Volume 176 — Federal Reporter

<p>1. Master and Servant (§ 194*) — Risks Assumed by Servant — Negligence of Fellow Servant — Termination of Relation.</p> <p>The implied contract of a servant to assume the ordinary risks of the service, including tlie risk of negligence on the part of fellow servants, does not end the moment the servant finishes his day’s work, but continues until he ceases to be affected by such conditions and risks.</p> <p>(Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 383, 884 ; Dec. Dig. § 194.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. y. Hennessey, 38 C. O. A. 314.]</p> <p>2. Master and Servant (§ 194*) — Rusks Assumed by Servant — Negligence of Fellow Servant — Termination of Relax ton.</p> <p>Plaintiff was employed by defendant by the day in the construction of a building. After finishing a day’s work, he went to a shed on the premises to get: his coat, which he had left therein, and, finding it locked, he proceeded to defendant’s office' for a key, and after he again reached the shed, and while the door was being unlocked, be was struck and injured by a X>iece of rock thrown by a blast through the negligence of another employe of defendant. Held, that he was still defendant’s servant, and a fellow servant of the one whose negligence caused his injury, and could not recover from defendant therefor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 383-384: Dee. Dig. § 194.*]</p>

<p>MASTER AND SERVANT (§ 243*) — MASTER’S LIABILITY FOR INJURY TO SERVANT— Railroad Yards — Contributory Negligence.</p> <p>Plaintiff’s intestate, who was a car inspector employed by defendant railroad company in its yards, went between two cars of a train being made up in the yards to couple the air hose, when the engine backed other cars against those so standing, and he was run over and killed. lie was an experienced inspector, and knew that the rules of the company prohibited him from going between the cars until the train was fully made up, and such train was not due to leave for an hour and a half. He could also have seen the approaching engine if he had looked.- Held, that he was chargeable with contributory negligence as a matter of law, and there could be no recovery from defendant for his death.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 766-771; Dec. Dig. § 243.*]</p> <p>Shelby, Circuit Judge, dissen cing.</p>

Action by C. C. Marbury and Mrs. C. C. Marbury against the Illinois Central Railroad Company and! the Pullman Company. Judgment for plaintiffs, and both parties bring error. This suit was brought in the circuit court of Shelby county, Tenn., by William Messick and Mrs. Mary Messick, his wife, against the Illinois Central Railroad and the Pullman Company, to recover damages for alleged negligence. On petition of defendants the case was removed to the court below.

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Action by the Frank Unnewehr Company against the Standard Fife & Accident Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by the Underground Electric Railways Company of London, Limited, against Louis P. Owsley, executor, and others. From an order appointing a receiver, Mary Adelaide Yerkes, defendant, appeals. Appeal from orders of the Circuit Court, Southern District of New York, appointing a receiver of the property situated within said district of Charles T. Yerbes, late of Chicago, Ill., deceased.

Northern District of Ohio. Action by the-El Paso Cattle Company against Oliver M. Stafford and another. Judgment for defendants, and plaintiff brings error. The El Paso .Cattle Company, a Nebraska corporation, brought this action in the court below against Oliver M. Stafford, a citizen of Ohio and resident of Cleveland, and the Broadway Savings and Loan Company, an Ohio corporation.

Action by Leon Thomasino, administrator, against the Republic Iron & Steel Company. Judgment for plaintiff, and defendant brings error. This action was brought by Leon Thomasino, hereinafter styled “plaintiff,” as administrator of the estate of Tony Thomasino, against the Republic Iron & Steel Company, hereinafter styled “defendant,” claiming $20,000 damages for the killing of plaintiff's intestate.

<p> (Syllabus by tho Court.) </p> <p>1. MASTER AND SERVANT (§ 205*) — NEGLIGENCE — ASSUMPTION OF RISK — RELIANCE on Care of Master.</p> <p>It is the duty of the master to exercise ordinary care to provide a reasonably sa/e place for the servant to work and reasonably safe appliances for him to use, and unless he knows, or the fact is obvious, that this duty has not. been discharged by the master, he may assume that it has been, and may recover for any injury resulting from the failure to discharge it.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. §§ 517-519; Dec. Dig. § 205.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 311. j</p> <p>2. Master and Servant (§ 226*) — Assumption of Risk — Negligence of Master.</p> <p>But the servant assumes all the ordinary risks and dangers of the employment upon which he enters and in which he continues without complaint, including those resulting from the negligence of his master which are known and appreciated by him and those which would have been known and appreciated by a person of ordinary prudence and care in his situation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 662; Doc. Dig. § 226.*]</p> <p>S. Master and Servant (§ 219*) — Assumption of Risk — Appreciation of Danger — Obvious Dangers.</p> <p>A servant cannot be heard to say that he did not appreciate or realize the danger where the detect from the negligence of the master ivas obvious and the danger from it would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ CIO-(¡24: Dec. Dig. § 239.*]</p> <p>4, Master and Servant (§ 217*) — Inj ury to Servant — Assumption of Risk.</p> <p>The plaintiff below, an employe of the defendant, had for two years been and ivas a skimmer, one of whose duties was to skim or rake Hie slag from the molten metal in the converter. As he stood before the mouth of the converter to skim the metal, an explosion occurred in the clay lining of the converter, which threw the molten metal out of the mouth of the converter upon him, and burned him. He recovered a judgment against the defendant for negligence, in that it. used coal mixed with the droppings from the grates of the reverberatory furnaces to dry the clay lining in this convertor. For three months before the accident the plaintiff had used converters dried with this mixed fuel, and had subjected them to the test of the molten metal. The plaintiff knew that, if moisture remained in the clay lining and the molten metal came in contact with it, there might be an explosion; that the defendant bad used this, mixed fuel to dry the converters, and that it used it to dry this converter; that there had been explosions in converters dried by the use of this fuel; that, if an explosion occurred while he stood in front of the mouth of the converter, it might' throw the molten metal out the mouth upon him and injure him. Nevertheless he remained in the employment of the defendant without complaint.</p> <p>Held, the plaintiff assumed the risk and danger from the use of the mixed fuel to dry the converters, and he could not recover.</p> <p>[Eld. Note. — For other cases, see Master and Servant, Cent. Dig. § 595; Dec.' Dig. § 217.*]</p> <p>Diner, District Judge, dissenting.</p>

Bill of interpleader by the State Life Insurance Company of Indian-apol.is, Ind., against C. D. Frink, Mrs. C. D. Frink, and Jessie M. Jewell. Decree awarding the fund paid into court by complainant to Mrs. C. D. Frink, and defendant Jessie M. Jewell appeals.

<p>Evidence (§ 106*) — Titus—IIecitai.s in Deed — Evidence ov Ciiabacteb of Gbantob.</p> <p>In an action of trespass to try title, where the record title was in plaintiffs’ ancestor, and defendants claimed through a deed from one since deceased, who was a stranger to such title, but whose deed recited that the land had been conveyed to him by plaintiffs’ ancestor by deed of a certain date, evidence of the general good character and reputation for truth and veracity of such grantor is not admissible in support of sücíi recital',' nor is evidence of the character and- habits of plaintiffs’ ancestor.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 183; Dee. Dig. §' 106.*]</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by the Fries-Breslin Company against William Bergen and John A. Snyder. Judgment for defendants (168 Fed. 360), and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by Peter McFarlane against E. A. Wadhams. Judgment for defendant (165 Fed. 987), and plaintiff brings error.</p> <p>Plaintiff in error, hereinafter termed plaintiff, a citizen and resident of the state of Colorado, brought this action against defendant in error, hereinafter termed defendant, doing business as a sole trader under the name and style of McFarlane & Co., a citizen and resident of the state of Wisconsin, to recover a balance cine for the iron work for a stamp mill made for and delivered to the Milwaukee Leasing Company at Denver, Oolo. The allegations of the complaint are as follows, viz.:</p> <p>On May 5, 1!)0G, plaintiff, on request of one Tarbet, general superintendent of said .Milwaukee Leasing Company, theretofore, preferred, made by letter to said Tarbet, as such superintendent, a proposition to supply the iron work for n 20-stamp long-drop, Gilpin county type mill, at a cost of 82,930, f. o. b. cars at Denver, Colo. Thereafter, and oil May 14, 1900, the defendant, who was at Hie'time one of the principal officers and the principal stockholder of said Milwaukee Leasing Company, telegraphed plaintiff: “Commence work on the stamp mills as per specifications.” On the same day defendant wrote plaintiff from Milwaukee, Wis.: “I wired to-day to commence work on the stamp mills. This refers to the 20 stamps according to the specifications sent Mr. Tarbet.” On May 17th thereafter plaintiff sent the following letter to Tarbet at Milford, Utah, at which place said Milwaukee Leasing Company was engaged in the mining business, viz.:</p> <p>“Dear Sir: We received on the 14th a telegram from Mr. E. A. Wadhams to commence work on mill, which we immediately did. To-day we got Mr. Wad-hams’ letter confirming the telegram, and we are now hard at work filling the order and hope to ship within the specified time. In a few days we will have foundation plans, ready for mailing to you. In regard to payments, there has been nothing said thus far about that part of it, and 1 ask you to kindly write me and state how you would like to meet them. We would prefer to have some one man of your company, yourself or Mr. Wadhams, to become personally responsible. We ask this because we do not know anything about your organization or company; but we will await your letter of advice in regard to this before saying anything to Mr. Wadhams.</p> <p>“Very truly yours, Mclfarlane & Co.”</p> <p>To this letter the defendant, on May 20, 1900, writing from Milwaukee, replied as follows, viz.:</p> <p>“Gentlemen: I am in receipt of your letter of May 17th, to Mr. Tarbet, at Milford. I note your remarks in regard to payment. The mill we purchased of the Power Mining Mach’y Co. we paid for some few weeks after the mill was in operation; i. e., two or three. We imagine that payments in that time for your mill would be satisfactory. I will say that X will personally guarantee the payment of this bill by the Milwaukee Leasing Company. Trusting this will be satisfactory and that you will make as early shipment as possible, X remain. Yours truly, R A. Wadhams.</p> <p>“K A. W. — 1.”</p> <p>Thereafter, on May 28, 1906, the plaintiff sent to defendant, at Milwaukee, Wis., The following letter, viz.:</p> <p>“Dear Sir: We have yours of the 2(51 h inst. in regard to the payments of your 20-stamp mill for Milford. We will say in ready that we note that you will personally guarantee the payments on contract, and we thank you for that favor; hut we think the time you require is too long, as it may take from two to three months to erect the mill ready to run after it is on the ground. We do not object seriously to your proposition, but we think we are entitled to 81,000 on account on receipt by you of invoice and bill of lading showing whole shipment. Trusting you may see your way clear to pay us that $1,000 at that time, we are,</p> <p>“Very truly yours, McFarlane & Co.”</p> <p>The receiirt by the respective i>arties hereto, resi>ectively, of the telegram and letters above set out in due course of mail, is conceded. The complaint further alleges that the guaranty of defendant so made was accepted. It further alleges on information and belief that the contract so made was a Colorado contract; that, whether a Colorado or a Wisconsin contract of guaranty, it was valid. It is further stated that thereafter, and in pursuance of the said order and guaranty so made by defendant, plaintiff manufactured and delivered said iron work to the Milwaukee Leasing Company as agreed, and thereafter, on or about July 1, 1906, sent (o defendant an invoice or bill for said sum of $2,930 as per his contract; that on July 14, 1906. defendant wrote to plaintiff acknowledging the receipt of the letter last named and saying: “1 received a letter from Mr. Tarbet saying the mill has arrived and apparently all right. As soon as he checks up, will either send you some money on account, or send you paper you can use; possibly both.” It is further alleged that thereafter, on September 12, 1906, the defendant wrote plaintiff inclosing a check or draft for $175, being $430 on account of the purchase price and $45 interest, and two notes, signed by said Milwaukee Leasing Company, each indorsed by defendant, one for $1,000 for three months, and the other for $1,500 for four months. It is further alleged that said notes were respectively renewed froba time to time; that the last renewal of the $1,000 note was under date of March 15, 1907, and of the $1,500 note, on January 15, 1907; that neither of said notes, nor any part thereof, has been paid; that there is now due and owing on the purchase price for said machinery, the sum of $2,500, with interest on said $1,000 from March 15, 1907, and on said $1,500, from January 15, 1907; and that payment thereof has been demanded and refused. Wherefore he brings suit, etc.</p> <p>To this complaint defendant filed his demurrer, which was sustained by the Circuit Court. No amendment having been made to the complaint, the same was on November 4, 1908, on defendant’s motion, dismissed, and judgment for costs rendered. Whereupon, in due season, plaintiff sued but the writ of error upon which said cause is now before this court. The only error assigned is that the court erred in sustaining the demurrer.</p>

Bill by H. O. Tuttle and others, partners as Tuttle Bros. & Bruce, ' against the City of Cedar Rapids, Iowa, the Cedar Rapids Savings Bank, and J. M. Dinwiddie. Decree for defendants, and complainants appeal.

<p>Appeal from the District Court of the United States for the District of Nebraska.</p> <p>In the matter of the bankruptcy of the Hansen Mercantile Company. From an allowance of claim of the German Bank of Tilden, of Tilden, Neb., Burt Mapes, trustee in bankruptcy, appeals.</p>

<p>Bankruptcy (§ 96*) — Administration of Estates — Consoutdation of Proceedings.</p> <p>Bankruptcy proceedings ¡¡gainst a partnership and Us members may properly be consolidated with those against a- corporation which is entirely owned by one of the partners, in the interest of economy of administration.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 96.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida.</p> <p>Suit in admiralty by Thomas Sawyer and others for salvage services. Decree for libelants, and James Fountain, claimant, appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida.</p> <p>Suit in rem in admiralty by the Gulf Refining Company to enforce a statutory lien. Decree for libelant, and claimant, James McKay, appeals.</p>

Petition to Review Order of the District Court-of the United States for the Southern District of New York. In the matter of Isaac Kaufman, bankrupt.

<p>Appeal from the Circuit Court o E the United States for the Southern District of New York.</p> <p>Appeal from a decision (166 Fed. 1011) of the Circuit Court, Southern District of New York, in a customs case. The importation in question is refined cocoanut oil. The importers in their protest claimed that it was entitled to free entry as “cocoanut oil,” under Tariff Act July 24, 1897, c. 11, § 2, Free Fist, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685). The collector assessed it for duty under section 1, Schedule G, par. 282, of said act (30 Stat. 172 [U. S. Comp. St. 1901, p. 1652]), which reads as follows:</p> <p>“Cocoa butter or cocoa butterine, three and one-half cents per pound.”</p> <p>The Board of General Appraisers affirmed the action of the collector, and the Circuit Court affirmed the Board. The importers appeal.</p>

Suit in equity by the E. L. Watrous Manufacturing Company against the American Hardware Manufacturing Company. Decree for defendant (161 Fed. 362), and complainant appeals. The bill in the court below was to restrain the infringement of letters patent No. 652,828, issued to Herbert D. Bailey, July 3, 1900, for an improvement in door checks and closers. Upon hearing, the bill was dismissed for want of equity. The facts are stated in the opinion.

<p>Patents (§ 828*) — Infbingement—Eyeglasses.</p> <p>The Pinch patent, No. G(>0,928, for eyeglasses, construed, and held not infringed.</p>

Suit in equity by the Alliance Machine Company against the Morgan Engineering Company. Decree for complainant, and defendant appeals. This suit was brought by the Alliance Machine Company, assignee of one George W. Shem, to obtain relief against alleged infringement by the Morgan Engineering Company of patent No. 791,951, granted by the United States March 17, 1905, to Shem for certain improvements in cranes.

<p>1. Criminal Daw (§ 89*) — Nature and Elements op Crime —Offenses Against United States.</p> <p>There are no common-law offenses against the United States, and the courts of the United States have onij- such jurisdiction as Congr-s?, has conferred on them to try and punish such acts as it shall have previously declared to be crimes and fixed the penalty therefor.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 128; Dec. Dig. § 89.*]</p> <p>2. Criminal Daw (§ 60*) — Aiders and Abettors in Misdemeanors — Prosecution as Principals.</p> <p>. The rule that all persons concerned in the commission of misdemeanors if guilty are guilty as principals, and may be indicted, tried and convicted as such, is applicable to statutory misdemeanors, whether the aiders and abettors are referred to in the statute or not.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 74; Dec. Dig. § 59.*]</p> <p>3. Carriers (§ 38*) — Interstate Commerce Daw — Offenses — Use op Free Pass. ,</p> <p>Under Interstate Commerce Act June 29, 3906. c. 3593, § 3, 34 Stat. 5S4, as amended by Act April 33, 1908, c. 143, 35 Stat. 60 (U. S. Comp. St. .Shipp. 1900. p. 1151). which inaltes It a misdemeanor for any common carrier subject to its provisions to issue any free ticket, free pass, or free transportation for "passengers, except to persons therein excepted, and further provides that “any person other than the persons excepted in this provision who uses any such interstate free ticket, free pass or free.transportation shall be subject to a like penalty,’" one who. having in his possession an interstate free ticket or pass issued by a railroad company, sells it to ¡mother, knowing that he is’ not the person named therein, and is not entitled to ride thereon, with intent that he shall so use it, which dio does by riding free on an interstate journey, is guilty of using the ticket in violation of the statute.</p> <p>[Kd. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p>

<p>1. Railroads (§ 254*) — Safety Appliance Act — Construction—Use op Power Brakes.</p> <p>The provision of the Safety Appliance Act of March 2, 1893, c. 196, § 1, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), requiring all- railroad trains used in interstate traffic to have a sufficient number of cars equipped with power or train brakes so that the engineer can control their speed without requiring brakemen to use the hand brake for that purpose, as amended by Act March 2, 1903, c. 976, § 2, 32 Stat. 943 (U. S. Comp. St. Supp. 1909, p. 1144), fixing 50 per cent, of the cars in each train as the minimum number which must be so equipped, which number was increased to 75 per cent, by order of the Interstate Commerce Commission, cannot be construed to prohibit the use of hand brakes, and evidence that under a general order of a railroad company brakemen wore required to set hand, brakes on trains while going- down a certain grade as a precaution against accidents is not sufficient to establish a violation of the statute, there being no claim or evidence that the required percentage of cars were not equipped with power brakes.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 251.*]</p> <p>2. Rateroads (§ 229*) — Safety Appliaxce Act — OoNSTinrcTiox—Use of Power Brakes.</p> <p>The Safety Appliance Act of March 2, 1903, c. 976, § 2, 32 Stat. 943 (IT. S. <’omp. St. Supp. 1909, p. 1144), providing that at least 50 per cent, of the cars in every train shall have their brakes used and operated by the engineer, and that “all power braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated,” is not violated where the required percentage of cars in a train are equipped with power brakes which are used because the train also contains other ears so ('quipped, but, the brakes of which are out of repair and cannot be operated, and are therefore cut out.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p>

Bill by the Allen-West Commission Company against W. M. Brash-ear and others. On demurrer to the jurisdiction.

