Volume 174 — Federal Reporter

Action by the United States, on relation of Charles W. Bond, trustee in bankruptcy, against George B, Scofield and E. B. Durfee. Judgment for plaintiff, and defendants bring error.

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Libel in rem for salvage against the four-masted schooner Willis A. Holden, by the Charles Nelson Company, a corporation, owner of the steam schooner Charles Nelson, and her master and crew. Decree below for the libelants in the sum of $4,800. Claimant appeals.</p>

Action by the United States against Alfred Abeel, Fannie Einks, as executrix of the will of John H. Finks, deceased, and the Fidelity & Deposit Company of Maryland. Judgment for defendants on exceptions to first amended original petition of plaintiff, and plaintiff brings error.

Suit iti equity by Frank Rockefeller against the National Bank of Commerce of Kansas City, Mo., and others. Decree for complainant, and defendant bank appeals.

Action by Theodore R. Converse, receiver of the Minnesota Thresher Manufacturing Company, against the Gardner Governor Company. Judgment for defendant on demurrer, and plaintiff brings error. .

The facts are slated in the opinion. Thomas C. Miller and Eratik R. Munroe were each convicted of a criminal offense, and each bring error.

Suit in equity by Elbert R. Robinson against the Chicago Railways Company. From a decree dismissing the bill, complainant appeals. This is an appeal from a final decree of the Circuit Court of the Northern District of Illinois, Eastern Division, dismissing a hill in equity to enjoin infringement of two certain letters patent of the United States, issued to appellant, numbered, respectively, 86G,80G and 886,541.

<p>Patents (§ 328*) — Invention—Pyuogkaphtc! Toon.</p> <p>The Tyssowslsi patent, No. 727,034, for a pyrographic tool “comprising a combined pyrographic point and a scorcher,” is void for lack of invention.</p> <p>[Ed. Nole. — Dor other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>In Equity. Suit by the Curtain Supply Company against the National Rock Washer Company.</p>

<p>Patents (§ 328*) — Anticipation and Infringement — Pneumatic Tikes.</p> <p>The Tillinghast patent. No. 497,971, for a pneumatic tire, held not anticipated, valid, and infringed. t</p> <p>[Ed. Note.' — Eor other cases, see Patents, Dec. Dig. § 32S.*</p>

<p>Patents (§ 294*) — Suit fob Infringement — Preliminary Injunction.</p> <p>A preliminary injunction against infringement of a patent will not be granted, where it involves the determination by the court on affidavits of the very issue in the case; nor will it be granted in a doubtful ease or the theory that defendant, if not an infringer, will not be injured thereby.'</p> <p>[Eel. Note — .For other cases, see Patents, Cent. Dig. § 473; Dee Dig. § 294.*]</p>

In the matter of Bluestone Bros., bankrupts. On petition of William M. Ralphsnyder. William' M. Ralphsnyder has presented Ms bill of complaint, in the nature of a petition, in this cause, against Thornton II.

In Equity. Suit by Robert R. Rumbarger against Humbolt Yokum and others. On demurrer to bill.

<p>1. Courts (§ 508*) — Jurisdiction of Federal Court’s — Suit to Unjoin Order of State Commission Fixtnc Rati,road Rates.</p> <p>A railroad company, which has appealed from an order of the Corporation Commission of Oklahoma fixing freight rates to the Supreme Court of the state, as permitted by the stale Constitution, hut was denied leave to give bond to suspend the operation of the order pending the appeal, thus leaving the order of the commission in force, may invoke the jurisdiction bf a federal court to enjoin the enforcement of such order, where it is alleged that the rates fixed thereby are confiscatory and in violation of the Constitution of (lie United States.</p> <p>fEd. Note. — For other cases, see Courts, Cent. Rig. §§ 1418-1428; Dee. Dig’. § 508.*]</p> <p>2. Courts (§ 508*-Jueisdictton of Federal Courts — Remedy Given sr State Constitution.</p> <p>The Constitution of Oklahoma fixes the maximum passenger rates which may be charged by any railroad for Transportation between points in the state at two cenia per mile, but provides that the Corporation Commission shall have power to exempt; any company from such rate on satisfactory proof that it is not compensatory. Held, that such remedy is not exclusive, and does not deprive a railroad company of 1ho right to invoke the jurisdiction of the federal courts, where proper grounds for such jurisdiction are alleged, without first applying to the commission for relief.</p> <p>1 Ed. Note. — For ether cases, see Courts, Cent. Dig. §§ 1418-1428; Dec. Dig. § 508.* I</p>

In the matter of Roth & Appel, bankrupts. Petition to review referee’s decision on motion to expunge claim of Adolph Boskowitz. Held: moreover, that the adjudication terminated the lease. . In Bray v. Cobb (D. C.) 3 Am. Bankr. Rep. 788, 100 Bed. 270 (North Carolina), -the petition and the adjudication were November 30, 1898. The rent claimed was for 16 months to Bebruary 1, 1900. Plainly this rent was of a contingent character.

<p>In the matter of the application of Lung Foot for writ of habeas corpus.</p>

<p>In the matter of William M. McCord, bankrupt. On review of dé-cision of referee.</p> <p>The following is the opinion of Olney, Referee:</p> <p>In this proceeding, Leo Oppenheimer, as receiver [now trustee) in bankruptcy of Frank Squier, filed a' claim against the estate of William M. Mc-Cord, bankrupt. William M. McCord was adjudicated a bankrupt; m uecem-ber, 1907. Thereafter, in January, 1908, Frank Squier was adjudicated a bankrupt, also, in the. Southern district' of New York. The claim filed by Leo Oppenheimer, ns receiver, arises by reason of 35 notes and interest thereon, aggregating $59,3,38.85. The trustee of McCord, bankrupt, moved that the claim of Oppenheimer, as receiver, be expunged in whole or in part. Testimony was taken oil the motion, and briefs of counsel submitted.</p> <p>My conclusion, from the testimony, is that the bankrupt William M. Mc-Cord, and the bankrupt Frank Squier. were, with others, accommodation in-dorsers- of the paper in question, and that each knew that the other was such accommodation indorser. Neither McCord nor Squier received any benefit from the said notes. The notes were discounted, and the proceeds of such discount was received by, or used for the benefit of, the Manufacturers’ Mercantile Company or the Meers Artificial Leather Company. The first eight notes mentioned in the proof of claim, aggregating, with interest, the sum of 818,(>3<8.85, were taken up and paid by Squier before his failure, and are now-held by his trustee in bankruptcy. Some of these notes were taken up before the bankruptcy of McCord, and some after the McCord bankruptcy. The remaining seven notes were not taken up by Squier, and are not held by his trustee in bankruptcy.</p> <p>The trustee contends that Oppenheimer, the trustee of Squier, can only prove on the notes which Squier had taken up prior to McCord’s bankruptcy. But it has been settled by decisions of the courts that the holder of a note indorsed by a bankrupt can prove thereon against the bankrupt estate, although the note had not become payable at the date of the bankruptcy, provided the note was duly protested, and the bankrupt notified thereof after the bankruptcy. lie Gerson (L>. C.) 5 Am. Bankr. It. 89, 105 Fed. 891; Re Gerson. (> Am. Bankr. II. 11, 307 Fed. 897, 47 C. C. A. 49. Here all the notes were (inly protested, and the indorsers duly notified. The holders of the notes at the time of their protest, therefore, could have proved on the notes. Under subdivision “i,” § 57, of the bankruptcy act (Act July ], 3898, c. 541, 30 Stat. 500. 5G1 [U. S. Comp. St. 1903, c. 3443T), upon failure of the holders of the notes to prove thereon against the bankrupt, any other party liable to the holder could prove thereon in the creditor’s name. Hence Squier, after he had taken up eight of the notes, had the right to prove thereon against the bankrupt estate, and to his right Oppenheimer, as trustee, succeeded.</p> <p>The question arises: For what amount can Squier’s trustee prove? All the indorsors of the notes were accommodation indorsers, and known to eacli other so to lie. The first note mentioned in the proof was a note of the Meers Artificial Leather Company for $3.400.38, indorsed by McCord, Henry Berg, II. & .1. T. Slade, and Squier, and delivered, so indorsed, to the payees, C. H. Pope & Co. in payment for merchandise sold by Pope & Co. to the leather company. Squier paid and took up this note. Then the other accommodation indorsers became liable to pay Squier their pro rata share of said note. Each of the oilier indorsers was liable in contribution to pay to Squier one-fourth of said note; there being, with Squier, four such accommodation indorsers. This must be so, unless (lie New York statute, entitled the “Negotiable Instruments Law” (Consol. Laws N. Y. c. 38), lias changed the rule of law in that respect.</p> <p>The counsel for Squier's trustee contends that this statute has changed the rule, and. that McCord, and in fact each of the prior indorsers, is liable to Squier’s trustee for the whole amount of the note; and ihe counsel cites sections 55 and 114 oí the statute in support of his claim. Section 55 provides that an accommodation party to a negotiable instrument is liable to a holder for value, notwithstanding that such holder, at the time of taking the instrument, knew the accommodation party received no value. The section does not mean that one accommodation indorser is necessarily liable to another accommodation indorser, who takes up the paper, for the full amount of the instrument. The extent of the liability depends upon the agreement among themselves, express or implied, of the several accommodation indorsers. When two or more accommodation indorsers lend their names in order that a third person can borrow money from some other person on the instrument thus indorsed, the implied agreement is that each accommodation indorser shall be liable as between themselves for his proportionate share of the sum mentioned in the instrument. The provision in section 114 that any person who indorses a negotiable instrument before delivery is liable t.o the parties subsequent to ihe payee, it seems to me, states what is the presumption, in the absence of any evidence showing what the facts are as regards the rights and liabilities of the various parties as between themselves. In other words, this section was not intended to change the well-established rule of law that parol evidence is always admissible to show what the true relations of the various parties are in fact. See Witherow v. Slayback, 158 N. Y. 649, 53 N. E. 681, 70 Am. St. Hep. 507, and cases there cited; also Kohn v. Consolidated Butter' & Egg Co., 30 Mise. Itep. 725, 63 N. Y. Supp. 265.</p> <p>I do not think the statute was intended to change this rule of evidence. In the case at bar, Squier, an accommodation indorser, takes up the paper, paying its full amount to the holder. It is contended, under the statute, he can recover the full amount from the next three indorsers. If he can recover the full amount, then the indorser from whom he recovers can recover the full amount from the next prior indorser, and the result would be that the first indorser would have to bear the entire burden, which by the implied agreement all the accommodation indorsers were to share pro rata. Thére would be no justice in such a result. As to the eight notes first mentioned in the proof of claim,- Squier’s -trustee can prove against McCord’s estate for Mc-Cord’s pro rata share of liability as one of several accommodation indorsers.</p> <p>With respect;to the seven remaining notes mentioned in the proof, the holders thereof have filed proofs thereon herein, with the exception of the note of the Meers Artificial Leather Company, payable to the order .of Squier, for the sum of $2.500, payable February 7, 1908, which note was also indorsed by McCord, the bankrupt; Squier and McCord both being accommodation in-dorsers. Pursuant to section 57, subd. “i,” the holder of the note having failed to prove thereon, Squier’s trustee has, apparently, the right to prove thereon in the name of the First National Bank of Bound Brook.</p> <p>An order may be entered in accordance with the foregoing opinion. The attention of the trustee is called to the fact that a great number of notes, aggregating a large amount, of this same general character, have been proved herein by the holders, and that all such proofs should be carefully examined, to see that none of these notes are proved twice.</p>

<p>In Admiralty. Suit by W. I,. Wittich, as W. IS. Wittich & Co., against the British steamship Muirfield, and cross-libel by the master of the steamer.</p>

<p>On motion to quash criminal information against the Breakwater Company.</p>

<p>In Error to the Circuit Court of the. United States for the Northern District of Ohio.</p> <p>Action by George Rochford, by his next friend, Alice Rochford, against the Pennsylvania Company. Judgment for defendant on directed verdict, and plaintiff brings error.</p>

Bill by Joseph M. Jenson against the Toltec Ranch Company and the Box Elder Power & Light Company. Decree for defendants, and complainant appeals. The Toltec Ranch Company was a corporation of the state of California, empowered to buy, sell, mortgage, and deal in land, live stock, and general merchandise.

<p>1. Landlord and Tenant (§ 5*) — Contracts of Sale — Validity of Condition — Conveesion of Contract into Lease on Default.</p> <p>A provision in a contract for tbe sale of real estate, under which the purchaser is given possession, that if he shall make default in the performance of any of his engagements the vendor may resume possession and terminate all rights of the purchaser, and that in such case the contract shall become one of lease, and any payments by the purchaser or improvements made on the property shall b'e considered as rental, is valid and enforceable.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. § 3; Dec. Dig. § 5.*]</p> <p>2. Vendor and Püeciiaser (§ 148*) — Breach of Contract by Vendor — Demand foe Payment in Particular Manner.</p> <p>Where vendors of real estate in Colorado resided in Boston, in the absence of a contrary provision in the contract, the purchase money was payable there; and where tender of the deed was made by their agent in Colorado, a demand for payment by certified check was for less, than legally demandable, and did not constitute a substantial breach of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 293; Dec. Dig. § 148.*]</p> <p>3. Vendor and Purchaser (§§ 133, 350*) — Action by Purchaser for Breach of Contract — Defect in Title — Burden of Proof.</p> <p>Under a contract for the sale of real estate, which required the vendors to convey “by a good and sufficient warranty deed in the usual form,” they are not bound to convey by a title dedueible of record; and where the purchaser refused to accept the deed tendered, and sued at law for damages for breach of the contract, on the ground that the deed tendered did not comply with its requirements, he assumes the burden of proving that it did not convey a good title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 234-237; Dec. Dig. §§ 133, 350.*]</p> <p>4. Covenants (§ 08*) — .Covenants Running with tiie Land — Covenant by Contract Purchaser to Keep Buildings in Repair.</p> <p>In a contract for the sale of real estate, under which the purchaser is given possession, and Whjch provides that it shall be binding on the heirs, executors, assigns, and successors of the respective parties, a covenant by the purchaser to make all repairs proper and needful for the suitable maintenance of the buildings and improvements then on the property is one which runs with the land and is binding on an assignee of the purchaser.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 03, 00; Dec. Dig. § 08.*]</p> <p>5. Appeal and Error (§ 173*) — Issues and Questions in Lower Court — Asserting New Defense in Appellate Court.</p> <p>Where the answer to a cross-complaint in an action at law, pleading a counterclaim, was merely a general denial, and the issue of fact tiras joined was tried, submitted to the jury, and determined without objection, and without any other defense to the counterclaim being suggested, the question whether defendant was barred by estoppel from maintaining such counterclaim cannot be considered for the first time in the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1102; Dec. Dig. § 173.*]</p> <p>Philips, District Judge, dissenting.</p>

Action by the Standard Lumber Company against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. This is an action in assumpsit, brought by the Standard Dumber Company, a corporation of the state of Kentucky, against the Chesapeake & Ohio Railway Company, a corporation of the state of West Virginia, to recover $25,000 damages for a breach of contract set out in the declaration, and hereinafter printed in full.

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>Action by Eliza A. Williamson against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Libel in admiralty by the Northwestern Duel Company against the steamer Petoskey; the Dunkley-Williams Company, claimant. Decree for libelant, for less than amount claimed, and libelant appeals. The appellee, owner of the steamer Petoskey, chartered her to the Chicago Transportation Company from May 1, 1906, until December 10, 1906, for a consideration of $5,000.

<p>1. Sales (§ 474*) — Conditional Sales — Effect of Failure to Record Contract— KENTUCKY STATUTE — '“CREDITORS.”</p> <p>In Ky. St. 1903, § 496, providing that, until recorded, chattel mortgages . shall not be valid against a purchaser for a valuable consideration without notice thereof, or against “creditors,” and which applies also to contracts of conditional sale, the word “creditors,” as construed by the state Court of Appeals, does not include general creditors, but only such as have acquired a lien.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1397; Dec. Dig. § 474.*</p> <p>For oilier definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7022. 7023.]</p> <p>2. Bankruptcy (§ 184*) — Property Vesting in Trustee — Property Held by Bankrupt Under Contract of Conditional Sale.</p> <p>Title reserved by a contract of conditional sale, which, although unrecorded, is good as against the purchaser and his general creditors under the laws of the state, is also good as against his trustee in bankruptcy, although some of the creditors became such after the date of the contract.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 181.*]</p> <p>On Rehearing.</p> <p>3. Bankruptcy (§ 468*) — Appeals to Supreme Court — Findings of Fact.</p> <p>General Bankruptcy Order 36. par. 3 (89 Fed. xiv, 32 O. O. A. xxxvi), which provides that, in any case appealable under the act to the Supreme Court, “the court from which the appeal lies shall, at or before the time of entering- its judgment or decree, make and file a finding of the facts and its conclusions of law thereon stated separately,” does not require such a finding to be made in'any case by a Circuit Court of Appeals, unless requested by a party before the entry of judgment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 468.*]</p>

District of Illinois. Action by the William Grace Company against the Henry Martin Brick Machine Manufacturing Company. Suit dismissed for want of jurisdiction, and plaintiff brings error. Plaintiff in error, an Illinois corporation, brought suit at law against defendant in error, a Pennsylvania corporation, in the municipal court of Chicago. 111., and caused service to he bad upon one McClellan, as an agent of defendant In error.

<p>Damages (§ 80*) — Liquidated Damages — Construction of Stipulations — “Penalty.”</p> <p>In a contract for the purchase and sale of an article of merchandise, to be delivered in stated quantities periodically (luring a term of over five years, a provision that in case of breach by either party the other may be released and recover as liquidated damages a sum equal to the. entire purchase xirice to be paid during the term, is one for a “penalty,” having no reference to the actual damages, which in such case are readily ascertain.able, and the amount being grossly excessive in case the contract had been performed for any considerable time before the breac-h.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 170-175; Dee. Dig. § SO.*</p> <p>For other definitions, see Words and Phrases, vol. 0, pp. 5272-527G; vol. 8, p. 7750.]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. ,</p> <p>Action by Emanuel Eederer against Charles Saake. From a judgment for plaintiff (166 Fed. 810), defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States fpr the Eastern District of Illinois.</p> <p>Suit in equity by Jennie H. Haiikey against George R. Hall and Mary A. Hall. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Georgia.</p> <p>Suit in equity by W. J. Oliver against the Savannah, Augusta & Northern Railway Company. Decree for complainant, and defendant appeals.</p>

Suit in equity by the General Electric Company against the San-gamo Electric Company. Decree for defendant, and complainant appeals. The appeal is from a decree dismissing the bill in the Court below for want of equity. The bill was to restrain infringement of letters patent No. 626,89,2. issued June 13, 1899, and letters patent No. 66-1,265, issued December 18, 1900. to Edward S. Halsey, assignor to appellant, for electric meters.

Suit in equity by the Westrumite Company of America against the Commissioners of Rincoln Park. From a decree (164 Fed. 989) on demurrer, dismissing the bill, complainant appeals.

<p>DAMAGES (§ 142'*) — SUFFICIENCY OF OoMPUAlNT — SPECIAL DAMAGES.</p> <p>A complaint alleging that defendant purposely and maliciously and for its own advantage delayed ihe issuance of a i>a.tent to plaintiff on a pending application, by causing another to file an application Cor the same invention, procuring the declaration of an interference, taking successive appeals, etc., does not state a cause of action for the recovery of damages, unless specific damage is alleged; the case being maintainable, if at all, only as one in the nature of trespass on the case for injury and damage to jplaintiff, and the mere postponement of the term of its monopoly not being necessarily to its detriment.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 413; Dec. Dig. § 142.*] ' .1.</p>

Suit in equity by Ferdinand Dieckmann against the Milwaukee Corrugating Company. Decree for defendant, and complainant appeals. The bill in the Circuit Court was to restrain infringement of Letters Patent No. 549,584, issued June 4, 1895, to appellant for improvements in sheet metal, elbows and process of making the same. The claims of the patent are as follows: “1.

<p>1. Patents (§ 328*) — Infringement-—Magazine Firearm.</p> <p>The Browning patent, No. 580.925, for a magazine firearm, claim 14, if conceded invention and validity, held not infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 328*) — Intention.</p> <p>The Browning patent, No. 730,870, for a magazine firearm, claims 37, 38, and 39, are void for lack of invention.</p> <p>[Ed. Note. — Por other cases,'see Patents, Dee. Dig. § 32S.*]</p>

<p>In Equity. Suit for infringement of letters patent No. 658,102, for a pneumatic dispatch system, granted to Charles S. Bavier and James R. Hawkes on September 18, 1900.</p>

<p>1. Bankruptcy (§ 114*) — Duties op Receiver.</p> <p>Where a corporation, defendant in a suit for infringement of a patent, was adjudged a bankrupt, and a receiver appointed for its property, after an interlocutory decree against it and a reference for an accounting as to damages and profits, the receiver cannot be required to prepare a statement of profits for use before the master from the company’s books, or to render any other active assistance to complainant at the expense of the estate, unless he elects to become a party to the suit, but may be required by subpcena to produce the books before the master.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 1141*]</p> <p>2. Bankruptcy (§ 18%*) — Suit for Infringement — Bankruptcy of Defendant.</p> <p>Where a corporation was adjudged a bankrupt, and a receiver appointed for its property, after the entry of an interlocutory decree agaiust it in a suit for infringement of a patent in a Circuit Court, that court will not assume to determine the status of complainant’s claim in the bankruptcy proceedings, nor to control the distribution of funds therein, both of which are questions for the bankruptcy court</p> <p>[Ed. Note. — Bor other cases, see Bankruptcy, Dec. Dig. § 18%.*]</p>

In the matter of Edgar E. Pierson, bankrupt. On application by bankrupt to reopen proceedings. This was an application by the bankrupt to reopen the administration of the estate under Act July 1, 1898, c.' 541, § 2, subd. 8, 30 Stat. 546 (ü. S. Comp. St. 1901, p. 3421), upon the ground that there are newly discovered assets in the form of land, the title to which the bankrupt did not know he held at the time of filing the petition.

