Volume 177 — Federal Reporter

Petition for mandamus by Arthur C. Huidekoper against Herbert S.'Hadley and others. The petition was. dismissed on plea to the court’s jurisdiction, and plaintiff brings error.

<p>1. Sales (§§ 355, 363*) — Action for Price — Issues—Questions for Jury.</p> <p>During several years defendant had from time to time purchased steamboat machinery from plaintiffs which at his request was shipped to different transportation companies with which he was connected, but in all cases the contracts and payments were made by him personally. He ordered from plaintiffs machinery for a new steamboat stating that he and others were about to organize a company. He personally superintended the building of a part of the machinery and made payments thereon, receipts for a part of which were at his request made to the company which had in the meantime been formed, and by his direction the machinery was billed and shipped to the company, and the bills therefor made in the name of the company were sent to him. All letters and telegrams to plaintiffs until some months after the machinery was delivered were signed by him in his own name. Full payment not having been made plaintiffs brought action against him to recover the balance due, which he defended on the' ground that the sale had been made to the company and not to him. Plaintiffs testified that they had no dealings with the company, but contracted with defendant individually. Held, that there was no issue in the case as to agency or plaintiffs’ right of election, but the question was as to whether the contract was made with and credit given to defendant which was one for the jury.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. §§ 355, 363.*]</p> <p>2. Corporations (§ 174*)' — Stockholders—Nature of Relation.</p> <p>A stockholder is not in all relations in privity with his corporation but only as to rights arising out of his contracts of subscription for stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 649-652; Dec. Dig. § 174.*]</p> <p>3. Judgment (§,627*) — Judgment as Bar to Second Action — Persons Who may Plead Bar.</p> <p>In order that a defendant may plead in bar a judgment in a prior action, he must have been a party to, or represented in, the former action as an actual defendant, and in the same attitude as an adversary party toward the subject of the litigation as that in which he appears in the second action.</p> <p>[Ed. Note. — For other cases, see Judgment, tv. i. Dig. §§ 1141-1143; Dec. Dig. § 627.*]</p> <p>4. Estoppel (§ 68*) — Claim or Position in Judicial Proceeding — Judgment as Bar — Estoppel.</p> <p>A stockholder who bought property on his own credit for the use of the corporation, and afterward for his own protection procured the creditor to assign the claim to a third person, who at his instance brought suit thereon and obtained a judgment against the corporation, is estopped to plead such judgment in bar of an action by the creditor against him to recover the debt.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*]</p> <p>5. Evidence (§ 241*) — Declarations—Statements by Agent.</p> <p>Where there is independent evidence of an agency declarations of the agent made in carrying out the purpose of the agency and upon which a second party acted are admissible against the principal.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 241.*]</p> <p>8. Sales (§ 358*) — Evidence—Documents—Coebobobative Evidence.</p> <p>Where a question in issue was whether defendant personally contracted for the building of certain machinery by plaintiffs as testified by them, or whether the contract was made by a corporation of which he was a stockholder and officer, plans of the machinery used in its consi ruction and made in plaintiffs’ shop, having defendant’s name thereon and shown to have been seen by defendant a number of times while he was superintending the work, were admissible in evidence on such issue.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 358.*]</p> <p>7. Sales (§ 358*) — Actiok bob Pbicb ob Goods Made Undeb Contbact — Evidence — Book Entbies.</p> <p>The fact that a manufacturer of goods charges the same to, or enters payments thereon to the credit of the person to whom they are delivered is prima facie evidence to show for whom the goods were manufactured and to whom credit was given, but is not conclusive, and the presumption may he overcome by proof that the goods were in fact made for, and the credit given to, another, and to that end other entries in the kooks made while the work was being done; showing that all items recorded relating to the work were in the name of such other person are admissible for the purpose of corroborating direct testimony that the work was done for him.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 358.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>> In Equity. Suit by Ernest V. Cowell against John S. McMillin and the Tacoma & Roche Harbor Lime Company. Decree for defendants, and complainant appeals.</p> <p>Ernest V. Cowell, a citizen of California, sued John S. McMillin and the Tacoma & Boche Harbor Lime Company, a coloration doing a large business making and selling lime at Boche Harbor, on the island of San Juan, Wash. The corporation has a capital stock of 1,000 shares of the par value of $100 each.</p> <p>The bill alleges, in substance, that Henry Cowell owned 275 shares of the capital stock when he died on August 4, 1903, and that Ernest V. Cowell, his son, the complainant herein, owns 34 shares; that Helen E. Cowell is executrix of the will oí said Henry Cowell deceased; that after the corporation was organized the defendant McMillin owned 180 shares of stock, and that the remaining shares of stock were issued to some seven persons whose names ar.e given in the bill; that McMillin was president and manager of the com-X>any after its organization, and lived at Boche Harbor; that McMillin’s salary was fixed by the first board of trustees at $2,500 per annum, but on January 29, 1889, it was raised to $3,000, and that on January 26, 1891, the board of directors, through the procurement of McMillin, increased his salary to $500 per month; that during the years 1888, 1889; 1890, 1891, and 1892, the company did a very large business and increased its assets, and out of the earnings for said five years paid cash dividends to the amount of 35 per cent, of its capital stock. It is alleged that in the course of its business, the company had erected a mill to manufacture barrels for use in marketing its lime, and built warehouses adjacent to the mill, and that it cost the corporation about 31 cents for each barrel; that during the year 1S92 the Waterman-Chapman Barrel Machine Company, of Michigan, sent a representative to the corporation’s place of business, and made a proposition to tbe corporation to install a patent machine for the manufacture of barrel staves in place of the machine then used by the corporation, said barrel machine company to receive compensation for the use of their machine by way of a royalty of lVa cents upon each barrel manufactured; that McMillin agreed that one of the patent machines could be installed for trial, and in 1S92 such patent machine was put in place and used; that McMillin, while manager, ascertained that barrels could be made by the use of the machine at a total cost, including the payment of the royalty, of 21 cents per barrel, and that in January, 1893, after having experimented with the patent machine, he made a proposition to the trustees of the company to lease the stave mill and buildings and machinery connected therewith in the manufacture of barrels from the corporation at $200 per month rental, and to sell barrels to the company at the rate of 30 cents per barrel, and that he fraudulently concealed from the trustées the fact that by using the patent machine barrels could be made at a cost of 21 cents each, and that he falsely represented the facts to the board of trustees in regard to the use of the mill machinery and the cost and expense of making the barrels, and fraudulently represented to the board of trustees the character and value of the patent machine, and that in violation of his duties and trust, lie entered into a contract, with the barrel machine company in bis own name for the use of the machine and the sale of the patent invention within the state of Washington; that McMillin was the only trustee who knew anything about the manufacture and sale of lime or barrels; that the trustees other Ilian MeMiltin had then entered into an agreement with McMillin by which McMillin was to purchase their shares of stock at, stated prices, and that thereupon McMillin fraudulently, through the representations referred to, induced the board of trustees to accept the proposition and to execute a lease in the name of the company to'him for the stave mill and machinery used in the operation of the mill for live years from March, 1893, and that McMillin caused the corporation to agree with him to buy barrels at the rate of 30 cents per barrel under an agreement which provided that it might be terminated by McMillin at his option at the end of one year. It is alleged that the value of the property included in the lease was more than $40,000, and that by the terms of the lease, the company was obliged to pay all taxes and insurance and repairs, the cost of which have amounted approximately to the total sum of the rent reserved to the defendant in and by the terms of (be lease. It is averred that by the terms of the agreement for the sale of ilie barrels by McMillin to tlio company, the company became bound to purchase all barrels required in its lime business upon substantially the following terms: First, the company was to boar all expense of inspecting, measuring, and delivering all material or supplies for the mill to be used in the manufacture therein in the booms or on the wharf, at the mill, and also for the delivery of all cooperage stock; second, to furnish McMillin the froe use of the shops and fools and necessary storage for barrels and materials and free wharfage on all supplies: third, to receive from McMillin all staves and heads when manufactured, and to credit him therefor at the rate of 14 cents per set Cor staves, and 4 cents per pair for heads, payment 1» be made on Hie first day of each and every month during the continuance of the lease, and any extension thereof, and to pay the further sum of 12 cents for each barrel when the barrel is complete ready for shipment.</p> <p>Complainant next alleges that, after making said contract and lease, Mc-Millin. in fraud of the rights of the company, conducted the barrel business in his own name and on his own behalf, and sold barrels to the company, and collected therefor at the rate of 30 cents per barrel until September, 1803, when the mill was destroyed by fire; that thereupon McMillin caused the company to rebuild the mill at an expense of over $40,000, and caused another barrel manufacturing machine to be installed and that after June, 1894, when the new plant was complete, McMillin continued to operate the mill and to sell the barrels to Hie company at the rate of 30 cents par barrel, although he manufactured them at a cost of not to exceed 21 cents per barrel; that Hiis continued until January 1, 4905, and that McMillin made profits of more than 820.000 per annum by making Hie"barrels up to that lime, and that he fraudulently diverted said profits from the company to himself. It is alleged that in 4893 .UoAUlliu made an agreement with all the stockholders of the company except Cowell, deceased, and this complainant, to buy all the remaining shares of the capital stock of the company not then owned by him, and that he agreed to pay in installments the parí-base price of ilie said stock and that the stock was thereafter turned over to .McMillin, and that lie has since then owned and controlled all the shares of the capital stock of the company except the 309 shares owned by complainant and Henry Cowell, and his executrix, and that since the purchase of the stock, McMillin has caused the same io be voted for such persons as he selected, and has refused to elect Henry Cowell as a trustee, but has chosen “dummy” trustees who, since January, .1893, have obeyed his directions so that really lie lias had and has control of the corporation: that at a. meeting of the trustees in March, 1895, for the pur]lose of defrauding complainants and other minority stockholders, and for Hie purpose of enabling MeMiUin to pay Cor the stock which lie had bought from tlie oilier trustees out of the assets and earnings of the company, McMillin caused the trustees to pass a resolution fixing his salary at $12,000 per annum, to take effect from January, 1895, and that since said date lie has collected said salary although his services have not boon worth more than $3,000 per annum, inasmuch as he has held other positions which required his time, and although he has lived in the city of Seattle and not at the place of business of the defendant company. It is further alleged that in furtheranee of his fraudulent plans in January, 1895, McMillin organized a corporation under the name of the “Staveless Barrel Company,” with a capital stock of $250,000, consisting of 2,500 shares of the value of $100 each; that this last-named corporation was organized by McMillin and two others, McMillin subscribing for all of the shares except two; that McMillin prepared the articles of incorporation, and charged the company $200 for the service, which sum was used in payment for the two shares of stock subscribed by the two other stockholders, and that, for the purpose of making a pretended payment for the shares of stock in the corporation subscribed for by him, McMillin made his note to the company in the sum of $249,800, and that thereafter in order to escape liability as a stockholder and to make a pretended payment of the capital stock, McMillin made a pretended proposition to the corporation to sell to it his lease of the stave mill and other property of this defendant company, and of his contract for the sale of barrels to the defendant company, and of all pretended rights which he had fraudulently acquired from the barrel machine company for the use of the patent machine for the sum of $249,800, and that he agreed to accept in payment therefor the delivery to him of his promissory note, and that he thereupon caused the trustees of the Staveless Barrel Company to accept the proposition and to deliver the note to him and to issue to him the capital stock, and that thereupon lie assigned the lease and agreements to the Staveless Barrel Coinpany, and then procured the “dummy” trustees of this defendant corporation to ratify the' assignments and transfers and to substitute the Staveless Barrel Company for McMillin in the agreements; that prior to the expiration of the contract and lease in 1897 McMillin caused the “dummy” trustees of the defendant company to execute a renewal of the contract in the name of the Staveless Barrel Company for the further period of five years upon the same terms and conditions ; that at the expiration of the second period of five years, about January 26, 1903, McMillin again caused his “dummy” trustees of the defendant company to renew the contract and lease for five years more, and that since January, 1895, McMillin has carried on the barrel factory in the name of the “Staveless Barrel Company”; that since January, 1895, McMillin has directed the business of the manufacturing of barrels for the use of the defendant company, and has conducted the stave mill and managed and kept the books; that the. Staveless Barrel Company has paid no salary to M.cMillin; that between January 1, 1895, and January 1, 1905, the Staveless Barrel Company declared dividends out of the pretended earnings of its manufacturing business amounting in all to the sum of $125,000, and has made a profit therefrom in undeclared dividends of more than $25,000, no part of which has ever been credited to„ the defendant company.</p> <p>It is alleged that through the fraudulent acts aforesaid McMillin has wronged the defendant company and complainant, and that it was made to appear that the defendant company suffered an actual loss from 1893 to 1898;. that in 1894 McMillin, through his “dummy” trustees, caused the defendant company to authorize the issuance and sale of its negotiable bonds in the sum of $l2o,000, which are still outstanding in the hands of McMillin, though actually satisfied and paid, and that a portion of said bonds were fraudulently issued to McMillin upon the pretense that he was a creditor of the defendant company; that the shares of stock so fraudulently purchased and acquired by McMillin in January, 1893, and the bonds so fraudulently acquired by him, were retained for the purpose of gaining control of the defendant company and of its assets, and to injure the complainant and Henry -Cowell and his estate, and that unless enjoined from so doing McMillin will cause the bonds-to be transferred and delivered to third persons. It is charged that McMillin has used the property of the defendant for personal and private use and gain, and has failed to account to the defendant company therefor; that notwithstanding the value of the property of the defendant coinpany and the value of its business, if it had been efficiently managed, no dividends have been paid since January, 1893, except $10,000 in January, 1893, and $0,000 in January, 1906. It is alleged that McMillin has denied to complainant or to the said Henry Cowell an opportunity to examine the books and accounts of the defendant company until some time in 1903, when, under threat of counsel, he assented to an examination, and that it was from the report of the accountants that this complainant for the first time gained information of the true condition of the assets and liabilities of the company as shown by its books and records; that, until just before the beginning of this action, complainant had no knowledge or information concerning the frauds set forth; that Mc-Millin has entered into arrangements to. sell the property, and will do so unless enjoined.</p> <p>Complainant prays for a restraining order which will prevent McMillin from selling and transferring, or agreeing to sell and transfer, any of the business of the company or any of the capital stock acquired by him since January, 1893; that he be enjoined from selling or disposing of the shares of the stock of the defendant company acquired by him since January, 1898. or of any of the bonds of the defendant company now owned or held by him : that a receiver be appointed to take possession of all the property and assets of the defendant corporation, and carry on the business until the determination of the action, and that the receiver be authorized to bring actions as may be directed against the defendant McMillin or the Staveless Barrel Company, or such other actions as may be necessary, and 1hat the receiver be authorized to pay the debts of the company and to wind up its affairs; that an account be taken between McMillin and the defendant company; that all of the stock of the defendant company pretended to have been bought by Mc-Millin since January. 1893, be adjudged to have been acquired out of the moneys belonging to the defendant company, and that a decree be made distributing said stock ratably between the persons lawfully holding the remaining shares of the capital stock of the defendant company; that the pretemM lease of the stave mill plant and real estate connected therewith be declared nuil and void, and that the contract for the sale of the staves to the defendant company be declared null and void; that the business and affairs of the defendant company be wound up and that its debts be paid, and that the proceeds be distributed ratably between complainant and other bona fide stockholders of the corporation according to their interests; and for general relief.</p> <p>The defendants filed a joint answer. They deny the allegations of the complainant as to subscriptions for shares of stock alleged to have been made by persons other than McMillin about the time of the incorporation of the defendant company, and allege that when it was organized McMillin subscribed for 686 shares and that the entire capital stock was paid for by the purchase and transfer of all the property and assets of the Tacoma Lime Company and certain real estate and personal property belonging to the said McMillin, and one Masterson, at Roche Harbor, Wash. The defendants allege that the defendant has done a large business, and has enlarged its plant from 2 primitive mills to 13 of the most approved character, and has increased the output of the property from 100 barrels per day to 1,400 or 1,500, and that its assets have increased from a value of $100,000 to 8600,000 approximately; that it has extended its markets, and has increased its business about $400.-000 or $500,000 per annum; that it is prosperous and practically out of debt; that it has retired all of its bonded indebtedness and has an exceedingly valuable trade. McMillin pleads that his salary was raised by the board of trustees without his procurement. lie admits the payment of dividends for the first five years of the operation of the business, and says that it would have paid more had it not been hindered and harassed by the hostility of Henry Cowell, the father of the complainant in this suit. It is denied that the barrels were manufactured at a cost of 31 cents as alleged, and set forth that the average cost of the barrels for the five years preceding March 5, 1893, was 32% cents per barrel. It Is admitted that in 1892 the Waterman-Chapman Barrel Machine Company, of Detroit, wanted to install one of their patent machines, and it is averred that the machine had not been tested on the timbers of the state of Washington, and that it was problematical whether it would be successful or not; but it is alleged that McMillin examined the machine and believed that it was mechanically correct, and presented the proposition of the barrel machine to the trustees of the defendant corporation. It Is set forth that he discussed the matter in detail with the trustees, pointed out' the advantages of the machine if it should prove successful and the benefit. of using the new machine, telling them that it would be unwise to permit the machine to fall into the hands of competitors of the defendant corporation, and that he went into detail concerning its superiority; that the trustees considered and discussed the matter in detail and declined to accept the proposition, but suggested that the defendant McMillin should take the machine on his own account, and put it in the mill of the company at Roche Harbor, and demonstrate its value at his own expense with the understanding that the defendant company, should it prove successful, would have the first opportunity to receive the output of the -mill; that thereafter, the defendant Mc-Millin made the contract with the barrel machine company, which contract is made a part of defendant’s answer; that in 1891 and 1892 one of the machines was installed and experimented with until September, 1892, when the stave mill, together with the barrel machine was destroyed by fire; that Mc-Millin incurred heavy expense in testing the machine which did not do the work claimed for it, until about August, 1892.</p> <p>The allegations of the bill to the effect that McMillin learned that barrels could be made for 21 cents each on the first machine are denied, and it is averred that nothing could be determined with accuracy concerning the experiments made with the machine although defendants admit that about January 14, 1893, McMillin made a proposition to lease the stave mill and building and machinery from the defendant corporation at $200 per month, and made a proposition to sell barrels to the corporation at the rate of 30 cents per barrel. All allegations of concealment of knowledge concerning the machine and false misrepresentations and all violation of duties of trust are denied. It is averred that after the destruction of the mill hy fire, the corporation proceeded to rebuild its mill, and that while the mill was being rebuilt, Mc-Millin proposed to the defendant to replace the barrel machine that had been destroyed by fire, and that the proposition was accepted on January 14, 1893; that the matter was discussed by the trustees, and all of the facts that were known to McMillin about the machine were fully laid before the trustees, and that the proposition was considered in detail by the board, and that with full knowledge and information upon the subject, the board, on March 15, 1893, authorized the execution of a lease of the mill plant, machinery, etc., and a contract for the sale of barrels by McMillin to the corporation, which contracts are made part of the answer. It is alleged that the contract was fair and just and advantageous to the corporation in that it procured a better barrel at a cost of 30 cents as- against 32% cents that had been paid for the barrels used before then. It is alleged that the financial condition of the corporation was not thought to be good enough to justify the cost and expense of experimentation with the machine, and that in the development of the machine defendant McMillin spent several thousand dollars. The defendants admit that McMillin and one Cartwright were the only trustees who lived at Roche Harbor, but deny that the trustees had no knowledge or experience in the manufacture of barrels, and aver that for several years the trustees were familiar with the cost of manufacturing lime and barrels by the defendant; deny that the trustees or any of them made any agreement with McMillin by which Mc-Millin was to purchase their shares of stock at any price, or that any agreement of purchase by McMillin was made until long after the execution of the contract and lease of March 15, 1S93, except a purchase from Cartwright made in 1891. All allegations concerning misrepresentation or concealment on the part of McMillin in respect to the lease and contract are denied, it being set forth that the contract and lease were made by the trustee, defendant McMillin not voting, and were made at a time when McMillin did not own in excess of 300 shares of the capital stock of the company. It is averred that on September 10, 1892, the property included in the lease was not worth any more than $35,000; and admitted that, under the terms of the lease, the defendant corporation was to pay for renewals, taxes, and insurance, but denied that repairs were to be paid for by the corporation. Defendants admit that the company was to buy all the barrels required in its business from McMillin during, the continuance of the lease, and that the corporation was to bear all expense of inspection, measuring, and delivery of material and supplies in the mill to be used in the manufacture of barrels in the booms and on the wharves of the mill, and also for the delivery of all cooperage stock, but aver-rod that, under tlie old method of manufacturing, all expenses of inspecting, measuring, and delivery wore all borne by the corporation, and that the defendant corporation was compelled to maintain its mill, wharves, docks, booms, and machinery. McMillin admits the conduct of the Slaveless Barrel Company in his own name; admits collections from the defendant company at the rate of 30 cents per barrel, but denies all fraud as against the defendant corporation, and avers that the new barrel-making machine was put into operation about June 1, 1893. from which time barrels were delivered to the defendant company and collections made at the rate of 30 cents per barrel, in compliance with the contract of March 15, 1893, and says that the barrels cost him on an average of 23% cents per barrel, exclusive of royalties; avers that he furnished no barrels to the company after the first of the year 1895, when he assigned his contract with the defendant corporation to the Stave-less Barrel Company, and that ihereafter the Staveless Barrel Company furnished barrels to the defendant company at the price hereinbefore named. He says that the assignment to the Staveless Barrel Company was made with the consent and approval of the trustees of the defendant company, and that ihe lease and contract were extended'with the consent of the company; and it is denied that the Staveless Barrel Company is indebted to the defendant company as alleged in the, complaint.</p> <p>Defendants deny that McMillin made an agreement with all of the stockholders, except Cowell and the complainant, in 1893, or ever, to buy the remaining shares of stock of the defendant corporation, and deny ihat by virtue of any agreement McMillin was to pay for such stock in installments at future dates, hut they say that McMillin agreed to buy the stock of certain stockholders without any understanding or agreement with any other stockholder, and set forth that whenever he bought stock, and did not pay for it, the stock was held in escrow or as collateral by the seller until payment was made: deny that McMillin has held and controlled all of the aliares of the defendant corporation except 309, owned and held by complainant and Henry Cowell, since 1893; admit that McMillin refused to help elect 11. V. Cowell or Henry Cowell as trustees; deny that ho ever at any time elected or caused to be oicored “dummy” trustees, hut say that McMillin has voted his stock for slockItoMersvlio were men of character and experience in business affairs. Defendants deny that since January 1, 1893, the trustees have obeyed the direction of the defendant McMillin or that he has directed or controlled the corporate acts of the trustees. hut aver that McMillin has been general manager and president, has had charge and general direction of the business subject to the hoard of trustees; aver that he has not attempted to urge any policy that he did not think to the best interests of the company, and that he opposed ihe election of the Cowells because they controlled the Henry Cowell Dime & Cement Company, which was a competitor in business of tlie defendant, company, and (hat since the date of the organization of the Tacoma <& Roche Harbor Dime Company, Cowell had carried on a vigorous attack upon the defendant corporation endeavoring to destroy defendant company’s markets, forcing the price of lime down to the cost of production, and in many instances below the cost of production, and in every way annoying the defendant corporation, so that by reason of such ads the defendant corporation was prevented from making profits that it should have made, and that it was impossible to pay dividends largely by reason of the hoslilo attitude of the Cowells, and that the defendant McMillin did not consider them proper Tiersons for trustees. It is alleged that McMillin’s salary was raised to $12,000 by resolution of the trustees and without any fraudulent motive, and that such a salary was fair and reasonable; that McMillin, as president and general manager, has always rendered faithful and honest services to the corporation, and that he now exercises full control over tlie operations of the plant of the defendant corporation, looks after defendant's business, and devotes such time as is necessary to supervising, controlling, and conducting the business of tlie corporation.</p> <p>Tlie answer Ilion alleges that the Staveless Barrel Company was organized without any fraudulent purpose in view and for the convenient handling of the business of McMillin and tlie other stockholders of the Staveless Barrel Company; that in 1891, 1892, and 1893 the defendant McMillin, in order to experiment with the barrel machine, obtained funds from his wife, who inortgaged her separate and individual estate to raise money to enable experiments to be conducted; that after the Staveless Barrel Company was organized Mc-Millin held 932 shares of the preferred stock of the Staveless Barrel Company and 1,485 shares of the common stock transferred to his wife, and that 1 share was given to J. M. Keene, and 11 shares to William Schultz;' that the wife of said McMillin draws her dividends upon the stock as does Schultz; that after the assignment of the lease and barrel contract of March 15, 1893, to the Staveless Barrel 'Company that company performed all agreements made under the contract with the defendant company, and that in March, 1897, the lease and contract were renewed for five years with the Staveless Barrel Company, and that again there was a renewal on January 26, 1903, and that all of said contracts and leases were fair and honest. It is admitted that the Staveless Barrel Company has earned probably $130,000, and it is averred that the defendant corporation is in no wise interested in said dividends; that all the expenses in installing, buying, experimentation, building, operating, and maintaining the barrel machine and the manufacture of barrels have been borne by McMillin and the Staveless Barrel Company, and that the accounts between the barrel company and the lime company have been honestly carried on in accordance with the contract of March 15, 1893, and the extensions thereof. It is averred that the books of the defendant company have been honestly kept, and that no attempt has been made to divert any of the funds of the company. It is admitted that $125,000 of negotiable bonds were issued in 1894, but it is alleged that such issue of bonds was for the benefit of the company to fund its debts, and that all of said bonds so issued have been fully paid. It is denied that McMillin intends to place the bonds beyond the jurisdiction of the court. All improper use of the property of the defendant is denied, and it is averred that the defendant McMillin has always faithfully accounted for the proceeds of all sales of property and assets to the defendant company. It is averred that the assets of the company are of the value of $600,000, and that under the management of the defendant McMillin, the value of the assets has increased from $100,000 to $600,000, and that dividends have not been declared in- order that the property might be imi>roved, the business developed, and the trade extended. It is averred that the value of the stock has increased from $100 per share to $600, and that additional profits could have been made had it not been for the interference of the Cowell interests. It is set forth that McMillin never has denied access to the books and that the corporate books were at various times examined by Henry Cowell .and the complainant, but that defendant McMillin did not believe that the books of account should be examined by said Henry Cowell or the complainant because they were competitors in business and were seeking the information for an improper purpose, and that for years it would not have 'been safe to have permitted the Cowells to examine the books, but that in 1903 counsel for Cowell was given permission to examine the books, and that then an expert was sent to go over them, and that everything connected with the affairs of the company was laid before the expert, and that complete information could have been obtained concerning the defendant company and the Staveless Barrel Company. It is alleged that the Cowells knew of the existence of the barrel contract since 1893, and that they should be estox>ped from questioning any of the transactions as to the salary or the course of dealings between the defendant corporation and McMillin and the Staveless Barrel Company. It is averred that McMillin was negotiating with capitalists for the sale of his stock in the defendant company, and that the negotiations would have been consummated had this suit not been instituted, and that it has been brought for the purpose of annoying McMillin and to prevent the consummation of the sale of his stock; that McMillin never contemplated the sale of the property and assets of the defendant company, and it is denied that he is about to sell or transfer the assets of the company or that the corporation, is about to do so. It is averred that the corporation and McMillin are solvent, and able to meet all demands against them, and that all transactions between McMillin and the defendant company have been fully and -completely known and understood by the trustees, and that the trustees have always controlled the -business of the company.</p> <p>Exhibit 1, attached to the answer, is the agreement dated March 16, 1891, between Bowering, trustee for the Waterman-Chapman Barrel Machine Company and John S. MeMillin, concerning the barrel-making machine patent. In the agreement (so J'ar as it is material to consider it in this case) the barrel machine company gives to McMillin tlie exclusive right to use and operate the barrel making machines within certain states. It is agreed that the barrel machine company shall deliver the machines to McMillin, McMillin agreeing to pay an amount equal to the actual cost of the machines not to exceed ¡¡>1,500 each, and to pay the freight, which sums are to be repaid to McMillin out of the royalties to become due under the agreement.</p> <p>Exhibit 2. made a part of the answer, is a letter from McMillin to the board of trustees of the Tacoma & Boche Harbor Lime Company dated January 14, 1803. In this letter, McMillin states that he owns the patents for the barrel machine for the Pacific coast, and that the test had demonstrated 1hat si barrel could be made that would be better than the ordinary stave barrel which had been used by the company. lie refers to the fire of September 10, 1802, and says that he intends to have a new machine set up, and he proposes to lease the mill and furnish the compsVny with all barrels complete and free of all expense, as set forth in the letter and proposition so to lease the plant, including mill, wharves, docks, machinery, dry kilns, sheds, yards, structures, tools, and appliances belonging to the plant and the foreman’s residence, for the period of one year, with the privilege of five; defendant corporation to proceed to complete r.lie mill and equip it, placing the machine in it, McMillin to lake all bolts on hand and booms as per inventory, and to operate the mill at his own expense, at a rental of S200 per month, McMillin agreeing to supply the company with all barrels it might require in its lime business, the lime company to furnish (.he mill power, and to bear the expense of inspecting, measuring, and delivering all material or supplies to be used in manufacturing, in lite booms or on the wharf at mill, as McMillin might require, free of all charges, except for purchase price of such material; the company to deliver all cooperage stock; McMillin to have the use of cooper shops and tools, etc., and storage for barrels and barrel material, the company to pay McMillin 30 cents each for all barrels used; that when staves and heading were delivered in the warehouse at mill, the. company should receive the same as fast as manufactured, and should credit McMillin at the rate of 14 cents per set for staves, and 4 cents per pair for heading, McMillin to pay branding, heading, and repairing -of barrels before shipment, and when on dock ready for shipment, McMillin to receive a further credit of 12 cents. The company was to keep up good and sufficient booms, wharf, and mill plant, and to make payments monthly, free wharfage to be given McMillin for supplies going over its dock.</p> <p>On March 15, 1893, the company entered into a lease and agreement with McMillin, the lease practically covering the real and personal property referred to in the letter of McMillin to the company. This lease was signed by the corporation by O. IJ. Masterson, vice president, and J. M. Keene, secretary, and John ¡3. McMillin, lessee. As an exhibit 1o the answer there is also attached an agreement of March 15, 1903, between the lime company and Mc-Millin. In this contract, the company agreed to buy from McMillin all barrels to be used in its lime business, and to bear the expense of inspecting, measuring, and delivering all material, substantially as had been specified in the letter proposition made by McMillin to the company. Barrels were to be furnished to the company for a total of 30 cents per barrel. This contraer, was signed by the defendant company by its vice president and secretary as parties of the first part and McMillin individually as party of the second part.</p> <p>Epon these issues, substantially as stated, the testimony was heard before tile master. Thereafter, the cause was heard by the court, and later an order was made dismissing complainant's bill. Complainants appeal.</p>

