Volume 175 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the Northern District of Texas.</p> <p>Bill by F. B. Gilbert and another against W. W. Moore and others. Decree for complainants, and defendants appeal.</p>

Proceedings for the settlement of the affairs of the Enterprise Transportation Company. A sale of the steamer Kennebec having been made by Hollis A. Bailey, receiver, the Massie Wireless Telegraph Company intervened, and claimed a portion of the proceeds of the sale for the alleged loss or destruction of a wireless telegraph outfit installed on said steamer. From a decree denying intervener any relief, it appeals.

Action by John D. Roquemore against the Vulcan Iron Works Company. Judgment for plaintiff, and defendant brings .error. This is an action for damages for the breach of a contract of sale. It was brought by the defendant in error (the plaintiff below) against the plaintiff in error (the defendant below) in the city court of Montgomery, and was duly removed on the ground of diverse citizenship to the Circuit Court.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Trespass to try title by Alfred Ogden against John A. Einch. Judgment for plaintiff, and defendant brings error.</p>

Action by the American Tie & Timber Company, Eimited, against the Kansas City Southern Railway Company and others. Judgment for defendants, and plaintiff brings error. The plaintiff in error sued the Kansas City Southern Railway Company and the Texas & Pacific Railway Company in separate suits, and the two cases were consolidated by the court below and tried together.

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

Suit in admiralty by the Moran Company against the Chesley Towboat Company, which by petition brought in the Stimson Mill Company as owner of the tug Tillicum, and the Crosby Tugboat Company as owner of the tug Harold C. From the decree, tfie Chesley Towboat Company and the Stimson Mill Company appeal.

<p>Appeal and Cross-Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.</p> <p>Suit in equity by H. S. Odbert, H. S. Odbert, Jr., George D. Odbert, and William H. Warner against William Marquet, the First National Bank of New Cumberland, and T. M. Scott. Appeal by complainants from a decree on cross-bill, and cross-appeal by defendant Marquet from decree on original bill.</p>

In the matter of the Lewis F. Perry & Whitney Company, alleged bankrupt. From, a decree denying the involuntary petition of Salo J. Stroheim and others for adjudication (172 Fed. 745), certain petitioners appeal.

<p>1. Master and Servant (§ 286*)—Injuries to Servant—Negligence—Question for Jury.</p> <p>Deceased, an electrician, during the temporary stopping of machinery was directed to repair an electric light, to do which it was necessary for him to stand where he could get a secure footing only while the machinery was stationary. While replacing the globe, the machinery was suddenly started without warning, the drum revolving at high velocity, and decedent fell and was instantly killed. Held, that defendant was not free from negligence as a matter of law.</p> <p>[ICd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§ 137*)—Death of Servant—Duty.</p> <p>Where the head roller in a steel mill directed an electrician to repair a light over machinery, which could be done with safety only while the machinery was stationary, it was the duty of such superior to know that decedent was in a place of safety before starting the machinery.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dee. Dig. § 137.*!</p> <p>3. Trial (§ 139*) — Question of Law or Fact —Issues —Withdrawal from Jury.</p> <p>A case should not be withdrawn from the jury, unless the conclusion follows as a matter of law that no recovery can be had on any view which can properly be taken of the facts which the evidence tends to prove.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. § 3 39.*]</p>

<p>1, Partxbrship (§ 83*>—Services—Compexsation.</p> <p>In the absence of a special agreement, a partner is not entitled to compensation for his services for the firm in addition to his share of the profits.</p> <p>[Ed. Note.—Por other cases, see Partnership, Cent. Dig. § 131; Dec. Dig. § 83.*]</p> <p>2. Pahtxvrshttp (§ 253*)—Dissoiwtiox—Partverskip Busixess—New BtrsiNESS—COUPEXSATION FOB SERVICES.</p> <p>Where, after dissolution of a firm, a partner winding up the business enters into a new business and assumes obligations and risks not iinposed on him by the partnership agreement, and the new business is successful and the other partner or his representatives elect to share in the profits thereof, the partner conducting the new business under the firm name might properly be allowed compensation for his services.</p> <p>[Ed. Note.—For other cases, see Partnership,-Cent. Dig. § 550; Dec. Dig. § 253.*]</p> <p>3. Partnership (§ 253*) — Dissolution — Trust Property — Management — Services of Managing Partner—Compensation.</p> <p>On dissolution of a partnership, it owned an undivided interest in certain timber tracts, the titles to which complainant held in trust for the benefit of the firm and for other investors, whose interest was proportionate to the amount their money bore to the whole amount of money invested in the lands. On dissolution of the firm, the trust lands did not go to the receiver of the partnership, but were left under the control of complainant as trustee, who continued to manage and control such as had not,been disposed of as before. Held, that he was not entitled to compensation for his services in managing such trust lands from the assets of the firm in addition to his share of the profits.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 550; Dec. Dig. § 253.*]</p>

<p>i Carriers (§ 320*)—Assault by Servant—Scope of Authority—Question fob Jury. . .. , .</p> <p>. , In an action for Injuries to a street car passenger by being assaulted by an inspector, evidence held to require submission to the jury of the question whether the inspector was acting within the general scope of his employment at the time of his assault.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. f 320.*</p> <p>Liabilities of carriers for injuries from negligence or torts of servants, see notes to Texas & I?. Ry. Co. v. Williams, 10 O. C. A. 466; The Anchoria, 27 C. C. A. 651.]</p> <p>2. Trial (§ 139*)—Direction of Verdict. .</p> <p>. A case cannot be properly withdrawn from the jury because m the judgment of the court there is a preponderance of evidence in favor of the party asking a peremptory insí ruction, unless, on a survey of the whole evidence, and giving effect to every inference to be fairly drawn from if. the case is for the party asking the instruction.</p> <p>[Ed. Note.—For other cases, see Trial, Gent. Dig. §§ 332, 333, 338-341; Dec. Dig. § 139.*]</p> <p>8. Carriers (§ 283*)—Inj dries to Third Persons—Assault by Inspector-Master’s Liability.</p> <p>The liability of a carrier for injuries to a passenger from an assault committed by an inspector depended on whether the inspector at the time of the assault was acting within the scope of his employment.</p> <p>[Ed. Note.—Por other cases, see Carriers, Cent. Dig. § 1121; Dec. Dig. § 283.*]</p>

In the matter of Max Elkind and another, bankrupts. From an order denying the bankrupts’ application for a discharge, they appeal.

<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 Clamor H. F. Hettling, bankrupt. Petition by James F. McNaboe, trustee, to revise an order of the District Court.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by George A. Ohl & Co., Incorporated, against the Falstrom & Tornqvist Company, Incorporated. Decree for defendant, and complainant appeals.</p>

Bill by the Johns-Pratt Company against the Sachs Company and others'to restrain the alleged infringement of letters patent, No. 660,-341, issued October 23, 1900, to Joseph Sachs for improvement in electric safety fuse. From a decree dismissing the bill (168 Fed. 311), complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Christopher C. Bradley against the Metal Stamping Company. From an order granting a preliminary injunction (166 Fed. 327), defendant appeals.</p>

<p>Patents (§ 328*)—Infringement—Safety Razob.</p> <p>The Scheuber patent, No. 679,639, for a safety razor, as limited by the prior art, held not infringed.</p>

<p>1. Patents (§ 328*)—Infringement—Guide for Punching Presses.</p> <p>The Conley and Conley patent, No. 701,544, for a guide for punching presses for punching holes in metal at variable predetermined distances, the purpose of the patented device being to secure accuracy in such spacing by means o-f separately adjustable stops, in view of the prior art, must be given a narrow and strict construction to sustain it, and be limited to the precise combination and elements described. As so construed, held not infringed.</p> <p>2. Patents (§ 328*)—Infringement—Gauge for Punching Presses.</p> <p>The Conley patent No. 735,469, for a gauge for punching presses, construed, and held not infringed by machines made in accordance with Clarke patents, Nos. 739,060 and 799,802.</p> <p>3. Patents (§ 56*)—Anticipation—Analogous Arts.</p> <p>There is such analogy in purpose and function between a machine for punching paper and one for punching metal that the former may properly be considered in the metal-punching art.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 89; Dec. Dig. § 56.*]</p>

<p>1. Patents (§ 119*)—Validity—Claims Embodying Distinct Inventions.</p> <p>A patent should not be held invalid because each of its claims might have been made the basis of a separate application, where all relate to improvements in a single instrument and may in a sense be considered elements of one construction.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 171; Dec. Dig. § 119.*]</p> <p>2. Patents (§ 10T5)—Construction—Use of General Language.</p> <p>General language used in the claims of a patent relating to a limited field is merely general as to this limited field, and should not be held to render the claims indefinite because as a matter of literary composition the same language might; be applied to some other field, if the public would not thereby be deceived.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 141; Dec. Dig. § 101.*]</p> <p>8. Patents (§ 328*)—Invention—1Thermometers.</p> <p>The Maurer patent, No. 525,915, for improvements in thermometers intended to register high temperatures, claim 4, which covers “a long stem thermometer haviiig insulation applied to the stem of the mercury tube from the bulb to the thermometer head,” in view of the prior art and its general language, is void for lack of invention.</p>

<p>Patents (§ 328*)—Invention—Floor-Joints eor Water-Closets.</p> <p>Tbe Renton patent, No. 748,418, for improvements in floor-joints for water-closets, is void for anticipation and lack of invention.</p>

<p>In Equity. Suit by the Eastern Paper Bag Company against the Continental Paper Bag Company. On final hearing.</p>

In Equity. Suit by the Anthracite Separator Company against James Pollock and the Parrish Coal Company for infringement of letters patent Nos. 629,590, 629,591, and 629,592, for an ore and coal separator, granted to Frank Pardee July 25, 1899. On final hearing. All of the claims of each of the patents are relied on, and are as follows: First Patent. 1.

<p>In Equity. Suit by tlic American Bar Eock Companjr against Robert H. Old and others. On final hearing.</p>

<p>In Equity. Final hearing in suit by Charles A. Campbell against the New Idea Arc Eight Company for patent infringement.</p>

In Equity. Action by Charles A. Campbell against the Magnet Eight Company for infringement of patent. On motion to punish Joseph Greenberg and others for a violation of an injunction restraining defendant Magnet Eight Company, its officers, agents, attorneys, and workmen, from making or selling gas lamps constructed in accordance with complainant’s patent.

<p>Patents (§ 801*)—Infbingemtont—Right to Injunction—Estoppel.</p> <p>Complainant’s assignor having applied for a patent on a gun target device before complainant’s patent was issued, complainant submitted to the War Department -full detailed drawings of the invention, that it might advertise for open ’bids for the manufacture of a quantity of the devices; complainant hoping that it might itself obtain the contract therefor, and with knowledge that the government must advertise for open bids. The contract was obtained by defendant, and the patent granted. Held, that complainant was not entitled to a temporary injunction restraining defendant from manufacturing the device for the government under the contract on the theory that it would constitute an infringement of the patent</p> <p>IF.d. Note.—For other cases, seo Patents, Cent. Dig. § 490; Dee. Dig. § 801.*1</p>

<p>Patents (§ 297*)—Suit fob Infringement—Preliminary Injunction.</p> <p>The fact that an applicant for a patent was successful in interference proceedings in the Patent Office is presumptive evidence of the validity of his patent, on a motion for a preliminary injunction, as against the other party to the proceeding, only so far as concerns the question of priority of invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 480; Dee. Dig. § 297.*]</p>

<p>Customs Duties (§ 36*)—Classification—‘Tiiotoobapiis’’—Cinematograph Films.</p> <p>Cinematograph films are “photographs,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 403, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673).</p> <p>[Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 36.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5373.]</p>

Action by James D. Clark against the Southern Pacific Company. On motion to remand. The question to be determined arises upon a motion to remand the cause to the state court. Suit was originally instituted by the plaintiff in the district court of El Paso county, Tex., and removed to this court by the defendant.

Actions by Eliphalet N. Potter and others, composing the firm of Potter, Choate & Prentice, against Thaddeus O. Troy, and by George C. Clark and others against the same defendant. On demurrers to the complaints.

<p>1. Dismissal and Nonsuit (§ 5*)—'Voluntary Dismissal.</p> <p>Complainant may dismiss bis bill on payment of costs, unless a cross-bill seeking affirmative relief bas been filed prior to tbe motion to dismiss.</p> <p>[Ed. Note.—For other cases, see Dismissal and- Nonsuit, Cent. Dig. § 6; Dec. Dig. § 5.*]</p> <p>2. Time (§ 11*)—Fractions of a Day—Filing Pleading.</p> <p>Tbe court will take notice of fractions of a day in-determining whether a cross-bill seeking affirmative relief bas been filed prior to tbe filing of complainant’s motion for dismissal of the bill.</p> <p>[Ed. Note.—For other "cases, see Time, Cent. Dig. § 53; Dec. Dig. § 11:**]</p> <p>3. Dismissal and Nonsuit (§ 19*)—Voluntary Dismissal—Motion—Filing-</p> <p>Subsequent Filing of Ckoss-Bill.</p> <p>Where a cross-bill seeking affirmative relief was filed on the same day, but subsequent to the filing of a motion by complainant to dismiss the bill, tbe filing of tbe cross-bill was ineffective to prevent tbe granting of tbe motion to dismiss. ■</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 36; Dec. Dig. § 19.*]</p>

Action by the Burt & Brabb Bumber Company against J. M. Bailey. This is an action on a judgment rendered by the circuit court of Leslie county, state of Kentucky. The defenses set up by the answer are that the circuit court of Leslie county was without jurisdiction of the person of the defendant for the following reasons: (1) That he was not legally and properly served with a summons in said cause, nor did he enter his appearance personally or by attorney or otherwise.

<p>1. Fraudulent Conveyances (§ 88*)—Mortgages—Description—Change of Securities.</p> <p>A bankrupt, owning three lots, numbered 650, 719, and 720, respectively, mortgaged part o£ No. 719 to claimant, and thereafter mortgaged fractional parts of Nos. 650 and 719 to a bankthe deed reciting that it was subject to a security deed theretofore granted to a fractional part of 719 to claimant. Thereafter the bankrupt, claiming that he had mortgaged 719 to claimant by mistake, intending to convey 720 to him, induced him to take up the bank loan, whereupon a new security deed was given to him on No. 720, and the deed of lot 719 was canceled of record. Held, that claimant, having voluntarily relinquished his lien on 719, must stand as one having had an antecedent debt without security so far as No. 720 was concerned, and that the latter deed was void in toto as against the bankrupt’s creditors.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 230-233; Dee. Dig. § 88.*]</p> <p>2. Mortgages (§ 77*)—Mistake—Description of Property.</p> <p>Where a second mortgage on a lot referred to a prior mortgage on the same lot, and recited that the second.mortgage was subject to the first, a subsequent claim of mistake as to the lot mortgaged, and that it was intended that the second mortgage should be a first lien on another lot, was unsustainable.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 176; Dec. Dig. § 77.*]</p>

<p>Suit by the Arlington Heights Fruit Company and others against the Southern Pacific Company and others for injunction restraining defendants from putting into effect a proposed increased rate of $1.15 per hundred pounds, for transportation of lemons from California to the New York market, 'pending a determination of the reasonableness of such rate by the Interstate Commerce Commission.</p>

<p>1. Waters and Water Courses (§ 188*)—Waterworks Company—Franchise —Expiration—Effect.</p> <p>On the expiration of a water company’s 1'ranohiso by limitation, the company’s right to operate its plant and use the streets of the city therefor ceased, and with it the right of the city to demand service. •</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses. Cent. Dig. $ 287; Dec. Dig. § 188.*]</p> <p>2. Waters and Water Courses (§ 188*)—Franchise—Expiration—Continued Service—Water Company’s Ohuigahoxs.</p> <p>Where, after the expiration of a water company’s franchise, it continued to operate its plant and render service to the public, it was bound during such period to perform the obligations growing out of such assumed quasi public service, to the extent that it was required to supply water adequate to its reasonable capacity and at reasonable rates, and to that extent it was subject to the jurisdiction of the courts to enforce its implied undertaking.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 287; Dec. Dig. § 188.*]</p> <p>S. Waters and Water Courses (§ 188*)—Water Company’s Franchise—Termination—Continued Service—Tácense.</p> <p>"Whore a water company, after the terminaiion of its franchise,'Continued to furnish water, it did so according to a quasi contractual relation, which was a mere license from which either it or the city could withdraw at will.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 287; Dec. Dig. § 188.*]</p> <p>4. Waters and Water Courses (§ 188*)—Water Companies—Termination of Francium:—Continuance’ of Service—Keguhation.</p> <p>A water company continuing to furnish -water after the termination of its franchise is subject to regulation by the state or the municipality.</p> <p>[Ed. Note.—For .other cases, see. Waters and Water Courses, Cent. Dig. § 287; Dec. Dig. § 388.*]</p> <p>’5. Courts (§ 493*)—Jurisdiction—State Court—Prior Action—Issues.</p> <p>Where the entire subject-matter involved in a suit in the state court was the right of a water company to shut off the supply of water because of the city’s failure to pay arrears for hydrant rentals, in which the water company recognized that in furnishing the water after the expiration of its franchise it was performing a quasi public service for which it was demanding compensation, and the court restrained the shutting off of the water on certain conditions and retained jurisdiction for further orders, such retained jurisdiction extended only to the carrying out of the decree rendered, and did not give to the court exclusive jurisdiction of a suit by complainant to prevent the city from interfering with his expressed intention of ceasing to furnish water and dismantling the plant.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1349; Dec. Dig. § 493.*]</p> <p>6. Courts (§ 493*)—Exclusive Jurisdiction—Priority.</p> <p>A decree in a state court in personam, restraining a water company under which complainant claimed from refusing to continue to furnish water to the city on certain conditions, which neither fixed a lien on the water company’s property nor assumed to act on any property in custodia legis, did not give the state court exclusive jurisdiction of a subsequent proceeding by complainant to restrain the city from interfering to prevent him from dismantling and removing the plant.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §'1349; Dec. Dig. § 493.*</p> <p>Conflict of jurisdiction with state courts,, see note to Louisville Trust Co. V. City of Cincinnati, 22 C. C. A. 356.]</p> <p>7. Judgment (§ 685*)—Conclusiveness—Parties—Mortgagees.</p> <p>A mortgagee of the plant of a water company, who was not a party to a suit by the city to restrain it from refusing to furnish water because of the city’s delinquency in the payment of water rates, was not bound by the decree so as to prevent him, after obtaining title to the waterworks company’s property by conveyance of the equity of redemption instead of by foreclosure, from dismantling and removing the plant.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1208; Dec. Dig. § 685.*]</p> <p>8. Waters and Water Courses (§ 188*)—Franchise—Termination—Plant-Removal from Streets.</p> <p>On the termination of a waterworks company’s franchise by lapse of time, it was entitled to enter on the streets of the city without let or hindrance for the removal of its pipes and appliances.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 287; Dee. Dig. § 188.*]</p> <p>9. Waters and Water Courses (§ 188*)—Termination of Franchise—Removal of Water Company’s Plant—Interference by City.</p> <p>Where, after considerable litigation between a water company, whose franchise had expired, and the city, the water company, which wras doing business at a loss, deeded its property to a mortgagee to save foreclosure expenses, and it appeared that the city intended to carry out its purpose to keep the waterworks plant in operation until such time as it could complete its own independent plant, though complainant was desirous of removing his property, he was entitled to an injunction restraining the city’s officers from interfering, by suit or otherwise, with his employes in removing hi's pipes and appliances from the city’s streets.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 287; Dec. Dig. § 188.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers, i The decision below is reported as G. A. 6,821 (T. D. 29,312), and reversed the assessment of duty by the collector of customs at the port of Boston on importations by Marden, Orth & Hastings and C. A. Spencer & Son.