<p>1. Indictment and Information (§ 125*) — Duplicity.</p> <p>An indictment under Rev. St. § ñl.'SS (U. S. Comp. St. 1901, p. 3674), which makes it a criminal offense to knowingly make or present for approval to any oiiicer of the United States any false, fictitious, or fraudulent claim against the government of the United States or any department thereof, is not bad for duplicity because it charges that the accused “made and presented-’ such a claim.</p> <p>[Kd. Note. — For oilier cases, see Indictment and Information, Cent. Dig. § 331; Dec. Dig. § 123.*]</p> <p>2. United States (g 123*") — Making anís Presentation of Fai.se Claims AGATNST — 1NDICTMENT.</p> <p>In an indictment, under Rev. St. § 313.8 (U. S. Comp. St. 1901, p. 3674), for making and presenting to an officer for approval a false, fictitious, and fraudulent claim against the United States, which sets out the claim, showing ii to be an itemized account, averments that certain sums charged therein “should luive been” certain smaller sums stated sufficiently shows wherein the claim is false and fraudulent.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 111; Dec. Dig. § 123.*]</p> <p>3. United States (§ 123*) — Making and Presentation of False Claims AG AJ NST — 1NDICTMENT.</p> <p>An indictment, under Rev. St. § 5138 (TJ. S. Comp. St. 1901, p. 3674), for making and presenting to an officer for approval a false, fictitious, and fraudulent claim against the War Department of the United States for supplies furnished the cadet mess at West Point, which describes such officer as a brigadier general in the army and superintendent of the Military Academy at West Point, and alleges that he was an officer authorized to approve such claim, held, on demurrer, to sufficiently show such authority.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 111; Dec. Dig. § 123.*]</p>

Thomas Dranklin was indicted, and demurs to the indictment. The defendant was indicted under section 3391 Rov. St. and Act July 7, 1898. e. 576, § 2, 30 Stat. 717 (U. S. Comp.

<p>In the matter of U. W.^ Day & Company, a corporation, bankrupt. On petition to review action of referee appointing trustee.</p>

In the matter of Moehs & Reclmitzcr, alleged bankrupts. On motion for allow'ance of damages against petitioning creditors.

<p>Actions by Coxe Bros. & Co., Incorporated, by the Berwind-White Coal Mining Company and by the M. P. Smith & Sons Company against the Cunard Steamship Company, Limited, and the City of New York.</p>

<p>3. Public Hands (§ 138*) — Transfer or Itramw— Conveyance or Forest Reserve LANDS TO UNITED STATES — TBANSFER BY 6RANTOB OE RIGHT TO IjIEU JjAND.</p> <p>Act .Tune 4, 1897, e. 2, 30 Stat. 36 (TI. S. Comp. St. 1901, p. 1541), which authorizes the owner of patented lands within a forest reservation to convey the same to the United States and select a tract of vacant public land of equal area in lieu thereof, contains nothing which either expressly or inferentlally would prevent an owner who has so conveyed his land to the United States from executing an instrument which would operate to pass to another such title as he might thereafter acquire to lieu lands selected by him; and a grantee in such an instrument, who purchases and pays for the same in good faith after his grantor has made Ms selection,* although before its approval, on such approval and the issuance of a patent. acquires the title as a bona fide purchaser and is entitled to protection as such.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dee. Dig. § 138.*]</p> <p>2. Public Lands (§ 338*) — Patents—Right or,United States to Cancellation — Bona Fide Purchasers.</p> <p>The United States is not entitled to the cancellation in equity of a X>atent issued for lieu lands in exchange for land in a forest reservation conveyed to it by the patentee under the provisions of Act .Tune 4, 1897, c. 2, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541), on the ground that title to such base land was fraudulently acquired from a state, where the ' patented land has passed into the hands of a bona fide purchaser from the patentee, who had no knowledge of the fraud.</p> <p>[Ifd. Note. — For other cases, see Public Lands, Cent. -Dig. § 368; Dec. Dig. § 138.*</p> <p>Bona fide purchasers, see note to United States v. Detroit Timber & Lumber Co., 67 C. O. A. 13.]</p>

In Equity. Suit by the C. B. Nash Company against the City of Council Bluffs, Thomas Maloney, as Mayor, John Olsen and others, as Al- 1 dermen, and L. H. Jensen. This bill in equity, filed January 5, 1909, is to enjoin the defendant city and officers from the execution and delivery of its bonds or other obligations in the amount of $600,000 for the purpose of raising money to buy or construct a system of waterworks.

<p>In Admiralty. Suit by Michael Chir'urg against the Knickerbocker Steam Towage Company. On exceptions to answer.</p>

<p>1. Courts (§ 310*) — Jurisdiction of Federal Court — Diversity of Citizenship — Change of Interest Pending Suit.</p> <p>Where a citizen of the same state as the defendant is a necessary party plaintiff to a suit in a federal court when it is commenced, the court does not acquire jurisdiction because at some time during the pendency of the suit he may cease to be a necessary party.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. § 310.*</p> <p>Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 G. C. A. 29G.]</p> <p>2. Courts (§ 310*) — Jurisdiction of. Federal Courts — Diversity of Citizenship — “Indispensable Party.”</p> <p>' Under Rev. Laws Mass. c. 111,. §§ 112, 113, which provide- that, when proceedings are commenced by a landowner for the assessment of damages where land is taken for public use, a mortgagee may join as a petitioner, and if lie does not he must he served with notice and permitted to join, and that the interest of tlie mortgagee shall he first satisfied before any part of the damages is paid to the mortgagor, a mortgagee is an “indispensable party’’ petitioner in such a proceeding in a federal court, and where he is a citizen of the same state as defendant tlie court is without jurisdiction.</p> <p>fEd. Note. — For other cases, see Courts, Cent. Dig. § 857; Dee. Dig. § 310.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 35.19.]</p>

<p>1. Removal of Causes (§ 4*) — Suits Removable— Condemnation Proceedings — “Suit of a Civil Nature.”</p> <p>Proceedings to condemn land for public use, instituted in a state court, constitute a “suit of a civil nature,” which is removable, if the requisite jurisdictional facts appear.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dee. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6779, 6780; vol. 8, pp. 7809, 7810.</p> <p>Proceedings under power of eminent domain -as civil suits under laws relating to removal of causes to federal courts, see note to South Dakota Cent. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 73 C. C. A. 183.)</p> <p>2. Removal of Causes (§ 107*) — Jurisdictional Facts — Burden op Proop.</p> <p>The burden rests on a removing defendant to show diveisity of citizenship, where jurisdiction of the federal court is dependent on such fact.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 230: Dec. Dig. § 107.*]</p> <p>3. Removal op Causes (§ 52*) — Diversity op Citizenship — Separable Con-TROVERSr.</p> <p>Under the statutes of New Jersey, which provide for making a mortgagee a party to a proceeding .for the condemnation of land for public use, both owner and mortgagee are indispensable parties and interested in the same questions, and the cause is not removable by the owner, on the ground of diversity of citizenship, where the mortgagee is a citizen of the same state as the petitioner, and it is immaterial th-at the owner alone appealed from the award.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 52.* Separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Meeke v. Valley town Mineral -Co., 35 C. C. A. 155.1</p>

<p>In Equity. Suit by James M. Sullivan against F. Wayland Ayer. On motion by defendant to dismiss for want of jurisdiction.</p>

<p>1. Bankruptcy (§ 228*) — Referees—Orders—Setting Aside — Laches.</p> <p>A motion to vacate an order made by a referee in bankruptcy, on the ground that he was without Jurisdiction to make it, should be entertained at any time and disposed of on the merits; the doctrine of laches having no application in such case.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. § 228.*]</p> <p>2. Bankruptcy (§ 368*) — Trustees—Continuance of Business — Compensation.</p> <p>Bankr. Act July 1, 1898, c. 541, § 2, subd. 5, 30 Stat. 546, as amended by Act Feb. 5, 1903, c. 487, § 1, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1308), providing that courts of bankruptcy may authorize the business of bankrupts to be carried on by receivers or trustees, and allow such officers additional compensation for their services, does not vest the court with power to fix the compensation of a trustee in advance for such services to be rendered in the future.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dea Dig. § 368.*]</p>

<p>Collision (§ 49'*) — -Steam and Saieinc Vessels Meeting- Evidence of Facet —Violation of Rules by Steamer.</p> <p>A steamship entering the Elizabeth river for Norfolk in the early morning, but after daylight, held solely in fault for a collision with a meeting schooner under the evidence, the weight of which showed lhat the schooner kept her course until Hie collision became inevitable, and was making lmt little headway against a strong flood tide and with a light wind, while the steamship, although bound to keep out of the way, and to avoid even risk of collision by slackening speed, and stopping and reversing, if necessary, under rules 20 and 22 of the inland navigation rules (Act June 7, 1897, e. 4, 30 Stat. 101 [XT. S. Comp. St. 1901. p. 2883]), kept ber course and speed directly toward the schooner until within 600 feet, and when if was too late to avoid the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 55; Dec. Dig. § 49.*]</p>

<p>At Law. Action by Charles Manetta against the United Traction Company. Motion to take off nonsuit.</p>

<p>Bankruptcy (§ 241*)— Examination or Bankrupt — Refusal to Answer Questions — Punishment for Contempt.</p> <p>Whore a bankrupt, on his examination before a referee, persistently malíes false or evasive answers, although it is evident that he must be able to reply fully and -correctly, the court is justified in punishing him for contempt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 241.*]</p>

In the matter- of John H. Standring, bankrupt. A decree of adjudication was entered in involuntary proceedings, from which the First State Bank of Corwith, Iowa, by W. C. Oelke, its receiver, appeals.

Suit by Estella Lizzie Reynolds, for herself and her minor children, Lewis P. Reynolds, George M. Reynolds, Naomi E. Reynolds, anil Russell O. Reynolds, against the United States. Erom a decree dismissing the bill, complainants appeal.

<p>1. Shipping Os 49*) — Charter Hire — Deduction for Deficiency ott Men.</p> <p>Tinder a provision of a time charter for a suspension of char tor hire in ease of deficiency of men preventing the working of the vessel, the detention of the vessel in quarantine on account of the crew, after t:lie vessel would otherwise have been released, constituted a constructive deficiency of men.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Dec. Dig. § 49.*</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedio Trading O o. v. George I). Emery Co., 84 O. O. A. 254.]</p> <p>2. Health (<j 24*) — Quarantine Regulations voe Vessels — Construction- - “American.”</p> <p>In regulation 68(c) of the quarantine regulations, authorizing the placing in quarantine of vessels arriving between.May 1st and November .1st from “a tropical American port,-’ ihe word “American'’ is to be construed as meaning the continent of America, or tile Western Hemisphere, and not the United Stales.</p> <p>I Ed. Note. — Eor other cases, see Health, Dec. Dig. § 24.*</p> <p>Eor other definitions, see Words and Phrases, vol. 1, p. 371.1</p>

In the matter of Joseph G. Beale, bankrupt. Appeal by Sydney'J. McCabe, trustee, from an order allowing claims for attorney’s fees to W. D. Patton, the Armstrong County Trust Company, the Farmers’. National Bank, and the Merchants’ National Bank, creditors.

<p>’ In Error to the Circuit Court of the United States for the. - Eastern District of New York. ' ... ...</p> <p>Israel Sapir and Rose Sapir were convicted of receiving stolen property, and bring error.</p> <p>This cause comes here upon a writ of error to review a judgment of the Circuit Court. Eastern District, of New York, convicting Israel Sapir and'lioso Sapir of a violation of the provisions of Act March 3. 1875, c. 1-14, 'jp2; IS Stat. 479 (U. 8. Comp. St. 1901, p. 3*576), which forbids the receiving' of any property stolen from the United Slates, with knowledge that the. Sijme has boon so stolen. The indictment contained three counts, but for some. reason which is not explained the second and third counts were withdrawn i'fóm the consideration of the jury. ■ •</p>

<p>Bankruptcy (§ 71*) — Adjudging Bankrupt Either the Real OwNEit ’or the Nominal Owner.</p> <p>Where a corporation, which was the apparent owner of a business of the class which is within the purview of the bankruptcy statutes, contracting liabilities as such, is allowed to continue apparently as the principal by unknown equitable owners, creditors may sue, on the rules of the common law, against either the corporation or the unknown equitable owner's when discovered, and, therefore, either may be proceeded against by- an involuntary petition in bankruptcy. ■,</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 71.*] .</p>

<p>1. Patents (§ 176*) — Construction op Claims — Gold Dredger.</p> <p>In the Posüethwaite patent, No. 622,532, for a gold-dredging apparatus, claim 3, which contains as one element of the combination “a perforated spray pipe leading into the separator or grizzly from the lower end thereof,” the statement of the location of such pipe as entering the grizzly at the lower end thereof is in the nature of a mere description, and is not a limitation of the claim to that precise construction. (Ross, Circuit Judge, - dissenting.)</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. § 250%; Dec. Dig. § 176.*]</p> <p>'2. Patents (§ 328*) — Infringement—Gold Dredger.</p> <p>The Posüethwaite patent, No. 622,532, for a gold-dredging apparatus, if conceded validity, is extremely narrow, and its essence is' the direct delivery of material from the grizzly with force upon the collecting tables. As so construed, held not infringed.'</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

Appeal' from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in equity by the General Subconstruction Company against Mollie Netcher and others. From a decree (167 Fed. 549) dismissing the bill, complainant appeals. Appellant failed in its suit to enjoin infringement of patent No. 718,441, January 13, -, to Ewen. (C. O.) 3G7 Fed. 549.

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Suit in equity by the General Electric Company against the, Sangamo Electric Company.</p> <p>The appeal is from a decree dismissing the bill in a suit for the infringement of letters patent No. 791,673, issued June 6, 1905, to Frank P. Cox, assignor to appellant, for new and useful improvements in Electric Meters. The claims sued upon are as follows:</p> <p>“11. In a meter, two current armature-paths, means for creating a magnetic field in operative, relation with one of said paths and for creating a magnetic-field of different strength in operative relation with the other of said paths, and means for varying the ratio of the currents flowing through said paths.</p> <p>“12. In a meter, the combination of two armature-paths carrying torque-producing load-currents, and means for varying the ratio of the torques produced by the currents flowing through said t>aths.”</p> <p>“15. In a meter of the type described, the combination of two main-current armature-paths in multiple and in which the currents conspire to produce rotation. and means for adjusting the proportion of current flowing through said paths.</p> <p>“16. In a meter of the type described, the combination of two main-current armature-paths in which the currents conspire to produce rotation, and means for adjusting the proportion of current flowing through said paths.</p> <p>“17. In a mercury motor meter, the combination with a main armature-current path, of a second armaturo-cnrrent path producing a lesser torque, and means for ■ changing the distribution of current in said paths to adjust the ■ action of the meter.</p> <p>“18. In an electric meter, a receptacle, a disk of conducting material rotata-bly mounted therein, a body of conducting fluid contained by the receptacle in contact with the disk, means for establishing electrical connections between the fluid and an outside conductor at two different points adjacent the periphery of tlic disk, a second conductor also electrically connected to the conducting fluid, means for causing current to flow from one conductor to the other conductor through the conducting fluid and disk in two paths, ono of said paths being between one of said points and said second conductor and the other of said paths being between the other of said points and the second conductor and means for causing magnetic lines of force to intersect said paths, the density of the lines intersecting one path being greater than the density of the lines intersecting the other of said paths.</p> <p>•‘10. In an electric meter, a receptacle, a disk of conducting material ro-tatably mounted therein, a body of conducting fluid contained by the receptacle, in contact with the disk, means for éstablishing electrical connections between the fluid and an outside conductor at two different points adjacent the periphery of the disk, a second conductor also electrically connected to the conducting fluid, means for causing current 1o flow from one conductor to the other through the conducting fluid and disk in two paths, one leading from each of said points, and means for creating magnetic lines of force in co-operative relation with said current-paths, the density of the lines in co-operative relation with one of said paths being greater than the density of the lines hi co-operative relation with the other of said paths.</p> <p>“20. In an electric meter, the combination with two armature-paths carrying the load-current and having different torque-producing effects, of a loop or branch conductor connecting said paths.”</p> <p>The original application did not contain these claims.</p> <p>The invention is set forth in the following descriptive portion of the patent —the patent issuing, as to its descriptive portion, in exactly the language of The application:</p> <p>'“My invention relates, to an electric meter in which a current-carrying movable member floats in some conducting fluid, such as liquid mercury. Heretofore in the construction of meters of this character the shaft connecting the movable element of the indicating mechanism lias been extended above the surface of the fluid in which the movable element of the meter has been submerged. 1 have found that the construction and operation of meters of this character can he improved by entirely submerging both the movable element of the meter and its shaft. Among other advantages obtained by this construction the skin friction between the submerging fluid and the shaft where the shaft leaves the surface of the mercury, which would otherwise exist, is done away with. The meter may also he prepared more readily for shipment.</p> <p>“With my improved meter the motion of the movable element of the meter is transmitted to the indicating mechanism by means of the magnetic attraction existing between a mass of magnetic material carried by the shaft and another mass of magnetic material outside of the submerging fluid connected to the indicating mechanism.</p> <p>“My meter also possesses novel means for making its accuracy independent, of temperature variations and for preventing the injurious amalgamation of the connecting leads.</p> <p>“Other characteristic features possessed by my improved meter will bo pointed out in the specification, in which I have hereinafter described in detail one embodiment of my invention.</p> <p>“The accompanying drawing is a sectional elevation showing my improved meter.</p> <p>“ Referring to the drawing, a supporting-frame 1 of ordinary construction supports the operative mechanism of the meter. Upon the support 1 is mounted the casing 2, holding the conducting fluid 3. This fluid is preferably mercury. Bearings 4 and 5 are formed on the inside of a casing at the top and bottom, respectively. The movable element or member of the meter comprises a shaft 0, pivoted between these bearings and having mounted upon it a current-carrying member 7, which is a disk of conducting • non-maguetic metal. Preferably the material out of which the disk is made is copper; but other metals may be used. In order to prevent an excessive upward pressure against the bearing 4 due to difference in the specific gravities of the mercury and the movable element, a weight 16, of some suitable material, such as tungsten, heavier than the surmerging fluid, is carried by the shaft. This weight is also submerged.</p> <p>“In tile construction which I have shown in the drawing the casing 2 is-formed in two sections 8 and 9, and the sections comprise central tubular portions 10 and 11, respectively, and circular substantially plane portions 12 and 13 at right angles thereto. In addition the lower section 9 is formed with a tubular portion 14 at the periphery of the plane portion 13. The plane portions 12 and 13 are separated by the tubular portion 14 to form a cylindrical space in which the dish 7 is placed. These portions are so proportioned that the distance separating the disk from the portions 12, 13, 14 is comparatively small. The sections are secured together by screws 15 to form a tight joint. The casing may be formed of suitable noil-magnetic material, such as copper, brass, or aluminum.</p> <p>“A shaft 17, extending in alinement with the shaft 6, is pivoted externally of the casing 2 -at the upper end of the tubular portion 10 and is geared to the indicating mechanism of the meter. The shaft 17 carries a U-shaped piece of magnetic metal 18. The legs 19 of the U-shaped portion straddle the tubular portion 10 of the casing 2. The shaft 6 carries a piece of magnetic material 20, 'which extends transversely to the shaft to near the inner surface of the inclosing easing. One or both of the members 18 and 20 are permanently magnetized. Hence arty rotation of the shaft 0 will cause a corresponding rotation of the shaft 17.</p> <p>“The meter is shown in the drawing as employed to measure the current flowing in the line 21. One side of this line is connected to the binding-post 22, carried by the tubular portion 11 of the casing. The other side of the-line is connected to binding-posts 23 and 24 through branch conductors 25 and 26, respectively. The binding-posts 23 and 24 are carried by the tubular portion 24 of the casing and are shown as diametrically opposed to one another. Within the meter the load current flow is in two paths, one between the binding-posts 22 and 23 and the other between the binding-posts 22 and 24, and the current in each path is carried partly by the casing, partly by the mercury, and partly by the disk 7.</p> <p>“Magnets 27 and 28 are placed with their poles upon opposite sides of the portion of the casing which incloses the disk 7 in such position that the fields of force produced by them traverse the space through which the current flowing between the posts 22 and 23 and 22 and 24, respectively, passes. The reaction between the flux or lines of magnetic force and the currents in the two paths produce torques tending to turn the disk, -as is well understood, and the magnets 27 and 28 have their poles so placed that they both act upon 'the current carried by the disk, to produce a rotation of the disk in the same direction.</p> <p>“The principal retarding force acting upon the disk 7, tending to restrain its rotation, is that due to the eddy-currents caused in the disk by its movement through the fields of the magnets 27 and 28. The effect of increasing the temperature of the disk from any cause is to increase its electrical resistance. This cuts down the eddy-currents, and so reduces the retarding forces, tending to restrain the rotation of the disk. As a result of this -there is a tendenc}r for a meter of this character to run too fast when the disk is heated in any manner. The heating of the meter may arise from the current carried or from the location in which it is placed. To avoid this error, I have made the magnet 28 stronger than the magnet 27, and I have placed resistances 29 and 30 in the lines 25 -and 26, respectively. The resistance 30 is made out of some material, such as iron wire, which has a high temperature coefficient. The resistance 29 may be made out of some material, such as German silver, having a very low coefficient of resistance, or it may be made out of some material, such as graphite, which has a negative temperature coefficient. As a result of this construction a change of temperature disturbs the distribution of the current between the lines 25 and 26. When the temperature of the system, is raised, more of the current passes through the resistance 29 and less through, the resistance 30. The current passing through the resistance 29 passes through the field produced by the weaker magnet 27. The result of this change in division or the current therefore is to reduce the torque tending to rotate the disk 7. A decrease in temperature will of course produce an opposite change in the current distribution and torque. If the resistances 29 and 30 and the strengths of the magnets 27 and 28 are correctly proportioned, a meter may be obtained in which the changed retarding effect, clue to a change in the temperature of the disk 7 and resistance 29 and 30, will he exactly met by a corresponding change in turning torque.</p> <p>“The binding-posts 22, 23, and 24 are preferably made of iron or other non-amalgamating metal, as when made of the ordinary material, such as copper or brass, or when the wires 21, 25 and 26 are directly connected to the mercury, there is a tendency for the mercury to amalgamate with the wires, rendering them brittle and destroying their tensile strength. This difficulty is avoided by making the binding-posts of iron. Instead of making the binding-posts of iron I may place a section of iron or other non-amalgamating metal at some other point in the meter-circuit.”</p> <p>The drawing to which the descriptive portion refers, follows:</p> <p> </p> <p>The appellee manufactured and sold electric meters embodying the feature» shown, described and claimed in letters patent No. 816,922, granted to Robert C. Lanphier, April 3, 3906, a diagram of which follows:</p> <p> </p> <p>In the brief for appellant, the construction and combination embodied in the two patents are described as follows:</p> <p>“Comparing now this construction and combination of elements with the construction and combination described in the patent in suit for adjusting the speed, of an electric meter, it will be seen that they are substantially the same in all essential particulars, differing only in minor details, and that they are both designed to and in fact accomplish the same result in the same manner. In each case the current is divided so as to flow across the armature in two paths.</p> <p>“In each case one of these paths leads across a weaker magnetic field than the other.</p> <p>“In each case there are provided means for varying the ratio of the current flow through said paths so that the total turning effect or torque may be made to produce a speed which will correspond with the rate at which the current flows through the meter.</p> <p>“In each case the means for varying the ratio of the currents depends upon the ratio of the resistance of the two paths which are provided for the currents, the only difference being that in the patent in suit automatic means are described for varying the ratio of these resistances while in defendant’s meter the ratio is varied by manual adjustment.”</p> <p>The further facts are stated in the opinion.</p>

