Volume 178 — Federal Reporter

<p>1. Equity (§ 409*) — Iíeferlnce to, 'Master — Findings.</p> <p>Findings of a master on a reference by consent aro presumptively correct, but are advisory only where the reference is by the court without consent.</p> <p>LEd. Note. — For other eases, see Equity, Cent. Dig. § 920; Dec. Dig. 409.*]</p> <p>2. Equity (§ 403*) — Reference—Oedek—Construction.</p> <p>Where an order of reference recited that, on motion of plaintiff’s attorneys, B. was appointed special master to investigate the cause and report to the court what amount, if any, was due by reason of the claim, and that such report be filed “subject to the further orders of the court,” the reference was ex parte, and did not refer the issues to the master for final decision.</p> <p>[Ed. Note. — For other cases, see Equity, Deer. Dig. § 403.*]</p> <p>3. Costs (§ 13*) — Equity—Discretion.</p> <p>Where both parties in an equity suit are partly wrong, the court may award costs in its discretion, or may refuse to allow costs to either.</p> <p>[Ed. Note. — For other cases, see Costs, Cent Dig. §§ 21, 25; Dec. Dig. § 13.*]</p> <p>4. Appeal and Error (§ 984*) — Equity—Costs—Discretion.</p> <p>On appeal from an equity decree, the court’s allowance of costs is generally treated as final, unless a palpable abuse of judicial discretion is shown.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3881-3888; Dec. Dig. § 984.*]</p> <p>5. Costs (§ 00*) — Equity—Division.</p> <p>Where complainant’s right to recover depended on the right of B., who held a contract for road construction, and B.’s answer showed that the county commissioners had offered to pay him $3.303, which he had refused, plaintiff having recovered a less sum. it appearing that much of the costs of the hearing resulted from plaintiff’s attempt to introduce improper evidence, the court did not abuse its discretion in taxing one-half of the costs to plaintiff.</p> <p>[Ed. Note. — For other cases, see Costs. Dee. Dig. § 00.*]</p> <p>6. Contracts (§ 231*) — Measurement op Work — Method.</p> <p>Where a contract ior road construction provided for payment on a basis of measurement, it was error to base a recovery on estimates as to the amount of work that could be done by a team in a day, though it appeared that at the time of suit conditions were such that measurement of the work was difficult, and more or less unsatisfactory.</p> <p>[Ed. Note. — For other eases, see Contracts, Dec. Dig. § 231.*]</p> <p>Waddill, District Judge, dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Oapjuers (| 211*) — Twenty-Eight IIouk Law — Wettten Bequest — Tka ns-POBTATION OF LIVE STOCK.</p> <p>The ¡rial court rejected a written request on a railroad form, partly In manuscript and partly in print, which was separate and apart from any hill of lading or oilier railroad form of similar character, for an extension of the time of confinement of a shipment of cattle from 28 to 36 hours, under Act .Tune 29, 1906. e. 3591, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918. Supp. 1909, p. 1178), which provides that such an extension may be allowed "upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any bill of lading or oilier railroad form.” Held error.</p> <p>(a) A legal request under this act may be made by the authorized agent Of the owner, or by the person in custody oí the particular shipment.</p> <p>(b) Such a request may be printed, engraved, or stamped, or partly printed, engraved, or stamped and partly in handwriting.</p> <p>(c) A legal request may be made on or in a railroad form separate and apart from a printed bill of lading or other railroad form than one which contains the request alone.</p> <p>(d) Such a request may be made before the transportation of the shipment commences.</p> <p>(e) Such a request may be made, although it is not induced by any unforeseen contingency that arises after the transportation commences.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 211.*]</p> <p>2. Caekiees (§ 211*) — Twenty-Bight Hour Daw — Written Bequest — Person Delivering for Shipment is Presumptively Authorized to Make.</p> <p>There is a legal presumption that one to whom an owner of animals has intrusted their possession and control for delivery to a railroad company for shipment, and who actually delivers and ships them, is authorized by the owner to make the request specified in this law, and to do any other usual act relevant to such a transaction.</p> <p>A railroad company is justified in relying upon this presumption, and cannot be held to have violated the law knowingly and willfully because it confines animals more than 28 and less than 36 hours in reliance upon •this presumption, ^without notice or knowledge of any defect in the authority of the agent.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 211.*]</p> <p>3. Statutes (§ 195*) — Construction—Enactment Without a Specified Exception Baises a Conclusive Presumption None Intended.</p> <p>When a legislative body has made a grant or given a permission with a specific exception or limitation, and has made no other exceptions or limitations, a conclusive presumption arises that it intended to make none, and it is not the province of the courts to do so.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 273; Dec. Dig. § 195.*]</p> <p>4. Statutes (§ 185*) — Construction—Intention Not Expressed in Statute Ineffective.</p> <p>It is the intention expressed in a statute, and that alone, to which courts may give effect. They may not assume or presume intentions and purposes of the lawmakers that the terms of the law do not indicate, and then enact or expunge provisions to accomplish such supposed intentions.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 264; Dec. Dig. § 185.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriers (§ 211*) — Twenty-Eight Hour Law — Written Bequest — Transportation or Live Stock.</p> <p>The trial court rejected a written request on a railroad form, partly in manuscript and partly in print, which was separate and apart from any bill of lading or other railroad form of similar character, for an extension of the time of confinement of a shipment of cattle from 28 to 36 hours, under Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918; Supp. 1909, p. 1178), which provides that such an extension may be allowed- “upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any bill of lading or other railroad form.” Held error.</p> <p>(a) A legal request under this act may be made by the authorized agent of the owner, or by the person in custody of the particular shipment.</p> <p>(b) Such a request may be printed, engraved, or stamped, or partly printed, engraved, or stamped and partly in handwriting.</p> <p>(c) A legal request may be made on or in a railroad form separate and apart from a printed bill of lading or other railroad form than one which contains the request alone.</p> <p>(d) Such a request may be made before the transportation of the shipment commences.</p> <p>(e) Such a request may be made, although it is not induced by any unforeseen contingency that arises after the transportation commences.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 211.*]</p> <p>2. Carriers (§ 37*) — Twenty-Eight Hour Law — Preponderance oe Evidence Sueeícient to Sustain Action for Violation.</p> <p>The greater weight of the evidence is sufficient to sustain an action by the United States for a violation of the 28-hour law, and it is not required to establish its case by proof beyond a reasonable doubt. Sanborn, Circuit Judge, dissenting.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 37.*]</p> <p>3. CARRIERS f§ 20'*')-TwENTY-ErGIIT HOUR LAW — COURT MAY FlX T[HE AMOUNTS or Recoveries UNDER.</p> <p>It is the province and duty of the court to fix the amounts of the recoveries in actions for violations of the 28-hour law, and that of the jury to determine whether or not the defendants have violated that law.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.*]</p>

