making Application.</p> <p>Where a suit on ¡i patent was commenced within 15 months after its issue, and within 10 days after it was adjudged invalid by the Circuit Court of Appeals a reissue was applied for which narrowed the scope of the original patent, and it appeared that a decision as to the validity of the original patent was reasonably necessary to establish the necessity for a reissue, the application therefor was made within a reasonable time.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 138.*</p> <p>Time for application for reissue, see note to United Blue-Flame Oil Stove Co. v. Glazier, 55 O. C. A. 560.]</p> <p>2. Patents (§ 141*) — Reissue—Identity of Invention.</p> <p>Where an original patent was for a method and held invalid because broader than the invention, a reissue covering a machine by which such method, and only that, can be practiced, is not invalid as not for the same invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dee. Dig. § 141.*]</p> <p>3. Patents (§ 328*) — Reissue—Validity—Machine fok Clipping Glass.</p> <p>The Conroy reissue patent No. 12,789 (original No. 723,139) for a machine for clipping the edge of glass articles is valid.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. Suit by Ambrose P. Gaines and Edwin R. Cox, Jr., against the Alabama Consolidated Coal & Iron Company and others as its officers for infringement of letters patent No. 760,189 for plant for feeding metallurgical furnaces, dated May 17, ¿904, granted to Ambrose P. Gaines and Edwin R. Cox, Jr. On demurrer to bill.

<p>In Equity., Suit by the Wilson Trolley Catcher Company against Erank Ridlon Company and others.</p>

<p>In Equity. Suit by Excelsior Drum Works against Sheip & Vandegrift, Incorporated, for infringement of patent. On final hearing.</p>

<p>1. Patents (§ 312*) — Suit tor Infringement — Title of Complaint.</p> <p>Evidence held sufficient to establish complainant’s title by assignment to the patent, in suit.</p> <p>TKd. Note. — For other cases, see Patents, Cent. Dig. § 518; Dec. Dig. § 3 ¡2.*]</p> <p>2. Patents (§ 328*) — 'Validity and Infringement — Blue-Print Machine.</p> <p>The Pullman patent, No. 771,771, for an apparatus for copying drawings, was not anticipated, and discloses invention; also held infringed.</p> <p>[bid. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>In Equity. Suit by the Duntley Manufacturing Company against • the Keller Manufacturing Company. On motion to strike off plea.</p>

<p>1. Vendor and Purchaser (§ 31*) — Contract of Sale — Validity of Assent-Rescission fob Mistake.</p> <p>To warrant the rescission by a court of equity of an executed contract for the sale of land on the ground of mutual mistake, the mistake must be material and so important that, if it had not been made, complainant would not have made the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 35-37; Dec. Dig. § 31.*]</p> <p>2. Vendos and Purchases (§ 31*) — Contract of Sale — Validity of Assent— Rescission for Mistake.</p> <p>A purchaser of real estate is not entitled to a rescission of the contract in equity on the ground of a mistake of fact, where there was no misrepresentation, and the means of ascertaining the true facts were open to ' complainant equally with defendant, and he did not make use of them.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 35-37; Dec. Dig. § 31.*]</p> <p>3. Vendor and Purchaser (§ 31 *) — Contract of Sale — Validity of Assent-Rescission tor Mutual Mistake.</p> <p>Complainants, who were husband and wife, purchased from defendant a residence property in Asheville, N. C., where the wife intended lo reside temporarily on account of poor health. The chief consideration which led to the selection of such property was its location and the adaptability ot the house to the wife's needs. Defendant delivered a deed which described the boundaries of the lot. and which complainants had examined by an attorney. A subsequent survey disclosed that the western boundary at the back end of the lot was further to the eastward than was supposed by either party, and ran through the barn which had been built by defendant. No willful misrepresentation by defendant was claimed. Held, that the mistake as to the line did not entitle complainants to a rescission of the contract, since they had an opportunity to ascertain the true boundary before completing the purchase, and it did not appear that if it had been known it was' of such importance that they would have refused to take the property.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 36; Dee. Dig. § 31.*]</p>

<p>Railroads (§ 169*) — Mortgages—Right of Mortgagee to Income.</p> <p>A mortgagee of tbe property of a railroad company, to which its income is also pledged by tlie mortgage, is not entitled to such income until it takes or demands possession of the property or secures the appointment of a receiver.</p> <p>[Ed. Note. — Eor other eases, see Railroads, Cent. Dig. §§ 536-548; Dec. Dig. § 169.*]</p>

<p>In Admiralty. Action by Stanislaus A. Riley, as administrator of the estate of Josephine C. Irelan, against the Vallejo Ferry Company.</p>

<p>1. Courts (§ 294*) — Federal Courts — Jurisdiction—Laws of United States.</p> <p>Rev. St. § 5200 (U. S. Comp. St. 1901, p. 3494), limits the total liabilities of any person, firm, or corporation to a national bank to not more than one-tenth of the bank’s paid-in capital stock, and section 5239 (U. S. Oomp. St. 1901, p. 3515) provides that every director participating in or. assenting to a violation of the act shall be liable in his personal and individual capacity for' all damages which the association and stockholders or any other .person .shall sustáin in consequence, thereof. Held, that a suit by a stockholder of a national bank for its benefit against the bank, its officers, and directors having charge of its assets individually, alleging that they had made excessive loans of the bank’s funds to irresponsible and insolvent borrowers without adequate security in violation of the act, and that the-bank after proper notice and demand had failed to bring the action, involved the construction of the national bank act,' and was therefore a suit arising under the laws of the United States, of which the federal courts had .jurisdiction, though there was no diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 294.*]</p> <p>2. Courts (§ -279*) — Federal Courts — Jurisdiction—Federal Question..</p> <p>The existence of ■ a federal question sufficient to sustain federal jurisdiction must appear from complainant’s statement of his own cause of action, without aid of any allegation as to what defendant claims.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 279.*</p> <p>Jurisdiction in cases -involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Mining Co., 35 C. C. A. 7.]</p>

Action bv John Williams against the Central Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Williams sued the coal company for damages resulting from personal injuries sustained by him while mining coal in a mine operated by the company.

<p>In Error to the Circuit Court of the United States for the Western District of Arkansas.</p> <p>Action by William Penny and Ben Hubbard, trustees of Cherokee Chapel Church, against the Central Coal & Coke Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Shipping (§ 54*) — Bailee por Hire of Scow — Liability for Injury of Vessel.</p> <p>Bailees for hire of a scow, bound to exercise ordinary care to protect her from injury, are not liable for her injury by being pierced by a timber standing upright in the bottom under her, where she lay while being unloaded, where the place had been dredged and swept for obstructions but a month before by the city, andwhere their own vessel, which was larger, had safely lain in the same position only five days before.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 219, 220; Dec. Big. § 54.*]</p>

Suit in equity by Elwood D. Eulton against T. Marcellus Marshall and others. To a cross-bill filed by Marshall, making them parties, John Patton and Thomas L. Evans demurred. From an order overruling the demurrer and granting an injunction staying an action in a state court, they appeal.

Action by Alfred Summers, special administrator of the estate of Hattie Magar, deceased, and others, against the St. Louis & San Francisco Railfoad Company. Judgment for plaintiffs, and defendant brings error.

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

In Equity. Suit by the Sirocco Engineering Company against the B. F. Sturtevant Company for infringement of reissued letters patent Nos. 12,796 and 12,797 (original No. 662,395), for a centrifugal fan or pump granted to Samuel C. Davidson. On demurrer to amended hill.

<p>1. Constitutional Law (§ 128*) — Obligation or Contracts — Contract with City.</p> <p>Where a city, having power to do so, entered into a contract with a water company, granting a franchise and fixing charges which might be made to consumers, and also providing the mode by which such charges might be changed from time to time after a fixed term, such provision was a material part of the contract, which could not be impaired or affected by a subsequent state statute providing a different mode of establishing rates generally.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 372-379; Dec. Dig. § 128.*]</p> <p>2. Waters and Water Courses (§ 203*) — Jurisdiction—Fixing Water Rates.</p> <p>A court of equity is without power, at suit of a city, to fix the rates to be charged by a water company in the future, which is not a judicial function.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 292; Dec. Dig. § 203.*]</p>

<p>In Equity. Suit by the Doddridge County Oil & Gas Company against Smith and another. On exceptions of complainant and defendants to report of special master.</p>

On Final Hearing. Interpleader by the Mutual Life Insurance Company of New York against the Farmers’ & Mechanics’ National Bank of Cadiz, Ohio, the administrator of M. J. Brown, deceased, and others.

<p>1, Conspiracy (§ 45*) — Criminal Prosecution — Evidence.</p> <p>On a trial for criminal conspiracy, in deteryiining whether a conspiracy was formed and whether acts were done to effect the same, the acts and conduct of a defendant not on trial may be considered in connection with those of the defendant or defendants on trial.</p> <p>■ [Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. § 102; Dec. Dig, § 45.*]</p> <p>2. Conspiracy (§ 47*) — 'Criminal Prosecution — Evidence.</p> <p>In prosecutions for criminal conspiracy it is as competent to prove the conspiracy by circumstances as by direct evidence, hut proof of the combination charged must almost always he extracted from the circumstances connected with the transaction which -forms the subject of the accusation.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 106; Dee. Dig. § 47.*]</p> <p>3. Conspiracy (§ 47*) — Federal Statute — Sufficiency of Evidence.</p> <p>A charge under Rev. St. § 5440 (II. S. Comp. St. 1901, p. 3676), of conspiracy between officers of a national bank to embezzle, abstract, or willfully misapply its funds in violation of section 5209 (U. S. Comp. St. 1901, 1>. 3497), is supported by evidence That, acting together with a common understanding, defendants largely overdrew their respective accounts with the bank, to such an extent that they were wholly unable to meet the same, as they must have known, and that, to cover up such overdrafts, by a common understanding they placed worthless notes in the bank with the intent and result of injuring and defrauding the bank and impairing its capital.</p> <p>[Ed. Note. — For other eases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*]</p> <p>4. Criminal Daw (§ 312*) — Evidence—Intent.</p> <p>Persons charged with crime will be held to have intended the necessary, usual, and actual result of their acts, and such presumption is not overcome by their testimony merely' that they had no wrongful intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 26, 27: Dee. Dig. § 812.*]</p> <p>5. Conspiracy (§ 28*) — Federal Statute — Embezzlement by National Bank Officers — Defenses.</p> <p>The most formal vote of the directors of a national bank cannot authorize the embezzlement, abstraction, or willful misapplication of its funds by an officer, and will not constitute a defense to a prosecution for conspiracy to commit such offense.</p> <p>[Ed. Note.- — For other cases, see Conspiracy, Cent. Dig. § 41; Dec. Dig. § 28.*]</p> <p>6. Criminal Daw (§ 150*) — Federal Statute — Limitation of Prosecution.</p> <p>Limitation does not begin to run against a prosecution for conspiracy between officers of a national bank to embezzle, abstract, or willfully misappropriate its funds so long as the conspiracy continues or acts to effect, its object are committed.</p> <p>[Ed. Note. — For other ca ses, see Criminal Law, Cent. Dig. § 275; Dec. Dig. § 150.*]</p> <p>7. Conspiracy (§ 38*) — Femoral Statute — Violation of National Banking Daw — Defenses.</p> <p>, It is not a defense to a prosecution for conspiracy between officers of a national bai^k to embezzle, abstract, or willfully misappropriate its funds by' means of excessive loans or overdrafts for their benefit that the Comptroller of the Currency did not do all he might have done to compel a correction of such irregularities.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Dec. Dig. § 38.*]</p>

<p>In Admiralty. Libel by the Société Nouvelle D’Armement, as owner of the French bark Boieldieu, against the steamer Santa Rita for damages.</p>

<p>In Equity. Suit by MiDer Freeman against The Trade Register, Incorporated. On final hearing.</p>

<p>Demurrer to an indictment of the Newark Meadows Improvement Company and others for illegally dumping “two pockets of mud5 into the “tidal waters of the lower bay of the New York Harbor and its adjacent waters” at a place 2% miles from the Sandy Hook shore and one-quarter of a mile east-southeast of the inner South Channel Buoy.</p>

<p>In the matter of Abrams & Rubins, bankrupts.</p>

<p>Action by D. W. Hazle against the Southern Pacific Company.</p>

<p>In Error to the District Court of the United States for the District of Colorado.</p> <p>Charles O. Erbaugh was convicted of using the mails to defraud, and brings error.</p>

Suit by the Coastwise Transportation Company, as owner of a schooner, against the steamship Edda, Christopher P. Meidell, claimant, for collision. Decree for respondent, and libelant appeals.