<p>1. Courts (§ 322*) — Jurisdiction op Federal Courts — Pleadings.</p> <p>In a suit, in equity in a federal court, an allegation of complainant’s citizenship in the bill, though denied in the answer,'stands admitted, unless a plea to the jurisdiction is filed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 882; Dec. Dig. § 322.*]</p> <p>2. Patents (§ 256*) — Licenses—Restriction on Usé of Patented Article-Infringement.</p> <p>A contract by the user of a patented machine, under which he obtained such machine from the owner of the patent, that it shall be used only in connection with an article also made and sold by such owner, is valid and binding upon such user, even though he buys and pays for the machine and is vested with the legal title thereto, and its use by him in violation of the restriction imposed by such contract is an infringement of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, -Dec. Dig. § 256.*]</p> <p>3. Patents (§ 259*) — Infringement—Contributory Infringement.</p> <p>The furnishing to the user of a patented machine, under a license binding it to use such machine only with an article purchased from the owner of the patent, of similar articles made in imitation of those of the patentee, and adapted for use and used only on such machines, constitutes contributory infringement.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig'. § 259.*</p> <p>Contributory infringement of patents, see notes to Edison Electric L. Co. v. Peninsular Light, P. & II. Co., 43 C. C. A. 485; Aeolian Co. v. Harry H. Juelg Co., 86 C. C. A. 206.]</p> <p>4. Patents (§ 328*) — Invention—Bottle Stopping Device.</p> <p>The Painter patent, No. 468,258, for a bottle sealing device, was not anticipated, and covers a patentable combination; also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p>

<p>Street Railroads (§ 58*) — Operation m Receivers — Traffic Contracts with Other Companies.</p> <p>Authority granted to tlie receivers of a New York City street railway company to enter into a proposed traffic arrangement with a suburban company, by which each company is given the right to run its cars over a portion of the line of the other to carry passengers without change and for a single fare to points on such lines.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 135; Dee. Dig. § 58.*]</p>

At Taw. Action by Emma V. Coppock against the Baltimore & Ohio Railroad. Company. On motions by defendant for a new trial and for judgment notwithstanding the verdict.

<p>In admiralty. Suit by Axel Falkenstrom against the steam tug M. E. Luckenbach.</p>

In Equity. Suit by the Trust Company of America against the Norfolk & Southern Railway Company to foreclose mortgage. On petition of Fergus Reid to be allowed to intervene as an individual bondholder.

<p>Collision (§ 64*) — Evidence—Negligence.</p> <p>Collision near the West Bank Light, New York Bay, between the steamship Hortensius and a scow in tow on a hawser of the tug Palmer. Held that the sc-ow was properly lighted and the collision was the result of fault on the part of the Hortensius in not having a proper lookout and on the part of the tug in not keeping her tow on the starboard side of the channel.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 81. 82: Dec. Dig. § 64.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Evidence (§ 333*) — Shipping- (§ 58*) — Delivery of Cargo — Dispute as to Quantity — Evidence—Government Tallies.</p> <p>Delivery of sugar cargoes at. Yonkers, New York. Disputes as to the quantities delivered by the steamships determined in favor of the government tallies and the respondent’s tallies. Also held that the cross libellant was entitled to recover wharfage.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257. 1259-1265; Dec. Dig. § 333 ;* Shipping, Dec. Dig. § 58.*]</p> <p>(Syllabus by the Judge.)</p>

<p>In the matter'of Chin Hen Lock. Hearing on writ of habeas corpus.</p>

<p>Collision (§§ 56, 129, 132*) — Evidence—Overtaking Vessel — Salvage.</p> <p>Collision in Chesapeake Bay between the schooner Charles O. Lister and the hawser of a line of barges in tow of the tug Bohemia by which three of the barges, were cut adrift. Proceedings in the United States District Court for the Eastern District of Virginia' resulted in a salvage award in favor of a rescuing tug. Held, that the barges were duly lighted, and that the schooner was an overtaking vessel and in fault for the collision because of a defective lookout. Also held, that the Transportation Company and Redman were entitled to recover the amount of salvage awards with costs paid by them and that the latter should recover the value of the broken hawser.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 283; Dec. Dig. §§ 56, 129, 132.*</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C, A. 254.]</p> <p>(Syllabus by the Judge.)</p>

<p>Action by the India Refining Company against the steamship Nei-denfels.</p>

<p>Shipping (§ '51*) — Charter Party — Loss of Time op Yessed — Liability.</p> <p>The contract provides tbat tbe vessel should be under the orders of Hie charterer but when negotiations were taking place for the renewal of-the charter, the owner was communicated with by its, agents in New York and it instructed them to wire the vessel to sail. Held, that the sending of the cable was -at the risk of the owner and it should bear the loss consequent upon the nondelivery.</p> <p>[Ed. Note. — -For other eases, see Shipping, Dec. Dig. § 51.*]</p> <p>(Syllabus by the Judge.)</p>

<p>At. Raw. Action by George H. A vent against the Deep River. Dumber Company. On motion by plaintiff to remand to state court.</p>

<p>SniPPiNG (§ 58*) — Charter Party — Loss op Vessel — Liability op Charterer.</p> <p>, Sinking of earfloat at Maurer, New Jersey. xY claim of faults upon tlie . part of the Asphalt Company in failing to properly care for the libellant’s float, which sank at the respondent’s wharf, not sustained, there being no proof to show any negligence on the part of the respondent.</p> <p>[Ed. Note. — For other cases, see Shipping, Dee. Dig. § 5S.*]</p> <p>■ (Syllabus by the Judge.)</p>

<p>3. Judgment (§ 108*) — Effect op Question Reserved — Verdict.</p> <p>Wberc, in accordance with the Pennsylvania practice, the question is reserved whether there is any evidence to go to the jury in support of plaintiff's claim, and verdict is returned for the defendant, he is entitled to the benefit of such verdict if he would have been entitled to judgment on the reserved question notwithstanding a verdict for plaintiff.</p> <p>[Ed. Note.- — For other cases, see Judgment, Dee. Dig.’ § 19S.*]</p> <p>2. Ferries (§ 32*) — Injurs to Passenger — Assumed Risk.</p> <p>Under the law of Pennsylvania a passenger on a ferryboat, having - passenger apartments and also a central gangway designed for horses and wagons, who voluntarily, and without necessity takes his place in such gangway, assumes the risk of injury due to such location.</p> <p>[Ed. Note. — For other cases, see Ferries, Dec. Dig. g-32.*]</p>

<p>1. Mortgages (§ 587*) — Operation and Effect of Foreclosure Decebe — Rights of Junior Incumbrancers Not Parties — “Proceeding in Rem.”</p> <p>A suit in equity for the foreclosure of a mortgage is not a “proceeding in rem” in such sense that the decree and sale therein can cut off rights of third persons, not parties to the suit, in the property acquired from the mortgagor subsequent to the mortgage.</p> <p>[Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 1685-1688; Dec. Dig. § 587.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3481-3483; vol. 8, p. 7684.]</p> <p>2. Waters and Water Courses (§ 158*) — Contracts Creating —Right of Pi.owage.</p> <p>Defendants, who were owners of quartz mills on a stream, entered into contracts with the owner of placer mines situated below, which were worked by means of water taken from the stream through flumes and pipes, by which, for a valuable consideration paid and to be paid, they were released for a stated term from any' and all claims for damages by reason of injury to the reservoirs or pipes of the lower proprietor caused by the tailings and debris deposited, or which might be deposited, in the stream by defendants from their mills; the contracts to be binding upon the successors and assigns of the parties. Held, that such contracts granted an easement to defendants to have the tailings from their mills flow through the reservoirs, sluices, and pipes upon the placer property,, which continued during the designated term as against a subsequent purchaser of the property.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 184, 186-188; Dec. Dig. § 158.*]</p>

'Appeal from the Circuit Court of the United States for the District of Colorado. Suit in equity by Francis F. Bouck, administrator .with the will annexed of Mary Connolly Andrews, and Michael Connolly, against Patrick K. Connolly, Decree for complainants, and defendant appeals.

the District of Utah. Bill by William J. Wilson, by Murray M. Kellogg, his next friend, against the Plutus Mining Company and others. From a decree sustaining the demurrer and dismissing the bill, complainant appeals.

Appeals from the Circuit Court of the United States for the District of Minnesota. Suit in equity by the St. Paul, Minneapolis & Manitoba Railway Companjr, and the Great-Northern Railway Company, as its successor, against the Western Union Telegraph Company and the Northwestern Telegraph Company. From the decree, all parties appeal.

Proceeding by the United States for the forfeiture of seven hundred and seventy-nine cases of molasses; C. E. Coe, claimant. Judgment for claimant on directed verdict, and the United States brings error and appeals.

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Bernard Stavrahn, bankrupt. On petition to review order of District Court.</p> <p>This cause comes here upon a petition to revise an order which adjudged the bankrupt to be in contempt of that court, ordered him to pay within five days to the trustee in bankruptcy the sum of $5,000, and in case of his..failure so to do directed that he should forthwith be committed to jail for'a period -of six months.</p>

<p>1. Banicrutoy (§ 149*) — Property Passing to Trustee — Life Insurance Por.icv.</p> <p>A policy of insurance on the life of a bankrupt, payable to his wife if she survives him, but. if not, to his estate or designated beneficiary, and which he has. the right to surrender at any time for paid-up insurance “or other value,” is not the property of the wife, but of the bankrupt, during his lifetime, and passes to his trustee, where the company is Willi ing to pay a cash surrender a alue.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Die. § 201; Dec. Dig. § 14:!.*]</p> <p>2. Bankruptcy (§ 143*) — Property Passing to Trustee--Life Insurance Pouter.</p> <p>Domestic Relations Daw N. Y. (Consol. Daws N. Y. c. 14) § 52, which authorizes a wife 1o cause the life of her husband to be Insured for her benefit, applies only to policies which are her own absolute property, payable to her estate, and which she may dispose of by will, and in any event cannot be invoked to prevent a policy on the life of a bankrupt, which does not contain such provisions, from passing to his trustee, where the wife is not a party to the proceedings, nor asserting any claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 201; ¿lee Dig. § 14:!.*]</p> <p>Coxe, Circuit .judge, dissenting.</p>

<p>Bankruptcy (§ 368*) — Compensation of Trustees — Conducting Business of Bankrupt.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2 (5), 30 Stat. 545, 546 (U. S. Comp. St. 1901, p. 3421), as amended in 1903 (Act Feb. 5, 1903, e. 487, 32’ Stat. 797 [U. S. Comp. St. Supp. 1909. p. 1308J), providing that the court may “authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, * * * and allow such officers additional compensation for such services, but. not at a greater rate than in this act allowed trustees for similar services,” such additional compensation rests in the discretion of the court, having regard to the nature of the service rendered, and is not limited to the allowance of commissions on money disbursed in the conduct of the business at the rale -fixed for trustees by section 48a, as amended in 1903 (Act Feb. 5,. 1903, c. 487, 32 Stat. 799 ru. S. Comp. St. Supp. 1909, p. 1313]), which cannot be made applicable to such services.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 308.*]</p>

<p>Master and Servant (§ 279*) — Master’s Liability fop. Injury to Servant —Action—Sufficiency of Evidence.</p> <p>Evidence held to wholly fail to sustain the allegation of a railroad fireman that a collision in which he was Injured was due to the incoinpe-tency of another employe, but, on the contrary, to show affirmatively that such employe possessed the required competency for the duties of his position.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 279.*]</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. In the matter of A. O. Brown and others, bankrupts. On motion to dismiss petition for review, filed by Charles E. Littlefield, trustee.

Petition to Review Order of tlie District Court of the United States for the Southern District of New York. In the matter of lien.iamin Light, bankrupt. On petition to review order of the District Court.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Casein Company of America against the A. M. Collins Manufacturing Company. Decree for defendant (i72 Fed-237), and complainant appeals.</p>

<p>1 Courts (§ 372*) — Federal Courts — Authority of State Decisions.</p> <p>Whether or not a certificate of deposit is a negotiable instrument, when not controlled by statute, is a question of general commercial law, upon which a federal court is not concluded by state decisions.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 979; Dec. Dig. 8 372.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 73 ; Hill v. Hite, 24 O. O. A. 553.]</p> <p>2. Bills and Notes (§§ 153 . 443*) — Certificates of Deposit — Negotiable Character — Rights of Indorsee.</p> <p>A certificate of deposit in the usual form, payable to the depositor, with interest, at a stated time, in current funds, on Its return properly in: dorsed, is a negotiable instrument having the qualities of a negotiable promissory note, and an indorsee may sue thereon in his own name.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 380, 1380; Dec. Dig. §í¡ 151, 443.*]</p> <p>S. Bills and Notes (§ 151*) — Certificates of Deposit — “Negotiable Instrument” — Pennsylvania Statute.</p> <p>A certificate of deposit in ordinary form is a “negotiable instrument,” within the provisions of the Pennsylvania negotiable instrument act of 1901 (P. Yj. ]94).</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. | 3S0; Dec. Dig. § 153.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4767-4770; vol/ 8, p. 7731.]</p>

<p>.1. Waters and Water Courses (§ 200*) — Water Companies — Furnishing Water to City — Contract—Substantial Performance.</p> <p>Under a contract between a water company and a city for the furnishing of water to the city for fire purposes, which required the company to maintain a certain pressure at the hydrants, and provided that in case It failed to comply with the contract it should he served with notice, ‘’and from and after service of such notice” rental should cease and not again begin to accrue until the deficiency was remedied, the city cannot avoid the payment of rental on the ground that a test made by it within three months before the expiration of the contract showed that the pressure was not up to its requirements, where no notice of the fact was served on the company, and especially where, at prior tests, the pressure had also been below that required, but the city had continued to accept the service without objection, and it was also shown that to maintain the full pressure required would seriously injure the private water service, which was dependent on the same'pumps.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 274; Dec. Dig. § 200. *1</p> <p>2. Waters and Water Courses (§ 203*) — Water Companies — Furnishing Water to City — Compensation.</p> <p>The receiver of a water company furnishing water to a city for fire purposes without contract as to price is entitled to recover, as a fair compensation for the service, a just proportion of the operating expenses, taxes, and cost of administration paid by the company, and of a just and reasonable return on the cost of reproducing its plant and its going value.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*]</p> <p>3. Waters and Water Courses (§ 203*) — Water Companies — Reasonable Rates.</p> <p>The receiver for a water company authorized to increase the rates to be charged to private consumers for water furnished.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290, 292; Dec. Dig. § 203.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by John T. Ship against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Insurance (§ 4*) — Insurance Companies — Special Deposits — Kansas Statutes.</p> <p>Laws Kan. 1871, p. 214, c. 93, regulating insurance companies, as amended by Laws Kan. 1879, p. 225, c. 115, did not require insurance companies organized or doing business in the state to deposit $100,000 of securities with the State Treasurer as a condition to the doing of such business: section 49 of the original act, which alone required such deposit, being expressly repealed by tbo amendatory act.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 4.*]</p> <p>2. Insurance (§ 4*)- — Control and Regulation — Mutual Companies — Kansas Statutes.</p> <p>Laws Kan. 1879. p. 225, c. 115, relating to insurance companies, and entitled “An act supplemental to and amendatory of chapter 93 of the Laws of 1871,” must be construed in connection with the unrepealod portion of the act of which it was amendatory, and, as so construed, neither act applied to mutual or eo-oi>erative life insurance companies having no capital stock.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 4.*]</p> <p>3. Insurance (§ 4*) — Control and Regulation — Special Deposits — Kansas Statutes.</p> <p>Gen. St. Kan. 1901, § 3424, which was an embodiment of section 1 of the insurance act of 1879 (Laws Kan. 1879, p. 225, c. 115), and the only statute 'of the state requiring insurance companies to deposit securities with the State Treasurer, was expressly repealed by Laws Kan. 1903, p. 511, c. 330, § 2, and under article 12, § 1, of the state Constitution, which provides that “corporations may be created under the general laws, but all such laws may be amended or repealed,” such repeal was effective amj operative as to any insurance company organized under the law& of the state and also as to their stockholders and policy holders, and such com-pañíes were no longer required to make such deposits or to maintain, deposits previously made-under the repealed provision.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Dec. Dig. § 4.*]</p> <p>4. Insurance (§ 679*) — Reinsurance op Life Policies — Construction of Contracts.</p> <p>A Kansas mutual life insurance company, then in the hands of trustees • appointed by a court, under authority of Laws Kan. 1903, p. 520, c. 336, and by a vote of its policy holders, accepted a proposition made by complainant, an Illinois stock company, to reinsure its policies, and in accordance therewith a contract was entered into and embodied in a decree of the court for such reinsurance, and which provided as a condition thereof that the trustees should assign and transfer to complainant all the assets, securities, and property of every kind of the Kansas company; the decree also authorizing complainant to bring any suits necessary to reduce such assets to its possession. At that time the Kansas company had a large amount in securities on deposit with the State Treasurer, but was not required by the laws of the state to maintain such deposit. Held, that there was nothing in the contract which obligated complainant to maintain such deposit; but, on the contrary, it was entitled to recover the securities from the treasurer, who had no authority of law to hold them.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Dec. Dig. § 679.*]</p> <p>5. Insurance (§ 679*) — Reinsurance of Life Policies — Construction of Contract.</p> <p>Complainant life insurance company reinsured the policies of a Kansas company which went into liquidation, and by the contract became entitled to possession of all the assets of such company, including a large amount in securities then on deposit with the State Treasurer of Kansas, but without authority of law. Complainant wrote a letter to each policy holder, in which, among other representations, it stated that such deposit would be maintained. Held, that such statement did not estop it from afterward withdrawing the securities whether made before or after the contract, since, if before, it was superseded by the contract which contained no such provision, and, if after, it was merely promissory or the statement of an intention.</p> <p>[Ed. Note. — For other eases, see Insurance, Dec. Dig. § 679.*]</p>

Action by Charles E. Moore against Thomas E- Beiseker and Charles H. Davidson, Jr. Judgment for plaintiff, and defendants bring error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Action by Mary K. Foreman and Mary E. Foreman against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

In the matter of the Pittsburgh Industrial Iron Works, bankrupt, of which the Guarantee Title & Trust Company was trustee. The Title Guaranty & Surety Company appeals from an order denying priority to its claim.