<p> (Syllabus by the Judge.) </p> <p>Collision (§ 45*)-Signal and Tow.</p> <p>Collision between tlie tug Nanuet and a carfloat in tow alongside and the schooner Honora Butler in tlie East River near Corlear’s Hook. The schooner was duly lighted and sailing up the river: The tug was bound down with two carfloats on her starboard side. Tfehl, that the schooner kept her course and the collision was due to the lug’s fault in not seeing the lights of the schooner and in failing to avoid her.</p> <p>[Ed. Not e. — For other eases, see Collision, Cent. I)ig.'§ 51; Dec. Dig. § 45.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The Board of General Appraisers overruled the protest of the importers against the assessment of duty by the collector of customs at the port of Port Townsend. The Board’s opinion reads as follows: WAITE, General Appraiser.

On Application for Review of a Decision of the Board of United States General Appraisers. The opinion filed by the Board of General Appraisers reads as follows: WAITE, General Appraiser. This protest claims that certain rice, assessed for duty by the collector as cleaned rice, at 2 cents per pound, under Tariff Act .Inly 24, 1897, c. 11, § 1, Schedule G, par. 232, 30 Stat. 169 (U. S. Comp.

<p>1. Master and Servant (§ 250*) — Federal Employer's Liability Act-Scope and Eeeec.t.</p> <p>Where the petition of an employe in an action against a railroad company to recover for a persona) injury alleges facts which bring the case within the federal employer’s liability act (Act April 22, 1008, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1900, p. 1171]), it is governed by such aet, whether specifically declared on or not, at least in the federal courts.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 250.*]</p> <p>2. Courts (§ 270*) — Federal Courts — District oe Suit.</p> <p>Where an action is within the general jurisdiction of the federal courts, both on the ground of diversity of citizenship and because founded on a law of the United States, such action can be brought only in the district of which defendant is an inhabitant, under the judiciary act (Act March 3, 1887, e. 373, § 1, 24 Stat. 552, as amended by Act Aug. 13, 1888» c. 866, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 50S]), which authorizes the bringing of a suit in the district of the residence of either the plaintiff or defendant when jurisdiction is founded “only” on diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § S10; Dec. Dig. § 270.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>In this case the importer sought 'to reverse a decision by the Board of Appraisers that had affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported under the tariff act of 1897. The Board’s opinion, by Waite, General Appraiser, reads ip. part as follows:</p> <p>“The commodity is known as modeling clay. It is used by artists and others engaged in plastic work, for making busts and models. The chemist reports that it contains 00.30 per cent of sulphur and 31.12 per cent of fatty anhydri-des, with a small amount of each of the following ingredients: Unsaponifiable oil, zinc oxide combined, zinc oxide free, insoluable siliceous matter, and color. The report further states that the presence of clay cannot be demonstrated. * * * xhe fact that the substance is very high in price would indicate that it is not properly classifiable as ‘clay.’ * * * The testimony and invoices show that the cost in the country from which it is exported is over $150 per ton.”</p>

<p>In Equity. Suit by the American Telephone & Telegraph Company against the Town of New Decatur. On motion for preliminary injunction.</p>

In Bankruptcy. In the matter of Penny & Anderson, bankrupts. Held: “The case at bar bears no resemblance in its facts to the case just cited. There was no 'valid disposition of the property in the case before us or any valid lien. The so-called warehouse receipts, issued by -the warehousing company, upon the facts Of this case give no lien under the law in Wisconsin, in which state they were issued.

<p>In Equity. Suit by Clifford G. Ludvigli, trustee in bankruptcy of P. Horowitz & Son, ag'ainst American Woolen Company and Niagara Woolen Company. On final hearing. Decree for complainant.</p>

<p>Suit in admiralty by Eugenio Fortuna against the steamship Susquehanna. Decree dismissing libel.</p>

<p>Pee,iuky (§ 6*)- — Proceeding in Which Oath Was Administered — Special Commissioner Aptointed in Bankruptcy Proceeding.</p> <p>Under Bankr. Act July 1, 188-8, e. 541, § 21a, 80 Stat. 552 (U: S. Comp. St. 1801, p. 3480), which authorizes a court of bankruptcy by order to require any designated person to- be examined in court, it may, as a court of equity, appoint a special commissioner to conduct such examination, and, where such an appointment was made prior to adjudication to examine a designated witness respecting transfers of property by the bankrupt, his powers were not suspended by an order referring the case generally to a referee after adjudication, and an indictment for perjury against the witness may be predicated of false testimony given by him before such special commissioner.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent Dig. §§ 7-17; Dec. Dig. § 6.*]</p>

<p>1. BANKRUPTCY (8 242*) — • PROSECUTION OP BANKRUPT FOR PERJURY — TESTIMONY Given on Examination.</p> <p>The immunity given by Bankr. Act July 1, 1898, c. 541, § 7a (9), 30 Stat. 548 (U. S. Comp. St. 1901, p. 3425), which provides that no testimony given by a bankrupt on his examination concerning the conduct of his business, etc., “shall be offered in evidence against him in any criminal proceeding’’ extends only to criminal proceedings based on matters relating to which he testified, and does not protect him from the use of his testimony in support of a charge of perjury committed in the bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 242.*]</p> <p>2. Bankruptcy (§ 242*) — Prosecution of Bankrupt for Perjury —Pleadings.</p> <p>Rev. St. § 860 (U. S. Comp. St. 1901, p. 661), providing that “no pleading of a party * * * shall be given in evidence or in any manner used against him * * * in any criminal proceeding; provided that this immunity shall not exempt any party or witness from prosecution for perjury committed in * * * testifying,” does not render it unlawful to use the pleadings in a bankruptcy proceeding, such as the petition, schedules, etc., before a grand jury in an investigation of the charge that he committed perjury in his testimony before a special master on an application for his discharge, for the purpose of showing the pendency of the proceeding, and that the matter in which he testified was properly before the master.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 242.*]</p>

<p>Coi.t.isiox (§ 122*) — Moohed and Moving Vessei^ — Pkesumption of Fatji.t.</p> <p>Where a lighter, engaged in raising a tug which had sunk at a wharf, and to which one end of a lino passed under (he tug was made fast, was so placed as to be in the way of vessels brought to the wharf, and two tugs, employed to dock a schooner, shoved her against the lighter, causing (lie sunken tug, which had heen partly raised, to drop back, the happening of the accident under snch circumstances was not of itself evidence of fault on the part of the tugs; and, in the absence of evidence that they failed to exercise ordinary care and skill, 'they cannot be Mid liable therefor.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 257; Dec. Dig. § 122.*]</p>

<p>In Equity. Suit by William L. Bidwell and another against W. A. Huff and others. On objections to the report of commissioners pray-7 ing for the confirmation of a judicial sale.</p>

<p>In Equity. Suit by the Parsons Non-Skid Company, Eimited, and' others against the E. J. Willis Company. On motions.</p>

<p>1. Bankruptcy (§ 410*) — Discharge—Time fob Entering Aepearance in Opposition — Power of Court to Extend.</p> <p>T’nder General Orders in Bankruptcy No. 32 (89 Fed. xiii, 32 C. C. A. xxxi), which provides that “a creditor opposing the application of a bankrupt for his discharge * * * shall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file a specification in writing of the grounds of his opposition within ten days thereafter, unless the time shall be enlarged by special order of the judge.” the judge may, in his discretion, extend the time for entering an appearance as well as for filing the specification, and may do so after the time has exi>ired, as well as before.</p> <p>FEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712, 713; Dec. Dig. § 413.*]</p> <p>2. Bankruptcy (§ 4*) — Construction of Act — Following Construction of Prior Aot.</p> <p>Where provisions of the bankruptcy act of 1867 (Act March 2, 1867, e. 176, 14 Stat. 517) or of the general orders for carrying it into effect were construed by the courts, a court is justified in giving the same construction to similar provisions in the present act or orders.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 3, 4; Dec. Dig. § 4.*]</p>

Suit in equity by the Rosario Mining & Milling Company against C. W. Clark and others. Decree for complainant, and defendant Clark appeals.

<p>Bankruptcy (§ 288*) — Summary Proceedings by Trustee — Jurisdiction op Bankruptcy Court — Adverse Claim.</p> <p>A court of bankruptcy is without jurisdiction of a proceeding by a trustee to recover property from an adverse claimant, who holds the legal title and possession and asserts his sole ov/nership, and who does not consent to the jurisdiction.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 288.*]</p>

<p>1. Judgment (§ 829*) — Collateral Attack — Judgment in Rem.</p> <p>A decree of a federal court, establishing a lien on a fund, cannot be collaterally attacked by a suit in a state court, in which the complainant asks to be adjudged owner of the fund.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1510-1515; Dee. Dig. § 829.*]</p> <p>2. Courts (§ 498*) — Suit in Contempt of Federal Court — Dismissal.</p> <p>A decree was entered by a Circuit Court of the United States, on a mandate from the Supreme Court, adjudging a lien on a f«nd. in the hands of an ancillary administrator. Complainants, claiming an interest in such fund, during the same term at which the decree was entered, and while it was still under control of the court, instituted suits in a state court, asking that they be adjudged owners of the fund to the exclusion of the complainant in the decree, who as a defendant removed such suits into the Circuit Court. Held,, that such court properly took jurisdiction and dismissed the suits, as in contempt of its decree and an attempt to interfere with its execution.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 493.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Zenas Crane Rennie against the Mutual Life Insurance Company of New York. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Estoppel (§ 3*) — Matter op Record — Allegations in Pleadings.</p> <p>An allegation in a bill in equity that defendant had attached and levied upon “all the property of every kind and character” owned by a corporation estops the complainant to claim in subsequent litigation between the same parties that certain property of the corporation was not covered 'by such levy and a sale made thereunder.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 2-5, 7; Dec. Dig. § 3.*]</p> <p>2. Attachment (§ 183*) — Lien—Merger in Judgment.</p> <p>Under Rev. Codes Mont. § 6807, which provides that judgments of the district courts shall be liens on all of the real property of the judgment debtor for six years after‘their rendition, the lien of an attachment is merged in that of the judgment recovered in the action, which continues and may be enforced by execution and levy against any of the realty of the defendant, whether covered by the attachment or not, at any time within six years, but not afterward; and such statute also applies to judgments of federal courts within the state, by virtue of Act Aug. 1, 1888, c. 729, § 1, 25 Stat. 357 (U. S. Comp. St. 1901, p. 701), which provides that such judgments shall be liens throughout the state in the same manner and to the same extent as those of the state courts of general jurisdiction.</p> <p>[Ed. Note. — For other cases, see Attachment, Dec. Dig. § 183.*]</p>

<p>1. Master and Servant (§ 288*) — Master’s Liability jtor Injury to Servant —Assumption of Risk.</p> <p>A coal miner, directed by his employer to operate an engine about which he had no knowledge or experience and was given no instruction, cannot be held as matter of law to have assumed ihe risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 10G8-1088; Dec. Dig. § 288.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Master and Servant (§§ 153, 28S, 289*) — Master’s Liability por Injury to Servant — Action—Questions por Jury.</p> <p>Plaintiff, who was a coal miner employed by defendant in its mine, was directed by bis superior to go and operate an electrical engine used to draw cars up an incline. There was gearing on either side of the place where he stood in operating the engine, within one or. two feet, wholly unguarded, and he was required to lieep his foot on a brake which vibrated with the action of the engine. His foot slipped from the brake, and he fell against the gearing and was injured. He had no experience in running the engine, and was given no instruction. Held, that defendant was chargeable with breach of duty in setting him at such work without instruction, and that, while the gearing could be seen and the danger therefrom was apparent if a person fell into it, the questions of assumption of risk and contributory negligence were properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314-317, 1008-1132; Dec. Dig. §§ 153, 288, 289.*]</p>

Action by Josephine Janoski, in her own behalf and as guardian ad litem of Agnes Janoski, a minor, against the Northwestern Improvement Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Northern District of New York.</p> <p>Action by the Gloversville Silk Mills against Cimbel Bros. Judgment for plaintiff, and defendant brings error.</p> <p>The defendant in error, which was plaintiff in the court below and will hereinafter be so designated, is a New York corporation engaged in the manufao-ture of silk gloves and located at Gloversville, N. Y. The plaintiff in error, which will hereinafter be called the defendant, is a Pennsylvania corporation engaged in the operation of a large department store in Philadelphia. This action was brought to recover the price of a quantity of silk gloves alleged to have been manufactured by the plaintiff upon the order of the defendant, and duly shipped to, but not paid for by, the latter. The defendant denied that the gloves in question had been ordered by it, and set up, imrticularly, that there, was a regulation of its business, of which the plaintiff' had knowledge, that no order should be valid unless confirmed by its registration bureau and that any order accepted in disregard of such regulation should be at the seller’s risk. The action was tried before a -jury, and a verdict rendered for the plaintiff. The defendant has brought this writ of error. Other material facts are stated in the opinion.</p>

Suit in equity by the American Central Insurance Company of St. Louis against Scruggs & Echols and others. Decree for complainant, and defendants Scruggs & Echols appeal. This suit was brought in the court below by the appellee, a Missouri corporation, against the appellants, citizens of Alabama, and three fire insurance companies.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>In Equity. Suit by S. M. Scott against Lawrence Eabaclier and others. Decree for defendants, and complainant appeals.</p>

<p>In Error to the Circuit Court'of the United States for the District Of Minnesota.</p> <p>Action between the Chicago Great Western Railway Company against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From the judgment the Chicago Great Western Railway Company brings error.</p>

<p>1. Courts (§ 372*) — Federal Courts — Authority of State Decisions — Questions of General Law.</p> <p>In the absence of a state statute governing the subject, the question of the liability of an employer for an injury to an employé is one of general law. as to which the federal courts are not bound by the decisions of the state courts.</p> <p>FKd. Note. — For oilier eases, see Courts, Dec. Dig. § 372.*</p> <p>State laws as rules of decisions in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.1</p> <p>2. Master and Servant (§ 191*) — Master’s Liability for Injury to Servant — Neoi.jcusnco? of Fellow Servant.</p> <p>It is the settled rule in the federal courts that an employer is not liable for an injury to an employé occasioned by the negligence of another employe engaged in the same general undertaking, and it is not necessary to the application of this rule that an employé should be engaged in the same operation or particular work; but it is sufficient if the two are in the employment of the same master and engaged in the same common enterprise, both performing duties tending to accomplish the same general purpose, although they may be in different departments. '</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §| 475-479; Doc. Dig. § 191.*</p> <p>Who are fellow servants, see notes to Northern Pac. Tl. Co. v. Smith, 8 C. C. A. 608; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>3. Master and Servant (g 185*) — Master’s Liability for Injury to Servant-Custom of Doing Work.</p> <p>In order that a custom of railroad employes to do work in a particular manner should be binding on the company, and render it liable for an injury resulting to another employé, the custom must have been known to if. or have been so general that its knowledge must be presumed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 185.*]</p> <p>4. Master and Servant (§ 185*) — Duty of Railroad Company — Operation of Road.</p> <p>While a railroad company owes a positive and nondelegable duty to its employes with respect to the construction and maintenance in proper repair of its cars, tracks, and other appliances, yet with respect to the operation of its road its duty extends no further than to exercise ordinary caro to provide a sufficient number of reasonably competent employés, make proper rules for their government, and exercise proper supervision over them, and when that has been done it is not liable for an injury to an employé in the operation of the road through the negligence of other employés in the operating department or their failure to observe the rules, notwithstanding such negligence makes the place unsafe to work in.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]</p> <p>5. Master and Servant (§ 198*) — Master’s Liability for Injury to Servant — Fellow Servants — Railroad Employes.</p> <p>Plaintiff was employed by defendant railroad company as signalman; his duty being to keep the boxes and appliances used in connection with its block signal system in good condition and repair. While working at such employment, at; a place on the outside of one of the tracks of defend-» ant’s double-track road, the baggageman on a rapidly moving train on the opposite track kicked a block of ice from the ear, and its momentum caused it to slide across the tracks -and strike and injure plaintiff. The ice was furnished by defendant for the use of a section crew,, and was put on the car by a station agent, who directed that it be kicked off at the crossing, as it was. Held, that plaintiff and the baggageman were fellow servants, and that,.in the absence of evidence that the station agent had authority from defendant to give the directions he did, or of a custom to so deliver the ice from the moving car so general as to be presumed to have been known to defendant, it was not liable for the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 198.*].</p>

In the matter of Walter Russell, bankrupt. On appeal by the Commercial Trust Company of New York from an order granting a discharge.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the Hobbs Manufacturing Company, against George E. Gooding and others. Complainant appeals from a decree dismissing an ancillary bill.</p>