<p>í. Bankruptcy (§ 72*) — Corporations Subject to Act — Nature of Corporate Business.</p> <p>Where the business of a corporation, as stated in its charter, included some pursuits which are within and others which are without the operation of the bankruptcy law, whether or not it is subject to the act depends on the principal business in which it was actually engaged at or about the time the petition was filed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Big. § 17; 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>2. Bankruptcy (§ 72*) — Corporations Subject to Act — Nature of Corporate Business — “Manufacturing Pursuit.”</p> <p>The conducting by a corporation of a shop for the repairing of automobiles, which repairing consisted chiefly in the adjusting of parts purchased from other persons, was not a manufacturing pursuit, within the meaning of Bankr. Act 1898, c. 541, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), which subjected the corporation to proceedings in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 17; Dec. Dig. S 72.*]</p>

<p>L Commerce (§ 27*) —Federal Safety Appliance Act — Construction and Scope.</p> <p>The federal safety appliance act of 1893 (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as amended by Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), applies to a railroad which takes part in the transportation of articles of interstate commerce on any part of the way to their point of final destination, although operated wholly within a single state, independently of connecting lines, and without any traffic arrangement with them.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 27.*]</p> <p>2. Commerce (§ 27*) — Federal Safety Appliance Act — Construction.</p> <p>Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), which in terms applies to “any common carrier engaged in interstate commerce by railroad,” is not limited by the provisions of Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), which expressly apply only to carriers “under a common control, management, or arrangement for a continuous carriage or shipment”; the two acts, having entirely distinct purposes and providing remedies for different evils, not being in pari materia in such sense that the provisions of one should control or limit the other.</p> <p>[Ed. Note. — For oilier cases, see Commerce, Dec. Dig. § 27.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>Bill by the Atchison, Topeka & Santa Fé Railway Company against John R. Sullivan, Treasurer of Bent County, Colo., and others. From a decree dismissing the bill, complainant appeals.</p>

<p>I. Maritime Liens (§§ 60, 74*) — -Jurisdiction--Federal and State Courts.</p> <p>(1) For foreign repairs and supplies for a vessel there arises a lion, apart from statute, enforceable in rem in a court of admiralty, and not so enforceable in the state courts. (2) For domestic repairs and supplies there is no lien, apart from statute, except a possessory lion; but a state statute may give a maritime lien for them, enforceable in rem in a court of admiralty, and not so enforceable in the state courts. (8) For construction there is no lien apart from statute; but a state siatute may give a lien, not ordinarily enforceable, in rem or otherwise, in a court of admiralty, but enforceable in the state courts by proceedings which are undistinguishable from proceedings in rem, and also enforceable under certain conditions in federal courts.</p> <p>(Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 98, 111 ; Dec. Dig. §§ 60, 74.*</p> <p>Liens created by state laws, see note to The Electron, 21 C. C. A. 21.]</p> <p>2. Shipping (§ 32*) — Mortgage op Vessels — After-Acquired Property Clause.</p> <p>A mortgage given by a steamship company, covering all the vessels it then owned and all it should afterwards acquire, cannot bind after-acquired vessels, as against liens given by statute for their construction.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 105, 106; Dec-Dig. § 32.*]</p> <p>3. Maritime Liens (§ 71*) — Statutory Liens — Scope and Mode op Enforcement.</p> <p>Gen. St. N. J. 1895, p. 1960 (Act March 20, 1857 [P. L. p. 382]; Act March . 20, 1878 [P. L. p. 158]; Act April 24, 1884 [P. L. p. 248]), which provides that a debt contracted for the building, repairing, fitting, furnishing, or equipping of a vessel “shall be a lien upon such ship or vessel * * *</p> <p>and continue to be a lien on the same until paid,” as construed by the courts of the state, creates a positive lien, enforceable in any court of equity by appropriate proceedings; the procedure prescribed therein not being exclusive.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 109; Dec. Dig. § 71.*]</p> <p>4. Maritime Liens (§§ 17, 74*) — Statutory Liens — Construction of Vessel. —Enforcement of Lien.</p> <p>Gen. St. N. J. 1895, p. 1960 (Act March 20, 1857 [P. L. p. 382]; Act March 20, 1878 [P. L. p. 158]; Act April 24, 1884 [P. L. p. 248]), which makes a debt contracted for the building of a vessel a lien thereon, which shall continue a lien until paid, is constitutional and valid, and applies to vessels owned outside of the state, but the unfinished hulls of which were brought therein for completion by equipment with machinery, and gives the builder a right of property in such vessels, which follows them into another jurisdiction, and is there enforceable according to the rules-of the chancery courts, where the.statute is not in conflict with the public policy of the state in which it is so sought to enforce it.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 22, 111;; Dec. Dig. §§ 17, 74.*]</p>

Petition to Review and Appeal from Order of the District Court of the United States for the Eastern District of New York. In the matter of the American Knit Goods Manufacturing Company, a bankrupt. On petition of Harding, Whitman & Co. for rescission of certain contracts of sale, and for the return of merchandise delivered to the bankrupts thereunder. The District Court denied the relief prayed (155 Fed. 90G), and petitioner filed a petition to review, and appealed.

<p>1. Bankruptcy (§ 108*) — Proceedings in Opposition to Discharge — Specifications op Objection.</p> <p>A specification of objection to the discharge of a bankrupt on the ground that he made a false oath to his schedules is sufficient, where it alleged that such schedules contained no mention of certain stocks, or of any interest therein or claim against any third person on account of the same, ■ but that shortly after the adjudication the bankrupt commenced a suit to recover such stocks from one to whom he alleged that he had pledged the same and claiming to be their owner; and proof of such allegations and of the bankrupt’s ownership of the stocks subject to the rights of the alleged pledgee is sufficient to bar his right to a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 733; Dec. Dig. § 408.*]</p> <p>2. Bankruptcy (§ 414*) — Proceedings in Opposition to Discharge — Measure op Proop.</p> <p>To justify the denial of a bankrupt’s discharge on the ground that he made a false oath to his schedules, the evidence must be of sufficiently clear and convincing character to overcome the presumption of his honesty ; but it is not required to be of the high degree necessary to sustain a conviction for perjury.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 722; Dec. Dig. § 414.*]</p> <p>3. Bankruptcy (§ 408*) — Grounds por Refusal op Discharge — False Oath.</p> <p>To justify the omission by a bankrupt of property, from his schedule on the ground that he acted on advice of counsel, it must be shown that lie fully and fairly stated the facts to his counsel, and acted on his opinion on a matter of law only.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 733; Dec. Dig. § 408.*]</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Western District of Washington.</p> <p>Action by the Willapa Lumber Company against J. J. Johnson. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents (§ 310*) — Sutt for Infringement — Sufficiency of Bile.</p> <p>A bill for infringement of a patent need not allege that the invention' had not been abandoned before the granting of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-513; Dec. Dig. § 310.*]</p> <p>2. Patents (§ 310*) — Suit for Infringement — Pleading—Profert of Patent.</p> <p>An insufficient averment of the formal requisites of a patent in a bill for its Infringement is cured by profert of the patent, w'liieh makes it a part of the bill for purposes of a demurrer.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 515; Dec. Dig. § 310.*]</p> <p>3. Patents (§ 310*)- — Suit for Infringement — Sufficiency of Biel.</p> <p>A bill for infringement of a patent is not bad because it alleges on information and belief only matters which are not required to be alleged at all.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 310.*]</p> <p>4. Patents (§ 310*) — Suit for 1 n fren gem ent — Suffi c fenoy of Btix.</p> <p>An allegation of infringement in a bill for infringement of a patent held sufficient.</p> <p>[Ed. Noto. — For other eases, see Patents, Cent. Dig. § 511; Dec. Dig. § 310.*]</p> <p>5. Patents (§§ 289, 310*) — Suit fob Infringement — Defenses—Laches.</p> <p>In a suit for infringement of a patent, laches is a defense, and cannot be raised by demurrer, unless it affirmatively appears on the face of the bill.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 468; Dec. Dig: §§ 289, 310.*</p> <p>Laches as defense in suit for infringement, see notes to Taylor v. Sawyer, Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>6. Courts (§ 347*) — Pleading—Formal Requisites of Bill.</p> <p>A bill in equity in a federal court is not demurrable because not signed .or verified by complainant, neither being required by the rules.</p> <p>[Ed. Note. — For other oases, see 'Courts, Dec. Dig. § 347.*]</p> <p>7. Patents (§ 310*) — Suit fob Infringement — Multifariousness of Bill.</p> <p>A bill for infringement of a patent against two or more defendants, who are charged with infringement severally, is multifarious.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 518; Dec. Dig. § 310.*]</p>

<p>In the matter of Everybody’s Grocery & Meat Market, alleged bankrupt. On demurrer to petition.</p>

<p>At Law. Action by Mary Agnes Walsh, administratrix, against the New York, New Haven & Hartford Railroad CompanjL On demurrer to declaration.</p>

<p>Action by Michael J. Houlihan against the Corporation of St. Anthony in New Bedford. On appeal from clerk’s.taxation of costs.</p>

<p>1. Shipping (§ 132*) — Damage to Cakgo — Seawokthiness oe Vessel — Evidence.</p> <p>Evidence considered in an action to recover for damage by sea water to a cargo of cement on a voyage from Sweden to San Francisco around Cape Horn, and held not to sustain the claim of libelant that the ship was rendered unseaworthj' by improper stowage, but to sustain the contention of claimant that the damage was caused by perils of the sea, within the exception in the bill of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 132.*</p> <p>Loss by perils of the sea, see notes to The Dunbritton, 19 C. C. A. 465: Southerland-Innes Co. v. Thynas, 64 C. C. A. 118.]</p> <p>2. Evidence (§ 574*) — Opinions—Weight.</p> <p>The testimony of credible witnesses, vvho were on the ship, that she did not in fact behave as a stiff ship during her voyage, is entitled to more weight than the opinions of expert witnesses to the contrary, based upon the manner in which the vessel’s cargo was stowed.</p> <p>[Ed. Note. — -For other eases, see Evidence, Dee. Dig. § 574.*]</p>

<p>Aliens (§ 59*) — Importation of Women for Purpose oe Prostitution — Criminal Prosecution — Defenses.</p> <p>In a prosecution for tbe importation of an alien woman for tbe purpose of prostitution, in violation of Act Eeb. 20, 1007, e. 1134, § 3, 34 Stat. S09 (U. S. Comp. St. Supp. 1907, p. 392), it is not a defense tbat such woman had previously been domiciled for a time in the United States and had departed therefrom with the intention of returning.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 59.*]</p>

<p>Criminad Law (§ 027%*) — Impeachment or Indictment — Right to Inspect Minutes op Grand Jury.</p> <p>A defendant, indicted by a grand Jury, is not entitled to an inspection of its minutes to ascertain the sufficiency of the evidence on which the indictment was based, since, if insufficient, the court has no power to grant redress.</p> <p>[Ed. Note. — -For other cases, see Criminal Law, Cent Dig. § 1431; Dec. Dig. § 0271/2.*]</p> <p>Indictment of Emile Violon for violation of Immigration Act Feb 20, 1907, c11134, § 3, 34 Stat. 899 (U. S. Comp. St. Supp. 1907, p. 392). On motion for inspection of minutes of grand ■ jury. Motion denied.</p>

<p>1. Equity (§ 105*) — Parties—Joindek op Complainants.</p> <p>Several property owners may join in a bill in equity on behalf of themselves and all others similarly situated to enjoin the collection of an illegal tax, which affects all of the complainants alike; their interests being common, if not joint.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 268-270; Dec. Dig. § 105.*]</p> <p>2. Equity (§ 148*) — Pleading—Multifakiousness.</p> <p>A bill to enjoin the collection of illegal taxes is not multifarious, because it includes taxes levied for different purposes, where all are subject to the same infirmity, and the bill has a single purpose, which is to have all such taxes adjudged illegal.</p> <p>[Éd. Note. — For other cases, see Equity, Cent. Dig. §§ 341-367; Dec. Dig. I 148.*]</p> <p>3. Taxation (§ 25*) — Natuke op Powek.</p> <p>The power to determine what persons and property shall be taxed belongs exclusively'to the legislative branch of the government, and whether exercised by the Legislature itself, or delegated to a municipal corporation, is strictly a legislative power.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. § 25; Dec. Dig. § 25.*]</p> <p>4. Constitutional Law (§§ 209, 251*) — “Due Process op Law” — Scope of Constitutional Guaranty.</p> <p>The provisions of the fourteenth constitutional amendment, that no state shall deprive any .person of life, liberty, or property without “due process of law,” nor deny to any person the equal protection of the laws, refer to and include all the instrumentalities of the state, to its legislative, judicial, and executive authorities; and whoever by virtue of public position under the state deprives another of any right protected by that amendment violates its inhibition, and his act is that of the state.</p> <p>[Iíd. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 678, 7S2; Dec. Dig. §§ 209, 251.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2227-2256; vol. 8, p. 7644.]</p> <p>5. Courts (§ 282*) — Jurisdiction of Federal Courts — Federal Question.</p> <p>The exercise by a city council of the taxing power delegated to it by the Legislature is the act of the state, within the fourteenth constitutional amendment, and a person who is thereby deprived of property without due process of law may invoke tlie jurisdiction of a federal court on the ground of a violation of such amendment; but, where such action is without the authority of or contrary to state law, no question arises under the Constitution which gives such court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-824; Dec. Dig. § 282.*</p> <p>Jurisdiction in cases involving federal questions, see notes to Bailey v. Mosher, 11 C. O. A. 308;. Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C, A. 7.]</p> <p>6. Courts (§ 282*) — Jurisdiction of Federal Courts — Federal Question.</p> <p>Where a city is vested with authority to levy taxes generally for municipal purposes, in exercising such power in a manner or for a purpose not expressly prohibited by statute, it acts as an instrumentality of the state, and its action must be deemed to have been taken with the sanction of the state; and, if it deprives a person of property without due process of law, a suit by him to protect his rights is one arising under the Constitution, and within the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-824; Dec. Dig. § 282.*]</p> <p>7. Taxation (§ 608*) — Jurisdiction—Lack of Adequate Remedy at Law.</p> <p>A hill for an injunction to restrain the collection of an alleged illegal tax, which alleges that a sale of real estate is threatened, and shows that there is no adequate remedy at law, states a case of equitable cognizance.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1230-1211; Dec. Dig. § 60S.*]</p>

<p>In Admiralty. Action by the administrators of A. Danenberg, deceased, against owners of the tug Nimrod, to recover damages for the death of libelants’ intestate, in collision.</p>

At Law. Action by George C. Cound against the Atchison, Topeka & Santa Pé Railway Company. On plea to jurisdiction. The purpose of this suit — brought originally in this court — was to recover damages of the defendant, in excess of $2,000, for injuries alleged to have been received by the plaintiff in the territory of New Mexico, while engaged in the discharge of Ms usual duties as brakeman on a freight train.