<p>In Error to the District Court of the United States for the District of Kansas.</p> <p>Action by the United States against the Missouri, Kansas & Texas Railway Company. Judgment for the. United States, and defendant brings error.</p>

Action by the United States against the Stockyards Terminal Railway Company for violation of the 28-hour law. Judgment for defendant (172 Fed. 452), and plaintiff brings error.

<p>1. Food (§ 24*) — Searches and Seizures — Affidavit—Probable Cause.</p> <p>Const. U. S. amend. 4, provides that a search warrant shall not issue except on probable 'cause, supported 'by oath or affirmation particularly describing the place to be searched and the persons or things to be seized, and the fifth amendment declares that no person shall be compelled to be a witness against himself nor be deprived of life, liberty, or property without due process of law. Held, that Rev. St. § 3462 (U. S. Comp. St. 1901, p. 2283), authorizing federal circuit and district judges and commissioners of the Circuit Courts to issue search warrants, does not express all the requisites of an affidavit for such warrant, and that such an affidavit merely alleging that the officer had good reason to believe, and did believe, that accused was unlawfully engaged in manufacturing oleomargarine on the premises described, and praying the issuance of a warrant, was fatally defective for failure to state facts from which the officer issuing the warrant might determine the existence of probable cause.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*]</p> <p>2. Criminal Law (§ 394*) — Evidence Illegally Obtained.</p> <p>Where testimony offered against accused was itself relevant, and there was no attempt to compel him to testify against himself or produce his private papers or effects, the evidence was not inadmissible because obtained by an illegal search and seizure.</p> <p>[Ed. Note. — For other cases, see 'Criminal Law, Cent. Dig. §§ 875, 876; Dec. Dig. § 394.*]</p> <p>3. Internal Revenue (§ 39*) — Oleomargarine—Empty Package — Possession — Stamps—Neglect to Destroy.</p> <p>Act Aug. 2, 1886, c. 840, § 13, 24 Stat. 211 (U. S. Comp. St. 1901, p. 2232), provides that, whenever any stamped package containing oleomargarine is emptied, the person in whose hands the same is shall destroy utterly the stamp thereon, and any person who willfully neglects or refuses to do so shall be fined. It also provides that any revenue officer may destroy any empty oleomargarine package on which a tax-paid stamp is found. Held that, in order to constitute the offense of neglect or refusal to destroy the stamp from an emptied oleomargarine package, it need only appear that the package had a stamp on it denoting the payment of a tax; that it was emptied of its .contents; that it was in defendant’s possession in its emptied condition; and that he willfully neglected or refused to destroy the stamp while the empty package was in his possession; and hence an indictment for such offense was not defective for failure to charge that the package was emptied while in defendant's possession.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 39.*]</p> <p>4. Food (§ 14*) — Oleomargaeine~“Retail Deai,ek.”</p> <p>Act, Aug. 2, 1886, c. 840, 24 Stat. 209 (ü. S. Comp. St. 1901, p. 2228), regulating the sale of oleomargarine, authorizes three classes of persons to conduct the business of manufacturing and selling oleomargarine, viz., the manufacturer is authorized to sell his own products in his place of business in his own packages with stamps denoting payment of the tax on the contents, the wholesale dealer is defined to be one permitted to sell in the manufacturer’s original packages, and the retail dealer, one who sells in less quantities than ten pounds at one time; and section 6 declares that retail dealers must sell only from original stamped packages in quantities not exceeding 10 pounds. Held, that the restriction on retail dealers violates no constitutional right, and that persons selling oleomargarine at retail in original packages in quantities greater than ten pounds at any one time are violaters of the law, and do not form a class outside its provisions.</p> <p>[Ed. Note. — For other cases, see Food, Dee. Dig. § 14.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6195.]</p> <p>5. Food (§ 16*) — Oleomagarine—Retail Sale — Penalties.</p> <p>The penalty prescribed in Oleomargarine Act Aug. 2, 1886, e. 840, § 6, 24 Stat. 210 (Ü. S. Comp. St. 1001, p. 2230), does not apply to that part of the sed ion prohibiting retailers from selling in quantities exceeding 10 pounds, such offense being subject to punishment by a fine of ⅞1,000 without imprisonment, as prescribed by section 18.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 16.*]</p>