<p>1. Counties (§ 101*) — County Tkeasubek — Bonds Taken mom. Deputies— Ohio Statutes.</p> <p>Rev. St. Ohio, § 1080, requires a county treasurer to give bond conditioned that he shall pay over according to law all public money which shall come into his hands. Section 1089 authorizes him to appoint one or more deputies, and provides that he “shall in all cases be liable and accountable for tlie proceedings and misconduct in office of his deputies.’' There is no provision, requiring bonds from deputies. Held, that a bond required by a county treasurer from a “deputy collector of taxes” ap-poinled by him, who was in legal effect a deputy treasurer, was not a public bond, but that the treasurer was personally the obligee, although the bond in terms ran to him as treasurer, and was entitled to sue or otherwise proceed thereon in his own name, either before or after the expiration of his term of office, and without regard to whether or not he had made good to the county the defalcation of the deputy for -which he sued for which he and his sureties on his own bond were liable.</p> <p>[líd. Note. — For other cases, see Counties, Dec. Dig. § 101.*]</p> <p>2. Bankruptcy (§ 810*) — Provable Debts — Fixed Liability.</p> <p>Bankrupt was surety on the bond given by a deputy collector of taxes in Ohio to the county treasurer for his individual protection, he being accountable and liable on his own bond for the taxes collected by his deputy. Prior to the bankruptcy, the deputy had become a defaulter by reason of the failure of a bank in which he deposited his collections. Held, that the liability of the bankrupt on the bond was not contingent, but was a fixed liability, provable against his estate, having been liquidated; that the fight of tlie treasurer as obligee in the bond to prove the claim was not affected by the pendency of an action at law on the bond, nor tlie fact that tlie public authorities had recovered a portion of the shortage from the receiver of the bank in which the fund was deposited, which went only in reduction of the claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § S1G.*]</p> <p>3. Counties (§ 08*) — County Treasurer — Bond Taken eroii Deputy-Breach or Condition.</p> <p>A county treasurer who was responsible on his bond for all taxes collected by himself or deputies and required by law to keep all public money in his office, appointed the cashier of a bank in a town at some distance from the county seat deputy collector of taxes for such town and the surrounding township, taking a bond from him conditioned that he should faithfully pay over to the treasurer all money collected by him. according to law. As collected, the tax money was deposited by the deputy in his bank in an account standing in the name of the treasurer, but with which he had nothing to do. having no passbook and making no checks thereon. In his own books he kept an account with the deputy, and on each settlement received payment from the deputy in cash and treasurer’s warrants taken up by the deputy or the bank. The appointment of such deputy collector was in accordance with a custom in existence before he became treasurer, and was apparently for the accommodation of taxpayers. Held, that the deposit of the money in the bank by the deputy was not a payment of the same to the treasurer within the meaning of the bond, but that it remained in the custody of the deputy, ■and he continued liable therefor oil his bond until it was actually paid over.</p> <p>[Ed. Note. — For other eases, see Counties, Dec. Dig. § 98.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of West Virginia, at Charleston.</p> <p>Action by Stuart Wood and others against Ballard Preston Browning and others. Judgment for defendants, and plaintiff Wood brings error.</p> <p>This action was instituted in the Circuit Court of the United States for the Southern District of West Virginia. The declaration contains three counts, in which Stuart Wood was the sole plaintiff in the first count, and George B. Harrison, Jr., and Martin Luther Kohler, trustees, and the said Stuart Wood were the plaintiffs in the other two counts. The said trustees suffered a non-suit, and the case was tried on the first count only. Of the original 12 defendants, the case was dismissed as to David Thomas Browning, Ballard Preston Browning, Jesse Van Burén Browning, John Lee Browning, Pheebe Browning. La Fayette Marshall Browning, and Sarah B. Browning; John L. Stafford filed a disclaimer as to any lands described in the declaration, except as to four tracts containing, respectively, 251 acres, 288 acres, 335% acres, and 127% acres; and Edgar P. Rucker, W. W. Hughes, and L. C. Anderson filed disclaimers as to any lands described in the declaration, except as to 5 tracts containing, respectively, 153 acres, 127% acres, 288 acres, 251 acres, and 100 acres. Edgar P. Rucker died, and the case was revived in the name of his sole devisee, Maude A. Rucker.</p> <p>The case was tried at the June term, 1908, of the court, and the jury found a verdict for the plaintiff (Stuart Wood) on the first count of the declaration against the defendant Mary F. Ghafin, and found a verdict in favor of the other 10 defendants, to wit: Ballard Preston Browning, Jesse Van Burén Browning. John L. Browning, Phoebe Browning, L. M. Browning, Sarah B. Browning, Maude A. Rucker, J. L. Stafford, W. W. Hughes, and L. G. Anderson. To this judgment in favor of said defendants the plaintiff (Stuart Wood) sued out a writ of error. The verdict of the jury in favor of the above-named 10 defendants involved the 4 tracts of land above mentioned, containing, respectively, 251 acres, 288 acres, 335% acres, and 127% acres, which were conveyed by two deeds from J. Cary Alderson, special commissioner, one dated July 21. 1900, to the defendant Ballard Preston Browning. and the other dated July 23, 1900, to the defendant John Lee Browning. The plaintiff in the lower court took the position that both he and the defendants claim title to these four tracts of land under a common source, and in support of this contention offered in evidence a deed dated Octobei 27, 1887, from John R. Browning and wife to John F. Keator, which deed was recorded in the county clerk’s office of Logan county, W. Va., on October 29, 1887, a deed dated March 23, 1888, from the said Keator and wife to the said Wood, and recorded in the said clerk’s office on April 2, 1888, a deed dated July 7, 1888, from the said John R. Browning and wife to Stuart Wood, recorded in said clerk’s office in Deed Book K, p. 175, and to further support this contention the plaintiff introduced part of a record in a chancery cause in the name of U. B. Buskirk y. John R, Browning et al., which was instituted in the circuit court of Logan county, W. Va., in 1893. The defendants also introduced certain portions of the record in said chancery cause in addition to those introduced by the plaintiff. From an inspection of those portions of the record in said chancery cause which were introduced by both the plaintiff and defendants and made a part of the record -in this'ease it appears that it was a suit instituted by TJ. B. Buskirk, a judgment creditor of the said John R. Browning, and was conducted as a general creditors’ suit for the purpose of subjecting all the lands owned by the said John R. Browning to the payment of various liens thereon set up in said suit. The record in this case shows that the second amended .bill in the said chancery cause was filed in 1896, and in this second amended bill it was alleged that John R. Browning was the owner of 2,240 acres of land and attempted to convey to John F. Keator the coal and minerals under a part of this land by deed dated the 27th of October, 1887, and that the said John F. Keator attempted to convey the same to Stuart Wood, and that the said Browning and wife attempted to convey it to Stuart Wood by deed dated July 7, 1888. To this second amended bill John F. Keator and Stuart Wood were made defendants, and it is insisted by' defendants that Keator and Wood were made defendants to this suit because of their claim to an interest in the lands of the said John R. Browning, which were.sought to be sold to satisfy the liens against the said John R. Browning. It appears that both John F. Keator and Stuart Wood were represented in said suit by counsel who accepted service of process for them. !</p> <p>It appearing that the object and scope of this suit was to ascertain the real estate then or formerly belonging to the said John R. Browning upon which the judgments against him were liens, and to subject the same to the payment of said liens, and it appearing from the pleadings that John R. Browning then owned and had formerly owned a large amount of real estate, upon which the judgments set up in the pleadings were liens, to the payment of which the lien creditors were entitled to subject the said lands, and it further appearing that the defendant, Stuart Wood," and John F. Keator, as well as other .defendants, might assert claims to part of said lands or interests therein, in conflict with the contention of the lien creditors, it was necessary to refer the cause to a commissioner to enable the court to pass upon these various questions; and accordingly by decree entered in said cause on the 6th day of May, 19Ó8, said cause was referred to J. M. Ghafin, one of the commissioners in chancery in said court, and he was directed to ascertain and report:</p> <p>“First. The amount of real estate owned by the said John R. Browning, its location, and his title thereto, and also the amount of real estate formerly owned by him, subject to the lien in the bill sét forth.</p> <p>“Second. All the liens on said real estate, or any part thereof, the holders of such liens, the amount due each, and the priorities thereof.</p> <p>“Third. Such other matters and things as may be required by any party in interest and deemed pertinent by said commissioner.”</p> <p>In accordance with the requirements of this decree, the commissioner reported as follows: “That, after a careful examination of the papers in said cause, and other evidence before him, he finds the following facts which he now represents to your honor, in the order required by said decree.”</p> <p>The commissioner then reported that John R. Browning “is the owner in fee simple of a tract of 251 acres, * * * and also a tract of 288 acres,” and that the said J. R. Browning on the 10th day of December, 1890, conveyed the 335%-acre tract to his daughter, Eliza Browning, and the 127%-acre tract to his son, John Lee Browning, and that the commissioner is unadvised as to whether or not the last two mentioned tracts of land are subject to the liens in the bill set forth.”</p> <p>On this report, is the following indorsement: “Retained in my office for ten (Jays for exceptions and none taken. J. M. Chaim, Commissioner.”</p> <p>These are the four tracts in controversy in this action.</p> <p>The commissioner's report was filed in the clerk’s office on July 21, 1800, and on May 3, 1897, the report was confirmed as to the first two mentioned tracts and the court held that the last two said mentioned tracts were also subject to said liens, and directed all four of these tracts, together with certain other lands, to be sold by a commissioner of the court to be appointed for the purpose. The report of J. Cary Aldersori, the commissioner who was appointed to make such sale, shows that the said lands were sold in accordance with the directions of said decree, and that 1?. P. Browning, being the highest bidder, became the purchaser of the 251 acres, 288 acres, and 335*4 acres, and that John Lee Browning, being the highest bidder, became the purchaser of the 127% acres. B. P. Browning was not a party to said chancery suit. By a decree entered October 29, 1897, the said report of sale was confirmed, and the said J. Cary Alderson, who was appointed commissioner of the court for the purpose, was directed to execute and deliver proper deeds conveying die said lands to the said purchasers; and, in accordance with said decree, the 251 acres, the 288 acres, and the 335% acres were conveyed by said commissioner to B. P. Browning by deed dated July 21, 1900, and the 127% acres to John Bee Browning by deed dated July 23, 1900.</p>

Suit in equity' by Mary Virginia Miller against the West Virginia Pulp & Paper Company and the West Virginia Spruce Dumber Company. Decree for complainant, and defendants appeal. This is an appeal from a decree of the Circuit Court of the United States for the Northern District of West Virginia. The subject-matter of this suit is an undivided s/it interest in 8,405 acres of timber land in Randolph county, W. Va.

<p>1. Collision (§ 70*) — Vessel at Piek — Necessity of Watchman.</p> <p>It is not negligence to leave a scow in a slip in New York Harbor, tied up to a pier, without a watchman; there being no custom to keep one in such ease.</p> <p>[Ed. Note. — For other eases, see Collision, Dec. Dig. § 70.*]</p> <p>2. Collision (§ 71*) — Oyektukning of Vessel at Piek — Negligence.</p> <p>A scow with a deck load of gravel, while lying in a slip in North River, became partially filled with water in the night, listed, dumped her load, and turned over, bouncing as she struck, so as to strike and injure another scow lying behind her. She was new and in good repair, and had lain there for four days, and there was sufficient depth of water in the slip. Held, that such facts did not disclose any negligence on the part of the owner which rendered her liable for the injury to the second vessel.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 71.*]</p> <p>NOTE. — Tlie following is the opinion of Hough, District Judge, in the court below:</p> <p>HOUGH, District Judge. This libel alleges “a cause of damage civil and maritime;” declares that the contact between the Streeter and the Guinan was a collision, and alleges that said collision arose 'because the Guinan was guilty of certain specified faults, which may all be disregarded, as being unproven, except the following: “Said barge (Guinan) was not in a sound and seaworthy condition, hut, on the contrary, was defective and leaky.” Eor purposes of argument it may be assumed that, when the Guinan moored in proximity to the Streeter, she was as matter of fact unseaworthy, in that she was then in such a condition of weakness as to be likely to develop an uncontrollable leak from slight and undiscoverable causes. But there is no evidence that this condition of the Guinan was either actually known to her master or owner, or that they or either of them had any reasonable cause to believe that such was the Guinan’s condition; on the contrary, the evidence is full that from her construction, age, and occupation, and every other fact known to or reasonably discoverable, by her owner, she ought to have been in sound, serviceable, and seaworthy condition.</p> <p>The claim of libelant, therefore, rests upon the proposition that, since the unexplained sinking of a vessel in her berth raises a presumption of unseaworthiness (Dupont v. Vance, 10 How. 162, 15 D. Ed. 581), damage to any one caused by such sinking is caused by negligence, and therefore recoverable in an action such as this. This position necessarily implies that an actual condition of unseaworthiness, not reasonably to be expected and not discoverable by any inspection- reasonably to be required, is either (1) a breach of the warranty of seaworthiness, or (2) in and of itself an act of negligence on the part of the owner. It may be assumed that unseaworthiness, however arising, and whether discoverable or not, is a breach of warranty; but no authority is produced to show that the shipowner warrants the seaworthiness of his vessel to the whole world, and not merely to those with whom he enters into some contractual relation. Such a doctrine seems to me irreconcilable with the plain meaning of the word “warranty.”</p> <p>The industry of counsel has produced no reported instance of so extraordinary an accident as this, and the case might well be disposed of by strictly observing the above outlined form of pleading. The cause is not alleged as one of warranty. It is sot fortli as one of negligence; and, by familiar rules, be that alleges negligence must prove it as a fact. The only thing proven is that the Gtiinan sank unexpectedly, without reasonable explanation from undis-corerabio causes. This raises presumption of nnsoaworthiness; but does it raise a presumption of negligenceV I think it does, because the sinking of a vessel in calm weather, to the injury of third parties, is one of those unusual circumstances, from its nature unexplainable by third parties, to which the ride “res ipsa loquitur” applies. The reasoning of Rose v. Stephens, etc., Co. (O. C.j 11 Fed. 438 (respecting the explosion of a boiler), seems to me wholly applicable.</p> <p>But the presumption so raised is rebuttable, and when it is shown, as it is here, that there was nothing about the Guiñan tending to show her unsea-worlhiness discoverable by an owner exercising due diligence, the presumption is rebutted: and when it is further shown (as it is by witnesses on both sides) that despite every care in the construction of vessels, and despite the admitted fact that vessels of the Guinan’s class are expected to last (when new) between four and five years without recaulking, such vessels do occasionally and unaccountably spring leaks and suddenly sink, this accident must be relegated to that small but real class.</p> <p>The case has been stated without any reference to the argument that, assuming an act of negligence to have been proven, the injury is not such as could fairly be expected to flow therefrom. About this no opinion is expressed.</p> <p>The libel is dismissed, without costs.</p>

<p>In Error to the Circuit Court of the United States for the District .of Maryland, at Baltimore.</p> <p>Action by the Maryland Coal & Coke Company against the Que-mahoning Coal' Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Maryland, at Baltimore.</p> <p>Action by the Maryland Coal & Coke Company against the Que-mahoning Coal Company. Erom the judgment, defendant brings error.</p>

Suit in equity by William McGraw against Homer McGraw and others. Decree for defendants, and complainant appeals. The following is the statement of the case prepared by Harlan, Circuit Justice: The basis of this suit is the last will of Tilomas McG-raw, made July 30. .1802. The testal or died in Michigan on the litli of October. 1807, being'at the time of his deatli a citizen and resident of that state.

<p>Insurance (§ 55*) — Mutual Companies — Members—Right to Question Validity of Pre-existing By-Laws.</p> <p>The holder of a policy of insurance containing a provision giving the company the right to cancel it on certain terms in accordance with the deed of settlement constituting the fundamental law of the company when it was issued cannot defeat such right on the ground that a prior amendment of the deed of settlement by which such provision was incorporated was ultra vires.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 69; Dec. Dig. § 55.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>In Equity. Suit by the Great Western Manufacturing Company against W. W. Adams. Decree for defendant, and complainant appeals.</p>

<p>Master and Servant (§ 278*) — Action by Servant for Injury — Sufficiency of Evidence.</p> <p>Plaintiff while working for defendant railroad company as a boiler maker was injured by a small piece of a flue which, while he was setting the flue in a boiler, broke off and struck him in the eye. He alleged that the injury resulted from the negligence of defendant in using in the boiler “old, worthless, and worn out flues” which were dangerous to work with. There were 220 flues in the boiler, some old and some new, and the only evidence tending to show whether the one by which plaintiff was injured was old or new and its condition was the testimony of a witness that he afterward took out some of the old ones, and that a small piece had been broken from the end of one of them. Held, that swh evidence was too uncertain and inferential to sustain the allegation or the complaint as to the character and condition of the flue by which plaintiff was injured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 938, 9'59-; Dec. Dig. § 278.*]</p>

<p>1. Master and Servant (§§ 301, 102*) — Master’s Diabfutty por Injury to Servant — Duty with Respect to Machinery.</p> <p>The master does not insure the servants against defects in or breakdown of Ms machinery or appliances, but all that the law imposes on him is the duty to exercise reasonable care to make and maintain them safe.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 171-181; Dec. Dig. §§ 101, 102.*]</p> <p>2. Master and Servant (§ 385*) — Master’s Liability for Injury to Serv-ani' — Negligence op Fellow Servant.</p> <p>A guide for one of the crossheads on a locomotive drawing a train was lost, and as the train lay on a siding the conductor reported (he loss to the train dispatcher and procured, another engine to help the train in, but did not report it to the superintendent, as required by the rules of the company. The engineer negligently failed to disconnect the disabled side of the engine while it was being moved, and the driving rod became disconnected, with the result that plaintiff, who was a brakeman stationed in that side of the cab, was injured. Prior to the loss of the guide, the engine was in good repair. Held, that defendant railroad company was not chargeable with notice, of the dangerous condition of the engine, but that the negligence which caused plaintiff’s injury was that of the engineer or conductor, who were his follow servants, for which defendant was not responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by James Pollitz against the Wabash Railroad Company and others. Decree for defendents (187 Fed. 145), and complainant appeals.</p>

Suit in equity by A. R. Warren and Daisy W. Warren, his wife, against the Oregon & Washington Railroad Company and others. Decree for defendants, and complainants appeal.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the George Frost Company against E. B. Estes & Sons. From a decree granting a preliminary injunction, defendant appeals.</p>

<p>Bankruptcy (§ 262*) — Sale of Property — Sale Free frov Lien.</p> <p>A court of bankruptcy bas power to order property sold free from a lien claimed thereon, provided the lien, if established, is preserved against the proceeds, and provided, further, that due notice of the sale is given to the lien claimant; but such provision and notice are essential to thé validity of the sale.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 365; Dec. Dig. § 262.*)</p>

<p>1. Appeal and Error (§ 1002*) — Review—Jurisdictional Questions.</p> <p>Where the question whether a foreign corporation was doing business in a state, so as to render it subject to suit therein, was submitted to the jury, its decision on conflicting evidence will not ho set aside by an appellate court, unless clearly against the weight of evidence.</p> <p>CKd. Note. — For other cases, see Appeal and Error, Cent. Dig, §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Courts (§ 328*) — Jurisdiction of Federal Courts — Amount in Dispute.</p> <p>The amount in dispute in an action for damages, in which the damages are determinable by the jury, is sufficient to give a federal court jurisdiction, where more than $2,000, exclusive of Interest and costs, is demanded, and the facts alleged axe such as to Justify the good faith of such demand.</p> <p>[Ed. Note.. — For other cases, see Courts, Cent. Dig. '§§ 800-890; Dec. Dig. § 328.*</p> <p>Jurisdiction of Circuit Courts as determined hy the amount in controversy, see notes to Auer v. Lombard, 19 O. C. A. 75; Tenneut-Stribiing Shoe Co. y. Koper, 30 C. C. A. 459.]</p> <p>3. Courts (§ 329*) — Jurisdiction op Federal Courts — Estoppel.</p> <p>A defendant, who pleads a counterclaim in a federal court, is estopped to deny jurisdiction on the ground that the amount in dispute is insufficient.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 897; Dec. Dig. § 329.*]</p>

<p>In Error to the Circuit Court of the United States for the District of New York.</p> <p>Action by Henry Snyder, administrator, against the New York Central & Hudson River Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Theresa Strasburger against the American Bonding Company of Baltimore. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Helix Benedict Herzog and others against the New York Telephone Company. Decree for defendant (172 Fed. 425), and complainants appeal.</p>

<p>Patents (§ 32S*) — Invention—Bank Account Book.</p> <p>Tile Rand patent, No. 746,157, for a "bank account book, in whieli the leaves have a vertical crease down the center, upon which the outer half may be folded forward or backward to facilitate the carrying forward of balances to another page, is void for lack of invention, in view of the prior art, as shown in the Wever and Parmer ter patent, No. 632,769.</p>

<p>1. Patents (§ 234*) — Construction—Electrical Mechanisms.</p> <p>In dealing with patents having relation to electricity, an invisible, intangible agency, and in itself of different kinds, which in its different phases may affect or be affected by metals or appliances in different ways and with wholly different results, a court must guard against being misled by the mere superficial resemblances of the appliances and machines used in connection with it; for from an electrical standpoint the real significance of such appliances lies, not in their material, external appearance, but in their working effect, under the influence of diverse electrical factors.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 231.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — System of Electrical Distribution.</p> <p>The Damme patent, No. 606.01o, for a system of electrical distribution and regulation designed to obviate the variation in speed of a rotary converter with changes in the amount of the inductive load, when converting a direct into an alternating current, is not for a mere aggregation of previously known devices, but discloses invention of decided merit, in view of the fact that the problem of preventing such machines from racing and destroying themselves when such conversion was attempted had been known for several years, at a time when such apparatus was particularly in demand, and that the patentee was the first to devise an efficient means; also held- infringed.</p> <p>3. Patents (§ 287*) — Infringement—Persons Liadle — Corporation Controlling Another.</p> <p>Where one corporation owns or controls absolutely ihe entire property of another, including its business and good will, and operates its plant and conducts its business as a department of its own business, it is responsible for the acts of such other company, and may he held liable for its infringement of a patent.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 437; Dec. Dig. § 287.*]</p>