<p>L Shipping (§ 181*} — Demurrage—Arrival of Vessel — Construction of Charter Party.</p> <p>A schooner was under charter providing that her lay days for loading should commence “from the time the vessel is ready to receive * * * cargo and notice thereof is given. * * * Vessel to take turn in load-</p> <p>ing * * * if required.” She arrived in the loading port and gave notice of lier readiness ‘to receive cargo. The only berth fitted to load her cargo was owned and controlled by the charterer, and she was required to await her turn, which involved a delay of several days. Held, that her lay days commenced from the time she arrived and gave notice.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. § 592; Dec. Dig. § 181.*</p> <p>Demurrage, see notes to Harrison v. Smith. 14 C. O. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>2. Shipping' (§ 171*) — Demurrage — Practical Construction' of Charter Party by Parties.</p> <p>Where, after a vessel was loaded, upon a question of demurrage arising, the charterer’s agent, under authority from his principal to indorse upon the bills of lading “when lay days commence and when vessel loaded,” indorsed such dates, which were accepted by the master, such action amounted to a practical construction of the charter party by the párties. which was entitled to great, if not controlling, influence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. § 568; Dee. Dig. § 171.*]</p>

<p>In Admiralty. Libel by Andrew Anderson and others, as owners of the ship Columbia, against J. J. Moore & Co. to recover demurrage.</p>

<p>In Admiralty. Libel by J. Ludwig Mowinclcel, as owner of the steamer Rygja, against James Dewar and others for demurrage.</p>

<p>1. Courts (§ 344*) — Federal Courts — Procedure—Determination of Validity of Process.</p> <p>The validity of the service of a summons must he determined by a federal court on general principles of jurisprudence, in the absence of any statute or established judicial rule in the state to render the federal conformity statutes applicable.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 017; Dee. Dig. § 344.*]</p> <p>2. Process (§ 119*) — Validity of Service — Nonresident—Attendance on Criminal Case.</p> <p>Under the rule of a majority of the federal courts, a nonresident, who comes into a state for the sole purpose of appearing before a court in which he is charged with a crime, in obedience to a recognizance previously given by him, is exempt from service of summons in a civil action while in such attendance, or before he has secured further bail required by the court.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 149; Dec. Dig. § 110.3]</p>

In Equity. Suit by the Citizens’ Savings & Trust Company and another against the Illinois Central Railroad Company and others. On demurrers to bill by defendants Illinois Central Railroad Company and United States Trust Company.

<p>In the matter of Samuel Fritz, bankrupt. On petition to vacate order of discharge.</p>

<p>1. Insurance (§ 645*) — -Marine Insurance — Action on Policy — Pleading.</p> <p>In an action on marine insurance policies, a breach of any of the warranties made therein by the insured is matter of defense, to be pleaded and proved by respondent.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 645.*]</p> <p>2. Insurance (§ 272*) — Marine Insurance — Construction of Warranty.</p> <p>A provision in a marine insurance policy reading, “Vessel warranted emxiloyed in the general passenger and freighting business on Puget Sound,” relates to present and not future employment; and the fact that the vessel was out of commission at the particular time of a loss is not a breach of such warranty, which will defeat a recovery on the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 272.*]</p> <p>3. Insurance (§ 470*) — Marine Insurance — Notice of Abandonment.</p> <p>Notice of abandonment of a vessel to the insurers, reciting the acts done by the owners in raising the vessel after she sank and that they considered her a constructive total loss, specifies a valid ground for abandonment.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1214; Dec. Dig. § 470.*]</p> <p>4. Insurance (§ 470*) — Marine Insurance — Abandonment—Waiver.</p> <p>The unexcused failure of the owners of a vessel to give notice of abandonment to the insurers until four months after she sank, and two months after, she had been raised and cleaned and in condition for a survey, was a waiver of the right to abandon for a constructive total loss.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1218; Dec. Dig. § 470.*]</p> <p>5. Words and Phrases — “Employed.”</p> <p>The word “employed” is a verb of past or present tense, and cannot be accurately used potentially to indicate future action, unless qualified by additional words.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2377-23S0; vol. 8, p. 7649.]</p>

<p>Mines and Minerals (§ 35*) — Entry oe Coal Lands — Validity.</p> <p>Under Rev. St. § 2347 (U. S. Comp. St. 1901, p. 1440), which permits the' entry of coal lands by a qualified person or association, but in case of a person not exceeding 300 acres, and in case of an association not exceeding 320 acres, persons cannot lawfully associate themselves together to enter tracts of 160 acres each in severalty, but to be held for the joint benefit of all in equal shares, and patents issued on entries made under such an agreement will be canceled at suit of the United States.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 87; Dee. Dig. § 35.*]</p>

In Admiralty. Suits for collision by the schooner Marie Palmer and the schooner Blanche Hopkins, respectively, against the tug James McCaulley. On exceptions to report of commissioner.

<p>Removal oe Causes (§ 4*) — Nature oe Controversy — Action to Recover Penalty.</p> <p>Kirby’s Dig. Ark. § G813. provides that if any railroad company in the-state shall violate any of the provisions of the act of which it is a part, or any of the rules made by the State Railroad Commission for which there is no other penalty prescribed, it shall be liable to a penalty of not less than $500 nor more than $3,000 for each violation, to be recovered in an action brought, in the name of the state, by the prosecuting attorney of the proper district, Reid, that an action to recover such penalty, while civil in form, is in its nature criminal, and is not removable into a federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 13; Dec. Dig. § 4.*] p</p>

Action by Richard Templeton, trustee in bankruptcy of Frank J. Kehler, against H. Calvin Kehler. On motions for new trial and for judgment notwithstanding the verdict.

<p>Action by Richard Templeton, trustee in bankruptcy of Frank J. Kehler, against Charles R. Kehler. On motion by defendant for judgment notwithstanding the verdict.</p>

Suit by the United States Consolidated Seeded Raisin Company against Chaddock & Co. From a decree dismissing the bill, complainant appeals.

<p>1. Evidence (§ 458*) — Contracts—Intention of Parties.</p> <p>In an action on a written contract, by which defendant, who owned a hop farm, agreed to sell to plaintiff the crop on such farm for the ensuing two years, the defense was that it was orally agreed, both before and after the contract was signed, that it should be void or should terminate in case he should sell his land, and that he did sell it. Held, that it was not error to admit evidence of a similar understanding at the time of the making of a contract two years before between the same parties, and that on the sale by defendant of a part of his land the contract was modified accordingly, where the jury were instructed that such evidence was not to be considered on the question whether the contract in suit was modified, but only to aid in determining the condition of the minds of the parties when it was made, and the probability that the modification claimed would be assented to by plaintiff.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2083;. Dec. Dig. § 458.*]</p> <p>2. Estopped (§ 78*)- — Action for Breach — Defenses.</p> <p>Defendant entered into a contract to sell to plaintiffs the hops raised by him on his farm for Hie ensuing two years. Held, in an action to recover damages for breach of such contrae!, that defendant was entitled to show as an estoppel that it was agreed when and after the contract was made that it should terminate and not be enforced in case he sold his farm, and that when he contemplated such sale he was assured by plaintiff of the same thing, and made the sale in reliance on such assurance.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*]</p>

In the matter of the estate of William F. Thomas, bankrupt. From an order made on the cross-petition of Frank F. Lewis, trustee, Kate S. Thomas appeals. The Kansas City Coal & Coke Company was a corporation organized under the laws of Kansas by Charles J. Devlin and William E. Thomas, who held its entire capital stock. Its principal place of business was in Kansas City, Mo., where it maintained extensive coal yards situated upon the real property involved in this .proceeding.

<p>Petition to Revise Decree of the District Court of the United States for the Eastern Division of the Eastern District of Missouri, in Bankruptcy.</p> <p>In the matter of Lawrence Martin, bankrupt. On petition by George Bothe to revise an order holding a chattel mortgage invalid as to certain creditors.</p> <p>On June 2, 1906, Lawrence Martin executed and delivered to George Bothe a chattel mortgage, conveying to him certain personal property, including five wagons, to secure him against liability on an indorsement then made for Martin’s accommodation. The mortgaged property remained in the possession of the mortgagor, and the mortgage itself was not recorded, until June 4, 1907. Between the execution of the mortgage and its recording Martin became indebted to several persons for merchandise purchased of them, and subsequently on January 25, 1908, filed a petition upon which he was adjudicated .a bankrupt On February 5, 1908, Bothe filed a petition with the referee praying for the possession of the mortgaged property, claiming title thereto by virtue of his mortgage. Pending a hearing and determination of this petition, the court ordered a sale of the mortgaged chattels free of liens. This sale was made, and the proceeds were held subject to the same liens and preferential rights as the property itself had been. The mortgagee claimed them by virtue of bis mortgage, and the referee and the court below decided that the mortgage was absolutely void in so far as it attempted to convey the five wagons, and as to creditors of the bankrupt who extended credit 'to the bankrupt after the execution of the mortgage, and before it was recorded, that it was also invalid in respect of all the property attempted to be conveyed. This is a petition by the mortgagee for review, challenging that decision.</p>

<p>1. Stipulations (§ 14*) — Rules of Construction.</p> <p>A stipulation to settle controversies or to assist a court in deciding them ought not to be discouraged by a narrow and unreasonable construction that would defeat the manifest intention of one of the parlies, acceded to by the other.</p> <p>[Ed. Note. — For other cases, seo Stipulations, Cent. Dig. §§ 24-37; Dec. Dig. § 14.*]</p> <p>2. Corporations (§ 506*) — Rights of Stockholders — When Necessary Parties to Suit.</p> <p>Under Rev. St. Colo. 1908, § 865, which provides that each stockholder of a corporation shall have the right to nominate directors to be voted for, and to vote the number of shares held by him for as many directors as are to be chosen, or to cumulate the same upon ono or more candidates, and that directors shall not be elected in any other way, the right to elect directors is a right of the stockholders as such, as distinguished from the corporation, and the validity of a contract made by the corporation, giving another corporation the right to select a certain number of Its directors, should not be determined in a suit to which the stockholders are not parties, otherwise than as represented by the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. § 506.*J</p>

<p>Railboads (§ 833*) — Accidents at Crossings — Contributory Negligence— Duty to Stop, Look, and Listen.</p> <p>A man who in the (laytime walked upon a railroad crossing immediately in the way of an engine, which was backing toward the crossing at a speed of five or six miles an hour, and which was in plain sight as it approached, with nothing to obstruct his view, is as matter of law chargeable with contributory negligence, which precludes recovery for his death so caused.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1080-1083; Deo. Dig. § 333.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by John Karapa against the American Smelting & Refining Company. Judgment for plaintiff, and defendant brings error.</p>

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

Circuit Court of the United States for the District of Kansas. Action by Annie Simerson against the St. Louis & San Francisco Railroad Company. Judgment for defendant on directed verdict, and plaintiff brings error.

<p>Courts (§ 384*) — Federal Courts — Circuit Courts of Appeals — Determination oír Cause.</p> <p>Where facts have been found by the Circuit Court of Appeals and stated io ilie Supremo Court as a basis for asking its instructions, the court will not, after such instructions have been obtained, re-examine upon the identical evidence already considered controverted questions of fact which have been advisedly determined.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § 1021; Dec. Dig. § 384.*]</p>

<p>In Equity. Suit by the Victor Talking Machine Company against the Hawthorne & Sheble Manufacturing Company. On motion for leave to file supplemental bill.</p>

<p>Patents (? 328*) — Invention—Tendee fob Tbolucy Ropes.</p> <p>The 'Wilson patent, No. 597,159, for an automatic tender for trolley operating ropes, makes but a single change in the device of patent No. 563.-531 to the same patentee, which consists in making a stop spring connection between the end of the coil spring which' actuates the rope reel and the axle, instead of a permanent connection, which mode of connection was old for analogous purposes, and the patent is void for lack of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*</p>

<p>Patents (§ 328*) — Anticipation—Bracelet.</p> <p>The Hudson patent, No. 448,617, for a bracelet, consisting of a resilient hoop with the- ends inserted in grooves in a center piece, is void for anticipation.</p> <p>|.I3d. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Corporations (§ G6S*) — Foreign Corporations — Process—Service by Publication — New York Statute.</p> <p>Under Code Civ. Proc. N. Y. § 1780, which denies the right to sue a foreign corporation in certain cases unless the plaintiff is a resident of the state, as construed by the courts of the state, on an application in such a case for an order for service by publicátion under Code Civ. Proc. N. Y. § 439, an averment of such residence in the moving papers is jurisdictional, and it cannot be supplied by amendment.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2625; Dec. Dig. § 668*</p> <p>Service of process on foreign corporations, see notes to Eldred v. American Palace-Car Co. of New Jersey, 45 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p> <p>2. Appearance (§ 9*) — What Constitutes General Appearance — New York Statute.</p> <p>Under Code Civ. Proc. N. Y. § 421, which provides that a defendant’s appearance must be made by serving a notice of appearance or a copy of a demurrer or answer, tbe service of a notice of removal of a cause to the federal court, made by attorneys for a defendant, does not constitute a general appearance by the defendant.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. § 50; Dec. Dig. § 9.*]</p>