<p>In Equity. Suit by the Barber Asphalt Company against the EortySecond Street, Manhattanville & St. Nicholas Avenue Railway Company. On exceptions to report of special master, on rehearing as to the claim for “current operating debt incurred in the ordinary course of business,” made by William W. Radd, as receiver of the New York City Railway Company.</p>

<p>In Equity. Bill by the Record & Guide Company against George W. Bromley and others.</p>

<p>1. Tbade-Mabks and Tkade-Naiues (§ 75*)-—TTnlaw¥ut. Competition—Habeas.</p> <p>Bottles. labels, and capsules in which Guinness' Extra Stout, bottled by T. B. Hall & Co., Liverpool. and purchased by defendant for resale from William A. Ross & Bro., Importers, held so similar to the bottles, labels, and capsules previously devised and used by complainants, E. & J. Burke, Limited, bottlers of the same stout, as to deceive the public, and therefore constituted unlawful competition.</p> <p>[Ed. Note.—For other cases, see Trade-lUarks and Trade-Names, Dec. Dig. S 73.*]</p> <p>2. Teade-Mabks and Trade-Names (§ 23*)—Labels—Eight to Use—Pbopeett Eight.</p> <p>Where complainants adopted a red capsule in connection with certain specified labels and collocation to distinguish Guinness’ Stout, bottled and exported by them and sold in the United States, their right to the use thereof was a property right which the courts would protect against infringement.</p> <p>TEd. Note.—For other cases, see Trade-Marks and Trade-Names,- Cent. Dig. §26; Dec. Dig. §23.*]</p> <p>3. Teade-Mabks and Teade-Names (§ 80*)—Abandonment—Laches.</p> <p>A complainant is not entitled to protection against infringement of its labels, capsule, and collocation, used in the sale of an article of merchandise, if, for a long period, it has knowingly allowed others to use substantially the same capsule, labels, and collocation without objection.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. § 80.*]</p> <p>4. Tbade-Maeks and Trade-Names (§ 32*)—Unlawful Competition—Aban - d o NMEpTT—Laches—Intent .</p> <p>In order to establish abandonment of a merchant’s right to protection of his labels and collocation under which his goods are sold, an actual intent to abandon must be shown, though it may be inferred from his acts or lac-hes necessarily pointing to actual abandonment.</p> <p>TEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 36; Dec. Dig. § 32.*] 1</p> <p>5. Tbade-Marks and Teade-Names (§§ 32, 86*)—Protection—Abandonment-Laches.</p> <p>Complainant had instituted eight different suits in the United States to restrain imitation of its dress of bottles in which it sold Guinness’ Stout, including the capsule; and in 1893, when R. commenced selling the same stout under similar labels, collocation, and capsules, complaint was made, and negotiations followed. Suit was commenced in 1896, which was considerably delayed owing to tbe residence of the parties and witnesses; and, complainant’s solicitor dying, the suit was discontinued by consent in 1901. A new suit was instituted in March, 1904, and evidence was taken therein in 1906, 1908, and 1909-; there being no orders limiting the time, or motions or requests for more expeditious prosecution, and since the suit was begun there had been a partial compliance by R. with complainant’s demand. Held, that complainant had not abandoned its right to the protection of its labels, capsule, and collocation; nor was it guilty of such laches as to preclude an injunction restraining defendant’s use of a capsule, labels, and collocation constituting unlawful competition, though complainant was not entitled to an accounting.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 36, 05; Dee. Dig. §§ 32, 86.*</p> <p>Abandonment of trade-marks and trade-names, see note to Saxlehner v. Eisner & Mendelson Co., 33 C. Cl A. 294.]</p> <p>6. -Tbade-Maeks and Teade-Names (§ S5*) — Unlawful Oompetition — Extravagance in Advertising.</p> <p>Mere extravagance in advertising is not such a fraud as will deprive a complainant of relief in a suit for unlawful competition.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Gent. Dig. § 94; Dec. Dig. § 85.*]</p>

<p>Action by the Pennsylvania Steel Company against the Elmore & Hamilton Contracting Company. On demurrer to plaintiff’s complaint to recover damages for injurjr to property.</p>

<p>Action by the Boatmen’s Bank of St. Louis against D. G. Fritzlen and others, on exception to the answer of defendants Fritzlen.</p>

Action by John T. Hanlon against Charles H. F. Smith and another, as receivers of the Chicago Great Western Railway Company.

<p>1. Bonds (§ 62*)—Construction—Extent of Liability.</p> <p>Defendant’s principal having contracted to execute a statue in bronze, in order to secure the first payment on the approval of the sketch model, in accordance with the contract, gave a bond with defendant as surety, reciting that its condition was such that, if the principal should well and truly provide all materials and perform iu a good and workmanlike manner all the work covenanted and agreed by him to be provided aud performed in the contract, and in each and every respect do and comply with all and singular the terms and stipulations of the contract for him to perform and observe, the obligation was to be void, otherwise of full force and virtue. Held, that the bond, though an absolute obligation to pay money, was so modified by the accompanying conditions that plaintiff on breach thereof could only recover for such damage as followed the principal’s breach of the contract.</p> <p>[Ed. Note.—For other cases, see Bonds, Dec. Dig. § 62.*]</p> <p>2. Bonds (§ 62*)—Contractor’s Bond-—Construction.</p> <p>Plaintiff employed an artist under a written contract to construct a bronze statue for $35,000, to be paid as follows: 10 per cent, when the sketch model was approved; 10 per cent, when the staff model was cojnpleted and placed on its pedestal; 20 per cent, when the full-sized plaster model had been delivered at the foundry; 30 per cent, when the bronze statue had been completed aud accepted; and 30 per cent, when the statue was completed and accepted—the artist' being required prior to each payment to give bond in an amount equal to the sum paid to complete the contract. The first two payments were made and bonds given pursuant thereto, when the artist made default, and did nothing further toward the completion of the contract. Mold, that the provisions for payment did not make the contract separable into as many contracts as there were steps, on the completion of each of which payments were to be made, but that it was entire, and that for the contractor’s breach defendant surety was liable for the amount plaintiff had paid to him pursuant to the bonds, and not only for nominal damages.</p> <p>[Ed. Note.—For other cases, see Bonds, Dec. Dig. § 62.*]</p>

<p>Action by' the Atlantic Mutual Insurance Company against the schooner Win. J. Quillan.</p>

<p>Corporations (§ 566*) — Insolvency and Receivers — Transportation Companies—Priorities oe Claims.</p> <p>In the distribution of the assets of an insolvent steamship company, claims of connecting transportation companies for traffic balances _ due from defendant on account of joint freights collected by it are not entitled to priority of payment over claims of other unsecured creditors, in the absence of any agreement creating a trust relation between the parties, but such claimants are entitled to freights collected on their behalf by the receiver after his appointment.</p> <p>[Ed. Note!—For other cases, see Corporations, Dee: Dig. § 566.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Admiralty (§ 5*)—Jurisdiction' of Courts—Suit Against Foreign Vessels.</p> <p>A court of admiralty of the United States is not required to decline jurisdiction of a suit brought against foreign vessels, seized within its jurisdiction, belonging to different nations, for an injury which took place on the high seas, in the absence of any treaty provision affecting the case.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. § 77; Dec. Dig. § 5.*]</p> <p>2. Admiralty (§ 4*)—Jurisdiction oe Courts—Place oe Collision—“High Seas.”</p> <p>A collision which occurred off a foreign port, although within a marine league of the coast, was nevertheless on the “high seas” for the purposes of jurisdiction of a suit arising therefrom.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 38-68; Dee. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3287-3289.]</p> <p>3. Judgment (§ 832*)—Questions Concluded—Decree oe Foreign Court oe Admiralty.</p> <p>A decree of an English court of admiralty, determining the fault for a collision between the two vessels involved, is conclusive of such question as between such vessels in a subsequent suit against both in a court of admiralty of the United States to recover damages sustained by libelant in such collision.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1523-1525; Dec. Dig. § 832.*]</p> <p>4. Admiralty (§ 60*)—Jurisdiction—Allegations oe Pleading.</p> <p>A libel which alleges that libelant sustained an injury, causing pain and suffering, in a collision between respondent vessels on the high seas, through their fault or the fault of one of them, states a cause of action cognizable in any court of admiralty jurisdiction.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 482-487; Dec. Dig. § 60.*</p> <p>Admiralty jurisdiction of actions for torts, see note to Campbell v. ET. Hackfeld & Co., 62 C. O. A. 279.]</p>

<p>Action by the Huber Manufacturing Company against H. Crawford & Sons. On rule to show cause why new trial should not be granted.</p>

<p>In Admiralty. Action by Samuel Marks and others against the Fireman’s Fund Insurance Company.</p>

<p>Admiralty (§ 54*)—Defect of Stipulation foe Release of Vessel—Subrogation of Surety to Lien of Libelant.</p> <p>A stipulation for tlie release of a libeled vessel takes the place of the vessel, so far as tbe claim of the libelant is concerned, and tlie surety cannot, by taking an assignment of such claim, keep it alive as a lien on the vessel as against a prior mortgagee.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. § 443; Dec. Dig. § 54.*]</p>

<p>1. Aliens (§ 40*)—Females—Keeping, Harboring, and Maintaining for Improper Purposes—Statutes—Constitutionality.</p> <p>So much of Act Cong. Feb. 20, 1907, c. 1134, § 3, 34 Stat. 898 (U. S-Comp. St. Supp. 1909, p. 447), regulating the importation of aliens, as prohibits the keeping, harboring, or maintaining of a female alien for improper purposes within three years after she enters the United States, is unconstitutional; Congress having no authority to make such' acts a crime, as they are within the reserved power of the states.</p> <p>[Ed. Note.—For other cases, see Aliens, Dec. Dig. § 40.*]</p> <p>2. Aliens (§ 39*) — Immigration — Regulation — Importation for Immoral Purposes.</p> <p>Congress 'has power to prohibit the importation of aliens for immoral or undesirable purposes, and to punish any person who shall import, or attempt to import, an alien for a prohibited purpose.</p> <p>[Ed. Note..—For other cases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 39.*]</p> <p>3. Indictment and Information (§ 203*)—Counts—Sentence.</p> <p>Where a sentence did not exceed the punishment authorized on the conviction on one of the counts of the indictment which was clearly sufficient, it was not erroneous because defendant was convicted on two counts, one of which was unsustainable, though the judgment record recited that the sentence imposed was for both offenses.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 651-656; Dec. Dig. § 203.*]</p> <p>4. Habeas Corpus (§ 48*)—Federal Courts—Jurisdiction.</p> <p>The power of federal courts to issue writs of habeas corpus to inquire into the cause of restraint of liberty in certain specified instances is expressly restricted by Rev. St. §§,751, 752, 753 (U. S. Comp. St. 1901, p. 592), to the territorial jurisdiction of the court in which the application is made.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 46; Dee. Dig. § 48.*</p> <p>Jurisdiction of federal courts, see note to In re I-Iuse, 20 C. O. A. 4.]</p>

<p>Action by James W. Roche against Edward B. Jordan.</p>

<p>1. Courts (g 376*)—State Laws as Rules of Decision in Federal Courts— Witnesses.</p> <p>Under Rev. St. § 858 (U. S. Comp. St. 1901, p. 659). providing that in all other respects than those specified the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, in equity, and in admiralty, does not apply to criminal cases tried in the federal courts, where the competency of witnesses is to be determined by the law of the state in which the court is held as it existed when the courts of the United States were established by the judiciary act of 1789.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 984; Dee. Dig. § 376.*</p> <p>State laws as rules of decisions in federal cburts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 333.)</p> <p>2. Courts (g 376*)—State Laws as Rules of Decision in Federal Courts— Witnesses.</p> <p>A person convicted of and sentenced for murder or other infamous crime in Pennsylvania in 1789, on the establishment of the federal courts, was incompetent to testify as a witness in the state courts, and was therefore incompetent to testify in criminal trials subsequently held in the federal courts sitting in that state.</p> <p>TEd. Note.—For other cases, see Courts, Cent. Dig. g 984; Dec. Dig. § 376.*]</p> <p>3. Witnesses ($ 40®)—Disqualification—Conviction of Crtmtj—Pardon—Effect.</p> <p>Pardon of a person convicted of an infamous crime, whether legislative or executive, restores the person’s competency to testify as a witness.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 116; Dec. Dig. § 49.-1</p> <p>4. Constitutional Law (§ BO®)—Distribution of Governmental Powers— Power to Pardon.</p> <p>The power to pardon having been vested in the Legislature by the Constitution of Pennsylvania, as well as in the executive, the grant .of power to the executive was no limitation on the right of the Legislature also_to exercise the power; and hence the failure of the Legislature to exercise such power until the passage of Act March 3.1, 1860 (Purd. Dig. p. 469, par. 357). did not affect the validity of such act or pardons granted pursuant thereto.</p> <p>[Ed. Note.—Por other eases, see Constitutional Law, Cent. Dig. §§ 48, 49: Dec. Dig. .§ 50.®]</p> <p>5. Witnesses (§ 19®)—Competency-Convicts—Pardon.</p> <p>Act Pa. March 31, 1860, § 181 (Purd. Dig. p. 469, par. 357) provides that where any person Iiaih been or shall be convicted of any felony not punish able with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment for which such offender lmfli been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the Governor. Held that, whore a person convicted of murder in the second degree had served the term of imprisonment imposed therefor and had been released, such service operated as a legislative pardon, with all the' consequences flowing therefrom, and operated to make the offender competent to testify as a witness thereafter in criminal trials in federal courts sitting In that state.</p> <p>[Ed. Note.—For other eases, see Witnesses, Cent. Dig. § 118; Dec. Dig. § 49.®]</p> <p>6. Pardon (§ 11*)—Amnesty—Distinction.</p> <p>“Pardon” is granted to an individual criminal by name, while “amnesty” is granted to classes of offenders or communities. They differ, not in kind, but solely in the number they severally affect.</p> <p>[Ed. Note.—For other cases, see Pardon, Cent. Dig. §§ 24 26; Dee. Dig. § 11.®</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 516*8-5172; vol. 8, p. 7745; vol. 1, p. 373.]</p>

In the matter of Henry L. Walrath, bankrupt. Application in the nature of a demurrrer to the sufficiency of .the specifications of objection to the bankrupt’s discharge and to dismiss the same.

<p>In Admiralty. Suit by the Newbold Whiting Company against the barge C. E. Paul.</p>

<p>1. Railroads (§ 37*)—Public Aid—State Bonds—Security.</p> <p>Act Ala. January 11, 1870 (Acts 1800-70, p. 89), authorized the issuance of state bonds in aid of the Alabama & Chattanooga Railroad Company as a loan of the state’s credit to expedite the construction of the road. The state bonds were to be issued only in exchange for the first-mortgage bonds of the railroad, secured by the raihuad’s land grants from the federal government. The act also provided that the directors and stockholders of the railroad company should be held personally liable “to the state” for any loss incurred by any conscious violation of the act, and, if the bonds should not prove sufficient to secure the state, the Governor was authorized to require the railroad to give a second mortgage on its railroad “ample and sufficient to secure the state from any loss by the issuance of state bonds.” A sinking fund was provided for to be used in the purchase of railroad company’s bonds in the hands of the state, which were then to be presented to the State Auditor for cancellation and returned by him to the company, which presentation and cancellation to the required amount each year should constitute a full compliance with the first section of the act. Personal security was also required by the state for the completion of the road, conditioned that, on failure to complete and equip as required, the surety should become liable to the state for the entire amount of the bonds of the state which the company shauhl receive. Held, that the holders of state bonds issued under such act had no interest in the security given the state by the company, the railroad company owing no duty to such bondholders but only to the state, and hence the bondholders could not enforce their bonds as against (he granted lands mortgaged to the state.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 73; Dec. Dig. § 37.*]</p> <p>2. Subrogation (§ 36*)—Persons Against Whom Enforceable.</p> <p>Since the state and not the railroad company was the principal debtor on the state bonds, and payment by the railroad company to the state for the redeemed bonds discharged the railroad company’s obligations, the holders of the state bonds had no right by subrogation to look either to the railroad company or to its property pledged for indemnify to the state for the payment of such bonds, and this especially after the state had parted with the lands mortgaged and received therefrom §40,000 in addition to the surrender of 1,883 of its credit bonds.</p> <p>[Ed. Note.—For other eases, see Subrogation, Cent. Dig. § 99; Dec. Dig. § 36.*]</p> <p>3. Courts (§ 96*)—Federal Courts—Rule of Decision—Decisions of Supreme Court.</p> <p>Decisions of the Supreme Court of the United States on similar questions ate binding on the lower federal courts, though not in line with the current of authority in other jurisdictions.</p> <p>[Ed. Note.—For other cases, see Courts, Cent'. Dig. §§ 325, 327, 328; Dec. Dig. § 96.*]</p>

<p>Bankruptcy (§ 154*)—Suit by Trustee to Kecoveb Preference—-CeossB:ixi.</p> <p>A court of equity in a suit by a trustee in bankruptcy to recover'a preference will not under the circumstances enter!sún a cross-bill for tbe recovery by defendant of the amount of the dividend to which he claims to be entitled from the bankrupt estate, but will require him to prove his claim in the bankruptcy court, but it may permit him, on the giving of security, to retain in bis bunds sufficient of the amount complainant is entitled to recover to cover his dividend in ease his claim shall be allowed.</p> <p>fEd. Note.—For other cases, see Bankruptcy, Cent. Dig. § 451: Dec. Dig. § 154.*]</p>