<p>Internal Revenue (§ 38*) — Suit to Recover Taxes Paid — Limitation.</p> <p>Rev. St. § 3220 (U. S. Comp. St. 1901, p. 2088), provides that no suit shall be maintained for the recovery of any internal tax alleged to have been erroneously collected “until appeal shall have been duly made to the Commissioner of Internal Revenue * * * and a decision of the Commissioner has been had therein: Provided, that if such decision is delayed more than six months from the date of such appeal, then the said suit may be brought, without first having a decision of the Commissioner, at any time within the period limited in the next section.” Section 3227 provides that no such suit shall be maintained. unless brought “within two years next after the cause of action accrued.” Held, that the proviso of the former section is permissive only, and does .not compel a claimant to bring suit within two years and six months after taking appeal in any case, but that he may at Ills election await the decision of the Commissioner, and. if adverse, bring suit within two years thereafter.</p> <p>[Ed. Nine. — For other cases, see Internal Revenue, Dec. Dig. § 38.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota. ' ■</p> <p>Action by William G. Hysltip against the City of St. Paul. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Oswald A. Newsome against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>BANKRUPTCY (§ 54*) — INVOLUNTARY PROCEEDINGS — EVIBENCE OF INSOLVENCY.</p> <p>A merchant, who was indebted, but solvent, took a partner, to whom be ■sold a half interest in bis stock, but not in bis credits, receiving payment therefor, and applying the amount on his debts, which were not assumed by the firm. Later the partners organized a corporation, to which the firm property and business were transferred. Held that, in bankruptcy proceedings against the corporation, the petitioners could not, for the purpose of proving its insolvency, charge it with liability for the outstanding Individual debts of the first owner of the business, the holders of which made no claim against the corporation, and for which it was in no way liable; the several transactions having been in good faith and without fraud.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 84; Dec. Dig. § 54.*]</p>

<p>In Error to the District Court of the United States for the District of Utah.</p> <p>Action by the United States against the Rio Grande Western Railway Company. Judgment for defendant, and the United States brings error.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Mamie E. Wigg against the Erie Railroad Company. Judgment for defendant on directed verdict, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of New York.</p> <p>Action by Harry Fldridge and Elwood Blessing against John G. Ward, Collector of Internal Revenue for the Fourteenth district of New York. Judgment for defendant (155 Fed. 253), and plaintiffs bring error.</p> <p>On writ of error to review a judgment entered October 30, 1907, in the Circuit Court for the Northern District of New York upon the decision of the court, a jury trial having been waived, dismissing the complaint, with costs. The action was brought to recover of John G. Ward, as collector of internal revenue, 81,804.88, alleged to have been unlawfully collected by him as taxes under the war revenue act of June 13, 1898. The taxes were imposed upon plaintiffs’ business as stockbrokers, commonly known as a "bucket shop." The opinion of the Circuit Court is reported in 155 Fed. 253.</p>

<p>1. Carriers (§ 280*) — Carriers of Passengers — Degree of Care Required.</p> <p>Under the law of New Jersey a carrier of passengers is bound to exercise the highest degree of care, which prudent and careful men would under such circumstances exercise to carry the passengers safely.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1087; Dec. Dig. § 280.*)</p> <p>2. Carriers (§ 348*) — Action for Injury to Passenger — Instructions.</p> <p>Instructions of the court, in an action against a trolley company to recover for an injury to a passenger, considered and read as a whole, helé correct, and the refusal of requested instructions not error.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1407; Dec. Dig. § 348.*]</p>

<p>Petition to Review Orders of the District Court of the United States for' the Southern District of New York, in .Bankruptcy.</p> <p>In' the matter of Samuel D. ’ Isaacson, bankrupt. On petition by Harding, Whitman & Co. to revise orders of the District Court.</p> <p>This cause comes here upon a petition to revise two orders of the District Court, entered October 26, 1908. One of these orders confirmed a report of the special master, which overruled objections filed by petitioner to various petitions for allowances and to the accounts of the receiver. The other order denied a motion to set aside -such report.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by George W. Robinson against the National Tube Company. Judgment for plaintiff, and he brings error.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p> <p>In the matter of Jacob Berry & Co., bankrupts. On petition of James D. Butcher to review an order of the District Court (146 Fed. 623).</p>

<p>1. Patents (§ 168*) — Construction—Estoppel by Proceedings in Patent Office.</p> <p>In interference proceedings between two applicants for patents, one was successful on proof of priority of invention, whereupon bis opponent purchased his application and substituted for the claims therein two claims from his own pending application, and the patent was granted thereon. He had previously, through counsel, expressed an opinion as to the meaning of such claims to differentiate them from a prior patent, which, however, was also antedated in invention by the applicant in whose application the claims were later embodied; Held; that such expression of opinion did not estop him from insisting on a broader construction after the patent was issued, .which might have been claimed by the original inventor.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. § 168.*</p> <p>Conclusiveness and effect of decisions of Patent Office in proceedings on applications, see note to Novelty Glass Mfg. Co. v. Brookfield, 95 O. C. A. 530.]</p> <p>2. Patents (§ 328*) — Validity and Tntrtn-okiien't -Ttieead Package.</p> <p>The Schroeder palenl. No. 546,251, for a (bread package especially designed for embroidery silk, discloses invention, ami a novel and useful device, and is entitled to a liberal construction; also held infringed.</p> <p>[Ed. Note.- — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>3. Patents (§ 328*) — Ihj-btxcíkviisnt—Skein Thread Holder.</p> <p>The Schroeder patent, No. 546,123, for a skein thread holder, is for an improvement merely, and entitled to a narrow construction only. As so construed, held not infringed.</p> <p>[Ed. Noie. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

Suit in equity by the National Casket Company against Julius W. Stolts, as president and treasurer of J. & W. Stolts, an unincorporated joint-stock association. Decree dismissing bill on demurrer, and complainant appeals. On appeal from a decree of the Circuit Court for the Southern District of New York, dismissing the bill on demurrer.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by the American Laundry Machinery Company against the Troy Laundry Machinery Company,'Limited. Decree for complainant (171 Fed. 818), and defendant appeals.</p>

<p>1. Patents (§ 72*) — Anticipation—Accidental Similarity of Parts.</p> <p>A patent for a mechanical combination is not anticipated by a prior patent, which incidentally shows a similar arrangement of parts, whore such arrangement was not claimed nor designed to perform the function for which it is designed and claimed in the second patent.</p> <p>[Pd. Note. — For other cases, see Patents, Cent. Dig. § 89: Dec. Dig. § 72.*]</p> <p>2. Patents (§ 66*) — Antigipatj on — Application Antedating Alleged Anticipating Patent.</p> <p>A patent is not anticipated hy other patents, which, although prior in dale, had not been granted when application for such patent was filed, and which were therefore not in the prior art.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 06.*]</p> <p>3. Patents (§ 328*) — Invention and Infringement — Telephone Pay Station.</p> <p>The Gray patent. No. 593,720, for a coin-controlled telephone pay station, embodies the first device based upon the idea that the pay-box signal, produced by the falling coin, should be communicated to the transmitter by means of resonant connection between the two, as contrasted with the employment of air waves, as in the prior art. It discloses invention and is not" limited to the particular form of connection described, nor was the right to such broad construction lost, by anything which occurred in the patent office. ¿Uso, held infringed.</p> <p>¡Ed. Note. — For other cases, see Patents, Dec. Dig. f 328.*]</p> <p>4. Patents (§ 328*) — Anticipation—Telephone Pay Station.</p> <p>The Gray patent, No. 598,610. for a coin-controlled telephone pay station, discloses 2io patentable improvement over the device of patent No. 593,720 to the same inventor, and is void for anticipation thereby.</p> <p>fEd. Note. — F'or other eases, see Patents, Dec. Dig. § 328.*]</p> <p>5. Patents (§ ICS*) — Construction—Limitation by Proceedings in Patent Office.</p> <p>Where an applicant for a patent persisted in the basic idea upon which he claimed invention, although amending his claim from time to time sifter rejections by the examiner as to details of construction in attempts to avoid references by the examiner, and his application was finally rejected by the examiner but allowed on appeal, on the broad, ground Unit such basic idea involved invention, such amendment did not limit the claim as finally allowed to the precise construction therein described.</p> <p>fEd. Note. — For oilier cases, see Patents, Cent. Dig. §§ 213%) 24-1; Dec, Dig. £ 168.*]</p>

<p>In Equity. Suit by Sharp & Smith, a corporation, against the Physicians’ & Surgeons’ Appliance Company.</p>

<p>Seamen (§ 21*) — Shipping Articles — “Final Port op Discharge.”</p> <p>Under shipping articles signed in New York for service on the vessel during a voyage to Port Arthur, Tex., “and back to final port of discharge, * * * with liberty to call at intermediate ports,’’ where she loaded a cargo of oil at Port Arthur, in part for Philadelphia and in part for New York, the latter, as the port where she was completely discharged of her cargo, was the “final port of discharge,” and the action of the seamen in leaving the vessel at Philadelphia after her partial discharge there, was in violation of the contract, and amounted to desertion, which forfeited their right to wages.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 92-110; Dec. Dig. § 21.*]</p>

<p>Action by the American National Bank of Washington against Fannie N. Tappan and trustee. On plea to jurisdiction.</p>

<p>L Navigable Waters (§ 39*) — Repastan Rights — Title akb Rights.</p> <p>Grants by the United States of its public lands bounded on streams or other waters, made without reservation or restriction, are to be construed as to their effect according to the law of the state in which the lands lie.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 239; Dec. Dig. § 39.*]</p> <p>2. Navigable Waters (§ 36*) — Rands Under Water — Ownership by State.</p> <p>Under the law of Minnesota, the state has no proprietary title to the bed of the Mississippi river or other navigable streams or lakes within the state below low-water mark; but such title as It has is sovereign only, held in trust for the protection of the public right of navigation and incapable of alienation.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 184; Dee. Dig. § 36.*]</p> <p>3. Navigable Waters (§§ 37, 42*) — Riparian Rights — Title to Rands Under Water.</p> <p>A grantee from the United States of land in Minnesota bounded by a stream navigable in fact, like the Mississippi river, where there is no reservation. takes the absolute title in fee to high-water mark, or at furthest to low-water mark, and also a right or title to the land under water between such boundary and the middle thread of the stream, which is proprietary and exclusive as to all others than the state or the general government, and as to them except as they may exercise their sovereign ownership for protecting or improving the public right of navigation. The riparian owner or his grantee has the exclusive right to reclaim, occupy, and use for any purpose not inconsistent with such public right such land under water or any island or part thereof between his shore line and the middle thread of the stream, whether such island existed at the time of the survey and was omitted therefrom in good faith and without palpable mistake, or was afterward formed by the gradual action of the waters:</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dec. Dig. §§ 37, 42.*]</p>

<p>Action by Simon Gagnon against the Ivlauder-Weldon Dyeing Ma■chine Company. Motion for new trial.</p>

<p>1. Bankruptcy (§ 140*) — Property Passing to Trustee — Property Held Under Contract — Lease or Conditional Sale.</p> <p>An instrument under wbieh a cash register was'delivered by the maker consisted of a printed form, with blanks, some of which were filled in and others not. It purported to be a lease, and bound the lessee to give his note, payable in installments, for the declared value of the register, less certain iiayments made and credits given, to secure the payment of rental to the same amount.. It also provided that at the expiration of the lease, if its terms had been complied with, he should surrender the register in good condition and receive back the amount paid, with the option of purchasing the register for such amount; but no term for the lease was designated, the provision therefor in the form being left blank. Held that, without such, term being fixed, the instrument was not a lease, and that the delivery 'of the register thereunder was not a bailment, but a conditional sale, which under the law of Pennsylvania was fraudulent as against creditors, and that the seller could not reclaim the property from the purchaser’s trustee in bankruptcy; the property being under levy on execution, which was continued for the benefit of the estate.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 140.*]</p> <p>2. Bankruptcy (§ 140*) — Property Passing to Trustee — Attempt by Bankrupt to Reconvey Property to Seller. ■</p> <p>A sale of property under which it lias been delivered and partial payments made on the price cannot be changed into a lease, after the purchaser has become insolvent, so as to revest title in the seller as against the purchaser’s creditors in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>3. Bankruptcy (§ 140*) — Property Passing to Trustee — Property Held Un- • der Contract — Lease or Conditional Sale.</p> <p>A soda water apparatus was delivered to bankrupt under a contract or order which stated that it was “sold” by an agent. It further ’ stated the “price” of the apparatus, that a credit was to be allowed the bankrupt thereon of a certain sum on account of a secondhand soda fountain, and then provided tliat the apparatus was leased to him for a term of- three years at a rental aggregating the remainder of the price, to be paid monthly. At the end of the lease he was to return the apparatus or to have the option to purchase it for $1. Held, that the transaction was a conditional sale, and, being under execution at the time, that the seller under the law of Pennsylvania could not reclaim the property from the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>4. Sales (§ 5*) — Lease or Conditional Sale — Written Terms on Sale on Printed Blank.</p> <p>Where an order for certain specified ice cream apparatus was given, with distinct prices named for each piece, on 30, 00, and 90 days’ credit, ‘ this cannot be regarded as other than a sale, which is not affected by the fact that it is written iipon a blank form in which the party nominally agrees to lease the property for a specified term of three months at a total rent equal to the net price of the property.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 12; Dec. Dig. § 5.*]</p>

<p>Bankruptcy (§ 318*) — Foreign Corporations — Doing Business in Violation op Law — Validity op Contracts — Claims.</p> <p>Wiiere duebills issued by a bankrupt corporation for money lent it by a foreign corporation were adjudged invalid in tbe hands of an assignee, and refused allowance against the bankrupt estate on the ground that in lending the money the foreign corporation was doing business in Pennsylvania without having registered as required by the state law, such corporation cannot prove the same indebtedness as a claim against the estate on the. theory that, the duebills being void, the lender is entitled to recover on an implied contract as for money had and received; such contracts being equally within the statute.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 318.*]</p>

<p>In Equity. Suit by Richard Beswick against W. J. Dorris and P. S. Dorris. On demurrer to amended bill.</p>

In Equity. Suits by the United States against G. B. McEeod and James E. Warwick, against G. B. McEeod and William H. Watkins, and against Samuel E. Carson and G. B. McEeod. The cases were consolidated for trial.

<p>In Equity. Suit by the United States against Helen A. McClure, Charles W. McClure, John J. Rupp, trustee under the will of Williams C. McClure, deceased, Jethro G. Mitchell, Leory Brooks, Robert B. Montague, and Horace G. McKinley.</p>

Suit by the Equitable Trust Company oí New York, as trustee, and another, against the Virginia Passenger & Power Company, for the foreclosure of certain mortgages issued to the trustees, in which Lane Bros. Company intervened for the, allowance of a balance due on an improvement contract as a preferred claim. Erom a judgment allowing the claim, of preference, the power company and the trustees appeal.

Action h} Robert Van Iderstine, as trustee in bankruptcy of the firm of A. Fellerman & Son, against the National Discount Company. From a judgment for plaintiff, defendant appeals. Prior to August, 1905, the bankrupts, Fellmnan & Son, were engaged in business as clothing mannfaelnrers in New York City. The defendant was a Maine corporation doing business in New York and •-ngaged chiefly in advancing money to merchants upon their outstanding customers’ accounts.

In the matter of the Southern Textile Company, bankrupt. From an order disallowing the claim of Peter H. Corr and T. Ashby Blythe for a preference against or lien on certain personal property belonging to the bankrupt, they appeal.

<p>Appeal from the Circuit Court oí the United States for the District of Colorado.</p> <p>Bill by H. M. O’Neil against the Wolcott Mining Company and others. Decree for defendants, and complainant appeals.</p> <p>The complaint in this ease is that at The final hearing the court dismissed the hill of the appellant, which was exhibited to obtain a transfer to the complainant upon the books of the Wolcott Mining 'Company of 3,000 shares of its capital stock. The mining company was organized about 1890, and it had a capital stock of 100.000 shares of a par value of $1 per share. It issued a eertiiicate for 3,000 of these shares to A. Wolcott. lie indorsed upon this certificate a blank assignment and power of attorney to transfer the stock and delivered it to S. Delamater. The business of the corporation was conducted and its corporate books were kept in the state of Colorado, while Wolcott was of Indiana and Delamater of Illinois. On the 9th day of .September, 1905, at Denver, Delamater exhibited to John K. Carleton, the agent for his wife, L. B. -Carleton, and to W. F. Ford, a broker, and the agent of both Delamater and Mrs. Carleton in this transaction, this certificate of stock bearing the written assignment and power of attorney of A. Wolcott. Dela-mater represented to them that he was the owner of the stock, that the assignment and power of attorney were valid, and that the stock would be transferred upon the books of the corporation upon request; and in reliance upon this representation Mrs. Carleton, through J. K. Carleton. her agent, and Delamater, agreed that Mrs. -Carleton would buy the stock of Delamater, that it should be assigned and transferred to her on the books of the company, that she would pay him $2,000 therefor, that the certificate should be immediately assigned to E. B. -Carleton. that the certificate so assigned and the $2,-000 should be deposited with Ford, the broker, who should send tlm.-certificate to the office of the company and have the stock transferred to Mrs. Carleton, that on the receipt of the certificates issued to her he should deliver them to Carleton and pay the $2,000 to Delamater, and that if the stock should not be transferred the original certificate should be returned to Delamater. This agreement was performed by all the parties to it. Delamater delivered the certificate of stock to Carleton, who deposited it with Ford, and Carleton paid the $2,000 fo-r it to Ford for his wife, and Ford still holds the money for Dela-mater. At the request of Delamater and Carleton, the name of Mrs. Carleton .was written into the blank assignment, and Ford then sent the certificate to the company and requested on behalf of both Delamater and Mrs. Carleton that the stock be transferred to her. The company refused to transfer it because 13 years before the date of the demand A. Wolcott had notified the corporation that he had lost some of his stock and had instructed it not to transfer any that stood in his name without consulting him and securing his approval. On September 14,1905, after the company had declined temporarily to transfer the stock, Delamater notified Ford not to pay the $2,000 back to Mrs. Carleton, but to hold it for him, and that he should hold Ford responsible for it. But on September 27, 1905, he notified Ford that he withdrew all offers to have the stock transferred and on the same day he wrote to the secretary of the company that, as the stock was claimed by A. Wolcott and he had arranged with Wolcott that the latter might keep the stock, lie authorized the secretary to deliver it to him, or to John A. Ewing, his attorney. Thereupon the secretary, without any notice to Ford or Mrs. Carleton, delivered the certificate and the assignment, which he had received from Ford to W. W. Charles, the agent of A. Wolcott, who sent it to the latter in Indiana. When ihe secretary received the certifícale on September 11, 1905, he wrote Ford that he would be obliged to refer it to E. II. Wolcott, who was the son of A. Wolcott, and the president of the company before the transfer was made, that aside from this A. Wolcott claimed that he had lost some stock and he desired to communicate with him before the transfer. But he never did communicate with A. Wolcott because the latter was incapacitated to transact business by his age, and, although he notified his son E. II. Wolcott, there is no evidence in the record that the latter made any claim to the stock on behalf of his father or otherwise. The defendant did not call as witnesses E. H. Wolcott, or Delamater, or Charles, and it did not present any. competent evidence that either A. Wolcott, or E. H. Wolcott, had any prior right to the 3,000 shares of stock here in issue at the time llrs. Carleton demanded the transfer of the stock to herself, and the corporation refused to transfer it and delivered the certificate to Charles.</p>

Charles W. Morse was convicted of offenses against the national banking law, and brings error. On writ of error to review a judgment, entered upon the verdict of a jury, convicting the defendants Morse and Alfred H. Curtis, as vice president and president, respectively, of the National Bank of North America, of making false entries in the books and reports of the bank and of misapplication of its funds. Three indictments were filed against the defendants containing 84 counts.

<p>Appeal from the District Court of the United States for the Westera District of Pennsylvania.</p> <p>In the matter of Harry Davis, bankrupt. Emil Winter appeals from an order disallowing his claim against the estate.</p>

Action by the Marinette Sawmill Company against Edward Scofield. Judgment for defendant, and plaintiff brings error. Plaintiff in error, which was plaintiff below, a corporation and citizen of the state of Illinois, seeks a reversal of a judgment of the Circuit Court adjudging that plaintiff’s suit be abated as having been prematurely brought, •and awarding execution fór costs to defendant, a citizen of Wisconsin, and an’inhabitant of the Eastern district of Wisconsin.

<p>Appeal from the District Court of the United States for the Southern District of Texas.</p> <p>In tlie matter of the Home Ice Company, bankrupt. Appeal by the York Manufacturing" Company from an order confirming a report of the" referee.</p>

Action by Ely Cowles, by his next friend and father, Charles A. Cowles, and by Charles A. Cowles individually, against Patrick Diamond. Judgment for plaintiffs, and defendant brings error.

<p>Bankruptcy (§ 408*) — Grounds foe Refusal of Discharge — “False Statement in Writing” to Obtain Credit.</p> <p>A bankrupt was operating a private bank, and on' daily settlements with another bank it was the custom when the difference either way exceeded $500 for the debtor bank to give the other a draft therefor on some other bank. Several times the bankrupt had given such drafts when he did not have a deposit to meet them, but all except the last two were provided for and paid on presentation. The last two were drawn when he was insolvent by his assistant cashier without his knowledge and were not paid. Held, that such drafts were not materially false statements in writing made by the bankrupt for the purpose of- obtaining property on credit within the meaning of Bankr. Act July 1, 1898, c. 541, § 14b, subd. 3, 30 Stat. 550 (IT. S. Oornp. St. 1901, p. 3427) as amended in 1903 (Act Feb. 5, 1903, e. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. ,1909, p. 1310]), which barred his right to a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 408.*]</p>

Petition to Review an Order of the District Court of the United States for tlie Southern District of Ohio, in Bankruptcy. In tlie matter of Max Goldman, bankrupt. On petition of the National Cash Register Company to review an order of the District Court.