<p>1. Master and Servant (§ 28G*) — Action for Injury to Employé — Negligence — Question for Jury.</p> <p>Plaintiff, as an employe, was being carried with others on a work train along a switch track of defendant’s railroad incidentally to his employment, when the car on which he was riding was derailed by striking a loose plank at a crossing, and plaintiff received an injury for which he brought suit. The crossing had been in for several years, and the track there .had recently been repaired; but it appeared that both before and after the repairs the planks and other materials used in making the crossing were not spiked down, but left loose and were liable to he moved out of place by crossing wagons. Held that, aside from any question of presumption arising from the accident itself, there was sufficient evidence to require the submission of the question of defendant’s negligence to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1021-1022; Dec. Dig. § 280.*]</p> <p>2. Master and Servant (§ 198*) — Master’s Diability for Injury to. Servant — Fellow Servants.</p> <p>A member of a floating track gang on a railroad, which was carried by a work train to and from its places of work, was not a fellow servant with the employs charged with the duty of keeping the track in a safe condition for the passing of trains, which duty was that of the master, and was not precluded from recovering from the railroad company for an injury resulting from the defective condition of the track.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 19S.*]</p> <p>3. Negligence (§ 136*) — Contributory Negligence — Question for Jury-</p> <p>When, in an action to recover damages for a personal injury, the inference to be drawn from the facts is not so plain as to make it a legal conclusion that the plaintiff was guilty of contributory negligence, the question must be left to the jury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>4. Negligence (§§ 68, S2*) — Contributory Negligence as Proximate Cause of Injury.</p> <p>To constitute contributory negligence, which will prevent a plaintiff from recovering for the negligence of defendant resulting in his injury, there must have been a want of ordinary care on his part, combining and concurring with the negligence of defendant, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 92, 112; Dee. Dig. §§ 68, 82.*]</p> <p>5. Negligence (§ 59*) — Proximate Cause of Injury — Natural and Probable Consequences.</p> <p>To warrant a finding that negligence or an act not amounting to wanton wrong was a proximate cause of an injury, it must appear that the injury was the natural and probable result of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.</p> <p>íEd. Note. — For other eases, see Negligence, Cent. Dig. § 72; Dec: Dig. § 59.*]</p> <p>6. Negligence (§ 13G*) — Actions—Questions for jrfsx — Proximate Cause or Injury.</p> <p>The question as to what was the proximate cause of an injury is ordinarily ohe of fact, for the jury to determine in view of the surrounding circumstances.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 327-332; Dec. Dig. § 136.*]</p> <p>7. Master and Servant (J 289*) — Action for Injury to Servant — Contributory Negligence — When Question for Jury.</p> <p>Plaintiff, a track hand employed on defendant’s railroad, while being carried with others on a work train in the course of his employment along a switch track, was injured by the derailment of the car on which he was riding, caused by its striking a plank used in making a crossing, and which was not spiked down, and had become displaced, and lay across the rail. The train was moving at a speed of only five or six miles an hour, and plaintiff was sitting on the top of one of the work cars with a brakeman, while his fellow workmen were inside another car and were not injured. It appeared that the workmen were in the habit of riding on the tops of the cars, as well as inside, to tile knowledge of the foreman and conductor, who made no objection. Held, that in view of such fact, and that the train was moving on a switch track at a slow speed, plaintiff could not be held as matter of law to have been guilty of contributory negligence, but that the question was one for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>On Petition for Rehearing.</p> <p>8. Trial (§ 165*) — Direction of Verdict — Inferences from Evidence.</p> <p>On a 'motion by defendant for direction of a verdict, the court should not draw inferences from the proof against the plaintiff in matters which may be subject to reasonable explanation, or exclude from consideration an explanatory hypothesis favorable to the plaintiff and consistent with the evidence; but, on the contrary, the plaintiff is entitled to the benefit of every inference in his favor which may fairly be drawn from the evidence.</p> <p>TEd. Note. — For other cases, see Trial, Coni. Dig. §§ 373, 374; Dee. Dig. i 105.*]</p> <p>9. Master and Servant (§§ 101, 102, 229*) — Places to Work — Care Required of Master and Servant Respectively.</p> <p>Because it is the primary duty of a master to use reasonable care to see that the place where the servant is required to work is safe, on the performance of which, the servant has the right to rely, while both are required to use reasonable care, the master is bound to a higher degree of care than the servant to know the condition of such place.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171-184, 674-683; Dec. Dig. §§ 101, 102, 229.*]</p> <p>10. Master and Servant (§ 288*) — Assumption of Uisk — When Question for Jury.</p> <p>In an action by a track hand on a railroad to recover for an injury caused by the derailment of a car on which lie was riding in connection with his work, caused by the defective condition of the track, where the evidence did not show clearly and conclusively that plaintiff knew the condition of the track, or that he was working up to the time of the injury in such proximity to the place that its condition was plainly observable to him, the question of his assumption of the risk was one for the jury.</p> <p>I Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*]</p>

In Equity. Suit by the United States against Mollie Conklin, W. H. Metscn, administrator with the will annexed of the estate of Patrick Reddy, deceased, Sybil Coleman, personally and as administratrix of the estate of Emily M. Reddy, deceased, B. B. Jackson, personally and as executor of the last will of Carolyn S. Reddy, deceased, John Reddy, and Katherine Mahar (née Reddy), C. L. Hovey, and Thomas ,B. Walker. Decree for defendants (169 Fed. 177), and complainant appeals.

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by C. M. Ivy against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

Action by Dillie M. Catlett, administratrix of T. W. S. Catlett, deceased, against the Western Union Telegraph Company. Judgment for plaintiff, and defendant ’brings error. Defendant in error, hereinafter called the plaintiff, sued plaintiff in error, hereinafter called defendant, in the superior court of Forsyth county, to recover damages incurred by the death of her intestate alleged to have been caused by the negligence of defendant’s servant.

The plaintiff in error, Dr. Malcolm E. Harris, a surgeon of Chicago, was defendant below, in an action brought by Frederick E. Fall, the defendant in error, for alleged malpractice, which resulted in a verdict and judgment for $4,000 damages against Dr. Harris. This writ of error is sued out for review thereof, with an Extended assignment of errors. All questions raised, however, which are deemed essential, are mentioned in the opinion, together- with the pertinent facts.

<p>Courts (§ 405*) — Jurisdiction of Circuit Court of Apfioals — Proceedin'» for Naturalization — Review—“Case.”</p> <p>A proceeding for naturalization under Act June 29, 1906, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 1909, p. 477), is not a “ease” within the meaning of Act Biarch 3, 1891, c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), which provides that Circuit Courts of Appeals “shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,” and there being no provision for direct review in the naturalization act a Circuit Court of Appeals is without jurisdiction to review the decision of a District or Circuit Court in such a proceeding. Moreover, the admission of an alien to citizenship is a political, and not a judicial, act, and, having 'been vested by Congress in the courts to be exercised on proof “to the satisfaction of the court,” its exercise is discretionary, and not reviewable.</p> <p>[Ed. Note. — For other cases, see Courts, Doe. Dig. § 405.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 985-994; vol. 8, p. 7597.1</p>

<p>1. Master and Servant (§§ 288, 289*) — Master’s IjIabitjty for Injury to Servant — Defective Machinery — Questions for Jury. -</p> <p>Where a servant having knowledge of a defect in a machine or appliance which makes it unsafe to use it reports the fact to the employer, and is promised that the defect shall be repaired within a reasonable time, whether his continuing to use it is within the asumption of risk or constitutes contributory negligence if be is injured are questions for the jury, unless the facts are such that upon any view of them no recovery can be had thereon as matter of law.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. §§ 1084, 1097; Dec. Dig. §§ 288, 289.*]</p> <p>2. Master and Servant (§ 145*) — Master’s Liability for Injury to Servant-Construction of Rules of Railroad Company.</p> <p>If a rule of a railroad company is ambiguous and uncertain, it should be construed most strongly against tlie company, and in favor of the employe.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 288; Dec. Dig. § 145.*]</p> <p>3. Master and Servant (§ 243*) — Master’s Liability for Injury to Servant-Defective Machinery — Contributory Negligence — Violation of Rules — Reliance on Promise to Repair.</p> <p>Where the rules of a railroad company required the roundhouse foreman to make all needed repairs on engines or cause them to be made, a rule requiring engineers before starting on a trip to examine their engines to know that they are in a safe condition to operate does not make it the duty of an engineer to make repairs before starting, but in such respect the roundhouse foreman is his superior, and the promise by such foreman to repair a defect reported to him by an engineer, or to send an appliance required, may justify the engineer in proceeding with the engine in reliance on such promise when he is ordered to do so.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 6S2, 762; Dec. Dig. § 243.*]</p>

Action by the United States against the Atchison, Topeka & Santa Fé Railway Company. Judgment for the United States,, and de- fendant brings error. The writ of error is to reverse a judgment in favor of defendant in error, against the plaintiff in error, for the sum of One Hundred Dollars, together with costs, entered upon a verdict, upon instruction of the Court, in favor of Appellee on the first, third, fifth and seventh counts of the declaration.

<p>Petitions to Revise Proceedings of the District Court of the United States for the Northern District of Alabama, in Bankruptcy.</p> <p>Appeals from the District Court of the United States for the Northern District of Alabama.</p> <p>In the- matter of the Southern Steel Company, bankrupt. Appeals and petitions for revision by George H. Schuler and Samuel I. Knight against William H. Hassinger and others, trustees, to review certain orders.</p>

<p>3L Appear and Error (§ 1068*) — Review—Harmless Error — Submission or Question to Jury.</p> <p>The erroneous submission to a jury of the question of the law of a foreign country on a given subject, instead of instructing them what the law is, was without prejudice, and not ground for reversal where the jury decided the question correctly.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p> <p>2. Insurance (§ 272*) — Marine Insurance — War Risks — Implied Conditions op Policy.</p> <p>Under a marine policy insuring a vessel for a heavy premium against war risks only on a voyage from San Francisco to Vladivostok during the war between Russia and Japan, which expressly gave the assured “liberty to run blockade,” the consent of the insurer to the carrying by the vessel of false clearance papers, showing her destination to be a Japanese port,, is necessarily implied as a subterfuge which by general usage is resorted to by blockade runners in the interest of both the insured and insurer, and the fact that the vessel was seized and condemned by the Japanese authorities on the ground of carrying such false papers is not a defense to liability on the policy under either the English or American law.</p> <p>TEd. Note. — For other cases, see Insurance, Cent. Dig. § 577; Dec. Dig, | 272.*]</p>

Suit in equity by the North Carolina Mining Company against G. R. Westieldt and others. Decree for complainant, and defendants appealed. On motion of appellee to modify decree of reversal (166 Fed. 706) as to costs.

Action by the Third National Bank of Eouisville, Kentucky, against the National City Bank of Chicago, Illinois. Judgment for plaintiff, and defendant brings error. Defendant in error (hereinafter styled plaintiff) instituted against plaintiff in error (defendant) an action in assumpsit for money bad and received. Defendant piea (led the general Issue.

Petition for Revision of Proceedings of the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the matter of bankruptcy proceedings against Charles E. Beckhaus. On petition of M'. C. Rasmussen to recover certain merchandise, fixtures, book accounts, etc., under a chattel mortgage from Frank. M. McKey, the bankrupt’s trustee’. Petition to review and revise an order denying the petition..

James R. Kaye was convicted of counterfeiting, and he brings error. Under an indictment in five counts plaintiff in error was found guilty by the jury and sentenced by the court to two years’ imprisonment at hard labor. The indictment was drawn under sections 1 and 3 of the act of February 10, 1891 (26 Stat. 742. c. 127; section 5462, Rev. St. [U. S. Comp. St. 1901, pp. 3686, 3687]; Act March 3, 1903, e. 1015, 32 Stat. 1223; section 5462, Rev. St. [U. S. Comp.

<p>In Error to the Circuit Court of the United States for the Eastern District of Illinois.</p> <p>Action by Alice M. Gordon, administratrix of the estate of Edwin J. Hair, deceased, against fhe Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Action by E. W. Balcomb, trustee in bankruptcy of the Lawrence Manufacturing Company, against the Hamilton National Bank of Chicago. Judgment for plaintiff, and defendant brings error.

Action by Walter Morris, as receiver of the Kittanning & Cowanshannock Valley Street Railway Company, against Charles Dunbar. Judgment for plaintiff for less than the relief demanded, and he brings error.

<p>1. Banks and Banking (§ 154*) — Deposits—Action—Legal ob Equitable Remedy.</p> <p>A corporation’s remedy to recover from a bank money deposited therein in the name of the corporation’s treasurer and alleged to have been wrongfully transferred by him to the bank by means of his checks as treasurer and converted by the bank is in equity and not at law; title to the deposit being in the treasurer and not in the corporation.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dea Dig. § 154.*]</p> <p>2. Estoppel (§ 87*) — Equitable Estoppel — Representations—Reliance on.</p> <p>B., who was plaintiff’s secretary, having largely overdrawn his account with defendant bank, and being guilty of a defalcation of plaintiff’s funds to the amount of $16,077.65, conveyed certain real estate to the bank for an expressed consideration of $19,000, subject to certain incumbrances; the deeds being in fact mortgages. On the same day B. executed to the bank a demand note for $16,077.65, which was entered on the bank’s cashbook and on the bills receivable register as a bill receivable. On the same day B., as secretary, and M., as treasurer, of plaintiff corporation, signed and delivered to the bank a check for the same amount. After delivering the check, note, and deeds to the bank, a deposit slip was made out by the bank by which M.’s account as treasurer of plaintiff was credited with $16,077.65, and a passbook showing M.’s account as treasurer was written up by the bank showing such amount credited to his account. This account was shown to plaintiff’s stockholders as so written up, and after a stockholders’ meeting the bank charged the check against M.’s account as treasurer. From the time the check was delivered until it was so charged, it did not appear on the bank’s books, nor did any one connected with plaintiff know of its existence, except B. and M. It also appeared that the bank would not have placed the amount to the credit of M., unless the check had been given. Held, that the transaction did not constitute a loan to any one, but was mere fraudulent bookkeeping to cover B.’s defalcation, and, there being no evidence that plaintiff acted or failed to act in reliance on such fictitious credit, the bank was not estopped to question its validity, nor could plaintiff recover the amount from the bank on the theory that it had been wrongfully transferred to the bank by the treasurer’s checks.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dee. Dig. § 87.*]</p>

Libel by the James Reilly Repair & Supply Company against Robert A. C. Smith for repairs and alterations furnished to respondent’s yacht Privateer. From a decree for libelant for $6,689.06, which was less than the amount demanded by $2,808.06, allowed by the commissioners, but disallowed by the District Court, libelant appeals.

Illinois. In the matter of John Filmar, bankrupt. Appeal by Rippincott and another from an order dismissing petitions for the allowance of Rippincott’s claim as a preferred claim.

For decision below, see 167 Fed. 414, affirming a decision by Board 3, United States General Appraisers (G. A. 6,655, T. D. 28,-382), which had reversed the assessment of duty by the collector of customs at the port of New York. Said assessriient was based on a reappraisement by Board 2 of the General Appraisers, which had re¿versed the reappraisement made by a single General Appraiser.

<p>In Error to the Circuit Court of the United States for the Western District of Arkansas.</p> <p>Actions by the United States of America against the St. Louis Stave & Lumber Company. Judgment for the United States in each case, and defendant brings error.</p>

<p>1. Courts (§ 508*) — Proceedings in State Court — Federal Court — Jurisdiction.</p> <p>Rev. St. § 720 (Ü. S. Comp. St. 1901, p. 581), providing that an injunction shall not be granted by any federal court to stay proceedings in a state court except in eases where such injunction may be authorized by any law relating to proceedings in bankruptcy, does not apply to a suit in a state court by which it is attempted to fasten an easement on the fee of lands taken into the possession of a federal Circuit Court for the administration of an estate through a receiver, since the federal court’s possession drew to it power to hear and decide all controversies relating to rights and interests in the property.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 508.* Federal courts enjoining proceedings in state courts, see notes to 16 C. C. A. 90; 27 C. C. A. 575 ; 63 C. C. A. 437.]</p> <p>2. Receivers (§ 110*) — Administration of Estate — Scope—Questions Determined.</p> <p>Where insolvent was the owner of a large tract of land subject to many leases containing restrictions as to the use of the property when a receiver ■ was appointed, who asserted dominion over the incorporeal rights of the insolvent, his right to relieve the lessees severally from the restrictive conditions was a valuable asset in the hands of the receiver, and hence, the extent to which the recited restrictive conditions was affected by other paragraphs of the leases, by the character of the plat or by the oral or written representations of the insolvent, were questions affecting the value of the receiver’s reversionary interest, to be presented to and adjudicated by the court of administration.</p> <p>[Ed. Note. — For other cases, *see Receivers, Dec. Dig. § 110.*]</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of John Osborn’s Sons & Company, Incorporated. On petition of Howard J. M. Cardeza and others as trustees in liquidation to revise an order of the District Court refusing to require the trustee in bankruptcy to pay over to the trustees in liquidation a balance of the funds in his hands.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the bankruptcy of the Humphrey Advertising Company. On petition by the Tribune Company and others for a bankruptcy adjudication against the Humphrey Advertising Company. From an order denying the petition, ’petitioners appeal.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by John Kelly against the Pennsylvania Railroad Company. Judgment for plaintiff on a verdict in his favor of $730.50, and defendant brings error.</p>

• Petition to Review Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy proceedings of Samuel Schulman and others.