<p>1. Bankruptcy (§ JIG*)—Action by Trustee to Recover Preference —Measure of Recovery—Contract of Receiver.</p> <p>A contract between a receiver in bankruptcy and a claimant of a stock of merchandise which he had taken into his possession from the bankrupt just prior to the filing of the petition, made with tlie approval of the court, by which the latter was authorized to sell the goods, construed, and luiUl to constitute a waiver by the receiver of any right of himself or the trustee to charge the claimant with the actual value of the goods then unsold, regardless of the amount received therefor, but to substitute for (he goods themselves the proceeds actually realized therefor on their sale so far as concerned any claim of the receiver, but not to apply in that respect to goods previously sold by the claimant without any agreement.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p> <p>2. Bankruptcy (§ 116*)—Sale of Property by Adverse Claimant—Consent by Receiver.</p> <p>A court of bankruptcy has jurisdiction, with the consent of an adverse claimant of property in possession, to authorize its receiver after adjudication, though out of possession, to consent to a sale of the property in the interest of its preservation under the joint supervision of the receiver and adverse claimant, leaving tlieir respective claims to the proceeds to be thereafter determined.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p> <p>3. Bankruptcy (§ 116*)—Claims by Third Persons—Sale—Estoppei of Trustee to Question.</p> <p>A trustee in bankruptcy who for four years after his appointment made no objection to a sale of property made by an adverse claimant under an agreement with the receiver who preceded him with the approval of the court is estopped to thereafter question the validity of the contract.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Bee. Dig. § llfl.*(</p> <p>4. Evidence (§ 113*)—Voidable Preference—Suit by Trustee for Accounting-Value of Property.</p> <p>The value of merchandise received by a creditor of a bankrupt as a preference for the purpose of an accounting therefor in equity is what it will sell for under normal conditions, and, where there has been a sale under such conditions, the best evidence of such value is the price realized at such sale.</p> <p>[Ed. Note.-—For other cases, see Evidence, Dec. Dig. § 113.*]</p> <p>5. Bankruptcy (§ 154*)—Preferential Transfer of Property—Accounting by Creditor.</p> <p>A creditor to whom a bankrupt transferred property under circumstances-which made it an unlawful preference and who sold the same on an accounting therefor in equity is not entitled to credit for any service rendered or disbursement made in making such sale.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 154.*]</p> <p>6. Bankruptcy (§ 168*)—Preferential Transfer of Property—Accounting by Creditor—Interest.</p> <p>A creditor who obtained a preferential transfer of property from a bankrupt from the time he was advised that the bankrupt’s receiver claimed the property for the estate held it as a trustee ex maleficio, and is chargeable with interest at the legal rate at least from the time when he sold it even as to such as was sold under an agreement with the receiver, which was without prejudice to the right of the receiver to the proceeds.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 168.*]</p> <p>7. Bankruptcy (§,§ 473, 474*)—Actions by Trustee—Costs.</p> <p>A trustee in bankruptcy who succeeds in a suit to require an accounting for an unlawful preference is entitled to costs up to the time such accounting is ordered, although he claimed more in his bill than he was given by the decree, but is liable for the costs and disbursements of the accounting where they were made in respect to disputed items as to which he was unsuccessful.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. §§ 473, 474.*]</p> <p>8. Courts (§ 352*)—Federal Courts—Equity—Hearing Before Master— Beport. <</p> <p>A master in chancery in a suit in a federal court should not rule on requests to make findings of fact, made by a party after service of his draft report, which are not., known to the federal equity practice, nor should he embody such ruliilgs if made in his report.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 352.*]</p>

<p>In Admiralty. Suit by Thomas Monk, Jr., against the Cornell Steamboat Company.</p>

Habeas Corpus. Proceeding by the United States, on the relation of Robert Freeman, against William Williams, to obtain relator’s discharge from an order directing his deportation as an alien seeking to enter the United States and likely to become a public charge.

<p>In Equity. Suit by Vaughan Glaser and another against the St. Elmo Company, Incorporated, and others, to restrain the production oí a play.</p>

<p>1. Cottets (§ 420*) — FnmsiiAn Disteict Coxiets — Divisions — (Transfer of Cause.</p> <p>Under the act dividing the district of Georgia into two divisions and providing that suits shall be brought against the parties who live in the counties embraced in the Northwestern division in that division, where bankruptcy proceedings were instituted agaiust a bankrupt living in the Northwestern division, but the petition was -filed and process made returnable at Atlanta, instead of at Rome, the case would be transferred to the Northwestern division, and new process directed to be served on the bankrupt In that division returnable at Rome.</p> <p>[Ed. Note.—Eor other eases, see Courts, Dec. Dig. § 420.*]</p> <p>2. Bankbtiftoy (§ 84*)—Petition—Amendment—A))»rrros of Okounds.</p> <p>Where an original petition in bankruptcy stated imperfectly the ground of bankruptcy, it was amendable so as to state additional grounds occurring subsequently, under the rule authorizing the amendment of pleadings generally, notwithstanding General Bankruptcy Order 6 (89 Fed. v, 32 C. C. A. ix) providing that, where two or more petitions are filed in different districts, the first hearing shall he had in the district in which the debtor has his domicile, and the petition may be amended by inserting an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions, as such order does not apply to the allegation of subsequent acts of bankruptcy, where only one petition has been filed.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 12G-129; Dec. Dig. § 84.*]</p>

Action by Joseph W. Stern and another against Jerome H. Remick & Co. On motion for nonsuit at the close of plaintiffs’ case. This is a motion for a nonsuit, made at the close of the plaintiff's case, in an action brought to recover statutory penalties for the violation of the plaintiff’s copyright.

<p>In Equity. Suit by the Guaranty Trust Company of New York against the Chicago Union Traction Company and others. In the matter of the claim of Emilie Wagner. On report of toaster disallowing the claim.</p>

<p>1. Bankruptcy (§ 126*)—Trustees—Quamficattons.</p> <p>Where a trustee, elected by a majority of the creditors at their first meeting, was evidently interested in the affairs of the bankrupt to such an extent as to cause the referee to believe that the votes cast for him were in the interest of a trustee favorable to the bankrupt, the referee properly disapproved the appointment, in the exercise of his discretionary power conferred by General Bankruptcy Order No. 13 (89 Fed. vii, 32 C. G. A. vii).</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 182; Dec. Dig. § 126.*]</p> <p>2. Bankruptcy (§ 120*)—Trustees—Election—Disapproval—New Choice.</p> <p>Whenever a referee in bankruptcy disapproves the choice of trustee made by creditors, he should permit the creditors to select another properly qualified to act.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. §§ 182, 184', Dec. Dig. § 126.*]</p> <p>3. Bankruptcy (§ 127*)—Trustees—Appointment—Right to Creditors—Appointment by Referee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 44a, 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), provides that creditors, at their first meeting after adjudication, shall appoint one or three trustees, and if the creditors do not appoint a trustee, or trustees, as provided, the court shall do so. Held, that where the first trustee elected by creditors was rejected by the referee for interests, favor able to the bankrupt, and counsel for a majority of the creditors immediately requested permission to make another appointment, it was improper for the referee to refuse such request and to appoint a trustee of his own selection.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 183; Dec. Dig. § 127.*]</p> <p>4. Bankruptcy (§ 125*)—Trustees—Selection—'Votes—Rejection.</p> <p>On the election of a trustee for a bankrupt, the referee may reject votes on the ground that they are in the interest of the bankrupt, and have been cast for a trustee who would presumably assist in carrying out a fraud on the bankrupt’s creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 180; Dec. Dig. § 123.*]</p> <p>5. Bankruptcy (§ 125*)—Selection of Trustee—Soliciting Proxies.</p> <p>Where counsel for the bankrupt solicits proxies of creditors in order to control the election of a trustee, such votes or proxies may be rejected by the referee as being manifestly in the interest of the bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 180; Dec. Dig. § 125.*]</p>

<p>1. Habeas Corpus (§ 23*)—Immigration Laws—Aliens Not Destined fob United States—Deportation.</p> <p>The immigration laws (Act Cong. Feb. 20, 1907, c. 1134, 34 Stat. 898 [U. S. Comp. St. Supp. 1909, p. 447]) apply only to aliens applying for landing within the United States as their destination, so that an alien listed on a ship’s manifest and ticketed for Halifax, on being refused admission to enter Canada, not having disavowed any intention to land there, and not having questioned the jurisdiction of the dominion government in directing his deportation, was not entitled to his release on habeas corpus from the custody of the.officers of the steamship while temporarily in port in the United States pending his deportation to the place from whence he came in accordance with the direction of the Dominion.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Dec. Dig. § 23.*]</p> <p>2. Aliens (§ 57*)—Immigration—Manifest.</p> <p>Where an alien endeavored in Europe to secure passage to New York, and was told that, if he purchased a ticket to Halifax.and wished to continue to New York, he could do so without extra charge, and was thereupon ticketed by the steamship officers and entered on the manifest as destined to Halifax, N. S., when, in fact, his destination was New York, such acts by the officers of the steamship would constitute a violation of Act Cong. Feb. 20, 1907, c. 1134, § 12, 34 Stat. 901 (U. S. Comp. St. Supp. 1909, p. 453), requiring the master of a vessel to deliver to the immigration officers at the port of arrival a list or manifest made at the time and place of embarkation, stating the name, nationality, etc., and the final destination, as well as the seaport for landing in the United.States of each alien destined to land therein.</p> <p>[Ed. Note.-—For other cases, see Aliens, Dec. Dig. § 57.*]</p> <p>8. Habeas Corpus (§ 116*)—Costs.</p> <p>Where a writ of habeas corpus was sued out by an alien retained by the officers of a steamship pending deportation under an order of the Dominion of Canada while the ship was temporarily in New York on her return voyage to the country from which the alien embarked, the cost of the alien’s detention under the writ must be paid by the steamship company before the alien can be redelivered to, it on -dismissal of the writ, though the costs may be recovered by the steamship company from the petitioner.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 118: Dee. Dig. § 116.*]</p>

<p>In the matter of Samuel D. Isaacson, bankrupt. On report of referee.</p>

<p>1. Bankruptcy (§ 68*)—“Trader”—“¡Mercantile Pursuit's.”</p> <p>A restaurateur is not a “trader,” nor, so far as his business of cooking and selling food is concerned, is he engaged in “mercantile pursuits,” within Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), authorizing involuntary proceedings against traders and persons so engaged.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent Dig. § 18; Dee. Dig. § 08.* ' .</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7048-7053; vol. 8, p. 4477.</p> <p>What persons are subject to bankruptcy law, seo note to Mattoon Nat. Bank of JJattoon, Ill., v. First Nat. Bank, 42 G. C. A. 4.J</p> <p>2. Bankruptcy (§ 95*)—Nature op Bankrupt’s Business - Question of Law ■ or Fact.</p> <p>Whore an involuntary bankruptcy petition alleged that the bankrupt's principal business was that of operating a saloon and restaurant, whether it was principally engaged in conducting a saloon, and therefore subject to bankruptcy, or principally engaged in keeping a restaurant for the cooking and selling of food, and therefore not within the bankrupt act (Act July 1, 1893, e. 541, SO'Siat. 544 [IT, S. Comp. St. 1801, p. 3418J), was a question of fact, though the classification of the business under the act was one of law.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 140; Dee. Dig. § 93.*]</p> <p>3. Bankruptcy (§ 89*) — Involuntary Petition-Nature of BUSINESS—DEMURRER.</p> <p>Where an involuntary bankruptcy petition alleged that the bankrupt was engaged principally “in' mercantile pursuits, to wit, the business of conducting a restaurant and caffi,” and the alleged bankrupt had consented to the court's jurisdiction, and the court had appointed a receiver on facts appearing to give jurisdiction, a demurrer to the petition on the ground that the bankrupt .was principally engaged in conducting a restaurant,, and not a saloon, and was therefore not within the act, would be oven-uled, and the demurring creditor permitted to raise such question by answer, and the petitioning creditor to amend his petition to conform to the facts.</p> <p>[Ed. Note.—For1 other cases, see Bankruptcy, Cent. Dig. §§ 120, 121; Dec. Dig. § 89.*]</p>

Joseph McMahon and others and Thomas C. Giddings and others were indicted for conspiracy knowingly to effect and to aid in effecting the entry into the United States of goods, wares, and merchandise at less than the true weight thereof. Application by the United States for an order directing their removal to the Southern district oí New York for trial.

<p>The Charles L. Heinle Specialty Company was indicted for viodating the pure food act (Act June 30, 190(5, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]) in-selling adulterated and misbranded merchandise, and demurs to the indictment.</p>

In Equity. Suits by the Atlantic Coast Line Railroad Company against Dr. John W. Daniels, Mrs. Hattie W. Wilson, 'and Golden Weems. Application for an injunction restraining the prosecution of the suits pending in the state court.

<p>In Bankruptcy. Involuntary bankruptcy proceeding by the Craddock-Terry Company against Mrs. R. Kaufman. On certificate of referee.</p> <p>The following certificate was presented to the court by the' referee in bankruptcy:</p> <p>“I, Guy S. McFarland, the referee in bankruptcy in charge of this proceeding, do hereby certify that in the course of such proceeding, upon the hearing of the application for a receiver filed by petitioning creditors, petitioning creditors endeavored to examine the alleged baukruiit, Mrs. Rachel Kaufman, concerning the issues formed in the application for receiver and the answer thereto filed by Mrs. Kaufman.</p> <p>“Counsel for Mrs. Kaufman objected to such examination upon the theory that, under section 21a. of the bankruptcy act, prior to adjudication an alleged bankrupt, may -not be required'to submit to an examination, citing in support of their contention In re Davidson [D. Cd 19 Am. Bankr. Rep. 833 [158 Fed. 67SJ, and [Skubinsky y. Bodek (C. G. A.)] 22 Am. Bankr. Rep. (589 [172 Fed. 332], To follow these decisions and the rules therein stated would defeat the majority of applications for receivers in involuntary cases, but I have been ’unable to find any authority to the contrary.</p> <p>“I therefore certify the question to your honor in the hope that I will he able, to get a decision from you in time to be of use, if not in this case, in the case of In re Milgrom, in which an application for receiver has been filed and referred to me, with certificate of your- honor’s absence from this division.</p> <p>“No adjudication has yet been had in either of these cases.”</p>

<p>Action by Orrin R. Fairfield, guardian, etc.., against the Great Falls Manufacturing Company. On motion to remand the cause to the state court.</p>

<p>Action by Mrs. Effifi Dewberry against the Southern Railway Company. On demurrer to declaration.</p>

In the matter of the International Milling Company, bankrupt. On report of referee disallowing a' claim of the bankrupt’s landlord for alleged repairs.

<p>1. Bankbtu’tcy (8 18%,* Now, vol. 8, Key No. Series)—Ptesronsru Litigation-Proceedings—Stay.</p> <p>Where defendant in a suit for infringement of a patent was declared a bankrupt after tbe entry of an interlocutory judgment against it and the direction of an accounting before a master, an application for a stay of proceedings before the master on behalf of the bankrupt, would be denied.</p> <p>2. Bankruptcy (§ 150*)—Pending Litigation—Appearance by Receiver and Trustee—Discretion.</p> <p>Where- defendant in a suit for patent infringement was adjudicated’ a bankrupt after the entry of an interlocutory judgment,- whether the bankrupt’s receiver or trustee, when. appointed, should appear or take any action in the patent suit, was within his discretion ; the plaintiff not being entitled to an order directing them to appear therein.</p> <p>[Ed. Note.—Eor other eases,'see Bankruptcy, Dec. Dig. § 156.*]</p> <p>3. Bankruptcy (§ 18%,* New, vol. 8, Key No. Series)—Pending Litigation-Accounting by Receiver.</p> <p>Where defendant in a suit for patent infringement--became a bankrupt after the entry of an .interlocutory judgment, defendant’s receiver in bankruptcy would not be directed to furnish the accounting directed by the decree in -the patent suit. > •</p> <p>4. Bankruptcy (§ 18%,* New,' vol. 8, Key Nó. Series)—Distribution op' Assets—Stay. ■ •</p> <p>Where, after an interlocutory judgment in a suit for patent infringement, the defendant was declared a bankrupt, the receiver and trustee would not be ordered to refrain from distributing any of the assets of the bankrupt until the approval of the master’s report in the patent suit, but .an order-would be entered directing the-receiver or trustee not to declare any dividend without previous notice to the complainant’s attorneys in such suit, who might thereupon apply to the referee for a stay.</p> <p>5. .Bankruptcy (§ 18%,* New, vol. 8,- Key No. Series)—Penbing Litigation-Accounting—Intervention.</p> <p>• Where a defendant in a suit for patent infringement became a bankrupt after judgment pending an accounting, complainant in that proceeding was not entitled to an order restraining all'parties in the bankruptcy proceedings from interfering with the accounting, since, if any one désired to make-’any application in the patent case, they might make it in the case pending in the CSrbuit Court. ■</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The Board of General Appraisers overruled the importers’ protest ag'ainst the assessment of duty by the collector of customs at the port of New York. The Board’s’opinion reads as follows; McCUEUUAND. General Appraiser.