<p>Patents (§ 326*) — Suit foe Infringement — Violation op Injunction.</p> <p>An officer of a corporation enjoined by final decree from infringing a patent, who was personally responsible for its acts and also for those of a new corporation formed thereafter, held in contempt for violation of the injunction.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Rig. §§ 613-619; Dec. Dig. § 326.*]</p>

<p>In Equity. Suit by Frank Voigtmann and another against Frank Seely and others. On demurrer to bill.</p>

<p>In Equity. Suit by the Elliott-Eisher Company against the Underwood Typewriter Company. On motion by defendant respecting proofs.</p>

<p>In Equity. Suit by the Tolman Bros. Manufacturing Company against Albert L. Silberstein. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the Boise City Irrigation & Land Company against Jane E. Turner and others. # On demurrer to bill.</p>

<p>Bankruptcy (§ 140*) — Assets—Insurance Policies — Trust Property.</p> <p>On a petition filed by tlie trustee in bankruptcy to review an order of the referee holding that the proceeds of certain life insurance policies taken out by the bankrupt in favor of his wife, which did not accrue until after his death, belonged to the wife, held, that they did not constitute a trust fund held by her for the benefit of herself and children, free from the claims of the creditors of the firm, in which the husband and wife were partners, under Acts Tenn. 1897, c. 82.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dee. Dig. | 140.*]</p>

<p>1. CORPORATIONS (§ B9-1 *)-CONSOLIDATION--ItlOUTH OP iiONASSBNTINfl STOCKHOLDERS.</p> <p>Allegations that a stockholder in a railroad company purchased iho share of an issue of bonds by the company allotted to his stock, that, he acquiesced in and accepted a special dividend and also assented to a lease of all the company's property to another company, and that such acts were all done with a view to the consolidation of the two companies and with the stockholders’ knowledge and consent, are not sufficient to charge Him with knowledge of such purpose to consolidate, or with consenting thereto, which would entitle the company to a decree requiring him to surrender his stock in exchange for stock in the new company.</p> <p>I Ed. Note. — For other cases, see Corporations, I)ee. Dig. § 591*</p> <p>Rights and liabilities of stockholders of railroads on consolidation, see note to Homier v. Terre Haute & I. R. Co., 81 C. C. A. 480. J</p> <p>2. CORPORATIONS (§ 591*) — SUIT BT STOCKHOLDER AGAINST CORPORATION — Pleading.</p> <p>Exceptions to the answer to a bill filed by a stockholder against the corporation considered.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. § 591.*]</p>

<p>Food (§ 12*) — Food and Drugs Act — “JIisdrandkd.”</p> <p>A food product, labeled “Compound: I’ure Comb and Strained Honey and Corn Syrup,” is not “misbranded.” within tlie moaning of Food and Drugs Act June 30, 1900, c. 3915, § 8. 34 Stat. 771 (U. S. Comp. St. Supp. 1909, p. 1191), so that its shipment in interstate commerce constituted a misdemeanor thereunder, merely because the percentage of corn syrup in the compound largely exceeds that of honey.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 12.*]</p>

<p>Action by Patrick May against the Rhode Island Company. On petition by defendant for new trial.</p>

<p>In Equity. Action by Henry A. Hitner and Joseph G. Hitner against The Diamond State Steel Company. Exceptions to report of special master. Exceptions sustained in part.</p>

Bills by F. H. Peavey & Co. and others against the Union Pacific Railroad Company and the Interstate Commerce Commission, and by Plarry J. Diffenbaugh and others against the Interstate Commerce Commission, the Chicago & Alton Railroad Company and others, intervening. Decrees for complainants.

<p>In the matter of Alfred Smith, alleged bankrupt. Review of finding of referee that petition should be dismissed.</p>

<p>1. Waters and Water Courses (§ 296*) — Ice—Rights ov Riparian Proprietors — Artificia!, Ponds.</p> <p>An owner of land on a stream which is flowed by a dam on the land of a lower proprietor, built with his consent, but for the benefit of the lower owner, is the owner of the ice formed on his land.</p> <p>[Ed. Note. — -lfor other eases, see Waters and Water Courses, Cent. Dig. § 333; Dee. Dig. § 296.*]</p> <p>2. Waters and Water Courses (5 298*) — Gutting Ice on T,ani> op Another.</p> <p>An owner of land on a stream which built a dam forming an ice pond, which extended over land of an upper proprietor, held on the evidence to have committed a willful trespass in cutting ice on the land of the other owner.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § §| 335-937; Dec. Dig. § 298.*]</p> <p>a Waters and Water Courses (§ 298*) — Measure ok Damages — Cutting and Hem ovad or Ice.</p> <p>Plaintiff was lessee of an ice pond in Maine, from which defendant willfully harvested the ice, and afterward shipped it to New York City. Held that, the trespass being willful, plaintiff had the right to fix the time of the conversion at its election, and that, on demand for the ice after its arrival in New York, it could maintain trover for its value there.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. £ 335; Dee. Dig. § 298.*]</p>

<p>1. Customs Duties (§ 30*)---Classification — Pickled Capers — “Pickles and Sauces op All Kinds.”</p> <p>. Capers pickled in vinegar, which are used as a condiment and in flavoring sauces, are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 241, 30 Stat..l70 (U. S. Comp. St. 1901, p. 1049), relating to “pickles and sauces of all kinds.”</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.*]</p> <p>2. Customs Duties (§ 30*) — Classification—Drugs—Substances with Medical Properties.</p> <p>Articles are not to be removed from a provision for pickles and sauces, and placed in a provision for drugs, simply because a medical or therapeutic property may be extracted from them.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.*]</p> <p>3. Customs Duties (§ 30*). — Classification—Pickles and Sauces — Use.</p> <p>Articles are no,t to be excluded from the provision in Tariff Act July .24, 1897, c. 11, § 1, Schedule G, par. 241, 30 Stát. 170 (U. S. Comp. St. 1901, p. 1649), for “vegetables * * * including pickles and sauces oi all kinds,” on the ground that they are not palatable or desirable as a distinct and separate eatable, or are not known as garden vegetables. The use, rather than strict botanical classification, is the determinative factor; and capers, which ,are flower buds, but are used as pickles or as a sauce, are included in said provision.</p> <p>[Ed. Note.. — For other eases, see Customs Duties, Dec. Dig. § 30.*]</p>

<p>•1. Banks and Banking (S 256*)- — National Banks — Offenses—Aiding and Abetting Officer to Misapply Funds.</p> <p>To authorize the conviction of a defendant of the statutory offense of aiding and abetting an officer of a national bank in the misapplication of the funds of the bank, in violation of Kev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), it is not necessary to aver or prove a conspiracy, nor that the principal offender had been convicted; the offenses of the principal and accessory both being misdemeanors of the same grade.</p> <p>[Ed‘. Note. — For other cases, see Banks and Banking, Dec.' Dig. § 256.*]</p> <p>2. Banks and Banking (§ 257*) — National Banks — Offenses—Indictment fob Aiding Officer to Misapply, Funds.</p> <p>An indictment charging that defendant knowingly, willfully, and unlawfully, with intent .to injure and defraud a national bank, aided and abetted the cashier in misapplying the funds of the bank, by drawing checks on the bank when he had no funds on deposit to meet the same, which checks were paid by the cashier, charges an offense under Kev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), and the question whether the criminal intent averred is properly inferable from the facts proved is for the jury.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 122; Dec. Dig. § 257.*]</p> <p>8. Banks and Banking (§ 257*) — National Banks — Offenses—Prosecution fob Aiding Officer to Misapply Funds — Evidence.</p> <p>On the prosecution of a defendant, charged under Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), with aiding and abetting the cashier of a national bank to misapply the funds of the bank, the misapplication of such funds by the cashier with criminal intent is a material issue, and any competent evidence relevant to such issue is admissible.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>4. Banks and Banking. (§ 257*) — National Banks — Offenses—Aiding Officer to Misapply Funds.</p> <p>Evidence considered, in the prosecution of a .defendant under Rev. St. 8 5209 (U. S. Comp. St. 1901, p. 3497), for aiding and abetting an officer of a national bank to misapply its funds with intent to defraud it, and held sufficient to sustain a verdict of conviction.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p>

In the matter of M. A. and G. H. Culver, partners as Culver Bros., bankrupts. On petition for review of an order of referee assigning assets to various estates, dated August 34, 390!), and an order of the referee relating to the disallowance of claims against partnership assets, filed August 19, 1909.

<p>Bankruptcy (§ 314*) — Provable Claiits — Indebtedness to Partner Arising After Bankruptcy.</p> <p>Where, at the time of the filing of a petition in voluntary bankruptcy by one partner, the firm and the remaining partner are solvent, and the bankrupt is not indebted to either, the solvent partner cannot prove a claim against the bankrupt estate because in his liquidation of the partnership business, owing to causes arising subsequently, it fails to pay out, and he is obliged to use funds of his own; such claim, if valid, being one arising after the bankruptcy, not provable uor released by the bankrupt’s discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 470; Dec. Dig. 8 314.*]</p>

In Bankruptcy. In the matter of W. M. Donahey, bankrupt. On certificate from referee, passing on exceptions to bankrupt’s claim for $300 exemption.

<p>Bankruptcy (§ 398*) — Exemptions—South Carolina Statute.</p> <p>Under the provisions of the Constitution of South Carolina (Const, art. 3, § 28), which entitles a debtor to a personal property exemption of $500, .except from “payment of obligations contracted for the purchase of such homestead or personal property exemption,” as construed by the Supreme Court of the state, which governs in determining the right of a bankrupt to the exemption, an indebtedness for borrowed money used in the purchase of the property claimed is not an obligation contracted for its purchase, and does not defeat the right of the bankrupt to the exemption.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 67G-'677; Dec. Dig. § 398.*]</p>

<p>Bankhuptcy (5j 345*) — Claim to Fund — .Tun oment Creditor — Release — “Other Estate.”</p> <p>A judgment creditor expressly released bis lien on certain described real estate of bis debtor that it might be conveyed to a mortgagee, the debtor having a right to reconveyance on payment of the mortgage debt at any time before the property should be sold by the mortgagee. The release, however, provided that it should not affect the creditors’ lien on the other estate of the debtor. Held, that on a sale of the property free from liens by the mortgagee and the debtor’s trustee in bankruptcy, realizing a sum more than sufficient to pay the mortgage debt, such surplus did not constitute “other estate” within the meaning of the release, and that the judgment creditor had no claim thereto.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 345.*</p> <p>For other definitions, see Words and Phrases, vol. 6. p. 5080.]</p>

<p>1. Ai.if.vs (§ 08*') — Naturalization—Proceedings—Objections by United Stater.</p> <p>Naturalization Act June 29. 1906. e. 3592, § 11, 34 Stat. 599 (U. S. Comp. St. Kupp. 1909, p. 482), provides that the United States shall have the right to appear to cross-examine the petitioner and the witnesses produced in support of his naturalization petition concerning any matter touching or in any way affecting his right to admission to citizenship, and may call witnesses, produce evidence, and be heard in opposition to the petition. Held, that the court will ordinarily admit a petitioner to citizenship in the absence of declared opposition by the United States, and hence it is the duty of the United States attorney to specify his objections, and to support the same by argument.</p> <p>[Ed. Note. — For other cases, Aliens, Dec. Dig. § 68. *]</p> <p>2. Abievs 61*) — Naturalization—“Free White Person” — Syrians.</p> <p>A Syrian bom in Damascus is a “free white person,” entitled to naturalization tinder Rev. St. § 2169 (U. S. Comp. St. 1901, p. 1333), providing that the provisions of the title relating to naturalization shall apply to aliens, being free white persons, etc.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 61.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7446, 74471.</p>

In Equity. Suits by the Pennsylvania Steel Company and the Deg-non Contracting Company against the New York City Railway Company and the Metropolitan Street Railway Company; the Morton Trust Company, as trustee, against the Metropolitan Street Railway Company and others (two cases); the Guaranty Trust Company of New York, as trustee, against the Metropolitan Street Railway Company and others; and the Guaranty Trust Company of New York, as trustee, against the Second Avenue…

<p>Receivers (§ 149*) — Claims Acaikst Receivership--Time J'or Provisto.</p> <p>Where, pursuant to orders of a federal court in a proceeding against insolvent street railroad companies in which receivers have been appointed. advertisement has been made requiring- claims against the defendants to be proved before a special master before a named date, claimants who elect to prosecute their claims to judgment against the .defendants, expecting that their judgments will be allowed nunc pro tunc, will be required to act with reasonable diligence so as not to delay the closing of the receivership; otherwise their claims will not be allowed against its funds.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 263; Dec. Dig. § 149.*]</p>

<p>In Equity. Suit by the Pennsylvania Steel Company against the New York City Railway Company. Motion by Central Park, North & East River Railroad Company to amend order of November 30, 1908, referring certain questions to the special master, on the ground that the order does not fully express the decision of the court pursuant to which it was entered.</p>

In Equity. Suits by the Pennsylvania Steel Company and another against the New York City Railway Company; the Morton Trust. Company against the Metropolitan Street Railway Company; the Guaranty Trust Company of New York against the Metropolitan Street Railway Company; and the Morton Trust Company against the Metropolitan Street Railway Company. In the matter of receiver-ships.

<p>1. Aliens (§ 54*) — Proceedings for Deportation — Conclusiveness op Findings of Executive Officers.</p> <p>In proceedings for the deportation of alien immigrants, while the courts are bound by the findings of the Executive Department, they cannot properly refuse relief, where on the admitted facts it appears as a matter of law that the person sought to be deported is not within the inhibition of the statute.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 54.*]</p> <p>2. Aliens (§ 53*) — Authority to Deport — Conviction of Crime in Foreign Country.</p> <p>The provision of Immigration Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898 (U. S. Comp. St. Supp. 1909, p. 448), excluding from admission persons “who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude,” and of section 20 (page 459), requiring the deportation of any alien who shall enter the United States in violation of law, do not authorize the deportation of an alien because of his conviction of a felony in the country from which he came after Ms admission into the United States,</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 53.*]</p> <p>3. Habeas Corpus (§ 23*) — Persons Held for Deportation — Authority of Courts to Discharge.</p> <p>A court is not precluded from discharging an alien held for deportation on a writ of habeas corpus because of the pendency of an appeal from the order of deportation before the Secretary of 'Commerce and Labor, where on the admitted facts there is no warrant of law for his deportation and he is unlawfully restrained of his liberty.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 23.*]</p>

<p>Customs Duties (§ 3S*) — Classification—Nori—“Seaweeds Crude ok Un-manufactured . ’ ’</p> <p>Nori, a seaweed gathered from the ocean and sun-dried, without the addition of any other substance and without being subjected to any other process than spreading it on mats to facilitate drying, is ‘‘seaweeds * * * crude or unmanufactured,” within the meaning of Tariff Act July 24, 1897, e. 11, § 2, Free List, par. 617, 30 Stat. 199 (U. S. Comp. St. 1901, p, 1085).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 38.*]</p>

Action by. Henry Gonsouland against Marco Rosomano. Judgment for defendant, and plaintiff brings error. This is an action at law for $5,000 damages, brought by Henry Gonsouland, a citizen of Mississippi, against Marco Rosomano, a citizen of Louisiana.

Action by Frank Harrigan against the Puget Sound Electric Railway. Judgment for plaintiff, and defendant brings error. The parties to this action will be designated as “plaintiff” and “defendant,” as they were in the court below. The defendant owned -and operated an electric railway between Tacoma and Seattle.

In Admiralty. Suit by the Kelley 'island Lime & Transport Company against the Great Lakes Towing Company and the City of Cleveland. From the decree libelant and the Great Lakes Towing Company appeal.

Suit in rem in admiralty by Robert P. Thompson, doing business as the Thompson Tug Company, against the steamer F. B. Squire, the Mack Steamship Company, claimant. Decree for libelant, and claimant appeals.

Petition to Review an Order of the District Court of the United States for the Northern District of Ohio. In the matter of the bankruptcy of George B. Harvey. On petition to revise in matter of law an order refusing to grant a summary order requiring one Mason to turn over alleged assets of the bankrupt to George T. Farrell, trustee.