In the mailer of Burton F. White, a corporation, bankrupt. From an order of the District Court, Frank Froehling and George Heppe, partners as Froehling & Heppe, appeal. Hartón F. White, the bankrupt, is a corporation, organized under the laws of Illinois to engage in tlie restaurant and catering business. Its corporate .affairs and business were conducted by a Board of Directors, consisting of three members.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the bankruptcy proceedings of the Eiquor Dealers’ Supply Company. An order was passed disallowing the claim of the Anheuser-Busch Brewing Association on objections filed by Henry Hiestand, as trustee in bankruptcy, and claimant appeals.</p> <p>The appellant, Anheuser-Busch Brewing Association, filed a claim in bankruptcy against the estate of Liquor Dealers’ Supply Company, bankrupt, which was disallowed by tbe referee on objections filed by the trustee (appellee). and on application for review the District Court confirmed the disallowance; hence this appeal. The claim in question consists of 19 promissory notes, for $100 each, made by E. Goldstein Company, each indorsed with a guaranty of payment, signed by “Sam Moyses” and “The Liquor Dealers’ Supply, Co.. Sam Moyses, Treas.”</p> <p>All the facts were stipulated for submission of the claim and objections thereto substantially as follows:</p> <p>The bankrupt, Liquor Dealers’ Supply Company, was incorporated under the laws of Illinois, and authorized “to engage in the wholesale liquor and rectifying business and to supply liquor dealers, rectifiers and distillers _ with goods of every description at wholesale, and to transact a general commission business.” Two of its officers, together with E. Goldstein, organized a separate Illinois,corporation, named E. Goldstein Company, for a -restaurant and saloon business. When the notes in controversy were executed, “Sam Moyses was practically in sole control of Liquor Dealers’ Supply Company, owning almost all of its stock, and also owned and controlled the stock of E. Gold-stein Company.” Up to March 1, 1907, the E. Goldstein Company operated its business, but its “stocks and assets” were then “sold to other parties.” In April, 1900, E. Goldstein & Co. entered into an arrangement with the appellant to purchase beer from the appellant — having theretofore used in its saloon other beer — for the purpose of seehring a loan of money from the appellant; and the latter agreed to loan $4,000, provided the notes were guaranteed by Liquor Dealers’ Supply Company. The loan was made accordingly and 40 notes of $100 each were given therefor, bearing such guaranty. Each note was dated April 24, 1900, payable to appellant’s order, “maturing monthly for forty months,” with interest. Twenty-one of these notes were taken up and paid by the guarantor, and the present claim is for the remainder.</p> <p>By way of authority for the purported contract to guarantee payment of the notes, a resolution was adopted by Liquor Dealers’ Supply Company, reciting, in substance, its engagement “in the business of buying and selling liquors” ; that it “is desirous of increasing ancj extending its said business”; that “any increase in the business of its customers tends directly to increase the business of this corporation”; that “E. Goldstein Company, one of its customers,” desires to borrow $4,000 “for the purpose of increasing its business, and has requested this corporation to guarantee the payment of its notes for said sum”; and that the treasurer “be, and he is hereby, authorized and di■reeted in the name of the corporation to guarantee in writing the payment” of the notes as described.</p> <p>The Liquor Dealers’ Supply Company "sold to E. Goldstein Company liquors to the amount of $100 per month” at that time, and so continued thereafter.</p>

Action by Claude K. Root against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error was defendant below in the suit of Claude E-Root to recover for injuries incurred in its service and alleged to he caused by its negligence. Upon trial of the issues to a jury, verdict was rendered against the plaintiff in error, and this writ is prosecuted for reversal of a judgment entered accordingly.

<p>In Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action by John Manns, by Fred Manns, his guardian ad litem, against the MacDonald Engineering Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Carriers (§ 211*) — Twexty-Ekíht Hour Law — Equipment oe Stock Pens.</p> <p>The 28-hour law (.Vet June 29, 1900, e. 37>04, 34 Stat. 007 HI. S. Comp. St. Supp. 1909. p. 11781) does not require a carrier to maintain any particular kind of equipment, of iis stock pens, permanent or otherwise, except in so far as to render them suitable for the humane puntóse of properly feeding, watering, and resting Hie particular shipment of stock unloaded into them.</p> <p>| Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-928; Dec. Dig. § 211.*J</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Southern District of California.</p> <p>Action by Andrew J. Erederickson against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Action by Andrew Trainor against the Cranford Company to recover damages for personal injury. From a judgment for plaintiff, defendant brings error.

<p>Criminal prosecution by the United States against John R. Walsh. On motion to continue bail.</p>

<p>Bantcrtjptcy (§ 178*) — Rights of Insolvent — Settlement of Lien,</p> <p>Where an insolvent in Alabama contested his father’s will, he was entitled, as against his creditors, to abandon or settle the contest at any stage, at his election, and on his subsequent adjudication as a bankrupt his trustee had no cause of action growing out of the settlement or abandonment, unless to recover any sum or sums the bankrupt might have received and afterwards transferred in derogation of the bankruptcy law.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Dec. Dig. 178.*]</p>

Suit in equity by Fred Stebler and Austin A. Gamble against George D. Parker. Decree for complainants, and defendant appeals. The appellees,' as owners of the patent issued to Edgar J. Bryan on November 25,, 1902, letters patent for a new and useful hand-truck, brought a suit against, the appellant, alleging that he had infringed their patent.

<p>Patents (§ 328*) — Validity—Prior Public Use by Another — Sheet Piling.</p> <p>The Wakefield patent, No. 370,108, for sheet piling made of triple-lap-planks, held valid as against the defense of prior public use by another, where such use was within less than two years prior to the application,, and in addition to the prima facie case made by the patent there was evidence tending to carry the date of invention by the patentee back of such use.</p> <p>[Ed. Note. — Priority and continuance of public use of invention as affecting patentability, see note to Eastman v. City of New York, 69 C. C. A~ 646.]</p>

Suit in equity by Leopold Lange against Michael F. McGuin and others.

Suit in equity by Samuel B. Fowler against Western Electric Company and Frank R. McBerty. Decree for complainant, and defendants appeal. The bill in the Court below was to secure a patent for an invention relating to a telephone exchange system, notwithstanding the adverse action of the Patent Office and the Court of Appeals for the District of Columbia in interference proceedings. The bill was under section 4915 of the Revised Statutes (U. S. Comp.

<p>, 1. Patents (§ 240*) — Infringement—Improvers—“Infringer.”</p> <p>An improver on a patented device, although his improvement may he patentable of itself, is an “infringer,” if he uses the specific device of the prior patent.</p> <p>TEd. Note. — Eor other cases, see Patents, Cent. Dig. § 379; Dec. Dig. § 240.*</p> <p>• Eor other definitions, see Words and Phrases, vol. 4, p. 3594.]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Typewriters.</p> <p>The Wagner patents, No. 559,345 and No. 633,672, for typewriting machines, both relating to mechanism whereby the operator can set the machine so as to write part way only, or wholly, across the page, and on arriving at the stopping point the keys are automatically locked, and the latter also covering a device by which the operator by pressing a button can unlock the keys, if desired, for the purpose of adding one or more letters to the line, were not anticipated, and disclose invention, hut are improvement patents merely, and are specific and of narrow scope. In view of such facts and of the limitations of the claims by the language employed, imposed by the Patent Office and acquiesced in to avoid references in the prior art, neither patent is infringed by the mechanism of the Schneelock patent, No. 852,400, which attains the same results but by different means.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Heating Apparatus-.</p> <p>The Smith patent. No. 663,351, lor a heating apparatus having an auxiliary flue for ventilating purposes, claims 5 and 6, construed, and held not anticipated, valid, and infringed.</p> <p>2. Patents (§ 328*) — Validity and Infringement — Heating Apparatus.</p> <p>The Smith patent, No. 868,299, for a heating and ventilating system,, construed, and held not anticipated, valid, and infringed by one device made and sold by defendants, but not infringed by others.</p>

<p>1. Patents (§ 58*) — Anticipation—Burden of Proof.</p> <p>On an issue as to anticipation, the burden of proof rests on the party pleading such defense,, and, where the identity of methods and results in the two devices is doubtful, the doubt must be resolved in favor of the patent.</p> <p>■ [Ed. Note. — For other cases, see Patents, Cent. Dig. § 75; Dec. Dig. § 58.*]</p> <p>2. Patents (§ 87*) — Abandonment—Evidence.</p> <p>Questions relating to the actual or constructive abandonment of an Invention are questions of fact; and every reasonable doubt thereon should be resolved in favor of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 112; Dec. Dig, § 87.*]</p> <p>8. Patents (g 82*) — Patentability—Abandonment of Invention.</p> <p>Pending an application for a patent, the specification of which is broad enough to warrant the making of certain claims which are not made, the applicant, instead of inserting such claims by amendment, may at his election, make them the subject of a new application, which in such case may fairly be considered a continuation of the first, and their omission therefrom will not operate as an abandonment,</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 105-107; Dec. Dig. § 82.*]</p> <p>4. Patents (§ 328*) — Validity and Infringement — Talking Machines.</p> <p>The Berliner patent, No. 534,543, for improvements in talking machines, claims 5 and 35, helé valid against the claim that they were anticipated by the Edison British patent, No. 1,644, of 1878, or by any disclosures made by Bell and Tain for in connection with their application for patent No. 341,214, and the claims of prior public use and abandonment, and that claim 5 is for a function of an apparatus merelj. Such claims are entitled to a const ruction covering the reproduction of sound by means of a vibrating stylus engaged with a laterally undulating groove of the sound record and free to be vibrated, and propelled thereby without other mechanical assistance. As so construed, such claims helé infringed.</p> <p>5. Patents (S 176*) — “Peokelled.”</p> <p>In a claim for a patent of an apparatus for reproducing sound consisting of a stylus shaped for engagement with a record and free to be vibrated and propelled by said record, the term “propelled” is the equivalent of “progressively fed.”</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 176.*]</p>

<p>1. Patents (§§ 297, 312*) — Suit for Infringement — Preliminary Injunction.</p> <p>The fact Hurt a patent is unadjiklieaterl will not deprive the patentee of the right to a preliminary injunction to enjoin infringement save where the prior art shows sufficient ground to doubt its validity; and on such an application evidence of public acquiescence is admissible and entitled to weight in support of the presumption of the validity of the patent and the practical utility of the device.</p> <p>1 Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 481, 546; Dec. Dig. §§ 297, 812.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p> <p>2. Patents (§ 01*) — Anticipation—Abandoned Application for Patent.</p> <p>An abandoned application for a patent cannot without evidence of prior invention be given weight as an anticipation of a later patent nor as a prior publication, but can only be regarded as an unsuccessful experiment.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 77; Dec. Dig. § 61.*!</p> <p>3. Patents (§ .328*) — Infringement—Flying Machine.</p> <p>The Wright patent. No. 821,393, for a flying machine, the essential feature of which is a combination of elements coacting to maintain or restore the equilibrium or lateral balance of a flying machine of the heavier than air iype. was not anticipated, and discloses invention of a pioneer character, and has been so recognized and acquiesced in generally by the public, by governments, and by aeronautical societies, and is entitled to a broad and liberal construction. Also held infringed on a motion for a preliminary injunction.</p>

<p>In Equity. Suit by the Wright Company against Louis Paulhan. On motion for preliminary injunction.</p>

<p>1. Patents (§ 239*) — Infringement—Duplication of Parts.</p> <p>The mere duplication of parts of a patented machine, although it may render it more effective in operation, does not avoid infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 378; Dec. Dig. 239.*]</p> <p>2. Patents (§ 165*) — Construction—Reference to Specification.</p> <p>The use of the phrase “substantially as described” in a clause of a patent cannot import into it an element not claimed nor referred to therein.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. 165.*]</p> <p>3. Patents (§ 328*) — Infringement—Pneumatic- Carpet Renovator.</p> <p>The Thurman patents, No. 634,042, claim 1, and No. 690,084, claims 5 and 6, relating to pneumatic carpet renovators, construed, and held infringed.</p>

<p>In Equity. Suit by the General Electric Company against the Chicago Fuse Wire & Manufacturing Company. On motion for preliminary injunction.</p>

Proceeding by one Robertson against the Union Potteries Company. Heard on exceptions to the report and opinion of William R. Blair, referee in bankruptcy, acting as special master, on the petition for adjudication..

Louis Gallant was indicted for emptying a cask containing distilled spirits without effacing the stamps, marks, and brands, and moves to quash the indictment.

In the matter of the bankruptcy of George B. and James Stuart Irwin. On certified questions by the referee on petitions of the bankrupts for leave to amend schedules of exempt property and for a balance of exemption, and on petition of the bankrupts’ attorneys for attorney’s fees.

In Equity. Suit by Irene Franklin Green and another against Belle Blanch Minzensheimer. On motion for injunction restraining defendant from producing upon the stage a copyrighted musical composition.

<p>In Equity. Suit by Irene Franklin Green and others against Edna Luby. Heard, on motion for temporary injunction.</p>

Bill by the Royal Union Mutual Life Insurance Company against David Wynn, Jr., and another, and cross-bill by Thomas W. Wynn against the insurance company. On report of a special master and exceptions thereto.

In the matter of bankruptcy proceedings against John R. Perlhefter and Barnett Shatz, individually and as composing the firm of Perlhefter & Shatz. On motion to confirm a master’s report, adjudging the firm and individual partners bankrupts. This case comes up upon motion to confirm the report of the special master, to whom was referred the petition to adjudicate the respondents bankrupts, both individually and as constituíing the firm of Perlhefter & Shatz.

<p>Bill by the Washington, Alexandria & Mt. Vernon Railway Company against the Real Estate Trust Company of Philadelphia.</p>

<p>Druggists (§ 5*) — Food and Drugs Aot — Construction—“Misbranding.”</p> <p>The purpose of Food and Drugs Act, June 39, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), was to protect the public health against adulterated, poisonous, and deleterious food and drugs, and in view of such purpose under section 8, which defines “misbranding” as including articles of food or drugs “the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular,” a medicinal preparation cannot be said to be misbranded and its sale or shipment in interstate commerce a criminal offense under the act merely because of a misrepresentation on the label as to its curative effect.</p> <p>[Ed. Note. — For other cases, see Druggists, Dee. Dig. § 3.*]</p>

<p>In Equity. Suit by the Oregon Railroad & Navigation Company against Thomas K. Campbell and others. On demurrer to amended bill for preliminary injunction.</p>

<p>Í. United States (§ 07*) — Public Improvements — Contractors—Bond—Action.</p> <p>A petition, alleging the advertising for bids for the improvement of certain public waterways, the execution of a contract on the bid of the S. Company for the performance of the work, the execution of a bond by defendant, surety company to secure performance, the S. Company’s failure to commence the work within the time prescribed, the granting of additional time by the government, its refusal to grant a second extension, the S. Company’s failure to commence work within the time as extended, the cancellation of the contract, and the performance of the work under a subsequent contract with another at a higher price, stated a cause of action both against the S. Company and the surety.</p> <p>[Ed. Note. — Ifor other cases, see United .States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. United States (§ 67*) — Public Work — Contracts—Annulment.</p> <p>Where, after a contractor with the United States for a public waterways improvement failed to-begin the work within the time fixed as</p> <p>■ extended, the government canceled a contract and entered into a subsequent similar contract with another contractor at a higher price, who completed the work at a higher cost, the cancellation of the original contract did not release the contractor or his surety from liability for the loss sustained.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>B. United States (§ 67*) — Public Improvements — Contract—'Cancellation —Damages. ’</p> <p>Where, after the termination of a contract for public improvement by the United States for contractor’s failure to commence work within the time fixed as extended, the government entered into another contract with another to complete the work at a higher cost, and such contracts were substantially similar, the second contract was competent evidence of damages for the default of the original contractor and his surety.</p> <p>FEd. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p>

<p>1. Evidence (§ 588*) — Credibility oe Witnesses — Determination.</p> <p>In determining the credibility of witnesses, it is the jury’s duty to consider their interest, their opportunity for observation, and the general circumstances surrounding the giving of their testimony.</p> <p>. [Ed. Note. — For other cases, see Evidence, Cent. Dig. g 2437; Dec. Dig. § 588.*]</p> <p>2. Railroads (§ 346*) — Crossing Accident — Death of Pedestrian — Negligence — Contributory Negligence — Burden of Proof.</p> <p>In an action for the death of a pedestrian in collision with a railroad train at a crossing, the burden is on plaintiff to establish defendant’s negligence and that such negligence was the proximate cause of the death by a clear preponderance of the evidence, while the burden is on defendant to establish the defense of contributory negligence in the same manner.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Di". §§ 1117-1123; Dec. Dig. § 346.*]</p> <p>3. Railroads (§ 346*) — Crossing Accident — Death of Pedestrian — Negligence.</p> <p>In an action against a railroad company for death of a pedestrian at a crossing, the fact of the accident does not of itself show negligence.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 1119; Dec. Dig. § 346.*]</p> <p>4. Railroads (§ 307*) — Crossing—Flagmen.</p> <p>A railroad company is not bound, in the absence of statutory requirement, to employ a flagman or watchman at a crossing, and its failure to do so is not negligence unless required by the exercise of reasonable care.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977; Dec. Dig. § 307.*]</p> <p>5. Railroads (§§ 313, 317*) — Operation of Trains — Crossings—Signals— Speed.</p> <p>Where a city ordinance limited the speed of trains within the city to six miles an hour and required the ringing of the bell as crossings were approached, the operation of a train over a crossing at a speed exceeding six miles an hour and a failure to ring the bell, resulting in the death of a pedestrian at the crossing, constituted negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1002, 1004, 1005, 1009-1012; Dec. Dig. §§ 313, 317.*</p> <p>Effect of viola tion of statutes and ordinances regulating speed of trains, see note to Shatto v. Erie R. Co., 59 C. C. A. 5.]</p> <p>6. Railroads {§ 327*) — Crossing Accident — Death—Contributory Negligence.</p> <p>While a railroad company is entitled to the right of way over a railroad crossing, a pedestrian is nevertheless entitled also to use the crossing, being first required to look and listen, and not to carelessly walk into danger, so that if he fails to look, or, looking, does not see the approaching train when it must have been visible to an ordinary observer, he would be guilty of contributory negligence precluding a recovery for injuries sustained.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056: Dec. Dig. § 327.*]</p> <p>7. Railroads (§ 338*) — Crossing Accident — Last Clear Chance — Discovered Peril.</p> <p>A railroad company is liable for the death of a pedestrian at a crossing, notwithstanding his contributory negligence, if the operatives of the train in the exercise of reasonable care ought to have discovered decedent’s danger in time to have saved him, and failed to do so.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*]</p> <p>8. Death (§ 10*) — Action for Injuries — Survival.</p> <p>An action for physical and mental pain and suffering, suffered by a person injured before his death, survives to decedent’s widow and children.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. § 10.*]</p> <p>9. Death (§ 86*) — Measure of Damages.</p> <p>In an action for the wrongful death of a husband and father, the damages to the widow and minor children, consisting of the loss of support, etc., must be determined by considering all the probabilities, the amount of decedent’s earnings, and the probabilities of his continued health, etc.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 112-114, 119; Dec. Dig. § 86.*]</p> <p>10. Master and Servant (§ 303*) — Injuries to Third Persons — Negligence —Incompetent Engineer.</p> <p>The employment of an incompetent engineer resulting in a railroad crossing accident is negligence sufficient to justify a recovery if it was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 303.*]</p> <p>11. Negligence (§ 1») — Definition.</p> <p>“Negligence” is the omitting to do something that a reasonably prudent person would do, or the doing of something that such person would not do.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7720-7731.]</p> <p>12. Death (§ 10q*) — Wrongful Death — Verdict.</p> <p>In an action by a widow for herself and minor children for the wrongful death of her husband, the father of the children, a verdict for plaintiff should be so divided as to find a specified sum for the widow and another specified sum for each minor child.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 149; Dee. Dig. § 105.*]</p>

In the matter of bankruptcy proceedings of Frederick Fenn. From an order of the Vermont District Court, sitting in bankruptcy, affirming a referee’s order disallowing a claim of the Garrett-Williams Company for liquor sold to the bankrupt, it appeals.

<p>Petition to Review Proceedings of the District Court of the United Stat.es for the District of Nevada, in Bankruptcy.</p> <p>In the matter of bankruptcy proceedings against the Exploration Mercantile Company, instituted by the Pacific Hardware & Steel Company and others, petitioning creditors, in which an injunction >vas issued against the bankrupt and others. An order was therea'ftef granted requiring petitioners to show cause why they should npt be adjudged guilty of contempt for disobeying the injunction, and petitioners filed a petition .to review.</p> <p>'This is a petition to review an order in bankruptcy. The petitioners allege: That on August 6, 190S, W. C. Stone filed in the' district court for the First .■judicial district of Nevada for Esmeralda county a complaint, praying that a receiver be appointed for the Exploration Mercantile Company, a corporation of that state. That on said petition -C. E-. Wylie was appointed receiver,.and took possession of the estate of said corporation. That thereafter, on September 12, 190S, the-respondents herein filed in the United"States District ‘Court for Névada a petition in bankruptcy, praying that -the- said Exploration Mercantile Company be adjudged a bankrupt. That said: District! Court, issued an injunction against the alleged bankrupt, 'Walter C. Stonp.-amd (IE-(Wylie, as receiver, their agents, servants, attorneys, and counselors,' and also’ a restraining order directing said parties to appear on September 18th and answer a motion for the said injunction and restraining order. That on said last-named date said alleged bankrupt appeared, and moved the District Court to dissolve said injunction. That said motion was heard but hot? decided'.’’-'1 That thereafter,, on July 9, 1909, the petitioners wpre required. j:o. appear in said District Court on July 21, 1909, to show cause ■ why’thby and'ea'Ch: of them should not 'be adjudged guilty of contempt for disobedience of said injunction, and said order to show cause. That said injunction order was erroneous for the reasons: First, that said proceeding in the ¡state -cotirt was.'not an action based upon a claim due or demand provable’or dischargeable in'bankruptcy, and that therefore the District Court had no-power :to issue; the:injunction; second, that by section 720 of the Revised Statutes (ü. S. Comp:-St. 1901, p. •581) said court was prohibited from issuing an--injunction’to stay proceedings in the state court; third, that the proceeding in the state court was. not a bankruptcy or insolvency proceeding; fourth, that the petition in-.bankruptcy, -filed by the petitioner’s creditors, .does not specify any act .or ground of bankruptcy ; fifth, that the state court had separate and, independent’’ jurisdiction •over which the federal court had no supervisory pówer, and had. complete jurisdiction before proceedings were taken in bankruptcy'.'</p>

Suit in equity by William S. Ingraham, doing business as the Illinois Fuel Company, against the Commercial Lead Company and others. Decree for defendants, and complainant appeals.

Scire facias by the Morgan Engineering Company against the General Castings Company to enforce a mechanic’s lieu. Prom an order quashing the writ, plaintiff appeals.

Action by Nathan B. Williams, as informer on his own behalf and on behalf of the United States of America, against the Wells Eargo & Co. Express. A demurrer to the information was sustained, and plaintiff brings error.