<p>Bankruptcy (§ 318*)'—Breach oe Contract—Damages.</p> <p>Damages cannot be recovered by the seller for the buyer’s alleged breach of an executory contract of sale, resulting solely from the buyer’s involuntary bankruptcy.</p> <p>[Ed. Note.—-For other cases, see Bankruptcy, Dec. Dig. § 318.’s]</p>

<p>In Admiralty. Suits .By Michael McGrath' against the steamboats J.. S. Warden, Orient, and Mt. Desert, respectively.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,734 (T. D. 28,816), affirmed the assessment of duty by the collector of customs at the port of New York on importations of shelled almonds. These almonds contained from 2 to 5 per cent, of impurities. The importer contended that assessment should have been made under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 272, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), instead of paragraph 269, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1651). The pertinent portions of these two paragraphs are as follows:</p> <p>272. Nuts of all kinds, shelled or unshelled, not specially provided for in this act. one cent per pound.</p> <p>200. * * * Clear almonds, shelled, six cents per pound.</p>

<p>■’ On Application for Review of a Decision by the Board of JJnited States General- Appraisers. ■ *</p> <p>The decision below reads as follows:</p> <p>WAITE, General Appraiser. The commodity here in question was invóiced as yams. They were imported from China and were assessed as vegetables in their natural state at 25 per cent.- ad valorem under Tariff 'Act July 24, 1897, c. 11, | 1, Sehedulé G, par. 257, 80 S.tat. 151 (U. S. Comp. St. 1901, p. 1050), while the importers clái'm- them to be free of duty under paragrapli 704 providing for “yams.” . -</p> <p>The sample presented to the Board appears on inspection to be a rhizome of a tuberous root. The testimony on the part of the importer is that it is used as food among the- Chinese, -arid its use in this country is confined to that race of people. It is usually bought and sold by means of a. Chinese character which, we are informed, stands for a root from which starch is, made or which contains starch'. It is also described as a'yain,. which seems to be the inter-' pretation that' the Chinese, in some instances, put upon that character. We ¿o not think.enough, has been shown to, warrant us in holding that it is commercially termed “yam” in this country. It remains, then, to be seen whether it is a yam. We.think it is established beyond question that the-true yam is „of. the genus “Dioscorea,” while the commodity in question is properly classified under “Pueraria,” which is not a yam at all. We conclude that this root-is neither yam by commercial designation nor’yam under the ordinary-meaning of thát term; hence was not provided for in the statute. • ■ -</p> <p>The protests are therefore overruled.</p>

<p>1. 'Homestead (§ 51*)—Exemption—Statutes.</p> <p>Civ. Code 6a. 1893, § 2830, requiring a person applying for exemption to make a full and fair disclosure of all personal property, etc., applies to the constitutional or $1,600 homestead, but not to the statutory homestead. ' ' /</p> <p>[E(l. Note.—For other cases, see Homestead, Dee. Dig. § 51.*]</p> <p>2. Bankruptcy (§ 400*)—Homestead Exemption. •</p> <p>Whether' a bankrupt is entitled to a statutory homestead exemption, and whether the application therefor has been made in time, is for the original determination of the referee, subject to review by the court, if desired by the bankrupt or creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 400.*]</p>

<p>Courts (§ 99*)—Concurrent Jurisdiction.</p> <p>Where a demurrer to a complaint is sustained on the merits, the ruling is conclusive on a subsequent demurrer filed to the complaint with immaterial amendments, heard before another judge of the same court of concurrent jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 99."]</p>

Action by Jean D. McKell, as administratrix of the estate of Thomas G. McKell, deceased, against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania. ''</p> <p>Jacob Wesoky and Eouis Wesoky were convicted of a. criminal offense, and bring error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>Action by Mercer & Ferdon Lumber Co'mpany against the BeldingHall Manufacturing Company and others. Judgment for plaintiff, and defendants bring error.</p> <p>This is a writ of error from a judgment in an action of replevin for the recovery of some 800,000 feet of hemlock lumber piled in the yards of the Belding-Hall Company at Ely, Mich. The plaintiff in the action was the Mercer & Ferdon Dumber Company, and the defendants were the Belding-Hall Manufacturing Company. The action was begun in a state court on September 4, 1907, and upon the same day the lumber was seized under a writ of replevin, and, after appraisement, delivered into the possession of the plaintiffs below, the defendants in error here.</p> <p>This suit was removed by the defendants therein, upon diversity of citizenship, into the court below. On September 5, 1907, certain creditors of the Belding-Hall Company instituted involuntary proceedings in bankruptcy against that company, which resulted in an adjudication and the appointment of a trustee. Under the direction of the bankrupt court, the entire assets of the bankrupt, of every character, were sold en masse to a corporation styled the Assets Realization Company, and the trustee was directed to make conveyance to any person designated by that company. In pursuance of this authority, the trustee conveyed to John W. McKinnon, on January 16, 1908, every interest which the bankrupt had on September 5, 1907, and every right or interest that the trustee had to all such lumber as had been taken under the writ mentioned, and every right and interest which he had under the replevin bond which had been executed. Thereupon the said purchaser, John W. McKinnon, intervened- in this suit, and was allowed to become a party and to defend under his claim of title by virtue of this sale by the trustee of the bankrupt.</p> <p>There was a jury and verdict for the plaintiff below and judgment accordingly. From that judgment this writ has been sued out.</p>

Action by Aaron K. ITighbarger against the Leonard Martin Construction Company. Judgment for plaintiff, and defendant brings error. This was a suit at law for personal injuries suffered by plaintiff below from the falling of a portion of the side of a trench, in which he was doing certain carpenter work during the construction of a roundhouse in Newark, Ohio.

In Equity. Suit by the Standard Paint Company against William 13. Bird, Charles T. Carrutli, and Reginald W. Bird, partners as J. A. & W. Bird & Co. On final hearing.

<p>In Equity. Suits bj' William P. Coldren against the Empire Rubber Manufacturing Company. On final hearing.</p>

In Equity. Suits by Frank S. Larabee, by the Assaria Stale Bank, of Assaria, Kan., and others, and by the Abilene National Bank, of Abilene, Kan., and others, respectively, against J. N. Dolley, as Bank Commissioner of the State of Kansas, and others. On demurrers to bills and motions for preliminary injunctions. Demurrer sustained in case of Assaria State Bank.

In the matter of Clinton D. MacDougall, bankrupt. On proceedings to review a referee’s order directing- the trustee to pay over to William D. ¡MacDougall and others $7,575.90 from the proceeds of a farm owned by the bankrupt at the date of his adjudication, with interest at 3 per cent, per annum.

In the matter of Howard E. Harper, bankrupt. On review of order of referee denying the motion of Peninsular Paint & Varnish Company to quash and overrule the objections filed to its claim by East Side Club and other creditors, and to quash, dismiss, and disallow the petition of the trustee in bankruptcy appointed herein, praying that said claim of said paint and varnish company be disallowed and expunged.

In Equity. Bill by Caldwell & Drake again.st llenry Schmulbach to enforce a mechanic’s lien. This bill is filed (o enforce a mechanic's lien.

<p>1. Aliens (fj 71%*)—Naturalization—Suit to Cancel Certificate.</p> <p>Naturalization Act June 29, 1900, c. 3592, § 15, 34 Stat. G01 (U. S. Comp. St. Snpp. 1009, p. 485), which authorizes a suit by the United States to cancel any certificate of naturalization on the ground of fraud or that it was illegally procured, is constitutional, and under it the United States may maintain a suit in a federal court to cancel a certificate issued by a state court under either that or a former statute on the ground of fraud, in that the allegation and evidence that the applicant had resided in the United States for five years was untrue.</p> <p>[Ed. Note.—For other cases, see Aliens, Dec. Dig. § 71%.*]</p> <p>2. Aliens (§ 71%*)—Naturalization—Suit to Cancel Certificate—Defenses.</p> <p>The defense of laches cannot be pleaded against the United States in . a suit to cancel a naturalization certificate.</p> <p>[Ed. Note.—For other cases, see Aliens, Dec. Dig. § 71%.*]</p>

<p>In Equity. Suit by the Independent Baking Powder Company against Richard P. Boorman. On final hearing.</p>

<p>Action by the Shawnee National Bank against the Missouri, Kansas & Texas Railway Company. On motion to remand.</p>

<p>Action by the United States against William F. Kettenbach and others. On exceptions to the bill for impertinency.</p>

<p>1. Receivers (§ 154*)—Counsel—Compensation.</p> <p>An order appointing a receiver and authorizing him to employ and discharge in bis discretion, and to fix the remuneration of such officers, attorneys, counsel, agents, and servants as be should think proper, related only to the employment of attorneys to perform some temporary service, and did not include compensation to the receiver’s permanent counsel for services rendered throughout the receivership, which amount was subject to the determination of the court, in accordance with the usual practice.</p> <p>[Ed. Note.—-For other cases, see Receivers, Dec. Dig. :§ 154.*]</p> <p>2. Receivers (§ 154*)—Counsel—Compensation—Place oe Employment.</p> <p>Where a receiver for a Vermont electric railroad employed a Boston attorney as his general counsel, and a part of the services were performed by the counsel at Boston and part in Vermont, his compensation should be fixed at the usual rate paid to Boston lawyers for the services rendered in Boston, while the ordinary value of services rendered in Vermont should be taken into consideration in passing on the question of his compensation for services rendered there.</p> <p>[Ed. Note.—For other eases, see Receivers, Dec. Dig. § 154.*]</p> <p>3. Receivers (§ 154*)—Settlement op Estate—Time—Claims—Interest.</p> <p>Where a receivership of a street railroad should have been completed within a year, but was not completecL for nearly seven years, the receiver's general counsel was not entitled to interest on the compensation allowed him for more than a year.</p> <p>[Ed. Note.—For other cases, see Receivers, Dee. Dig. § 154.*]</p> <p>4. Husband and Wipe (§ 131*)—Wife’s Separate Estate—Note—Possession —Ownership—Presumption.</p> <p>Where a railroad company executed notes payable to i:s own order, and indorsed the same, and the notes were filed as a claim against the railroad company in insolvency proceedings by a wife, acting through an attorney who appeared also for her husband, who made no claim that he was the owner of the notes, the wife’s possession was sufficient to raise a presumption that she was the legal owner, and entitled to enforce the claim for her own benefit.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 483; Dec. Dig. § 131.*]</p> <p>5. Corporations (§474*)—Bonds—Assignment—Ultra Vires.</p> <p>Corporate bonds of the value of $120,000, part of an authorized issue of $250,000, were issued as collateral for notes of the corporation amounting to $59,009. Thereafter the executive committee of the corporation, as authorized by its by-laws, assigned to the holders of the notes the equity in the bonds. Held, that such assignment was not ultra vires.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 474.*]</p> <p>6. Corporations (§ 474*)—Assignments—Requisites—Necessity oe Record.</p> <p>An assignment of a corporation’s equity of redemption in certain bonds secured by a mortgage on its property, being a mere chose in action, and not an assignment of a mortgage, or a lien on land, was vaiid without record or filing.</p> <p>[Ed. Note.—For other eases, see Corporations, Doc. Dig. § 474.*]</p> <p>7. Receivers (§ 128*) — Notes —Payment—Receiver’s Certificates—Collateral Security.</p> <p>A corporation, having $59,000 in notes outstanding, deposited bonds to the extent of $120,000 as collateral for the notes, and later assigned to the holders the corporation’s equity, of redemption in bonds. After tbe appointment of a receiver, he was authorized to issue receiver’s certificates to take up the notes for $59,000 and the accompanying bonds, which was done. Held, that the transfer of receiver’s certificates for the $59,000 of notes was merely a substitution of securities, and that a second lien on the bonds could not become a first lien until the receiver’s certificates were paid in full.</p> <p>[Ed. Note.—For other cases, see Receivers, Dec. Dig. § 128.*]</p> <p>8. Receivers (§ 151*)—Claims—Death of Claimant.</p> <p>Where a claimant against a corporation in the hands of a receiver died before hearing on the claim before the master, and no executor or administrator was appointed, it could not be allowed.</p> <p>[Ed. Note.—For other cases, see Receivers, Dec. Dig. § 151.*]</p> <p>9. Carriers (§ 13*)—Rebates—Intrastate Shipment.</p> <p>A contract between the receiver of a railroad company and a shipper for payment of a rebate on an intrastate shipment is not illegal.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 13.*]</p> <p>10. Receivers (§ 125*) — Receiver’s Certificates — Substitution of Securxties.</p> <p>Claimant bank held a note of defendant railroad company, part of a series secured by part of an issue of outstanding bonds. After the appointment of a receiver for defendant, the court authorized the receiver to issue certificates for the notes to take up the bonds, whereupon the receiver issued to the bank a certificate for the amount due, secured by his personal note for the same amount, and later substituted his note as receiver for his personal note. Held, that the transaction was a mere substitution of receiver’s obligations under order of the court for the outstanding bonds, and that the bank had a valid claim for the amount of the certificate.</p> <p>[Ed. Note.—For other cases, see Receivers, Dec. Dig. § 125.*]</p> <p>11. Appeal and Error (§ 1078*)—Review—Master’s Report—Failure to Discuss Objections.</p> <p>Objections to a master’s report, not discussed in the brief of the objecting creditors, will be presumed waived.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]</p> <p>12. Equity (§ 40G*)—Reference to Master—Report—Delay.</p> <p>A delay of more than six years after an order of reference to a master in proceedings for.the settlement of the affairs of a railroad company in insolvency, before the filing o-f the master’s report, was improper.</p> <p>[Ed. Note.—For other cases, see Equity, Dec. Dig. § 40G.*]</p>

<p>1. New Trial (§ 76*)—Grounds—Excessive Damages.</p> <p>While the amount of damages in an action for death is primarily for the jury, its judgment is neither infallible nor conclusive on motion for new trial on the question as to whether the verdict awarded is excessive.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76.*]</p> <p>2. Death (§ 85*)—Damages—Elements—Loss of Society.</p> <p>While loss of decedent’s society, protection, and guidance is an element of damage in an action for wrongful death, it is only the pecuniary, and not the sentimental, value thereof for which recovery may be had.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 111; Dec. Dig. $ 85.*]</p> <p>3. Death (§ 64*)—Evidence—Damages.</p> <p>Where, in an action for death of a passenger by the alleged premature starting of an electric car, there was a very strong showing by defendant, not only to negative negligence on its part, but to show negligence by decedent directly contributing to his death, so that the case was a close one as to whether plaintiff could recover at all, such evidence was in the case for all purposes and could be legitimately considered in determining whether the verdict for plaintiff was so excessive as to indicate that the jury had been moved by passion or prejudice.</p> <p>' [Ed. Note.-—For other cases, see Death, Cent. Dig. § 83; Dec. Dig. § 64.*]</p> <p>4. Death (§ 99*)—Damages—Kxoessivenioss.</p> <p>Decedent, a stone mason by trade. 47 years old and in good health, with, ability to earn wages at from $6 to $6.50 per day, was killed while attempting to alight from defendant’s moving electric car. He was a kind, affectionate father, and devoted most of his earnings to the support of his family. There was no evidence as to his habits of industry or sobriety, except that on the day he was killed there was evidence that he had spent the afternoon with a companion in a saloon playing cards and pool, and that, after they boarded the train, they were seen by fellow passengers drinking from a bottle. Held, that a verdict for $10,000 was excessive, and should be reduced to $6,000.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p>

<p>1. Courts (§ 317*)—Jurisdiction of Federal Court—Alignment of Parties— Suit by Stockholder.</p> <p>To a suit in equity instituted by a stockholder in his own name, but upon a right of action in the corporation, such corporation is an indispensable party, and for the purpose of determining the jurisdiction of a federal court will l)o aligned with Uie defendants, where the oilicers or persons controlling it are shown to he opposed to the object sought by the suit.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 317.*]</p> <p>2. Corporations (§ 202*)—Suit by Stockholder—Right oe Action.</p> <p>A stockholder cannot maintain a suit in equity in his own right, based on acts of the defendants alleged to have caused injury to him by injuring tlie property or business of the corporation, thereby depreciating the value of his stock; the right of action in such case being in the corporation.</p> <p>TEd. Noio.—For other cases, see Corporations, Cent. Dig. § 777; Dec. Dig. § 202.*]</p>

<p>1. Taxation (§ 584*)—Proceedings for Coleection of Taxes—Equity Jurisdiction.</p> <p>In the absence of statutory authority therefor, a suit in equity cannot be maintained for the collection of taxes assessed upon property.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1185-1191; Dec. Dig. § 584.*]</p> <p>2. Taxation (§ 590*) — Proceedings fob Coleection of Taxes — Statutory Provisions.</p> <p>Ky. St. § 4104 (Russell’s St. § G105), which provides that taxes due from any railroad or bridge company may be recovered by action in the name of the commonwealth, brought by the proper officer of the state or local taxing district to which the tax is due, provides a special remedy which must be followed, and a suit for the collection of a tax due from a railroad cannot be maintained by a private individual.</p> <p>[Ed. Note.—Por other cases, see Taxation, Cent. Dig. § 1203; Dec. Dig. § 590.*]</p>

<p>1. Removal of Causes (§ 4.9*)—Separable Controversy—Joint Cause of Action.</p> <p>Where the right to remove a cause from a state court depends upon whether the declaration states a joint cause of action against the defendants, that question should be determined by the law of the state.</p> <p>[Ed. Note.-—For other eases, see Removal of Causes, Cent. Dig. §§ 95-97; Dec. Dig. § 49.*]</p> <p>2. Removal of Causes (§ 49*)—Separable Controversy—Joint Cause of Action.</p> <p>Under the rule of decision in Georgia that, while an agent is not liable to third persons for mere nonfeasance, he is so liable for misfeasance, and that misfeasance may involve to some extent the idea of not doing that which he has undertaken to do for his principal, whether or not a declaration In an action by an employs against railroad companies to recover for an injury resulting from the defective condition of a car, which also joins as defendants the ear inspectors of the companies on an allegation that, it was their duty to inspect all cars, but that they failed to inspect such car, states a joint cause of action against the companies and such inspectors, which would prevent a removal of the cause by the companies, is a question of such doubt that the federal court should not take jurisdiction on removal.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 97; Dec. Dig. § 40.*</p> <p>Removal of causes, separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mec-ke v. Valleytown Mineral Co., 35 O. O. A. 155.]</p>

In the matter of Nicholas T. Terens, bankrupt. On review of order of referee. Held: in substance, that there was no partnership fund, but that by virtue of the assignment of December 15th the assets in the hands of the trustee became the individual assets of the bankrupts and that all creditors should go against the fund pari passu.

In the matter of the New England Breeders’ Club, bankrupt. On motion to dissolve injunction, and motion by trustee to adjudicate lien.

<p>At Law. Action by William Smith against the Detroit & Toledo Shore Line Railroad Company. On motion to remand and on demurrer.</p>

<p>Action by the Tillamook Lumbering Company and another against the Liverpool & London & Globe Insurance Company.</p>

<p>Petition by William ■ Crichten McNabb for naturalization.</p>

<p>Action by Arthur C. Emmons against the United! States. A demurrer to defendant’s answer was overruled, and plaintiff applies for a rehearing.</p>

<p>In Equity. Suit by J. H. Ewing and others against the Seaboard Air Line Railway. On demurrer to cross-bill.</p>

<p>1 In Equity. Suit by George P. Hudson against the New York Sl Albany Transportation Company; the Empire Trust Company, trustee, intervening. On exceptions to report of special master.</p>

<p>At Law. Action by William G. Essen and wife against the City of Philadelphia. On motion to take off nonsuit.</p>

<p>In Admiralty. Suit by the McCaldin Bros. Company and another against the barge Rockland & Rockport Rime Co. No. 1.</p>

In Admiralty. Petition by John II. Starin (and by substitution by-Howard Carroll, Harriet M. Spraker, and Walter J. Peck, executors of the last will of John Ii. Starin, deceased), as sole owner of the steamer John H. Starin, for limitation of liability. On motion by claimants for leave to strike out an affirmative defense pleaded in their answers.

<p>Pleading (§ 258*)—Leave to File Amended Pleading.</p> <p>Leave to file an amended answer after the taking of testimony granted on conditions.</p> <p>[Ed. Note.—For other cases, see I’leading, Cent. Dig. §§ 765-782; Dec. Dig. § 258.*]</p>

Suit in admiralty by the Northern Steamship Company, limited, against the Barn Fine Steamship Company. Decree for respondent, and libelant appeals. This'cause comes here upon appeal from a decree of the district Court, Southern District of New York, dismissing a libel brought by the owner of the steamship Saltwell to recover a balance of charier hire.

Petition to Review Order o f the District Court of the United States for the Southern District of New York. In the matter of Charles Pischer and others, bankrupts. Petition by Anselm Erankentlialer to revise an order of the District Court. This cause comes here upon petition to revise an order denying a motion to resettle an order of the District Court, Southern District of New York, which confirmed a report of the special master and account of receiver.

District of Ohio. Action by William A. Huntington against the Toledo, St. Louis & Western Railroad Company. Judgment for defendant, and plaintiff brings error. This suit was brought by William A. Huntington, a citizen and resident of Lucas county, Ohio, against the Toledo, St. Louis & Western Railroad Company, a corporation of Indiana, owning and operating a railroad from Toledo to St. Louis.