<p>'Appeal from District Court of the United States for the Eastern District of Pennsylvania.</p> <p>.In the matter of the Roanoke Furnace Company, bankrupt. From aii order reversing a referee’s finding allowing the claim of Thomas D. Woodruff, he appeals.</p>

<p>1. Pleading (§ 117*) — Traverse- -Denial.</p> <p>Where, in an action for brokers’ services, plaintiff’s verified statement-alleged defendants’ indebtedness to amount to $14,382.45, from which defendants ' were entitled to a credit of $547.50, the amount remaining in plaintiff’s hands of money advanced by defendants to purchase certain land, an affidavit of defense alleging that plaintiff received on defendants’ behalf an amount largely in excess of the amount of money paid out by plaintiff on defendants’ behalf did not constitute a direct or specific traverse of plaintiff’s allegation as to the credit.</p> <p>(Ed. Note. — Por other eases, see Pleading, Dec. Dig. § 117.*]</p> <p>2. Witnesses (§ 269*) — Cross-Examination—Theory of Cause- — Relevancy.</p> <p>Where, in a suit for brokers’ commissions.on an express contract, plaintiff was denied the right to give evidence on a quantum meruit, the court did not err in excluding the cross-examination of plaintiff as to the balance left in plaintiff’s hands out of moneys advanced to him by defendants to purchase certain lands from previous owners under a contract distinct from that sued on.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 269.*]</p> <p>8. Brokers (§ 82*) — Action foe Services — Issues.</p> <p>Whore, in a suit for brokers’ services, plaintiffs verified statement alleging that defendants were eutilled to a credit of $547.50, white incorrect, was not specifically denied, the fact that plaintiff! discovered a mistake on the trial and admitted that he owed defendants on an extraneous account $808.G7 more did not give defendants an additional riglit to extend tlie inquiry to cover such question.</p> <p>[Ed. Note. — For other cases, see Brokers, Dee. Dig. § 82.*]</p> <p>4. Appeal and Error (§ 1057*) — Review—Harmless Error — Evidence.</p> <p>In an action for brokers’ services, the exclusion of a statement of the account showing an additional credit due from plaintiff to defendants and other extraneous transactions if error was harmless to defendants; plaintiff having admitted before the jury the amount of the additional credit as claimed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4197, 4108, 4205; Dec. Dig. § 1057.*]</p> <p>5. Brokers (§ 82*) — Action por Commissions — Issues—Evidence.</p> <p>Where, in,a suit for brokers’ commissions under an express contract, plaintiff claimed that he was to receive all of the selling price above §30 per acre, and defendants denied any contract for commissions, asserting that they employed plaintiff as an attorney only, they could not on the trial prove an express contract different from the one sued on, to wit, that they were to receive a net profit of 50 per cent, on the. transaction.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 82.*]</p>

<p>1. Master and Servant (SS 170, 171*)- -Injuries to Siawant — Employment of Competent Fellow Servants.</p> <p>A master is liable for failure to exercise the care of an ordinarily prudent man to select servants competent for the performance of duties required of them in accordance with the character of the employment and the dangers to be anticipated; such being a primary and nondelegable duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 336, 341 ; Dec. Dig. §§ 170, 171.*]</p> <p>% Master'and Servant (§ 21(5*) — Risks Assumed uy Servant.</p> <p>While a servant assumes the risk of negligence of a fellow servant, he does not assume the risk of negligence of the master in employing an incompetent servant.</p> <p>[Ed. Note. — For other eases, see Blaster and Servant, Cent. Dig. § 567; Dec. Dig. § 216.*]</p> <p>3. Master and Servant (§ 265*) — Injuries to Servant — Burden of Proof.'</p> <p>Where a servant's injuries were alleged to have been caused by the master’s negligence in employing or retaining an incompetent servant, the burden of proof thereof was on plaintiff.</p> <p>[Ed. Note. — -For other cases, see Master and Servant, Cent. Dig. § 1)06; Dec. Dig. 1 265.*]</p> <p>4. Master and Servant (§ 287*) — Injuries to Servant— Incompetent Fellow Servant — Employment- -Neüli gence.</p> <p>In an action for injuries to a street car conductor by the alleged negligence of his motorman, evidence held to require submission to the jury of the question of the railroad company’s negligence in employing dhe motorman or retaining him in its employ with knowledge of his alleged incapacity. 0</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1054-1050; Dec. Dig. § 287.*] '</p> <p>5. Master and Sebvant (§ 271*) — Injuries to Servant — Fellow Servants— Incomfetency — Evidence—Special Acts.</p> <p>On an issue as to a master’s negligence in retaining a servant with no•tice of his incompetency, previous specific acts‘of the servant, indicating incompetency or unfitness, which were or should have been known to the master, are admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 930; Dec. Dig. § 271.*]</p> <p>6. Master and Servant (§ 279*) — Fellow Servants — Negligence—Negligent Employment — Specific Acts.</p> <p>Jn order that prior specific acts of negligence by a fellow servant should he sufficient to establish the master’s negligence in retaining the servant . in his employ, the acts must be the result of incompetence, or of such a character and so constantly committed as to constitute a habit of negligence, rendering the servant unfit to be retained in his position.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 974: Dec Dig. § 279.*]</p> <p>7. Master and Servant (§ 297*) — Injuries to Servant — Fellow Servant-Negligent Employment — Special Findings.</p> <p>Where a master was charged with negligence in retaining in its employ plaintiff’s fellow servant by whose negligence plaintiff was injured, xirior specific acts committed by such fellow servants were inadmissible to show negligence, but only to show his incompetency; and hence the court erred in submitting shell-,nets to the jury under interrogatories: “Would you, if you were trying that case, say that the motorman was guilty of negligence, or was it the result of his incapacity, which would mean the same thing?” “Was he incompetent in the operation of his car?” “Was his conduct negligence?” “That if he could have avoided either of the accidents- with the skill that a motorman is supposed to have in running a car, then it would be tbe result of his negligence and evidence of his in-competeney.” .</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]</p> <p>8. Master and Servant (§ 271*) — Incompetency of Fellow Servant — Character — Deputation in a Particular Calling.</p> <p>Where it was claimed that a motorman was so incompetent that the street railway company was negligent in employing him, evidence that his reputation for competency as a motorman, among the conductors and motormen who- daily congregated to the number- of 30 or 40 in the car -bam, was bad,-.was admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, -Cent. Dig. § 031; Dec. Dig. § 271-.*]</p>

• In-Error to the Circuit Court of the United States for the Southern District of West Virginia, at Huntington. Action by E. B. Hawkins, Sheriff, as administrator of Harlow Win-terstein, deceased, against the Chesapeake & Ohio Railway Company. Judgment' for plaintiff, and defendant brings error.

<p>1. BANKRUPTCY (§ 68*) — lN VOLUNTARY BANKRUPT--1“WAGE-EARNER.”</p> <p>Bankr. Act July 1, 3898. c. 541, § 4, subd. “b,” 30 Stat. 547 (ü. S: Comp. St. 1001, p. 3t23), provides that any natural person, except a wage-earner and certain others, may be adjudged an involuntary bankrupt, arid section 1, subd. 27, defines a wage-earner as an individual who works for wages, salary, or hire at a compensation not exceeding $1,500 a year. Held, that where an alleged involuntary bankrupt nominally drew a salary Of $900'a. year as salary, but owned two-thirds of the stock of the corporation, and drew more than $2,000 a year preceding the institution of bankruptcy proceedings against him, and was also in the business of buying and selling real estate, his holdings outside the corporation being worth nearly $90,000, he was not a wage-earner within the' exemption.</p> <p>fEd. Nota — For other cases, see Bankruptcy, Dec. Dig. § 08.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7305.</p> <p>What persons are subject to bankruptcy law. see note to Mattoon Nat. Bank of Mat toon, 111., y. First Nat. Bank, 42 C. C. A. 4.J</p> <p>2. Bankruptcy dj 93*) — Proceeuinus—-Jury—Application.</p> <p>Bankr. Act July 3, 1898. c. 541, § 19, subd. “a,” 30 Stat. 551 (U. S. Comp. St. 3901. p. 3Í29), provides Unit a person against whom an involuntary petition has been filed shall be entitled to a jury trial on the filing of a written application therefor at or before the time within which an answer may be filed. Held, that it is the province of the judge to determine all the issues in bankruptcy without the intervention of a jury, unless the alleged bankrupt makes a seasonable application for a jury trial.</p> <p>tEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 140; Dec. Dig. § 93.*]</p> <p>3. Bankruptcy (§ 93*) — Prootedtnuh—Issues—Jury Trial.</p> <p>Bankr. Act July 3, 3898, c. 531, $ 18, subd. -d,” 30 Stat. 551 (II. S. Comp. St. 3903, p. 3129), provides that, if a petition is contested, the judge shall determine the issues without the intervention of a jury, except where a jury trial is given by the act. Section 19, subd. “a,” gives an involuntary bankrupt a right to a trial by jury on the question of his insolvency, except as otherwise provided, and as to any act of bankruptcy alleged in the petition on filing a pe!ilion before time to answer; and subdivision “c” declares that the right to submit controverted facts to the jury shall be determined and enjoyed, except as otherwise provided by the act according to the laws of the United States with reference to jury trial. Held, that an involuntary bankrupt 3s only entitled to a jury trial as of right in respect to his insolvency and any act of bankruptcy alleged against him. and llmt any other issue of fact involved, as whether the alleged bankrupt is a wage-earner, may in the court's discretion be submitted to a jury, but the jury’s finding thereon is only advisory.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 140; Dec. Dig. § 93.*]</p>

<p>In Error to the Circuit Court of. the United States for the Eastern District of Virginia, at Norfolk.</p> <p>Action by Hugh Gordon Miller against the Norfolk & Portsmouth Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAR AND ERROR (§ 1008*) — BEVIKW—FINDINGS BY COURT.</p> <p>Where issues are tried by the court without the intervention, of a jury, the court’s findings of fact are entitled to great weight on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3035-3969; Dec. Dig. § 1008.*]</p> <p>2. Bankruptcy (§ 45l*)~-Proceedings — Review—“Controversies Arising in Bankruptcy Proceedings” — “Proceedings tn Bankruptcy.”</p> <p>Bankr. Act July 1. 189S, c. 541, § 24a, 30 Staf. 553 (U. 8. Comp. St. 3901, p. 3431), confers on the appellate federal courts jurisdiction of “controversies arising in bankruptcy proceedings,” and section 24b declares that the Circuit Courts of Appeal shall have jurisdiction in equity to superintend and revise in matter of law the “proceedings of the several inferior courts of bankruptcy” within their jurisdiction. Reid, that “controversies arising in bankruptcy proceedings” appealable under section 24a embrace questions between the trustee representing the bankrupt and his Creditors, on the one side, and adverse claimants, on the other, not directly affecting the administrative orders and judgments ordinarily known as “proceedings in bankruptcy,” which are confined to questions arising between the bankrupt and his creditors and are the very subject of such administrative orders and judgments, from the petition for adjudication to the discharge, including intermediate administrative steps, and such controversies as arise between tlie parties to tlie bankruptcy proceedings as are involved in tbe allowing of claims and fixing their priorities, sales, allowances, and other matters which are disposed of summarily, and hence the term “controversies arising in bankruptcy proceedings” does not include an order dismissing a petition for the revocation of the bankrupt’s discharge.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 451.* For other definitions, see “Words and Phrases, vol. 1, pp. 703, 704.]</p> <p>3. Bankruptcy (§ 401*) — Appeals—Time.</p> <p>Under Bankr. Act July 1, 1S98, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St 1901, p. 3432), authorizing an appeal from a judgment granting or denying a bankrupt’s discharge if applied for within 10 days after a judgment is rendered, an appeal from an order denying an application to revoke a bankrupt’s discharge, not taken within 10 days, was unsustainable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 920; Dec. Dig. § 401.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>1. CimnNAr, Raw (§ 100*) — Jurisdiction--Cua-Xim op Bouxdabiks op .Ttjdi-oiaTj District.</p> <p>Act March 3, .1905, c. 1427, §§ 2, 3, 23, 33 Stat. 992, 997 (TJ. S. Comp. St. Supp. 1909, pp. 123, 130), which authorize 1he appointment of an additional district judge for ihe Northern district of Illinois, change the boundaries of said district in creating the new Eastern district, and provide that “all prosecutions for crimes or offenses heretofore committed within either the Northern or Southern districts of Illinois as hitherto constituted shall be commenced and proceeded with in each of said districts the same as if this act had not been passed,” malte the new judge appointed thereunder a judge of the old district in respect to past offenses as well as judge of the new district.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Doc. Dig. § 300.*]</p> <p>2. CRIMINAL Law (§ 371*) — Evidence—Other Offenses as Evidence of Intent.</p> <p>Where fraudulent intent is an essential element of the offense charged, evidence of other acts of the defendant of a kindred nature are competent to illustrate the character of the transaction in question and throw light on the intent with which this particular act was done.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ S30-832; Dec. Dig. § 371.*]</p> <p>3. Banks and Banking (§ 256*) — National Banks — Misapplication of Funds by Officers.</p> <p>For an officer of a national hank who is also a promoter of various enterprises to obtain the funds of the bank on the security of unmarketable bonds of his own enterprises, at Hie risk of the interest of the bank, is a misapplication of the funds which cannot be covered up by entering the transactions on the books as loans and investments.</p> <p>[Ed. Note. — For other cases, see Banks and Banking; Cent. Dig. §§ 958-964, 967; Dec. Dig. § 256.*]</p> <p>4. Banks and Banking (§ 257*) — National Banks — Prosecution of Officer for Misapplication of Funds — Questions for Jury.</p> <p>In a prosecution of an officer of a national bank for misapplying its funds, where the transactions as shown by the books of the bank were legitimate and proper on their face, the question of intent is one for the jury under proper instructions.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>5. Criminal Law (§ -822*) — Instructions—Construction as a Whole.</p> <p>In determining the correctness of instructions on a given subject-matter, detached phrases and sentences cannot be singled out and considered alone, but must be construed with their context.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 33.58; Dec. Dig. § 822.*]</p> <p>6. Criminal Law (§ 822*) — Instructions—Construction as a Whole. '</p> <p>Instructions considered in a prosecution of an officer of a national bank under Rev. St. § 5209 (ü. S. Comp. St. 3901. p. 3497), for willfully misapplying funds of the bank, and, taken together, hold, to correctly submit to the jury the question of wrongful intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 822.*]</p> <p>7. Criminal Law (§ 878*) — Trial—Verdict—Inconsistent Findings.</p> <p>Where the gravamen of the charge in several counts of an indictment is the same, a verdict of guilty on each is not inconsistent because they differ in respect to immaterial particulars concerning the means by which the crime was committed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. § 878.*]</p> <p>8. Criminal Law (§ 957*) — Trial—Verdict—Impeachment by Juror.</p> <p>A juror in a criminal case cannot afterward impeach a verdict in which he joined.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.*]</p>

<p>Bail <§ 44*) — Cbimixat. Prosecutions — Bight to Release on Bail Tending REHEARING TN APPELLATE COURT.</p> <p>A defendant convicted of a criminal offense, and whose conviction has been affirmed by the Circuit Court of Appeals while he was at large on bail, will not be remanded to custody pending a motion for rehearing unless some unusual reason is shown why he is not likely to remain within . the Jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bail, Dee. Dig. § 44.*]</p>

<p>1. CopyRXghts (§ GO*) — Infringement—Burder of Proof — Librarian’s Cer-tifícate.</p> <p>Rev.- St. § 4952 (U. S. Comp. St. 1901, p. 340G), provides that the author of a painting, or his assigns, on complying with the law, shall have the sole liberty of printing, publishing, copying, and vending a copyrighted painting; and section 4930 (TJ. S. Comp St. 1901, p. 3407) requires the person entitled to the copyright of a painting, on or before the day of publication in the United States or in a foreign country, to deliver a description and a photograph to the Librarian of Congress. Halil, that where plaintiff, as assignee, sued for the infringement of an alleged eopy-right on certain paintings, the burden was on him to prove that his assignor was the author, and that neither plaintiff nor his assignor had published tlie paintings before copyright, which burden he did not sustain by offering in evidence the certificate of the Librarian of Congress, acknowledging that descriptions and photographs of the paintings had been deposited by plaintiff in his office, and concluding with the words, “the right whereof he claims as proprietor in conformity with the laws of the United States respecting copyrights.”</p> <p>[Ed. Note. — For other eases, see Copyrights. Dec. Dig. § 69.*]</p> <p>2. Copyrights (§ 69*) — Paintings—Authorship—Nonpublication.</p> <p>, Evidence of a neighbor of plaintiff’s assignor that witness saw the as- ■ signor frequently while painting certain pictures, but did not see him use any paintings, pictures, drawings, or other pictorial works in so doing, and that witness and plaintiff did not know that the assignor ever exhibited the-paintings outside his own parlor, or ever gave any one permission to copy them during the 30 years before they were copyrighted, was incompetent and insufficient to establish original authorship and non-publication before copyright, in an action for infringement.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. § 69.*]</p>

Action in the name of the State o C Missouri, on relation of Robert K. Dykes and others, against Edmund C. Hencken and others. Judgment for defendants, and relators bring error.

In the matter of T. A. McIntyre & Co., bankrupts. Application of David A. Niven for the allowance of a claim for margins amounting* to $5,050.05. From an order allowing the claim to the extent of only $1,350.87, affirmed by the District Court, claimant appeals. Prior to April 24, 1908, tiie bankrupts -were stockholders doing business in the city of New York.

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Howard Gregory, and others, individually, etc., bankrupts. Petition; of the Consolidated Stock Exchange of New York to revise an order of the District Court confirming an order of the referee in bankruptcy directing petitioner, its agents, etc., to pay over to the trustees certain moneys held by the chairman of petitioner’s clearing committee.</p>

In Admiralty. Libel of William N. White and another against the steamship Toronto and Thomas Wilson’s Sons & Co., Limited, claimants or owners, to determine damages for the deterioration of a shipment of onions, due to the delay in delivery. Judgment for respondent, and libelants appeal.

<p>1. Bankruptcy (§ 444*) — Review—Appointment op Receiver — Record.</p> <p>On a petition to review an order denying an application to vacate an order appointing a receiver' of an alleged bankrupt, the Circuit Court of Appeals cannot consider as facts statements in the brief of the petitioning creditors, unsupported by the record, since, if the appeal book did not state the facts, it should have been amended on motion.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 444.*]</p> <p>2. Bankruptcy (114*) — Receivers — Appointment — “Absolutely Necessary.”</p> <p>Bankr. Act July 1, 1898, e. 541, § 2, subd. 3, 30 Stat. 545 (U. S. Comp. St. 1901, p. 3421), provides for the appointment of receivers by courts of bankruptcy in case the court should find it “absolutely necessary” for the preservation of the assets, etc. Held, that the words “absolutely necessary,” as so used. required clear, positivo, and certain proof of necessity; and hence, where a bankrupt's property was in the hands of an assignee, for the benefit of creditors, and it was not claimed that it was being dissipated or improvident!y cared for, or that the assignee was not careful, prudent, or responsible, an ex parte order appointing a receiver was erroneous. ' ' '</p> <p>[Ed. Note. — For other cases, see Bankruptcy,- Gent. Dig. §& 164-tCG; Dec. Dig. § 114.*</p> <p>For oilier definitions, see Words and Mirases, vol. 1, p. 45-1</p>

Action by the United States against the International & Great Northern Railroad Company. Judgment for defendant, and the United States bring error.

Application by John F. Klein, bankrupt, for discharge, to which W. J. Powell and another filed objections. From an order sustaining the objections, the bankrupt appeals.

On Petition for Revision of Proceedings of the District Court of the United States for the Western District of Pennsylvania, in Bankruptcy. In the matter of James S. Irwin and George B. Irwin, bankrupts. On petition to superintend and revise certain orders increasing the bankrupt’s exemption after discharge.