<p>1. Contracts (§ 241*) — Modification—Construction—Corporate Bonds— Sate.</p> <p>A contract provided for the sale by complainant to M. of certain bonds of a mining corporation with certain accompanying shares of stock for $05,000, SI 0.000 of which was deposited with respondent to secure to M, the purchase of the corporation’s property on foreclosure, but not to exceed 10 per cent, of the corporation’s bonded indebtedness; M. being entitled to deduct from the $10,000 the difference between such 10 per cent, and the amount he was required to pay for the property “at the lowest figure obtainable at public sale.” M., however, before signing the contract. added an agreement that it was understood that the $10,000 was to be held in escrow to protect: him against: “any costs or expenses over 10 por cent.” in settling for and securing 1ho cancellation of certain outstanding bonds or a judgment held by K. Held, that the added provision modified the contract as originally written, and hence M. was only required to proceed in a prudent manner to secure an arrangement for the satisfaction of the K. bonds to be perfected at the time of the purchase under foreclosure sale.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1120; Dec. Dig. § 241.*]</p> <p>2. Depositaries (§ 4*) — Duties—Litigation.</p> <p>In general, a mere depositary is bound to remain neutral and cannot take part in the principal litigation, nor can he involve himself in costs and fees beyond what is required to obtain a solicitor to observe the proceedings in the case.</p> <p>[Ed. Note.- — For other cases, see'Depositaries, Cent. Dig. § 9; Dec. Dig. § 4.*]</p>

<p>Contracts (§ 117*) — Legality—Rub tic Policy — Agreement in Partial Restraint or Trade.</p> <p>An agreement by the seller, on a sale of a liquor business, stock, and good will, that he will not engage in a like business in that or any adjoining county for a period of six years, nor assist any one else in such business, and that lie will remove from such territory and maintain his residence elsewhere for live years, is not unlawful as against public policy, in the absence of proof that.it was not a reasonable provision for the protection of the purchaser in the business.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 554-569; Dec. Dig. § 117.*]</p>

<p>1. Customs Duties (§ 30*) — Construction of Tariff Daws — Classification-Handmade Printing Paper.</p> <p>Under Tariff Act July 24. 1897. c. 11, § 1, Schedule M, pars. 390, 401. 30 Stat. 187, 189 (U. S. Comp. St. 1901, pp. 1671, 1672). handmade printing paper is dutiable as “handmade” rather than as “printing paper,” even when suitable for printing.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 115 120; Dec. Dig. § 36.*]</p> <p>2. Customs Duties (§ 36*) — Construction of Tariff Daws — Policy of DawHistory of Degislation.</p> <p>In construing the application of the terms “handmade” and “printing” as applied to paper imports, consideration was given to the evident intent of Congress (1) as revealed in numerous successive tariff acts to reduce the duties on printing paper for the benefit of the ordinary reading public, and (2) by elevating handmade paper into a new class, now that it has become in the art of printing a luxury.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 115 -120; Dec. Dig. § 36.*]</p>

Action by Louis Riedel, by his father and next friend, John M. Riedel, and John M. Riedel in his own right, against the West Jersey & Seashore Railroad Company. Judgment for defendant, and plaintiffs bring error.

Petition to Review an Order of the District Court of the United States for the. Eastern Division of the Southern District of Ohio. In the matter of the bankruptcy proceedings of Graham, Riggs & Co. and William D. Graham. On petition of A. U. Roadamiour to review an order disallowing his claim for legal services in successfully resisting the allowance of certain claims presented against the bankrupt’s estate.

<p>Petition to Review an Order of the District Court of the United States for the Southern District of Ohio, in Bankruptcy.</p> <p>In the matter of the bankruptcy of David Rohrer. . On petition to review an ord.er of injunction against Charles F. Hofer, staying for a period of 12 months a sale of North Dakota lands under a foreclosure decree against David and Ada V. Rohrer.</p>

In Equity. In the matter of the bankruptcy proceedings of Albert" Emil Kayser. Bill by the trustee against Weisbrod & Hess to recover a payment made by the bankrupt alleged to be fraudulent and to constitute a preference. From a judgment for the trustee, defendants appeal.

Receivership proceedings against C. i\l. Burkhalter & Co. From an order disallowing an alleged preferred claim filed by the People’s Savings Bank & Trust Company, and from a decree against the bank, it appeals.

<p>1. Pleading (§ 248*) — Amendment—Materiality.</p> <p>Where plaintiff sought to recover a license fee for the construction of certain patented brick kilns, and alleged that in consideration of the license defendant promised to pay plaintiff her “price,” and that such price was $300 per kiln, and was just and reasonable, an amendment expressly declaring that defendant had promised to pay $500 a kiln was not objectionable as changing the cause of action sued on, in that the claim first filed was based on a quantum meruit.</p> <p>[Ed. Note, — For other cases, see Pleading, Cent. Dig. § 702; Dec. Dig. § 248.*]</p> <p>2. Limitation oe actions (g 182*) — Pleading.</p> <p>Under the law of Pennsylvania, a party cannot claim the benefit of the si atnte -of limitations unless he has pleaded it.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 670; Dec. Dig. § 182.*]</p> <p>3. Appeal and Error (§ 173*) — Limitations — Questions Not Raised at Trial.</p> <p>The statute of limitations cannot be first set up in the Circuit Court of Appeals.</p> <p>LEd. Note. — For other cases, see Appeal aud Error, Cent. Dig. § 1104; Dec. Dig. § 173.*]</p> <p>4. Appeal and Error (§ 3056*) — Rulings on Evidence — Prejudice.</p> <p>Defendant was not prejudiced by the court’s exclusion of certain evidence, offered on cross-examination, relating to a collateral inquiry mainly, if not wholly, concerning transactions between husband and wife.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p> <p>5. Appeal and Error (§ 1058*) — Rulings on Evidence — Prejudice.</p> <p>Defendant was not prejudiced by the court’s erroneous exclusion of cross-examination of plaintiff’s husband relating to the difference between certain patents obtained by him, where the patents and the differences between them were afterwards fully described by other witnesses.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. § 1058.*]</p>

<p>Appeal from the. Circuit Court of the United States for the District of Nebraska.</p> <p>Suit by Julius Kessler & Co. against Solomon S. Goldstrom. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>Suit by Julius Kessler & Co. against Meyer Klein. Erom a decree dismissing the bill, plaintiff appeals.</p>

<p>Partnership (§ 307*) — Partnership Business — Settlement—Compensation op Settling Partner.</p> <p>Where certain trust land transactions constituted a branch of the general business of a partnership, and on dissolution this branch was left in the hands of the liquidating partner for settlement, he, not being entitled as against the firm to compensation for his services in closing the firm’s business was not entitled to retain for Ms own ¡benefit all compensation received by him after dissolution in the sale of the trust lands and timber in the settlement of the trust.</p> <p>lEd. Note. — For other cases, see Partnership, Cent. Dig. §§ 710, 711; Dec. Dig. ¡ 307.*]</p>

<p>Appeal from the District Court of the United States for the District of Nebraska.</p> <p>In the matter of the bankruptcy proceedings of William J. Crandall. From an order affirming the disallowance of a claim by the First National Bank of Omaha, on objection of Howard J. Whitmore, trustee, the bank appeals.</p>

Action.by Mary Pugh, administratrix of Jesse P. Pugh, deceased, against the Bluff City Excursion Company. Judgment for plaintiff for nominal damages, and she brings error.

<p>Patents (§ 328*) — Infringement—Smoke-Btjhning Boiler Furnace.</p> <p>The McMillan patent, No. 519,267, for a smoke-burning steam boiler furnace, is an improvement patent only, and is limited by the prior art, which discloses all the elements of the patent combination to the special arrangement, form, and capacity of the discharge flues; as so construed, held not infringed.</p>

<p>1. Patents (§ 26*) — Invention-Transfer of Devtcb to Analogous Art.</p> <p>Pumps and spoil pipes for dredgers belong to arts not so, remote that the transfer of a method of lining from one to,the other involves invention.</p> <p>fEfl. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dee. Dig. I 26.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Spoil Pipes for Dredgers. :</p> <p>The Semple patent, No. 752,474, for an improvement in pipes for use in carrying sand, gravel, and other material from dredgers and hydraulic or other excavating devices, the pipe having a lining composed of blocks of wood arranged in circular series presenting the grain of the wood endwise at the inner surface of the blocks for a wearing surface, such scries of blocks being inclosed in a casing of longitudinal wooden strips, the series of blocks being bound with hoops, and the outer casing wound with wire, discloses patentable invention, but, in view of the prior art, and prior structures in analogous arts, is entitled to only a narrow-construction and is limited to the precise structure shown. As so construed, held not infringed by a dredge pipe having a bottom only of similar blocks held in place by flanges on the inner surface of the inclosing pipe.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Ransome Concrete Machinery Company against the United Concrete Machinery Company. Decree for complainant, and defendant appeals.</p>

<p>1. Patents (| 69*) — Anticipation—Pbiob Publication.</p> <p>Under the rule that to constitute a prior publication which will invalidate a subsequent patent the publication must contain su.eh a substantial representation of the patented device as would enable any person skilled in the art to make, construct; and practice the invention to the same practical extent as he would be enabled to do if the information was derived from a prior patent, a published illustration and description of a bicycle, showing every detail of a part subsequently patented by another, except that it did not show that a tube for containing tlie pedal shaft, shown by the patent to be without perforations, and so appearing in the illustration, may not have been perforated or cut away on tlie bottom or the opposite side not seen — there being, however, nothing to indicate that such was the fact — fulfills all the conditions of the rule, even conceding that there was a patentable difference between a perforate and imperforate tube used for such purpose.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. § 84; Dec. Dig. { 69.*]</p> <p>2. Patents (§ 328*) — Anticipation—Bicycle.</p> <p>The Smith patent, No. 392,973, for an improvement in bicycles consisting of a transverse tube for holding the pedal shaft, built rigidly into and made an integral part of the frame, in view of the prior art as disclosed in actual structures and prior publications in England, is void for anticipation and lack of novelty.</p>

<p>1. Patents (§ 165*) — Construction—Claims.</p> <p>An element not claimed therein cannot be read into a claim of a patent to impart to it patentable novelty.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Car Truck Bolster.</p> <p>The Bauer patent, No. 593,410, for a metallic car truck bolster, construed, and claims 1, 2, 4, and 5 held void for lack of patentable invention. Claim 6 held .to disclose patentable novelty and invention as limited to the precise construction shown, and also infringed.</p>

<p>1. Patents (§ 36*) — Suit for Infringement — Defenses.</p> <p>Where a patent relates to a complex subject, such as one dealing with the action of vapors and gases and electro energy with their resultant phenomena, a defense of lack of invention or of limitation should be supported by expert testimony.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 36.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Process for Exhausting Incandescent Bulbs.</p> <p>The Malignani patent, No. 537,693, for a process for producing a vacuum in the bulbs of incandescent lamps, was not anticipated, discloses patentable novelty and invention, and in view of its proved utility is entitled to a broad construction and a corresponding range of equivalents. Also held infringed.</p> <p>i. Patents (§§ 229, 230, 231*) — Infringement—Process Patent.</p> <p>To reverse or transpose the steps by which a patented process is carried out or to substitute a chemical substance for another which is known in the art as the equivalent, or which by its chemical action performs similar functions, does not avoid infringement.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 366-368, 369; Dec. Dig. §§ 229, 230, 231.*]</p> <p>4. Patents (§ 132* *) — Tickm—Effect of International Convention.</p> <p>Article 4 bis, inserted in the International Convention for the Protection of Industrial Property of March 20, 3883, by the additional act of convention signed at Brussels December 14, 1900, proclaimed by the President August 25, 1902, 32 Stat. 1930, as controlled and construed by Act March 3, 3903, c. 1039, 32 Stat. 3225 (U. S. Comp. St. Supp. 1909, p. 1270), J‘to effectuate the provisions” of such additional act of convention, did not have the effect of changing the term of an existing United States patent as fixed by statute at the time of its issuance; and such a patent granted prior to January 1, 3898, and which is limited by the provisions of Rev. St. § 4887 (II. S. Comp. St. 1901, p. 3382), to the term of a prior foreign patent, is not extended, by such additional act.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 188%-191; Dec. Dig. § 332.*]</p>

<p>1. Patents (§ 32*) — Invention.</p> <p>The fact that an expert, with a patent before him and by the use of the information suggested thereby, is able to construct the patented device from that of a prior patent, does not overcome the presumption of invention arising from the granting of the later patent.</p> <p>Píd. Note. — For other cases, see Patents, Cent. Dig. §§ 35, 3(5; Dec. Dig. § 32.*]</p> <p>2. Patents (§ 328*) — Invention—Balt, Bearings.</p> <p>The Conrad patents, No. 822,723, for a ball bearing, and No. 838,303, for a method of manufacturing and assembling such bearing, cover a device and mode of assembling the same which are novel and of great utility, and disclose invention.</p>

<p>In Equity. Suit by the Sieber & Trussel Manufacturing Company against the Chicago Binder & File Company. On final hearing.</p>

<p>In Equity. Suit by William M. Keepers against the American Electric Fuse Company. On final hearing.</p>

In the matter of bankruptcy proceedings against A. Dandsberger. On the intervening petition of M. G. Samuels to recover from the trustee certain goods alleged to have been consigned to the bankrupt for sale at an advance of 25 per cent, of the inventory price. On review of referee’s decision denying petition.

<p>1. Courts (§ 32,3*) — Place op Residence — Evidence.</p> <p>Evidence held sufficient to establish that a complainant was a resident of New Jersey, and merely had a temporary domicile in West Virginia, on an issue of diverse citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ SS5, 880; Dee. Dig. § 323.*</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. Courts (§ 262*) — Equity Jurisdiction of Federal Courts — Adequate Remedy at Daw.</p> <p>Rev. St. § 723 (ü. S. Comp. St. 1901, p. 583), prohibiting suits in equity in federal courts, where plain, adequate, and complete remedy at law can be had, does not deprive equity of jurisdiction if the remedy at law is doubtful, difficult, not adequate to the object, nor so complete as in equity, nor so efficient and practicable to tbe ends of justice and its prompt administration.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 797, 798; Dee. Dig. I 202.*]</p> <p>3. Courts (§ 334*) — Remedies—Equity—Federal Courts.</p> <p>The West Virginia rule that, where usury lias been paid and the transaction is closed, the borrower may recover the usury paid in assumpsit for money had and received, but, if the debt or any part of it on which usury has been paid remains unpaid, a court of equity may be appealed to, which in stating the account between the parties will credit on the principal of the unpaid part whatever usurious interest has been paid, and give the lender a decree for his debt: with legal interest only, is enforceable in federal courts sitting in that state under tile rule that tlie public policy of a state with respect to contracts made within it is obligatory oil federal courts, whether acting in equity or at law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 899, 910; Dec. Dig. § 334.*]</p> <p>4. Usury (§ 117*) — Evidence.</p> <p>Evidence held to require a finding that a transfer of corporate stock to defendant in consideration of defendant’s services in assisting in the construction and financing of a railroad ivas in fact a mere cover for usury contracted to be paid on a loan of money made by defendant to complainant.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 328-340; Dee. Dig. S ■ 17.*;</p>

Action by Julius Auerbach, as assignee of J. Walter Douglass, against the Internationale Wolfram Dampen Aktien Gesellschaft. On motion to vacate an attachment. This is a motion to dissolve an attachment levied by the plaintiff upon a contract between the defendant and the General Electric Company. The defendant is a corporation organized under tlie laws of the kingdom of Hungary, and having its principal place ol' business in the city of Budapest.

<p>In the matter of the bankruptcy of the Monarch Corporation. On petition of Norman Leeds, trustee,, for an assessment on stockholders.</p> <p>The following is the petition referred to in the opinion:</p> <p>That the said bankrupt was a corporation duly organized and existing under the general incorporation laws of the state of Connecticut. Said corporation was organized about January 13, 1906, and -began its business operations soon thereafter, continuing until March 1, 1908, when said corporation became so financially embarrassed that' it was compelled to suspend its business, being unable to meet its liabilities as they became due. Whereupon, on March 16, 1908, an involuntary petition in bankruptcy was filed against said corporation ip the District -Court of the United States for the District of Connecticut, and thereafter, on the 14th day of April, 1908, said corporation was duly adjudged a bankrupt by sa,id District Court.</p> <p>Your petitioner at a meeting of creditors called on the 12th day of May, 1908, was elected trustee of. the estate and effects of the said bankrupt, which election was duly confirmed by John W. Banks, Esq., referee in bankruptcy, and yopr petitioner qualified as such trustee on the 13th day of May, 1908.</p> <p>Your petitioner since said May 13, 1908, has been and is now the duly elected acting ánd qualified trrfstee of said bankrupt.</p> <p>The general purposes and objects of said corporation were the manufacturing of and dealing in appliances, apparatus, machinery, and devices of all kinds for fighting fire and chemical compounds used for the purpose of extinguishing fire.</p> <p>At the date of the adjudication of said corporation as a bankrupt, its outstanding capital stock was $500,000, all of which at that date was subscribed for, taken, and held. Said capital stock was divided into 5,000 shares of $100 each, of which 2,500 shares were preferred, and 2,500 shares were common. Said stock was held and owned almost entirely by the organizers and original stockholders of said corporatfcm, who had from time to time acted as directors of said corporation, elected its officers, and who held and owned said stock as stock in a corporation represented and published to the world as having a stock of 8500,000, upon the faith of which it was enabled to and did create large liabilities for the carrying on of the business of manufacturing fire extinguishers.</p> <p>Tour petitioner attaches to this petition, and prays that it may be made and considered a part hereof, a certain statement marked “Exhibit A,” showing who the said stockholders are, the amount of stock held by each, how acquired, etc. The said stockholders, and each of them, held and owned, and do now hold and own, certificates of stock for their shares of stock in said corporation, executed by affixing the seal of the corporation and the signatures of the president and treasurer thereof.</p> <p>Of said capital stock, amounting to 8500,000, $25,000 was issued for cash: the remainder, amounting to $475,000, was issued for and in consideration of the assignment to said, corporation of two certain United States patents, No. 545,351 and No. 610,127, as more fully appears in the vote passed at the meeting of incorporators of said corporation, held on January 16, 1906, and a vote of the meeting of directors held upon said date, which votes are as follows;</p> <p>“Vote of Incorporators: Whereas, George II. -Carpenter offers to cause to be transferred to this company, for and in consideration of the issue to himself and his associates, of $475,000.00 of the full-paid nonassessable capital stock of this company, certain patents covering certain inventions relating to the use of carbonic acid gas and apparatus for containing carbonic acid gas, which are more particularly described as follows: United States patent No. 545,351, dated August 27, 1895, and United States patent No. 610,127, dated August 30, 1898, both issued to Victor Durafort, for the development of which patents this company is organized: Now, therefore, he it resolved, that the stockholders of the company declare the said patents to be in their judgment of the reasonable value of $475,000.00; and further be it resolved, that the directors of the company be authorized to issue capital stock of the company, full-paid -and nonassessable, to the extent of $475,000.00, to said George H. Carpenter, Williapi C. Hill, Harlan W. Brush and Deonard D. Baldwin, for and in consideration of the assignment to this company of said patents.</p> <p>, “Vote of HIrectors: Whereas, the incorporators and subscribers for the capital stock of the company have examined into the value of the Durafort inventions and the United States patents covering the same, and have, in a resolution duly adopted, at the first meeting of the company, expressed their assent that the same should he acquired for the purposes of the company, and that 8475,600.00 of the capital stock of the company should be issued as full-paid and nonassessable against the said patents in said resolution described; and whereas, each of the members of the board of directors has for himself investigated the value of such inventions: Now, therefore, be it resolved, that the board of directors adjudge and declare said patents, to wit, certain patents covering certain inventions relating to the use of carbonic acid gas, and apparatus for containing carbonic acid gas, which are more particularly described as follows: United States -patent No. 545,351, dated August 27,, 1895, and United States patent No. 610,127, dated August 30, 1898, both issued io Victor Durafort, to be of the fair and reasonable value of $475,000.00; and further be it resolved, that the company issue its full-paid and nonassessable stock to the extent of $475,000.60 in' consideration of, the transfer of said patents; to the Monarch Corporation. The secretary reported that George H. Carpenter and William C. Hill had executed an assignment of certain patents covering certain inventions relating to the use of carbonic acid gas and apparatus for containing carbonic acid gas which are more particularly described as follows: United States patent No. 545,351, dated August 27, 1895, and United States patent No. 610,127, dated August 30, 1898, both issued to Victor Durafort, referred to in the foregoing resolution, to the Monarch Corporation, and had filed with him copies of such patents and of the assignments of the same, to the said George H. Carpenter and William C. Hill, together with a written direction that the capital stock of the company to be issued against the assignment of said patents be issued to the following named persons in the amounts set opposite their respective names, to wit: George H. Carpenter, $175,000.00; William C. Hill, $173,000.00; Harlan W. Brush, $100,000.00; Leonard D. Baldwin, $25,000.00.”</p> <p>The following resolution was regularly made, seconded and unanimously adopted:</p> <p>“Resolved: That the officers of the company be directed to issue $473,000.00 of the stock of the company in the amounts set opposite the names of the respective persons named in the written, direction of George H. Carpenter and William C. Hill heretofore filed with the company in satisfaction of the subscriptions made .by said George H. Carpenter, William C. Hill, Harlan W. Brush and Leonard D. Baldwin for stock of the company, to be paid in property.”</p> <p>At said meeting of incorporators, of the five incorporators and subscribers to the capital stock, George I-I. Carpenter, Harlan W. Brush, Joseph O. Roe, and William C. Hill were present in person; Leonard D. Baldwin was present by proxy; and at the said directors’ meeting held January 16th, the said Joseph O. Roe, William C. Hill, George I-I. Carpenter, Harlan W. Brush, and Leonard D. Baldwin were all present, constituting the entire board.</p> <p>Thereafter, and for the consideration of the assignment of said patents as aforesaid, the capital stock of said corporation to the amount of $475,000 was issued to the said George H. Carpenter, Harlan W. Brush, Joseph O. Roe, Leonard D. Baldwin, and William C. Hill.</p> <p>From time to time, certain shares of said capital stock have been transferred by said original stockholders, and thereupon new certificates have been issued for the same, as more fully appears in Exhibit A.</p> <p>As to these assignees of stock, your petitioner is not informed as to whether they received their stock with knowledge of the facts and conditions under which it was originally issued, or whether they or any of them are bona fide pui’chasers without notice.</p> <p>Said United States patents, No. 545,351 and No. 610,127, have never been transferred or assigned to said Monarch Corporation, or to your petitioner, as trustee, although he has made demand for the same upon all the stockholders whose names appear upon the books of said corporation as holders of certificates of capital stock.</p> <p>Your petitioner represents that while said stockholders, as more fully appears in Exhibit A, hold certificates of stock amounting in the aggregate to $500,000, they, or either of them, have not paid to the corporation or its trustee said $500,000, or any part thereof, except the sum of $25,000 aforesaid, nor have said stockholders assigned or transferred to said corporation, or its trustee, said United States patents, No. 545,351 and No. 610,127, but that said capital stock to the amount of $475,000 was issued without any consideration whatsoever.</p> <p>Your petitioner attaches hereto Exhibit B, and prays that it may be made and considered a part of this petition, showing the amount of stock held by each stockholder and the amount due on the same.</p> <p>Your petitioner claims that by the charter of said corporation the laws of Connecticut and the general principles of law governing corporations, upon the failure to transfer to the corporation said United States patents, Nos. 545,351 and 610,127, said stock and subscriptions thereto became payable in cash, and that all of said stockholders have a liability resting upon them to pay your petitioner for the benefit of the creditors of said corporation such' part of the amount unpaid by them on said stock as may be necessary -to pay such part of the debts and liabilities of said corporation as cannot be discharged and paid off by the available assets in the possession of your petitioner.</p> <p>Your petitioner represents that at the dale of said adjudication the affairs of said corporation were in a very embarrassed and complicated condition, and much time has necessarily been consumed and considerable expense incurred in liquidating and collecting the assets of the corporation, and in enforcing its contracts, and in opposing claims attempted to be established in said bankrupt court. The property of the corporation on hand at the date of adjudication in bankruptcy has been disposed of as rapidly as seemed consistent to the interest of all concerned, until at the present time no property remains on hand not reduced to cash, except 2,200 unfinished extinguishers of the appraised value of $67.22, the title to which is in controversy before said bankrupt court.</p> <p>Your petitioner is informed and believes that in other cases similar to this the bankrupt courts have -made assessments on the capital stock upon an approximate showing of the bankrupt's financial condition, which can now be done by your petitioner with reasonable certainty.</p> <p>Of the said stockholders, as your petitioner is informed, a majority live in the states of New York and New Jersey. Your petitioner is also informed and believes that a majority of these stockholders are men of i>ecuuiary responsibility, and intend to oppose all efforts made to enforce the liability claimed by your petitioner, which opposition will render necessary suits in the states of New York and New Jersey and other jurisdictions to recover any assessments made by this court.</p> <p>The entire assets, including the aforesaid 2,200 unfinished extinguishers at their appraised value, amount approximately to $572.51 ; the debts proved and unpaid amount to $54,783.32. This leaves $54,210.81 to be paid, together with the costs of your petitioner in administering and settling the affairs of said bankrupt, which may he a considerable amount in ease these proceedings should be contested, as well as the suits against each individual stockholder to recover the assessments. These said costs, expenses, and attorney’s fees your petitioner estimates at $25.000, which sum may be increased or diminished according to the amount of litigation necessary in collecting said assessments. This makes a total of $79,210.81 to be assessed against said stockholders.</p> <p>Your petitioner believes that an assessment of 20 per cent, upon the par value of each share of stock in said corporation, if credited with the amount paid on said capital stock, would equalize the burden upon the stockholders and at the same time bring into the hands of your petitioner a sufficient amount to pay the debts of the corporation.</p> <p>Your petitioner, therefore, prays that he may be authorized and directed to make a call and assessment of $20 upon each share of capital stock, crediting any amount paid by any such stockholder upon his respective shares, and only requiring the stockholders to pay the difference between said call and assessment and the amount paid thereon, and to make a call and assessment for said difference.</p> <p>Your petitioner further prays that the court will order and direct the details of such call and the servicie of notice upon each stockholder, if such notice be required, and this without prejudice to a further call and assessment upon said stock if the same should become necessary.</p>