<p>1. Sales (§ 273*)—'Warranties—Implied Warranty or Fitness.</p> <p>Where a definite article is specifically ordered from the manufacturer and furnished, although it is known by both parties that it is required for a particular purpose, there is no implied warranty that it shall be suitable for such purpose.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 772-776; Dec. Dig. § 273.*</p> <p>Contracts for sale of things to be produced or manufactured, see note to Star Brewery Co. v. Horst, 58 O. C. A. 363.1</p> <p>2. Evidence (§ 441*)—Parol Evidence to Change Written Contract—Sale and Warranty.</p> <p>Where a written contract for the sale of manufactured articles is complete and unambiguous, a warranty not contained therein cannot be added by parol.</p> <p>[Ed. Note.—For other cases, sec Evidence, Cent Dig. §§ 1790, 2035; Dec. Dig. § 441 ;* Sales, Cent. Dig. § 721.]</p> <p>3. Appeal and ESror (§ 226*)—Issues Not Presented to Lower Court.</p> <p>A judgment respecting costs will not be reviewed unless the attention of the trial court was called to the grounds of objection thereto, and proper exception was reserved.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 1324; Dec. Dig. § 226.*]</p> <p>4. Attachment (§ 339*)—Effect of Defective Bond—Kentucky Statute.</p> <p>Under Ky. Civ. Code Prac. § 198, which as construed by the state courts requires a plaintiff in attachment to give a bond in double the amount of his claim, and section 682, providing that, if the bond be judged defective, a new and sufficient one may be given within a reasonable time to be fixed by the, court, the failure of a plaintiff to give a bond in twice the amount of his claim does not render the attachment void, but voidable only, and a motion to discharge it is properly overruled.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 354, 355; Dec. Dig. § 139.*]</p> <p>5. Bankruptcy (§ 156*)—Pending Action by Bankrupt—Attachment—Continuance by Surety.</p> <p>On the bankruptcy of the plaintiff in an attachment suit and the refusal of the trustee to continue the suit, a surety on the attachment bond may be allowed to continue it in the bankrupt’s name for his own protection.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 156.*]</p>

Suit in admiralty by Sebald M. Hohl against the Norddeutscher Lloyd. Decree for libelant, and respondent appeals.

Appeals from the District Court of the United States for the District of Maine. Suits in admiralty by Alexander Ross, in behalf of himself and as agent of the owners of the schooner Helen W. Martin, against a cargo of 3,408 tons of Pocahontas coal, and by John G. Crowley, for himself and as agent for the owners of the schooner Van Allen’s Bough ton, against a cargo of 3,639 tons of Pocahontas coal; Samuel D. Warren & Co., claimants.

Suit in equity by Frank T. Howard, receiver, against the Sewerage and Water Board of New Orleans. Defendant appeals from an order granting a preliminary injunction.

<p>Corporations (§ 271*)—Action to Enforce Liability op Stockholder—Questions por Jury.</p> <p>In an action to charge defendant as a stockholder in an insolvent corporation, where the president and cashier of the bank in which defendant was a clerk testified that the bank owned the stock and caused it to be transferred to the name of defendant without consulting him, he himself testified that so far as he remembered he never knew of the transfer, and all testified that he did not purchase or have any interest in the stock, or have the certificates in his possession, or receive any dividends thereon, the mere fact that on two occasions he signed blank proxies to vote at annual meetings was not sufficient to justify the court in withdrawing from the jury the question as to defendant’s ownership, and directing a verdict for plaintiff.</p> <p>[Ed. Note.—Eor other cases, see Corporations, Cent. Dig. § 1160; Dee. Dig. § 271.*]</p>

Suit in equity by Benjamin Welles against the Chicago & Northwestern- Railway Company. Decree for defendant, and complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Iowa.</p> <p>Suit in equity by August Post, trustee in bankruptcy of Henry Heartfield, against W. F. Berry. Decree for defendant, and complainant appeals.</p>

Yee Yet and Yee Kee Guey were adjudged unlawfully in the United States under the Chinese exclusion laws, and ordered deported, and they appeal. This cause comes here upon an appeal from a judgment of the District Court, Western District of New York, adjudging that the appellants were Chinese persons unlawfully within the United States, and ordering them to be deported.

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas.</p> <p>Eng Choy, a Chinese person, was ordered deported, and appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Suit in equity by the Home" Insurance Company against W. H. Jones and others. Decree for defendants, and complainant appeals.</p>

<p>Patents (§ 328*)—Invention—I-Iopper-Bottom Cabs.</p> <p>The Schoen patent, No. 647,907, for a hopper-bottom car, Is merely for an adaptation of the old double hopper-bottom to the changed construction due to the use of pressed steel as the car material, without changing the function of the parts or producing any new result, and is void for lack of invention.</p>

Suit in equity by Harry V. Snead, Harry V. Snead, administrator of the estate of Harriet V. Snead, deceased, and George A. Boughton against Eugene V. Scheble, the Michigan Steel Box Company, William B. Eonda, Charles H. Ostrander, administrator of the estate of Jacob W. Cornwell, deceased, and Clara Cornwell. Erom a decree dismissing the bill, complainants appeal.

<p>1. Patents (§ 318*)—Suit for Infringement—Measure of Profits.</p> <p>The profits realized by a defendant from the use of an infringing bag filling machine were properly computed on the basis of the saving as compared with the cost of filling by hand, where there was no prior machine which would 'do the work.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*</p> <p>Accounting for profits by infringer of patent, see note to Brickill v. Mayor, etc., of City of New Fork, 50 C. C. A. 8.]</p> <p>2. Appeal and Error (§ 1022*)—Review—Findings of Master.</p> <p>In the absence of manifest error, an appellate court will not disturb the findings of a master, mdde on conflicting testimony, which have been examined and adopted by the Circuit Court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. § 1022.*]</p> <p>3. Patents (§ 319*)—Infringement—Recovery of Damages.</p> <p>Where the defenses of invalidity of the patent and noninfringement in a suit for infringement of a patent presented debatable questions, and it does not appear that defendant was actuated by malice or bad faith, there is no reason for permitting the recovery of damages instead of profits for infringement, and especially for increasing the damages under the statute.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 577-586; Dee. Dig. § 319.*]</p> <p>4. Patents (§ 312*)—Infringement—Recovery of Damages.</p> <p>Evidence held insufficient to establish a uniform license fee for the use of a patented machine, which would warrant a recovery of damages from an infringing user.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 312.*]</p>

On Application for Review of Decisions by the Board of United States General Appraisers. One of the decisions below is reported as G. A. 6,505 (T. D. 27,793). The Board of Appraisers sustained the importers’ protests against the assessment of duty by the collector of customs at the port of New York.

<p>At Law. Action by Annie Dickson and others against Minnie Wild- ■ man and others. On motion by defendants for peremptory instructions.</p>

<p>1. Process (§ 163*)—Amendment op Writ—Defects Amendable.</p> <p>Where a writ of summons, dated July 16, 1908, and returnable “on the first Tuesday of October next,” for want of opportunity was not served on the defendant' until May 10, 1909, and through oversight the return day was not changed, the plaintiff is entitled, under the liberal amendment statutes of New Hampshire, to amend tlie same by inserting the appropriate return day following the date of service.</p> <p>[Ed. Note.—For other cases, see Process, Cent. Dig. §§ 221-238; Dec. Dig. § 163.*]</p> <p>2. Removal op Causes (§ 118*)—Proceedings After Removal—Amendment</p> <p>op Process or Pleadings.</p> <p>A federal court, into which a cause has been removed, has power to permit suc-li amendments of process or pleadings as justice requires and as are permissible under the state statutes, provided they do not offend the federal statutes or decisions on the subject.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 250; Dec. Dig. § 118.*]</p>

<p>In the matter of the Priegle Paint Company, bankrupt. On petition .to review order of referee denying petitions of Richmond Bros, and the Blackburn Varnish Company, respectively, to reclaim property.</p>

<p>Customs Duties (§ 38*)—“Furs, Undressed”—Clippings—Waste.</p> <p>Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 561, 30 Stat. 198 (Ü. S. Comp. St. 1901, p. 1683), providing for “furs, undressed,” includes undressed clippings and detached portions of fur, used for the same purpose as the skin from which derived; and such material is therefore removed from the provision for “waste, not specially provided for,” in section 1, Schedule N, par. 463, 30 Stat. 194 (U. S. Comp. St. 1901, p. 1679).</p> <p>[Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 38.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3009.)</p>

<p>In Admiralty. .Suit by Jennie Williams, administratrix, against the General Foy. On exceptions to libel.</p>

In Admiralty. Suit by the Western Transportation & Towing Company, as owner of the steamer Annie Comings, against the French bark Europe. The Annie Comings, while proceeding down the Willamette river on the evening of December 30, 1907, collided with the French bark Europe, anchored in the stream, which resulted in the sinking of the Comings xmd damage to tho Europe.

<p>1. Bankruptcy (§ 60*)—Act of Bankruptcy—Insolvency—Application for Receiver.</p> <p>Where a corporation, through its president, applied to the state court for a receiver, and the application recited that the company’s financial condition, owing to gross mismanagement of its officers, was such that it could not hope to continue business ; that its credit was seriously impaired, if not wholly destroyed; that it was impossible to raise necessary capital to meet its matured and maturing obligations; that some of its notes, accounts, and other obligations were past due, and it was being threatened with suit, which must result in levies on and depletion of assets, from which its directors had concluded that it was essential to the preservation of the assets and to the safety and security of its creditors and stockholders that the company should surrender its franchises and dissolve the corporation, for which purpose it applied for a receiver, though its assets exceeded its liabilities exclusive of capital stock—it was insolvent, within Bankr. Act July 1, 1898, c. 541, § 1(15), 30 Stat. 544 (U. S. Comp. St. 1901, p. 3419), declaring that a person shall be deemed insolvent within the act whenever his aggregate property, exclusive of property conveyed, etc., shall not be sufficient in amount to pay his debts, and hence such application, followed by the appointment of a receiver, was an act of bankruptcy.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Dec. Dig. § 60.*]</p> <p>2. Corporations (§ 609*)—Dissolution—Equity Jurisdiction.</p> <p>A state court of equity in Georgia has no jurisdiction to dissolve a corporation, and therefore cannot appoint a receiver and sequester its property, decree a sale of all its property and franchises, and a distribution of the fund arising from such sale among its creditors and stockholders.</p> <p>[Ed. Note.—Eor other cases, see Corporations, Cent. Dig. § 2421; Dec. Dig. § 609.*]</p> <p>3. Bankruptcy (§ 20*)—Act of Bankruptcy—State Court—Jurisdiction.</p> <p>Where a corporation applied to a state court for a receiver under a petition showing its insolvency, and that it could not longer continue in business, the state court’s jurisdiction to appoint a receiver and administer the corporation’s assets, invoked within four months prior to the filing of a petition in bankruptcy, if such jurisdiction existed at all, could not deprive the corporation’s creditors of the right to have the corporation’s assets administered under the bankruptcy law. „</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Dec. Dig. § 20.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p>

<p>1. Bankruptcy (§ 184*)—Claims—Liens—'What Law Governs.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 67a. 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), declaring that claims which, for. want of record or other reasons, would not have been valid liens as against claims of creditors, shall not be liens against the bankrupt’s estate, whether a lien is valid and enforceable in bankruptcy depends on the law of the state</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 184.*]</p> <p>2. Bankruptcy (§ 184*)—Chattel Mortgages—Agreement to Withhold from Record—Fraud—Rights of Creditors.</p> <p>Under the Nebraska law, a chattel mortgage withheld from record under an agreement with the bankrupt to preserve his credit is fraudulent and void only as to such creditors as have been misled by the keeping of the mortgage from record, and who in the meantime have extended credit to the bankrupt on the faith of his ownership of the property mortgaged.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 184.*]</p> <p>3. Bankruptcy (§ 184*)—Liens—Chattel Mortgages—Sales—Fraud—“Creditors.”</p> <p>Where chattel mortgages were kept off the record until just before one of the mortgagees took possession, claimants, who had not secured a lien on the property before the mortgagee took possession, were not “creditors,” entitled to have the mortgage set aside as fraudulent, because the mortgagor, after executing the mortgage, was permitted to retain possession and make sales from the mortgaged stock in the ordinary course of business without accounting to the mortgagees, who were aware of the sales, for the proceeds.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 184.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713 -1727; vol. 8, pp. 7622, 7623.]</p> <p>4. Bankruptcy (§ 185*)—Chattel Mortgages—Vacation by Trustee.</p> <p>Where a chattel mortgage on a bankrupt’s personalty was not fraudulent as to the bankrupt, and there were no creditors in a position to set the same aside, the bankrupt’s trustee could not attack the right of the mortgagee in possession at the time of the adjudication on the ground that the mortgage was fraudulent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dee. Dig. § 185.*]</p> <p>5. Bankruptcy (§ 184*)—Mortgages—Preference.</p> <p>Since, under the Nebraska law, a chattel mortgage is not required to be recorded as against creditors having no lien prior to the taking possession of the mortgaged property by the mortgagee, even though there is an agreement that the mortgagor may remain in possession and continue to sell in the usual course of business, a chattel mortgage so withheld from record, having been executed for a present consideration more than four months before bankruptcy, did not create a preference as against general creditors who were not entitled to set It aside for fraud.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Doe. Dig. § 184.*]</p> <p>6. Bankruptcy (§ 303*) — Chattel Mortgages — Subsequently Acquired Property—Burden of Proof.</p> <p>Where a bankrupt’s trustee claimed that a chattel mortgagee was not entitled to property of the bankrupt acquired subsequent to the execution of the mortgage, the burden was on the trustee to show what property, if any, of that seized and sold by the mortgagee, was acquired after the execution of the mortgage.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Dec. Dig. § 303.*]</p>

<p>1. Insurance (§ 72*)—Mutual Associations—Insolvency and Dissolution-Distribution oe Funds.</p> <p>A provision of a trust agreement, under which a mutual life association deposited a reserve fund, that in case of its dissolution the fund should be distributed among its members in proportion to tbe gross amount of assessments paid by them, respectively, cannot be enforced as against creditors, where the association is wound up in a state of insolvency.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § '72.*]</p> <p>2. Insurance (§ 72*)—Mutual Associations—Insolvency—Administration op Assets.</p> <p>Where the assets of an insolvent life insurance association are administei-ed in a suit by creditors, the date at which claims should be ascertained is that of the appointment of receivers and when it ceases to do business.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>3. Insurance (§ 72*)—Mutual Associations—Insolvency—Administration op Assets.</p> <p>A mutual benefit life association conducted business for a number of years on tbe assessment plan, creating a reserve fund, after which it reorganized as a level premium company, and thus for some years before its insolvency bad two classes of policy holders. Held, that both classes remained members, and claimants for deaths occurring before tbe appointment of receivers in a suit to wind up its affairs became creditors; that, as between tbe two classes, claimants under assessment policies were alone entitled to payment from the reserve fund contributed by their class and kept separate, while death claimants under policies of the second class, the net reserve paid by whom could not be traced, with the balance remaining unpaid on claims of the first class, should be paid from the general assets, before claims of living members and pro rata with general creditors.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. g 98; Dec. Dig. § 72.*]</p> <p>4. Insurance (§ 72*)—Insolvency op Company—Distribution op Assets— Debts Due to State.</p> <p>In winding up the affairs of an insolvent insurance company in a court of equity in New York, debts due the state for taxes, or otherwise, which are not given a preference by state law, or have not become a lien before the appointment of receivers, are not entitled to priority of payment over claims of general creditors.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. g 98; Dec. Dig. § 72.*]</p>

In Equity. Suits by James C. Robinson and by Reuben O. Scovill. respectively, against the Mutual Reserve Life Insurance Company, with ancillary bill by the receivers of said company against George D. Eldridge, George Burnham, Richard Deeves, Horace H. Brockway, Edward M. L. Ehlers, and Charles E. Mabie. On demurrers.

<p>Aliens (§ 32*)—Deportation of Chinese—Sufficiency of Evidence.</p> <p>A person oí Ghinese descent, claiming to have been horn in the United States and to have never been out of this country, where he and other unimpeached witnesses testify to such fact without contradiction, and his good character and truthfulness are testified to by white persons of standing who have known him for years, cannot he ordered deported solely on testimony tending to show that he made false statements to an inspector, which is denied.</p> <p>[Ed. Note.—For other cases, see Aliens,' Dec. Dig. § 32.*</p> <p>Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 'O. C. A. 212; Dee Sing Far v. United States, 35 C. C. A. 332.]</p>

<p>In Bankruptcy. In the matter of Joseph Burns, bankrupt. Petition by Sam Mayer for review of findings of the referee.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the V. D. E. Company. Petition of W. F. Winecoff to review the decision of the Honorable P. H., Adams, Referee, declaring a lease to constitute an asset of the bankrupt’s estate.</p>

<p>Admiralty (§ 28*) — Contracts Not for Benefit of Vessel — Contract by Master for Sale of Merchandise.</p> <p>A suit in rem will not lio against a vessel fox* breacb of a contract made by the master for the sale and delivery of merchandise, which was not for the benefit of the vessel nor in aid of lier navigation.</p> <p>[Ed. Note.—Eor other cases, see Admiralty, Cent. Dig. § 279; Dec. Dig. § 28.*]</p>

In Error and Cross-Error to the Circuit Court of the United States for the Southern District of Florida. Action by John T. Hammond against the Consolidated Grocery Company and others. Judgment for plaintiff, and both parties bring error. John T. Hammond brought suit against the Consolidated Grocery Company, a corporation, and 15 other corporations, for damages under the anti-trust act. Act July 2, 1890, c. 647, 26 Stat 209 (U. S. Comp. St. 1901, p. 3200).

Suit in equity by Albert P. Fowler, receiver of the American Exchange National Bank of Syracuse, N. Y., against Charles M. Crouse and others. Decree for complainant, and defendants appeal. The complainant is the receiver, appointed by the Comptroller of the Currency, of the American Exchange National Bank, a national banking association located at Syracuse.