<p>1. Bankruptcy (§ 399*) — Right of Bankrupt to Exemptions — 'Waiver-Amendment oe Schedules.</p> <p>A bankrupt does not lose his right to claim the exemptions allowed him by the laws of the state by his failure through the mistake of his attorney to specifically claim them in his schedule, and, on application at any seasonable time while the property remains in the hands of the trustee unaffected by adverse rights, should be permitted “to amend his schedule in that respect as authorized by general orders No. 11 (89 Fed. vii, 32 C. C. A. xiv).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § GG9; Dec. Dig. § 399.*]</p> <p>2. Bankruptcy (§ 439*)' — Revision of Eroceedings — Scope of Remedy.</p> <p>• Tlje right of a bankrupt to amend his schedule to supply an omission through mistake to claim his exemptions is a valuable legal right, and the action of the district court in refusing the' amendment may be reviewed by the Circuit Court of Appeals on petition to revise under Iianlcr. Act July*1, 1898, <:. 54J, § 24b, 30 Slat. 558 (U. S. Comp. St. 1901, p. 8482).</p> <p>| K(1 Note. — For other cases, see Bankruptcy, Hoc. Dig. § 439.*]</p> <p>3. Bankuuptcy (§ 399*) — Exemptions—Waiver op Right.</p> <p>The fact that a bankrupt has given notes in which he waived his right to exemptions does not give the bankruptcy court jurisdiction to administer his exempt property, nor affect his right to have the same set apart to him.</p> <p>| Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 399.*]</p>

<p>Maeter and Servant (§' 218*) — Master’s LiAJimiTY for Injury to Servant— Assumption oip IIisk.</p> <p>Plaintiff, a boy 18 years old, while operating a grooving machine in defendant’s box factory, slipped on ¡he floor, and his hand was caught by the knives and injured. He had been working around Hie machine for a year, and operating it for 1\vo or three weeks. While of low mentality, he testified that he knew Hie floor was slippery, and that if lie slipped his hand was likely to come in contact with (he knives and be injured. Rolé, that tlie injury resulted from a risk which he appreciated and assumed, and that defendant was not liable therefor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ C03, ■ 604, 60S; Dec. Dig. § 218.*</p> <p>Assumption of risk incident to empdoyment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p> <p>Action by Maggie McGinnis, administratrix, against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Criminad Law (§ 1167*) — Appeal and Error — Review—Harmless” Error.</p> <p>A general verdict and judgment on an indictment containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3101; Dec. Dig. § 1107.*]</p> <p>2. Criminal Law (§ 728*) — Appeal and Error — Review — Harmless Error —Remarks of Counsel.</p> <p>A judgment in a criminal case will not be reversed by an appellate court because of improper remarks made by the district attorney, where a mistrial was not asked to be entered at the time, and the jury were instructed to disregard such remarks, and did so, as evidenced by their acquittal of the defendant on the count to which they particularly related.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1091; Dec. Dig. § 728.*]</p>

<p>In Error to the District Court of the United States for the Western District of Texas.</p> <p>Proceeding by the United States against eight solitaire diamond rings, and Max Rosenthal, claimant, for forfeiture under the United States customs laws. From a judgment dismissing the libel, the United States brings error.</p> <p>The following is the opinion of Maxey, District Judge, on sustaining a plea in bar:</p> <p>This is a libel of information filed by the government to forfeit eight diamond solitaire rings, and other items of jewelry mentioned in the information, because of their unlawful introduction into the United States, and Max Rosen-thal and Abraharh Rosenthal appear as claimants of the jewelry in the information described. The court finds that there was probable cause for the seizure of the diamonds and other jewelry mentioned in the information, and directs that a prop'er certificate thereof be entered of record. The plea avers, and it is admitted by counsel for the government, that Max Rosenthal and Abraham Rosenthal were indicted, tried, and acquitted of the offense of smuggling into the United States the articles in the information described, , The court desires further to say that it differs with the jury in the conclusion reached by. them in acquitting the defendants, Max and Abraham Rosenthal; but the question submitted to the jury was one of fact, which it was their .duty to resolve as they deemed proper under the evidence and instructions of the court, and, the jury having seen fit to acquit the defendants, there is no. appeal from such a verdict. The claimants in this ease having been acquitted of the offense of smuggling in the criminal prosecution, the law declares that such verdict and judgment of acquittal may be interposed in bar of a libel of information based upon practically the same offense.</p> <p>Counts 1 and 3 of the information charge that the articles of jewelry mentioned therein were smuggled by Max and Abraham Rosenthal into the United States. The Judgment of acquittal in the criminal case may clearly be interposed as a bar to these two counts. There may be some doubt as to whether such Judgment of acquittal may be Interposed as a bar to the remaining counts of the information; but the court is of the opinion that sucli judgment of acquittal is a bar to all the counts in the information contained, for the reason that all the counts of the information charge substantially the smuggling of the articles, that is to say, the clandestine introduction of the same into the United States without paying or accounting for the duties with intent to defraud the revenue, and the same proof substantially is necessary to sustain the counts as was required upon the trial of the criminal cause of smuggling.</p> <p>The court, as stated, being of the opinion that the judgment of acquittal I» a bar to all the charges contained in the information, directs that an order be entered sustaining the plea in bar filed by the claimants and dismissing the Information.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Texas.</p> <p>Action by Milton L. Hayes and others against Charles A. Nicholson. Judgment for plaintiffs, and defendant brings error.</p>

Proceedings for the distribution of a fund arising from the sale of the bankrupt’s mortgaged stock of merchandise. Prom an order disallowing the claim of the mortgagee (16A Fed. 300), he appeals.

<p>Customs'Duties (§ 26*) — Classification—Engkaved Steel — “Plates.”</p> <p>The provision .in Tariff Act July 24, 1897, c. 11, § 1, Schedule O, par. . 135, 30 Stat. 161 (U, S. Coinp. St. 1901, p. 1038), for “ixlates” of steel, does not, include an engraved piece of steel, 15 feet loiig, 4 feet 2 inches wide, 6.5 inches‘ thick,' and weighing over 6 tons, which is a completed article ready for use in glass manufacture, because it is not a “plate,'’ and because said paragraph is limited to articles in an incomplete condition.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 26.* For other definitions, see Words and Phrases, vol. 6, p. 5403.]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by the Safety Car Heating & Righting- Company against the Consolidated Car Heating Company. Decree for defendant (160 Red. 476), and complainant appeals.</p>

<p>In Equity. Suit by Eva A. Ingersoll, administratrix, against Joseph A. Coram and others.</p>

<p>1. Evidence (§ 43*) — Judicial Notice — Judicial Records op Same Court.</p> <p>A Circuit Court may take judicial notice of a mandate of the Suprem Court filed in such Circuit Court in another case.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig § 43.*]</p> <p>2. Equity (§ 362*) — Dismissal op Bill.</p> <p>It is the duty of the Circuit Court to dismiss, with costs, an original hill between the same parties, the effect of which would be to obstruct, delay, or embarrass it in the execution of a final decree already entered in another suit.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 362.*]</p>

<p>In Equity. Suits by Ellen S. Cornue and by Herbert P. Cummings, executor, respectively, against Eva A. Ingersoll, executrix, and others. On motions to remand to state court.</p>

<p>Action by H. L. Bruett & Co. against the F. C. Austin Drainage Excavator Company. On motion to remand to the state court.</p>

<p>In the Matter of Li Dick. On writ of habeas corpus and return.</p>

<p>1. Commebok (§ 98*) — Orders op Interstate Commerce Commission Fixing Hates — Review by Courts.</p> <p>A court Raving no constitutional power to regulate commerce or to fix rates to be charged by a carrier cannot suspend or vacate an order of the Interstate Commerce Commission prescribing rates under the power conferred br section 15 of the interstate commerce act as amended by Act June 29, 1900, c. 8p!)l, § 4. 154 Slat. 589 (IT. S, Comp. St. Snpp. 3909, p. 1358), except on the ground that in making such order tlie commission transcended its power or exercised such power without due regard to law and in violation of some legal, constitutional or natural right of tlie carriers affected.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 98.*]</p> <p>2. Carriers (§ 82*) — Preferences in Interstate Rates — .TusthíTcation.</p> <p>Tlie similarity of circumstances and conditions under which a service of carriage is rendered, which, under the interstate commerce act, requires an equality of rate, relates to tlie circumstances and conditions which affect tlie service only, and, where different coal mining localities are grouped into a district for rate-making purposes, a carrier is not justified in making a different rale for tlie same or substantially similar service from a particular locality in such district, or on the product of a particular mine or vein, from that charged others because tbe difference in the product from such locality mine or vein and that from other mines in the district is such that it can pay a higher rate and still compete in tlie market.</p> <p>|li<l. Note. — For other cases, see Farriers, Cent.. Dig. §§ 8:5-85; Dee. Dig. S 82*</p> <p>YThat constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. VC. Ky. Co., 94 C. C. A. 2í50.]</p>

<p>Collision (§ 39*) — Cause—Evidence.</p> <p>Collision at the eastern entrance to Long Island Sound between tbe steamer Volund proceeding eastward through tbe sound aid the steamer Commonwealth proceeding toward New York.- Tbe Volund was going at a moderate rate 'Of speed and while her navigation was in some respec-ts snb;Ject to criticism, field that the Commonwealth was solely in fault because of licr excessive speed of about 18 knots.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 3!).*]</p> <p>(Syllabus by the Judge.)</p>

In the matter of the Philadelphia Freezing' Company, bankrupt. On report of Alfred Driver, special referee, on petition for involuntary adjudication, and answers of the Hub Machine & Tool Company and Armstrong & Latta Company, creditors.

'Action by Leonard M. Reinartson, by Oscar Reinartson, his next friend, against the Chicago, Great Western Railway Company and another. The action having been removed to the federal court, plaintiff moves to remand.

<p>1. Landlord and Tenant (§ 76*) — Lease—Covenant Not to Assign — Violation.</p> <p>A lessee’s covenant not to assign, mortgage, or pledge the lease, or un-derlet the property, without the lessor’s consent, is not violated by the lessee’s bankruptcy.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 228; Dec. Dig. § 76.*]</p> <p>2. Landlord and Tenant (§ 103*) — Lease—Covenants -Breach — Insolvency.</p> <p>A covenant that in case of the lessee’s insolvency, or the institution of bankruptcy proceedings by or against him, or the appointment of a receiver or trustee of the lessee’s property, or the devolution upon any person by operation of law of the lessee’s occupancy, shall authorize the lessor to re-enter, is violated by the occurrence of any of the acts specified.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 103.*]</p> <p>3. Landlord and Tenant (§ 112*) — Lease—Breach of Covenant — Waiver.</p> <p>Acceptance of rent by a landlord, after a breach of covenant authorizing re-entry, waives the right forever.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. i 345; Dee. Dig. § 112.*]</p> <p>4. Bankruptcy (§ 152*) — Effect—’Title to Property — Relation.</p> <p>Bankruptcy divests the owner of property of the title, which thereupon becomes in custodia iegis, and on the appointment of a trustee his title relates back to the date of the adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 194; Dec. Dig. § 152.*]</p> <p>5. Bankruptcy {§ 139*) — Assets—Lease.</p> <p>On the bankruptcy of a tenant, his trustee, on his appointment, was vested with title to the lease, subject to acceptance within a reasonable time, if his acceptance would be advantageous to the estate; and hence the lessor, having accepted rent from the trustee, waived all provisions authorizing re-entry in case of the bankruptcy of the lessor, authorizing the trustee to sell the lease and convey title to the purchaser, without being subject to re-entry on the part of the landlord, so long as the purchaser complied with the provisions of the lease.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 218; Dec. Dig. § 139.*]</p>

<p>In Admiralty. Action by the Merritt & Chapman Derrick & Wrecking Company against the Cornell Steamboat Company, to recover for injuries by collision.</p>

<p>In Admiralty. Action by the Bush Terminal Company against the steam lighter America for loss of cargo.</p>

<p>COHMSIOX (§ 79*) — TUSS A5D TOWS — SIGNALS.</p> <p>Collision between the tows of the Taylor and of the No. 32 in the Arthur Kill opposite Morse Creek. Held that 1he No. 32 was solely in fault for falling to comply with an agreement to pass to the left.</p> <p>LEd. Note. — For other cases, see Collision, Cent. Dig. §§ 123, 139; Dec. Dig. § 79.*</p> <p>Signals of meeting vessels, see note to The Now York, 30 C. C. A. 630.1</p> <p>(Syllabus by,the Court.)</p>

<p>Receivers (§ 153*) — Judgment Against Receiver — Interest.</p> <p>Liabilities of a federal receiver operating a railroad for negligence of his agents in the course of the business are a part of the expenses of operation. and, where evidenced by ¡judgment of a state court, the question whether the ¡judgment bears interest must be determined by the law of the state.</p> <p>[Ed. Note. — E'er other cases, see Receivers, Cent. Dig. § 288: Dec. Dig. § 155.*]</p>

<p>t. Judgment $ 828*) — Action Agatnst Federal Receiver in State Court —CONCLUSTVEXESS AND OPERATION OF JUDGMENT.</p> <p>Under Act March 3, 1887, c. 273, § 3, 24 Stat. 551 (ü. S. Comp. St. 1901. p. 582), which authorizes the suing of a federal receiver in respect of any act of his in carrying on the business without the previous leave of the court which appointed him. but such suit to be subject to the general equity jurisdiction of said court, a judgment rendered against such a receiver by a state court, in an action brought against him to recover damages for the death of an employe is conclusive on the federal court as to the existence and amount of the plaintiff’s claim; hut the time and manner of its payment must be controlled by such court.</p> <p>[Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 1504-150!); Dee. Dig. § 828.*</p> <p>Conclusivencss as between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan. 21 C. C. A. 478; Union & Planters’ Bank y. City of Memphis, 1!) C. O. A. 468.1</p> <p>2. Receivers (§ 155*)' — Expenses op Continuance op Business — Damages poe Injury to Employe.</p> <p>Damages for injuries to employes of a receiver of a railroad are a part of the operating expenses and should be paid as such from the earnings of the property.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 288; Dec. Dig. § 155.*] .</p> <p>3. Interest (§.22*) — Right to Interest.</p> <p>. Under Civ. Code S. C. 1902, § 1660, all money judgments of the courts of that state are entitled to draw interest at 7 per cent.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. §§• 43-53; Dec. Dig. § 22.*]</p>

Suit by Motley, Green & Co. against the Detroit Steel & Spring Company and others. Application by plaintiff for an inspection of defendant’s books and papers before trial.

<p>Aliens (§ 61*) — Naturalization-—“Free White Person.”</p> <p>A Syrian from Mt. Lebanon, near Beirut, is a free white person, within Rev. St. § 2169 (XT. S. Comp. St. 1901, p. 1333), providing for the naturalization of free white persons of other countries as citizens of the United States; such term being construed to refer to race rather than to coior, and to include all members of the Caucasian race.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § 61.*]</p>

<p>On Applications for Review of Decisions by the Board of United States General Appraisers.</p> <p>These cases are also entitled in the names of Swan & Finch Company, Oil Seeds Company, A. Klipstein & Co., Welch, Holme & Clark Company, and Arnold, Hoffman & Co. The decision below (G. A. (5,833 ; T. D. 29,388) affirmed the assessment of duty by the collector of customs at the port of New York.</p>

Suit in equity by the Cumberland Telephone & Telegraph Company against the City of Owensboro. Defendant appeals from an order granting a preliminary injunction. The following is the opinion of Evans, District Judge: The complainant was incorporated in 1883 under the laws of Kentucky, and by its charter was authorized to carry on a telephone business. It has established a system which extends over several states, including Kentucky.

Suit in equity by the Citizens’ Bank & Trust Company against T. M, Thornton, receiver of the First National Bank of Attalla, and others. Decree for defendants, and complainant appeals. The appellant, the Citizens’ Bank & Trust Company, a banking corporation under the laws of Tennessee, filed its bill in the circuit court against the First National Bank of Attalla, and Thomas M. Thornton, as receiver, appointed by the Comptroller of the Currency to liquidate its affairs.

Action by the German Alliance Insurance Company against the Home Water Supply Company. Erom a judgment dismissing the action on sustaining a demurrer to the complaint, plaintiff brings error.