<p>Shipping (§ 81*) — Injury to Tow by Striking Rocks — Liability op Meeting Vessel.</p> <p>The tug Minnie, with seven barges in tow on hawsers in two tiers, the first tier being 130 feet or more in width, had passed through Hell' Gate, going up East River, when she met a transfer tug with a car float on each side, which was followed by the steamship Sagami. The transfer stopped some 150 feet from the Ward’s Island shore to permit the tow to pass, and also gave a warning signal to the Sagami, but the latter failed to stop, although the tow was then in sight, ánd proceeded alongside the transfer on the outer side, throwing the Minnie and her tow to the southward of the middle of the channel, which is 700 feet wide. The place was dangerous for tows at the time, owing to the' flood tide which sets toward the rocks on the Long Island side, and, although the tug'immediately turning across astern of the Sagami toward the opposite .side, the tow swung so near the shore that one of the barges struck the rocks, and was injured. Weld, on the evidence, that the Minnie was not negligent, but that the fault was solely that of the Sagami, which should have stopped, as she might have done when warned by the transfer.</p> <p>[Ed. Note. — For other eases, see Shipping, Dee. Dig. § 81.*’</p>

<p>Banketjptct (§ 303*) — Pkeferexces—Evidence.</p> <p>In an action l)y a 'bankrupt’s trustee against an indorser of the bankrupt’s notes, alleged to have been paid by the bankrupt during four mouths prior to the adjudication on an involuntary petition, on the theory that such payments constituted an invalid preference, in that they relieved the indorser from liability, evidence held sufficient to sustain a finding that the bankrupt was insolvent when he paid the note, that the indorser liad knowledge of his condition, and that the payments were made by his procurement and advice, that he might be relieved.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 462; Doc. Dig. § 003*1</p>

<p>1. Customs Dütiüs (§ 82*) — Review of Reappraisemicnts — What Constitutes Record.</p> <p>Reappraisement proceedings under Customs Admmistralive Act Juno 10, 1890, c. 407, § 13, 26 Stat. 136 (U. S. Comp. St. 1901, p. 1932), are separate and distinct from protest proceedings under section 14, 2(5 Stat. 137 (U. S. Oomp. St. 1901, p. 1933); and where the legality of a reappraisement is challenged by proceedings under the latter section, the entire reappraisement record does not become a part of the record in the latter proceedings, unless expressly admitted.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 82.*).</p> <p>2. Customs Duties (§ So*) — Appear—Return of Record.</p> <p>In Customs Administrative Act June .10, 1890, c. 407, § 15, 30 Stat. 138 (U. S. Comp. St. 1901, p. 1933), the provision that, on appeal to the Circuit Court, the Board of General Appraisers shall return “the record and the evidence taken by them,” does not require the return of evidence which was excluded.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 85.*]</p> <p>3. Customs Duties (§ 85*) — Excluded Evidence — Exceptions.</p> <p>Under Customs Administrative Act June 10. 1890, c. 407, § 15, 30 Stat. 138 (U. S. Comp. St. 1901, p. 1933), where it is desired that evidence excluded by the Board of General Appraisers should, on appeal to the 'Circuit Court, be passed on by the court, it is requisite either that an exception should have been taken to the Board’s ruling excluding the evidence, and the matter brought before the court in the assignments of error, or that -the evidence should have been offered as additional evidence in the manner provided in said section.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 85.*]</p>

<p>Bill by the Twenty-Third Street Railway Company against the Metropolitan Street Railway Company and others. On demurrer to bill.</p>

<p>Hearing before a United States commissioner in a criminal proceeding. On motion of Joseph Stern to set aside service of a subpoena.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Action by John V. Sheppey against Ezra H. Stevens. On demurrer to complaint.</p>

<p>Bills by the Missouri, Kansas & Texas Railway Company, by the Atchison, Topeka & Santa Fé Railway Company, and by the Gulf, Colorado & Santa Fé Railway Company against 'J. F. Love and others. On application for a temporary injunction.</p>

In the matter of bankruptcy proceedings against Volney B. Leonard and others, a copartnership doing business under the name and style of the Merchants’ & Miners’ Bank. Petition for the allowance of the report of a temporary receiver modified, and allowed as modified.

<p>In Equity. Suit by the Mound City Company againsfc Robert H. Castleman and others.</p> <p>This controversy grows out of the partition of certain lands situate in Cooper county, Mo., belonging to David Castleman at the time of his death in January, 1907. He left surviving him his widow, the defendant Ida May Castleman, who was his second wife, and his two sons, defendants Robert II. Castleman and Ben T. Castleman. On March 20, 1907, Robert H. Castleman instituted a suit in the circuit court of Cooper county, Mo., against said Ida May Castleman and Ben T. Castleman for the partition of said lands among them. Summons was issued thereon March 25, 3907, which as to Ida May Castleman was directed to the sheriff of Cooper county, where she then resided, and was promptly served upon her. The summons as to Ben T: Castle-man was directed to the sheriff of the city of St. Louis for service, where he then resided, and was engaged in the practice of law. The sheriff was unable to serve him until perhaps May, 1907. While said prbcess was in the hands of the sheriff of. St. Louis county, the said Ben T. Castleman, on the 30th day of March, 1907, executed a deed of conveyance of his interest in said lands t,o the complainant, Mound City Company, a corporation which he had organized in the state of New Jersey. The consideration of said conveyance was the issuing to him of practically all the stock of said company. Thereafter, on the 2d day of May, 1907, he caused to be filed in this court a hill in equity in the name of the said Mound City Company against the said Robert H. Castleman and Ida May Castleman, setting out its acquisition of the interest of said Ben T. Castleman in said lands, and praying for partition thereof. To this bill the said Robert H. Castleman and Ida May Castleman appeared and' filed plea setting up the pendency of said partition suit in the state court. When that matter came up for hearing, the then presiding judge of this court made an order suspending the hearing of said plea until the final determination of the suit in the state court. At the next term of court the complainant filed motion to have said order vacated, which was denied. This was repeated at the next term of court, before another judge then presiding, which was denied.</p> <p>In October, 1907, an amended petition was filed in the case pending in the state court, making one Whitlow the trustee, and one Chilton beneficiary, under a mortgage on part of this land existing at the time of the death of David Castleman. Thereafter, on the 29th day of October, 1907, in the Cooper county circuit court, an order was made fixing a special day for the hearing of the partition suit pending in that court, and directing the clerk to notify said Ben T. Castleman thereof, which was done. On the 2d day of November, T907, said Ben T. Castleman sent an answer to the clerk of the Cooper county circuit court disclaiming any interest in the land, which was filed in said court on the 9th day of November, 1907. That suit proceeded to interlocutory judgment in partition, and on the 19th day of November, 1907, notice was served on Ben T. Castleman by the commissioners appointed therein, advising him of the time of their meeting, to wit, November 25, 1907,- to make said partition. The report of the commissioners was made on November 30, 1907, which was confirmed and final judgment rendered therein November 28, 1907. After said assignment in partition, the said Ida May Castleman • and Robert H. Castleman were put in possession of their respective portions of the land, which they have proceeded to make conveyances of and put deeds of trust upon.</p> <p>After all these occurrences, at the March term of this court, 1909, the complainant was permitted to file herein supplemental bill, restating the averments of the original bill, and charging that certain advancements had been made to said Robert H. Castleman in the lifetime of his father, and making indiscriminate charges of irregularities and frauds in the proceedings in the state'court leading up to the rendition of judgment, and in the proceedings of the commissioners in making the allotment of the lands, and various other matters not material to the decision of the case.</p> <p>Said Ben T. Castleman made himself a party defendant to this amended bill, and made answer under oath, doubtless with the mind to make it effective as an admission of all the material allegations of the bill against the defendants.</p> <p>Thereafter, i on the 27th of July, 1909, on application of the complainant, the clerk set down the case for hearing on the pleadings, and in this condition of the record the- case has been argued and submitted to the court.</p>

Action by Calvin B. Painter, administrator of the estate of Tloyd Painter, deceased, against the Chicago, Burlington & Quincy Railroad Company and others. Petition for remand of cause to state court.

<p>1. Landlord and Tenant (§ 80*) — Assignment or Sublease — Constetjction.</p> <p>Where the lessee óf a hotel executed whát purported to be a sublease for the entire remaining term for the same rent, providing that receipts for installments made to the original landlord should be received in discharge of the sublessee’s obligation under the lease, the original lessee retained no reversion, and the sublease would be regarded as an assignment of the term, and not as a sublease, though it expressly provided that it was intended to establish the relation of landlord and tenant between the parties tfiereto with all the rights and liabilities attached to that relation.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 234-257; Dec. Dig. § 80.*]</p> <p>2. Bankruptcy (§ 350*) — Claims Against Estate — Landlord’s Lien — Priority.</p> <p>The lien of a landlord on personal property, which is liable to distress, will be preserved in bankruptcy proceedings as against the proceeds of such property in priority to the general expense of the administration of the estate, subject only to the direct expense incurred in realizing the fund liable to the lien.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. § 350.*]</p> <p>3. Landlord and Tenant (§ 267*) — Sublease or AssignmentEffect — Distress.</p> <p>In case of a sublease, the lessor by operation of law has the right of distress by reason of the reversion remaining in him after the termination . of the sublease; whereas, in case of an assignment, the lessor or assignor, having parted with all his estate, does not possess the right of distress unless expressly reserved in the deed of assignment.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1081: Dec. Dig. § 267.*]</p> <p>4. Landlord and Tenant (§ 267*) — Assignment of Lease — Distress by Assignor.</p> <p>Where the assignment of a lease provided that, in case of the assignee’s failure to pay rent, the assignor may declare a forfeiture and re-enter, and also contained a waiver of the exemption law on any warrant of distress that might be issued, it did not include an implied right of distress in the assignor.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1080, 1081; Dec. Dig. § 207.*]</p> <p>5. Bankruptcy (§ 249*) — Administration of Estate — Continuance of Bankrupt’s Business — Mistake of Judgment — Trustee’s Liability.</p> <p>Where, on the bankruptcy of the assignee of a hotel lease, the assignor, on the appointment of a receiver, petitioned the court to authorize the receiver to continue in the operation of the hotel because it would be to the interest of the estate that it should be sold as a going concern, and, though the assignor objected to the continued operation of the hotel, he took no immediate steps to prevent such continuance, nor until considerable loss had been sustained by the trustee, the latter was chargeable only as for a mistake of judgment, and wás therefore not bound personally to make good any loss.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 347; Dee. Dig. § 249.*]</p>

In Equity. Suit by E. J. Catterlin against Matthew Voney and others for an accounting, in which the Williamsburg M ining Company was made a party defendant. After answering the bill, defendants filed an alleged cross-bill, and subsequently, one White having obtained judgment against the mining company, Voney, Hamilton & Walker sue to enjoin liim from sequestering the property of the mining company.

In the matter of the bankruptcy of Tracy & Co. Application by William W. Tracy for injunction and order to the district attorney of New York county and the trustee in bankruptcy.

Contempt proceedings against B. Zavelo and certain others for serving civil process on witnesses under subpoena by the United States to testify in a criminal proceeding by the United States against Zavelo and others, during a witness’ attendance at the court.

Action by George W. Dunn and others, as receivers of the Madison County Gas & Electric Company against the Oneida Community, Eimited, and another. This is an action by the above-named receivers against the defendants, the Oneida C'onumuiity. Limited, and ¡Stephen 11.

<p>1. Courts (§ 343*) — Federal Courts — Practice—Removal oe Action — Foreign Executors of Deceased Defendant.</p> <p>A suit cannot be instituted against executors in a federal court in a state other than the one in which they have taken out letters, where jurisdiction deiiends on diversity of citizenship, nor can a pending suit against the testator be revived against such executors, unless ancillary letters are taken out in the state where the suit is .pending!</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 915, 911>; Dec. Dig. § 343.*]</p> <p>2. Courts (§ 3-43*) — Federal Courts- — Loss of Jurisdiction — Death of Indispensable Party.</p> <p>A suit in a federal court may be dismissed on motion for want of jurisdiction on the death of a defendant who is an indispensable party, where such fact plainly appears from the pleadings, and the executors of the decedent cannot be brought in, but if there is doubt on the question, and It appears that the suit may be separable, it should not he so dismissed, nor when -there is a possibility of revival against the executors, until ¿ft-er the lapse of a reasonable time.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 915, 916; Dee. Dig. § 343.*]'</p>

The following is a copy of the indictment in case No. 45: “The United States of America. “At a District Court of the United States of America, for the District of Massachusetts, begun and holden at Boston, within and for said district, on the first Tuesday of December in the year of our Dord one thousand nine hundred and nine. “First Count.

<p>Bill by Louis Hanneman against Matilda G. Richter, as executrix, etc. On motion to dismiss.</p>

<p>1. Customs Duties (§ 66*) — Secretary of the Treasury — Invalid Departmental Regulation.</p> <p>There is no stature granting to the Secretary oí the Treasury the power t.o adopt article 1-350, Customs Regulations 3899, permitting entry of imports by appraisement without invoice, where the invoice value greatly exceeds the general market value at the time of exportation.</p> <p>[Ed. Note. — Eor other cases, see Customs Duties, Dec. Dig. § 66.*]</p> <p>2. Customs Duties (§ 75*) — Dutiable Value — Excessive Invoice Value.</p> <p>The provisions in Customs Administrative Act June 10. 3890, c. 407, § 39, 26 Stat. 139 (U. S. Comp. St. 3901, p. 1924), and Act June 10, 1800, e. 407, § 7, 26 Stat. 334, as amended by Act July 24, 1807, c. 11, § 32. 30 Stat. 211 (U. S. Comp. Si. .1901, p. .1892), that “duty shall not * * * bo assessed * * * upon less than the invoice * * * value,” and that “duty shall he assessed upon the actual market value * * * at</p> <p>the time of exportation,” when construed together, mean that the dutiable value shall in no case he fixed at less than the purchase price of ihe goods; and where, subsequently to the purchase of goods for import to the United States, the market value of such goods decreases, the goods are nevertheless dutiable on the basis of the price paid. '</p> <p>[Ed. Note.- -Eor other cases, see Customs Duties, Cent. Dig. § 181 ; Dec. Dig. § 75.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>These are cross-appeals from a decision by the Board of Appraisers (G. A. 6,822, T. D. 29,326), which sustained protests of the importers against the assessment of duty by the collector of customs at the port of New York.</p>

<p>Action by Mrs. Louise Adderson against the Southern Railway Company and others. The case having been removed to the federal Circuit Court, plaintiff moves to remand.</p>

<p>Clerks of Courts (§ 54*) — Clerks of United States Courts — Deposits—Commissions.</p> <p>Rev. St. § 995 (U. S. Comp. St 1901, p. 711), provides that all moneys paid into any United States court, or received by the officers thereof, in any cause pending or adjudicated therein, shall be forthwith deposited with the Treasurer, Assistant Treasurer, or a designated depositary of the United States, in the name and to the credit of the court; and section 828 provides that the clerk shall be allowed, for receiving, keeping, and paying out money in pursuance of any statute or order of the court, 1 per cent, of any amount so paid. Held, that a clerk is not entitled to commissions on part of a fund in the hands of a receiver' appointed by the court, not deposited in a designated United States depositary, but under order of the court in a national bank to the credit of the receiver, subject to checks drawn by the receiver and countersigned by the judge of the court.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 77; Dee. Dig. § 54.*]</p>

<p>1. Banks and Banking (§ 254*) — National Banks — Ultra Vires Transactions — Directors’ Liability — Bill—Capacity to Sue.</p> <p>A bill by a stockholder’s agent of an insolvent bank against directors to recover moneys lost by ultra vires transactions of the president and vice president, in which defendants participated, alleging that at a stockholders’ meeting h'eld pursuant to law plaintiff was elected as shareholders’ agent to wind up the affairs of the bank in place of a receiver, and that he gave bond, as required by law, and is the duly qualified agent of the shareholders to act in the place of the receiver, sufficiently showed complainant’s capacity to sue.</p> <p>[Ed. Note. — Por other cases, see Banks and Banking, Dec. Dig. § 254.*]</p> <p>2. Banks and Banking (§ 253*) — National Banks — Ultra Vires Transactions — Stock Speculations.</p> <p>Where directors of a national bank engaged in or knowingly permitted stock speculation by the president and vice president with the bank’s funds, such directors were liable for the losses sustained.</p> <p>[Ed. Note. — Por other cases, see Banks and Banking, Dec. Dig. § 253.*]</p> <p>3. Banks and Banking (§ 254*) — Accounting—Adequate Remedy at Law.</p> <p>Where a stockholder’s agent of a national bank sought to recover from directors losses sustained by stock speculations of the president and vice president with the directors’ knowledge and participation, a bill in equity for an accounting was sustainable, though a recovery at law could be had as to some of the transactions pleaded.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dee. .Dig. § 254.*]</p>

<p>1. Bankruptcy (§ 148*) — Assets—Insurance Agent’s Future Commissions.</p> <p>Where an insurance agent’s contract entitled him to an interest in renewal premiums on policies iireviously written, when collected, so long as the contract was in force, and in case of his death his widow or estate was entitled to receive such interest for five years, less a fee' for collection. such interest was property which passed to the agent’s trustee in bankruptcy as a part of the assets of his estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 148.*]</p> <p>2. Bankruptcy (§ 408*) — Transfer of Assets — Concealment of Property with Intent to Defraud — “Refusal of a Discharge.”</p> <p>Where, pending bankruptcy proceedings against a general insurance agent, the referee erroneously determined that the bankrupt’s interest in renewal pronilnms under his contract was not a part of his estate, and ponding review thereof, on which the referee’s decision was reversed, the bankrupt collected all or nearly all his earned commissions and appropriated them, such act did not warrant the “refusal of a discharge” under Bankr. Act July 3, 1898, c. 541. § 14, 30 Stat. 550 (TJ. S. Comp. St. 1901, p. 3427), providing for the denial of a discharge in case the bankrupt has destroyed or concealed his property with intent to hinder, delay, or defraud his creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 408.*]</p> <p>3. Bankruptcy (§ 417*) — Discharge—Revocation—Fraud.</p> <p>The fraud for which a bankrupt’s discharge may be set aside must relate to actual fraud theretofore knowingly practiced by the bankrupt, such as might: have been urged against the granting of a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 809; Dec. Dig. § 417.*]</p> <p>4. Bankruptcy (§ 250*) — Assets—Disposition by Bankrupt.</p> <p>AVhere, pending review of a referee’s determination in bankruptcy proceedings that certain commissions on renewal 'premiums to which the bankrupt was entitled did not constitute assets, the bankrupt collected and appropriated such commissions, after which the referee’s decision was reversed, if was the trustee’s duty to follow and recover such commissions in the interest of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 259.*]</p> <p>5. Bankruptcy (§ 417*) — Discharge—Revocation—Petition—Amendment.</p> <p>A petition for revocation of a bankrupt’s discharge could not be amended by the pleading of a new objection after the expiration of one year from the date of the discharge.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 417.*]</p>

<p>Food (§ 20*) — Misbranding—Misleading Labels — Information—Leave to File.</p> <p>Defendants manufactured and sold in interstate commerce “Dutch Tea Rusk.” The packages were marked “Genuine Dutch Tea Rusk,” and stated that, the contents were “made in Holland, Mich., by the Michigan Tea Rusk Company, Holland, Mich.”; the word “Holland,” where it first occurred, in type so large and prominent as to hold the attention and mislead purchasers into supposing that the article was a genuine importation from Holland. A hearing was had under the rules of the Department of Agriculture, in which respondents claimed that the markings were not misleading, but offered to change the labels as directed by the government, if found otherwise. Held that, since defendant’s violation of Pure Food and Drug Act .Tune 30, 1906. c. 3915, § 8. 34 Stat 771 (U. S. Comp. St. Supp. 1909, p. 1193). prohibiting the branding of an article of food so as to purport to be a foreign product when it was not so, was doubtful, leave would not be granted to file an information prior to notice of adverse finding by the Department and an opportunity to alter the labels as directed.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 20.*]</p>

In the matter of the bankruptcy proceedings of Chona Schocket. On petition by the trustee to review the referee’s taxation of costs on the dismissal of a reclamation petition.

<p>1. Attachment (§ 184*) — Vacation—Giving Officer’s Receipt.</p> <p>The giving of an officer’s receipt for attached property does not discharge the attachment lien under the Connecticut law.</p> <p>[Ed. Note. — Por other cases, see Attachment, Cent. Dig. § 587; Dec. Dig. § 184.*]</p> <p>3. Bankruptcy (§ 59’") — “Act of Bankruptcy” — Surety—Failure to Dissolve.</p> <p>An attachment having been levied on the property of an alleged bankrupt, petitioner’s intestate executed an officer’s receipt and obtained the property as the debtor’s surety, which he then delivered to the debtor, taking n mortgage note as security. After vailing until four months from the date of attachment had almost expired, the surely filed a petition in bankruptcy against the debtor, because he had not removed the attachment. Held, that the debtor’s failure did not constitute an “act of bankruptcy.” within Bankr. Act July 1, 1898, c. 541, § 3, par. “a,” subd. 3, 30 Stat. 546 (XT. S. Comp. St. 1901, p. 3422). in that the debtor suffered or permitted, while insolvent, a creditor to obtain a preference through legal proceedings. and not having, at least five days before a sale or final disposition of the property affected by such preference, vacated or discharged the same: it not appearing that there had been any sale or final disposition of the property.</p> <p>[Ed. Note. — Dor other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. § 59.*</p> <p>Dor other definitions, see Words and Phrases, vol. 1, i). 118; vol. 8, P- 7562.]</p> <p>3. Bankruptcy (§ 76*)' — Acts op Bankruptcy — Involuntary Petition-Bankrupt’s Surety.</p> <p>A surety for a debtor in attachment, having executed an officer’s receipt, cannot force the debtor into bankruptcy because he permitted four months, lacking live days, to exj>ire without removing the attachment lien, under the rule that one cannot force another into bankruptcy by the use of alleged debts which, by operation of law, would be extinguished by the adjudication, since an adjudication against the debtor would dissolve the attachment lien.</p> <p>[Ed. Note. — Dor other cases, see Bankruptcy, Cent. Dig. § 100; Dec. Dig. § 76.* I</p>

In tlie matter of bankruptcy proceedings against J. W. Ratliffc. On an involuntary petition for a bankruptcy adjudication, and answer thereto.