<p>1. Contracts (§ 340*)—Action for Breach of Building Contract—Pleading.</p> <p>A petition in an action on a building contract, which sets out the contract and alleges a failure to comply therewith because of the use of defective materials and improper workmanship, is sufficient to warrant a recovery according to the legal effect of the contract, either on an express or implied warranty.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1748; Dee. Dig. § 346.*]</p> <p>2. Contracts (§ 205*)—Building Contract—Construction—Implied Warranty.</p> <p>Defendant, a company engaged in the work of fireproofing buildings, contracted to furnish all materials and perform all the labor in connection with the work of fireproofing a large hotel building under construction, including concrete floors, stairways, fireproof partitions, etc., and also to furnish the structural steel required for the building, which it did not manufacture. Held, that an express warranty in the contract that such steel should be sufficient to carry loads as specified by the architects did not exclude an implied warranty that the contract for the fireproofing work should be performed in a workmanlike manner, and all material's used should be suitable to render the construction fit for the purposes intended.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 878, 905; Dec. Dig. § 205.*]</p> <p>3. Contracts (§ 290*)—Action for Breach of Building Contract—Approval by Architect—Waiver.</p> <p>Under a building contract providing that the work should be done in accordance with the specifications and drawings of the architects and under their supervision, that their decision as to the true construction of the specifications and drawings should be final, and that they might condemn materials or work and cause the same to be removed, but also that no certificate given by them or payment made thereon except the final certificate or payment should be conclusive evidence of the performance ■of the contract, or construed as an acceptance of defective work or improper materials, where final certificate was not given nor final payment made, the contractor was not relieved from liability on account of defective work or improper materials because the architects did not condemn the same as the work progressed.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1317; Dec. Dig. § 290.*]</p> <p>4. Contracts (§ 287*)—Action for Breach of Building Contract—Defenses—Waiver.</p> <p>In an action against a contractor for fireproofing a building to recover damages for breach of contract and injury to the building alleged to have been due to the use of improper materials, and the improper mixing of the concrete of which the floors were made, by reason of which they expanded and cracked the walls of the building, which breach of contract was denied, the facts that the architects under whose supervision the work was done permitted it to continue, and gave partial certificates on which payments were made after the injury to the walls was known, while pertinent evidence for defendant, did not operate as a conclusive waiv.fr by the owner of the right to recover damages when not made such by the contract, and where the canse and extent of the injury to the walls were not at the time apparent.</p> <p>[Ed. Note.- -For other cases, see Contracts, Cent. Dig. §§ 1330-1332; Dec. Dig. § 287.*]</p> <p>5. Appeal and Error (§ 17.1*)—Review—Estoppel to Allege Error—Nature and Theory of Cause.</p> <p>That a court permitíed a building contractor to maintain a joint action against a subcontractor and the surety on its bond, and to recover therein damages on account of injury to the building by reason of alleged defective work done by the subcontractor, without proof that plaintiff’s liability to the owner of the building for such injury bad been adjudicated or its extent determined, is not ground for reversal of the judgment by an appellate court, where no objection on that ground was made in the trial court, but defendants acquiesced in the theory on which the action was brought, and at their request the question of plaintiff’s liability to the owner of the building was submitted to the jury, and an affirmative finding thereon made a condition to recovery against the defendants.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1353-1355; Dec. Dig. § 171.*]</p> <p>6. Courts (§ 352*) — Federal Courts — Following Procedure of State Courts—Yekdict—Effect of Special Verdict.</p> <p>Where, in an action in a federal court to recover from a building contractor for a breach of contract by alleged defective work, the jury under proper instructions as to the measure of damages returned a special verdict finding the amount of damages caused by the failure of defendant to perform its contract, a general verdict for plaintiff for such amount less Hie amount of a final payment which would have been due defendant under the contract If properly performed was consistent with the special verdict and proper, regardless of the technical rules of procedure governing the local courts of the state.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 927; Dec. Dig. § 352.*</p> <p>Conformity of practice in common-law actions to' that of state court, see notes to O’Connell v. Reed, 5 O. O. A. 594; Nederland Life Ins. Co. v. Hall, 27 O. C. A. 392.]</p>

Irr Error to the Circuit Court of the United States for the District of Utah. Action by the Michigan Trust Company against Edward P. Perry. Judgment for defendant, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the District of Utah. Action hy the Michigan Trust Company against Edward P. Ferry. Judgment sustaining a demurrer to the comxilaint, aud plaintiff brings error. Affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Arkansas.</p> <p>Suit in equity by E. F. Le Marchal against Grant Tegarden. Decree for defendant (152 Feci. 662), and plaintiff appeals.</p>

<p>1. Injunction (§ 38*)—Nature and Grounds—Actions and Proceedings in Aid op Which Injunction is Authorized.</p> <p>While, under certain circumstances, a complainant out of possession may be awarded an injunction preventing the destruction of the property, it should be in cases only where an action at law is either pending or contemplated and ancillary thereto so as to preserve the status quo.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 8G-90; Dec. Dig. § 38.*]</p> <p>2. Quieting Title (§§ 10, 12*)—Bight op Action—Title and Possession op Complainant.</p> <p>Only a complainant who has a clear legal title to land as well as its actual possession has the right to claim the aid of a court of equity to quiet his title, or remove a cloud therefrom.</p> <p>[Ed. Note.—For other cases, see Quieting Title, Cent. Dig. §§ S-12, 30-42; Dec. Dig. §§ 10, 12.*</p> <p>Necessity of possession in suits to quiet title, see note to Jackson v. Simmons, 89 C. C. A. 522.]</p> <p>3. Quieting Title (§ 4*)—Jurisdiction—Adequate Bemedx at Daw. .</p> <p>A federal court of equity is without jurisdiction of a suit by a complainant alleging title to a tract of land embracing 147,000 acres against a large number of defendants, each of whom is alleged, to claim title to a separate portion of snc-h tract and to he in possession of the same, the greater number under color of title, and to have been so in possession for varying lengths of time not stated, the averred purpose of the suit being to determine the adverse claims of title and avoid separate actions at law which would afford a complete and adequate remedy in each ease.</p> <p>[Ed. Note.—For other eases, see Quieting Title, Cent Dig. § 6; Dec. Dig. § 4.*]</p> <p>4. Quieting Title (§ 3*)—Grounds of Jurisdiction—Avoidance of a Multiplicity of Suits.</p> <p>The claimant of a large tract of land, separate portions of which are in the possession of each of a large number of persons claiming tille in various ways, cannot maintain a single suit in equity in a federal court against all of such adverse claimants to determine the question of title, on the ground of avoiding a multiplicity of actions at law, since, even if such suit could in any case be maintained, it would not obviate the necessity of trying the case of each defendant separately.</p> <p>[Ed. Note.—For other cases, see Quieting Title, Cent. Dig. § 13; Dec. Dig. § 5.*]</p>

Suit in equity by William J. Broatch and others against Asmus Boy-sen and others. Decree for defendants, and complainants appeal.

<p>Appeal from the Circuit Court: of the United States lor the Northern District of West Virginia, at Parkersburg.</p> <p>. Suit in equity by Ida G. Jackson against Henry C. Jackson and others. From a decree sustaining- a demurrer by certain defendants and dismissing the bill as to them, complainant appeals.</p>

On reargument. This is an appeal from the final decree and judgment filed February 24, 1907, and the last of March, 1907, in the Circuit Court of the United States for the District of South Carolina, wherein it was decreed and adjudged that the defendant Nora Martin Schmidt was entitled to $5,350, and interest and costs, in the case against the complainant and ¡bree other insurance companies, defendants.

Suit in equity by J. T. Miller and others against the South Penn Oil Company and another. Decree for complainants, and the named defendant appeals.

<p>Appeal from the Circuit Court of the United States for the District of Maiyland, at Baltimore.</p> <p>Suit by Lewis P. Wingei't against the First National Bank of Hagerstown, Md., and others. From a decree denying an injunction to restrain a national bank from improving its bank property, plaintiff appeals.</p>

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina, at Greensboro.</p> <p>Action by John H. Ware and others against George A. Howell. Judgment for plaintiffs, and defendant brings error.</p>

Suit in admiralty by Smith & McCoy and the Norfolk Marine Railway Company, intervener, against the steamer Mount Desert. Decree for libelant and intervener, and claimant appeals.

Action by Klisha H. Hakes against Ode A. Russ and others. Judgment for defendants, and plaintiff brings error. This was an action upon three promissory notes, two for $850 each, and one for $800, all dated October 30, 1899, payable, respectively, September 1, 1901, 1902, and 1903, to Russell lams, or order, with interest. The notes were given for the price of one Perdieron stallion, and were indorsed by lams to the plaintiff in error.

<p> (Syllabus by the Court.) </p> <p>1. Divorce (§ 167*)—Equity (§ 67*)—Laches—Five Years’ Delay to Sue to Avoid Divorce Constitutes.</p> <p>Five years’ delay after discovery of the fraud to commence suit to avoid a decree of divorce therefo.r constitutes such laches as will defeat the suit, where the limitation of the analogous action at law is three years.</p> <p>In courts of equity the estoppel of laches takes the place of statutes of limitation, and they apply It in analogy to the limitation of the like action at law.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 541; Dee. Dig. § 167 ;* Equity, Cent. Dig. §§ 191-196; Dee. Dig. § 67.*]</p> <p>2. Courts (§ 262*) — Equity Jurisdiction of Federal Courts — Relief Against Judgments.</p> <p>A federal court sitting in equity has jurisdiction to disregard or to enjoin the enforcement of an unconscionable judgment of a state or of a national court for new causes, sucli as fraud, accident, or mistake which led the court into the rendition of a wrong judgment, or prevented the judgment defendant from availing himself of a meritorious defense.</p> <p>[Ed. Note—For other cases, see Courts, Cent. Dig. §§ 797, 798; Dee. Dig. § 262.*]</p> <p>3. Frauds, Statute of (§ 75*)—Parol Contract to Devise Real Property Void.</p> <p>An oral agreement to devise real property, or real and personal property. is void under the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds,' Statute of, Cent. Dig. § 133; Dec. Dig. § 75.*]</p> <p>4. Frauds, Statute of (§ 129*)—Partial Performance—Exception.</p> <p>A partial performance of such a contract, by delivery of possession of the property to the proposed devisee, or by other like acts which are unavoidably referable to the agreement, will except it from the rule.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292; Dec. Dig. § 129.*]</p> <p>3. Frauds, Statute or (§ 12!)*)—Acts Requisite to Constitute Partiat, Performance.</p> <p>An act or acts which clearly appear 1o have been such as the performing party would not have done in the absence of the agreement, or without a direct view to its performance, are indispensable to constitute the partial performance which will take an oral agreement out. of the statute.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 292; Dec. Dig. § 129.*]</p> <p>6. Frauds, Statute of (§ 150*)—Pleading—'When Demurrer Presents Qb•ieotion.</p> <p>When the fact that the contract was oral affirmatively appears on the face of the bill, the objection that it is void under the statute of frauds may be taken by demurrer. When that fact does not thus appear, it must be presented by answer.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 360-862; Dec. Dig. § 150.*] ></p>

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling.</p> <p>Suit by the National Telephone Company of West Virginia against Harry P. Corcoran and others. From a decree denying defendants’ motion to vacate a strike injunction against certain of the defendants, joined in an amended bill, they appeal.</p>

Bill by the Mack Manufacturing Company against the Southern Contracting Company, in which Henry R. Worthington, doing business as a corporation, intervened and claimed certain fire pumps sold to the Contracting Company and delivered to the town of Franklin by the Contracting Company under a waterworks construction con* tract. From a judgment denying intervener’s petition, he appeals.

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>Suit in admiralty by F. D. Gladding and others, as owners of the schooner E. G. Irwin and cargo, against the steam tug Dauntless. Decree for libelants, and claimant appeals.</p>

Petition to Review Order of tile District Court of the United States for the Southern District of New York. In the matter of A. O. Brown and others, bankrupts. Petition by the First National Bank of Princeton, Ill., to review an order dismissing its petition to reclaim money as a trust fund.

This cause comes here upon appeal from a decision (166 Fed. 1017) of the Circuit Court, Southern District of New York, affirming a decision of the Board of General Appraisers (G. A. 6,737, T. D. 28,848), sustaining appellees’ protest against reliquidation of the duties assessed on a certain importation of carpets.

<p>Appeal and Error (§ 148*)—Mortgages—Foreclosure.</p> <p>Where a railroad stock and bond holder was not a party to an original suit to foreclose a mortgage on the railroad’s assets to secure outstanding bonds, and the decree of foreclosure reserved from the sale all choses in action, assets, and rights which might be had by reason of petitionér’s allegations in an intervening petition asking for an investigation as to the issue of certain first and refunding bonds and the sale of preferred and common stock of the railroad, petitioner was not entitled to appeal from the decree of foreclosure.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 925; Dec. Dig. § 148.*]</p>

The merchandise in controversy consisted of furniture with wooden frames, upholstered with Aubusson tapestry of silk and wool; silk being the component of chief value in the completed articles. The Circuit Court held that the furniture had been improperly classified under paragraph 366, tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp.

There was no opinion below, but this cause conies here upon appeal from a decision of the Circuit Court, Southern District of New York, reversing a decision of the Board of General Appraisers.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. ■</p> <p>Application of the Rheirns Coxnpany for review of decision of appraisers. From a judgment reversing the decision (169 Fed. 662), the United States appeal.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>Suit in equity by the Detroit Heating & Lighting Company against Clarence M. Kemp. Decree for complainant, and defendant appeals.</p>

<p>Patents (§ 328*)—Infeincement—Papek-Dkyino Machine.</p> <p>The Liberty patent, No. 629,696, for a latli-carrying device for paper-drying machines, claim 2, which specifies, as an element of the combination “hoppers for feeding the said laths,” must be read in the natural sense of the terms, and is limited to a machine employing a plurality of hoppers, and is not infringed by a machine having a single hopper.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 328.*]</p>

Suit in equity by the Joseph Schneible Company against the Rbling Brewing Company. In Kquity. Suit to restrain alleged infringement of United States letters patent and for an accounting.

<p>In Equity. Suit by the Comptograph Company against the Burroughs Adding Machine Company.</p>

<p>1. Patents (§ 211*)—Dicenses—Construction of Contract.</p> <p>By a license contract between complainant as owner of a patent and defendant, an alleged infringer, complainant released defendant from all claims for past infringement, granted it a license for tbe full term of tbe patent, and agreed to bring suit aga-inst an infringer to establish tbe validity and scope of the patent, while defendant agreed to pay a sum in cash, a royalty on all machines made prior to the final decision in such infringement suit, not later than a stated time, and an increased royalty thereafter should such decision sustain the patent, with the privilege of terminating the contract should it be adverse. Held, that the effect of such contract, on the payment of the initial sum and the royalties to the stated time, was to vest defendant with license during the term of the patent as under an executed contract; the payment of further royalties, only, being contingent on the result of the suit.</p> <p>[lid. Note.—For other cases, see Patents, Dec. Dig. § 211.*]</p> <p>2.. Patents (§ 214*)—Licenses—Grounds fob 'Cancellation.</p> <p>The fact that a licensee under a patent for the full term of its life under a contract which he has fully executed by payment of the agreed consideration, although he was to pay further royalties if the patent was sustained in an infringement suit brought by tbe licensor, by leave appeared in the appellate court in such suit and filed a brief in aid of tbe defendant, attacking the validity of the patent, which was adjudged void, does not entitle the licensor to-a cancellation of the license contract.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig.„§ 214.*]</p>

<p>In Equity. Suit by the Auto Spring Repairer Company against David Grinberg and Adolph Morris. On motion for preliminary injunction.</p>

<p>In Equity. Suit by Charles S. Kehoe and others, executors, against Bradford & Lasher. On demurrer to bill.</p>

<p>Post Office (§ 35*)—“Using Mails to Defraud”—Elements of Offense.</p> <p>To constitute the offense of “using the mails to effectuate a scheme to defraud,” within Rev. St. § 5480 (U. S. Comp. St. 1901, p. 3696), the scheme must have been one which contemplated the use of the post office establishment to effectuate it, and it is not sufficient that the mails were used as a mere incident to some fraudulent scheme.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig- § 35.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79.]</p>

<p>At Taw. Action by John Gill against Frank Waterhouse. On demurrer to amended complaint.</p>

<p>Bankruptcy (§ 136*)—Order Requiring Bankrupt to Turn Over Property —Sufficiency of Evidence.</p> <p>In view of the fact that the failure of a bankrupt to obey an order to turn over money or property to his trustee is punishable by imprisonment for contempt, such an order should only be made on the clearest proof of his present ability to comply with it, since contempt proceedings cannot be invoked as a means of coercing the payment of debts, or to punish a bankrupt for transferring his property with intent to hinder, delay, or defraud his creditors.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Cent. Dig. §§ 283, 285; Dec. Dig. § 136.*]</p>

<p>Street Railroads (§ 58*)—Insolvency Proceedings—Proof of Claims.</p> <p>The special master, in sniis against an insolvent street railroad company, directed to require claimants who have filed claims against the company, but have been dilatory in their prosecution, to present their proofs within a time to be fixed by him, under penalty of their disallowance for lack of proof.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>In Equity. Suits by the Pennsylvania Steel Company against the New York City Railway Company and others, and by the Guaranty Trust Company of New York and by the Morton Trust Company, respectively, against the Metropolitan Street Railway Company.</p>

<p>Proceeding by Charles E- Stegall against R. W. Thurman, Sheriff and Jailer of Dade County, Ga.j for writ of habeas corpus.</p>

<p>1. Bankruptcy (§ 346*)—Debts Having Priority—Taxes.</p> <p>Query, has a tax imposed, not upon tangible property, but upon the franchise of an insolvent corporation after it has been taken charge of by a court of bankruptcy, a preference under Bankr. Act July 1, 1898, c. 541, S 64a, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), which provides that the court shall order the trustee to pay all taxes legally due, and owing by the bankrupt in advance of the payment of dividends to creditors?</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 346.*]</p> <p>2. Statutes (§ 181*)—Construction—Legislative Intention.</p> <p>In the construction of a statute, for the purpose of determining the leg-L islative intention, the court may be justified in some circumstances in giving weight to considerations of injustice or inconvenience which may result from a particular construction.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 263; Dee. Dig. § 181.*]</p> <p>8. Bankruptcy (§ 346*) — Distribution of Estate — Taxes—Priority of Expenses of Preserving and Administering Estate.</p> <p>In the distribution of the assets of a bankrupt, the actual and necessary expense of preserving and administering the estate have priority over taxes; Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (ü. S. Comp. St. 1901, p. 3447), which requires the court to order the trustee to pay all taxes legally due and owing “in advance of the payment of dividends to creditors,” giving them priority of payment only from the net assets.</p> <p>[,K(1. Note.—For other cases, see Bankruptcy, Dee. Dig. § 346.*]</p>

At Daw. Action by Wyman, Partridge & Co. against the Boston-Blacking Company. On demurrer to the declaration, except the first four counts thereof.