<p>Appeal from the District Court of the United States for the Northern District of Texas. ,</p> <p>In the matter of E. H. Lowe Company, bankrupt. Julia- Martin appeals from an order disallowing her claim to a lien.</p> <p>In the matter oí E. It. Howe Company 1he appellant filed before the referee the following claim:</p> <p>“At FI. Worth, in said district of Texas, on the 17th day of July, A. 1). 1008. came Julia Martin of Ft. Worth, in the county of Tarrant, in said district of Texas, and made oath and says:</p> <p>“That E. II. Lowe Company, a corporation, against which a petition for adjudication of bankruptcy had been filed and which has heretofore been adjudged bankrupt, was at and before the- filing of said petition, and still is, justly and truly indebted to said deponent for a sum of money representing the rents due and to become due for that portion of the current contract year according to the terms of a certain lease made by deponent. t.o and with said bankrupt, extending from the first, day of January, A. I). 1908, to the first day of September, A. 1). 1908. That the total amount of said indebtedness for said period is the sum of thirty-eight, hundred, fifty-six and 18/100 dollars (8:5.850.18). as shown by the statement of account, hereto attached marked ‘Exhibit A’ and made part of this proof; that no part of said debt has been paid except the sum of eighteen hundred, fifty-eight and 78/100 dollars (81,858.78), ns shown by the items credited on said attached account; that the consideration of said debt is rents due and to become due as aforesaid; that there are no offsets or counterclaims to said indebtedness except as set forth in said attached account, and that the balance after allowing same is the sum of nineteen hundred, ninety-seven and 10/100 dollars ($1,997.40); that no note has been received for said indebtedness or any part: thereof, and no judgment has been obtained for same; that the only security held by this deponent for said debt is a landlord’s lien on the property of the said bankrupt on the premises let in said lease secured by the said contract of lease and by the statute law of the state of Texas, and that by agreement whatever rights in said bankruptcy deponent has under and by virtue of said lien extend to the funds in the hands of the trustee for said bankrupt derived from the sale of the property of said bankrupt on said leased premises at the time of said bankruptcy; that said claim is entitled by law to priority of payment out of the assets of said bankrupt in the hands of its trustee. Julia Martin.</p> <p>“Subscribed and sworn to before me this 17th day of July. A. I). 15)08.</p> <p>“[Seal.j N. G. Denison,</p> <p>“Notary Public in and for Tarrant County, Texas.” 1</p> <p>The trustee answered the said claim, in substance, charging that, as to the rent due after the adjudication in bankruptcy, it was not a provable claim, and he prayed that the same should not be allowed.</p> <p>A hearing was had before the referee» on an agreed statement of facts a s follows:</p> <p>“In the Matter of the E. H. 3 .owe Co. No. 4(51, in Bankruptcy.</p> <p>“In the matter of the claim of Mrs. Julia Martin against the 'estate of the bankrupt aforesaid for rents, tire following facts are agreed to:</p> <p>“The E. II. Lowe Company, a corporation, was adjudicated a bankrupt on the 91h day of March, 1908.</p> <p>■•That the contract of which the following is a copy, was duly executed and was in force at the date of said bankruptcy as an obligation of the said IS. II. Lowe Company, it having acquired the rights of E. H. Lowe named in said contract as the original lessee.</p> <p>“The stock in trade of the said bankrupt remained on the premises described in said contract of lessee as the property of said bankrupt estate from the date of said adjudication to and including the 9th day of April, 1908, the trustee in bankruptcy being in control of said premises from the date of his election to and including the said 9tli day of April, 1908, when he sold the said stock in trade.</p> <p>“ ‘Contract.</p> <p>“ ‘State of Texas, County of Tarrant.</p> <p>“ “Phis contract of lease made and entered into oil this, the 14th day of September, 1906, by and between Julia Martin, an unmarried woman, of the county of Tarrant and state of Texas, party of the first xiart, and E. II. Lowe, of said county of Tarrant, party of the second part, witnesseth:</p> <p>“ ‘That said first party, in consideration of the rents, covenants, and agreements hereinafter contained and by said second party to be paid and performed, does hereby grant, demise and lease to said second party, the premises described as follows, to wit: lots one (1) and two (2) in block five (5), Hirsehfield’s addition to the city of Fort Worth, in Tarrant county, Texas, together with the improvements now on said lots.</p> <p>“ ‘To have and to hold the same with the appurtenances thereunto belonging, unto the said party of the second part from the 15th day of September, 1906, to and including the 61st day of December, 1911, being a term of five years, three months and fifteen days, fully to be completed and ended on the 31st day of December, 1911, said lessee yielding and paying therefor the sum of twenty-two thousand, two hundred and twenty-five ($22,225) dollars, as hereinafter provided, and the further sum of all taxes of every character which shall be levied on or assessed against said property during said term, and the further sum of all premiums which shall be paid for insurance for said term on said property, as hereinafter provided, and the further sum for all moneys which shall be paid for repairs on the improvements on said premises during said term, as hereinafter provided.</p> <p>“ ‘Provided, however, that if said rent, or any part thereof, shall remain unpaid for ten days after it shall become due and payable, as hereinafter set forth, or if said lessee shall fail to pay said taxes, or procure and pay for said insurance, or make and pay ■ for repairs, in manner as hereinafter agreed to be done, and default in any such case shall continue for ten days after notice thereof to said lessee given by said lessor or her agent or assigns; or if .said lessee shall assign this lease or sublét said leased premises, or any part thereof, without the written consent of said lessor or her agent or assigns; or if said lessee’s interest in this lease shall be taken or sold under execution or other legal process, then and in any of the events aforesaid, it shall he lawful for said lessor, her heirs or assigns, at their option, without further notice or demand, into said premises to reenter and the same to have again, repossess and enjoy, as in their first and former state, and thereupon this lease and everything therein con.tained on the part of said lessor to be done and performed shall cease, determine and become utterly void; provided, however, that it is contemplated by the said parties to this lease that the said lessee may associate with himself in a mercantile business in dry goods or similar lines, other person or persons, in a partnership relation with him. and the use and occupancy of said premises, under terms of this lease, by such firm or partnership of which the said lessee shall be an active member, shall not be deemed a violation of the above stated provision against assigning and subletting the said premises; and the occupancy and use of said premises by said lessee and his associates in business as aforesaid, shall subject said associates and members of said partnership or firm, and all their property in and on said leased premises, to the full terms, obligations and liabilities of and provided in this lease.</p> <p>“ ‘Said lessee covenants and agrees with said lessor as follows: This is to say, said lessee will i>ay said money rent, to wit, the said sum of twenty-two thousand, two hundred and twenty-five ($22.225) dollars in instal-ments as follows: the sum of one hundred and seventy-five ($175) dollars on the loth day of September, 1906, the sum of three hundred and fifty ($350) dollars on the first day of each and every month thereafter to and including the 1st day of December, 1911, and until the whole amount of twenty-two thousand, two hundred and twenty-five ($22,225) dollars shall have been paid.</p> <p>“ ‘Said lessee further covenants and agrees that as part of the rents and consideration for said premises and lease, that said lessee will pay promptly from year to year, as the same become due and payable, all taxes levied on or assessed against said premises, for and during the full term of this lease, and will keep said premises during the full term of this lease, insured in first class insurance companies, in a sum of not less than twenty-eight thousand (,f28,000) dollars in the name and for the use and benefit of Julia Martin, the said lessor, or her heirs or assigns, as the ease may be, and will promptly pay all premiums for said insurance when due; and will, during the full term of this lease, at the expense of the said lessee, have done and made promptly as occasion arises, the ordinary repairs on said premises and improvements necessary to beep same in as good condition as they now are, ordinary wear and tear excepted.</p> <p>‘Said lessee further agrees and covenants that if he should at any time fail or refuse to pay said taxes when due and payable, or to keep said properly insured and pay premiums for said insurance as above stipulated, or to make said repairs as above stipulated, then and in that event, said lessor, her heirs or assigns, shall have the right at her or their option, to pay said taxes, procure said insurance on said property and pay premiums therefor, and make said repairs, or to do one or more of said things, and in the event she, dr they, so do or act, then any and all money paid out by said lessor, her heirs or assigns, for any of said purposes, together with ten per cent per annum interest on said money from date of payment of same, shall be and constitute a debt against said lessee, which he hereby promises to pay on demand, and until the same shall be paid it shall constitute a part of the unpaid rents for said premises and may be collected as such.</p> <p>•‘‘And said lessee further covenants and agrees that he will not do or suffer any waste on said premises; that lie will not assign this lease or sublet said premises, or any part thereof, without the written consent of said lessor, her heirs or assigns (subject to the right of said lessee to associate others with him in partnership relation in the occupancy of said premises for purposes and on terms as aforesaid) and at the end of said term said lessee will deliver up said premises in as good order and condition as they now are or may be put by said lessor, her heirs or assigns, reasonable use and ordinary wear and tear thereof, and damage by fire or other unavoidable casualty, excepted.</p> <p>“ ‘Provided, however, that in the ('vent said improvements he destroyed or rendered untenantable by fire or other extraordinary cause, nml said lessee be (hereby compelled to abandon 'said premises, this lease shall terminate, and said lessee shall (hereupon be liable only for the rents, (axes. Insurance premiums and repairs, earned, accrued or incurred 1o the time said lease shall so terminate.</p> <p>“‘Provided, further, that if said improvements shall be partially injured from any cause, and are not (hereby rendered substantially untenantable for said lessee, (hat said lessor, her heirs or assigns, shall have 1he option to at once repair same, and this lease shall in that event in all its provisions continue in full force, and if such injury is from such eiU7,se or of such nature as to he covered by the insurance in force for the protection of said improvements, then and in that event said lessor, her heirs or assigns. shall he required and obligated to make the repairs made necessary by said injury, the expense of such repairs, however, not to exceed in any event, the amount of the insurance money received for said injury by said lessor, her heirs or assigns.</p> <p>“ ‘Said lessee further covenants and agrees that for the whole of said rents to be paid by said lessee, including any moneys paid by said lessor, her heirs or assigns, or owed by said lessee for taxes, insurance or repairs, as hereinabove provided for, a lien is hereby reserved and given upon said premises, the interest of said lessee in same, and all the property of said lessee in and upon said premises, in favor of said lessor, her heirs or assigns, prior and preferable to any and all oilier lions of whatsoever character thereupon.</p> <p>“‘Said lessee hereby waives all notice to quit said premises which by law are required fo be served upon him in the event any writ of ejectment or forcible detainer be brought, and agrees that no alteration shall lie made in said premises or improvements without the written consent of said lessor, her heirs or assigns.</p> <p>“ ‘Said lessor covenants and agrees for herself, her heirs and assigns, with said lessee, that said lessee paying the rents and charge's hereinbefore stipulated for and observing and keeping the covenants of this lease on his be■half fo be kept, shall peacefully and quietly hold, occupy and enjoy said premises during said term without let, hindrance, ejection or molestation by said lessor, her heirs or assigns, or any other person or persons lawfully claiming or to claim the same or any part thereof.</p> <p>“ ‘In witness whereof, the said parties have hereunto set their hands to this instrument in duplicate on the date first-above written.</p> <p>“ ‘[Signed] Julia Martin, Party of First Part.</p> <p>“ ‘E. H. Lowe, Party of Second Part.</p> <p>“ ‘State of Texas, County of Tarrant.</p> <p>“ ‘Before the undersigned authority on this day personally appeared Mrs. Julia Martin, an unmarried woman', and E. II. Lowe, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed.</p> <p>.“ ‘Given under my hand and official seal at Fort Worth, Texas, this the 15th day of September, 1906.</p> <p>“ ‘W. Storer, Ivotary Public in and for Tarrant County, Texas.</p> <p>“ ‘State of Texas, County of Tarrant.</p> <p>“ ‘The sum agreed to be paid for rents, in the attached lease made by Julia Martin to E. I-I. Lowe, dated September 14, 1900, is, in consideration of certain expenditures made by said lessor, Julia Martin, on the said leased premises, increased in the sum of seven hundred and sixty-six and 76/100 dollars ($766.67), which said sum is to be added to the sum stipulated for rents in said lease, and is to be paid in monthly instalments, on the rent day fixed in said lease, of thirteen and 22/100 dollars ($13.22) each, and all the terms, provisions and obligations of said lease in favor of the lessor therein with reference to the payments of rents and the lien and security for same, are expressly agreed to extend'to and cover this the said additional sum agreed to be paid for rents as aforesaid.</p> <p>“ ‘Witness our hands this 1st day of March, 1007.</p> <p>“ ‘Mrs. Julia Martin,</p> <p>“ ‘Earle II. Lowe,</p> <p>“ ‘E. I-I. Lowe Company,</p> <p>“ ‘By W. T. Potter, President.’</p> <p>“That the bankruptcy corporation has paid the amounts due by it to Mrs. Julia Martin to the 1st day of January, 1908, and that it paid to Mrs. Martin the amounts due as the money x'ents for the months of January and February, 1908, to wit, the sum of $720.44.</p> <p>“That the trustee of the bankrupt concern paid to Mrs. Julia Martin $625.20 for the use of the premises during the time which he occupied them as such trustee.</p> <p>“That the trustee rejected the contract of lease so far as under the law he was authorized and empowered to do so, and notified the lessor that the estate of the said E. IT. Lowe Company, bankrupt, would not be bound for the rent of the premises after he ceased to occupy them as such trustee.</p> <p>“That by an agreement between the trustee and Mrs. Julia Martin, O. II. Martin & Company occupied the premises from the 10th day of April to the 15th day of May, 1908, for which that company paid to Mrs. Martin the sum of $548.39.</p> <p>“That under a like agreement E. S. Kirk occupied the premises from the 18th day of May until the loth day of June, 1908, for which he paid the petitioner the sum of $300.</p> <p>“Each of these occupancies were had with the distinct understanding that by allowing the premises to be so occupied Mrs. Martin would not waive any rights that she might have.</p> <p>“That the B. H. Lowe Company before its bankruptcy had paid in premiums on insurance upon the premises for the year 1908, the sum of $283.95.</p> <p>“That if the claim of petitioner, Mrs. Julia Martin, is a provable claim against the estate of E. II. Lowe Company, bankrupt, the following would be., a correct statement of the amount of her claim:</p> <p>Kent from March 1st, 1908, to Sept. 1st,, 1908, 6 months at 8303.22 per month. ¡82,179 32</p> <p>Proportion of the state and comity taxes for the year 1908, upon the properly leased, which would have accrued from the 1st day of January until the 1st day of September. 187 50</p> <p>' Proportion of city taxes for the year 1908, upon the property leased which would have accrued from the 1st day of January until the 1st day of September. 525 00</p> <p>Proportion of the insurance for the year 1908 upon the property leased which would have accrued between the 1st day of January and the 1st day of September. 229 58</p> <p>Total . $8,121 40</p> <p>Credit s.</p> <p>April 9, 1908. rent paid by O. H. Martin & Co., April 10th to</p> <p>May 15th, 1908. $ 548 39</p> <p>Kent paid by K If. Kirk. 3ray 18th to June 15th, ¡008 . 300 00</p> <p>Kent, paid by K. M. Orgain, trustee, for the use of the premises for one month and nine days. 025 265</p> <p>Insurance premiums paid by K 11. Lowe Company for the year 1908 . 283 95</p> <p>'total .....•. $1,757 CO</p> <p>Balance . $1,3(53 80</p> <p>“'that it was agreed that whatever rights petitioner, Mrs. Julia Martin might hare by virtue of any lien upon the property of the bankrupt corporation situated on the premises leased, should extend to the funds that were derived as proceeds of the sale of said property and that the funds so derived from the sale of said property exceeded largely the amount of petitioner’s debt.</p> <p>‘•That the claim of Mrs. Martin ends with the 1st day of September, 1908, because at said date by agreement between the said trustee and herself, without prejudice to 1'lie rights of either in this contention, the said premises were leased by Mrs. Martin for a long term.”</p> <p>On this statement of facts the referee, on the 19th day of November, 1908, denied the claim, and on petition to the District Court the referee’s decision was affirmed. The claimant sues out this appeal.</p>

<p>1. Master and Servant (§ 228*) — Injuiues to Servant — Contributory Negligence— Statute.</p> <p>In an action by a servant for injuries under Rev. Laws Mass. o. 106, excluding the fellow servant rule and making the master liable where an employé is injured by another employe in charge of a locomotive engine or train, etc., provided the person injured was at llie time in the exercise of due care, contributory negligence of the servant injured is a complete defense.</p> <p>[Ed. Note —For other cases, see Master and Servant, Cent. Dig. § 670; Dec. Dig. § 228.*)</p> <p>2. Master and Servant (§ 240*) — Injuries to Servant — Railroads-Contributory Negligence.</p> <p>Plaintiff, a car marker in a railroad yard, having had six years’ experience, was injured by a standing car set in motion by a switching train, which was moving at an unusual and unreasonable rate of speed, without any warning being given by the conductor or engineer. Plaintiff knew the train was switching in the yard, and . spoke to the engineer several minutes before the injury, but did not look up to see where the train went, or make any other observation for his safety as he was talc-ing the numbers of certain cars. If he had cast his head to one side for a moment, he could have determined whether anything was coming down the track toward him. Ilelil that, under the law of Massachusetts, plaintiff was negligent, precluding a recovery under the fellow servant law (Rev. Laws Mass. c. 106).</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 75G; Dec. Dig. § 240.*]</p>

<p>Appeal and JSbbob (§ 107*) — (¿bounds hob Dismissal — Review Ineffectual —Compliance with Judoaient.</p> <p>An appeal from an injunctional order requiring a postmaster to deliver to complainants all mail matter addressed to them received at his office between certain dates and to pay all money orders contained therein will not be entertained, where by reason of a full compliance with said order by appellant by delivering such mail and paying the orders the opinion of the appellate court will be on a purely moot question and it would be powerless to execute any decree it might render in appellant’s favor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 971-978; Dec. Dig. § 137.*]</p>

Action by Daniel J. Davis against M. C. Davis, alias Mattie M. Davis, on a judgment. From an order sustaining a demurrer to1 the declaration (164 Fed. 281), plaintiff brings error.

Roy Vermont and another were convicted of violating the oleomargarine law, and they bring error. The plaintiff's >n error were indicted in one count of the indictment for carrying on the business of manufacturing oleomargarine without having first'paid the special tax therefor in violation of section 3 of the oleomargarine act of 1886 (Act Aug. 2, 3886, e. 810, 24 Htat. 209 117. 8. Comp.

<p>1. Shipping (§ 173*) — Demurrage—Diversion op Vessel by Cargo Owner.</p> <p>Where a vessel is diverted from her original destination at the request of the consignor of the cargo, the latter becomes liable for all damages occasioned thereby.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 570; Dec. Dig. § 173.*]</p> <p>2. Shipping (§ 183*) — Demurrage—Amount.</p> <p>A charterer or cargo owner who wrongfully delays the discharge of a vessel is chargeable with demurrage for every day’s delay between the time she should have been discharged and the time her discharge was actually completed, whether Sundays intervened or not.</p> <p>' [Ed. Note. — For other cases, see Shipping, Cent. Dig. § 503; Dee. Dig. § 183.*]</p> <p>3. Shipping (§ 177*) — Demurrage—Delay in Discharging.</p> <p>Where, through the charterer’s failure to discharge a vessel at her port of destination, she is obliged to proceed to another port, she cannot be held to have contracted with reference to a custom of such port that she shall await her turn to discharge, and for delay caused thereby the charterer is liable in demurrage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 576-5S2; Dec. Dig. § 177.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. G57; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 O. C. A. 4.]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Gertrude C. Hartman against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Petition for Revision of an Order and Decree of the District Court of the United States for the Northern Division of the Western District of Washington. In the matter of the American Machine Works, bankrupt. On petition by A. Chilberg to review order of District Court.

In Error- to the District Court of the United States for the District of Massachusetts. On petition by defendant in error for certification of the cause to the Supreme Court.

<p>Petition for Revision of Proceedings of the District Court of thé United States for the Eastern District of New York.</p> <p>. In the matter of Selim Elias Ghazal, bankrupt. On petition of the bankrupt to review an order of the District Court for the Eastern Disr trict of New York, denying his application for an order directing the trustee in bankruptcy to pay to him $428.93, paid to the trustee by the collector of the port of New York for information given by the bankrupt concerning smugglers.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Clarksburg.</p> <p>Action by John W. Brown and another against Johnson W. Beacom. Decree for defendant, and complainants appeal.</p>

Petition to Superintend and Revise Proceedings in the District Court of the United States for the Southern District of Georgia, in Bankruptcy. Application by the John Deere Plow Company for an order directing A. S. Anderson, trustee, to surrender possession of certain property sold to the bankrupt under a conditional contract of sale. An order disallowing petitioner’s claim was affirmed by the District Court, and petitioner brings a petition to superintend and revise.

Suit in equity by the Northern Union Gas Company against Julius M. Mayer, Attorney General, and others. From an order made by the Circuit Court, complainant and the City of New York appeal.

<p>Bankruptcy (§ 186*) — Assets—Liens.</p> <p>Decedent, the bankrupt’s father, subscribed for certain corporate stock, and, having died before payment, the bankrupt advanced $3,600 out of his own funds to complete the payment and charged the amount to his father’s estate, and took the stock certificate in his own name. Thereafter the bankrupt borrowed $1,200 on the stock as collateral from A., having previously assigned all his claim against his father's estate to a bank. Meld, that if, at the date of the assignment to the bank, decedent’s estate was indebted to the bankrupt to the amount of $2,400 as found, the bank could recover that amount from the estate, and the referee's order compelling the bank to pay the same sum to the trustee in bankruptcy in order to obtain the stock in the hands of A. was erroneous, but, if there was no indebtedness of decedent’s estate to the bankrupt, then the estate was entitled to the certificate on payment of the indebtedness to A; the bank being entitled to assert against decedent’s estate whatever rights it acquired by the assignment.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 186.*]</p>

<p>1. Patents (§ 286*) — Licenses—Txfrincíement--IItght to Sue.</p> <p>An allegation that a patentee assigned to complainant the exclusive right: to make, use, and sell for use within the United States and its territories and foreign possessions, “in connection with wireless telephone work and wireless telephonic communication only, apparatus and equipment embodying said methods and apparatus under the patents herein-above mentioned, or any other patent or patents now or hereafter owned or controlled” by the assignor or his assignee, did not show a conveyance to the assignee of the entire monopoly granted by the government to the patentee, but a mere license; and hence the licensee had no capacity to sue in his own name to restrain infringers.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 454, 455; Doc. Dig. § 286.*</p> <p>Sublicenses and assignments of licenses for use or sale of patents, see note to National Phonograph Co. v. Schlegel, 64 O. C. A. 596.)</p> <p>2. Patents (§ 286*) — Infringement—Injunction'—Right to Sue.</p> <p>• A license authorizing the licensee to sue for and collect damages and royalties, past or future, for the infringement of the patents, did not au-thorizé a suit by injunction to restrain infringers.</p> <p>[Ed. Note. — For other cases, .see Patents, Cent. Dig. §§ 454, 455; Dec.. Dig. § 286.*]</p> <p>8. Patents (§ 280*) — Infringement—Damages—Rotalty—Action.</p> <p>An action to recover damages and royalty for the infringement of a patent can only be maintained at law.</p> <p>[Edr Note. — For other cases, see Patents, Cent. Dig. § 439; Dec. Dig. § .280.*]</p> <p>4. Patents (§ 286*) — Right to Sue — Contract.</p> <p>The right to sue on a patent is not a matter of contract, but is the creature of, and can exist only as authorized by, statute.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 453-456; Dec. Dig. § 286.*]</p>

In tlie. matter of William II. Dattimer and others, under their several aliases, individually and trading as the Provident Investment Bureau, alleged bankrupts. On rule to compel a transfer of certain property of Stanley Francis to the trustee in bankruptcy.

<p>1. Courts (§ 312*) — Federal Courts — Jurisdiction—Notes—Indorsement.</p> <p>Act Cong. 1888 (Act Aug. 33, 1888, o. 866, § 1, 25 Slat. 434 [U. S. Comp. St. 3901, p. o08j) declares that the federal courts shall not have cognizance - of any suit, except on foreign bills of sale, to recover the contents of any note in favor of an assignee, if the instrument is payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the contents, if no assignment or transfer had been made. Sehl that, where there was no diversity of citizenship between the maker and payee of certain notes payable to the payee's order, suit could not be brought thereon by an indorsee, whose citizenship was diverse, in the federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 865-875; Dec. Dig. § 312.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 219; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Courts (§ 312*) — Federal Courts —Cause of Aotiox — Traksfeb — Notes Payable to Beaker.</p> <p>■ Where a note between parties of 1he same citizenship is made by a corporation payable to bearer, a suit thereon brought by the holder of different citizenship than the maker against it is maintainable in the federal courts, since the paper passes by delivery and requires no assignment within Act Cong. Aug. 13, 3888, c. 866, § 1, 25 Stat. 434 (TI. S. Comp. St. 1901, p. 508), regulating federal jurisdiction of suits on assigned claims.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 312.*]</p> <p>3. Courts (§ 314*) — Jurisdiction-—Federal Question.</p> <p>A federal question is not raised in a suit on a note by reason of the fact that the complainant is a national bank.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 860; Dec. Dig. § 3X4*</p> <p>Jurisdiction of federal courts iu cases involving federal questions, see. notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Orc-Pureh. Co. v. Boston & M. C. C. & S. Min. Co., 35 C. C. A. 7.]</p>

<p>1. Trade-Marks and Trade-Names (§ 88*) — E'xuawi'ul Cojrmmos-Aotiox --Rtoiit to Sue.</p> <p>■Where complainant employed the II. Co. to manufacture and sell for it a Rilliken doll, in the sale of which it was claimed defendant was guilty of unlawful competition, the business of the 11. Co. was complainant's business, and complainant was therefore the proper party to ask for protection.</p> <p>i'Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 98; Dec. Dig. § 88*|</p> <p>2. Trade-Marks and Trade-Names (§ 88*) — Unlawful Competition--Action — Right to Sue.</p> <p>Where complainant sued for unlawful competition in the sale of Billikon dolls claimed to he manufactured for the H. Co. by a doll and toy company, a royalty being paid by the H. Co. to complainant, the business to be protected was that of the II. Co., and it was therefore the proper party complainant.</p> <p>I Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 88.*]</p> <p>3. Trade-Marks and Trade-Names (§ 75*)- — 'Unlawful Competition' — Bnvu.-ken Doi l.</p> <p>Complainant conceived and sold a grotesque doll, made of fluffy, white material, with a large head, wearing a broad, Buddhistic smile, in a silting position. It was sold in a carl on, one side of which dropped down when the cover was off, displaying , the doll. On the cover was. the doll’s picture, with a rhyme, signed “Billiken,” and on the other side a similar picture and rhyme, etc. Defendant sold a doll of similar design, called “Killiblues,” put up in a similar carton. Held sufficient to warrant an inference that defendant’s doll was intended to deceive ordinary purchasers intending to buy plaintiff’s doll, and hence plaintiff established a case of unlawful competition against the. manufacturer, and ¿gainst sellers of the “Killiblues” doll with the expectation that purchasers would buy them for “Billikens.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. § 75.*]</p> <p>4. Trade-Marks and Trade-Names (§ 98*) — Unlawful Competition — Damages — Profits.</p> <p>Where, in a suit for unlawful competition in the sale of certain dolls, defendant’s claim that it was not the manufacturer of the dolls, but purchased and sold them without knowledge that complainant claimed an exclusive right to place the dolls, packed in a particular carton, on ■ the market, and that the suit was begun without previous notice, after which it immediately began to sell its dolls in plain boxes, defendant was not liable on such facts for damages or profits.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 112; Dec. Dig. § 98.*]</p> <p>5. Trade-Marks and Trade-Names (§ 95*) — Unlawful Competition — Injunction.</p> <p>Where, in a suit for unlawful competition, it was doubtful whether complainant was the proper party to sue, and defendant claims that immediately on commencement of the suit it stopped selling the article in controversy in competition with complainant’s product, a preliminary injunction will be denied.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

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

<p>Customs Duties (§ 85*) — Appeal—Findings • of General Appraisees.</p> <p>On appeal from the Board of General Appraisers the Circuit Court should not disturb the Board’s findings on doubtful questions of fact, especially as to questions which turn upon the intelligence and credibility of witnesses produced before the Board.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 201-206; Dec. Dig. § 85.*]</p>

<p>Customs Duties (§ 85*) — Appeal-Taking Testimony Beyond .Tubisdiction oe Comer.</p> <p>Where a referee has been appointed by the Circuit Court to take further testimony on appeal from the Board of General Appraisers, under Customs Administrative Act June .10, 1890, c. 407, § 15, 26 81at. 4,38, the court is without authority to direct the referee to take testimony beyond its territorial limits, irrespective of the referee’s willingness to go.</p> <p>I'Ed. Note. — -For other cases, see Customs Duties, Dec;. Dig. § 85.*]</p>

<p>1. Aliens (| 68*) — Dutt—Filing Naturalization Petitions.</p> <p>Clerks of the federal courts are not subject to the instruction by federal district attorneys or by the United States itself as a party to a judicial proceeding, but are required to file naturalization petitions which contain all proper allegations, though in their judgment the applicant, because of his color, race, or other disqualification, may not be entitled to citizenship. u</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 144; Dec. Dig. § 68.*]</p> <p>2. Aliens (§ 61*) — Naturalization—“Free White Persons” — Armenians.</p> <p>Rev. St. § 2169 (U. S. Comp. St. 1901, p. 1333), relating to naturalization, provides that the title shall apply to aliens, being “free white persons,” and to persons of African nativity and descent. Held, that the word “white” was used to classify the inhabitants and to include all persons not otherwise classified, not as synonymous with “European,” there being in fact no “European” or “white” race as a distinctive class, or “Asiatic” or “yellow” race, including substantially all the people of Asia; and hence the term “free white persons” included Armenians bom in Asiatic Turkey and on the west side of the Bosphorus.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 119, 120Dec. Dig. § 61.*]</p> <p>3. Aliens (§ 61*) — Naturalization—“Race.”</p> <p>The term “race” primarily means an ethnical stock; a great division of mankind having in common certain distinguishing physical peculiarities, constituting a comprehensive class appearing to be derived from a distinct primitive source. A second definition is a tribal or national stock; a division or subdivision of one of the great racial stocks of mankind, distinguished by minor peculiarities. The word “race” connotes descent.</p> <p>TEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 119, 120; Dec. Dig. § 61.*]</p>

Actions by Harry S. Hollenbach and by William H. Bickel and by Francis, Green, as administrators, etc., against the Elmore & Hamil-ton Contracting Company to recover damages for alleged wrongful death under the laws of Maryland. On demurrers to the complaint.