<p>1. Maritime Liens (§ 11*) — Repairs—What Constitute.</p> <p>Providing a barge with, a cover to protect her cargo from the weather to fit her for a particular business constitutes repairs, and not construction.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 15: Dec. Dig. § 11.*]</p> <p>2. Maritime Liens (§ 30*) — Repairs.</p> <p>Repairs made on a vessel in a foreign port under a contract with a charterer, but confirmed by the master and with the knowledge of the managing owner, entitle the repairer to a lien, although the charter party contained a provision, not known to him, and of which he was not notified, that they should be made at the expense of the charterers.</p> <p>TEd. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 37, 38; Dec. Dig. § 30.*]</p>

<p>In Equity. Suit by Johanna Mecky, administratrix of the estate of August Mecky, against Frank J. Grabowski and Charles E. Atwater, trading as the Eagle Wheel Manufacturing Company. On demurrer to bill.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision of the Board of General Appraisers (G. A. 6,144, T. D. 26,689) sustained the importers’ protests against the assessment of duty by the collector of customs at the port of New York. The « Board’s opinion reads as follows:</p> <p>MeODEDDAND. General Appraiser. * * * The special reports of the appraiser set forth that the merchandise “consists of various enamel colors nsed in decorating porcelain and glass.” * * * Although the return of the appraiser on the invoices — ‘‘colors’’—is the same in each case, and the special reports above quoted treat the merchandise involved in each of these protests as being the same and used for the same purposes, the samples thereof, offered and received in evidence oil the hearing, differ from each other in appearance and composition. These samples were submitted for analysis to the official chemist in the appraiser’s office at the port of New York, and he reports on them as follows:</p> <p>“Exhibit 1, protest 125,610, pink, No. 4: Tin, gold, and silver; lead oxide; lime; alumina: soda; silica ; traces ol' iron oxide.</p> <p>“Exhibit 1, protest 125,611, enamel, 649: Dead and zinc oxides; lime; silica ; traces of iron oxide.”</p> <p>Tbe record before us is not as complete as we wish it might have been. But one witness was examined on the hearing — a member of tbe protesting firm. And since there was no attempt on the part of the government to controvert his testimony, we see no reason why it should not be accepted, in so far as it may be a guide in the determination of the issues involved. As to tlie first item — Exhibit 1, 125.610. pink, No. 4 — the witness frankly states that the merchandise is a color used for decorating chinnware. And as to the second item — -Exhibit 1. 125,011. enamel, 649 — the evidence is that it is to give a white glaze or polish to glass. Before being applied to the glass it is mixed with water, and in the form of a paint is put on the glass with a brush and then fired.</p> <p>We have no doubt that on the record before us the finding is justified that each of the two kinds of merchandise involved is a color; but it does not follow that the collector’s classification is correct. One of the claims of protestants is that the merchandise is dutiable at 5 cents per .pound under the provisions of Tariff Act July 24, 1897, e. 11, § 1, Schedule A, par. 54, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630), which reads: “Vermilion red, and other colors containing quicksilver, dry or ground in oil or water, ten cents per pound; when not containing quicksilver, but made of lead or containing lead, five cents per pound.” And paragraph 5S, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630). under which the collector’s classification was made, reads: “All paints, colors, pigments, lakes, crayons, smalts and frostings, whether crude or dry or mixed, or ground with water or oil or with solutions other than oil, not otherwise specially provided for in this act, thirty per centum ad valorem.”</p> <p>It would seem as though the sole question to be determined is under which of these two paragraphs should classification be made, and we are of opinion that the language of paragraph 54 for colors “when not containing quicksilver but made of lead or containing lead,” is more specific than that of paragraph 58 for “paints, colors, * * * not otherwise specially provided for,” and must control in determining these issues.</p> <p>The claim in the protests that the merchandise is dutiable at 5 cents per pound under paragraph 54 is therefore sustained as to the items noted.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York, on the authority of a former decision, in which the Board states its grounds of decision as follows (G. A. 5,582, T. D. 24,997) : FISCHER, General Appraiser. The merchandise in question consists of so-called beer felts.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of General Appraisers reads as follows, so far as pertinent:</p> <p>WAITE, General Appraiser. These Chinese commodities, consisting of dried and salted cabbage, some varieties tied np in hanks or bundles and others rolled into balls, are claimed by the importers to be dutiable as vegetables in their “natural state,” under Tariff Act July 24, 1.897, c. 11, § 1, Schedule G, par. 257, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1050). They were assessed as “prepared” vegetables, under paragraph 241, 30 Stat. 170 (U. S. Comp. St. 1001, p. 1649).</p> <p>From the record and an examination of the commodities, it is evident that the salting is done as a preparation fitting the cabbage for cooking purposes —seasoning, in other words — because the drying in itself would he sufficient to preserve it, if only the preservation was in mind when it was prepared for shipment. We think the salting and manipulating for the purposes mentioned constitute a preparation, and remove the cabbage from the class of vegetables in their “natural state.” A great variety of vegetables of this nature are im: ported; and it is exceedingly difficult to determine where the dividing line is between vegetables in their natural state and prepared vegetables, under the present condition of the law as set forth in the decisions of the courts. We think, however, it is safe and logical to hold that, wherever the commodity has gone through a preparation which is intended to he permanent or serves to prepare it in the way of seasoning for food, it is so far removed from a vegetable in its natural state as to be dutiable under paragraph 241 as a prepared vegetable.</p> <p>We so hold in regard to the above-described merchandise, overruling the protests as to such goods.</p>

Sidney Sherwood was indicted for using the mails in furtherance of a scheme to defraud. On demurrer and motion to dismiss the indictment.

In the matter of the bankruptcy proceedings of Patrick J. Norris. On motion to continue a stay restraining disposition of property in possession of a third person claiming adversely.

In the matter of the bankruptcy proceedings oFScheidt Bros. On petition for review of an order disallowing a penalty for the nonpayment of delinquent taxes on personal property as a claim against the estate.

<p>Removal of Causes (§ 86*) — Proceedings — Citizenship — Assigned Claims —Petition for Removal.</p> <p>Where a suit by the transferee of a note was removed to the federal courts, but the removal petition contained no allegation as to the citizenship or residence of the transferror, showing that the citizenship of the defendant and transferror was diverse, or that the action could have been originally brought in the Circuit Court for the particular district, the federal court had no jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 170; Dee. Dig. § 86.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The Board of General Appraisers overruled the importers’ contention that certain articles imported at the port of New York had been improperly classified as manufactures of metal, under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 193, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1615), and should have been classified as “coins,” under section 2, Dree List, par. 530, 30 Stat. 197 (U. S. Comp. St. 1901, p. 1682). The Board’s opinion reads in part as follows:</p> <p>FISCIIElt, General Appraiser. Tills protest raises objection to the assessment of duty on certain copper-coin articles, invoiced as “copper-cash swords.” * * * We find from the testimony offered and upon examination of the exhibits in the case that these so described swords are made up of a number of copper coins corded together and securely fastened around an iron rod or bar covered by metal foil. The articles are in the form of swords, and are metal novelties imported to serve generally a decorative purpose, as ornaments. The real basis of the importers’ protest is that the ornaments in question are “coins” ; but we think it obvious from the description given that this claim is in error. The Board passed on precisely the same kind of goods in G. A. 6,720 (T. D. 28,773), following which we affirm the decision of the collector, assessing duty on the merchandise under the provision for articles not specially provided for, whether partly or wholly manufactured, composed wholly or in part of metal, and we overrule the protest.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision' below affirmed the assessment of duty by the colléctor of customs at the port of New York; the opinion filed by the Board of General Appraisers being as follows:</p> <p>MCCLELLAND, General Appraiser. The merchandise in question consists of sheepskins. The growth thereon was returned by the appraiser as wool of class 3, unwashed, upon which duty was assessed at the rate of 3 cents per pound, under tariff Act July 24, 1897, c. 11, § 1, Schedule K, pars. 358, 360, 30 Stat. 183 (ü. S. Comp. St. 1901, pp. 3665, 1666), based upon the weight thereof as ascertained by the appraiser. The merchandise is claimed to he China sheepskins, used for manufacturing fur coats only, and entitled to free entry either under paragraph 561 or paragraph 562 of said act (section 2, Free List, 30 Stat. 39S [U. S. Comp. St. 1900, p. 1083]).</p> <p>In abstract decision 17,754 (T. D. 2S,634) the Board passed upon and determined a similar question in favor of the protestants’ claim; but in that case, while it appears that the skins were of the China sheep, as in the case at bar, they were shown to have been carefully selected for use in the making of fur coats, while the record here shows that the skins involved were unsorted and purchased indiscriminately, without regard to any particular use to which they might be adapted. This is shown by the testimony of the secretary of the importing company. “Q. Do you know what these skins are used for? A. Yes, sir-. Q. What is their use? A. Principally coats. Q. Did you sell them to manufacturers of fur coats? A. Some of them might have been sold to a mitten manufacturer or a glove manufacturer. It is pretty difficult to state without referring to our books. Q. Are the skins of a special character? A. Why, the short and the medium hair skins are sold for fur coat purposes, and the long fur the skins am sold fo milton manufacturers to make a mitten out of. * * * Q. You purchased, these skins imUscrimiiiaiely in China, -or did you purchase them as fur skins? A. Why, they are purchased indiscriminately.”</p> <p>It also appears from the testimony of this witness that one-third of the importation involved In protest 283,738 was sold unsolded to a tanner to he made into leather. Since there was no separation of the skins claimed to he suitable for use only in the making of fur coats from the ordinary skins with the wool on, it is impossible for the Board to make a finding of the percentages qf each, and therefore the protests must he overruled, and the decision of the collector in each ease affirmed.</p>

<p>Costs (§ 2(56*) — Costs on Api’cai. — Effect of Determination on New Trtat.. Where plaintiffs recovered a judgment, which was reversed on writ of error, with costs to the plaintiff in error, the appellate court declining to modify the mandate by directing that the costs should abide the event, and they were thereupon paid, and the plaintiff prevailed on a second trial, he is not entitled to tax as a disbursement the amount paid in settlement of the judgment for costs of the first appeal.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1009-1010; Dec. Dig. $ 200.*]</p>

<p>Action by the Expanded Metal Company and others against Eugene S. Bradford and others. Buie on the Fidelity & Deposit Company of Maryland to show why judgment should not be had and execution issued against it as surety on an appeal bond.</p>

<p>Action by Edward W. Lynch, trustee, against J. Iiarmar Bronson and others. On demurrer to complaint.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The opinion by the Board of General Appraisers reads as follows; WAITE, General Appraiser. The importations here in question consist of certain duck meat imported from China. It was assessed at 25 per cent, ad valorem under the provision in paragraph 275. tariff act of 1897 (Act ,Tuly 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp.

In Equity. Suit by the National Water Company against Maurice Hertz, trading as the Camden Bottling Company, to restrain an alleged nnláwful competition in the sale of lithia water.

<p>Equity (§ 300*) — Pleading—Defenses to Supplemental Bill.</p> <p>Defenses which 'have been considered on an original bill cannot be again set up by the same defendants in an answer to a supplementary bill.</p> <p>[Ed. Note. — -For other cases, see Equity, Cent. Dig. § 592-; Dee. Dig. § 300.*]</p>

In the matter of the bankruptcy proceedings of the Duquesne Brewing Company. On petition of the Central National Bank and others to have the corporation declared a bankrupt, to which S. W. Bollinger and another objected. From an order granting the petition, objectors appeal.

In the matter of the estate of the Stoddard Bros. Lumber Company, a bankrupt. From an order allowing the claim of George Stoddard in part, the bankrupt’s trustee appeals.

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>Libel in admiralty by Peter Larsen against H. H. Peterson and an,- • other to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal.</p>

<p>In Error to the Circuit Court oí the United States for the Southern Division of the Southern District of California.</p> <p>Action by Charles B. Masner against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Crossr-Writ of Error to the District Court of the United States for the Western District of Virginia, at Eynchburg. Action by the United States of America against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error, and plaintiff sues out a cross-writ of error. This was an action of debt brought by the United States to recover penalties authorized by the safety appliance act. The declaration contained nine counts.

<p>Appeal from the Circuit Court of the United States for the Southern District of Florida.</p> <p>In Equity. Suit by George F. Tcnnille and others against F. J. Howden. Decree for defendant, and complainants appeal.</p>

<p>1. Railroads (§ 261*) — Accidents to Trains — Injuries—Persons Liable-Traffic Agreement.</p> <p>That defendant operated trains over the S. Company’s tracks under a Joint track agreement by which the latter retained full control of the movement of all trains over the track, and defendant’s employes were required to take an examination for fitness before going on the same bfefore an officer of the S. Company, which reserved the right to bar any of defendant’s employes from working on or over the track, did not relieve defendant from liability for the negligence of its servants in operating trains on such Joint track, resulting in a collision and injuries to a servant of the S. Company.</p> <p>[Ed. Note. — For other eases, see Railroads, Gent. Dig. §§ S24-830; Dec. Dig. § 261.*]</p> <p>2. Raimo ads {§ 261*) — Accidents to Trains — Injuries—Persons Diable— Negligence.</p> <p>Where defendant was required to move its train from station to station on the track of the S. Company, under orders of the latter’s train dispatcher, defendant would not be liable for injuries resulting from the negligence of the dispatcher; but, if a collision occurred, not attributable to the dispatcher’s orders, but to the negligence of defendant’s employes, defendant's liability would attach.</p> <p>[Ed. Noto. — For other cases, see Railroads, Cent. Dig. §§ 821 830; Dec. Dig. § 261.*]</p> <p>3. Railroads (§ 273*) — Accidents to Trains — Injuries—Negligence—Proximate Cause — Questions for Jury.</p> <p>Where defendant operated a train in charge of its own conductor over the tracks of the S. Company, under a contract for joint use, and a collision occurred due to the negligence of the S. Company’s engineer in running the train at high speed past a block signal set against him, and defendant’s conductor also testified that he could have seen the block signal so set if he had been paying attention, and also fusees on the track to protect the preceding train, and could have stopped his train by opening the conductor’s safety valve in the caboose, but he failed to do so, and a collision occurred resulting in injury to the conductor of the preceding train, in the employ of the S. Company, whether defendant’s employes were negligent, and whether such negligence was the proximate cause of the collision, were for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 273.*]</p> <p>4. Trial (§ 257*) — Instructions—Requests—'Time.</p> <p>Under Rev. St. § 918 (U. S. Comp. St. 1901, p. 685), authorizing the Circuit Court 1o make such rules regulating its practice as may be necessary or convenient for the advancement of justice, and the prevention of delays in proceedings, it was proper for the court to refuse to consider requests to charge not presented before argument, according to a rule requiring them to be presented at the close of the evidence and before argument.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 642-645; Dec. Dig. § 257.*]</p>

<p>1. Statutes (§ 159*) — Repeal by Implication — General Rules or Construction.</p> <p>Where two acts of different dates cover the same subject-matter, the later will operate as a repeal of the earlier only where that intention is plainly manifest and unmistakable, and it is the duty of a court to adopt any reasonable construction which will give effect to both.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229; Dee. Dig. § 159.*</p> <p>Repeal of statutes by implication, see note to First Nat. Bank of Butte V. Weidenbeck, 38 C. O. A. 136.]</p> <p>2. Chattel Mortgages . (§ 3*) — Requisites and Validity — Washington Statute.</p> <p>The provisions of Ballinger’s Ann. Codes & St. Wash. § 4558 (Pierce’s Code, § 6531), requiring chattel mortgages to be acknowledged and be accompanied by an affidavit of good faith by the mortgagor, were not repealed by Act March 13, 1899 (Laws Wash: 1899, c. 98), which substitutes the filing and indexing of such mortgages for their recording required by such section, but contains no provision changing the requirements as to their execution,</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 3.*]</p> <p>3. Statutes (§ 142*) — Amendment — Constitutional Provisions — Implied . Amendment.</p> <p>Const. Wash. art. 2, § 37, which provides that “no act shall ever he revised or amended by mere reference to its title, 'but the act revised or the section amended shall be set forth at full length,” applies only to direct amendment by changing the language of a statute, and an act on the same subject-matter may have an amendatory effect by implication on a prior statute without being an amendatory statute within such provision.</p> <p>[Ed. Kote. — For other cases, see Statutes, Cent. Dig. § 210; Dec. Dig. § 142.*]</p>

<p>1. Stnrnxo (§ 181*) — Demurrage—Construction of Charter Party.</p> <p>A provision of a charter party for the carriage of a ‘‘full and completocargo of wheat in sacks.” to he loaded by tiie charterers within lay days fixed, that lay days should not lie counted during any time file bringing of file cargo to the port, of loading by rail should be delayed by railway accidents, “or any oilier hindrance * * * beyond the charterer’s control.” (lid not entitle, the charterers to hold the vessel until the1 arrival of sufficient wheat of a particular kind was received, when they had sufficient of other kinds to load her within the time .stipulated; hut any delay on such account was at their risk os to the time to procure and load such cargo.</p> <p>I Ed. Noto. — For other cases, see Shipping, Cent. Dig. § 589-592; Dec. Dig. 5 181.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. O. A. G57; Randall v. Sprague, 21 C. C. A. 842.)</p> <p>2. Shipping (§ 181*) — Demurrage--Construction of Charter Party.</p> <p>Ender a charter of a vessel ro carry a cargo of wheat to be loaded by the charterers within a time specified, which contained a provision that lay days for loading should not tie counted during any time the bringing of the cargo to rite port of loading was delayed by railroad accidents, or any other hindrance beyond the charterer's control, where the charterers loaded only -with a particular grade of wheat which they had with other grades stored on lines of a railroad company, they were not entitled to the benefit of such provision, on the ground that the company did not furnish sufficient cars to bring in that particular wheat within the time fixed by the charter, when their notice to the company was only to furnish cars generally, and it did furnish sufficient to bring in double the quantity required, 'but in part of different grades, which the charterers loaded on other vessels.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*]</p> <p>3. Shipping (§ 181*) — Demurrage — Construction oe Charter Party — “Rainy Days.”</p> <p>A provision of a charter party for the carriage of a cargo of wheat to be loaded at Portland, Or., that “rainy days” should not be counted as lay days for loading, is presumed to have been made with reference to the established rule of "that port and excludes only days on which, on account of rain and with reference to the facilities of the port in the way of covered docks, etc., for the protection of vessels while loading, cargo could not be safely and conveniently loaded.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 5916.]</p> <p>4. Shipping (§ 181*) — Demurrage—Construction oe Charter Party — “Holidays.”</p> <p>A provision of a charter party that “holidays” should not be counted as lay days for loading must be construed in accordance with the presumed intention of the parties to exclude only such days as were holidays in the usual and ordinary sense, which were customarily observed by a cessation of work, and did not entitle the charterers to exclude a series of holidays subsequently appointed by the Governor on account of a financial panic for the sole purpose of deferring the maturity of financial obligations, and which were not observed, nor intended to be observed, by a cessation of labor or traffic.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3321.]</p>

<p>1. Public Lands (§ 109*) — 'Cancellation of Entry — Power of Courts to Review.</p> <p>To give a Circuit Court jurisdiction to review the action of the Land Department iu canceling an entry of public land, it must first appear from the bill that the complainant 1ms at least an equitable claim to the land.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 307; Dec. Dig. § 109.*]</p> <p>2. Public Lands (§ 100*) — Cancellation of Entry — Suit to Set Aside Decision.</p> <p>Where a homestead settler on ceded lands of the Nez Perce Indian reservation required to pay a stated price per acre l>y Act Aug. 15, 1894-, e. 290. 28 Stat. 826, and entitled to commute under Rev. St. § 2801, as extended by Act .Tan. 26, 1901, e. 180, 3L Stat. 740 (U. S. Comp. St. 1901, p. 1620), commuted but paid only the minimum price of $1.25 per acre, which was less than the price required by the plain provision of the statute, and neither he nor a grantee, whose deed was not recorded and who had not tafeen possession, although notified of the suspension of his entry, tendered further payment until several months after his entry had been canceled and a now entry accepted, on a relinquishment filed by him. a bill -by the grantee to recover the land from the new entryman held to show no equity which gave a court; jurisdiction to review the action of ihe Land Department.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 307; Dec. Dig. § 109.*]</p>

<p>1. Mortgages (§ 408*) — Foreclosure—Default—'Waiver.</p> <p>Where a mortgagee's assignee was entitled to foreclose at any default, the fact that he did not elect to foreclose on the first default did not. prevent a foreclosure after the third default. s</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 408.*</p> <p>Foreclosure in federal courts, see note to Seattle, L. S. & E. Ry. Co. v. Union Trust Co., 24 €. C. A. 523.]</p> <p>2. Mortgages (§ 414*) — Foreclosure—Default—Notice.</p> <p>A mortgagee's assignee, being authorized to foreclose on Ihe mortgagor’s default, was under no obligation to notify the mortgagor of his intention to do so before beginning suit.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 414.*]</p> <p>3. Process (§ 96*) — Service by Publication — Affidavit.</p> <p>An affidavit for service by publication, alleging that defendants were nonresidents, and not to be found within the state, that on due inquiry •and diligent search their address was ascertained to be No. 215, West 325th street, New York, was sufficient to sustain an order for the publica^ tion of summons.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 308-320; Dec. Dig. § 96.*]</p> <p>4. Mortgages (§ 49(>:) — Foreclosure—Decree—Vacation--Frau».</p> <p>Where process in mortgage foreclosure was served by publication, allegations of a bill to set aside the decree that the affidavit for publication falsely staled complainant’s post-office address, but failing to charge what her true address was, and not alleging that the address given was not that of her husband, and an allegation that the mortgagee's assignee made no search or inquiry for the complainant’s post-office address, though he could easily have ascertained the same, hut failing to allege that he knew such address, was insufficient to show fraud.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 496.*]</p> <p>5. Mortgages (§ 496*) — Foreclosure-Decree—Vacation'—Mistake.</p> <p>That a mistake was made as to the residence of a defendant in a suit to foreclose a mortgage, who was served by publication, is not ground for vacating the decree.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 496.*]</p> <p>6. Mortgages (§ 440*) — Foreclosure—Process- -Service by Publication.</p> <p>In proceedings to foreclose a mortgage, it is not necessary that a nonresident defendant: shall have had actual notice; it being sufficient that the statute relating to service by publication was complied with.</p> <p>[Ed. Note' — For other cases, see Mortgages, Cent. Dig. §§ 1304, 1305; Dee. Dig. 440.*]</p> <p>7. Mortgages (§ 496*) — Foreclosure—Decree—Vacation—Bill.</p> <p>In a suit to set aside a foreclosure decree for fraud, plaintiff's allegation that the mortgagee's assignee might have ascertained plaintiff’s residence and given her actual notice is not sufficient to show fraud when it also shows that the mortgagee’s assignee's affidavit for-service by publication distinctly stated the contrary, and on its face exhibited diligence iii making search and inquiry, and the bill further affirmatively discloses absence of motive for withholding from the mortgagors knowledge of the pendency of the suit.</p> <p>[Ed. Note.- — For other cases, see Mortgages, Dec. Dig. § 490.*]</p> <p>8. Mortgages (§ 440*) — Foreclosure—Process—Fraud.</p> <p>Tliat a mortgagee’s assignee who sued to foreclose was a member of an art association to which the mortgagor belonged, and was in correspondence with members of the association, from_ whom he could have easily ascertained the mortgagor’s address, and given her actual notice of his intent to foreclose, did not show fraud in his failure to do so, and in his obtaining service by publication.</p> <p>■ [Ed. Note. — For other cases, see Mortgages, Dee. Dig. § 440.*]</p> <p>9. Judgment (§ 407*) — Vacation—Remedy at Daw.</p> <p>Where complainant had notice of a mortgage foreclosure suit in time to have moved the state court to set it aside under a state statute providing that a defendant against whom a judgment is taken on service by publication may on good cause shown, and on proper terms, he allowed to defend within a year after judgment, she was bound to apply for relief thereunder as a condition to her right to sue in equity in a federal court to set aside the decree.</p> <p>■ [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 768-774; Dee. Dig. § 407.*]</p> <p>10. Equity (§ 219*) — Eaches—Demurrer.</p> <p>Where a 'bill without the aid of inference discloses laches and no valid excuse for the delay, it is demurrable.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 498; Dee. Dig. § 219.*]</p> <p>11. Mortgages (§ 496*) — Foreclosure—Decree—Vacation—Daches.</p> <p>Where complainant knew of a foreclosure decree against her, based on service by publication, immediately after October, 1898, and on July 1, 1902, had actual notice of the sale, but took no steps to redeem or have the decree set aside until June, 1907, her right to do so was barred by laches.</p> <p>• [Ed. Note. — For other cases, see Mortgages, Dee. Dig. § 496.*]</p> <p>12. Equity (§§ 77, 78*) — Daches—Excuse.</p> <p>It was no excuse for complainant’s laches in failing to promptly sue to set aside a foreclosure decree that she was without means or a resident of a distant state.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. §§ 230, 238; Dec. Dig. §§ 77, 78.*]</p> <p>13. Equity (§ 87*) — Daches—Following Statute of Dimitations.</p> <p>Delay which will bar relief in equity is not necessarily measured by the statute of limitations, but may be for a much shorter period, depending on the peculiar circumstances in each case, involving a consideration of whether one of the parties or an important witness has died since the trial, and important testimony lost, whether the property involved is largely increased in value, or whether it has been sold to a third person.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 242-244; Dec. Dig. § 87.*]</p>

E. L. Glinn was indicted and convicted for a criminal offense, and brings error. The writ of error is to reverse the judgment of the District Court, sentencing plaintiff in error to a term of one year in the House of Correction of the City of Chicago; and to pay the costs of the prosecution, upon her conviction by a jury of an offense within section 5480, Rev. St.- (U. S. Comp.