<p>In Error to the Circuit Court of the United States for the Eastern District of Kentucky.</p> <p>Action by the Howard Supply Company against John P. Wells and John Pendleton. Judgment for defendants, and plaintiff brings error.</p> <p>The plaintiff in error, who was the plaintiff below, filed its petition as commencement of suit,' alleging the making of a written agreement on December 3, 1906. between plaintiff and defendants, for the sale by the latter to the former of 25,000 cross-ties (and as many more as defendants should be able to secure), to he delivered f. o. b. cars between White House and Paintsville, Ky., inclusive, delivery to begin immediately and to he completed not later than November 3, 3907, at a price of 55 cents each for first-class and 40 cents each for second-class ties; that during the life of said contract, and until the bringing of suit, plaintiff was and is a West Virginia corporation engaged in the business of buying and selling railroad cross-ties for profit and reward; that during the period covered by the contract sued upon plaintiff had contracts for the sale of large quantities of cross-ties at prices under which it could have made a profit of 10 cents per tie upon all ties so contracted by defendants to be delivered to the plaintiff, and that, “had the defendants complied with their said contract to the extent of furnishing the minimum of 25,-000 ties therein named, plaintiff would have derived a profit from the resale of $2,500,” that “the 25,000 ties agreed to be sold and delivered to it by said defendants were reasonably worth in the market 10 cents more per tie than the amount named in said contract”; alleged plaintiff’s readiness at all times during the life of the contract to fully perform it, its offers at various times to so perform, and its demands that defendants perform the same; alleged defendants’ failure and refusal to deliver any of the ties contracted for, and that the defendants “by their refusal to so perform said contract caused plaintiff to lose the profit upon said ties of 10 cents per tie amounting to the sum of .$2,300”; and demanded judgment for damages sustained in the last-named sum.</p> <p>Defendants demurred generally to the petition upon the ground that it failed to state facts sufficient to support a cause of action, for the reasons, first, that the alleged damage consists of prospective profits, not shown to have been in the contemplation of the parties to the contract: second, that the petition fails to show that plaintiff’s profit would have amounted to anything after the payment of the. expense of transporting the ties from the place where defendants were to deliver them, to the plaintiff to the place where plaintiff was to deliver them under its contract of resale; third, that it does not appear by the petition that defendants’ failure to comply with the contract prevented plaintiff from supplying the full number alleged to have been resold and contracted for resale; and, fourth, that it does not appear that plaintiff was unable to purchase in the market, for the purpose of supplying its demand for resale, ties of the kind called for by the defendants’ coniract, or that plaintiff was compelled to pay more on such repurchase than the price agreed to be paid defendants. There was also a special demurrer, which, so far as material here, will be mentioned later. The general demurrer was sustained.</p> <p>Thereupon, plaintiff, by leave of the court, filed an amended petition, which differed from the original petition, so far as material here, in these respects: First, following the allegation that during the life of the contract the plaintiff was engaged in the business of buying and selling railroad cross-ties for profit and reward, was added the allegation that the plaintiff “entered into the above contract with the defendants with a view of reselling the cross-ties mentioned therein for a profit, which resale thereof and anticipated or expected profits thereon .was reasonably within the knowledge and contemplation of the parties to said contract at the time of the execution of the same, and that your petitioner is entitled to recover such profits as it could have obtained on a resale of said cross-ties as the measure of its damages for the breach of said contract by said defendants hereinafter complained of”: second. in lieu of the general statement in the original petition that plaintiff had contracts of resale, the allegation was inserted “that at the time of entering into the contract aforesaid your petitioner had a contract with one of its customers to sell and deliver 300,000 cross-ties, which contract and agreement was before November 1, 1907, at which time said contract with the defendants expired, extended to any number of ties over and above said number of 300,000 which your petitioner would deliver until such time as its said customer should notify your petitioner not to make further delivery of such ties, under which contract and arrangement your petitioner could have sold and delivered to its said customer the minimum of 25,000 ties provided for in its said contract with the defendants, in addition to all of the ties that your petitioner was able to or did buy up till in February, 1908, that under the terms of its contract with its. said customer it was to receive 10 cents per tie more than the contract price provided for in its contract with the said Pendleton and IVells,” this allegation being followed by that contained in the original petition, that, “had the said defendants complied with their said contract by the furnishing of the minimum of 25,000 ties provided for in said contract, your petitioner would have derived a profit on the resale thereof to its said "customer of $2,500.” The minimum of 25,000 ties were alleged to have boen reasonably worth in the market 10 cents more per tie than the amount named in the contract “during all the period covered by said contract.”</p> <p>The defendants demurred to the amended petition for the reasons, first, that the court had no jurisdiction of the subject-matter “for the reasons set out in the demurrer to the original petition” (reference being apparently had to the ground of special demurrer, that nominal damages only were recoverable under the allegation of the petition); and, second, that the amended petition does not state a cause of action “for same reasons set out in general demurrer to original petition.” At the same time defendants moved to strike out as “immaterial, irrelevant, and redundant,” and as “not competent or proper as a measure of recovery,” various paragraphs of both the original and amended petitions, the effect of the granting of which would he to leave therein (aside from the allegations of plaintiff’s legal capacity and the diversity of Citizen-shil> of the parties) ouly the allegations of the making’ of the" eon tract, the plaintiff's readiness and willingness to perform it, the defendants’ failure and refusal to perforin, and the prayer for process, and without any allegation or prayer for recovery of damages. The -court sustained the demurrer to the amended petition, granting leave to amend, and at the same time granted in full defendants’ motion to strike out the allegations referred to, in both the original and amended petitions. No statement of reasons for granting the motion to strike out is contained in the record, except such as may he Infernal from the grounds assigned for the mol ion and from Hie reference in the order granting it to flic allegations in question as “setting up as a matter of recovery alleged profits which it is alleged could hare been made by plaintiff on re-salo of the cross-ties mentioned in the contract sued on.” Plaintiff haying declined to further amend its petition, an order was made dismissing it.</p> <p>The errors discussed here relate to the action of the court in sustaining the demurrers to the original and amended petitions, respectively, and in sustaining the motion to strike out the allegations of the respective petitions.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>Actions by Neis Jensen against Judson Harmon, receiver of the Pere Marquette Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by the Provident Chemical Works against the Hygienic Chemical Company. Judgment for plaintiff (170 Fed. 523), and defendant brings error.</p> <p>In the following statement and opinion the parties are designated as in the Circuit Court. The plaintiff and the defendant are'both corporations engaged in the drug and chemical trade. The Rumford Chemical Works is a corporation carrying on a similar business and claiming to own a certain patent, known as the “Catlin patent,” for manufacturing granular phosphate. Prior to Hay 17, 1900, said. Rumford Chemical Works claimed that the plaintiff and the defendant were infringing said patent and threatened suits against, them and their customers. The plaintiff and the defendant, upon the advice of counsel, decided to test the validity of said patent, and for that purpose on said May 17, 1900, entered into the written agreement which is printed in full in the footnote,1 but the especially relevant clause of which reads as follows: “The cost and expense of such defenses to be equally borne by the parties hereto.”</p> <p>About June 15, 1900, a suit for the infringement of said patent was brought by said Rumford Chemical Works against the present plaintiff, and it was. defended by the attorneys appointed in pursuance of said agreement. Such suit was tried in the Circuit Court for the Southern District of New York (Rumford Chemical CO. v. New York Baking Powder Co. et al., 125 Red. 231), and was appealed from a decision therein dismissing the bill to this court, which reversed the decision of the Circuit Court and sustained the validity of said patent (134 Fed. 385. 67 C. C. A. 367). An application was made to the Supreme Court of the United States for a writ of certiorari to review the decision of this court, and such application was denied (193 U. S. 635, 25 Sup. Ct. 792, 49 D. Ed. 354). All the expenses connected with said suit have been paid by the parties to said agreement as therein provided, except as follows: The defendant has failed to pay its share of $312.90 for attorney's fees in the matter of retaxation of costs, and it is conceded that the judgment to the extent that it includes one-half of said sum, viz., $156.45, is correct; also, assuming that the costs taxed and awarded in said suit are a part of the “cost and expense” of the defense thereof, the defendant has not paid its proportion of the same. These taxable costs amount to $4,646.46, and the plaintiff seeks to recover in this action one-half the amount thereof, viz., $2,323.23, with interest.</p> <p>About August 2, 1904, and subsequent to the decision of this court in the suit against the present plaintiff sustaining the validity of said patent, said Rumford Chemical Works brought a suit against the present defendant, charging the infringement of said patent, and alleging that the defendant, by participating in the defense of said first suit, became bound by the decision therein. Upon the evidence presented the Circuit Court dismissed the bill; but upon appeal this court reversed the decree of the Circuit Court, held that the defendant was privy to said first suit and that infringement was established, ;uid rtirootod a decree for the plaintiff. 150 Fed. 430, 80 C. C. A. 416. On writ of certiorari, however, the Supreme Court of the United States held that the evidence presented was insufficient to show that the defendant was.privy to said iirst suit, and, consequently, that the only evidence showing infringement --a deposition in the first suit — was inadmissible. Therefore the Supreme Court reversed the decree of this court. 213 U. S. 156, 30 Sup. Ct. 45, 54 Xj. lid.-.</p> <p>After the decision of this court in the first-mentioned suit, the plaintiff herein notified the defendant that it would not be liable for any further costs or expenses connected with litigation between the Rumford Chemical Works and the defendant, upon the ground that the validity of said patent had been adjudged and that the defendant was bound by the decision. The defendant, howe\ er. denied that the plaintiff had any right to give such notice, and insisted that it would hold the plaintiff to said agreement of May 37, 3000. The defendant expended $2,065.83 for attorney’s fees and disbursements in the defense of said second suit subsequently to the entry of the final decision of this court sustaining the validity of said patent, and in its counterclaim in this action seeks to recover from the plaintiff one-half the amount thereof, viz., .$1,032.91. This action was tried upon an agreed statement of facts by the Circuit Court, which rendered a judgment for the plaintiff for the full amount of its demand, but dismissed the defendant’s counterclaim upon the merits.</p>

Action by William Williams against the Big Brushy Coal & Coke Company. Judgment for plaintiff, and defendant brings error. This suit was brought in the circuit court of Morgan county, Tenn., and subsequently removed to the court below on the ground of diversity of citizenship.

<p>1. Cotj.ision (§ 123*) — Damages—Burden of Proof.</p> <p>The burden of proof to establish the amount of damages recoverable for an injury to a vessel in collision rests upon the party demanding com-pensa! ion.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. §§ 259-261; Dec. Dig. § 123.*]</p> <p>2. Coixision (§ 124*) — Measure of Damages — Evidence.</p> <p>Where a vessel sunk in a river by collision was not surveyed, was allowed to remain four months before being raised, was injured by rough and unskillful handling in raising, and allowed to stand in a port for eight months longer full of water and without care or protection, whereby she was further seriously damaged, the price at which the wreck was then sold cannot be taken to indicate her value after collision; but the only way in which the damages caused by collision can be even approximately estimated is to establish her value before collision and immediately afterward before being raised, which must be shown 'by competent evidence, and subtract one from the other.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 265; Dee. Dig. § 124.*]</p>

Action by William A. Murphy and others, as executors and trustees under the will of Simon J. Murphy, deceased, and others, against Malinda Tanner and Michael Cronin. Held: that such injunction would not lie. 18!) TT. S. 35, 23 Sup. Ct. 599, 47 If. Ed. 698.

Action by William H. Murphy and others, as executors and trustees under the will of Simon J. Murphy, deceased, and others, against William H. Shea and Blwood L. Raab. Judgment for defendants, and plaintiffs bring error.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>Action by Patrick J. Brown against the Erie Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by the Hitchman Coal & Coke Company against T. L. Lewis, individually and as vice president of the United Mine Workers of America,.and others. Defendants appeal from an order overruling a motion to dissolve and modify a preliminary injunction. 373 Red. 963.

In the Matter of the Bankruptcy of T. A. McIntyre & Co. From an order denying the petition of Edward Pierce for leave to file a claim of title against moneys and securities in the hands of the trustees after the time for filing such claims fixed by the court had passed, he appeals.

In Equity. Suit by Edward C. Lewis and John H. Kitchen, partners as Lewis & Kitchen, against the Kentucky State Board of Control for Charitable Institutions and others. Defendants appeal from a decree granting an injunction.

<p>1. Patents (§ 312*) — Infringement—Sufficiency of Evidence.</p> <p>Where a defendant, which admittedly made and sold an article which infringed a patent, of which, however, it had no knowledge, made an agreement with the patentee conceding the validity of the patent and agreeing to discontinue the manufacture and sale of the infringing article, the fact that it retained in its circulars cuts apparently representing such article is not alone sufficient to establish subsequent infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 549; Dec. Dig. § 312.*]</p> <p>2. Patents (§ 283*) — Suit fob Infringement — Defenses—Estoppel by Contract— Construction of Patent.</p> <p>An agreement by which a defendant conceded the validity of complainant’s patent and agreed to discontinue the manufacture and sale of an infringing article, in consideration of the waiver of all claims for past infringement, while it estops defendant, when sued for infringement by a different article, from denying the validity of the patent or a construction of the claims covering the article previously made, does not preclude it from denying infringement by the new article; and in considering that question the court may look into the prior art and construe the specification in the light of the file wrapper, in order to determine whether the new article infringes.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-452; Dee. Dig. § 283.*]</p> <p>3. Patents (§ 107*) — Construction of Claims — Reference to Specification.</p> <p>In construing the claims of a patent, whether or not the phrase “substantially as described” is repeated in each one, the first, and generally the best, source of information is the specification.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dec. Dig. § 167.*]</p> <p>4. Patents (§ 32S*) — Infringement-Cooking Ltensil.</p> <p>Tlie Obermann patent, No. 507,281, for a cooking utensil, construed, and the evidence of infringement hold insufficient to warrant the granting of a preliminary injunction.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>In Equity. Suit by William N. Barnard against the Forest City. Foundry & Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>In Equity. Suit by the American Steel & Wire Company of New Jersey against the Denning Wire & Fence Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the I. E. Palmer Company against James B. Patterson. On final hearing. Decree for complainant.</p>

<p>1. Patents (§§ 160,161*) — Construction—Considebation of Rejected Claims. A patent must be read and construed witb reference to tbe claims rejected and to tbe prior art, and cannot be so construed as to cover either wbat was rejected by tbe Patent Office or disclosed' by tbe prior art.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Big. §§ 234, 235, 236%; Bee. Big. §§ 160, 161.*]</p> <p>2. Patents (§ 328*) — Infringement—Crusher and Pulverizer.</p> <p>The Williams patent, No. 843,720, for a dumping cage for crushers and pulverizers, claims 1 and 2, as limited by the prior art and proceedings in the Pa tent Office, held not infringed.</p>

<p>Intoxicating Liquors (§ 10*) — Power of Municipal Cori’ojsation to Control — Construction of Charter.</p> <p>Where the only authority of a city in Oregon to license, regulate, or prohibit drinking places or the sale of liquors was given by a provision of its (-barter, which was superseded, as held by decisions of the state courts, by the adoption of prohibition at an election held under a county option statute, the city was without power to enact an ordinance prohibiting the sale of nonintoxieating liquors.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. DÍg. § 10.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below sustained the importers’ protest against' the assessment of duty by the collector of customs at the port of New York; the Board’s opinion reading as follows:</p> <p>IIAV, General Appraiser. In this caso eniry was made on a pro forma Invoice. From the testimony it appears that when the consular invoice arrived It was found to hear a lower value for the merchandise in question than that contained in the pro forma invoice. The collector assessed duty upon the value given in the pro forma invoice, rejecting as illegal and unwarranted the second appraisement made by the appraiser approving the value given in the consular invoice.</p> <p>The merchandise should have been assessed upon the value stated in the consular invoice, the appraiser having approved that value. Foard’s Case, G. A. 6.723 (T. i). 28,796).</p> <p>The protest is sustained, and the collector directed to reliquidate the entry accordingly.</p>

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

<p>In the matter of Charles H. Dix, bankrupt. On review of order of referee.</p>

<p>Bankruptcy (§ 184*) — Property Passing to Trustee — Invalid ¡Mortgage op Personalty.</p> <p>An Insolvent convoyed persona] property of which lie was the absolute owner to a creditor for tlie expressed consideration of $1, and tool? back a lease of tlie same, also giving a nominal consideration, with the right in tlie lessee to repurchase if he had paid his indebtedness to the lessor. Held. that the transaction was an attempted mortgage, invalid under tlie law of Pennsylvania for want of delivery, and that on the bankruptcy of tli(> debtor tlie property passed to liis trustee.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*]</p>

<p>In the matter of John Kullberg, bankrupt. On review of decision of referee.</p>

<p>In Equity. Suit by Bernice E. Pulver against Edmund P. Leonard and others.</p>

<p>In the Matter of Otto M. Johnson, Bankrupt. Proceeding to review an order of the referee relating to insurance held by bankrupt.</p>

<p>1. Waters and Water Courses (§ 32*) — Reservoir Sites — Forfeiture— Statutes — Conditions Subsequent.</p> <p>Act Cong. March 3, 1891, c. 561, 26 Stat. 1095 (U. S. Comp. St. 1901, p. 1571), authorizing the grant of public land for reservoir sites, section 20 provides that, if any section of the canal shall not be completed within five years after location, the rights granted shall be forfeited as to any uncompleted section of the canal, ditch or reservoir. Held that, such requirement being in the nature of a condition subsequent, a failure to comply did not ipso facto operate to divest the grantee of title and revest it in the government, but that, to be effectual, the default must be followed by a declaration of forfeiture by some competent authority, and, the grant being of a public nature, the declaration can only be by act of Congress or in an appropriate judicial proceeding.</p> <p>[Ed Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 21, 22; Dec. Dig. § 32.*]</p> <p>2. Waters and Water Courses (§ 32*) — Irrigation Rights — Forfeiture— Declaration.</p> <p>. . . .. ........ Where a grantee of public land for an irrigation reservoir site failed to complete his improvement for five years, as required by Act Cong. March 3, 1891, c. 561, 26 Stat. 1095 (¥. S. Comp. St. 1901, p. 1535), so that the' same was subject to forfeiture under section 20, it was not necessary to the enforcement of a forfeiture that it should be first declared by act of Congress, but a forfeiture could be enforced by the executive in judicial proceedings.</p> <p>[Ed. Note.- — For other cases, see Waters and Water Courses, Cent. Dig. S§ 21, 22; Dec. Dig. § 32.*]</p>

<p>Action by the Home Mixture Guano Company against the Ocean Accident & Guarantee Corporation, Limited, of London, England. On demurrer to declaration.</p>

<p>Bankruptcy (§ 140*) — Property Passing to Trustee — Pledge of Distiller’s Bonded Warehouse Certificates.</p> <p>A distilling' company’s warehouse certificates, calling for whisky stored in its bonded warehouse, which in practical effect under the internal revenue laws is in the custody of the United States as bailee, represent the property itself, and their transfer to a purchaser or pledgee operates as a delivery of the whisky called for thereby subject to the payment of the tax, and, when made in good faith more than four months prior to the company’s bankruptcy, such a pledge is good as against its trustee and general creditors, and the whisky does not pass to the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 140.*]</p>

<p> (Syllabus by the Court.) </p> <p>Í, Indians (§ 27*) — Indian Allotments — Jurisdiction of Territorial Courts.</p> <p>The district courts of the territory of Oklahoma had jurisdiction of suits brought therein by persons of Indian blood or descent to establish their rights to allotments, pursuant to Act Cong. Aug. 15, 1894, c. 290, 28 Stat. 305, and Act Cong. Feb. 6, 1901, c. 217, 31 Stat. 760.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 27.*]</p> <p>2 Action (§ 42*) — Separate Allotments — Action to Establish — Procedure —Territorial Code.</p> <p>Where several claimants of allotments sued jointly to establish their rights to separate allotments in a district court of the territory of Oklahoma, a demurrer to their petition- was properly sustained by said district court, where one of the grounds of the demurrer was a misjoinder of causes of action.</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. § 42.*]</p> <p>8. Courts (§ 431*) — Procedure—In Circuit Court After Admission of State.</p> <p>Where an appeal was taken from a judgment of dismissal in such case to the Supreme Court of the territory, and the appeal, being undetermined on the admission of the state, was thereafter transferred to a federal Circuit Court, which by the enabling act (Act June 14, 1906,. § 16, c. 3335, 34 Stat. 276, amended by Act March 4, 1907, c. 2911, 34 Stat. 1286) was vested with the powers of snch Supreme Court, the judgment should be affirmed by the Circuit Court, if it should have been affirmed by the Supreme Court, under the territorial Code of Procedure.</p> <p>[Ed. Note.- -For other cases, see Courts, Dec. Dig. §.431.*]</p> <p>4. Coukts (§ 431*) — Procedure ix Fedeeal Coukt — Dismissal—Judgment.</p> <p>Where in such a case the federal Circuit Court affirms a judgment of the territorial district court, and the original petition is multifarious, as tested by the rules of equity pleading which obtain in the federal courts, the judgment of dismissal should be without prejudice to the prosecution of future separate suits by the parties plaintiff in the case.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 431.*]</p>

<p>Action by Ernest' J. Beardsley against the Howard & Bullough American Machine Company, Limited. Judgment for plaintiff, and defendant petitions for a new trial.</p>

In the matter of Kolman Holland, bankrupt. Contempt proceedings against Harry Holland for failure to comply with order of court to turn over funds to trustee.

<p>1. Bankruptcy (§ 140*) — Property Passing to Trustee — Goods Held on Consignment.</p> <p>Under Civ. Code S. C. 1902, § 2655, which provides that every agree-meet of purchase or bailment of personal property, whereby the vendor or bailor shall reserve to himself any interest in the same, shall be void “as to subsequent creditors or purchasers for a valuable consideration without notice,” unless in writing and recorded as required of mortgages, as construed by the Supreme Court of the state, an agreement of consignment under which goods were delivered to a bankrupt to 'be sold and accounted for as agent, otherwise valid, is not void as against the bankrupt’s trustee, or general creditors, because not recorded.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dee. Dig.' § 149.*]</p> <p>2. Bankruptcy (§ 140*) — Property Passing- to Trustee — Goods Held on Consignment.</p> <p>Where goods were in fact shipped to and held by a bankrupt under a valid consignment contract, to be sold as agent, and not otherwise, the fact that he subsequently gave notes for their price for the accommodation of the payee, which were not enforced, but renewed when due, he being called on only to account for the goods sold, is not conclusive that the contract was changed into a sale.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. § 140.*]</p>

<p>In Equity. Suit by the Baker Whiteley Coal Company against the Baltimore & Ohio Railroad Company. Decree for defendant.</p>

<p>Criminal prosecution by the United States against Eon Ammerman, On motion in arrest of judgment.</p>

Action by Ella K. Conover against the Pennsylvania Railroad Company. On motion of Theophile Sirois, guardian ad litem, to vacate order of discontinuance made on settlement. Joseph D. Conover was killed in an accident on the defendant’s railroad, at Glover Creek Junction, Pa. Ella K. Conover, widow of Joseph 1>. Conover, brought an act ion as administratrix in the Supreme Court of New York County. On motion by the defendant the case was removed to this court.