<p>1. Corporations (§ 316*) — Contract Made bit Officer for His Own Benefit —Ratification,</p> <p>A corporation, which had authorized its superintendent to lease mining ground owned by it to be mined by the lessees on payment of a royalty on the product, and which, with knowledge that he had leased certain of such ground to a corporation of whose stock he was principal owner without objection, permitted such lessee to expend large sums in the erection of a mill and improvements to work the same, and received from it and retained the royalties provided by the lease, by its conduct ratified such lease and is estopped to deny its validity.</p> <p>[Ed. Note.- — For other cases, see Corporations, Cent. Dig. § 1412; Dee. Dig. § 316.*</p> <p>Power of corporate officers in their individual capacity to deal with the corporation, see note to Bensiek v. Thomas, 13 C. C. A. 466.1</p> <p>2. Mines and Minerals (§ 62*) — -Mining Lessee — Action Against Trespasser for Conversion of Ore.</p> <p>A lease of a tract of land for a term of 10 years, by which the lessee agreed to mine the same, soil .the minerals produced, and pay the lessor a percentage of the proceeds as royalty, was a mining lease which gave the lessee no property rights in the ore under the land excepting such as it should mine and sell within the term of the lease, and, in an action against a trespasser who mined and removed ore from the premises during the terra, it was not entitled to recover the value of such ore, but damages only to the extent of its actual injury proved.</p> <p>[Ed. Note.- — l?or other cases, see Mines and Minerals, Cent. Dig. 173-180; Dec. Dig. § 62.*]</p> <p>S. Corporations (§ 319*) — Suit by Corporation for Accounting by Officer.</p> <p>Equity has jurisdiction of a suit by a corporation against its managing agent to require an accounting in respect to his management ol' its property, even though the ultimate object sought is to obtain a money judgment.</p> <p>[13⅞. Note. — -For other cases, see Corporations, Dec. Dig. § 319.*]</p>

<p>Appeals from the District Court of the United States for the Northern District of Illinois.</p> <p>Suit in admiralty by the Erie & Western Transportation Company against the City of Chicago and the Fitzsimons & Connell Company, and cross-libel by the city. From the decree libelant and the City of Chicago appeal. Reversed on libelant’s appeal, and affirmed on respondents’.</p> <p>Both of these appeals are from a decree in admiralty, adjudging contributory fault and liability against each of the appellants, for damages resulting from a collision of the steamer Conestoga with a waterworks crib, off the port of Chicago. The issues respectively and facts involved are stated in the opinion.</p>