Suit in equity by Reid, Murdock & Co. and others against Frederick Charles Gooding. From an order granting an injunction, defendant appeals.

<p>. Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by the United States, on relation of Hannah Chanin, against William Williams, as Commissioner of Immigration. Erom an order dismissing a writ of habeas corpus, relator appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Ludlow Valve Manufacturing Company against the Pittsburgh Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Gormley & Jeffery Tire Company against the United States Agency and others. Decree for defendants (169 Fed. 831), and complainant appeals.</p> <p>The decree of the Circuit Court dismissed a bill charging the infringement of letters patent 'No-. 454,Í15, dated June 16, 1891, and No. 558,956, dated April 28, 1896, issued to Thomas B. Jeffery for improvements in wheel tires.</p>

<p>1. Patents (§ 165*) — Construction—Claims roe Function.</p> <p>If the claims of a patent are for moans sufficiently specified and described in the claims and specifications, they are not invalidated as being for a function by a recital therein of the function to bo performed or the result to be secured by such means.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>2. Patents (§ 165*) — Construction.</p> <p>Claims of a patent cannot be broadened by construction or elements imported into them for the purpose of giving them novelty or establishing infringement.</p> <p>I Ed. Note.' — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>3. Patents (§ 328*) — Infringement—Clutch Mechanism for Automobiles.</p> <p>The Jlabley and Franquist patent, No. 883,552, for a combination with other parts of the driving gear of an automobile of a clutch mechanism mounted, on a shaft which is removable without disturbing the alinement of the other parts, such removability being the principal object of the in-v-ention, in view of the prior art and. the proceedings in the Patent Office, must be construed narrowly as an improvement patent only, and confined to the means specified and described. As so construed, held not infringed.</p>

<p>Patents (§ 328*)- — ’Vatadity and Infringement — Uobce-Uked Tatbricator.</p> <p>The McCanna patent, Xo. 822,900, for a force-feed lubricator, especially adapted to automobile purposes, is for a combination of old elements, but the combination was not anticipa tal, and discloses invention; also hold infringed.</p>

<p>• In Equity. Suit by the Sheffield Car Company against the Buda Foundry & Manufacturing Company. On final hearing.</p>

<p>In Equity. Suit by Thomas Remis and the Taisey Pneumatic Service Company against Charles A. Stevens & Bros., Charles A. Steveiis, Thomas A. Stevens, and John H. Stevens. On final hearing.</p>

<p>In Equity. Suit by Lester C. Smith against Hugh L. Thompson and the Coe Brass Manufacturing Company. Oh demurrer to hill.</p>

<p>In Equity. Suit by the Golden-Anderson Valve Specialty Company and Charles E. Golden against the Alonessen Foundry & Machine Company and Edward V. Anderson. On motion for preliminary injunction.</p>

In Equity. Suit by tlie Postal Cable Telegraph Company against the Cumberland Telephone & Telegraph Company. On motion for preliminary injunction to restrain defendant from removing its telephone instruments from complainant’s offices in Nashville, and certain other towns and cities in Tennessee, and from refusing to furnish telephone. service to complainant at rates charged and paid by other patrons of the company having telephones in their business houses.

On Application for Review of a Decision by the Board of United States General Appraisers. The Board of General Appraisers sustained the importers’ protest against the assessment of duty by the collector of customs at the port of Boston. The Board’s opinion reads as follows: MCCLELLAND, General Appraiser. These protests are against the assessment of duty at the rate of 1,0 cents a pound on the estimated weight of wool on Cape sheepskins, as class 1 wool.

In Equity. Suit by Charles C. Sparks, trustee of the estate of J. S. White, bankrupt, against T. T. Marsh and another, to recover an alleged preference.

At Law. Action by the Texas Star Flour Mills Company against Benjamin C. Moore and others. This is an action at law to recover damages for an alleged breach of contract. By stipulation of parties, trial by jury was waived, and the case was submitted to the court on the pleadings and proof. The court makes the following Finding of Facts.

<p>In Equity. Suit by the Illinois Central Railroad Company against Robert W. Sheegog and others. On motion for preliminary injunction.</p>

<p>1. Removal of 'Causes (§ 61*) — Nature of Cause — Determination—Plea.</p> <p>Where a removal petition is filed before the declaration is filed or due under the state practice, whether the suit involves a separable controversy is to be determined from plaintiff’s sworn plea to the petition for removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 115; Dee. Dig. § 61.*]</p> <p>2. Removal of Causes (§ 49*) — Diverse Citizenship — Master and Servant Joint Liability — Separable Controversy.</p> <p>Where plaintiff, a member of a bridge crew in the employ of defendant railroad company, was injured in a collision between a camp car occupied by the crew and a portion of a freight train, alleged to have been caused by the negligence of defendant’s conductor and engineer of the same citizenship as plaintiff, and the defendant railroad company, whose citizenship was diverse, while switching the camp ear, a cause of action stated by which plaintiff sought to enforce a joint liability against the defendant railway company and the conductor and engineer on the principle of respondeat superior did not show a severable controversy, for the purpose of removing the cause to the federal court from a state court in Tennessee, though there was no allegation of any concurrent act of negligence of the railroad company.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 97; Dec. Dig. § 49.*</p> <p>Separable controversy affecting right to remove cause to federal 'court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Yalleytown Mineral Co., 35 C. C. A. 155.]</p> <p>3. Removal of Causes (§ 36*) — Citizenship—Joinder of Resident Defendants — Fraud.</p> <p>Where plaintiff in an action against a railroad company for injuries joined defendant railroad company’s conductor and engineer whose negligent was charged to have caused the injury, evidence that they were joined without inquiry as to their insolvency did not show that they were fraudulently joined to prevent a removal of the cause by the railroad company to the federal court; there being no proof that the facts alleged with reference to their negligence were not well founded or alleged in good faith.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*</p> <p>Fraudulent joinder of parties to prevent removal of cause to federal court, see note to Offner v. Chicago & E. R. Co., 78 C. C. A. 362.]</p> <p>4. Removal of Causes (§ 36*) — CmzEsrsirrr--Parties—Fraudulent Joinder —Burden of Proof.</p> <p>Where fraudulent joinder of defendants to prevent removal of a cause Is alleged, the burden of proof thereof is on the removing party.</p> <p>[Ed. Note. — for other cases, see Removal of Causes, Dec. Dig. § 36.*1</p>

<p>1. Food (§ 18*) — Violation of Food and Drugs Act — Liadility of Officers of Corporation.</p> <p>The officers of a corporation which manufactured a food product shipped by its manager in interstate commerce, and which was adulterated or misbranded, are subject to prosecution therefor under Food and Drugs Act .Tune 30, 1906, c. 3913, § 2, 34 Stat. 708 (U. S. 'Comp. St. Supp. 1909, p. 1188). where they employed the manager and authorized him to operate the plant and sell the product without restriction, and the previous course of business bad been to ship on orders to other states.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 18.*]</p> <p>2. Food (§ 12*) — Violation of Food and Drugs Act — Defenses.</p> <p>The provision of Food and Drugs Act June 30, 1906, c. 3915, § 9, 34 Stat. 771 (U. S. Comp. St. Supp. J909, p. 1193), that no dealer shall be prosecuted thereunder for shipping in interstate commerce any adulterated or misbranded article of food or drugs when he can establish a guaranty signed by the manufacturer that such article is not adulterated or misbranded, is available to a dealer only when such guaranty relates to the identical article shipped by him, and affords no defense to him where it relates only to a constituent used by him in manufacturing the article shipped.</p> <p>[Ed. Note. — For other cases, see Food. Dec. Dig. § 12.*]</p>

<p>1. Grand Jury (§ 34*) — Procedure—Officers Entitled to be Present During Proceedings — “Officer of Department of Justice.”</p> <p>An expert accountant, who is not an attorney at law, appointed by the Attorney General “a special assistant to” a United States attorney to assist in the investigation and prosecution oí a particular case is not an “officer of the Department of Justice,” within the meaning of Act June 30, 1906, c. 3935, 34 Stat. 816 (U. S. Comp. St. Supp. 1909, p. 48), and cannot be authorized by the Attorney General to conduct, or assist in conducting, proceedings before the grand jury in connection with such ease, nor to be present in the room during the examination of witnesses, to aid the district attorney by suggestions.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Cent. Dig. § 73; Dec. Dig. I 34.*]</p> <p>2. Indictment and Ineokmation (§ 137*) — Motion to Quash — Gbouxds.</p> <p>The presence in a grand jury room, during an investigation of a case which results in an indictment, of a person not authorized by law to lie there is ground for quashing the indictment.</p> <p>[Ifld. Note. — For other cases, see Indictment and Information, Cent. Dig. § 4S4; Dec. Dig. § 137.*j</p>

<p>The American Tobacco Company was indicted, and files a plea in abatement.</p>

<p>Indictment by the United States against the Louisville & Nashville Railroad Company. On demurrer to defendant’s second plea in abatement.</p>

<p>1. Courts (§ 343*) — Practice in Federal Courts — Death of Defendant-Abatement of Action for Infringement of Trade-Mark. ' • ■</p> <p>Where a suit for infringement of a trade-mark was instituted against two defendants, such infringement constituted a tort for which both were liable, so that on the death of one the suit did not ábate as to the other, and under Rev. St. § 956 (U. S. Comp. St. 1901, p. 697), providing that if there are two or more plaintiffs or defendants in a suit where the cause of action survives to the surviving plaintiff- or against -the surviving defendant, and one or more of them dies, the right to action shall not abate, but shall be proceeded with by the surviving plaintiff against the surviving defendant.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 915, 916; Dec. Dig. § 343.*]</p> <p>2. Monopolies (§ 20*) — Sherman Act — Consolidation of Corporations.</p> <p>Sherman Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St 1901, p. 3200), prohibiting trusts and monopolies, does not condemn the purchase by three corporations of two insolvent corporations engaged in the same business, nor in the conduct of the business thereafter by the three purchasers, especially in an effort to liquidate the indebtedness.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>S. Monopolies (§ 10*) — Sherman Act — Violation—Effect.</p> <p>"Sherman Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibiting a monopoly, provides its own penalties for the violations of its provisions, and does not deprive the offender of redress for a civil injury.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 9; Dee. Dig. S 10.*]</p> <p>4. Trade-Marks and Trade-names (§ 70*) — Infringement—Unlawful Competition.</p> <p>Complainant in 1891 adopted and commenced' to use the word “Ceresota” as a trade-mark for its best grade of flour made from spring.wheat, and built up a large trade therefor in Michigan and the other states, having expended $500,000 in advertising. Complainant’s trade-mark was registered on October 31, 1905, and in September, 1906, defendants, who operated a flourmill in Michigan, began to use the word “Certosa” as a trade-mark for flour which they falsely represented to be made from Minnesota and Turkey wheat, when in fact it was made from winter wheat, which makes an inferior flour. Defendants applied for registration of the word “Certosa” as a trade-mark which was denied, but, notwithstanding this, used the word in competition with plaintiff in the sale of flour in interstate commerce. Held, that defendants’ acts constituted unlawful competition, and an infringement of complainant’s trade-mark.</p> <p>Rid. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 8J.; Dec. Dig. § 70.*]</p>

<p>Petition for a writ of habeas corpus by Henry Lair. Writ granted.</p>

<p>1. Railroads (§ 229*) — Safety Appliance Act — Automatic Couplers.</p> <p>Safety Appliance Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1909, p. 1143), requiring railroads to use automatic couplers on interstate equipment, requires all cars regularly used on any railroad engaged in interstate commerce and all other cars-used in connection therewith to couple automatically by impact, and to be coupled and uncoupled without the necessity of men going between them, whether they be loaded or empty, and though they be not actually engaged in such commerce at the time.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>2. Railroads (§ 229*) — Safety Appliance Act — Violation.</p> <p>Safety Appliance Act Cong. March 2, 1893, as amended by Act March 2,1903, requiring interstate railroad equipment to be fitted with automatic couplers, coupling by impact without the necessity of men going between the cars, is violated when cars are hauled or used by carrier engaged in such commerce which will not so couple, whether the failure to do so results from the character of the car, the kind of equipment used, or the fact that the .tracks are so laid on a curve that the couplers will not meet without men going between the.cars to adjust them.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. O. A. 8.]</p>

<p> (Syllabus by the Judge.) </p> <p>Principal and Agent (§ 23*) — -Relationship—Evidence.</p> <p>Held, that the question has already in effect been -decided adversely to the allowance of such claim by this court and by the circuit court of appeals in Stoomvart, etc., Lloyd v. Lind, 170 Fed. 918, and further that under the peculiar wording of the contracts, the respondent seems to have been acting altogether for himself and is not entitled to compensation for his services from the ship owners.</p> <p>(Ed. Note. — For'other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*]</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee.</p> <p>Action by the United States against the Illinois Central Railroad Company. Judgment for defendant, and the United States brings error.</p>

<p>3. Railroads (§ 134*) — Conversion by Lessee oe Assets of Lessor — Liability to Creditors of Lessor.</p> <p>The president of a'railroad company, who controlled a majority of ita stock, contracted to lease its property to another company for 999 years, to sell to the lessee its supplies and material on hand, and to deliver to it 51 per cent, of the stock of the lessor. By the agreement the lessor company was to make an issue of mortgage bonds, a portion of which were to be retained by the trustee to take up a prior issue. The agreement was carried out, and the remaining bonds so issued by the lessor, which constituted the greater part, were delivered to the president of the lessor, and, as appeared from the evidence, were retained by him and his associates in payment for the stock they transferred to the lessee, which was valuable, field, that such appropriation of the bonds of the lessor which would otherwise have been available for the payment of its debts was a fraudulent diversion of its property as against its creditors and rendered the lessee which received the benefit of such diversion liable for a debt of the lessor which was less than the value of the property converted, from which it was not relieved by the fact that it afterward expended a larger sum in betterments and extensions of the leased road.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 184.*]</p> <p>2. Railroads (§ 80*) — Reorganization—Participation of Stockholders— Liability op New Company por Debts op Old Company.</p> <p>A reorganization of an insolvent railroad company, by which both its mortgage bondholders and its stockholders, in exchange for their bonds and stocks, are given an interest in the new company, which purchases the property of the old company at a foreclosure sale made pursuant to such plan of reorganization and by consent of the old company and its stockholders, is fraudulent in law as to unsecured creditors of the old company whose claims are left unpaid, and renders the new company liable for the claims of such creditors, who are not, under such circumstances, represented in the foreclosure suit by the mortgagor nor precluded by tlie decree therein from showing in equity the fraud and collusion by which it was obtained, and the property of their debtor placed beyond their reach by legal process.</p> <p>LEd. Note. — For other cases, see Railroads, Dec. Dig. § 30.*]</p> <p>8. Equity (§ 339*) — Answer Under Oath — Effect as Evidence.</p> <p>While a sworn answer in equity, where oath is not waived, becomes evidence of the facts well pleaded therein, allegations which are not of the facts themselves, hut rather of the construction placed on such facts by the pleader, do not preclude the court from resorting to such facts and placing its own construction thereon.</p> <p>LEd. Note. — For other cases, see Equity, Dec. Dig. § 339.*]</p> <p>4. Judgment (§ 515*) — Collateral Ati'aotc — Grounds—Fraud and Collusion.</p> <p>A .judgment which has been procured by the fraudulent contrivance of the debtor or the collusion of both parties is subject to collateral attack by any one a stranger to the judgment who has been injuriously affected thereby.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 957; Dec. Dig. § 515.*]</p> <p>5. Lis Pendens (§ 26*) — Purchase of Property — Right of^Cheditoes to Impeach Judgment for Fraud or Collusion.</p> <p>The fact that a creditor of a mortgagor acquired his rights pending a suit to foreclose the mortgage does not preclude him from attacking the validity of the decree in such suit in equity on the ground 1hat it was fraudulent and collusive.</p> <p>LEd. Note. — For other cases, see Lis Pendens, Dec. Dig. § 26.*]</p> <p>6. Judgment (§ 678*) — Persons Concluded — Privity—Several Creditors of Dependant.</p> <p>There is in general no such privity between several creditors of the same debtor that proceedings taken by one against the fund, the estate, or specific property to which all must look for satisfaction, will raise an estoppel against the others.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1397; Dec. Dig. § 678.*]</p> <p>7. Equity (§ 67*) — Laches—Nature and Elements.</p> <p>Tlie doctrine of laches rests upon equitable principles which are neither arbitrary nor technical, and what amounts to laches depends largely upon the circumstances of each particular case; the ultimate inquiry be"ing as to on which side would fall the balance of justice in sustaining oi denying the defense.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 191-196; Dec Dig. § 67.*]</p> <p>8. Equity (§ 80*) — -Laches—Estoppel to Invoke Defense.</p> <p>Where the party interposing a defense of laches has caused or contributed to the delay, he cannot take advantage of it.</p> <p>[Ed. Note.- — For other eases, see Equity, Cent. Dig. § 237; Dec. Dig. § 80.*]</p> <p>'9. Equity (§ 82*) — Laches—Facts Consideeed.</p> <p>Where the' claim upon which the judgment of a complainant in a. creditors’ suit is based was in almost continuous litigation for many years in various suits and proceedings, during most of which time it was being contested by defendant or its predecessor in interest with which it is in privity, the complainant held not chargeable with laches which would defeat the suit because of the delay which did not in any manner prejudice the defendant.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 236; Dec. Dig. § 82.*]</p>

<p>1. Courts (§ 356*) — Proceedings for Removal of Cause — Notice—FederaIi Practice.</p> <p>In proceedings in error in the federal courts, the citation signed by the judge of the court to which the writ is addressed or any judge or justice of the appellate court is the notice required by Rev. St. § 998 (U. S. Comp. St. 1901, p. 712).</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 356.*]</p> <p>2. Contempt (§ 80*) — Denial of Privileges as Litigant — Right to Appeal —Party in Contempt.</p> <p>The fact that proceedings for contempt are pending against a party does not debar him from the right to prosecute proceedings for review of the judgment or order which he is charged with violating.</p> <p>[Ed. Note. — For other cases, see Contempt, Dec. Dig. § 80.*]</p> <p>3. Bankruptcy (§ 451*) — Appellate Proceedings — Matters Review able.</p> <p>The question whether a petition in involuntary bankruptcy alleges an act of bankruptcy does not go to the jurisdiction of the court, and is reviewable by the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 451.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p> <p>4. Bankruptcy (§ 81*) — Involuntary Petition — Sufficiency.</p> <p>A petition in bankruptcy against a corporation which alleges that its entire capital stock is owned by three persons who compose its officers and directors, that within four months and when the corporation was insolvent, pursuant to a conspiracy between them to hinder, delay, and defraud its creditors, one of the stockholders commenced a suit against it asking for the appointment of a receiver, that the other stockholders accepted service, appeared, and joined in asking the appointment of one of them as receiver, which was made, is sufficient to sustain a verdict finding that the corporation “being insolvent applied for a receiver” for its property which constitutes an act of bankruptcy under Bankr. Act July 1. 1898, c. 543, § 3a (4), 30 Stat. 546 (IT. S. Comp. St. 1903, p. 3422). as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 (IT. S. 'Comp. St. Supp. 1909, p. 1309).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § S3.*]</p> <p>5. Bankruptcy (§ 60*) — Acts of Bankruptcy — Application for Receiver.</p> <p>Tiie fact that an application by an insolvent corporation to a state court for the appointment of a receiver for its property was not authorized by the laws of the state does not prevent such application from constituting an act of bankruptcy under Bankr. Act July 3, 3898, c. 541. § 3a (4), 30 Stat. 546 (ü. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 3903, c. 487, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1309).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 60.*]</p> <p>6. Bankruptcy (§ 60*) — “Act of Bankruptcy” — Application for Receiver.</p> <p>To constitute an act of bankruptcy under the provision of Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 516 (TI. S. Comp. St. 1903, p. 3422). as amended by Act Fob. 5, 1903, c. 487, 32 Slat. 797 (U. S Comp. St. Supp. 1909, p. 1309), that it shall be an act of bankruptcy if a person “being insolvent applied for a receiver or trustee for his property,” it is not essential that the application should he made on the ground of insolvency, at least where the application is by a corporation for the purpose of winding up its aifairs and. liquidating its indebtedness. ■■;</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent Dig. § 80; Dec. Dig. § GO.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 75G2J</p>

<p>1. Insurance (§ 349*) — Life Insurance — Nonforfeitable Policy — Premiums — Failure to Pay — Termination.</p> <p>A nonforfeitable policy provided that, if insured was indebted to the company, and any premium on the policy or interest on a loan was not -duly paid, and a request for paid-up insurance was made, the policy would be indorsed for such amount as any excess of the reserve held by the company over such indebtedness would purchase according to the company’s published table of single premiums, and that, if there was no request for paid-up insurance, then the net amount that would have been payable as a .death claim on the date to which the premiums were duly paid would automatically continue as term insurance from such date for such time as the excess of the reserve would purchase according to the company’s present published table of single premiums for term insurance and no longer. Sold, that where the excess of reserve over a loan granted on a policy was practically nothing, amounting at most to only $5.80, which would have purchased term insurance for not more than eight days after the annual premium date, a failure to pay a current premium until after the expiration of such time precluded a recovery on the policy in case of insured’s death.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 891; Dee. Dig. § 349.*]</p> <p>2. Insurance (§ 349*) — Premiums—Nonpayment—Loans.</p> <p>A premium note, executed to continue a policy, provided that no part of the premium had been paid,-but that the insurance should continue in force until midnight of the due date of'the note, and, if the note was paid on or before the date when due, the payment, together with the cash received, would he accepted in payment of the premium. The agent accepting the note informed insured’s wife that the amount of cash received at the time the note was executed would extend the policy until May 27, 1908, which was after insured died, if the note signed by insured was delivered prior to the expiration of the days of grace. Insured, however, was too ill to sign the note, and it was not signed or delivered until after the expiration of such grace. Sold, that the policy was terminated.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 897; Dec. Dig. § 349.*]</p> <p>3. Estoppel (§ 55*) — Estoppel in Pais — Reliance.</p> <p>An estoppel in pais is not created except by conduct which the person pleading the estoppel has a right to rely on and does rely on in fact.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 136-141; Dec. Dig. § 55.*]</p> <p>Buffington, Circuit Judge, dissenting.</p>

Action by the Provident Life & Trust Company of Philadelphia, trustee, against the Camden & Trenton Railway Company and others. From a decree of foreclosure and sale, defendant Daniel Killion appeals.