In Equity. Suit by W. M. Sweetland, B. J. Sweetland, husband of said W. M. Sweetland, and Grover T. Lemon, a minor, by W. M. Lemon, guardian of his estate, against Christine Transberg and others. On demurrer to bill.

In the matter of the Evans Lumber Company, bankrupt. Intervention of H. T. Reynolds to recover certain mortgaged personalty. Decree for intervener. The question made-by the petition for review on the findings of the referee on claim of H. T. Reynolds as to his right to priority to mortgage on certain machinery and transfer to him as collateral three accounts.

<p>In the matter of bankruptcy proceedings against one Sims. Application for vacation of a stay of proceedings in the state court by Batjer & Co.</p> <p>This is an application to vacate the usual stay against the bankrupt’s creditors. The bankrupt was adjudicated upon his own petition, filed on December 20, 1909. More than 11 years previous to this the creditors had obtained a judgment against him in the state court on October 12, 1898, for $723.40. On October 7, 1908, the creditors obtained an execution under section 1391 c.r the New York state Code, by virtue of which they were .entitled to collect from the bankrupt’s employers 10 per cent, of his salary till the judgment was paid. The employers paid to the creditors $30.76. The sheriff under the levy collected and now retains in his hands $139.42, and these two sums represent the percentage due under the execution for a period of 22 weeks, since when nothing has been paid. On December 4. 1909, the. bankrupt was served with an óx'der from the state court’directing him to appear for examination on the return day mentioned therein, which was December 14, 1909. Upon that day he defaulted.</p>

In the matter of the bankruptcy proceedings of Alfred Kessler & Co. On petition of Heine & Co. to review a.referee’s order declining to allow petitioner to amend its proof of claim. This is a petition to review the order of the referee in bankruptcy declining to allow the petitioner to amend its 'proof of claim so as to conform with The statute.

<p>In the matter of the bankruptcy of T. M. Lesher & Son. On petition to direct referee to certify question for review.</p>

<p>In the matter of the bankruptcy of A. P. Wilson & Co. Proceeding to review order of referee.</p>

<p>Bankruptcy (§ 32*) — Amendment op Scjiiedules — Time op Application.</p> <p>An application of a bankrupt, nearly a year after adjudication of bankruptcy, to amend bis schedules to bring in an omitted creditor, will be refused.</p> <p>[Ed. Note. — For oilier cases, see Bankrujitcy, Cent. Dig. §§ 31-33; Dec. Dig. § 32. *]</p>

<p>Bankruptcy (§ 317*)— Liabilities of Estate — Charges in Prior Judicial Proceedings.</p> <p>Where a sheriff levied an attachment a few days before a petition in bankruptcy was filed, the suit having been brought by the same creditors who subsequently petitioned in bankruptcy, and the attachment proceedings preserved the property for the benefit of the creditors, such portion of the expenses of attachment as was for the benefit of the estate should be paid therefrom.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § .331; Dec. Dig. § 317.*]</p>

Libel by Wiley Downs against S. E. Wall and others. Erom a decree sustaining exceptions to the libel and dismissing it, libelant appeals.

<p>Appeal from the District Court of the United States for the Northern District of California. ,</p> <p>Libel by Louis Weule and others, doing business under the firm name of the Louis Weule Company, against W. I. Reed. From a decree in favor of libelants, respondent appeals.</p>

Action by Annie A. Phillips against the Atchison, ^Topeka & Santa Fé Railway Company and others. Judgment for plaintiff, and defendant railway company brings error.

Application by Walter Jenkins and J. E. Shuler for the remission of the penalty of a forfeited recognizance. From a judgment granting such relief, the United States brings error. At the May term, 1894, of the United States District Court, at Asheville, judgment final was entered upon a forfeited recognizance in favor of the United States and against the defendants in the sum of $200.

<p>1. Life Estates (§ 8*) — Adverse Possession — Possession Consistent with That of Another — By Owner of Life Estate Against Remaindermen.</p> <p>The owner of a life estate, whether the life tenant or a grantee, cannot acquire a fee-simple title by possession against the remaindermen, but his possession inures to their benefit as against an adverse claimant.</p> <p>[Ed. Note. — For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. § 8.*]</p> <p>2. Estoppel (§ 29*) — Estoppel of Grantee — Deed by Life Tenant.</p> <p>Defendants’ predecessors in title purchased land from a life tenant under a will, the remainder being in her heirs, and took a deed from her and her husband which was recorded, and which described the land as that devised by the testator to the grantor and heirs. Meld, that defendants could not assert as against the remaindermen, after the death of the life tenant, a prior title in the husband which, if it existed, he was prior to the conveyance estopped to set up as against his wife or her testator, but that the deed conveyed only the wife’s life estate; the rule in Shelley’s Case not being in force in the state.</p> <p>[Ed. Xole. — For other eases, see Estoppel, Cent. Dig. §§ 69-73; Dec. Dig. § 29.*]</p> <p>3. Cotikts (§ 36*) — Presumptions as to Jurisdiction — Counts of Special and Limited Powers.</p> <p>Under the rule of the federal courts, presumptions cannot be used in support of the jurisdiction of courts of special and limited powers.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 142-144; Dec. Dig. § 36.*)</p> <p>4. Wills (§ 426*) — Probate—Defect-Foreign Prorate — Evidence of Title.</p> <p>Under Code W. Va. 1868, c. 118, § 5, and related provisions, the county recorder of any county was given the power of a court of probate to admit to record and certify wills and “to hear proof of and admit wills and authenticated copies thereof 1:o probate,’’ including foreign wills as wills of real estate if it appeared that they were so executed as to be valid wills of lands in that stale. Held that, such a recorder having jurisdiction to determine the sufficiency of a foreign will as a will of lands, his determination could not be collaterally attacked, and his certificate that he admitted a copy of a foreign will devising lands in that state “to record'' was in effect that it was admitted to probate and was sufficient to entitle the will to admission in evidence to establish the devise in an action of ejectment by the devisees.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. i 915; Dec. Dig. 8 426 ;* Evidence. Cent. Dig. § 1416.]</p> <p>g. Ejectment (§ 111*) — Trial—Excessive Verdtct — Power of Court to Allow Remittitur.</p> <p>Where plaintiffs in ejectment have recovered a general verdict, it is within the jjower of the court to allow them to remit the same as to lands not covered by their proof of title.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. §§ 331, 344; Dee. Dig. § 111.*]</p>

Action by C. E. Farmer against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. On the 1st day of April, 1907, defendant In error instituted this action in the court of common pleas for Elorence county, S. C., against plaintiff in error to recover the sum of $10,000 damages alleged to have been sustained by him as the result of certain personal injuries suffered while in the employ of the railroad company.

Appeals from the. District Court of the United States for the Southern District of New York. In the matter of the applications of Gustav Glaser for writs of habeas corpus. From orders dismissing the writs of habeas corpus and certiorari, the petitioner appeals.

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>Suit in equity by the United States against the Northern Pacific Railway Company and others. Decree for complainant (170 Fed. 498), and defendants appeal.</p>

<p>In Error to the Circuit Court of the United Slates for tbe District of Oregon.</p> <p>Action by Julia J. Roe against'the Oregon Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of South Dakota.</p> <p>Action by Leopold E. Jochem against B. R. Cooley. Judgment for defendant, and plaintiff brings error.</p>

Suit in admiralty by Thomas Monk, Jr., and another, as owners of the barge Mary A. Monk, against the ferryboat John Englis, the tug Geneva impleaded. Decree against The John Englis, and claimant appeals. Decree modified.

Action by Leander Uassilla, by Josephine Sommerville, guardian ad litem, against the Beaver Hill Coal Company. Judgment for plaintiff, and defendant brings error. The defendant in error was the plaintiff in an action brought against the plaintiff in error to recover damages for personal injuries.

Habeas corpus on petition for the discharge of Mrs. Fanny Rudy from the custody of Peter H. Stretton, United States Immigrant Inspector. From a judgment discharging petitioner, the inspector appeals.

This cause comes here upon appeal from a decision (168 Fed. 464) of the Circuit Court, Southern District of New York, reversing a de-cisión of the Hoard of General Appraisers (G. A. 6,411, T. D. 37,544), which affirmed the action of the collector of the'port of New York in assessing duty on certain wire.

<p>Customs Duties (§ 44*) — Classification—Coxcexteated Fkuit Juice — Similitude. -</p> <p>Concentrated fruit juice is dutiable, under Tariff Act July 24, 1897, e. 11, § 1, Schedule H, par. 299, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1655), as fruit juice by similitude under section 7 of said act, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), because it resembles ordinary fruit juice (1) in material, from which it differs only in having had some of its water removed by evaporation, and (2) in use, being applied to the same purposes.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dee. Dig. § 44.*]</p>

<p>1. Quieting Title (§ 12*) — Right or Action — Title and Possession.</p> <p>A bill to quiet title, alleging ownership and possession in complainant, cannot be maintained, where the proof shows possession in defendant under a claimed title when the suit was commenced.</p> <p>[Ed. Note. — For other eases, see Quieting Title, Cent. Dig. § 8; Dec. Dig. 812.*</p> <p>Necessity of possession in suits to quiet title, see note to Jackson v. Simmons, 39 C. C. A. 522.]</p> <p>2. Taxation (§804*) — .Tax Title — Validation—Louisiana Constitution.</p> <p>Const. La. 1898, art. 233, providing that suits to annul tax titles on sales theretofore made shall be brought within three years from the adoption of the Constitution, which as construed by the Supreme Court of the state operates merely as a bar by limitation, is not available to sustain a suit based on such a tax title, where within the three years the land was judicially sequestered in a succession, and remained in the custody of the court until just prior to the commencement of the suit.</p> <p>[Ed. ;Note. — Por other cases, see Taxation, Cent. Dig. § T590; Dec. Dig. § 804.*]</p>

<p>Habeas Cowes (§ 75*) — Rbtubn—Requisites and Sufficiency.</p> <p>Returns to writs of habeas corpus obtained on behalf of immigrants upon petitions alleging their illegal detention by an inspector, which allege no facts, but merely as a conclusion of law that the respondent had the right to detain the petitioners, held insufficient.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 75.*]</p>

For decision below, see 172 Fed. 449, which affirmed a decision hv the Board of General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of Bridgeport. The merchandise in question consists of articles of glass which are designated in the record as “prismatic gauge glasses.” They are about 5% inches long, 1]4 inches wide, and five-eighths of an inch thick. The edges are ground, and one side is plain and polished.

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>For decision below, see 172 Fed. 170, in which the Circuit Court affirmed decisions by the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The importations in dispute had been classified as manufactures of metal under Tariff Act July 24, 3897, c. 11, § 1, par. 198, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645), against the importers’ contention for classification under the provision in paragraph 135, 30 Stat. 361 (U. S. Comp. St. 1901, p. 1638), for steel in all forms and shapes.</p>

In Equity. Action by the Johns-Pratt Company against the Sachs Company and another. Heard on motion to strike out a paragraph of the answer.

<p>Proceeding in the matter of the Eagle Steam Laundry -Company of Queens County, a bankrupt. A mortgagee determined to have no rights save as a general creditor.</p>

Suit by Walter Westlake, as administrator of Caroline Barry, against Frank C. Marrin and others. On the master’s report, following an examination pro interesse suo.

Action by the Sovereign Bank of Canada against Martha F. M. Stanley, as executrix, etc. On demurrer to certain alleged defenses. The complaint is to recover for the value of certain ostrich feathers, which the defendant’s testator received as the plaintiff’s property and in a fiduciary capacity.

<p>1. Equity (§ 271*) — Bum—Amendment.</p> <p>Complainant in equity, after the pleadings have been closed and the evidence has been taken and is ready l'or printing, is not entitled to leave lo lile a substituted bill of complaint, except to make the pleadings correspond to the evidence.</p> <p>I Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 558-560; Dee. Dig. § 271.*]</p> <p>2. Equity (§ 290*) — Complaint—Amendment.</p> <p>Wliere leave is asked to file a substituted bill of complaint, the court can only permit or reject it, and cannot be expected to revise it, and permit it to be filed if drawn in a different form.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 049; Dec. Dig. § 200.*]</p> <p>3. Equity (§ 290*) — Bill—Amendment.</p> <p>Where, after the pleadings are closed and the evidence taken, complainant deems it necessary to file an amendment to the bill, he should present specific amendments to the paragraphs of the original bill, supporting his application by affidavits, according to equity rule 29, and not make an application, to file a substituted bill, which the court would not grant unless satisfied that complainant is entitled to make all the changes which would be made by the substituted bill.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 549; Dec. Dig. § 290.*]</p>

<p>Removal oe Causes (§ 112*) — Dismissal of Cause — Phoceedixgs eob Dismissal.</p> <p>Where defendant, by obtaining an order to show cause on a motion to dismiss for insufficiency of service of process, permits the record on removal of the cause to be completed by including a stipulation that the sendee made should have the same effect as if made on an officer of the defendant company within the state, provided that this should not be construed, so as to prejudice defendant’s rights in the United States Circuit Court if the action should he removed to that court, and he contends that on removal plaintiff is limited to reliance on the actual service, but argues that, even if service were on an officer, dismissal could be demanded, the court will require defendant to elect which interpretation it will assert it intended.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 312.*]</p>

Action by the Morrisdale Coal Company against the Pennsylvania Railroad Company to recover damages for alleged discrimination in the distribution of coal cars in violation of the interstate commerce act. On motion to dismiss for want of jurisdiction.

<p>In Equity. Suit by the United States against the Minidoka & Southwestern Railway Company and another. Application for temporary injunction.</p>

<p>1. Vendos and Purchaser (§ 54*) — Relation of Parties.</p> <p>Under the Wisconsin law, pursuant to a contract for the sale of land the vendee is the equitable owner in fee, and the vendor holds the legal title as security for the unpaid balance of the price as a quasi mortgagee entitled to strict foreclosure on default.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. § 54.*]</p> <p>2.. Vendor and Purchaser (§ 193*) — Right to Possession.</p> <p>The vendee, or his assignee, under a contract for the sale of land has the right to possession and the right to sell standing timber on the land, subject to the vendor’s right to restrain the cutting of the timber if his security would be thereby impaired.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 401; Dec. Dig. § 193.*]</p> <p>3. Vendor and Purchaser (§ 101*) — Contract—Assignment—Forfeiture-Notice — Foreclosure.</p> <p>Where a vendee of certain timber land under a contract providing for future payments in installments assigned the contract to complainant, and, while still interested in the purchase price to the extent of $600 commissions, confederated with a prospective purchaser of the timber, and, ascertaining that complainant was in default, paid the balance of the price with money obtained from sudh prospective purchaser and obtained a deed from the vendor, and then, by an ambiguous notice of forfeiture to complainant, deprived him of nearly half of the 30 days to which he was entitled after notice in which to make payment and save his rights, such ven-dee was not entitled to forfeit complainant’s interest under such notice, but, complainant not having been substantially injured thereby, the vendee was entitled to enforce a strict foreclosure of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 171, 173; Dec. Dig. § 101.*]</p> <p>4. Vendor and Purchaser (§ 212*) — Rights of Vendor — Conveyance of Title.</p> <p>A vendor, by having executed a contract of sale, does not deprive himself of the right to convey the fee, entitling his grantee to all the vendor’s rights in the land subject to the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 436; Dee. Dig. § 212.*]</p> <p>5. Vendor and Purchaser (§ 212*) — Conveyance to Third Person — Payments by Vendee.</p> <p>AVkere an owner of land, after having executed a contract of sale, conveyed it to a third person, the contract holder should pay subsequent installments of the price to the grantee.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 436, 439; Dec. Dig. § 212.*]</p>

<p>Indictment against Matilda H. Chesbrough for violation of the customs duties law.</p>

<p>1. Bankruptcy (§ 322*) — CwLifS Against Estate — Contract—Breach—Bankruptcy— Measure of Damages.</p> <p>Ifor a buyer’s breach of a contract for the manufacture and sale of burners the measure of the seller’s damage on the allowance of his claim against (he bankrupt estate of the buyer is the difference between the cost of manufacture and the contract price, notwithstanding the entire lot of goods were not manufactured or ready for delivery.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig:' § 508; Dec. Dig. § 322.*]</p> <p>2. Bankruptcy (§ 340*)—Claims — Breach of Contract — Objection to Claim —Burden of Proof.</p> <p>Where a buyer’s bankruptcy constituted a breach of a contract to purchase a quantity of burners to be manufactured by the seller, and, after the bankruptcy, the seller was compelled to purchase mantles, boxes, cases, glasses, and excelsior to complete the burners manufactured and prepare them for market, and also to furnish a market for them, which it was not required to do under the contract, the seller, id order to establish its claim for the difference between the cost of manufacture and the contract price, was not bound to show what amount was obtained for the burners so manufactured and sold to others; the burden of proving such sales in mitigation of damages being on th$ objectors.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig, § 340.*]</p> <p>3. Bankruptcy (§ 318*) — Claims—Contract op Sale — Breach—“Provable Claim.”</p> <p>Where a buyer’s bankruptcy resulted in its 'breach of an express written contract for the sale of burners, the seller’s damages were unliquidated and constituted a “provable claim” against the bankrupt’s estate, under Bankr. Act July 1, 1898, c. 541, § 63a, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), providing that debts of the bankrupt may be proved and allowed against his estate which are founded on a contract, express or implied.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. § 482; Dec. Dig. § 318.*</p> <p>Por other definitions, see Words and Phrases, vol. 6, p. 5746.]</p> <p>4. Bankruptcy (§ 320*) — Claims—Damages—Diquidation.</p> <p>Where a bankrupt was liable for unliquidated damages for breach of contract of sale, and no application was made to the court for a liquidation, and there was no standing order or rule providing a. method of procedure for a jury trial on issues framed, or by adjudication oh evidence before the referee or judge, the parties having submitted the matter to the determination of the referee, his determination constituted an appropriate method of liquidating the damages, under Bankr. Act July 1, 1898, c. 541, § 63b, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), providing that damages may be liquidated on application to the court in such manner as it shall direct.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 479, 4S0; Dec. Dig. §. 320.*]</p> <p>5. Bankruptcy (§ 318*) — Claims—Contract of Sale — Breach—Tender of Delivery.</p> <p>Where a contract for the sale of burners was broken by .the.buyer’s bankruptcy, so that it was impossible for the buyer to accept' a’delivery and make payment, the contract was broken on the filing of the petition, and the seller was relieved from tendering the goods as a condition to claiming damages against the bankrupt’s estate.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 481, 482; Dec. Dig. § 318.*]</p>

In the matter of the bankruptcy of the Automobile Livery Service Company. On petition to review findings of a referee denying the claim of the Jefferson County Savings Bank and the Harris Transfer & Warehouse Company.