<p>1. Banks and Banking (§ 116*) — Rhkrksenxatjon ok Bank :ry Officers— Fraud-Notice.</p> <p>Where the payees of a note fraudulently acquired offered it to a bank of which they were directors and members of the discount committee, hut withdrew from the meeting of the committee, and took no part in the committee’s determination of the advisability to purcha.se. and did not disclose any facts wliich would have led to the discovery of the fraud, the payees’ knowledge thereof was not imputed to the bank because of their relation to it, under the rule that the law will not impute notice from an agent to his principal where such notice would necessarily prevent the consummation of tho transaction in which the agent was engaged.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 280, 287; Dec. Dig. § 116.*]</p> <p>2. Witnesses ($ 349*) — Cboss-Examination—Scope.</p> <p>In an action on a note alleged to have been obtained from the makers by fraud and transferred to plaintiff bank before maturity, a. question asked of one of the defendants on cross-examination, whether after he began to suspect the payees’ fraud he made any effort; to recover possession of the note, was properly allowed to show whether the witness’ conduct -was consistent with his declaration that ho suspected fraud.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 349.*]</p> <p>3. Bills and Notes (§ 505*) — Transfer—Fraud—Evidence.</p> <p>In an action on a note alleged to have been obtained by fraud as the purchase price of certain stock and transferred to plaintiff bank before maturity, the court properly refused to permit defendants to prove that the payees did not have tbe stock which they agreed to deliver in their “strong box” in the bank, as they had stilted, but that they had hypothe-cated the stock, and did not: have possession or control of it.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 505.*]</p> <p>4. Bums and Notes (§ 505*) — Fraud—1Transfer—Evidence.</p> <p>In an action on a note given for the purchase price of certain stock and transferred to plaintiff bank, the court properly refused to allow defendants to prove the terms of a certain trust alleged to have been created by the payees for the benefit of their creditors, including plaintiff, as such trust if created would not relieve defendants from liability.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 505.*]</p> <p>5. Witnesses (§ 37*) — Competency—Means of Knowledge of Facts.</p> <p>Where in a suit on a note alleged to have been procured by fraud and transferred to plaintiff bank, the bank claimed to have purchased the note for $48,861.11, and placed that sum to the credit of T., one of the trans-ferrors, on its books, evidence that certain checks drawn by T. against his account in the bank, amounting to $50,500, had been paid by the bank, was admissible, though the witness testified from his knowledge of the course of business and from the signatures, indorsements, and stampings on the check, and not from actual knowledge or recollection of the papers.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 81; Dee. Dig. § 37.*]</p> <p>6. Appeal and Error (§ 856*) — Rulings—Evidence—Review.</p> <p>A ruling on the admission of evidence will not be reversed for a different reason than that assigned in the trial court to sustain the objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 856.*]</p> <p>7. Evidence (§ 222*) — Admissions by Coparty.</p> <p>In an action by a bank on a note given for the purchase price of certain stock, evidence that during the negotiations, prior to the signing of the contract for the sale of the stock, defendant C. admitted the interest of the other defendants in the contract, was competent.</p> <p>TEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 797-808; Dee. Dig. § 222.*]</p> <p>8. Bills and Notes (§ 467*) — Indorsement—Action—Fleading.</p> <p>Plaintiff, who holds a note indorsed in blank, may declare on it as a note indorsed and delivered to plaintiff by the indorser, regardless of the number of hands through which it may have passed after such indorsement, or by the person from whom it had been actually received.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dee. Dig. § 467.*]</p>

Suit in admiralty by James Hughes and Peter Shoop, as owners of the barge Jenna Hughes, against the steam tug Gypsum King. Decree for libelants, and claimant appeals.

<p>Appeal from Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Appeal by Irving- F. Eiske against the Pittsburgh, Shawinut & Northern Railroad Company. Decree for complainant, and defendant appeals.</p>

<p>GOBPORATIONS (§ 630*) — 'DlSSOLUTION-RlGHT OR DISSOLVED CORPORATION TO MaintaiN Suit.</p> <p>Under section 59 of the general incorporation act of New Jersey (1 Gen. St. 1895, p. 918), which provides that all corporations, whether they expire by their own limitation or be otherwise dissolved, shall bo continued bodies corporate for the purpose of closing up their affairs and of prose-rating and defending suits, but not for the purpose of continuing the business for which they were established, as construed by the highest court of the state, a corporation whose charter lias been revoked by the Governor under authority of law may maintain an action in another state for a purpose thereby authorized, notwithstanding an allegation that it is authorized to do business in the state of suit, which is untrue, but is not material to the real issue, nor prejudicial to the defense.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2482, 2483; Dec. Dig. § 630.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit by the Florence Manufacturing Company against J. C. Dowd & Co. for infringement of complainant’s registered trade-mark “Keep-clean” as applied to brushes, and for alleged unfair competition in the use of the words “Sta-Kleen” as applied to brushes, and also by simulating complainant’s boxes and labels and imitating generally complainant’s manner of dressing its goods. From a decree for defendant, complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States'for the Southern District of New York.</p> <p>Suit in admiralty by Thomas Connery against the steamship Ponce. Decree for libelant, from which he appeals.</p>

Action by R. H. Dickinson, as Sheriff of Fayette County, and as such sheriff administrator of the estate of Andrew Yanoski, deceased, against the Sunday Creek Company, a corporation. From an order sustaining a demurrer to the declaration, plaintiff brings error. On motion to dismiss.