<p>Evidence (§§ 244 , 265*) — Admissions by Corporate Agent — Statements Made After Transaction — Weight and Effect.</p> <p>A statement made by the general sales manager of a corporation defendant that an automobile made by it and sold to plaintiff would not develop the horse power represented to plaintiff when the sale was made by 20 per cent., as an admission by defendant, was competent but not conclusive evidence of the fact stated.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936, 1029-1050; Dec. Dig. §§ 244, 265.*]</p> <p>2. Sales (§ 398*) — Action by Buyer to Recover Price — Misrepresentation —When Question por Jury.</p> <p>In an action by the purchaser of an automobile to recover the purchase price paid, on an attempted rescission of the contract for misrepresentation inducing the sale, the question whether the machine would develop the horse power represented is one of fact for the jury, notwithstanding the testimony of experts as to the theoretical horse power which would be developed by an engine of the dimensions of that sold. [Ed. Note. — For other cases, see Sales, Dec. Dig. § 398.*]</p> <p>3. Appeal and Error (§ 854*) — Review—Correct Decision Based on Erroneous Grounds.</p> <p>A judgment will not be reversed because of the direction of a verdict on an erroneous ground if it was proper on other grounds.</p> <p>'[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3408; Dec. Dig. § 854.*]</p> <p>4. Principal and Agent (§ 92*) — Contract ■ Creating Relation — General Sales Manager op Corporation.</p> <p>The relation of principal and agent exists as to third persons between a manufacturing corporation and one employed by it as its general sales manager.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 92.*]</p> <p>5. Sales (§ 38*) — Rescission by Buyer — Grounds—Material Misrepresentation Inducing Contract.</p> <p>A contract of sale, although it contains no warranty of the article sold, may be rescinded by the buyer for a material misrepresentation by the seller external to the contract with respect to the article sold, of which he was also the manufacturer, which induced the contract and was made for that purpose, whether or not such representation was in fact known by the seller to be false.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. • Dig. § 38.*]</p> <p>6. Sales (§ 130*) — Right op Buyer to Rescind — Acquiescence and Waiver.</p> <p>Acquiescence and waiver, when set up to defeat the right of a buyer to rescind a contract of sale, are always questions of fact, with the burden of proof resting upon th.e defendant.</p> <p>[Ed. Note. — For other eases, see Sales, Dee. Dig. § 130.*]</p> <p>7. Sales' (§ 121*) — Right op Buyer to Rescind — Waiver.</p> <p>The exercise by a buyer of acts of ownership over the article bought, which are inconsistent with the right to rescind the contract, constitute a waiver of such right.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. § 121.*]</p> <p>8. Principal and Agent (§ 121*) — Evidence op Agent’s Authority — Testimony op Agent.</p> <p>The rule that statements made by an alleged agent are' not competent as against his-principal to prove his authority as agent does not apply to his testimony as a witness on the trial in which such authority is in issue.</p> <p>' [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §•§ 416-419; Dec. Dig. § 121.*]</p>

Petition in intervention by Deila A. Jones, administratrix of the estate of James A. Jones, deceased, against P. A. Willcox, receiver, in suit of the Alever Rubber Company against the Georgetown & Western - Railroad Company.. From an order granting the petition (17-1 Fed. 731), the receiver appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p> <p>Suit in admiralty by the Columbia Dredging Company against the Sanford & Brooks Company. Decree for libelant (1G3 Fed. 3G2), and. respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Illinois.</p> <p>Habeas corpus by the United States, on the relation of Annie Kelley, against J. M. Peters, Sheriff of Champaign County, Illinois. Erom an order discharging petitioner from custody (1'66 Fed. 613), respondent appeals.</p> <p>After relatrix was adjudged a bankrupt by the court below, and before she was discharged, appellant as sheriff took her into custody under an execution against her body. The execution was issued by virtue of a judgment entered against her in favor of Michael Burke by the circuit court of Champaign county, 111., before her voluntary petition in bankruptcy was filed. On her petition for a writ of habeas corpus in the District Court, she was temporarily released from custody, pending her application for a discharge in bankruptcy. After her discharge in bankruptcy was granted, the District Court considered her petition for the writ, the sheriff’s return, and certain testimony, and thereupon entered the order appealed from, finally discharging relatrix from the custody of the sheriff.</p> <p>Section 17 of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended in 1903 (Act Feb. 5, 1903, e. 487, § 5, 32 Stat. 79S [U. S. Comp. St. Supp, 1909, p. 1310]), provides that “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (2) are liabilities * * * for willful and malicious injuries to the person or property of another.”</p> <p>The sheriff’s return exhibited the record of the proceedings and judgment of the Champaign county circuit court. On the hearing, relatrix admitted that the proceedings and judgment were correctly stated in the return.</p> <p>Burke’s declaration was in thrée counts. The first was the common-law count for trespass vi et armis. The second stated that Burke was-J.1 years old, and was attending a public school in Champaign county, of which relatrix was the teacher; that relatrix, under pretense of inflicting punishment upon him for some alleged infraction of the rules, kept him after school, and then and there, without any just or sufficient excuse, unlawfully, willfully, wantonly, and maliciously struck and beat him violently with a certain stick or club; that the punishment administered as aforesaid was grossly and maliciously excessive; whereby he was permanently injured, etc. The third also detailed a “wanton and malicious” assault with a stick and club.</p> <p>Relatrix pleaded the general issue; also that the alleged assault was only a moderate and proper punishment of Burke as pupil by relatrix as teacher; and, further, that the alleged assault occurred while relatrix was making a proper, defense against an assault by Burke.</p> <p>On issues so tendered, and closed by Burke’s general replication, the jury returned a general verdict of guilty and assessed Burke’s damages at $lj800. Judgment in due form was entered. Relatrix prayed an appeal to the Appellate Court of Illinois, but the appeal was never perfected; and no bill of exceptions, preserving the evidence and the instructions of the court to the jury, was ever filed.</p> <p>At the habeas corpus hearing the District Court permitted relatrix. over • appellants objection, to go into her side of the merits of the alleged assault. Appellant introduced no evidence touching the original occurrence on which ■the declaration was based.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by Eouis R. Manning and another against the Connecticut Eire Insurance Company. From an order overruling a motion to set aside a nonsuit, defendant brings error.</p>

<p>1. Master and Servant (§ 238*) — Injuries to ¡Servant — Contributory Negligence.</p> <p>Plaintiff, who ivas employed by defendant as a Tester of electric lioisrs which defendant manufactured, having tested a new brake which had been put on an electric hoist in defendant’s factory, with knowledge that the current had been turned on and that the operator had gone into the cage from which the hoist was operated, started to descend to the gallery floor below by means of a ladder. In climbing down the ladder, plaintiff took hold of tlie rail on which the carriage of the hoist ran, knowing that the carriage was only six feet distant, and while his hand grasped the rail the carriage was started by the operator, and the wheels ran over and crushed his lingers. Held, that plaintiff was guilty of contributory negligence precluding a recovery.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§.68!, 743-748; Dec. Dig. § 288.*J</p> <p>2. Master and Servant (§ 197*) — Injuries to Servant — Proximate Cause— Fellow Servants.</p> <p>The proximate cause of plaintiff’s injury was the negligence of the operator of the hoist, who was plaintiff’s fellow servant, for which negligence the master was not liable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 4S9, 490; Dec. Dig. § 197.*]</p> <p>3. Master and Servant (§ 15G*) — Injuries to Servant — Scope or Employment.</p> <p>A master is not liable for injuries to a servant merely because he was engaged in work outside the scope of his employment at the time he was injured, where the danger was neither hidden nor 'concealed, but was as open and obvious to the servant as to the master, and was one of which the servant had actual knowledge.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 311, 3J2; Dec. Dig. § 156.*]</p> <p>4. Master and Servant (§'154*) — Injuries to Servant — Warning.</p> <p>A master was not negligent in failing to warn a servant of a danger concerning which the servant was fully informed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 308, 309; Dec. Dig. § 154.*]</p>

<p>In Arror to the District Court of the United States for the Northern District of Ohio.</p> <p>Ellis Bartholomew Was convicted of a criminal offense, and brings error.</p>

<p>1. Abatement and Revival (§ 12*) — Federal Courts — Pending Suit in State Court.</p> <p>Pendency of a prior suit in a state court is neither a temporary nor a permanent bar to the prosecution of a subsequent suit in a Circuit Court of the United States between the same or different parties for the same cause of action or involving the same subject-matter; complainant being entitled to apply to both courts for relief and, subject to certain qualifications, to prosecute both proceedings at its election until in one of them final satisfaction shall be either obtained or refused.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § S7; Dee. Dig. § 12*</p> <p>Pendency of action in state or federal court as ground for abatement of action in the other, see notes to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205; Barnsdall v. Waltemeyer, 73 C. C. A. 521.]</p> <p>2. Courts (§ 262*) — Federal Courts — Remedy at Law in State Court.</p> <p>The existence of a remedy at law in a state court does not oust a federal court of jurisdiction in equity, under the rule that a federal court of equity, following the chancery precedents, does not inquire concerning the remedies available in a state court, but whether a federal court of law offers an adequate remedy, which inquiry is confined to the remedies in the federal courts, regardless of tlie antiquity of the remedies offered by the state.</p> <p>¡lid. Note. — For other cases, see Courts, Dec. Dig. § 262.*]</p> <p>3. Injunction (§ 85*) — Adequate Remedy ax Daw — State Court — Certiorari.</p> <p>Since a writ of certiorari will not issue out of a federal court, except in aid of such court’s jurisdiction, and is not available to review and annul an alleged invalid municipal ordinance, the fact that under the state practice such a writ had been available for that purpose since 1789 did not afford complainant an adequate remedy at law, precluding it from maintaining a suit to restrain the enforcement of such ordinance in tlie federal court, though it had previously instituted certiorari proceedings in the state court to tlie same end.</p> <p>I Ed. Note. — For other cases, see Injunction, Cent. Dig. § 156; Dec. Dig. § 85.*]</p>

<p>In Error to the District,Court of the United States for the Southern District of New York.</p> <p>Action by Paul Zanone, as administrator of the estate of Frank S. Zanone,. deceased, against the Oceanic Steam Navigation .Company. A. verdict was directed for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. Suit by Herman Pauli and Emil Rump against the steamship Indrani. Decree for claimant, and libelants appeal.</p>

<p>1. Admiralty (§ 118*) — Review on Appeal — Presumption in Favor oe Decree.</p> <p>One to whom a decree in admiralty directs the payment of a fund is presumptively a party to the suit, or in court as a claimant of the fund, and evidence is required to rebut such presumption, where a denial of the fact is made a basis for impeaching the decree.</p> <p>TEd. Note. — For other cases, see Admiralty, Cent. Dig. §§ 707-769; Dec. Dig. § 118.*)</p> <p>2. Admiralty (§ 115*) — Review on Appeal — Questions Presented by Record.</p> <p>A decree in admiralty, adjudging a portion of the fund realized from the s'ale of a vessel libeled by a lienholder to the receiver in bankrnpi'oy of the owner, on recitals that the vessel was in the custody of the bankruptcy court when seized, and that the receiver expended the sum allowed him for its benefit because of such custody, cannot be reviewed, where the record does not contain the evidence on which such recitals were based.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 743-745; Dec. Dig. § 115.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Frances A. Becker against the Exchange Mutual Fire Insurance Company of Pennsylvania. Judgment for defendant (165 Fed. 816), and plaintiff brings error.</p>

In Error and Cross-Error to the Circuit Court of the United States for the Eastern District of Louisiana. Action By the National Contracting Company against the Sewerage & Water Board of New Orleans. Judgment for plaintiff, from which both parties bring error.

<p>1. Removal of Causes (§ 45*) — Action by Nonresident — Court to Which Cause was Removable.</p> <p>Where plaintiff, a citizen of Pennsylvania, brought suit on contract in the Supreme Court of New York against citizens of that state, it was not removable to the Circuit Court of the United States sitting in New York, under Removal Act March 3, 1875, c. 137, § 2, 18 Stat. 470, amended by Act March 3, 1887, c. 373, § 1, 24 Stat. 552 (U. S. Comp. St. 1901, p. 509), providing that a suit pending in a state court, of which the Circuit Court is given jurisdiction, may be removed by the “defendant” therein, being a “nonresident” of that stale.</p> <p>|Kd. Note.--For other cases, see Removal of Causes, Cent. Dig. § 89; Dec. Dig. § 45.*]</p> <p>2. Removal of Causes (§ 111*) — Erroneous Removal — Jurisdiction Acquired.</p> <p>Where a case was erroneously removed from a state to a federal court, the federal court, acquired no jurisdiction, and a judgment therein would be .reversed on a writ of error, and the cause remanded, with directions to remand the cause; to the state court.</p> <p>I Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 239; 'Dec. Dig. § 111.*]</p>

Action by B..E. Roberts, administrator of the estate of John Wesley Roberts, deceased, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Guaranty Trust Company of New York against the Metropolitan Street Railwmy Company, the Morton Trust Company, Adrian H. Joline, and Douglas Robinson, receivers, and others. From a decree of foreclosure (166 Fed. 569, and 168 Fed. 967), complainant and the Morton Trust Company appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Morton Trust Company and the Pressed Steel Car Company against the Standard Steel Car Company. Decree for defendant (171 Fed. 672), and complainants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by the International Time Recording Company against the W. H. Bundy Recording Company. Decree for defendant (167 Fed. 329), and complainant appeals.</p>

Suit in equity by the Jacobs Manufacturing Company against the T. .R. Almond Manufacturing Company. Decree for defendant, and complainant appeals. This cause comes here upon appeal from a decree of the Circuit Court, Eastern District of New York, dismissing the hill iu an equity suit brought to enjoin the alleged' iu fringement of United States patent No. 709,011, issued September 10, 1902, to Arthur [. Jacobs for a drill-clmck. A “chuck"’ is a device for holding a tool.

<p>In Equity. Taxpayers’ bill by Sarah Chostkov and others against the City of Pittsburgh and others. On demurrer to bill.</p>

<p>In Admiralty. Suit by Michael Chirurg against the Knickerbocker Steam Towage Company. On exceptions to interrogatories.</p>

<p>In Equity. Suit by George W. Dover and others against Thomas E. Greenwood and others. On final hearing.</p>

<p>1. Railroads (§ 75*) — Railroad Ordinances — Conditions.</p> <p>Where at the time a city passed an ordinance authorizing a railroad company to operate its trains over a street, the city had power under B. & C. Comp. Or. §§ 5077-5078, to designate the street on which the railroad company should locate its road, such power carried with it power to impose reasonable conditions to such permission, which, when accepted by the railroad company, became binding on it.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 183-191; Dec. Dig. § 75.*]</p> <p>2. Constitutional Law (§ 334*) —Streets—Right to Use — Contract.</p> <p>Where a city passed an ordinance granting a railroad company the right to use a street for a right of way on certain terms, such ordinance, when accepted, became in effect a contract between the city and the railroad company, whether it be regarded as a franchise, license, or mere permission, and the city could not subsequently revoke, impair, or destroy the rights conferred.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 344: Dec. Dig. § 134.*]</p> <p>3. Railroads (§ 77*) — Police Powers — Exercise—Effect.</p> <p>The passage of an ordinance granting a railroad company the right to operate its railroad along certain streets subject to the reserved power to make and alter regulations, etc., did not deprive the city of its police powers, nor of the right to exercise the authority expressly reserved.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 197, 198; 1815; Dec. Dig. § 77.*]</p> <p>4. Railroads (§ 223*) — Usd of Streets — Regulatory Ordinances.</p> <p>A city ordinance authorizing a railroad company to use a street, and reserving to the city the right to make and alter regulations governing the conduct of the road within the limits of the city, to regulate the speed of the cars and locomotives within such limits, and to restrict the running of locomotives at such times and in such manner as might be deemed necessary, reserved to the city the right to make such rules and regula!ions covering the operation of the road as might be deemed necessary, even to the extent of prohibiting the use of steam locomotives or freight cars on the street.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 725-729; Dec. Dig. § 223.*]</p> <p>5. Railroads (§ 223*) — Use of Streets — Municipal Ordinances — Construction.</p> <p>Reserved power to a city to regulate the operation of railroads granted the right to use certain streets if involved or doubtful should be construed in favor of the city and against the grantee.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 223.*]</p> <p>6. Railroads (§ 77*) — Regulation—Police Power.</p> <p>A city ordinance, granting a railroad company the right to operate its road along certain streets of a city on certain terms, was necessarily made and accepted subject to the city's right to the exercise of its power to make such regulations concerning the operation of the road as public safety and welfare might from time to time require, which power could not he contracted away.</p> <p>[Ed. Note. — For other eases, see Railroads, Dec. Dig. § 77.*]</p> <p>7. Constitutional Law (§ in*) — Municipal Corporations (§ 025*) — Franchises — Regulation—Municipal Ordinances — Police Power.</p> <p>A city ordinance prohibiting a railroad from operating steam locomo- ' fives and freight cars along a street on which the company had been authorized to construct its road, subject to regulatory provisions subsequently adopted, did not impair any of the railroad's vested rights, and was not objectionable as an arbitrary exercise of the city’s police power.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 209-SI 1; Dec. Dig. § 101;* Municipal Corporations, Cent. Dig. §§ 1378, 1379; Doc. Dig. § 025.*]</p>

<p>In Equity.- Suit by the Southern Pacific Company and others against the Interstate Commerce Commission.</p>

<p>At I,aw. Action by Napoleon Norguet against Paramount Worsted Mills. On motion by defendant Cor new trial.</p>

In Equity. Suit by Louis Von Horst against the American Hop & Barley Company, Central Trust Company of California, j. Murray Earsman, and A. B. Parker. On demurrer to bill. This is a bill in equity to declare illegal and void and restrain the enforcement of an assessment by a corporation of its capital stock. The defendants have demurred to the bill for want of facts to warrant the .equitable interference of the court.

<p>At Law. Action by Myrtle Northam and another against the Casualty Company of America. On demurrer to complaint.</p>

<p>1. Municipal Corporations (§ 755*) — Injuries—Liability of Town.</p> <p>, New York Highway Law (Laws 1908, c. 330) § 74, providing that every .town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of any neglect of the commissioner of highways of such town, created a liability of the town for negligence in relation to highways and bridges which did not exist at common law.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ ' 1587-1590; Dec. Dig. § 755.*]</p> <p>% Action (§ 27*) -Torts — Local ok Transitory Action.</p> <p>The action against a town for injuries to persons and properly by a defect in highways and bridges given by New York Highway Law (Laws 1908, c. 330) i 74, is in tort, and is not local, but transitory, and may be maintained wherever a wrongdoer can be found.</p> <p>[Ed. Note. — For other eases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.*]</p> <p>3. Death (§ 8*) — Wrongful Death -Parties,</p> <p>Where an action for wrongful death is brought in a state other than the one where the accident or injury resulting in death occurred, based on a statute authorizing such action, it is not necessary that the action be brought in the name of the person or party specified in the statute of the state where the injury occurred and the wrong was committed, as the one to bring it and enforce the right, the statute being remedial, the action may be brought under the procedure of the state where the action was commenced, and in the name of the one there authorized to bring such action under the similar laws of that state.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 12, 36, 52, 12!, 133; Dec. Dig. § 8.*]</p> <p>4. Executors and Administrators (¡5 518*) — Appointment of Administrator — Assets—Action for W'rongful Death.</p> <p>Where a nonresident suffers wrongful death in New York, the right of action for his death constitutes sufficient assets to entitle his domiciliary administrator to ancillary letters of administration in New York for the prosecution of such action.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Doc. Dig. § 518.*]</p> <p>5. Death (§ 81*) — Wrongful Death — Action by Foreign Administrator— Ancillary Letters.</p> <p>The domiciliary administratrix of the estate of a citizen and resident of Massachusetts appointed by the probate court of that state could not sue in the Circuit Court of‘the United States sitting in New York in the district where the defendant resides to recover damages for decedent’s alleged wrongful death occurring in New York, as authorized by the statutes of that state without taking ancillary letters in New York.</p> <p>[Ed. Note. — For other cases, see Death. Cent. Dig. § 39; Dec. Dig. § 33.*]</p>

<p>In Equity. Suit by Agnes Valiquet against Louis P. Valiquet. On demurrer to bill.</p>

<p>INTERPLEADER (§ 35*) — CONTEST BETWEEN PLAINTIFF AND INTERVENING CLAIMANT of Fund — Costs and Fees.</p> <p>Where the defendant in an action by a trustee in bankruptcy answered that it had in its hands a sum belonging to the bankrupt, but which was claimed as assignee by his wife, who thereupon intervened, and the only issue tried was between her and the plaintiff, the defendant, which occupied the position of a mere stakeholder, is not liable for costs, and is entitled to the allowance of a reasonable attorney’s fee.</p> <p>[Ed. Note. — For other cases, see Interpleader, Cent. Dig. § 76; Dec. Dig. I 85.*]</p>

<p>Suits by the Barber Asphalt Paving Company and by the Union .Trust Company of New York against the Forty-Second Street, Manhattanville & St.. Nicholas Avenue Railway Company; by the Pennsylvania Steel Company and another against the New York City Railway Company and the Metropolitan Street Railway Company, and by the Morton Trust Company against the Metropolitan Street Railway Company and others.' On petition by the receiver of the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company for an order directing the Metropolitan Street Railway Company, and Adrian H. Joline and Douglas Robinson, as its receivers, to recognize the rights of the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company to maintain and operate a street surface railway through Manhattan, on Amsterdam avenue, between Seventy-First street and 125th street, and to use the present road and equipment in common with the Metropolitan Street Railway Company or its receivers and the Ninth Avenue Railway Company, or by joint operation with them, or either or any of them. Petition dismissed, without prejudice, with leave granted to the receivers to institute suit in any court to establish the respective rights of the parties.</p>

<p>Deportation proceedings by the United States against Won Shong. Case remanded to Commissioner for further findings and ruling.</p>

<p>In Equity. Suit by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of New York. Bill by the American Laundry Machinery Manufacturing Company against the Troy Laundry Machinery Company, Limited. Decree for defendant (171 Fed. 870), and complainant appeals.</p>

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

<p>On Motion to Correct Decision Denied.</p>

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

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

<p>In Error to the Circuit Court of the United. States for the Southern District of New York. On writ of error to review a judgment of the Circuit Court entered in favor, of the plaintiffs by direction of the court, a jury having been duly waived.</p>

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

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

<p>Appeal from the District Court of the United States for l:lie Western District of Texas.</p>

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

<p>Petition to Review Order-of the District Court of the United States for the Western District of New York. In the matter of Meadows, Williams & CO., bankrupts. Petition of Edward F. Walsh, trustee, to review an order of the District Court. 173 Fed. 694.</p>

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

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

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. This cause comes here' upon appeal from a decree of the District Court dismissing a libel. The action was brought to recover a balance of freight withheld by the-respondent from charter hire of the steamship Drumgeith to compensate for the failure of the ship to deliver certain eases of oil shipped from New York to Whampoa, China. The- opinion of the District Judge is found in 171 Fed. 243.</p>

<p>. Appeal .from the Circuit Court of "the United States for the Southern District of New York. Bill by the Weston Electrical Instrument Company against the Empire Electrical Instrument Company and others. Decree for defendants (166 Fed. 867), and complainant appeals.</p>

<p>Memorandum of decision upon motion for preliminary injunction.</p>