<p>1. Equity (§§ 219, 263*)—Pleading—Gross-Bill.</p> <p>A cross-bill filed by the defendant in a suit in equity in a federal court, which makes no one defendant and which prays for no process, and on which no process is issued, is a nullity, and should be attacked by a motion to strike, and not by demurrer.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 487, 496-500, 535-540: Dec. Dig. §§ 219, 263.*]</p> <p>2. Easements (§ 61*)-—Injunction (§ 9*)—Protection of Easement—Trespass.</p> <p>An injunction will lie to protect the owner of an easement in its enjoyment, and, conversely, an injunction will not lie in favor of one who disturbed or Interfered with the owner’s enjoyment of his easement in order to secure to the former the fruits of his trespass.</p> <p>TEd. Note.—For other cases, see Easements, Cent. Dig. §§ 134-137; Dec. Dig. § 61;* Injunction, Cent. Dig. § 8; Dec. Dig. § 9.*j</p> <p>8. Railroads (§ 73*)—Extent of Right of Way—Easements.</p> <p>The grant of an easement for right of way for a railroad carries with it by implication all such incidental rights as are necessary to the enjoyment of the grant having reference to the character of the use, including the right to the exclusive possession, occupancy, and control of the right of way, and the right to remove everything placed or growing thereon which the grantee may deem necessary to remove to insure the safe operation of its road, even as against the owner of the fee.</p> <p>I Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Big. § 73.*J</p> <p>4, Railroads (§ 73*)—Extent of Right of Way—Easements.</p> <p>The owner of land over which a railroad company has acquired a right of way, either by grant or by condemnation, had not the right to construct a levee upon such right of way and join it to the railroad embankment for the protection of his land from the overflow of a river in times of flood, against the objections of the railroad company, when the effect of such levee is to overflow the tracks of the railroad and endanger trains thereon.</p> <p>[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 73.*]</p>

<p>Charles R. Heike and others were indicted for frauds on the customs and other offenses against the United States, and moved for a directed verdict on a special plea in bar of immunity because of prior evidence given before the grand jury. Motions denied.</p> <p>The following is the substance of the plea in bar and of the government’s replication thereto: „</p> <p>(1) That on June 17 and 21, 1909, there was a proceeding pending before the grand inquest of the United States for the Southern District of New York, brought under the Sherman anti-trust act.</p> <p>(2) That on June 16, 1909, defendant was subpoenaed to appear before such inquest and testify concerning an alleged violation of such act by the American Sugar Refining Company and others, and to bring with him all records, etc., showing the minutes of the meetings of the executive committee of the board of directors of such company.</p> <p>(3) That on June 18th defendant was commanded by subpoena to appear before such inquest to testify concerning an alleged violation of the Sherman anti-trust act by the American Sugar Refining Company on behalf of the United States, and to produce copies of all letters from the refining company, H. O. Havemeyer, and the defendant to one Kissel during the years 1903 and 1909, inclusive, and by defendant to the firm of Parsons, Clossom & Mdllvaine and John E. Parsons, concerning a loan made by Kissel to one Segal on December 30, 1903, and all deeds, evidences, and writings which defendant had in its custody concerning such premises.</p> <p>(4) That defendant appeared before such inquest June 17 and 21, 1909, was duly sworn, examined, and gave testimony under oath, and produced and testified concerning documentary evidence, to wit. the letters, records, agreements, and memoranda called for by the subpoena, including checks of the American Sugar Refining Company of New York, signed by defendant as treasurer of the company.</p> <p>(5) That under oath defendant testified that he was secretary and treasurer of the American Sugar Refining Company; was in charge of the records, books, and minutes of the company; that he testified concerning the incorporation, organization, and management of the company; its sugar importing business in the collection district of New York; its properties, refineries, etc.; and that all of such testimony related to the period included in the various dates mentioned in this indictment.</p> <p>(6) That in that proceeding defendant testified and under oath produced evidence concerning the transactions, matters, and things set forth in the indictment herein, and for and on account of which this proceeding and prosecution is brought.</p> <p>(7) That on December 1, 1909, there was a proceeding before the grand inquest in such district pursuant to the Sherman anti-trust act.</p> <p>(8) That on November 29, 1909, defendant was subpoenaed to appear before such grand inquest and testify concerning alleged violations of the statutes of the United States by the American Sugar Refining Company of New York and to bring the books and records of such company.</p> <p>(9) That in obedience to such subpoena defendant appeared and produced the documentary evidence required, and was examined and testified concerning the incorporation and organization of the American Sugar Refining Company; i.ts properties and business conducted within the collection district of New York and defendant’s position with the company; the actual production of refined sugar by each of the refineries owned by the company; the expense accounts, expense books, salary lists, etc.; raw sugar meltings of all refineries owned by the company from 1893 to 3907, inclusive; letters and tests relating to tests on importations; monthly and annual refinery expenses—expenses, etc., from 390-1 to 1908, inclusive; statements of figures entering into the profit and loss accounts of the company; and certain resolutions authorizing expenditures on the company’s behalf, and private letter books of the defendant relating to the period included within the dates mentioned in the indictment.</p> <p>(101 That in such proceeding before the grand inquest, defendant testified orally under oath, and produced documents concerning transactions set forth in the indictment herein against defendant.</p> <p>(11) That on January 5. 1910, there was a proceeding pending before the grand inquest for the Southern district of New York, brought under the Sherman anti-trust act, and that on that date defendant was requested by an Assistant United States District Attorney for the Southern district of New York J.o appear and attend forthwith before such inquest and testify concerning an alleged violation of such act; that defendant in obedience to such request appeared and was sworn and examined on oath concerning the output of the American Sugar Refining Company; its ownership of all sugar beet companies; the capacity and production of its refineries, and the contents of certain letters relating to the affairs and management of the companies—all of which testimony related to the period including the various dates mentioned in the indictment.</p> <p>(32) That in such proceeding before thp grand inquest defendant testified orally and under oath produced documentary evidence concerning the transactions, matters, and things set forth in the indictment herein, and for and on account of which this proceeding and prosecution was brought against defendant.</p> <p>(13) That defendant is ready to verify and prove the foregoing facts as the court shall direct and award, and therefore pleads the same in bar of any prosecution, trial, or punishment under such indictment, and says that to prosecute or punish him under said Indictment, or for any alleged offense charged therein, or in any of the acts thereof, would be to deny the protection and immunity of the statutes of the United States in such case made and provided.</p> <p>Wherefore, defendant prays chat ho may be discharged from further prosecution or punishment under said indictment.</p> <p>To this plea was attached copies of the various subpoenas served on defendant.</p> <p>To this plea the government filed the following replication:</p> <p>Denying that defendant orally or under oath produced documentary evidence concerning matters and things set forth in the indictment as in the plea alleged, and denying that defendant obtained immunity from prosecution by reason of his testimony before the grand inquest, and alleged:</p> <p>(1) That the prosecution herein exclusively relates to customs’ frauds, and that defendant had never been called before the grand jury which returned ibis indictment against him, nor before any grand jury considering any violations of the customs law, nor had he testified or produced documents before any such grand jury on that subject</p> <p>(2) That the proceedings in which defendant testified and produced documents were independent from that in which he- was indicted, and were both proceedings arising under the Sherman anti-trust law. That none of the testimony given by defendant or the documentary evidence disclosed any facts which would form any part of an agreement punishable under the customs’ laws.</p> <p>(3) That defendant appeared in proceedings in no possible way connected with the proceedings herein, blit that so independent were these proceedings that none of the law officers engaged in the present prosecution knew of the appearance of defendant before any of the grand juries until after the fact of such appearance was chronicled in the public press, and the evidence which defendant gave and the documents which he produced in such proceedings were entirely unknown to any of the law officers engaged in this prosecution until the plea herein was filed; that the transactions, matters, and things as to which defendant testified orally, and as to which he in'odúced documentary evidence in the proceedings referred to in the plea, were not In fact known to any of the officers prosecuting in behalf of the United States in this case until after the plea filed herein, nor was any of the testimony which he gave, or the documentary evidence which he produced, made use of in any proceeding against him, or otherwise.</p> <p>(4) In fact, as to none of the transactions, matters, and things set forth in the indictment herein, and for and on behalf of which this proceeding is brought-against the defendant, did he testify or produce documents in the proceedings referred to in -the plea, nor could the testimony which he gave, or the documents which he produced in such proceedings, form any part of the transactions, matters, or things which are the subject of this indictment.</p> <p>(5) That heretofore in a proceeding which was begun in 1909 defendant was called as a witness in a proceeding brought by the United States against the American Sugar. Refining Company of New York, involving the very frauds herein in question, and testified at length as to the transactions, matters, and things which are the subject of this indictment, and this without any claim that any such testimony would in any wise incriminate him, and without any claim of privilege with respect thereto.</p> <p>The indictment charged four substantive offenses under section 5445, Rev. St. (U. S’. Cbmp. St. 1903. p. 36781. and section 9 of the Customs Administrative act (Act June 10, I860, c. 407, 26 Stat. 135 [U. S. Comp. St. 1901, p. 1895]), and conspiracy to defraud the Government and conspiracies to commit offenses under section 5440. The defendant filed a special plea in bar claiming immunity from prosecution of this indictment on the ground that he had heretofore been called before grand juries charged with investigating alleged violations of the Sherman anti-trust law (Act July 2, 1890, c. 647, 26 Stat. 200 [U. S. Comp'. St. 1991, p. 3209]), and in such proceedings had produced testimony and given evidence respecting transactions, matters, and things for which he is now being prosecuted. To this idea the government filed a replication, and upon rejoinder being entered by the defendant the issue was tried before a jury. At the end of the whole case, the defendant and the government moved for a direction of verdict.</p>

<p>At Raw. Proceedings to recover excessive duties, being an action or proceeding under the so-called Tucker act (Act March 3, 1887), conferring concurrent jurisdiction with the Court of Claims on the Circuit Court of the United States in certain cases.</p>

<p>In Bankruptcy. In the matter of John W. Christianson, bankrupt. On review of order of referee.</p>

<p>In Admiralty. Suit by Samuel Hecht and others against the steamship Sikh for short delivery of cargo.</p>

<p>Bankruptcy (§ 81*)—Involuntary Petition—Allegation of Act of Bankruptcy.</p> <p>An allegation in a petition in involuntary bankruptcy that a receiver was appointed for the property of defendant because of its insolvency, by a suite court named, sufficiently charges an act of bankruptcy under Bankr. Act July l. .1898, c. 54], § 3, subd. “a,” cl. 4, 30 Stat. 54(> (U. S. Comp. St. 1901, p. 3422), as amended by Act Fell. 5,1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1309), where the court named was one having general equii.v jurisdiction, and the record of the suit filed with the petition shows that the appointment was made on a creditors’ bill charging insolvency as one of the grounds for asking -the appointment, and does not disclose the specific ground on which it was made.</p> <p>fEd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, .125: Dec. Dig. § 81.*]</p>

<p>Railroads (§ 254*)—Safety Appliance Act—Violation—Action foe Penalty.</p> <p>The use by a railroad company of a switch engine having no “uncoupling levers” does not subject it to the penalty imposed by Act March 2, 1893, c. 196, f 2, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), for using a car “not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the ears,” in the absence of proof that such levers are necessary ■to enable such engine to couple to cars by impact, and especially where it is shown that it can be uncoupled without the necessity of going between it and the car to which it is coupled.</p> <p>[Ed. Note—For other cases, see Railroads, Cent. Dig. § 766; Dee. Dig. § 254.*]</p>

<p>Copyrights (§ 75*)—Iatringemhnt—Musicai, Composition.</p> <p>The right of the author of a musical composition which has been copyrighted to protection against infringement does not depend upon the musical merit of the piece, nor is it affected by the fact that he has borrowed in general from the style of his predecessors, unless he has so substantially copied from some other that to the ear of the average person the two melodies appear to be the same.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 65; Dec. Dig. § 75.*]</p>

<p>In Bankruptcy. In the matter oí J. T. Mitchell, bankrupt. On pe - tition for stay of bankrupt’s discharge.</p>

In Bankruptcy. In the matter of Peter Cramer, bankrupt. On petition for review of order of referee denying petition by the trustee that the bankrupt be required to turn over certain property.

<p>Banks and Banking (§ 100*)—Representation ov Bank by Oewcers—Special Authority to Draw Checks.</p> <p>A resolution of the directors, authorizing the president of a hank to draw checks and drafts, containing no limitation on its face, held to justify the payment by. a depository of funds of the bank of a cheek drawn by such president against such deposit.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 10C.* I</p>

<p>In Equity. Suit by Archibald Palmer, trustee in bankruptcy of Pincus Roginsky, against Abraham Roginsky and another. On motion for preliminary injunction.</p>

<p>Customs Duties (§ 25*) — Classification — Hauteville Stone—“Marble”— . “Dimestone.”</p> <p>Ilauteville stone, and various other stones of substantially the same character, which are susceptible of a high polish and are used as an interior decorative stone, are not the kind of limestone that is “marble,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 114, 30 Stat. 158 (U. S. Comp. St. 1901, p. 1035), but are dutiable as “limestone,” under paragraph 117, 30 Stat. 159 (U. S. Oomp. St. 1901, p. 1630).</p> <p>[Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 43GG; vol. 5, p. 4166.]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. Imports assessed with duty by the collector of customs at the port of New York under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 58, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1G30), were held by the Board of General Appraisers to be dutiable under paragraph 54, 30 Stat. 154 (U. S. Comp. St. 1901, p_. 1630).

<p>At Law. Action to recover customs duties.</p>

<p>Customs Duties (§ 37*)—Classification—“Toys”—“Fans of All Kinds.”</p> <p>Tlie provision in Tariff Act July 34, 1897, c. 11, § 1, Schedule N, par. 427, 30 Stat. 391 (U. S. Comp. St. 3.901, p. 1675) for “fans of all kinds,” was, notwithstanding its broad language, not intended to include everything which might be called a fan, and to an exceedingly limited extent used as a fan; and so-called cigar fans and firecracker fans, consisting of small folding fans closing into cases representing cigars, etc., are not dutiable under said provision, but under paragraph 418, 30 Stat. 191 (U. S. Comp. St. 3901, p. 1074), as “toys.”</p> <p>[Ed. Note.—For other eases, see Customs Duties, Dec. Dig. § 37.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7030, 7818.]</p>

<p>1. Customs Dunns (§ 30*)—CLASBUMOATroN—Marmalade—“Jelly”--“Sweet-meats and Preserved Fruits.”</p> <p>Marmalade is dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G. par. 263, 30 Slat. 171 (U. S. Comp. St 1901, p. 365L), relating to “sweetmeats and preserved fruits,” rather than as “jelly.” under tile same paragraph.</p> <p>[Ed. Note.—For other eases, see Customs Duties, Cent. Dig. § 75; Dec. Dig. ¡ 30.*]</p> <p>2. Customs Duties (§ 30*)—Beret Jams—“Jelly”—“Edible Fruits PREPARED.”</p> <p>Berry jams are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1651), as sweetmeats or preserved fruits, rather than as “jelly” under the same paragraph, or as “edible fruits prepared,” under paragraph 262, 30 Stat. 171 (Ü. S. Oomp. St. 1901, p. 1651).</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 75; Dec. Dig. § 30.*]</p>

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

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below is reported as G. A. 6,922 (T. D. 29,914). The importers contend that the merchandise is free of duty under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 549, reading in part as follows:</p> <p>549. Eggs of * * * fish. * * * Provided, however, that this shall not be held to include * * * fish roe preserved for food purposes.</p>

<p>Customs Duties (§ 73*)—Classification—Sugar— Settlement Test.</p> <p>Where no official polariscopic lest had been made of imported sugar, it was proper to classify the sugar in accordance with the settlement test, especially as 1he importers had agreed lo accept such tests, and the Secretary of the Treasury had authorized their use.</p> <p>I Ed. Note.—For other cases, see Customs Duties, Dee. Dig-. § 73.*]</p>

In the matter of John R. James, bankrupt. On application for discharge in bankruptcy. On November 4, 1907, petitioner executed to Robert James a deed of assignment, transferring' to him all of his property for the purpose of paying his (petitioner’s) debts. On October 25, 1907, without the knowledge of his assignee, and with intent to defraud his creditors, petitioner concealed, by hiding in the woods, a portion of his personal property—goods and merchandise.

<p>1, Negligence (§ 2*)—Nature and Elements—Liability for Personal Injury.</p> <p>In order to create liability for a personal injury, the plaintiff must not only show that he was in the exercise of due care, but that the defendant was lacking in some duty which it owed to him, either as an employé, because of contractual relations, or as a member of the public.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 3; Dee. Dig. § 2.*]</p> <p>2. Negligence (§ 2*)—Liability for Injuries to Person—Volunteer.</p> <p>Defendant’s employes were passing a heavy tubing lowered by means of ropes through a doorway, when plaintiff’s intestate, who was not an employé, but a stranger to the work, without invitation undertook to assist, and while doing so received a fatal injury by reason of the slipping of the tubing and the breaking of a rope. Held, that defendant could not be held liable for his injury or death, in the absence of evidence showing gross negligence, willfulness, or wantonness in respect to his safety.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 3; Dec. Dig. § 2.*]</p>

<p>1. Customs Duties (§ 44*)—Classification—Artificial Silk Hats—Similitude.</p> <p>Artificial silk hats are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 390, 30 Stat. 187 (U. S. Comp. St. 1901, p. 1670), by similitude to silk wearing apparel.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 148; Dec. Dig. § 44,*.]</p> <p>2. Customs Duties (§ 82*)—Protest— Sufficiency.</p> <p>A protest referring to “hats made from so-called artificial silk” cannot be construed as relating to hats made from real horsehair.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 198; Dec. Dig. § 82.*]</p>

<p>Appeal from the Circuit Court of the United States for the Souths ern District of New York.</p> <p>Suit in equity by Dorothy Dorr Dam against the Kirk Da Shelle Company. Decree for complainant (1GG Fed. «89), and defendant appeals.</p> <p>This was a suit in equity brought in February, 1!)(!(!, by Henry J. W. Dam t:o restrain an alleged infringement of ¡1 copyright. The original complainant died in April, 190fi, and the suit was subsequently revived in the name of the administratrix of his estate, the present complainant. The Circuit Court: held that the defendant had infringed the copyright in question and rendered a decree for an injunction and an accounting. The defendant has appealed.</p> <p>The following are material facts:</p> <p>During the year 1898 said Dam, who was an author and dramatist, wrote a story entitled "The Transmogrification of Dan.” In 1901 Darn sent the manuscript of this story to the Ess Ess Publishing Company, a New York corporation and the proprietor and publisher of a monthly magazine called the Smart Set. The editors of the magazine accepted the story, and fixed the price to be therefor at $85. The business office of the publishing company then sent a check to Dam for that amount with a receipt for his signature, which was duly signed and returned. The receipt, reads as follows: “July 12th, 1901. Received of Ess Ess Publishing Company S85, in full payment for story entitled “The Transmogrification of Dan.’ H. J. W. Dam.” Dam had no personal interview with any of the officers or employes of the publishing company, and the entire transaction with respect to the acquisition of the story is described in the foregoing statement.</p> <p>The story was published in the number of the Smart Set for September, 1901. This number as a whole was duly copyrighted in the name of the Ess Ess Publishing Company and bore a notice in the front part thereof, “Copyright L901 by Ess Ess Publishing Company.” The magazine contained no other notice of copyright, and no steps were taken either by the publishing company or by Dam to copyright the story separately. On October 27. 1905, the Ess Ess Publishing Company, without any monetary consideration, assigned ro said Dam its copyright of said number of the Smart Set magazine so far as it applied to, covered, or protected said story, all its interest in said story under said copyright, and its claims and demands then existing for the infringement of said copyright.</p> <p>The defendant is a New York corporation engaged in the general theatrical business. At various times between September 4, 1905, and the eommencoineni of this suit the defendant caused a play entitled “The Heir to the Hoorah” to he publicly performed in various theatres in the United States. This play was written and copyrighted by Paul Armstrong, a dramatist, and was presented by the defendant through an arrangement with him. On November 15, 1905, said Dam, by his attorney, notified the defendant that said play was an unlawful dramatization of said story and forbade its future production. The defendant, however, continued to produce said play .and this suit was brought.</p> <p>In his original bill of complaint. Dam alleged, in substance, that he assigned ro the publishing company the right to publish and print said story as a part of said magazine, and not otherwise, and that the right to dramatize said story was held by Hie publishing company as trustee for his benefit.</p> <p>in an affidavit made for the purpose of obtaining a preliminary injunction Dam swore as follows: “I have not at any time parted with any right or interest in said literary work entitled ‘The Transmogrification of Dan’ except the right for publication thereof in said number of ‘The Smart Set’ for September, 1901.”</p> <p>The amended bill of complaint alleged simply .that Dam sold and assigned said story to the Ess Dss Publishing Company.</p>