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

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit in equity by the General Electric Company against Richmond Street & Interurban Railway Company. Decree for defendant, and complainant appeals.</p> <p>Appellant’s bill for alleged infringement of claim® 1, 2, 5, 10, II, 12, and 13 of reissue No. 12,241, July 19, 1904, to Potter, appellant’s assignor, was dismissed for want of equity. The original patent was No. 524,39ft, August 14, 1894, for improvements in controllers1 for electric inotors.</p> <p>The claims of the original, corresponding to the claims of the reissue in suit, together with the drawing and descriptive matter explanatory of certain features of the invention, were as follows:</p> <p> </p> <p>“For interrupting any arc which may be formed upon breaking contact between any of, the fingers, I, and the contact plates H, I have provided an elec-tro-magnet, K, which is placed in the inclosing case adjacent to the switch-cylinder at its middle point and which is provided with a pivoted pole piece, N, extending laterally in each direction from the core of the magnet, and terminating at a point adjacent to the line of contact fingers, I. The opposite end of the magnet core rests against the back plate of the inclosing case, so that the latter forms a part of the magnetic circuit. A ridge, O, is cast on the back plate of the inclosing case, I>, at a point opposite the pivoted pole piece, N. By this arrangement, the point at which the circuit is broken between fingers I and contact plate H is directly in the line of the magnetic circuit, and any are will be interrupted, but to assist the magnetic effect upon the arc, I have provided at each finger, I, an arc deflector, P, consisting of a small chute or chimney of insulating material into which the arc is forced by what may be termed the ‘magnetic blast.’ This deflector, P, is constructed of two strips, pi, pa, of fiber, placed transversely to the line of any arc that would bo formed, the latter being bolted to the pivoted pole piece, N, and the two strips separated by a series of small partitions, p3, which divide the space between the two strips into a series of cells which form the chutes above referred to. The partitions, pa, have each two prongs curved to fit the circumference of the insulating cylinder, 6, as shown in Fig. 7, so that they may also assist in separating the successive contact plates II. It is obvious that &e deflector, P, and pole piece, N, to which it is attached can be readily swung outward as indicated by the dotted lines in Fig. 7, so as to give ready access to the interior of the mechanism. The pivoted pole piece is normally held in position by a set screw, k.”</p> <p>“1. The combination in an electric controller,- of a switch, having a multiplicity of contacts and a blow-out magnet having a common pole piece extending from a common core to points adjacent to the several circuit-breaking points of the switch-.</p> <p>“2. The combination in an electric controller, of a cylindrical switch having a series of insulated contact plates adapted to engage with a corresponding series of stationary contact fingers and a magnet having an extended pole piece reaching to points adjacent to the several circuit-breaking points between the said fingers and the said plates.”</p> <p>“5. In a series-parallel controller, a series of contacts upon a cylinder, a series of fixed contacts co-operating with them, and a series of insulating septa carried upon an arm and adapted to be interposed between the contacts, as described.”</p> <p>“10. The combination with a switch, of a magnet having its poles adjacent to the contact-breaking points of the switch, and an arc deflector also adjacent to the contact-breaking points of the switch.</p> <p>“11. The combination with a switch, of a magnet having its poles adjacent to contact-breaking points of the switch, and an arc deflector consisting of a chute or chimney also adjacent to the contact breaking points of the switch.</p> <p>“12. The combination with a switch of a magnet having its poles adjacent to contact-breaking points of the switch, and an arc deflector consisting of a chute or chimney also adjacent to the contact-breaking points of the switch, and having its walls placed transversely to the line of the arc.</p> <p>“13. The combination with a switch havin'g a multiplicity of contact-breaking points, of a magnet having its poles adjacent to said points, and an a'rc deflector consisting of a series of chutes or chimneys adjacent to the respective circuit-breaking points.”</p> <p>In the reissue, -all the drawings and the wording of claims 1, 2, and 5 remained the same as in the original. Claims 10, 11, 12, and 13 and the description pertaining thereto were changed to read thus:</p> <p>“For interrupting any arc which may be formed upon breaking contact between any of the fingers, I, and the contact plates, H, I have provided an elec-tro-magnet, K, which is placed in the inclosing case adjacent to the switch-cylinder at its middle point and which is provided with a pivoted pole piece, N, extending laterally in each direction from the core of the magnet and terminating at a point adjacent to the line of contact fingers, I. The opposite end of the magnet core rests against the back plate of the inclosing ease, so that the latter forms a part of the magnetic circuit. A ridge, O, is cast on the back plate of the inclosing case, D, at a point opposite the pivoted pole piece, N. Carried by the pole piece, N, is a box, P (see Figs. 1 and 7 ), constructed of two longitudinally-extending strips, pi p2, of insulating material. Supported between these two strips, pi and p2, are a series of insulating septa, ps, having extensions shaped, as shown in Fig. 7, to conform to the curvature of the cylinder and adapted when the pole piece, N, is in the position shown in full lines to lie between the several contact plates, II.</p> <p>“The operation of this arc-interrupting device is as follows: Any arcs which occur between the contact plate, H, and the fingers, I, are forcibly driven by the magnetic field against the insulating septa or deflectors, ps, which are placed transversely to the line in which the arc is blown by the magnet, and said arcs are thereby spread out on the surfaces of said septa or deflectors and cooled or smothered. The insulating strips, pi p2, serve to confine the heated gases constituting the arcs, and the chutes formed by the septa, p2, and the strips, pi p2, carry the heated gases away from the switch-cylinder. The whole arrangement serves to confine and extinguish the arcs in the limited space available in a compact controller. The pivoted pole piece, N, and the parts carried thereby may be swung outward, as indicated in dotted lines in ■ Fig. 7, so as to give ready access to the interior of the mechanism. It is, however, normally held in position by the set screw, k.”