<p>Habeas corpus proceedings, on relation of Thakla Nicola and Bertha Gendering, respectively, against William Williams.</p> <p>These are two cases involving much the same question. In the first case a naturalized citizen left this country and went to Syria, a part of the dominions of the Sultan of Turkey, and there married the relator,. a subject of that potentate. After living some time in that country with her, he now brings her to the United States, and she has been stopped by the immigration authorities on the ground that she is suffering from trachoma, a disease which concededly would exclude her, if she be an alien. The question, therefore, arises as to whether she is a citizen, and so entitled, to admission.</p> <p>In the second caáe the relator immigrated into this country from Holland, and subsequently married a Dutchman, who was likewise an alien, and with whom she lived in.the city of New York. Thereafter shé left her husband and began living with a paramour. Subsequently she and her paramour went back to Holland, and while she was there her husband became a naturalized citizen of this country. She now seeks to return, and is stopped at Ellis Island on the ground that she is being imported for an immoral purpose.</p>

<p>In Equity. On settlement of order.</p>

<p>1, Receivers (§ 194'*) — Accounting and Compensation — Counsel Fees.</p> <p>The accounts oí a receiver and the manner of keeping them considered and approved, and allowances made for his services and counsel fees.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 194.*]</p> <p>2. Receivers (§ 92*) — Management oe Property — Conduct of Business.</p> <p>A receiver is not chargeable with a loss resulting from his conduct of a business, where it was done under directions of the court at the instance of parties in interest, and the loss was not due to any fault of his in management, and the business was kept track of and discontinued when it became apparent that it was not profitable.</p> <p>FEd. Note. — Eor other cases, see Receivers, Cent. Dig. § 1G9; Dec. Dig. § 92.*]</p>

<p>1. Receivers (§ 12S*) — Receivers’ Certificates — Expenses of Receivership —Priority.</p> <p>An order of a court of equity which has assumed the management of property through its receiver, authorizing the issuance of receivers’ certificates, to be a first lien oil the property, must be construed to give them priority over other liens only, and cannot be held to prevent the court from first paying the expenses of the receivership from the proceeds of the property when sold.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 219; Dec. Dig. § 128.*</p> <p>Nature of certificates, see note to Postal Telegraph Cable Co. v. Vane, 2G C. C. A.,, 350.]</p> <p>2. Receivers (§ 128*) — Insolvency Proceedings — Distribution of Fund-Priorities — State Taxes.</p> <p>Taxes due the state of Pennsylvania on the property of a corporation which by Act Pa. June 1, 1889 (P. D. 437) § 31, are made a lien from the time they are due and payable out of the proceeds of any judicial sale in preference to any judgment or lien, are payable from the proceeds of the company’s property when sold in foreclosure proceedings in advance of either liens or receivers’ certificates.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 219; Dec. Dig. § 128.*]</p> <p>3. Mechanics’ Liens (§ 201*) — Enforcement—Effect of Judgment.</p> <p>Under tlie law of Pennsylvania a judgment on a mechanic’s lien is conclusive of the indebtedness and the amount due, but leaves opon the question of tlie validity and standing of the lien which may be contested by oilier lienholders.</p> <p>I Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 608; Dec. Dig. § 291.*]</p> <p>4. Mechanics’ Liens (§ 240*) -Enforcement — Right of- Other Lten Creditors to Contest — Exclusiveness of Statutory Remedy.</p> <p>The remedy given by Act Pa. June 4, 1901 (P. L. 442) § 23, which authorizes any person interested to intervene in an action on a mechanic’s lien and contest the validity of such lien, is not exclusive, and does not debar other lien creditors from contesting the validity of such lien in another court which has tlie distribution of the fund produced by a sale of the property.</p> <p>riCd. Note. — For other cases, see Mechanics’ Liens. Cent. Dig. § 431 ; Dec. Dig. § 246.*]</p> <p>5. Mechanics’ Liens (§ 25*) — Construction As Distinguished from Repair of Building.</p> <p>Where the pulp mill of a paper company was destroyed by fire, contracts for rebuilding the same and installing machinery therein to adapt it to the use of a new and different process, the building being separate from the other buildings of the company and while operated in connection therewith being capable of independent operation, relate to tlie building of a new structure and not to tlie repair of an old one, within tlie meaning of the Pennsylvania mechanic's lien law of June 4, 190Í (P. D. 431).</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. pig. § 26; Dec. Dig. § 25.*]</p> <p>(i. Mechanics’ Liens (§ 132*) — Time for Filing Statement of Lien — Extension by Additions to Remedy Defects.</p> <p>Where, on the original completion and equipment of a pulp mill bjr the contractor, it failed to develop the capacity contemplated, the subsequent doing of work and putting in of new and additional appliances ill an attempt to bring it up to sueli capacity, the fault not being that of the contractor, operated to extend the time for the filing of a mechanic’s lien for the entire work, even though some of the new appliances were placed in a separate building, being designed to- supplement those within the building.</p> <p>[Ed. Note, — For other eases, see Mechanics’ Liens, Cent. Dig. § 200; Dec. Dig. § 132.*]</p> <p>T. Mechanics’ Liens (§§ 136, 186*) — Statement of Lien — Designation of Building — Manufacturing Pi,ant — Separate Buildings of — Curtilage.</p> <p>Under the Pennsylvania mechanic's lien law (Act June 4, 1901 [P. L. 432] § 2), which provides that “every structure or other improvement, and tlie curtilage appurtenant thereto, shall be subject to a lien," etc., tlie lien given is on the particular structure into which the labor or materials go, and its curtilage, and the fact that a new building .upon its erection becomes a part of a manufacturing establishment does not extend the lien for materials to all the buildings wliicb make up the plant, old as well as new. A statement of lien for tlie construction of such building is therefore invalid, unless limited to the new building alone, so that others may he advised of its extent by the record.</p> <p>Nor is this affected by the fact that the curtilage may properly include the whole plant, and if too much is claimed may be cut down by the court to what it should be: the question being one of specification and extent of lien and not of curtilage, which has first to be disposed of.</p> <p>|Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 215, 315; Dec. Dig. §§ 136, 186.*]</p> <p>8. Mechanics’ Liens (§ 108*) — Time of Commencement — Beginning of Work • —Preparatory Clearing Away of Ruins of Fire — Words and Phrases. —“Visible 'Commencement of the Work upon tiie Ground.”</p> <p>Under tlie Pennsylvania mechanic’s lien law (Act June 4,1901 [P. L. 4371 § 13), which provides that such liens, in case of original construction, relate back and take effect “as of the date of the visible commencement upon the ground of the work of building the structure or other improvement,” the mere delivery of materials on the ground or the tearing down of the ruins of a previous building destroyed by fire to clear the ground is not sufficient to fix the date of the lien, hut so much must he done of a permanent character, as by the making of a substantial part of the excavation for foundations, as will apprise observers that a building is in progress.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 300; .Dec. Dig. § 1G8.*]</p> <p>9: Receivers (§ 128*) — Distribution of Funds — Marshaling of Liens — Waiver of Priority by Superior Lien in Favor of an Inferior.</p> <p>That the holders of a mortgage, entitled to precedence over mechanics’ liens, waived their right to priority in favor of receiver’s certificates which were subsequent to such liens, does not entitle the mechanics’ liens to priority of payment over the receiver’s certificates from the proceeds of the property, where the fund for distribution is insufficient to pay the mortgage.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 219-222; Dec. Dig. § 128.*]</p> <p>10. Receivers (§ 128*) — Conflict of Distribution — Waiver by Superior in Favor of Inferior — Priority as Between Receivers’ Certificates, Mechanics’ Liens, and First Mortgage.</p> <p>■In Pennsylvania, where the lien of the first creditor is superior to that of the second, but inferior to that of the third, and the lien of the second is superior to- the third, the first creditor will take the fund because of his superiority to the second, by reason of the superiority of the second over the third. Where, therefore, a mechanic’s lien was inferior to a first mortgage to secure a bond issue, and the right of bondholders were waived in favor of receivers’ certificates made by order of court a first lien on the property, the fund, if not sufficient to satisfy the mortgage, will he awarded to the receivers’ certificates.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 219-222; Dee. Dig. § 128.*]</p>

<p>Collision (§ 39*') — Evidence.</p> <p>Collision off Governor’s Island between an ocean going steamer bound to sea and a steam lighter proceeding up the channel to Weehawken. Held, that the collision was entirely owing to faults of the lighter: (1) In. changing to the starboard after having obtained a safe place for navigation on the westerly side of the steamer, and (2) in failing to blow a navigating signal at the proper time.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 39; Dec. Dig. § 39.*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>(Syllabus by the Judge.)</p>

<p>1. Bankruptcy (§ 228*) — Referees—Review op Proceedings by Judge.</p> <p>Only such orders or findings of a referee in bankruptcy can be reviewed by the District Court as are asked to be reviewed by petition filed as pre scribed by General Order No. 27.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 228.*]</p> <p>2. Bankruptcy (§ 347*) — Liens—Power op Court to Displace.</p> <p>A court of bankruptcy has no power to take the proceeds of mortgaged property of the bankrupt, which belongs to the lien creditor, to pay the expenses of the general estate, or the expense of conducting the bankrupt’s business through a receiver or the trustee, without the consent of the lieu creditor, express or implied.</p> <p>[Ed. Note. — .For other cases, see Bankruptcy, Cent Dig. § 538; Dec. Dig. § 347.*]</p> <p>3. Bankruptcy (§ 347*) — Rights in Property Appected by Lien — Estoppel of Lienholder.</p> <p>A bank held the bonds of a bankrupt corporation, secured by mortgage on its property. Tbe receiver in bankruptcy procured an order authorizing •him to continue the bankrupt’s business, and on his subsequent appointment as trustee obtained a further order to continue the business, on petition in which- he showed a small profit from the previous operation and stated his belief that tbe business would at least hold its own. He made na further report for nearly a year, although the business was conducted at a large loss. Both orders were made without notice to the bank. EeU, that it was not estopped by tbe fact that its attorney was also attorney for tbe receiver and- trustee in procuring tbe orders, nor because its officers may have had knowledge that the bankrupt’s business was being continued, although not that it was losing money, to assert its claim to the proceeds of the mortgaged real estate, which was sold free of liens, as against the general expenses of the bankruptcy or the losses incurred In conducting the business.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 538*; Dec. Dig. § 347.*]</p> <p>4. Banketjctcy (§ 350*) — Diens—Priority.</p> <p>Under the law of Pennsylvania, a mechanic’s lien Is entitled to priority in bankruptcy over a mortgage of the property of a private corporation, executed and recorded before the date of the lien, but given to secure bonds which were not issued until afterwards, and then delivered to a single creditor to secure a past indebtedness.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 350.*]</p>

<p>1. Collision (§ 51*) — Precautions for Preventing Collisions — Overtaking Vessels.</p> <p>The duty rests upon an overtaking vessel to keep out of the way of the vessel ahead, and she is only entitled to pass at a time and place where it is suitable and safe, taking all factors into account, including the danger of suction.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 57-01; Dec. Dig. § 51.*</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p> <p>2. Collision (§ !>!}*) — Precautions top. Preventing Collisions -Officers and Lookout.</p> <p>It was negligent for the master of a steamer to navigate her down (he St. Clair river without a lookout, and with no officer in charge of her navigation, except a mate, who was also acting as wheelsman.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 211; Dec. Dig. § 90.*]</p> <p>3. Collision (§ 100*) — Overtaking Vessels — Burden of Proof as to Fault.</p> <p>Where, as an overtaking vessel was passing a much smaller vessel in St. Clair river, the latter suddenly sheered from her course, resulting in her collision with the overtaking vessel, and also with a third vessel passing on an opposite course, (lie overtaking vessel has the burden of proving that she did not cause such sheer, taking into account the speed and distance at which she passed and the effect of her suction.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 100.*]</p> <p>4. Collision (§ !)!*) — Steam Vessels Meeting — Evidence as to Fault.</p> <p>As tiio steamer Simla, 1,590 gross tonnage, was passing down the St. Clair river, where the channel was 1,600 feet wide, she was overtaken by the Gilchrist, 3,900 tons, which, after a proper exchange of signals, undertook to pass to the starboard of the Simla, and at a distance of not less than 100 feet, and a speed not excessive. When opposite, (he vessels came together, and after a slight collision the Simla sheered sharply 1o port and came into collision with the steamer Pmith, which was passing np at a distance of 600 or S00 feet. The Gilchrist was properly officered and manned, with an ail entire lookout; but the Simla had no lookout, and the second mate at the wheel was the only person on her deck. Hcl4, on the evidence, that the approach of the two vessels was not due to the suction of the Gilchrist, nor to her holding a converging course, but to the fact that the Simla was not properly manned and her wheelsman failed to hold her course, as he was bound to do under the rules, but sheered toward the Gilchrist until the Simla came within the influence of her suction, which caused the sheer to port and the second collision, and rendered the Simla solely in fault therefor.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 187-192; Dec. Dig. § 91.*]</p> <p>5. Collision (§ 125*) — Action for Damages — Evidence.</p> <p>While, as a general rule, the testimony of the officers and crew as to what took place on their own vessel is entitled to more weight than that of persons on other vessels, yet, where the other vessel was not more than 100 feet, distant, with nothing to obstruct the view of those on board, their testimony as to the movements of the passing vessel cannot be wholly ignored.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 269, 270; Doe. Dig. § 125.*]</p> <p>6. Collision (§ 130*) — Damages—Demurrage—Interest.</p> <p>In collision causes, where demurrage is awarded as a part of the damages, interest should be allowed thereon from iter time of collision, unless there are special reasons for its disallowance, in the discretion of the court.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 284; Dec. Dig. I 130.*]</p>

George F. Latnson was indicted for failure to make returns under the oleomargarine act. On motion to quash the indictment.