<p>1. Abatement and Revival (§ 71*) — Death of Party — Revival op Action— Statutory Provisions.</p> <p>The remedy given by Rev. St. Ohio, § 5150 et seq., for the revivor of an, action on the death of a party, is, if there be a strict compliance with its provisions within the time limited by statute, a matter of right and not of discretion.</p> <p>LEd. Note. — For other cases, see Abatement and Revival, Cent. Dig. f 358; Dec. Dig. § 71.*]</p> <p>2. Courts (§ 343*) — Death op Party — Revival op Action — Statutory Provisions.</p> <p>Under Rev. St. ü. S. § 955 (U. S. Comp. St. 1901, pr697), providing that,</p> <p>when either of the parties in any suit in any court of the United States dies before final judgment, his executor or administrator may, if the cause of action survive, prosecute or defend to final judgment, does not determine the plaintiff’s right of revivor on death of defendant; that being governed by the law of the state where the suit is brought and prosecuted.</p> <p>LEd. Note. — For other cases, see Courts, Cent Dig. §§ 915-920; Dec. Dig. § 343.*]</p> <p>3. Words and Phrases — “Order to Show Cause.”</p> <p>An order to show cause is an order requiring a party to appear and show cause why a certain thing should not be done or permitted.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, p. 5024.]</p> <p>4. Abatement and Revival (§ 74*) — Death op Party — Proceedings por Revival — Limitations.</p> <p>Under Rev. St. Ohio, § 5144. specifying the cases in which a cause of action survives the death of a party, section 5150, providing that a revivor may be effected by a conditional order, if the action be revived in the name of a representative of the party who died, and section 5157, providing that an order to revive an action against a representative of a defendant shall not be made without his consent unless within one year from the time it could have been first made, the conditional order being equivalent to a substitute for a notice of motion to show cause, the procuring of such an order is not a sufficient compliance with section 5157, and the right of revivor is barred unless the final order of revivor is made within the time prescribed.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 429. 434; Dec. Dig. § 74.*]</p>

<p>Salvage (§ 8*) — Nature oe Service — Assisting Vessel Alter Collision— “Salvage Service.”</p> <p>The services of three tugs in freeing a steamship whose anchor chain, while anchored off Staten Island, had become fouled with that of another anchored vessel after a collision between them during a high wind, which still continued, held “salvage service,” and entitled to be compensated as such; also, after such .tugs and others had towed the steamship across the bay to a dock, which was an ordinary towage service, their further service in rescuing her, when she had been broken loose from her moorings by the gale, and in protecting her from further injury by striking against the wharf, was a “salvage service.”</p> <p>[Ed. Note. — For other cases, see Salvage, Dec. Dig. § 8.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6316-6318.]</p>

<p>T. K. Wilson was indicted for violating the national bank act (Rev. St. § 5209 [U. S. Comp. St. 1903, p. 3197]).</p>

<p>1. Witnesses (§ 208*) — Cross-Examination-— Equity Suits m Federar Courts.</p> <p>The rule laid down in Blease v. Garltngton, 02 U. S. 1, 23 L. Ed. 521 which interprets equity rule 67, requiring ail testimony offered to be taken regardless of objection to its competency, materiality, or relevancy, has no application to the question of the proper scope of cross-examination.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 208.*]</p> <p>2. Witnesses (§ 269*) — Cross-Examination—Scope.</p> <p>Cross-examination must, be confined to the subjects of the direct examination, and, if the cross-examiner desires to examine as to other matters, the proper practice is to make the witness liis own, at the proper time in presenting his own ease.</p> <p>LEd. Note. — -For other cases, see Witnesses, Cent. Dig. §§ 949-951; Dee. Dig. § 269.*]</p> <p>3. 'Witnesses (§ 268*) — Cross-Examination—Scope.</p> <p>A cross-examiner, by asking of the witness questions not within the proper scope of cross-examination, cannot make the testimony thus, elicited the basis for further and still more extended cross-examination.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 208.*]</p>

<p>1. Trusts (§ 853*) — Right to Follow Trust Property — Effect of Insolvency of Trustee.</p> <p>Tbe general rule is that trust funds in the hands of an insolvent that have been fraudulently diverted or appropriated can be recovered of the receiver when they are susceptible of identification, and if they have been intermingled with other property rendering them undistinguishable without fault of the trustee a court of equity is powerless to grant relief.</p> <p>[Ed. Note. — For’other cases, see Trusts, Cent. Dig. § 526; Dec. Dig. § 353.*]</p> <p>2. Trusts (§ 833*) —Following Trust Property — Effect op Insolvency op Trustee.</p> <p>Where an unlawful appropriation of trust funds by an insolvent re-sidís in increasing his general assets, though the trust funds are intermingled with the genera] funds so as to render tlieir identification impossible, a court of equity will decree priority of payment to the cestui que trust over the common creditors.</p> <p>|m Note. — Por other cases, see Trusts, Cent. Dig. § 526; Dec. Dig. § 353.*]</p> <p>3. Banks and Banking (§ 268*) — National Bank-Insolvency and Receivers — Recovery op Trust Funds.</p> <p>Where the proceeds of a draft sent to a national bank for collection and remittance were pend to the receiver of the hank on its insolvency, the owner of the draft is entitled to recover the amount thereof.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 268.*]</p> <p>4. Banks and Banking (§ 268*) — National Bank — Insolvency and Receivers — Trust Funds.</p> <p>Where a draft sent to a national bank for collection and remittance was paid by check on another bank, where the cheek was deposited and the proceeds credited to the collecting bank, the owner of the draft on insolvency of the collecting bank and appointment of a receiver is entitled to recover only the lowest balance to the credit of the collecting bank in the bank on which the cheek was drawn between the date of the deposit in the latter bank and the appointment of the receiver.</p> <p>LEd. Note. — For other eases, see Banks and Banking, Dec. Dig. § 268.*]</p> <p>5. Banks and Banking (§ 287*) — National Bank — Insolvency and Receivers — Trust Funds--Burden op Proof.</p> <p>In an action against a receiver of a national bank to recover as a trust fund the amount of a draft collected by the bank, the burden of proof is on the owners of the draft to trace its proceeds into the common assets.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 287.*]</p> <p>6. Banks and Banking (§ 268*) — National Bank — Insolvency and Receivers — Trust Funds.</p> <p>Where a draft was sent to a national bank for collection and remittance, and was paid by check, which was deposited in the bank on which the check was drawn and the proceeds credited to the collecting bank, and There was then a sufficient balance in favor of the collecting hank to pay the check, hut before the appointment of a receiver of the collecting bank on its insolvency there was a cash withdrawal of an amount, exceeding the amount of the check, though leaving a balance greater than the amount of the check, which balance, however, was extinguished before the appointment of the receiver, the owner of the draft is not entitled to recover its amount out of the general assets.</p> <p>LEd. Note. — For other cases, see Banks and Banking, Dec. Dig. § 268.*]</p> <p>7. Banks and Banking (§ 268*) — National Bank — Insolvency and Receivers — Trust Funds.</p> <p>Where drafts sent to a national bank were upon depositors in the bank, and the amount thereof was debited to their accounts, no money coming into the possession of the bank by reason thereof, the owner of the draft cannot recover the amount thereof out of the general assets from the receiver of the bank on its insolvency.</p> <p>[Ed. Note. — For oilier cases, see Banks and Banking, Dec. Dig. § 268.*]</p> <p>8. Banks and Banking (§ 268*) — National Bank — Insolvency and Receivers — Trust Funds.</p> <p>Where a draft sent to a national bank for collection and remittance was paid bj’ a check in favor of the bank, and was indorsed and transmitted to another bank, which credited the amount to the collecting bank, and the check was collected through the clearing house after the appointment of a receiver of the collecting bank on its insolvency, the draft not having been credited to tbe collecting bank to make good its overdraft until after the appointment of tbe receiver, though the receiver may institute proceedings to recover such amount, the owner of tbe draft is not entitled to recover it out of the general assets of the collecting bank where it has not actually been collected.</p> <p>[Ed. Note. — Eor other cases, see Banks and Banking, Dec. Dig. § 268.*]</p> <p>9. Banks and Banking (§ 268*) — National Bank? — Insolvency and Receivers — Tbust Eunds.</p> <p>Where drafts were sent to a national bank for collection and remittance and. were paid in checks which were indorsed to another bank and credited to the account of the collecting bank to cover overdrafts, tbe owner of the drafts is not entitled to reco.er their amount of the receiver of the collecting bank on its insolvency out of the bank’s general assets, though the proceeds diminished the indebtedness of the insolvent bank.</p> <p>[Ed. Note. — Eor other cases, see Banks and Banking, Dee. Dig. § 268.*]</p>

<p>Jeanne Rose Dupont was indicted for perjury. On demurrer to indictment.</p>

<p>1. Shipping (§ 84*) — Liability op Vessels — Injuey to Stevedore.</p> <p>A ship's duty to one employed 'by stevedores, engaged as independent contractors in discharging the vessel, ends when it furnishes him with a safe working place and a safe passage thereto.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Shipping (§ 84*) — Liability of Vessel — Injury to Stevedore.</p> <p>Libelant was employed by stevedores, who had contracted to remove the ballast from a vessel, to run a hoisting engine used on a scow alongside the vessel. While the work was suspended during a heavy snowstorm, at the request of his employers he went along the deck of the vessel to look after the lines of the scow, and, slipping on a skylight, which was covered with snow, fell and was injured. The passageway across the vessel, over which libelant, was required to pass from the pier to the scow, was free of snow. Held, that the vessel was not required to keep the other parts of therdeck cleared of snow as fast as it fell for his protection, and was not chargeable with any negligence which rendered it liable for his injury.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 342, 349-351 -r Dec. Dig. § 84.*]</p>

In the matter of the bankruptcy of Jacob Suckle. On petition to review the claim of Dora Suckle for wages. The petitioner presented a claim for $680 against the estate of the bankrupt for alleged services as clerk. The claim was disallowed by the referee and on a petition for a review brought before this court.

<p>In Equity. Suit by the Philadelphia Extracting Company against the Keystone Extracting Company and others. On motion for preliminary injunction.</p>

<p>1. Courts (§ 328*) — Federal Courts — Jurisdiction — Amount in Controversy.</p> <p>Where a suit against a mutual benefit association to invalidate an assessment involved a certificate for 82,000 and benefits, and defendant’s allegation as to the amount involved was not traversed, the amount was sufficient to confer federal jurisdiction, notwithstanding a tender of premium.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 890-890; Dec. Dig. § 328.*</p> <p>Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459..]</p> <p>2. Removal op Causes (§ 106*) — Right to Remand — 'Waiver.</p> <p>Plaintiff, by noticing a demurrer for argument after the removal of cause, waives his right to remand.</p> <p>[Ed. Note.. — -For other cases, see Removal of Causes, Cent. Dig. § 210; Dec. Dig. § 106.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by the'West Publishing Company against the Edward Thompson Company. Decree for defendant (169 Eed. 833), and complainant appeals.</p>

<p>1. Sales (§ 128*) — Contract—Rescission.</p> <p>Defendant having contracted to purchase certain pulp wood from, plaintiff, deliverable from year to year beginning .Tuly, 1908, without objection postponed the delivery until October 1, 1908, and on October 14th suggested that plaintiff defer shipments until spring because of the congested condition of its yards. Plaintiff made no reply to this, but im-mediatelj' reguested cars from a railroad company to “test the matter,” which cars were refused because defendant had placed an embargo on shipments of wood which continued only from October 1st to 28th. AVhen plaintiff ordered the cars, he had made no preparation to cut or haul any wood, nor did he own any timber in the territory to which he was limited by the contract, nor had he made any effort to buy any such wood from others. 'Reíd, that defendant’s embargo and suggestion to delay shipments did not constitute a total repudiation of the contract.</p> <p>[Ed. Note. — For other cases, see Bales, Cent. Dig. § 318; Dec. Dig. § 128.*]</p> <p>2. Appeal and Error (§ 171*) — Theory op Cause — Change—Reversal.</p> <p>Where, in a suit for breach of a contract to purchase pulp wood, plaintiff based his whole case as pleaded on defendant's total repudiation and termination of the contract, on which theory he was defeated, he was not entitled to a reversal on the theory that he was entitled to recover damages for defendant’s delaying plaintiff’s execution of the contract so far as first year’s deliveries were concerned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1033-1061; Dee. Dig. § 171*]</p>

<p>Limitation of Actions (§ 127*) — Action fob Wrongful Dhath — Limitation — Amendment of Deolabation.</p> <p>The plaintiff in the Circuit Court brought suit against the defendant in the Circuit Court for the death of his intestate, which occurred during the voyage from New York to Galveston aboard a steamship operated by the defendant, which is a corporation created and existing under the statutes of Kentucky. In accordance with The Hamilton, 207 TJ. S. 398, 28 Sup. Ct. .133, 52 L. Ed. 264, the action for the death necessarily rested on the Kentucky statutes. The declaration as originally drawn was informal. A new declaration was substituted by amendment; but, as the original declaration contained every substantial fact necessary to create a case under the statutes referred to, although in an inartificial way, held, that Union Pacific Railway Company v. Wyler, 158 TI. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and Boston & Maine Railroad v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 50 L. R. A. 193, so far as they related to the substitution of a statutory cause of action for a common-law cause of action, had no application to this case, and that the amendment here related back to the time of bringing suit.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. 543-547; Dec. Dig. § 127.*]</p>

<p>1. Master and Servant (§ 271*) — Action kor Injury to Servant — IncompeTENCY OK FELLOW SERVANT — JilVlDENCE OK MASTER’S KNOWLEDGE.</p> <p>In an action by a brakeman against a railroad company to recover for an injury received while coupling an engine to a car standing on a spur track, alleged to have been caused by the negligence of the engineer who it was alleged was incompetent and reckless to defendant’s knowledge, defendant's records showing that the engineer had been several times suspended and reprimanded for acts of carelessness or Incompetence were competent evidence in behalf of plaintiff on such issue.</p> <p>|Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 930; Dec. Dig. 271.*]</p> <p>2. Master and Servant (§§ 288, 289*) — Action kor Injury to Servant — Questions eor J URY.</p> <p>The qneslion of the contributory negligence of a brakeman who was injured while coupling a moving engine to a car on a spur track, and also the question whether.his injury resulted from a risk of his employment, held properly submitted to the jury under the evidence.</p> <p>(Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1132; Dec. Dig. 288, 289.*]</p>

Appeals from the Circuit Court of the United States for the Eastern District of Oklahoma. In Equity? Suit by Ralph W. Aigler against the Oklahoma Central Railway Company and the Canadian Valley Construction Company. The Illinois Steel Company appeals from an order striking from the files its amended petition in intervention and from an order authorizing Asa E. Ramsey as receiver for the defendant railroad company to issue receiver’s certificates.

<p>Appeal from the District Court of the United States for the District of Oregon.</p> <p>In Admiralty. Suit by the United States against the .Port of Portland. Decree for libelant, and respondent appeals.</p>

<p>1. Removal of Causes (§ 97*) — PROCEEDINGS for Removal — Effect of Filing Petition and Bond.</p> <p>The filing of a proper and sufficient petition and bond for the removal of a cause terminates the jurisdiction of the state court, and any subsequent proceedings therein in such court are coram non judice, and absolutely void.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Big. § 206; Dec. Dig. § 97.*]</p> <p>2. Abpearance (§ 9*) — General or Special — Proceedings for Removal of Cause.</p> <p>The filing of a petition for removal in a state court, and of a memorandum by counsel with the record in the federal court on denial of the petition by the state court, stating that they appear for the removing defendant, and their appearance to argue a motion to remand, are all acts essential to secure the removal, and properly done under a special appearance for that purpose, and do not singly or together amount to a general appearance of the defendant, which will preclude them from attacking the jurisdiction of the court on the ground of insufficiency of service.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. § 50; Dec. Dig. I 9.*]</p> <p>3. Removal of Causes (§ 114*) — Proceedings After Removal — Jurisdictional Questions.</p> <p>A party removing a cause to a federal court has a right, after the removal, to the judgment of that court on any question relating to the validity of the service of process, even though such question has been passed ou by the state court, since it affects the jurisdiction of the federal court, itself.</p> <p>[E<1. Note. — For other cases, see Removal of Causes, Cent. Dig. § 241; Dec. Dig. § 114.*]</p> <p>4. Attachment (§ 209*) — Service bt Publication — Conditions Precedent.</p> <p>Statutes authorizing the service of process on nonresident property owners, by publication, in attachment suits, must be strictly complied with to give the court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 676; Dec. Dig. § 209.*]</p> <p>5. Process (§ 96*) — Service by Publication — Conditions Precedent Under North Carolina Statute — Affidavit.</p> <p>Under Revisal N. C. 1905, § 442, which in certain cases authorizes tlve making of an order for service of process on a defendant by publication, where it is made to appear by affidavit to the satisfaction of the court that such defendant “cannot after due diligence be found within the state” as construed by the Supreme Court of the state, an affidavit alleging or showing due diligence and that defendant cannot be found within the state is an essential condition precedent to a valid service by publication, and an affidavit in an attachment suit which merely alleges that defendants are residents of another state and cannot be found within the state, but fails to show any diligence or search whatever, is fatally defective, and a publication based thereon does not give the court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 118; Dec. Dig. § 96.*]</p> <p>6. ATTACHMENT (§ 209*)-SERVICE BY PUBLICATION — ATTACHMENT SUIT — NORTH Carolina Statute.</p> <p>Under Code N. C. § 352 (Revisal N. C. 1905, § 766), which provides that when the summons in an attachment suit is to be served by publication, the publication shall state the fact of the attachment, “the amount of the claims,” and in a brief way Ihe nature of the demand, an order and a publication based thereon which fail to state the amount of the plaintiff’» claims are fatally defective.</p> <p>[Ed. Note. — For other eases, see Attachment, Cent. Dig. § 082; Dec. Dig. § 209.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Maryland, at Baltimore.</p> <p>Action by John Bakhaus and wife against the Germania Fire Insurance Company. Judgment for defendant, and plaintiffs bring error.</p>

Action by the United States against Kelly W. Sisk and others. Judgment for defendants, and plaintiff brings error. This is an action of debt on a distiller’s bond.

Suit in admiralty by the Sociéié Nouvelle d’Arniement, as owner of the bark Boieldieu, against the steamer Santa Rita; the United Steamship Company,, claimant. Decree for respondent (173 Fed. 4Id), and libelant appeals.

Bill by Frank Wilmerton against William W. Wilmerton ’ and another. Decree dismissing the bill, and complainant appeals.

<p>Carriers (§ 320*) — Injuries to Passengers — Negligence Per Se.</p> <p>Plaintiff, a passenger, was injured by the derailment of the train, and in an action for the injuries sustained alleged that defendant was negligent in the formation of the train, in its operation in a negligent manner, and in that the roadway was defective. There was evidence that the derailment might have been caused by a broken rail, and it was admitted that the train at the time was being operated with a locomotive in the rear, a passenger coach, and two tank cars in front. There was also testimony that it was necessary to move the train as constructed at the time of the derailment, to reach a siding on which it was to be rearranged, and that the other tracks were so congested that the use of the siding was the only feasible way to accomplish the purpose, and that the train was then being moved cautiously and only four miles an hour. It also appeared that these changes might have been made before permitting passengers to board the train, but were not. Seld, that an instruction that the operation of a train so arranged for the carriage of passengers was negligence per se was erroneous, though the jury was also charged that, in order to warrant a recovery on such ground, the jury must be satisfied that such negligence was the proximate cause of plaintiff’s injury, whether the operation of a train so arranged under such circumstances was negligent being for the jury.</p> <p>[Ed. Note. — Dor other cases, see Carriers, Doc. Dig. § 320.*]</p>

For decision below, see 171 Fed. 284, affirming a decision by the-Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Philadelphia on merchandise imported by Carl Grubnau.