</p> <p>“10. Tlie combination witii a switch, of a magnet having its poles adjacent to the contact-breaking points of the switch, and an arc deflector also adjacent to the contact-breaking points of the switch, so placed that an arc between the contact-breaking points is driven against the same by the influence» of the magnet.</p> <p>“11. The combination with a switch, of a magnet having its poles adjacent to contad-breaking points of the switch, a deflector located transversely to the line of the arc as driven by the influence of the magnet, and a chute or chimney for confining and conducting away the heated gases constituting said arc.</p> <p>“12. The combination with a switch, of a magnet having its poles adjacent to contact-breaking points of the switch, a transverse deflector against which an arc between the contact-breaking points is driven by the influence of the magnet, and a chute or chimney having walls placed transversely to the line of the arc for confining and conducting away the heated gases constituting said arc.</p> <p>“18. The combination with a switch having a multiplicity of contact-breaking points, of a magnet having its poles adjacent to said points, transverse deflectors against which the arcs between the contact-breaking points are driven by the influence of the magnet, and a series of chutes or chimneys for confining and carrying away the heated gases constituting said arcs.”</p> <p>The showing, on which ihe reissue was granted, consisted of the subjoined affidavit:</p> <p>“AVilliam B. Potter, being duly sworn, deposes and says:'</p> <p>"That ho verily believes himself to be the original and first inventor of the improvements set forth and claimed in ihe foregoing specification, and for which improvements he solicits a patent; that he does not know, and does not believe, that the said improvements were ever before known or used: that he is a citizen of the United States of America, and resides at Schenectady, in the county of Schenectady, state of New York; that he verily believes that the letters patent No. 524.090. referred to in the foregoing petition and specification, and herewith surrendered, are inoperative by reason of a defective and insufficient specification; and that such defect and insufficiency consists particularly in that the specification of said patent does not describe, with sufficient definiteness, or accuracy, the action of the magnetic arc-extinguishing device, and in that the term ‘arc deflector,’ used in the specification, and in claims 10, 11, 12, 13, and 11, is indefinite and ambiguous.</p> <p>“In lines 31 to 43, of page 2 of said patent, it is stated: ‘To assist the magnetic effect upon the are, I have provided at each finger, I, an arc deflector, P, consisting of a small chute or chimney of insulating material into which the arc is forced by what may be termed the magnetic blast. This deflector, P, is constructed of two strips, pi, p'!, of fiber . placed transversely to the line of any are that would be formed, the latter being bolted to the pivoted pole piece, N, and the two strips separated by a series of small partitions, p;!, which divide the space between the two strips into a series of cells which form the chutes above referred to.’</p> <p>“The fact is that the arcs formed between the contact-breaking points are not, properly speaking, dissipated by being forced into the chimneys or chutes, but by being driven, by (he effect of the magnet, against the insulating septa, or transverse deflectors, p«, which are shown as forming two sides of said chutes, and are flattened out, cooled, and extinguished thereby. The chutes formed by the deflectors, p”, and the strips, p i and pa, serve to confine the arc and conduct away the heated gases.</p> <p>“The above-quoted language in the specification renders the term ‘are deflector’ indefinite and inaccurate in moaning, and would perhaps load one to suppose that such deflectors are necessarily complete chutes, which is not so intended, and the claims 10, 11, 12, 13, and 14, in which this term occurs, are thereby rendered ambiguous.</p> <p>“Deponent further says that the errors which render said patent inoperative arose from inadvertence, accident, or mistake, and with no fraudulent or deceptive intention on the part of deponent; that the following is a true specification of the errors which it is claimed constitute such inadvertence, accident, or mistake relied upon, and of the manner in which they arose: At the time deponent'made the invention disclosed in the said letters patent, he was employed by the General Electric Company, and was engaged in perfecting the electric railway controllers manufactured by that company: the improvements disclosed in said letters patent were embodied in controllers built under deponent’s direction, for that company, and the patent department of the said General Electric Company was instructed to, and did, prepare the application on which the said letters patent were granted, and the ambiguities in the specification arose in that department.</p> <p>“Deponent further says that he is informed and believes that, under the direction of the General Electric Company, the assignee ,of the above-mentioned letters patent, suit was brought on the said letters patent; that during the progress of that suit a large amount of testimony was taken, and the prior art, and the specification of said letters patent, were carefully and elaborately examined, and the said examination discovered the above-mentioned errors or ambiguities ; that he is now informed by the attorneys for the General Electric Company that it is desirable to reissue the above-mentioned letters patent for the purpose of correcting these errors or ambiguities.”</p> <p>The section of the statute that authorizes a reissue reads in this wise:</p> <p>“See. 4916. Whenever any patent is inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the Commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification to be issued to the patentee, or, in the case of his death or of an assignment of the whole or any undivided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent. Such surrender shall take effect upon the issue of the amended patent. The Commissioner may, in his discretion, cause several patents to be issued for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment pf the required fee for a re-issue for eacli of such reissued letters patent. The specifications and claim in every such case shall be subject to revision and restriction in the same manner as original applications áre. Every patent (so reissued, together with the corrected specification, shall have the same effect and operation in law, on the trial of all actions for causes thereafter arising, as if the same had been originally filed in such corrected form; but no new matter shall be introduced into the specification, nor in case of a machine-patent shall the model or drawings be amended, except each by the other; but when there is neither model nor drawing, amendments may be made upon proof satisfactory to the Commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid.” 16 Stat. 205 (U. S. Comp. St. 1901, p. 3393).</p>