<p>Proceeding by the United States for condemnation of certain lands in the Town of Portsmouth, R. I. In the matter of the claim of Helen M. Hall Quinn.</p>

<p>IUxkruptoy (§ 39(>*) — Exemptions -Dime Insurance Policies — Tennessee Statute.</p> <p>Code Tern. 18.">8. §§ 2294, 2478 (Shannon's Code. 4030, 4231), which provide that any life insurance; effected by a husband on his own life shall inure to the benefit; of his widow and children free from claims of his creditors, do not exempt in favor of the husband during his life policies of life insurance payable either to himself or to his estate; and since such policies remain subject to assignment by him during his life, they pass to his trustee on his bankruptcy, under Bankr. Act July 18!)S, c. 531, § 70a, 30 Stat. 5G5 (U. S. Comp. St. 1001, p. 3451) subject to his right to redeem the same by flaying their surrender value.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 306.*]</p>

<p>At Law. Action by the United States against the Chicago, Rock Island & Pacific Railway Company. Judgment for the United States.</p> <p>The defendant was charged with having violated the safely appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), and an action in debt was brought to recover the statutory penalty of ,¶>100. A jury was waived, and the trial was to -the eburt. The evidence showed that the defendant hauled an Erie coal car with the uncoupling chain “kinked” and wedged in the coupler head on one end of the car. In that condition it was impossible to operate the coupler without a man going between the ends of the cars. One of defendant’s engines coupled onto a “cut” of cars in which was this defective car, and hauled it to the yard of the Chicago, Burlington & Quincy Railway Company, where a number of other cars were coupled onto the “cut.” The entire lot was then hauled by the defendant over to the Chicago & Alton yard®, where five more cars were attached. One of the defendant’s inspectors undertook to operate the coupler in the Union Depot and found the car defective. He then affixed a “bad-order” card to the car, indicating the nature of the defect. The car was then taken by the defendant to Arruourdale, Kan. The defendant contended that, by placing the “bad-order” card upon the car, it had complied with the statute, and was not liable for the penalty.</p>

<p>In Admiralty. Suit for collision by the Robbins Transportation Company against the steamer Sinaloa, and cross-libel against the steamer Francis h. Robbins.</p>

<p>1. Bankruptcy (§ 347*) — Mortgages—Sale op Mortgaged Property by Trustee — Right op Mortgagee to Full Payment.</p> <p>The holder of a first mortgage on real estate of a bankrupt, the validity of which is not disputed, is entitled to payment in full from the proceeds of the property sold by the trustee, with interest to the time of payment, and cannot be required to pay any portion of the general expenses of the bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 538; Dec. Dig. § 347.*]</p> <p>2. Bankruptcy (§ 482*) — Fees—Allowance op Attorney’s Fees.</p> <p>The action of a referee in allowing fees to counsel for a second mortgagee and for unsecured creditors from the proceeds of mortgaged property reversed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 482.*]</p> <p>3. Bankruptcy (§ 228*) — Referees—Review op Proceedings by Judge.</p> <p>The allowance by a referee in bankruptcy of fees to himself is reviewable by the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 228.*]</p>

In the matter of Meadows, Williams & Co., bankrupts, on review of order of referee denying petition of Alice H. Douglas for delivery to her of certain stocks.

<p>In the matter of the Edward Ellsworth Company, an alleged bankrupt. On motion to enjoin sale of property.</p>

<p>Collision (§ 95*) — Steamer akd Tow — Mutual Fault op Steamer akd Tug.</p> <p>A collision off the south entrance to Buffalo harbor and some 200 feet northward of the submerged extension to the west-northwest from the north end of the south breakwater, between the freight steamer Merida, coming in, and a dump sc-ow in tow of the tug McNaughton, passing out, hold due to the fault of both steamer and tug; the former being in fault for failing to go to port, after an agreement to pass starboard and starboard, sufficiently to permit the tug to safely navigate to keep her tow off the submerged crib, and the latter for not sooner signaling when the master found he did not have sufficient room, and for keeping too far to the south until compelled to alter her course to the north across the bows of the steamer.</p> <p>(Ed. Note. — For other cases, see Collision, Gent. Dig-. §§ 200-202; Dec, Dig. § 95.*]</p>

<p>Towage (§ 11*) — Loss ov Tow--Negligence — Evidence.</p> <p>Stranding of schooner in tow near the Middle Ground Gas Buoy in the lower Chesapeake Bay held to have been caused by improper navigation on the part of the tug and not by the steering of the schooner after the parting of the hawser.</p> <p>LEd. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>(Syllabus by the Judge.)</p>

<p>In Admiralty. Action by the Tweedie Trading Company against Thomsen & Co. to recover demurrage and certain expenses.</p>

<p>L Bankruptcy (§§ 282, 284*) — Actions by Trustees — Suit Against Stockholders op Bankrupt Corporation.</p> <p>Where plenary suits are necessary to collect unpaid subscriptions from stockholders of a bankrupt corporation, it is not necessary that the bankruptcy court should determine the amount due from the stockholders, which may be left to the courts in which such suits are brought, and authority given by the bankruptcy court to the trustee to collect such amounts as may be due is a sufficient demand on the stockholders.</p> <p>[Bd. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 426; Dec. Dig. §§ 282, 284.*]</p> <p>2. Bankruptcy (§ 282*) — Actions by Trustees — Suit Against Stockholders op Bankrupt Corporation.</p> <p>The fact that bondholders of a bankrupt corporation may be estopped by a waiver expressed in the bonds or mortgage to assert any personal claim against the stockholders is no defense by the stockholders to a suit by the trustee to enforce their liability on unpaid subscriptions, where there are other creditors not so estopped; nor does the pleading of such estoppel as to the bondholders make the mortgage trustee a necessary party to the suit.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 426; Dec. Dig. § 282.*]</p> <p>8. Bankruptcy (§ 154*) — Actions by Trustee — Suit Against Stockholders oe Bankrupt Corporation — Set-Off.</p> <p>That stockholders of a bankrupt corporation are also bondholders, and as such entitled to share in the distribution of the estate, does not entitle them to set off their claims as such in a suit against them by the trustee in bankruptcy to recover unpaid subscriptions.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 431; Dec. Dig. § 154.*]</p>

<p>1. Colt.iston (§ 125*) — Action fob Damages — Evidence.</p> <p>In a collision suit, tlie testimony of the officers and crew as to what occurred on their own vessel is entitled to more weight than that of witnesses on board other vessels, who merely assert their opinions based on what they observed.</p> <p>[Ed. Note.- -For otner cases, see Collision, Cent. Dig. §§ 2(18-271; Dec, Dig. § 125.*]</p> <p>2. Coia/ision (§ 95*) — Steamer and Tow Meeting — Sheer of Tow.</p> <p>A collision at night in the canal through the St. Clair Flats, between a barge in tow passing down and a steamer1 going np, held, on conflicting evidence, to have been due solely to the sheering of the barge lo the east side of the channel and against the steamer, which was without fault.</p> <p>LEd. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*]</p>

<p>In the matter of Charles O. Wiesel and William T. Knaup, individually and trading as Wiesel & Knaup, alleged bankrupts. On petition of receiver for rule on bankrupts.</p>

In Admiralty. Proceeding by John M. Starin, and by substitution Howard Carroll, Harriet M. Spraker, and Walter J. Peck, as executors of John H. Starin, deceased, as owner of the steamer John H. Starin, for limitation of liability. On exceptions to answer.

In Admiralty. Suit for collision by the Pittsburgh Steamship Com.pany, as owner of the steel barge Sir Isaac Lothian Bell, against the steamer Seguin, and cross-libel against the Bell and the steamer Frank Rockefeller by the Parry Sound Lumber Company, as owner of the Seguin.

<p>In the matter of one Burgin, alleged bankrupt. On exception to report of special master.</p>

<p>Action by Wm. J. Moxley, a corporation, against Henry R Hertz, Collector of Internal Revenue.</p> <p>The plaintiff, Win. J. Moxley, is a corporation duly organized and existing under the laws of the State of Illinois, having its principal place of business in the city of Chicago, in the northern district of Illinois, and was on the 26th day of March, A. D. 1903, and had been for many years next prior thereto, legally qualified to engage and was engaged in said city of Chicago in the business of manufacturing and selling at wholesale, oleomargarine. The defendant, Henry L. Hertz, prior to and on the 26th day of March, 1903, was, thence hitherto has been, and now is, collector of internal revenue for the first collection district of Illinois.</p> <p>In June, 1902, and after the passage of the act of Congress passed May 9. 1902 (Act May 9, 1902, c. 781, 32 Stat. 193 TU. S. Comp. St. Supp. 1907, p. 636]), amending the act of Congress entitled “An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine,” approved August 2, 1886 (Act Aug. 2, 1886, c. 8-10, 24 Stat. 209 [U. S. Comp. St. 1901, p. 2228]), the Commissioner of Internal Revenue officially promulgated and published in the “Revised regulations concerning oleomargarine,” published and issued in regular course by the United States Treasury Department, the regulation as to “artificial coloration,” in language as follows:</p> <p>“Regulation as to artificial coloration.</p> <p>“If in the production of oleomargarine the mixtures of compounds set out in the law of 1886 are used, and these compounds' are all free from artificial coloration and no artificial coloration is produced by the addition of coloring matter as an independent and separate ingredient, a tax of one-fourth of 1 cent per pound only will bo collected, although the finished product may look like butter of some shade of yellow. For example, if butter that has been artificially colored is used as a component part of the finished product oleomargarine (and that finished product looks like butter of any shade of yellow), as the oleomargarine is not free from artificial coloration, the tax of 10 eenls per pound will ho assessed and collected. But if butter absolutely free from artificial coloration or cotton-seed oil freo from artificial coloration, or any other of the mixtures or compounds, legally used in the manufacture of tho finished product, oleomargarine has naturally a shade of yellow in no way produced by artificial coloration, and though the use of one or more of these unartificially colored legal component parts of oleomargarine the finished product should look like butter of any shade of yellow, this product will be subject to a tax of only one fourth of 1 cent per pound, as it is absolutely free from artificial coloration that has caused it to look like butter of any shade of yellow.”</p> <p>Which said “Regulation as to artificial coloration” thenceforth continued to be the regulation of the Commissioner's office when the oleomargarine hereinafter referred to was made and sold by the plaintiff.</p> <p>Under date of March 26, 1903, the defendant, Henry L. Hertz, as collector of internal revenue for the first collection district of Illinois, gave notice to the plaintiff corporation, Wm. .1. Moxley, that a tax under the internal-revenue laws of the United States, amounting to 835,999.80, the same being stamp tax upon oleomargarine, had been assessed against said corporation by the Commissioner of Internal Revenue and transmitted by said Commissioner to said collector for collection.</p> <p>Thereafter and in due time said plaintiff corporation, Wm. J. Moxley, duly filed and presented to the said Commissioner of Internal Revenue its claim iii due form, duly verified by affidavit of its secretary, John Dadio, for the abatement of said assessment in part or in whole.</p> <p>Thereafter the plaintiff’s said claim for abatement was sustained by the Commissioner of Internal Revenue to the extent only of $7,500 thereof, and as to the balance of said assessment — that is, $28,499.80 — said claim for abatement was overruled by said Commissioner of Internal Revenue and said assessment, as to said balance thereof, was by said Commissioner of Internal Revenue, approved and confirmed.</p> <p>Thereafter under date of the 11th day of June, 1903, the defendant made peremptory demand in writing upon the plaintiff for the payment of said amount of $28,499.80 (being the balance of said assessment so- ¡.'educed as aforesaid), within forty-eight hours after the date of said demand, and simultaneously gave notice to the plaintiff that if said amount so demanded were not paid within said forty-eight hours thereafter said defendant would proceed summarily to collect the same with penalty and interest as provided by the statutes.</p> <p>Thereafter on the 13th day of June, 1903, said plaintiff, under said threat of summary action by said defendant as collector of internal revenue and under protest duly made in writing, paid to said defendant, Ilehry L. Hertz, as collector, as aforesaid, said amount of $28,499.80, and said plaintiff thereupon immediately made demand upon said defendant to refund said amount so paid to him by the plaintiff, which said demand said defendant refused to comply with.</p> <p>Said assessment, so reduced as aforesaid, to the sum of $28,499.80 was levied by the Commissioner of Internal Revenue at the rate of 10 cents per pound upon 284,998 pounds of oleomargarine which had been manufactured and sold by the plaintiff in the months of January, February, and March, 1903, and prior to the levying of said assessment. Prior to the sale of said 284,998 pounds of oleomargarine, the plaintiff had paid an internal-revenue tax of one-fourth of 1 cent per pound thereon by purchasing, affixing to the packages containing said oleomargarine and canceling, in the manner required by law, revenue stamps at the rate of one-fourth of 1 cent per pound.</p> <p>Thereafter, on the 26th day of June, 1903, said plaintiff presented in due form, as provided by law, to the Commissioner of Internal Revenue its,'the plaintiff’s, claim for the refunding to it of all of said amount of $28,499.80,-so paid by the plaintiff as aforesaid, and thereafter said Commissioner of Internal Revenue did refund and pay to the plaintiff on account of its, the plaintiff’s, said claim for refund the sum of $712.50, being the amount of the tax at one-fourth of a cent per pound previously paid, but said Commissioner of Internal Revenue rejected said claim for refund as to the balance thereof, namely, $27,787.30, and refused to refund and pay or to authorize the refunding and payment of said balance or any part thereof.</p> <p>The oleomargarine, on account of which said assessment was levied by said Commissioner of Internal Revenue and said reduced amount thereof was required by him to be paid by said plaintiff, was composed of oleo oil, lard, milk, cream, salt, and two vegetable oils commonly known as cotton-seed oil and palm oil, and of nothing else. The proportion of palm oil imesent in said oleomargarine was about one-half of 1 per cent, of the total volume of said oleomargarine.</p> <p>Palm oil is a pure vegetable oil derived from the fruit of palm trees, which grow in certain parts of Africa, and has about the consistence of pure butter. Palm oil consists almost entirely of palmátin and olein, which are the chief constituents of pure butter. Palm oil is perfectly wholesome, is readily digested, and has long been used as an article of food in countries where it is produced. Palm oil was employed in oleomargarine prior to May, 1902, hut .whether' it was intended as coloring matter, or was intended to give the oleomargarine some function as a food, independently of coloring matter, is not shown, nor was the comparative cost between it and other coloring agents, at the time it was thus employed prior to 1902, shown.</p> <p>The oleomargarine involved in this suit looked like butter of a shade of yellow, and such resemblance to butter of a shade of, yellow was caused by the presence of the palm oil used in said oleomargarine. In addition to coloring the oleomargarine in resemblance to butter, the palm oil probably gives to the oleomargarine a slightly better grain or texture, causing it. to act more like butter in the frying pan, but such function of the palm oil, other than as cofcidne; matter, was so sJUlit that except for llie coloring imparted to the oleomargarine, the palm oil would not have been actually used in its manufacture.</p> <p>Upon these findings of fact, 1 find as a matter of law that the plaintiff is not entitled to recover.</p>