<p>In Error to the District Court of the United States for the District of Nebraska.</p> <p>Bartlett Richards, Will G. Comstock, Charles C. Jameson, and Aquilla Triplett were each convicted of conspiracy, and each brings error.</p>

<p>In Error to the District Court of the United States for the District of Nebraska.</p> <p>Thomas M. Huntington, Ami B. Todd, and Fred Hoyt were each convicted of conspiracy, and each brings error.</p>

<p>Cross-Appeals from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>The decision below (171 Fed. 38G) reviewed, and reversed in part, a decision by the Board of United States General Appraisers, which liad affirmed the assessment of duty by the collector of customs at the port of Philadelphia. . °</p> <p>The goods in controversy were described as follows in the opinion of the Board of General Appraisers: Areca blatter (Exhibit 2), cycas leaves (Exhibit 3), magnolia wreath (Exhibit 4), ilex (holly) wreath (Exhibit 6), ruscus cross (Exhibit 7), ruscus wreath (Exhibit 30), phenix leaves (Exhibit 11), leaves, in form of cross (Exhibit 12), grasses (Exhibit 13), and palm leaf wreath (Exhibit 14). With the exception of the grasses (Exhibit 13), the Circuit Court affirmed the Board’s conclusion that all the foregoing were properly classified under paragraph 425, tariff act of 1897 (Act July 24, 1897, e. 11, § 1,. Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675]), relating to ornamental leaves. Said grasses the Circuit Court held dutiable as “manufactures” of grass under ’paragraph 449. The evidence was undisputed that some of them had been bleached and the remainder dyed. In these appeals it is contended toy the government that the assessment under paragraph 423 should have been affirmed, while the importers contend that the Circuit Court should have held the goods to be free of duty under paragraph 566, relating to “grasses * * * not dressed or manufactured,” citing as authority for this proposition Bayersdorfer v. United States, 122 Fed. 968, and United States v. Richard, 99 Fed. 262. The testimony showed Exhibits 2, 3, and 11 (areca, cycas, and phenix leaves) to consist of palm leaves that had been subjected to a process for restoring or preserving their natural appearance and preventing decomposition. The importers contend that they, are dutiable under the provision in paragraph 251 “for palms preserved, * * * suitable for decorative purposes.” The remaining exhibits (Nos. 4, 6, 7, 10, 12, and 14) consisted either of wreaths or crosses, which were arranged on wire frames. The frames were estimated by various witnesses to constitute from 5 to 20 per cent, of the cost of the completed articles. In accordance with the decision of the Circuit Court of the United States for the Southern District of New York, in Kreshower v. United States, 152 Fed. 485, the Board and the Circuit Court held these articles to have been properly classified under paragraph 425 (ornamental leaves), as above stated, rather than as articles in part of metal (paragraph 193). The importers contend that they should have been given this latter classification—• under paragraph 193—on the authority of United States v. Berlinger, 167 Fed. 800.</p> <p>The general testimony was to the effect that the various goods in dispute were sold by florists and undertakers for decorative or ornamental purposes.</p>

Appeal by the government, from a decision of the Circuit Court, Southern District of New York, in a customs case. The merchandise consists of chalk precipitated artificially. It was assessed for duty by the collector under tiie following portion of paragraph 13 of the tariff act of 1897 (Act July 24. 1897, c. 11, § 1, Schedule A, 30 Stat. 152 [U. S. Comp.

The importers’ contention in this cause is that certain gloves had been improperly classified as “over 14 inches in length” and “over 17 inches in length,” respectively, under Tariff Act Julv 24, 1897, c. 11, § 1, Schedule N, para. 439-441, 30 Stat. 192 (U. S. Comp. St. 1901, pp. 1676, 1677). The case turns upon the construction to be given the first of said paragraphs, reading as follows: “439.

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

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

<p>Customs Duties (§ 30*)—Classification—Coffee Rssenoe—“Cowef.”—“Akticles Used as Coffee ok as Substitutes.”</p> <p>Coffee essence, which is used as c-oilee or as a substitute therefor, is not “coffee,” within the meaning' of Tariff Act July 24, 1897, c. 11, § 2, Free Hist, par. 529, 30 Stat. 197 (U. S. Comp. St. 1901, p. 1682), but is dutiable, either directly or by similitude, as “articles used as coffee, or as substitutes for coffee,” under section 1, Schedule G, par. 283, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1632).</p> <p>[Ed. Note.—For other cases, see Customs Duties, Dec. Dig. § 30.*]</p>

<p>Patents (§ 328*)—Infiungewint-AYoven- Fabric.</p> <p>The TIoaM patent. No. 0(51,0-10. for a woven fabric, as limited by the prior art to the particular structure described therein, held not infringed.</p>

<p>1. Patents (§§ 136, 138, 141*)—Reissues—Ground—Delay—Scope.</p> <p>To warrant a reissue of a patent, inadvertence, accident, or mistake must be shown, and there must be no unreasonable delay in applying for it. The claims may be narrowed or enlarged, but in either case they must be within the terms of the invention as it. is specified and described in the original patent; the invention, although differently stated, remaining the same.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 198%, 201, 206-213; Dec. Dig. §§ 130, 13S, 141.*]</p> <p>2. Patents (§ 138*)—Reissue— Estoppel hy Delay.</p> <p>A delay of a year before applying for a reissue patent, the purpose of which was to avoid a limitation inadvertently inserted in a claim, did not invalidate' the reissue as against an infringer, where he was notified of the infringement very shortly after the original patent was issued, and where the infringing device, although not within the claim of the patent as originally issued, strictly construed, was within the invention as described therein and within the claims of the reissue, which were warranted by the original specification.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 201-203-; Dec. Dig. § 138.*]</p> <p>3. Patents (§ 328*)—Validity and Infringement-Can Cover Fastener.</p> <p>1'lie Bertels patent, No. 802,677, and the reissue thereof, No. 12.629. for a can cover fastener, which consists of elongated buttons affixed centrally to the end of rivets or studs extending downward through the cover, the ends of which engage with the inturned edge or headed rim of the can, the rivets having heads lying in countersinks in the cover by which the buttons aro turned, and which are marked by a nick to indicate the position of the button, disclose patentable invention, and are infringed by a device differing only in that the heads of the rivets, instead of being nicked, are composed of two lugs which indicate the position of the button.</p>

<p>In Equity. Suit by Warren N. Lancaster against Frederick G. M. Witte.</p>

In Equity. Suit by Hyman Spiegel and Conrad Prehs, partners, against Eouis Zuckerman and others, partners under the name of the Princess Shirt Waist Manufacturing Company, to restrain the defendants from continuing the alleged infringement of the alleged trade-mark “Princess,” which the complainants claim they and their predecessors first appropriated and used as such.

<p>Cabbiers (§ 293*)—Safjotv Al>t>mancf,s—Elevators—Statutes - -Notice.</p> <p>Court and Practice Act R. 1. 3905, § 1323, requires passenger elevators to be fitted with a device to prevent the car from being.started until the doors opening into the. shaft are closed, and requires the inspectors to notify the lessee and owner of the building in which any elevator siiall be used or operated, contrary to the requirements of the act, of such violation. It requires Die lessee and owner, within 30 days alter receipt of the notice, to comply with the provisions of the section. The section also requires the owner or owners of any such buildings, if leased to another, to comply with the provisions of the act, and provides that in all cases in which any person shall suffer injury in consequence of the failure of the lessee or owner to comply, or in consequence of the failure of the lessee or owner to comply with the written notice of the factory inspector, they shall be jointly liable for the damages sustained. The act also provides for a fine of not less than $5 nor more than $10 for each day the elevator is operated contrary to the act. Held that, where a person is injured by the operation of an elevator by a tenant in violation of the act, the tenant is liable without notice by the factory inspector, while such notice is a eondit ion precedent to the liability of the owner out of possession.</p> <p>[Ed. Note—For other cases, see Carriers, Cent. Dig. § 1188; Dec. Dig. § 293.*]</p>

<p>Action by the Dampskibsactiesselskahet Urania against Barber & Co., Incorporated.</p>

<p>3. Removal or Causes (§ 10*)—Grounds—Laws or the United States.</p> <p>A suit in equity to cancel certain agreements regulating tile price of paint anil varnish removers, manufactured and sold under patents issued to defendant, on the ground that such agreements were in violation of the Sherman anti-trusi law (Act July 2, 3892, c. G47, § 1, 2(5 Stat. 200 Hi. S. Comp. St. 1903, p. :S200n. was a suit directly involving the construction of a law of the United States, and was therefore removable to the federal courts, regardless of the citizenship of the parties.</p> <p>I Ed. Note.—For other eases, see Removal of Causes, Dec. Dig. § 19.*]</p> <p>2. Oaxcellaiton' of Instruments (| 33*)—Illegal Contract—Defense—Adequate Remedy at Law.</p> <p>Where complainant, under a mistake of law, was induced to enter into a contract fixing the price of a patented article manufactured under licenses, alleged to he a violation of the Sherman anti-trust; law (Act July 2, 1892, o. «47, § 1, 2G Stat. 209 [IT. S. Comp. St. 1901, p. 3200]), and defendant sought to hold complainant thereto, comida inant was entitled to sue in equity for cancellation of the contract, though lie could plead its illegality as a defense to an attempt, by defendant to enforce it as to him, as such defense would not relieve him from the pains and penalties provided by the Sherman act.</p> <p>I Ed, Note.—For other cases, see Cancellation of Instruments, Cent. Dig. $ 13; Dec. Dig. § 13.*]</p> <p>3. Removal of Causes (§ 25*) — Ground —Laws of the United States — Grounds or Relief.</p> <p>Where a ease was made by the pleadings in a suit for the cancellation of a contract involving the construction and application of the Sherman anti-trust aci (Act; July 2, 1892, c. 047. § 1, 2<> Stat. 209 (11. S. Comp. Sr. 3903. p. 3200(). the suit was removable to the federal courts, without reference to other grounds for relief pleaded.</p> <p>(Ed. Note.—For other cases, see Removal of Causes, Dec. Dig. § 25.*]</p>

<p> (Syllables by the Judge.) </p> <p>Damages (§ 132*)—Personal Injury—Loss of Eye.</p> <p>Exceptions to commissioner’s report allowing libellant $7,500 for the loss of her right eye. A claim on the part of the respondent that the damages were excessive and should be reduced to $2,500, not sustained and the report confirmed.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 373-385; Dec. Dig. § 132.*]</p>

<p> (Syllabus by the Judge.) </p> <p>Shipping (§ 58*)—Rights of Charterer—Breach of Contract—Evidence.</p> <p>. Mud berth for steamer at Amherst. Nova Scotia. The contract required the steamer to use a mud berth and a dispute as to whether the Fort Lawrence wharf at Amherst was a proper one, with approaches, determined in favor of the proposition advanced by the charterer, the Donald Steamship Company, that under the contract it was justified in requiring the vessel to go there.</p> <p>[Ed.' Note.—For other cases, see Shipping, Cent. Dig. § 241; Dec. Dig. § 58.*]</p>

In Admiralty. Suits by the Pacific Coast Company against the ship Celtic Monarch and tug Sea Lion, and by the Celtic Monarch Ship Company against the tug Sea Lion, with petition of the Shipowners’ & Merchants’ Tugboat. Company for limitation of liability.

<p>Customs Duties (§ 30*)—Classification—Preserved Fetjit—“Pbeserved”— “Prepared”—“Preservation”—“Peep aration.”</p> <p>The process of hermetically sealing fruit in tin cans, thus preserving it from decay until the cans are opened, constitutes “preservation,” rather than “preparation”; and fruit pulp that has been cooked and subjected to such sealing process is dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 (TI. S. Comp. St. .1901, p. 3051), as fruit “preserved * * * in its own juices,” rather than under paragraph 262, 30 Stat. 171 (IT. S. Comp. St. 1901, p. 3651), as fruit “prepared in any maimer.”</p> <p>LEd. Note.—For other cases, see Customs Duties, Dec. Dig. § 30.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5515.]</p>

<p>In Rem. On proceedings for forfeiture of imported goods.</p> <p>The ground of forfeiture is the provision in section 9, Customs Administrative Act of 1890, for the imposition of that penalty where any person shall “attempt to make any entry of imported merchandise by means of any fraudulent or false invoice, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever.” The statutes referred to in the opinion herein read as follows, so far as pertinent:</p> <p>“Sec. 2799. In order to ascertain what articles ought to be exempted as the wearing apparel, and other personal baggage, and the tools or implements of a mechanical trade only, of persons who arrive in the United States, due entry thereof, as of other merchandise, but separate and distinct from that of any other merchandise, imported from a foreign port, shall be made with the collector of the district in which the articles are intended to be landed by the owner thereof, or his agent, expressing the persons by whom or for whom such entry is made, and particularizing the several packages, and their contents, with their marks and numbers; and the person who shall make the entry shall take and subscribe an oath before the collector, declaring that the entry subscribed by him and to which the oath is annexed contains, to the best of his knowledge and belief, a .iust and true account of the contents of the several packages mentioned in the entry, specifying the name of the vessel, of her master, and of the port from which she had arrived; and that such packages contained no merchandise whatever other than wearing apparel, personal baggage, or, as the case may be, tools of trade, specifying it; that they are all the property of a person named who has arrived, or is shortly expected to arrive in the United States, and are not directly or indirectly imported for any other, or intended for sale.”</p> <p>“Sec. 4. That, except in case of personal effects accompanying the passenger, no importation of any merchandise exceeding one hundred dollars in dutiable value shall be admitted to entry without the production of a duly certified invoice. * * * ”</p> <p>This case arises upon a libel of forfeiture against one trunk containing costumes imported into the United States by the claimant on March 10, 1908. The claimant entered the country upon the steamship Staatendam, arriving at the port of New York, March 10, 1908, and accompanying her upon the steamer, besides her other personal baggage, was one trunk containing costumes intended for sale in the United States. Before disembarking the claimant signed, upon one of the blanks prepared by the Treasury Department, the customary baggage declaration and entry, under articles 610 and 611 of the Treasury Regulations. Upon this declaration she entered three trunks and one bag or valise, and under the head “Entry of Articles Obtained Abroad,” under the head of “Description of Articles,” she wrote, “1 dress,” “gloves,” “Consul Invoice;” under the head of “Foreign Cost and Value,” she wrote for the dress, “400 fes.” and for the gloves, “25 fes.” The entry “Consul Invoice” occupied both the heading entitled “Description of Articles” and the heading entitled “Foreign Cost or Value.” This declaration she signed and declared before the boarding officer. Upon the wharf the claimant had an interview with the acting deputy collector and entry clerk. She approached the desk of the deputy collector in company with the inspector who had been assigned to her baggage. He asked her whether the wearing apparel mentioned upon the declaration was for her personal use, and she said, “Yes.” The inspector then called his attention to the fact that there was one trunk said to contain costumes, and he asked the claimant if she had such merchandise, and she said, “Yes;” and on asking her if she had a consular invoice covering the merchandise she said she had. She thereupon handed the deputy collector the consular invoice, and upon being asked whether it covered all the merchandise in the trunk she answered, “Yes.” Thereupon, in her presence, the deputy collector wrote upon the baggage declaration the following words: “Send one trunk containing mdse., value 6,940.90 fes., to P. S.” He did not ask her whether the footing of the consular invoice was correct -or not. Thereupon he returned both the declaration and the invoice to the claimant, and the trunk was ordered to the public stores. The consular invoice was regular in form, but understated ibe price of the costumes in .the trunk nearly ouc-lmlf. Before anything further had been done towards the entry of the trunk, which was detained at the public stores, the attorneys for the claimant wrote to the Treasury .Solicitor that ttie invoice which had been taken out to accompany the trunk did not correctly state the purchase price of some of the items in it and that the claimant did not wish to make entry upon such invoice. The letter then gave new values to many of the items in the invoice, correcting the old ones. Upon receipt of the letter the trunk was seized, and the question now arises as to whether its contents was forfeited because the claimant had made a misstatement in regard to its entry.</p>

<p>1. Customs Duties (§ 82*)—Protest—Essentials.</p> <p>While alternative grounds of dissatisfaction may properly be stated in protests against decisions by collectors- of customs, this rule does not permit the enumeration of a long list-of paragraphs, many of which are entirely remote, with the purpose' of covering everything. Under the provision in Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 (U. S. Comp. St. Supp. 1909, p. 820), that protests shall s$t forth “distinctly and specifically” the importers’ grounds of objections, it is not enough that-the provision ultimately relied upon can be found somewhere in the protest.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 198; Dec. Dig. § 82.*]</p> <p>2. Customs Duties (§ 32*)—Multifarious Protests—“Distinctly and Specifically.”</p> <p>Protests each covering 24 separate provisions of the tariff, which carry about 50 different rates of duty, are invalid, as not setting forth the importers’ objections “distinctly and specifically,” within the intent of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 (U. S. Comp. St. Snpp. 1909, p. 820).</p> <p>[Kd. Note.—For other cases, see Customs Duties, Dec. Dig. § 82.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2131, 2132; vol. 7, p. 0599. j</p>

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

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York. Bill by the Crown Cork & Seal Company of Baltimore City against the Brooklyn Bottle Stopper Company and others.</p>

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

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

<p>Appeal from the District 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 Southern District of Alabama.</p>

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi.’</p>

<p>In Error to tbe Circuit Court of the United States for the Western District of New York. Application of the United Wrapping Machine Company for a writ of mandamus against Henry C. Stimson.</p>

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

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