<p>Patents (§ 328*)— Validity and Infringement — Puncture Closers sob Pneumatic Tires.</p> <p>The Glidden patent, No. 602,743, and the Sampson patent, No. 632,540, each for a device for closing punctures in pneumatic tires or tubes, consisting of a inetal shank with a flat head pivotally attached to one end, which may be turned up alongside the shank to be forced through the puncture and a cap to be screwed down on the outer surface, the latter patent being for improvements on the device of the former, were not anticipated nor invalidated by prior use and disclose invention; also held infringed by the device of the Apstein patent, No. 818,402.</p>

<p>Patents (§ 328*) — Infringement—Curtain Fixture.</p> <p>The Paterson patent. No. 754,404, for a curtain fixture, is not Infringed by the device of the Hoyt patent, No. 070,5Ó7, conceding priority of invention to Paterson; the two devices as shown in the specifications and drawings of each operating on wholly different principles.</p>

In Equity. Suits by Panayiotis Panoulias against John S. Hawley and Herman W. Hoops, against Adolph Ode and Dennis F. Gerbereux, against Henry Heide, and against Myron A. Smith, respectively. Qn motions for preliminary injunction.

<p>In Equity. Suit by John Donaldson against the Roksament Stone Company. On motion to punish Richard Herbst for contempt.</p>

<p>1. Patents (§ 297*) — Suit fob Infringement — Preliminary Injunction-Previous Adjudication.</p> <p>Where the validity of a patent has been adjudicated by the Circuit Court of Appeals, and infringement is conceded, a preliminary injunction should issue against defendents, unless the court is convinced of the probability that, had the new evidence been before the Circuit Court of Appeals, its conclusion would have been different, or a claim by defendant that complainant is without title is sustained. ■></p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 488; Dee. Dig. § 297*</p> <p>Effect of prior adjudication as to validity of patent in Circuit Court ot Appeals, see notes to National Cash Register Co. v. American Cash Register Co., 3 C. C. A. 565; Thomson, Houston Electric Co. v. Hoosick Ry. Co., 27 C. C. A. 427; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>2. Monopolies (§ 21*) — Combinations in Restraint op Trade — Defense to Suit for Infringement of Patent.</p> <p>That a complainant is itself, or is a member of, a combination in violation of the federal anti-trust statute, is not a defense available in an ac-tiim for üw» infringement of a patent, nor does it show a defect in complainant's title.</p> <p>¡Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig'. | 21 ;* Patents, Cent. Dig. §§ 451, 489.]</p>

<p>In Equity. Suit by the American Specialty Stamping Company against the New England Enameling Company. On exceptions to answer.</p>

Actions by. Russell and another, receivers of the Mutual Reserve Life Insurance Company, against one O’Donoghue, against one Gallert, against one Dempsey, and against one Ritchie. On demurrers to the complaint.