<p>1. Courts (§ 280*) — Federal Courts — Jurisdiction.</p> <p>It is not sufficient that a complaint alleges facts showing federal jurisdiction, but such facts must be established by evidence.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. § 280.*]</p> <p>2. Bankruptcy (§ 292*) — Lease—Termination—Action by Trustee.</p> <p>Where a lease on the premises occupied by the bankrupt was terminated by a warrant of dispossession issued at least four days before the receiver in bankruptcy was appointed, and after the receiver took possession he appeared and announced in open court that he had finished the business and disposed of the bankrupt’s assets contained in the premises, and made no objection to the dissolution of an injunction restraining the landlord from interfering with his possession, the bankrupt had no lease which could be an asset of his estate in bankruptcy, nor had the receiver either wrongfully parted with or been deprived of the premises by force of the warrant to dispossess; and hehce the federal court had no jurisdiction of an action by a trustee to establish the lease as an asset of the estate.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Cent.. Dig. § 410; Dec. Dig. § 292.*]</p> <p>3. Landlord and Tenant (§ 202*) — Lease— Construction — Payment in Advance.</p> <p>Where a lease was silent as to the time of payment of rent, the rent would ordinarily be payable at-the end of the month; but where, for a period of six months, the rent had been paid in advance, the parties would be held to have given the lease ¿a contemporaneous construction to require adyance payment.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 802-806; Dec. Dig. § 202.*)</p> <p>4. Judgment (§ 652*) — Conclusiveness—Dispossession Proceedings.</p> <p>A default judgment in dispossession proceedings for alleged nonpayment of rent establishes that the rent was due at the time proceedings were instituted.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent, Dig. §' 1164; Dec. Dig. § 652.*]</p> <p>5. Courts (§ 189*) — Municipal Courts — Procedure—Appearance by Attorney.</p> <p>Where a tenant against whom dispossession proceedings were instituted in a New York City Municipal Court appeared by attorney and never at any time asserted that the attorney was not authorized to appear, but recognized the attorney’s acts by sending to him checks with which to pay rent still due, such appearance waived the insufficiency of service of the precept.</p> <p>[Ed. Note. — For other cases, see Courts, Doc. Dig. § 189.*]</p> <p>6. Landlord and Tenant (§ 116*) — Disdossession Proceedings — Judgment— Lease- -Termination .</p> <p>A judgment for the landlord in dispossession proceedings on which a warrant was duly issued requiring a surrender of the premises for nonpayment. of rent constituted a termination of the lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 116.*]</p> <p>7. Landlord and Tenant (§ 213*) — Payment of Rent — Check.</p> <p>A tenant’s check for rent received for collection only was not payment thereof.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 852; Dec. Dig. § 213.*]</p> <p>8. Bankruptcy (§ 101*) — Adjudication—Appointment or Trustee.</p> <p>From a bankrupt’s adjudication until the appointment of a trustee the bankrupt is not to be regarded as civilly dead.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 101.*]</p> <p>9. Bankruptcy (§ 196*) — Judgment— Lien — Dispossession.</p> <p>A judgment dispossessing a bankrupt as a tenant prior to his adjudication in bankruptcy did not create a lien on his estate within Bankr. Act (Act July .1, J898, c. 541, 30 Stot. 584 [U. S. Comp. St. 1901, p. 3450]) § 07f, declaring that all liens obtained through legal proceedings against the bankrupt at any time within four months prior to the filing of the petition shall be void.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 306-316; Dee. Dig. § 196.*]</p>

In the matter of the Elletson Company, bankrupts. From an order of the referee holding a deed of trust of certain of the bankrupt’s property invalid in part, the trustee petitions for review. Prior to December, 1904, Will A. Elletson was conducting a business at Par-kersburg, West Virginia, under the name of the Elletson Printorium. The scope of this business was general job printing, the manufacture and sale of record and like books, and the purchase and sale of stationery.

<p>In Bankruptcy. In the matter of Frank H. Kyte, bankrupt. On exception to the report of referee sustaining objections to the bankrupt’s discharge.</p>

Action by J. A. Phillips against the Western Terra Cotta Company. Motion to set aside an order, previously made, overruling plaintiff’s motion to remand the cause to the state court, and for rehearing.

<p>At Law. Action by N. Ford Brent against the Charles H. Lili)' Company. Judgment for plaintiff. On motion for a new trial.</p>

<p>At Raw. Action by Jessie Carter against james M. Rinker. On demurrer to petition.</p>

<p>1. Courts (§ 366*) — Federal Courts — Rules op Decision — Statutes.</p> <p>In the construction of a state statute, (he federal court is governed by the construction of similar statutes in pari materia by the highest courts of the state.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 954-968; Dec. Dig. § 366.*</p> <p>Conclusiveness of judgment between federal and state courts, see note to Kansas City, Ft. S. & M. R. Co. v. Morgan,. 21 <5. C. A. 47S; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 40S.J</p> <p>2. Death (§ 31*) — Right to Sue — Nonresident—“AVidow.”</p> <p>Act Pa. 1891 (P. D. 207), providing for the health and safety of persons employed in and about anthracite mines, in article 17, § 8, declares that for any injury to person or property occasioned by any failure to comply with the act by any owner of any coal mine, etc., a right of action shall accrue to the person injured; and, in ease of loss of life, a right of action shall accrue to the “widow” and lineal heirs of the decedent for like recovery for damages for the injury they shall have sustained. Held, that the word “widow” construed in connection with Act April 15. 1851 (P. D. 674), and Act April 20, 1855 (P. D. 309), giving a right of action to a “widow” for the wrongful death of her husband, did not include a nonresident alien widow, and hence such widow who was an Kalian subject and had resided in Italy since before July 11, 1907, was not entitled to recover under the Act of 1891 for the negligent death of her husband in a coal mine in Pennsylvania, notwithstanding such a right might be enforced under the laws of Italy,</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 37; Dec. Dig. § 31.* For other definitions, see Words and Phrases, vol. 8, pp. 7457-7459.</p> <p>State laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. O. A. 553.]</p>

Bill by M. B. Shelton, trustee of B. B. Garner & Co., bankrupts, against Charles H. Price to set aside a sale of the bankrupt’s stock- and fixtures as made with intent to defraud creditors. On final hearing.

<p>Action by widow for death of husband by alleged negligence of defendant, and verdict for plaintiff for $8,830. Binding instructions for defendant having been refused, a rule for judgment non obstante veredicto was taken.</p>

<p>In the matter of Kessler & Co., bankrupts. Prom a referee’s order, awarding- to the trustee in bankruptcy certain corporate shares in the possession of Cunliffe Bros., and, they being- beyond jurisdiction, directing that no dividends be paid to them on their claim against the bankrupt estate until they surrendered the shares, they petition for review.</p>

<p>1. Bankruptcy (§ 252*) — Recovery of Assets — Compromise.</p> <p>Where a bankrupt’s trustee claimed that the bankrupt's wife had certain bonds of the face value of $5,000, and $6,274 in money which, in fact, belonged to the bankrupt’s estate, but the wife claimed the money as her own, and conflicting testimony taken before the referee indicated that the trustee would be unable to recover the money except after tedious and expehsive litigation, if at all, a proposed compromise by which the wife agreed to pay to the trustee $5,000, approved both by the creditors and by the referee, would be allowed.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. § 348; Dec. Dig. § 252.*]</p> <p>2. Bankruptcy (§ 283*) — Compromise—Injunction by bankrupt — Right to Sue.</p> <p>A bankrupt’s title to property in the hands of his wife claimed to. belong to his estate passed by the adjudication to his trustee, and hence he had no capacity to sue in a slate court to restrain tlie trustee from carrying out a proiiosed compromise of tiie claim against the wife.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 283.*]</p>

<p>1. Bankruptcy (§ 284*) — Exami nation of Bankrupt — Bights of Creditor.</p> <p>A creditor of a bankrupt, though his claim has not been filed, proven, or allowed, is entitled to examine the bankrupts before the referee, under Banitr. Act July 1, 1898, c. 543, § 7a (9), 80 Stat. 548 (U. S. Comp. St 1903, p. 842.1). requiring the bankrupt to submit to an examination concerning his business, etc., and with reference to all matters affecting the administration and settlement of Ills estate.</p> <p>[Ed. Note. — Por oilier cases, see Bankruptcy, Dec. Dig. § 284.*!</p> <p>2. Bankruptcy (§ 274*) — Statute—Construction—“Party in Interest.”</p> <p>Bankruptcy Act July 1, 3898, c. 541, § 89, subd. 8, 80 Stat. 555 (IT. S. Comp. St. 1901, p. 8180), provides that the referee shall furnish such information concerning estates in process of administration as may be requested by parties in interest. Section 47, subd. 5, provides Unit the trustee shall furnish such, information as may be requested by parties in interest ; and section 49 declares that the accounts and papers of the trustee shall be open to inspection of officers and parties in interest. Held, that a creditor of a bankrupt was a “party in interest” within such sections, even though he had not formally proved Ills claim.</p> <p>[Ed. Note. — Dor other cases, see Bankruptcy, Dee. Dig. § 274.* P’or other definitions, see Words and Phrases, vol. 4, pp. 3692-8096; vol. 8, p. 7693 J</p> <p>8. Bankruptcy (§ 248*) — Testimony of Bankrupt — Access of Creditors.</p> <p>Testimony of a bankrupt, taken as authorized by the referee, is a part of the record, to which creditors generally are entitled to access while it remains in the custody of the referee; and this, though the interests of the creditor seeking an examination and the trustee are antagonistic, in that the trustee intends to bring suit against the examining creditor to recover alleged preferences, and that a disclosure of file bankrupts’ testimony, who were hostile to the trustee, might; result prejudicially to the creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 243.*]</p>

Proceedings by the Northwestern Steamship Company, Limited, as owners of the steamer Santa Clara, for limitation of liability. From a decree in favor of damage claimants, petitioner appeals.

<p>In Error to the Circuit Court of the United States for the District of "North Dakota.</p> <p>Action by G. W. Swords, receiver of the Minot National Bank, against E. B. Page. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Principal AND Agent (§§ 100. 108*) — General Agent — Implied Authority.</p> <p>An agent authorized to purchase cotton for his principals in a particular locality from any persons having the same for sale and at any price agreed on between them was a general agent with implied authority to bind his principals by any contract for the purchase of cotton in that locality, bur, such implied authority did not extend to the opening of an account with a bank in the name of his principals, borrowing money, and pledging their securities as collateral therefor, whore the same was not a necessary incident to the business of purchasing cotton, such power being an unusual one to be conferred on an agent, and not to be implied whether his agency is general or special, unless the very nature of his business requires its exercise.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. §§ 106, .108.*]</p> <p>2. Principal and Agent (§ 122*) — Evidence of Agency and Authority — Declarations of Agent.</p> <p>The acts and declarations of an agent ye incompetent to prove the extent and scope of his power to bind his principals. •</p> <p>[Ed. Note. — For other cases, see Principal and Agent:, Cent. Dig. §§ 416-439; Dec. Dig. § 122.*]</p> <p>3. Evidence (§ 89*) — Actual Notice — Presumption from Mailing of Fetter.</p> <p>Proof of the mailing of a letter addressed to a firm and directed generally to “St. Louis, Missouri,” containing no specific address or statement of the firm’s business, is not sufficient to charge the firm with notice of its contents against their denial of any knowledge of it.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 89.*]</p> <p>4. Principal and Agent (§ 160*) — Ratification by Principal of Acts of Agent — Knowledge of Facts.</p> <p>In an action of replevin against a railroad company to recover cotton represented by bills of lading which had boon pledged to plaintiff by an agent of the owners who made the indebtedness in the name of his principals and pledged the collateral therefor without authority to establish a ratification which would sustain the action, it was incumbent on plaintiff to prove that, at the time of the alleged ratification, the principals had. knowledge, not only of the indebtedness, but also of the pledge.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 627-633; Dec. Dig. § 166.*]</p> <p>5. Tender (§ 19*) — Operation and Effect— Effect as Admission.</p> <p>The rule that a plea of tender entitles plaintiff to judgment for at least the sum tendered is based not on the act of tender, but on the admission it carries with it, and applies only where the tender was unconditional, and not to a tender made under protest to secure the release of collateral, where both the written tender and the pleading deny liability.</p> <p>[Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 69 64; Dec. Dig. § 19.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Action by Jule Gunter against Roxanna Gunter. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Mississippi.</p> <p>Action by W. A. II err, administrator, against the St. Louis & San Francisco Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

■In Error to the Circuit Court of the United States for the Northern District of Ohio; Action by John Eder, Jr., against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. Levees (§ 16*) — Contract foe Constructing Levee — -Action fob Breach.</p> <p>In a contract with the directors of a levee district for the construction of a levee by plaintiffs along the front of the Arkansas river, as shown on maps and profiles made by the board’s engineer, to be paid for in accordance with his measurement of the' work, a provision that any change in the alignment of the levee made by the engineer should not entitle plaintiffs to any allowance beyond the final measurement of the work did not cover a change from the original line along the bank of the river on dry ground to a course half a mile back on swampy ground; and where such change was agreed to by plaintiffs on agreement by tile engineer that the board should obtain right of way for a ditch to drain the swamp, for the consi ruction of which plaintiffs were to receive under the contract the same pay as for moving the same quantity of earth on the levee, which agreement was not kept, and by reason thereof the cost of the work in the new location was doubled, plaintiffs were entitled to recover such extra cost as damages for breach of the agreement.</p> <p>[Ed. Note. — For other cases, see Levees, Dec. Dig. § 16.*]</p> <p>2. Levees (§ 16*) — Contract por Construction op Levee — Powers op Engineer.</p> <p>Where plaintiffs contracted with defendant, a levee board, to construct a levee, defendant to procure right of way for the levee and all necessary borrow jáis and drainage ditches, the contract providing that defendant’s engineer should have supervision of the work with authority to make changes in the alignment on his making a considerable change which made it necessary for the proper prosecution of the work that a ditch should be made to drain a swamp through which the new route passed, his agreement that defendant would procure right of way therefor was within his powers and bound defendant, and was not a new contract within a by-law of defendant requiring construction contracts to be in writing.</p> <p>[Ed. Note. — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. § 16. *j</p> <p>8. Damages (§ 125*) — Breach op Contract to Pat Monet — Measure op Damages.</p> <p>Where a levee board was unable to make payments on a contract for the construction of a levee when they matured, but issued to the contractors certificates of indebtedness bearing interest which the contractors sold at a discount, they were not entitled to recover from the board as damages for breach of the contract the amount of such discount; the measure of such damages being the interest which was provided for in the certificates.</p> <p>!Kd. Note. — For other cases, see Damages, Cent. Dig. § 340; Dec. Dig. $ 125.*]</p> <p>4. Words and Phrases — “Alignment.”</p> <p>The word “alignment” used with reference to a system of drainage means the ground plan of the work.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 307.]</p>

Action by Ivar Wallin against the Duluth Rlevator Company. Judgment for plaintiff, and defendant brings error. In November, 3905, at a siding on the line of the Great Northern Railway in the county of Kittson, Minn., called Chatham, plaintiff'in error (hereinafter called the “elevator company”) had constructed, owned, and operated a frame elevator about BO feet square and about 00 feet in height.

Action by Annie T. Lomax against the Eoster Lumber Company and others. Judgment for defendants, and plaintiff brings error. On October 27, 1906, the plaintiff in error, Annie T. Lomax, filed in the district court of Liberty county, Tex., her original petition against the Foster Lumber Company and the Trinity River Lumber Company. The petition was in the form of trespass to try title, as required by the Texas statutes.

<p>1. Damages (§ 38*) — Interruption op Business — Remoteness.</p> <p>A respondent, who, under a claim of ownership made in good faith, took possession of a dredge being operated by libelant, cannot be held liable in damages oil the ground that by reason of such action libelant’s employes on the dredge left bis sendee in violation of their contracts, and he was delayed in his work until be could find new men, although he at once retook possession of the dredge; such damages not being the direct, and proximate result; of respondent's claim but remote and speculative.</p> <p>fKd. Note. — For other cases, see Damages, Cent. Dig. § 37; Dec. Dig. § 18 .*)</p> <p>2. Garnishment (§ 3(52*) — Proceedings to Support — Burden op Proof.</p> <p>Where a garnishee prior to service of citation on him had mailed a check to respondent for the amount in his hands belonging to respondent, which check had been transferred to a third person, the burden rested upon libelant, in order to charge the garnishee, to show that the transferee of the check was not a bona fide bolder for value.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 300; Dec. Dig. § 1(52.*]</p> <p>3. Garnishment (§ 1(54*) — Proceedings to Support — Sufficiency of Evidence.</p> <p>Evidence considered, and held insufficient to charge garnishees as debtors of a respondent.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 302; Dec. Dig. § 1(54.*]</p>

<p>Í. Husband and Wife (§ 34*) — Marriage Kettleiients — Evidence.</p> <p>Evidence held to sustain a finding that the making of an alleged ante-nuptial contract with reference to certain lands in controversy was not proved.</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Dec. Dig. § 34.*]</p> <p>2. Equity (§ 345*) — Answer Under Oath-Burden of Proof.</p> <p>Where a bill based upon an alleged antenuptial contract did not waive answer under oath, and the answer contained a sworn specific denial of the execution of the contract, the burden was on 'complainants to establish its execution by two witnesses, of by one witness with corroborating circumstances equivalent in weight to that of another.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. § 722; Dec¡ Dig. § 340.*]-</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by David E. Bown 'against the Pittsburgh Hardware & 'Home Supply Company. Judgment for plaintiff, and defendant brmgs error.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by Lewis Potthoff and the United States Electro Galvanizing Company against the Hanson & Van Winkle Company. Decree for defendant, and complainants appeal.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by James B. McCune against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Suit by the General Electric Company against the Tlill-Wright Electric Company. From a decree of the Circuit Court of the United States for the Southern District of New York, dismissing complainant’s bill for infringement of letters patent No. 72(5,293, dated April 28,1903, to John W. Howell complainant’s assignor, for a new method of exhausting incandescent lamps (170 Fed. 189), complainant appeals.

In Equity. Suit by Arthur K. Beckwith against the Malleable Iron Range Company. This is a bill in equity charging infringement of letters patent of the United States numbered 787,425, issued to complainant April 18, 1905, the application for which was made on the 11th day of September, 1903. Prayer for an injunction and accounting.

<p>In Fquity. Suit by the General Electric Company against the Ger-mania Electric Eamp Company.</p>

<p>Ill Equity. Suit by the General Electric Company against the Ger-mania Electric Ramp Company.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of West Virginia, at Charleston.</p>

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

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

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

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

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

This, cause comes here upon appeal from a decree of the Circuit Court, Northern District of New York, sustaining a demurrer and dismissing the bill. The suit was brought to restrain an alleged infringement of letters patent No. 747,874, granted to complainant December 22, 1903, for a thill coupling. The opinion of the Circuit Court is reported in 167 Fed. 559.

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

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

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

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

<p>Appeal from' the District' Court of the United States for the Eastern District of Louisiana. W. W. Howe, W. B. Spencer, and Esmond Phelps,-for. appellant and cross-ap-pellee. Henry P. Dart, for appellee and cross-appellant.</p>

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

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

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