<p>Bankruptcy (§ 72*) — Corporations Subject to Act — Insurance Brokerage —“Trading or Mercantile Pursuit.”</p> <p>A corporation chiefly engaged in conducting the business of a general fire insurance agency is not engaged in a “trading or mercantile pursuit,” within Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), and is not subject to the act.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4477, 4478. What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. O. A. 4.]</p>

<p>Bankruptcy (§ 348*) — Debts Entitled to Priority — Displacement op Dtens. The provision of Bankr. Act July 1, 1898, § 64b (4), c. 541, 30 Htat. 503 (U. S. Comí). St. 1901, p. 3447), giving priority to wages due to workmen, is not intended to give sucb priority over debts secured by valid liens.</p> <p>[Ed. Is ote. — For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. § 348.*]</p>

<p>In the matter of Isaac Harris Company, bankrupt. On motion to vacate restraining order.</p>

<p>At Law. Action by Theresa McGrath against the Philadelphia & Reading Railway Company. On motion by defendant for judgment notwithstanding the verdict.</p>

<p>1. Monopolies (§ 12*) — Anti-Trust Act —Test of “Unlawful Combination.”</p> <p>The test of an “unlawful combination” under Act July 2, 1890, c. 617, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), is its necessary effect upon free competition in commerce among the states or with foreign nations.</p> <p>A combination, the necessary effect of which is to stifle, or directly and substantially to restrict, such competition, is unlawful under that act.</p> <p>• But if the necessary effect of a combination is but incidentally and indirectly to restrict competition, while its chief result is to foster the trade and increase the business of those who make and operate it, it does not fall under the ban of this law.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dee Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1275, 1276; vol. 8, p. 7606.]</p> <p>2. Monopolies (§ 17*)--Anti-Trust Act — Vendors Not Forbidden to Fix Prices and Terms of Sale of Coal Thereby.</p> <p>A coal company engaged in mining and selling its coal is not prohibited by the anti-trust act (Act July 2, 1890, c. 647, § 1, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), or by the law, from refusing to sell its coal, from selecting its customers, from fixing the price and terms on which it will sell its product, or from selling to different customers for different prices and on different terms.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*]</p> <p>3. Corporations (§ 280*) — Crimes — Stockholders — Guilt of Corporation Not Imputed to Stockholder.</p> <p>A violation of a law by a corporation does not render its nonparticipating stockholders criminally liable therefor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1186; Dec.' Dig. § 280.*]</p> <p>4. Criminal Law (§§ 741, 1159*) — Sufficiency of Proof — Evidence of Guilt must Exclude Every Other Hypothesis — Appeal.</p> <p>Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused.</p> <p>And where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment; of conviction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1713, 1727, 3074-3083; Dec. Dig. §§ 741, 1159.*]</p> <p>5. Monopolies (§ 31*) — Evidence—'Conclusion.</p> <p>The Union Pacific Coal Company, Moore, its western sales agent, the Union Pacific Railroad Company, which owned all the stock of the coal company, the Oregon Short Line Railroad Company, and Buckingham, the superintendent of transportation of the railroad companies, were indicted. and convicted for combining to restrain interstate commerce by refusing to sell coal to and to transport coal for one Sharp unless he would discontinue an advertisement of sale of coal at a reduced rate.</p> <p>Held, there was no substantial evidence of any combination between any two of the defendants either to refuse to sell coal to Sharp or to refuse to transport it for him.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 31.*]</p> <p>6. Monopolies (§§ 12, 20*) — Combination Between Corporation and Agent —Conscious’Participation op Two Minds Requisite to Form.</p> <p>A combination between a corporation and its officer or agent in violation of the anti-trust aot (Act July 2, 1890, c. 647, § 1, 26 Stat. 209 [TI. 'S. Comp. St. 1901, p. 3200]) cannot be formed by the thoughts or acts of the officer or agent alone, without the conscious xiarticipation in it of any other officér or agent of the corporation.</p> <p>The union of two or more persons, the conscious participation of two or more minds, is indispensable to an unlawful combination.</p> <p>[Éd. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. §§ 12, 20.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Action by George A. Shaw & Co. against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Railroads (§ 359*) — Injuries to.Trespassers on Track — Degree of Care Required.</p> <p>Under the common law a railroad company owes no duty to a mere trespasser, on its tracts without the consent of any one having authority- to permit his presence, except to do him no intentional or wanton injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1238, 1239; -Dee. Dig. § 359.*]</p> <p>2. Railroads (§ 400*) — Injury to Persons on Track — Actions—Questions, for Jury.</p> <p>Evidence held sufficient to warrant the submission to the jury of the question whether the employes of a railroad company, in charge of the engine of a freight train, which collided with a hand car, complied with Shannon’s Code Tenn. § 1574. subsec. 4, which provides that the engineer, fireman, or some other person on the locomotive shall be kept always upon the lookout ahead, and that when any person, animal, or other obstruction appears on the road the alarm whistle shall he sounded, the-brakes put down, and every possible means employed to stop the train and prevent an accident; there being evidence that the persons upon the hand car saw the engine when 200 yards distant, bnt that those on the engine did not see the hand car until within a car’s length.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1307, 1373; Dee. Dig. § 400.*]</p> <p>8. Appeal and Error (§ 203*) — Questions Presented by Record — Necessity of Exceptions to Instructions.</p> <p>It is the settled rule of the federal courts that a charge not excepted to below cannot be assigned as error in a court of review.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1516-1532; Dee. Dig. § 263.*]</p> <p>4. Appeal and Error (§ 241*) — Review—Estoppel to Allege Error.</p> <p>A motion by defendant at the close of the evidence for a directed verdict, although not required by the practice of the Circuit Court of Appeals to specify the grounds on which it is based, will not be considered by such court as embracing the question of the applicability of a state statute to the facts of the case, where it was tried by both parties on the theory that the statute was applicable, and submitted to the jury by the court on such theory by instructions to which no exceptions were taken</p> <p>[lid. Note. — For other cases, see Appeal and Error, Dec. Dig. § 241.*></p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by August F. Schultz,'guardian of John Balke, against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern-District of Virginia, at Norfolk.</p> <p>Action by the United States against the Atlantic Coast Dine Rail-</p> <p>road Company to recover the penalty for violation of the twenty-eight hour law. Judgment for defendant, and plaintiff brings error.</p> <p>This is a writ of error to a judgment of the District Court for the Eastern District of Virginia, rendered in an action of debt wherein the United States was plaintiff, and the Atlantic Coast Line Railroad. Company, a corporation engaged in interstate commerce, was defendant. This action was brought to recover a penalty of five hundred dollars for a violation of Act June 29, 1900, c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), known as the “Twenty-Bight Hour Law.” The first section of the act reads as follows: “ * * * No railroad, express company, car company, common carrier other than by water, or the receiver, trustee or lessee of any of them whose road forms any part of a line of road over which cattle, sheep, swine, or other animals shall be conveyed from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, shall confine the same in cars, boats, or vessels of any description for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight: Provided, that upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading, or other railroad form, the time of confinement may be extended to thirty-six hours. In estimating such confinement, the time consumed in loading and unloading shall not be considered, but the time during which the animals have been confined without such rest or food or water on connecting roads shall he included, it being the intent of this act to prohibit their continuous confinement beyond the period of twenty-eight hours, except upon the contingencies hereinbefore stated: Provided, that it shall not be required that sheep he unloaded in the nighttime, but where the time expires in the nighttime in case of sheep the same may continue in transit, to a suitable place for unloading, subject to the aforesaid limitation of thirty-six hours.”</p> <p>The declaration states that on the loth day of April, 1907, the defendant company was, and has ever since been, a common carrier and railroad corporation, operating a road over which cattle, sheep, swine, and other animals are conveyed from the state of North Carolina into the state of Virginia, and that on the said 15th day of April it undertook and promised to convey from Aulander, in North Carolina, to Norfolk, in Virginia, certain cattle, namely, three calves, for which a hill of lading in due form was made out and delivered by the defendant to the consignor; that on the same day the calves were-loaded by the defendant in one of its freight ears at Aulander for transportation to Norfolk, which car was not supplied with food and water; and that in conveying the said calves between the points above mentioned the defendant knowingly and willfully kept the same continuously confined in said car for a period longer than 28 consecutive hours, to wit, for 50 consecutive hours, without unloading them in a humane manner into properly equipped pens for rest, water, and feeding. The defendant pleaded nil debet, upon which plea issue was joined, and thereupon the parties filed a written stipulation, waiving a jury, and submitting the whole matter of law and fact to the court.</p> <p>The following is the agreed statement of facts upon which this case was determined by the lower court:</p> <p>“On April 15, 1907, Conductor K. L. Hollingsworth, on north-bound local freight train, carrying cars known as ‘pedlers,’ used for picking up freight at various stations en route, at Aulander, N. O., loaded on one of these pedlers cars three calves, crated, consigned to Mr. O. E. Robinson, Norfolk, which were duly entered on waybill, copy of which is hereto attached, and at the same time he received from the agent at Aulander a conductor’s live stock report, form 265, copy of which, with blanks unfilled, is hereto attached for illustration, upon which were entered the notations as indicated on the waybill. This train had a small engine and was overloaded with cars, and the conductor was directed to leave five or six of the cars at Ahoskie, with the waybill for the same, to be picked up by a following through freight train. The conductor did not examine the bill upon which the calves were noted, and when he left the car containing the same at Ahoskie, to be picked up by a later through freight train, he failed to call the agent’s attention to the fact that it contained these calves. For this reason the car was not forwarded promptly, and arrived at Pinners Point on the night of April 16th, and, there being no facilities for the, delivery of live stock at night to the Union Stockyards in Berkeley, the parties to whom delivery was to be made, they were delivered to tiie consignee on the 17th inst. The company has rules which are delivered to train masters, yard masters, station agents, conductors, and others concerned in the transportation of live stock, and posted in the bulletin books at designated points, which conductors are required to read and sign, the latter to inform the train master that they had read the circular, which prohibits the carrying of live stock for more than 28 consecutive hours without being within that period fed and watered, copy of circular hereto attached. In addition to this circular, the company has a rule, which station agents and conductors are required to obey, that upon the shipment of live stock telegraphic notice is sent to the superintendent of the district over which the shipment moves, who in turn is required to notify tlié station of destination. These rules are rigidly enforced, and a violation of them, when brought to the attention of the proper official, is followed by suspension or dismissal as the gravity of the case may require, [n this particular case, the offending conductor, Hollingsworth, made a statement, copy of which is hereto attached, admitting his fault in not obeying the rules of the company, and he was promptly discharged from the service of the company for this and other violations of the rules, before the institution of this suit. The calves were not unloaded for rest, water, and feeding between the time they were loaded at Aulander, on the 15th of April, 1907, at ]0:150 o’clock a. m., and their arrival at Pinners Point, and were not unloaded uniil the 17th of April; they having been kept continuously confined in the car and in the crate in which they were shipped during the time just stated.”</p>

Involuntary bankruptcy proceeding by the Merchant & Evans Company and others against the Walker Roofing & Heating Company, Incorporated. Erom an order adjudging defendant a bankrupt, it appeals. In this ease a petition for involuntary bankruptcy was filed against the appellant by three creditors, and a receiver appointed.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>Suit in equity by Levi C. Weir, W. H. Damsel, and Charles Steele, president and trustees of the Adams Express Company, against Amy J. Rountree. Decree for defendant, and complainants appeal.</p>