<p>Appeal from the District Court of the United States for the Western District of Wisconsin.</p> <p>In the matter of the bankruptcy proceedings against the Clover Creamery Association. From an order allowing J. W. Claridge to prove a claim against the bankrupt’s estate, Hvan A. Evans, trustee, appeals.</p> <p>Appellant herein appeals from Die oidor of said District Court allowing ap-pellee, as it is alleged, to prove up his claim against the said bankrupt's estate after the expiration of the period of 60 days succeeding the rendition of the judgment had in proceedings to liquidate the same in the state court, and contrary to section 57n of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 560 [TI. S. Comp. St. 1901, p. 3414]), which roads as follows, viz.:</p> <p>“Sec. 57n. Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, then within sixty days after the rendition of such judgment.”</p> <p>The association was adjudged a bankrupt on February 18, 1907. Appellee tiled his claim before the referee on April !(>, 1909. At the time of the adjudication appellee held an indebtedness of $2,500 against the Association, secured by a mortgage upon its real estate. On April 5, 1907, the said real estate was sold by order of the referee in bankruptcy, free and clear of the mortgage, and the lien was transferred to the proceeds in the hands of the trustee. There; after appellee brought suit in a Wisconsin court to foreclose said mortgage^ and about the same time the trustee brought suit in the same court to recover certain alleged preferences amounting to $2,716.17, alleged to have been paid to appellee within four months prior to the adjudication. On March 26. 1908, a judgment was rendered in said latter cause against appellee for $2,073.79, and at about the same date the court rendered judgment against appellee in the foreclosure proceeding in favor of the trustee for $1,720, the proceeds of the sale of the mortgaged property. On appeal taken in both cases, the judgment for the alleged preference was affirmed, and the foreclosure suit was reversed, and judgment was entered therein for $1,725, in favor of appellee. Both decisions were handed down on October 20, 1908. A motion being made for a rehearing in the preference suit in the Supreme Court, the same was on December 15, 1908, denied. Remittiturs were filed in the trial court in both causes on January 28, 1909. On January 26, 1909, and pursuant to stipulation in the Supreme Court, the two judgments for costs were offset, leaving a judgment' for costs in favor of appellee in the foreclosure action of $119.70. Afterwards, by agreement made March 29, 1909, the parties offset their respective judgments, whereby appellee was found to be owing the trustee $956.01, which suni he paid on April 16, 1909. On the same day appel- , lee filed his said claim with the referee as aforesaid, for $3,454.61, which was on June 26, 1909, allowed for that sum by the referee. On hearing before the District Court, the claim was reduced and allowed for $2,573.79. The errors assigned raise the one question whether appellee’s claim was presented in due time. :</p>

Appeal front the Circuit Court of the United States for the Northern District of Iowa. Suit in equity by Eoscoe Lyle against George M. Patterson and others. Decree for defendants (ICO Fed. 545), and complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>Suit in equity by Alfred Dockendorf against D- D. Bassett and K. Riddell. Decree for defendants (160 Fed. 513), and complainant appeals.</p>

In. Error to the Circuit Court of the United States for the Western District of Pennsylvania. Actions by Annie B. Nist and by George M. Eoulds and others against the Pressed Steel Car Company. Judgment for plaintiffs in each case, and defendant brings error.

<p>Patents (§ 218*) — Royalties—Eights.</p> <p>On an accounting between partners in the ownership of a patent under a license contract with.one of the partners by which he was authorized' to grant sublicenses, accounting to the partnership for a stated royalty on each of the patented articles sold by the sublicensee, where a subli-censee paid an agreed sum for the license privilege which entitled him to-sell a stated number of the articles without further payment, the partnership is entitled to the royalty on such number, without regard to the number actually sold.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 218.*]</p>

<p>Witnesses (§ 16*) — Production oe Documents — Public Policy — Navy De-( PAKTMENT PLANS.</p> <p>Where, in a suit to restrain contractors for torpedo boat destroyers containing certain turbine engines alleged to infringe complainant’s patents, complainant's witnesses, who had examined the plans and specifications on file in the Navy Department, testified that the turbines called for constituted an infringement of complainant’s patents, and in answer to a subpoena duces tecum to compel defendant to produce copies of the plans and specifications, defendant contended that such disclosure was objected to by the Navy Department as detrimental to the interests of the United States, in that it would divulge military secrets, while complainant insisted that the Navy Department objected merely because it was detrimental to the interest of the United States for the department to disturb the cordial relations existing between it and the contractors, and that the furnishing of the copies by defendant voluntarily or by process of the court was not objected to, the matter will be continued until a statement of the Navy Department can he filed showing the grounds of its objection.</p> <p>LEd. Note. — For other cases, see Witnesses, Dee. Dig. § 16.*]</p>

<p>1. Courts (§ 322*) — Federal Courts — Jurisdiction — Diversity of Citizenship-Allegations in Pleading.</p> <p>That the 'bill merely recites facts showing diversity of citizenship of the parties, instead of making distinct traversable averments thereof, is not ground for denying relief, where the afiidavits of the defendant do not in an}’ way dispute the diversity of citizenship.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 87(5-881, 887; Dec. Dig. § 322.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Trade-Marks and Trade-Names (§ 22*) — Marks Subject of Ownership— Priority of Use.</p> <p>A maniacturer of silverware is not debarred from establishing as its trade-mark in this country a combination of devices of an anchor, lion, and the letter G, by the fact that each of these is a hallmark used on English silver, and that, used in combination, they would indicate to a buyer of English silver that the piece was sterling ware made in the city of Birmingham in 1831.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 25; Dec. Dig. § 22.*]</p> <p>3. Contempt (§ 9*) — Acts Constituting — Publications Relating to Pending Proceeding.</p> <p>A notice by complainant, a manufacturer of silverware, to the trade, that complainant is asserting the validity of its trade-mark, and is endeavoring to sustain it in court, and that the defendants were stayed from infringing ii by an order of the court issued simultaneously with the order to show cause, is proper, and does not constitute contempt of court.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 15-18; Dec. Dig. I 9.*]</p>

<p>At Law. Action by Clark Brothers Company against the Tennessee Lumber Manufacturing Company. Rule for judgment for want of a sufficient affidavit of defense. Rule absolute.</p>

<p>On Application for Review of a Decision by the Board of United States G.eneral Appraisers. .</p> <p>The opinion filed by the Board of General Appraisers reads as follows :</p> <p>1VAITE, General Appraiser. The merchandise is an edible fungus, which, according to the testimony, grows on the bark of trees in Chinn. It has been dried in the sun and packed loose in wooden cases for importation, it was assessed as a vegetable in its natural state under paragraph 257, tariff act of 1807. and is claimed to be dutiable at 2*4 cents per pound, by similitude to mushrooms, under paragraph 241. with an additional claim for free entry under paragraph 617. The latter contention we do not consider necessary to discuss. See G. A. 6,184 (T. I). 26,812). The claim under paragraph 241 is evidently the one upon which the importers rely.</p> <p>According to the testimony, this fungus is used by the Chinese as mushrooms are used, being usually cooked with meat. Tn tills respect, however, iis use seems to be the same as that of many of their curious vegetable substances, which witnesses generally state are prepared with meat. In claiming that this commodity should be dutiable under paragraph 241 by similitude to mushrooms, the importers probably rely on the case of Von Bremen v. United States, 168 Fed. 88», !>4 C. C. A. 301, T. I). 29,001, where it was held that truffles in tins were classifiable under paragraph 241 by similitude to “mushrooms, prepared or preserved, in tins.” However, the fungus here in question has not been so packed, but has been merely dried and packed loose in wooden cases; and. if to be considered similar to mushrooms at all, it more resembles the dried variety, which were similarly packed in barrels, and were held in the Zimina ti Case. lA! Fed. 880, 82 C. C. A. 626, T. D. 28,054, to be dutiable as vegetables in their natural state. The fungus before us lias been so classified by the collector. and we are of the opinion his decision is correct. Mote G. A. 6,184, supra.</p> <p>The protest is overruled.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision rendered by the Board of Appraisers, which is reported as G. A. 6,828 (T. D. 29,358), affirmed the assessment of duty by the collector of customs at the port of New York. The Board’s opinion reads as follows: McClelland, General Appraiser.

Application by Wong You and others for writs of habeas corpus to procure their release from custody under orders for deportation made under immigration laws, on the ground that they were alien Chinese held in the United States under deportation proceedings.

The Louisville & Nashville Railroad Company was indicted for violating the live stock quarantine act, and demurred to the indictment.

Action by the. United States against Roscoe E. Cantrall and others. On plaintiffs’ motion to strike out portions of the answer and on demurrer to the second defense.

<p>In the matter of the bankruptcy of Orlando S. Clark and Herbert R. Clark, as individuals and as copartners doing business under the name of the “H. R. Clark Plaster Works.” On petition for review of an order made by John M. Brainard, Referee in Bankruptcy, disallowing and expunging the claim of Frank S. Smith and Alice J. C. Smith for $4,663.40.</p>

<p>In Equity. Bill by the United States against the Boston Elevated Railway Company and others.</p>

<p>Action by the Youghiogheny & Ohio Coal Company, a citizen of Ohio, against Verstine, Hibbard & Co., a citizen of Pennsylvania, in assumpsit. Judgment for defendant.</p>

<p>Indictment against John London for conspiracy to defraud the United States. Heard on motion for arrest of judgment.</p>

<p>Action by Edward Fribourg and wife against the Pullman Company. On motion to dismiss.</p>

<p>Action by the Rural Home Telephone Company against Joshua D. Powers, receiver of the Independent Long Distance Telephone & Telegraph Company and others. On motion to remand to state court.</p>

<p>1. Bankruptcy (§ 896*) — Assets—Homestead—Mortgage.</p> <p>Since homestead property does not pass to a bankrupt’s trustee, the fact that it was mortgaged to certain creditors does not make it assets to be administered in bankruptcy.</p> <p>[Ed. Note.' — For other .cases, see Bankruptcy. Dee. Dig. § 396.*]</p> <p>2. Bankruptcy (§ 311*) — Preferences—Surrender.</p> <p>The surrender of a preference contemplated by Bankr. Act ,Tuly 1, 1898, c. 541, § 57, subd. “g,” 30 Stat. 560 (U. S. Comp. St. 3901, p.-3443), must be to the trustee, and not to the bankrupt, nor to any other person.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 311.*]</p> <p>3. Bankruptcy (§ 399*) — Mortgages—Unlawful Preference — Exempt and Nonexempt Property.</p> <p>A mortgage on both exempt and nonexempt property constituting an unlawful preference, is only voidable by the mortgagor’s trustee in bankruptcy as to the nonexempt property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 399.*]</p> <p>4. Bankruptcy (§ 811*) — Mortgages—Kelease.</p> <p>A mortgage on a bankrupt’s exempt and nonexempt property constituting an unlawful preference, was not required to be released so far as the exempt property was concerned as a condition to the mortgagee’s right to prove the debt secured, but only so far as it covered assets of the bankrupt which were a fund for creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 311.*]</p> <p>5. Bankruptcy (§ 310*) — Claims—’‘Secured Creditors.”</p> <p>A creditor of a bankrupt holding a mortgage on exempt property is not a “secured creditor” within Bankr. Act 1898, § 1(23), providing that secured creditors shall include one who has security for his debt on the property of the bankrupt of a nature to be assignable under the act, or who owns such a delit for which some indorser, surety, or other person seo-oiuiarily liable for tbe bankrupt, has such security on 1ho bankrupt’s assets.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 3X0.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. (>385.3</p> <p>6. MARSHALING ASSETS AND SECURITIES (§ ,'!*) — SUPERIOR EQUITIES — HOMESTEAD — Exemptions. -></p> <p>Where a creditor has a mortgage on the debtor's exempt homestead, and also the right to prove his debt against the debtor's estate in bankruptcy, the debtor's homestead equity is superior to the rights of general creditors, who are not. therefore, entitled to have the assets marshaled and to compel the secured creditor to first exhaust his security before resorting to the general assets, under the rule that assets will not be marshaled to the disadvantage of the holder of an equal equity.</p> <p>[Kd. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 3; Dec. Dig. I 3.*]</p>

<p>1. Removal of Causes (§ 11*) — Statutes—Construction.</p> <p>Judiciary Act March 3, 1887, e. 373, § 1, 24 Stat. 552, as amended, by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 509), provides that any suit of a civil nature at law or in equity arising under the Constitution or laws of the United States of which the Circuit Courts of the United States are given original jurisdiction by section 1 may be removed from the state court by the defendant to the Circuit Court of the United States for the proper district. Held, that the clause “of which the Circuit Courts of the United States are given original jurisdiction” refers to the general grant of jurisdiction contained in section 1, and not to the particular court in which the action must be brought according to the terms of the last part of such section.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 31; Dec. Dig. § 11.*]</p> <p>2. Removal of Causes (§ 11*) — Coukt to Which Removal Should be Made.</p> <p>The rule that a case cannot be removed to the federal Circiiit Court unless it could have been commenced therein refers to the particular Circuit Court to which removal is sought.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 11.*]</p> <p>3. Removal of Causes (§ 11*) — Right to Removal.</p> <p>Since by the terms of Judiciary Act March 3, 18S7, c. 373, § 1, 24 Stat. 552, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), an action for injuries based on Federal Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), between citizens of Wisconsin could only be brought originally in the Circuit Court of the United States sitting in the state of Wisconsin for the district in which the defendant resided, federal jurisdiction depending on the contention that the case was one arising under the laws of the United States, and, such suit having been brought in the state courts of Minnesota, it was not removable by the defendant over plaintiff’s protest to the federal Circuit Court in the district of Minnesota.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 11.*]</p> <p>4. Couets (§ 276*) — Federal Courts — Venue.</p> <p>Where there is in fact a controversy- between citizens of different states, the parties can confer jurisdiction on a particular federal Circuit Court, though it is not the circuit court of the residence of either plaintiff or defendant.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. $ 276.*]</p> <p>6. Courts (§ 276*) — Federal Courts — Jurisdiction—Controversy Between Citizens — Venue.</p> <p>Where a case involves a federal question, the parties may agree to try it in a federal district other than that of which the defendant is an inhabitant, notwithstanding Judiciary Act March 3, 1887, c. 373, § 1, 24 Stat. 552, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), providing that cases involving federal questions can be brought only in the district where the defendant resides.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. f 276.*]</p> <p>6. Removal of Causes (§ 106*) — Federal Jurisdiction — Venue—Remand-Waiver.</p> <p>Where a petition for removal was defective on its face in that it stated no facts, showing a removable cause, the fact that plaintiff before moving to remand took the deposition of a witness under a notice headed ■“United States Circuit Court, District oí Minnesota, Third Division,” and that the deposition was filed in such court, no transcript from the state court having at that time been filed therein, did not waive plaintiff’s right to have the cause remanded under the rule that where the petition states no ground for removal, a state court is not deprived of its jurisdiction, and that jurisdiction is not conferred on the Circuit Court by the mere filing of a petition and bond.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 216; Dec. Dig. § 106.*]</p> <p>7. Removal of Causes (§ 90*) — Order of Removal.</p> <p>Since no order of removal is necessary, where removal of a cause to a federal court is proper, an order of removal by the judge of the state court confers no jurisdiction on the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 90.*]</p> <p>8. Removal of Causes (§ 25*) — Petition—Federal Question.</p> <p>A petition for the removal of a cause as involving a federal question alleging that the cause was one arising under the laws of the United States, to wit, Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), was insufficient, where there was no statement In the eomplaint, answer, or petition that there was any dispute between the parties as to the construction or effect of the act, the fact that plaintiff may base his right to recover on such act not being sufficient to justify a removal.</p> <p>[Ed. Note.- — For other cases, see Removal of Causes, Cent. Dig. §§ 58, 59; Dec. Dig. f 25.*]</p>

Ri Dick seeks discharge on writ oí habeas corpus claiming that he is illegally held and deprived of his liberty on a warrant of deportation made January 29, 1910, by the Acting Secretary of Commerce and Rabor commanding John H. Clark, Commissioner of Immigration, to return said Ri Dick to “the country whence he came.”

<p>Action by Henry P. Jacobson against the Chicago, Rock Island & Pacific Railway Company and another. On motion to remand case to state court.</p>

<p>1. Salks (S 454*) — Conditional Pape — Distinction from Bailment.</p> <p>A contract for the delivery of showcases, by which title is retained until the price and all costs have been paid, is one of .conditional sale, and not of bailment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1324-1831; Dee. Dig. | 454.*</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 C. C. A. 448.]</p> <p>2. Sams (§ 472*) — Conditional Sales — Ei<kect as to Third Persons.</p> <p>In Pennsylvania a contract of conditional sale is void as to third persons.</p> <p>!Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1:366-1376; Dec. Dig. § 472.*]</p> <p>3. Bankruptcy (§ 140*) — Administration op Estate — Title op Trustee.</p> <p>Where a bankrupt at the commencement of the proceedings is in possession of property under a contract of conditional sale made and to be performed in Pennsylvania, the trustee in bankruptcy, and not the vendor, is entitled to the property.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>Action by Leslie H. Fawkes against the American ‘Motor Car Sales Company. On motion to set aside the service of summons.</p>

<p>Action by the United States against the Lehigh Valley Railroad Company. On motion to dismiss without prejudice.</p>

<p>1. Bankruptcy (§ 136*) — Withholding Assets — Contempt—Punishment— Defenses.</p> <p>A bankrupt should not be committed for contempt for failure to comply with an order requiring him to turn over money to. his trustee alleged to have been withheld, where the court is convinced that,the- bankrupt is without physical ability to comply.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Digv§ 136.*]</p> <p>2. Bankruptcy (§ 136*) — Withholding Assets — ContempitAPpRishment— Hearing.</p> <p>Where- an order, finding that a bankrupt had retained from his trustee a certain sum of money and directing the payment thereof, liad been previously affirmed by the District Court and-remained unappéálje'd from, it would not be reviewed by such court in a' proceeding, to punish' the bankrupt for contempt in failing to comply therewith^</p> <p>[Ed. Note. — For other cases, see Bankruptcy, .Dee, Dig. § 136.*].</p> <p>3. -Bankruptcy (§' 136*) — Withholding Assets. — Contempt—Punishment-Evidence.</p> <p>In a proceeding to punish a bankrupt for contempt in failing! to comply with an order requiring him to turn over withheld-assets to-his trustee, evidence held to require a finding that the bankrupt-had not present ability to comply, and was not therefore subject to incarceration for contempt.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

<p>In the matter of the application for removal of Joseph T. Quinn to the Southern 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>Appeal from the Circuit Court of the United States for the Southern District of Georgia.</p>

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

<p>On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Richmond.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>On motion to amend complaint.</p>