<p>1. Master and Servant (§ 118*) — Operation oe Mines — Statutory Provisions — “Traveling Way.”</p> <p>The place in which plain tiff and another were working in a coal mine when plaintiff was injured by falling rock, while designed for a passageway when completed, but which was then completed only a part of the way, held not to have been a “traveling way,” within the meaning of the Colorado statute requiring mining companies to timber traveling ways, but in the nature of a room, for which the company was required to furnish the timbers, to be placed by the workmen.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 118.*j</p> <p>2. Appeal and Error (§ 1048*) — Review—Discretion oe Court — Permitting Leading Questions to Witness.</p> <p>Permitting leading and suggestive questions to a witness, over objection, may constitute reversible error, where the answers elicited are the only basis in the evidence for an instruction given on a material issue.</p> <p>[ Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4141: Dec. Dig. § 1048.*]</p> <p>8. Master and Servant (§ 233*) — Master’s Liability eor Injury to Servant — Pi,aces to Work — Care Required oe Servant.</p> <p>When it is the duty of a master to exercise ordinary care to furnish a reasonably safe place for an employe to work, the employs has the right to assume that such duty has been performed, and is not required to exercise care to discover unknown dangers, which are not plainly observable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235.*]</p>

<p>In Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Action by Joseph Hachey against the Maine & New Hampshire Granite Corporation'. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Russell Dale against the Denver City Tramway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the General Electric Company against Fred B. Smith for infringement of patent. Decree (170 Fed. 593) for defendant, and complainant appeals.</p>

<p>In Equity. Bill by the George Frost Company and Robert Gorton against Henry E. Samstag, Moritz Hilder, and Julius Hilder, for infringement of letters patent No. 552,170, for a hose supporter, granted to Robert Gorton December 31, 1895. On final hearing.</p>

<p>In Equity. Suit by the Société Anonyme, etc., Benedictine against the Hygrade Wine Company. On motion for preliminary injunction.</p>

<p>Equity (§ 404*) — Masters—Taking Proofs — Objections to Evidence.</p> <p>In taking testimony before a master in an equity suit in a federal court, questions objected to for irrelevancy and immateriality should be answered, leaving such objections to be ruled on at final hearing. .</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 891; Dec. Dig. § 404.*]</p>

<p>Suit by the Hudson-Eulton Celebration Committee against Emil C. Hess and others. On motion for approval of bond.</p>

In Bankruptcy. In the matter of Thomas B. Teter, bankrupt. On review of order of referee.

<p>Maritime Liens (§§ 18, 38, 46*) — Statutory Liens for Construction — Effect Under Maritime Law — Waiver—Priority Over Mortgage.</p> <p>Tbis case relates to a class of liens arising on the steamers Harvard and Yale under the statutes of New Jersey, discussed in 166 Fed. 782, affirmed in 173 Fed. 471, and further discussed in 169 Fed. 491. It differs from the prior cases only with reference to a further discussion of the doctrines of laches, waiver, and estoppel, in view of the special circumstances. It also holds that the rules in favor of maintaining the liens of this class apply to merchandise installed in the steamers while lying in the state of New Jersey, notwithstanding the contract therefor was made in New York and the principal work in preparing the merchandise was done in the latter state.</p> <p>[Ed., Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 23, 73, 85; Dec. Dig. §§ 18, 38, 46*</p> <p>Waiver and extinguishment, see note to The Nebraska, 17 C. C. A. 102.]</p>

<p>In Admiralty. Action by the Oil Seeds Company against the .steamship Konigin Luise to recover for injuries to cargo and money paid in advance for freight.</p>

<p>Shipping (§§ 49, 62*) — Claim: for Charter Hire — Deductions.</p> <p>Held that the charterer was entitled to deduct (1) for quarantine detention, (2) advances to the master, (3) loss of time while awaiting dry docking, and (4) for a compromise with the master with respect to time lost through defective winches.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 195, 258, 259; Dec. Dig. §§ 49, 62.*</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedie Trading Co. v. George D. Emery Co., 84 O. O. A. 254.]</p> <p>(Syllabus by the Judge.)</p>

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

<p>1. Monopolies (§ 29*) — Elements of Offense — Anti-Trust Statute.</p> <p>To constitute the offense of conspiracy in restraint of interstate or foreign commerce, or to monopolize such commerce, under the Sherman antitrust act (Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 .[U. S. Comp. St. 1901, p. 3200]) unlike a conspiracy to commit an offense against or to defraud the United States, under Rev. St. § 5440 _(U. S. Comp. St. 1901, p. 3676), no overt act is necessary; the conspiracy itself being tbe offense.</p> <p>IEd. Note. — For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. § 29.*]</p> <p>2. Monopolies (§ 12*) — Anti-Trust Act — “Conspiracy.”</p> <p>The word “conspiracy,” as used in the Sherman anti-trust act (Act July 2. 1890. c. 047, §§ 1, 2, 26 Stat. 200 LU. S. Comp. St. 1901, p. 3200]), has substantially the same meaning as the word “contract.”</p> <p>I Ed. Note. — For other casos, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.]</p> <p>3. Criminal Daw (§ 149*) — Conspiracy in Violation of Anti-Trust Law— Limitation of Criminal Prosecution.</p> <p>A conspiracy in restraint of interstate commerce, or to monopolize the same, in violation of the Sherman anü-trnst act (Act July 2, 1890, c. 647, §§ 1. 2, 26 Stat. 20!) [U. S. Comp. St. 1901, p. 3200]), by causing a manufacturing corporation to suspend business in the interest of a. competing concern, by obtaining control of its stock through a contract, was complete at latest when its object was fully accomplished by the making of the contract and the election of a board of directors who voted to cease btisiness; and a prosecution therefor is barred in three years from that time, under Rev. St. § 1041 (U. S. Com]). St. 1901, 'p. 725).</p> <p>[Ed. Note. — For other cases, see Criminal Law, (lent. Dig. §§ 273-275; Dee. Dig. | 149.*]</p> <p>4. Criminal Law (§ 150*) — Criminal Prosecution — Limitation.</p> <p>If a conspiracy to commit a crime has been carried out, and the crime committed, those who committed it are subject 1o whatever peualtics the law imposes, and entitled to whatever protection the law affords; and if the statuteof limitations is a bar to a prosecution for the crime, that barcannot be lifted by a prosecution for a conspiracy to commit that crime.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 275; Dec. Dig. § 150.*]</p> <p>5. Criminal Law (§ 288*) — Special Plea of Limitation.</p> <p>The defense of the statute of limitations may be raised in a criminal case by a special plea before trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ C60, 001;. Dec. Dig. § 288.*]</p>

<p>1. Shipping (§ 132*) — Damage to Cargo — Grounds of Vessel’s DiabilityBurden of Proof.</p> <p>Where cargo receives damage in transit, the carrier has the burden of showing affirmatively that the loss was within an exception of perils of the sea in the bills of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Gent. Dig. §§ 479, 481; Dec. Dig. § 132.*]</p> <p>2. Shipping (§ 121*) — Carriage of Goods — Contracts of Affreightment.</p> <p>In contracts for carriage by sea, there is an implied warranty that the vessel is in all respects seaworthy and reasonably lit to carry the particular goods specified in the bill of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 449-451; Dec. Dig. § 121.*</p> <p>Implied warranty of seaworthiness, see notes to The Carib Prince, 15 O. C. A. 388; Nelson v. Coal, Cement & Supply Co., GO C. O. A. 177.]</p> <p>3. Shipping (§ 141*) — Damage to Cargo — Liability of Vessel.</p> <p>Oh a voyage from a Canadian port on Lake Superior to Buffalo, a steamer’s cargo of wheat was damaged by water escaping from a feed pipe connecting the engine and boiler rooms, which was broken at a joint. The use of such feed pipe and the manner in which it was constructed and cased were not unusual on such steamers, and an inspection a month earlier, and a further examination by the officers and shipper’s agent before loading, showed it to be in good condition. Held, that it did not render the vessel unseaworthy at the beginning of the voyage, but that under the evidence the breaking was due to perils of navigation, which strained the vessel during the voyage, and which were within the exceptions in the bill of lading; it being shown that she encountered unusually rough weather and was otherwise strained.</p> <p>[Ed. Note.- — For other cases, see Shipping, Cent. Dig. § 498; Dec. Dig. § 141.*</p> <p>Loss by perils of the sea, see notes to The Dunbritton, 39 G. 0. A. 4G5; SouUicrland-Innes Go. v. Thynas, G4 0. O. A. 118.]</p>

<p>1. Admiralty (§ 36*) — Remedies—Counterclaims.</p> <p>In a suit against a steamer to recover for machinery supplied her, a counterclaim for damages for breach of the contract under which it was supplied is maintainable.</p> <p>[Ed. Note. — Eor other cases, see' Admiralty, Cent. Dig. § 327; Dec. Dig. § 36.*]</p> <p>2. Maritime Liens (§ 5*) — Repairs Furnished to Owner — Implied Agreement for Lien.</p> <p>A tac-it understanding by both parties that one furnishing repairs to a vessel in a foreign port, although they were ordered by tbe owner, looked to the vessel for payment, is sufficient to establish an implied agreement for a Hen.</p> <p>[Ed. Note. — Eor other cases, see Maritime Liens, Cent. Dig. § 7; Dec. Dig. § a*</p> <p>For supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]</p> <p>3. Sales (§ 267*) — Contract for Furnishing Machinery — Implied Warranty.</p> <p>A provision, in a contract to furnish and install furnaces, that they should pass government inspection, did not relieve the contractor from the implied warranty that the work should be properly performed and the furnaces reasonably fit and free from such defects as would be only discoverable after use and trial.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 760, 761; Doc. Dig. § 207.*]</p> <p>4. Customs and Usages (§ 13*) — Construction—Implied Terms.</p> <p>A common and well-known custom or usage in respect to tbe subject-matter of a contract may be read into it as an implied term.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 26; Dec. Dig. § 13.*]</p> <p>5. Sales (§ 288*} — -Perform vxck — Waiver of Breach of Warranty.</p> <p>Where furnaces insta lied by libelants in respondent’s lake steamer proved defective as soon as used, and were repaired by libelants, tlieir continued use Hieren l'ter for four months without, complaint, and after being again repaired io the close of (he season, was a waiver of the right to insist that they failed to comply with the implied warranty of their fitness.</p> <p>I Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 817-823; Dec. Dig. § 288.*]</p> <p>6. Sales (§ 418*) — Breach of Contract — Repair of Vessel.</p> <p>Where furnaces installed in a steamer under contract failed to work property, and the vessel was detained while they were being repaired, but there was no claim (hat the contractor knew of the defect, the owner of the vessel is not eniitied to recover from the contractor as damages for breach of llie contract Hie earnings which she lost by reason of the delay for repairs.</p> <p>[Ed. Note — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p>

<p>In Admiralty. Action by Jennie AT. Ryley and others against the Philadelphia & Reading Railway Company.</p>

<p>Bankruptcy (§ 2G7*) — Diens—Right of Mortgagee to Interest.</p> <p>A valid mortgage upon property of a bankrupt, by the express terms of Bankr. Act July 1, 1898, c. 541, § 67d, 30 Stat. 5G4 (TJ. S. Comp. St. 1901, p. 3449), is not affected by the act; and, where the property is sold by the trustee free from the lien of the mortgage, the holder is entitled to payment from the proceeds of the full amount of his debt, with interest to the time of sale, whether or not he has proved his debt in the bankruptcy proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 267.*]</p>

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

<p>Action by Mesliech Erost against Ohio C. Barber. On application for examination of plaintiff.</p>

<p>Courts (§ 350*) — Federal Courts — Depositions—Nonresidence of Witness.</p> <p>A party is not entitled to take the deposition of a witness in a federal court, under Eev. St. § 863 (U. S. Comp. St. 1901, p. 661), where the witness actually lives at the place of trial and expects to remain there, although his legal domicile may be elsewhere.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 923; Dec. Dig. § 350.*]</p>

Action by Edwin P. Pennebaker against the Thompson Company. Judgment for plaintiff, and defendant brings error.

<p>1. Payment (§ 37*) — By Noth — Acceptance op Debtor’s Note is Not Payment op His Debt.</p> <p>The acceptance by a creditor of a promissory note of his debtor for his antecedent debt does not extinguish it, unless the note is paid. It is a conditional, and not an absolute, payment.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 70-77; Dec. Dig. § 17.*]</p> <p>2. Payment (§ 17*) —By Note — Agreement or Indubitable Intention of</p> <p>Creditor to Take Risk op the Note’s Payment Requisite to Extinquish Debt.</p> <p>A clear agreement by the creditor that he will take the risk of the payment of the note, and that the debt is discharged thereby, or an indubitable intention so to do,- is requisite to extinguish a debt by the taking of the debtor’s note.</p> <p>[Ed. Note. — For other casos, see Payment, Cent Dig. §§ 70-77; Dec. Dig. § 17.*J</p> <p>3. Payment (§ 17*) — Agreement That Debt is to be Paid or has been Paid</p> <p>by Note Means Conditionally, and Not Absolutely, Patd.</p> <p>An agreement that a debt shall be paid, or that it has been paid, by the note of the debtor, is a contract for an extension of time, and that the debt shall be paid, or has been paid, by the note on condition that the note is paid.</p> <p>[Ed. Note. — For other eases, see Payment, Cent. Dig. §§ 70-77; Dec. Dig. § 17.*]</p> <p>4. Payment (§ 67*) — By Note — Acceptance op Security Strengthens Pre-</p> <p>sumption That Payment is Conditional.</p> <p>A lieu, a title, or other security held for the payment of a debt strengthens the presumption that an agreement that a debt is to be paid, or lias been paid, by the note of a debtor, is subject to the condition that the note is subsequently paid.</p> <p>[Ed. Note. — For other cases, see Payment, Dec. Dig. § 67.*]</p> <p>5. Contracts (§ 147*) — Construction—Courts to Ascertain Intentions op Parties from Their Situation When Making Agreement.</p> <p>The court, so far as possible, should put itself in the place of the parties to the contract when their minds met upon the terms of the agreement. and then from a consideration of the writing itself, of its purpose, and of the circumstances which conditioned its making, endeavor to ascertain what they intended to agree to do, upon what sense and meaning of the terms they used their mind's actually met.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]</p> <p>6. Contracts (§ 154*) — Construction —Common Rational Meaning Preferred to Unusual or Subtle One.</p> <p>IVhere the language of the agreement is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that the contract is fairly susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred to that which makes it an unusual, unfair, or improbable contract.</p> <p>[Ed. Note. — For other cases, see Contracts. Cent. Dig. § 735; Dec. Dig. § 154.*]</p> <p>7. Contracts (§ 147*) — Intention Deduced from Writing Prevails over Inapt Expressions.</p> <p>The intention of the parties, when manifest, or when ascertained from the written agreement, must control and be enforced, without regard to inapt expressions or the dry words of the contract, unless that intention is directly contrary to the plain sense of the binding words of the agreement.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dee. Dig. § 147.*]</p> <p>(Syllabus by the Court.)</p>

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

<p>Sales (§ 77*) — Contract—Construction—Compensation^Contract to Furnish Asphalt Required by Paving Contracts.</p> <p>By a contract made by an extended correspondence an asphalt company-agreed to furnish to a paving company crude asphalt from its mine and liquid flux necessary to make an asphaltic paving cement, sufficient in quantity to complete certain contracts of the paving company with the city of New Orleans, at the price of $37 per ton, with a guaranty that each ton of the cement would lay 90 square yards of pavement specified. The cement was to be made in New Orleans by means of a portable plant furnished by tbe asphalt company, which was also to furnish a man to have full charge of the making and laying of the same, his salary to be paid by the paving company. Held that, construing the contract in the light; of al! the correspondenco, it required the paving company to pay for the asqrtinlt at: tlie rate of !?1>7 for each 00 square yards of pavement laid, and not for each ton of the crude material shipped.</p> <p>[Bd. Note. — For other cases, see Sales, Dec. Dig. § 77.*</p> <p>Contracts for sale of things to be produced or manufactured, see note to Star Brewery Co. v. Horst, 58 C. C. A. 363.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>Action by John H. Ware, Edward E. Leland, G. W. Lee, and F. J. Fahey, partners as Ware & Leland, against John H. Pearsons and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Bankruptcy (§ 116*) — Jurisdiction of Courts — Summary Proceedings Against Adverse Claimants.</p> <p>Where a third party claims an interest in property which was in the possession of a bankrupt at the time of the bankruptcy and passed into that of his trustee, the referee may by a summary proceeding require such third party to appear in the bankruptcy court and present his claim, and may adjudicate the rights of the parties in respect thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.* Jurisdiction of federal eourts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Bankruptcy (§ 440*) — Appellate Proceedings — Matters Reviewable by Appeal.</p> <p>A decree of a District Court in bankruptcy, summarily adjudicating the right to property in the possession of a trustee as between him and an adverse claimant, is reviewable by appeal.</p> <p>[Ed. Note. — ‘For other cases, see Bankruptcy, Dec. Dig. § 440.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>3. Vendor and Purchaser (§ 3*) — Specific Performance (§ 99*) — Contracts Enforceable — Contracts for Sale of Real Property.</p> <p>A contract by which one party agrees to sell and convey real estate on payment therefor at a stated time, and the other agrees to make such paymcnt, although it also provides that if payment is not made at the time stipulated the purchaser shall forfeit all right and the seller be released from all obligation to convey, is not one giving an option, but one of bargain and sale; and where (lie purchaser has gone into possession and made valuable improvements on the property, a court of equity will decree a specific performance in his favor, notwithstanding his default in payment at the time promised, when there has been no change of circumstances or conditions to defeat his equity.</p> <p>[Ed. Noie. — For other cases, see Vendor and Purchaser, Cent. Dig. § 3; Dec. Dig. § 3;* Specific Performance, Cent. Dig. § 301; Dec. Dig. § 99.*]</p> <p>4. Contracts (§ 211*) — Effect of Default of Plaintiff — Watvee.</p> <p>Although lime is made an essential element of a contract by express stipulation, the party who is entitled to insist on a punctual performance by the other, or else that the agreement be ended, may waive his right and the benefit of any objection he might raise to a performance after the prescribed term, either expressly or by his conduct, and liis conduct will operate as a waiver when it, is consistent only with a purpose on his part to regard the contract as still subsisting after the other party’s default.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 938-943 ; Dec. Dig. § 211.*]</p>

Suit in equity by the Mechanics’ Insurance Company of Philadelphia and others against the C. A. Hoover Distilling Company and others. From a decree dismissing the bill, complainants appeal.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>Suit in equity by the Ibex Mining Company against C. E. Van Sice. Decree for complainant, and defendant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by Dunn & Powell, Incorporated, against the Arkansas Brokerage Company and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Negligence (§ 88*) — Contributory Negligence — Effect of Intoxication.</p> <p>A person who has become intoxicated by his own voluntary act is chargeable with the result of his acts, deemed by the law to constitute contributory negligence, in the same degree and to the same extent as though he had been duly sober.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 119, 120; Dec. Dig. § 88.»)</p> <p>2. Street Railroads (§ 118*) — Action for Injury to Person on Track — Instructions.</p> <p>In an action against a street railroad company for injury by being struck by a car while walking toward It on the track in an intoxicated condition, where plaintiff was clearly guilty of contributory negligence, an instruction which warranted the jury in assuming that his intoxication relieved him from the consequences of such negligence was erroneous, and prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 118.*)</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Emma M. Pelletier against Arthur J. Wellington. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>John F. Rudd was convicted of using the mails to defraud, and brings error.</p>

• Action by Benjamin Nelson, administrator of the estate of Henry C. Miller, deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error.

Suit in equity for infringement of patent by the Chicago Grain Door Company against the National Malleable Castings Company and A. A. Pope. From a decree dismissing the bill, complainant appeals.

<p>In Equity. Suit by Joseph T. -Ward against Merritt & Co.</p>

Suit by the S. Morgan Smith Company against the Rockingham Power Company and another, in which the Knickerbocker Trust Company filed a cross-complaint against the Rockingham Power Company and others. On exceptions by the Knickerbocker Trust Company and others to commissions taxed by the clerk in the cost bill in bis own favor.

<p>Collision (§ 30*) —Evidence.</p> <p>Collision between the steamtug Bee, bound up the East River, and tlie gasoline tug Magnet, bound down the river. The Magnet was on the Bee's starboard hand and the latter hold in fault for failure to navigate according to the starboard hand rule.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 33; Dec. Dig. § 30*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 030.)</p> <p>(Syllabus by the Judge.)</p>

<p>1. Master and Servant (§ 40*) — Action eob Breach or Contract — Evidence.</p> <p>In an action to recover damages for the alleged wrongful termination of a contract of employment by the employer, evidence that both parties anticipated before the contract was made that plaintiff’s net earnings thereunder would be small for the first year or two was admissible as bearing on tho question of damages.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 40.*]</p> <p>2. Principar and Agent (§ 41*) — Action eor Breach-Instructions — Measure oe Damages.</p> <p>In an action for breach by the principal of a contract of agency under which plaintiff’s profits depended on the amount of business done, an instruction that the volume of business done while the contract was in force might be considered in estimating profits, reasonably to be anticipated in tho future if the contract had been continued in force, together with all other evidence tending to explain why such volume was not greater or less, was not erroneous.</p> <p>[Ed. Note. — For other cases, seo Principal and Agent, Dec. Dig. § 41.*]</p>

<p>In Admiralty. Action by Frank F. Crosby and others against the gasoline launch Helys. Richard II. Gillespie, claimant, excepts.</p>

In Equity. Suits by the Chicago & Alton Railroad Company and by the Illinois Central Railroad Company against the Interstate Commerce Commission. These causes are substantially alike and were submitted together for final decree upon bill and answer. Complainants are interstate common carriers.

<p>In Bankruptcy. Separate petitions in the matter of the Hudson River Electric Power Company, of the Hudson River Electric Company, of the Hudson River Power Transmission Company, of the Saratoga Gas, Electric Eight & Power Company, and of the Madison County (Has & Electric Company, alleged bankrupts. Petitions dismissed.</p> <p>These are five independent proceedings, in a sense, and still the same determination that is reached in one should obtain In all for reasons stated. The main question is: Are the corporations involved subject to the bankruptcy law? As the same questions, on similar facts, not identical, are involved in each ease, they will be considered together.</p>

In Equity. Suit by the Oregon Railroad & Navigation Company against Thomas K. Campbell, Clyde B. Aitchison, Oswald West, and A. M. Crawford. On demurrer to bill and motion for preliminary injunction. This is a suit to restrain the Oregon State Board of Railroad Commissioners from putting into operation and effect a schedule of rates for carrying freight upon and along the complainant’s lines of railroad in Oregon.

<p>1. Collision (§ 107*) — Rules fob Preventing Collisions — Stabboabd Hand Rule.</p> <p>The fact that each of two vessels approaching on converging courses knows the destination of the other, and that their courses do not cross, does not affect the application of the starboard hand rule, which, as prescribed by rules 18 and 20 of the navigation rules for the Great Lakes (Act Feb. 8, 1895, c. 64, 28 Stat. 648, 649 [U. S. Comp. St. 1901, p. 28911), requires the vessel having the other on her own starboard side to keep out of the way, and the' other, as the privileged vessel, to keep her course and speed.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. § 224; Dee. Dig. § 107.*]</p> <p>2. Collision (§ 107*) — Rules fob Preventing Collisions — Construction.</p> <p>Rule 20 of the navigation rules for the Great Lakes (Act Feb. 8, 1895, c. 64, 28 Stat. 649 [U. S. Comp. St. 1901, p. 2891]), which requires the privileged of two vessels to keep her course and speed, is subject to exception, by the terms of rules 27 and 28, where special circumstances render a departure from it necessary, in the exercise of good seamanship, to avoid immediate danger, and in such case the observance of it is a fault.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 224; Dec. Dig. 5 107.*]</p> <p>3. Collision (§ 40*) — Steam Vessels — Fault—Violation of Rules.</p> <p>The steamers Kingston and Titania approached the entrance to the mouth of the Genesee river in the evening, at about the same time, the Kingston from the north and the Titania from an easterly direction, and a collision occurred shortly after they entered the channel. Held, under the evidence, that the Kingston entered first, and that the initial fault was that of the Titania, which, under the starboard hand rule, as the burdened vessel, was bound to keep out of the way, but which approached at a speed of 8 miles an hour, and in rounding into the channel negligently ran into the Kingston; that the Kingston was chargeable with contributory fault in maintaining an excessive speed of 10 miles, and in not giving alarm signals, or sooner stopping and reversing, when it became apparent that the Titania was being negligently navigated.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 40; Dec. Dig. § 40.*]</p>

<p>Habeas corpus by Johannis J. Botis against Daniel D. Davies and A. A. Seraphic, Immigration Inspectors.</p>

<p>In Equity. Suits by Eben H. Gay and another against Hudson River Electric Power Company. On motion by the New York Trust Company, as trustee of certain mortgage bonds, to vacate an order of this court, made October 22, 1909, authorizing the receivers herein of the defendant Empire State Power Company to enter into a contract with A. V. Morris & Son, of Amsterdam, N. Y., for furnishing said firm with electrical power for a period of five years from July 1, 1909.</p>

In Equity. Suits by John W. Gantz, Jacob Minor, and Ruth K. Stephens, respectively, against A. K. Eretts and another. On motions to remand to state court.

<p>Action by Daniel C. Rewis against the New York Rife Insurance Company. Plaintiff moves for new trial.</p>

<p>In the matter of Leon M. Berkowitz, bankrupt. On motion to vacate order in the nature of a writ of ne exeat.</p>

<p>In the matter of Leon M. Berkowitz, bankrupt. On review of orders of referee.</p>

In Admiralty. Suit for collision by the Philadelphia & Reading Railway Company, as owner of the barge Rhode Island, against the-tug P. J. T. Co. No. 7 and the tug Nathan Hale.

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

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

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

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

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

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

<p>In Efror to the Circuit Court of the United States, for the Northern District of Texas. S. ■P. Hardwicke, for plaintiff in error. H. M. Chapman, for defendant in error.</p>

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

<p>Appeal and Cross-. Appeal from the Circuit Court of the United States, for the Southern District of Texas.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of New York. This is an appeal from an interlocutory decree of the Circuit Court, Western District of New York, holding certain claims of letters patent 611,438, issued Sept. 27, 1898, to Philips, for a speed wagon, to be valid and infringed. The opinion of the Circuit Court is reported in 100 Fed. 966.</p>

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

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

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

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

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

<p>In Error to the District Court of the United States for the Western District of Texas. Chas. A. Boynton, for the United States.</p>

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