Motion by Henry A. Wise, United States Attorney, to punish the American Sugar Refining- Company for failing to obey a subpcena duces tecum.

<p>Removal of Causes (§ 79*) — Motion—Time.</p> <p>Removal Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Como. St. 1901, p. 507), provides that a removal petition must be filed at the time or before defendant is required by the laws of the state or the rule of the state court in which the suit is brought to answer or plead to the declaration. Held, that such act was designed to contract the jurisdiction of the federal courts and required the removal petition to be filed as soon as defendant is required to make any defense in the state court, whether in abatement or to the merits, which time is not extended by a failure to take judgment by default, an extension of time to answer, either by order of the state court or by stipulation of the parties, or by a special appearance to set aside service.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 136, 141-144; Dec. Dig. § 79.*]</p>

<p>Petition in bankruptcy against the Willis Cab & Automobile Company.</p>

In the matter of George Weissman, bankrupt. On review of order of referee. The following is the certificate from the referee : I, Henry G. Newton, referee in bankruptcy, hereby certify that, in the course of the proceedings, a question arose as to the payment of a claim for taxes. George Weissman was adjudicated a bankrupt January 28, 1910. His entire property, including choses in action, brought $1,385.

Action by the Ware-Kramer Tobacco Company against the American Tobacco Company and the Wells-Whitehead Tobacco Company. On special demurrer to complaint and motion to strike out matter as irrelevant and redundant.

<p>1. Removal of Causes (§ 61*) — Sepakable Coxtko vf.es Y'-IIomi’t.atnt.</p> <p>Whether two defendants are improperly joined, and whether there is a separable control ersy authorizing a removal of the cause by one of the defendants to the federal court, must be determined by the case made by the complaint, and the question of removal cannot be made to depend upon the question whether .the federal court might eventually determine that the theory on which the action was brought was erroneous, and that no joint liability in fact existed.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 115; Dee. Dig. § 61.*</p> <p>Separable controversy ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 O. O. A. 86; Mecke v. Valleytown Mineral Co., 35 O. C. A. 155.]</p> <p>2. Removaj. op Causes (§ 4!>*) — Sepaeable Coxteovebsy — .Toiwr Liability.</p> <p>Plaintiff sued defendant corporation, a nonresident, owning and operating a sawmill in California, and its resident superintendent, for wrongful death of plaintiff’s decedent, alleging that defendants employed decedent to work at the mill, and put him to work iu a place over which a chute was being used to convey heavy slabs of wood; that the chute was wholly unguarded and unprotected; that slabs frequently escaped and fell at the place where deceased was put to work; that defendants knew of the dangerous character of the place, but failed to warn deceased thereof; and that deceased, without knowledge that the place was not safe, was struck and killed by a slab falling from the chute. IIeld, that the complaint purported to charge a joint liability for active negligence on the part of both the corporation and its superintendent, and that it did not, therefore, appear that the superintendent was improperly joined, and that a separable controversy existed between plaintiff and the nonresident defendant.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 971 Dec. Dig. § 49.*]</p>

Action by Charles E. Hamilton, as receiver of the Evans-Johnson-Sloane Company, against Jacob Simon and others, copartners, doing business under the firm name of Chas. Simon's Sons. Judgment for plaintiff. This is an action by the receiver of a Minnesota corporation to recover $2,500 and interest which is the par value of 25 shares of stock held by the defendants in the corporation.

In Equity. Suit by Israel Nelson, as trustee in bankruptcy of the Vaktaren Publishing Company, against the Svea Publishing Company and others, to avoid an alleged preference and to recover property, or its value, acquired by defendants through transfers alleged to be void as to creditors. On exceptions to the report of a Master in Chancery containing findings in favor of complainant.

<p>1. Shipping- (§ 149*) — Contkact op Affreightment — Assumption by New Owner op Vessel.</p> <p>After the owners of a cargo which had been loaded on a vessel at a Maine -port to be carried to New York had advanced money on the bill of lading signed by tbe master and the advance credited thereon, the vessel was sold in an admiralty suit. The new owners, without notice to or negotiations wiili the carero owners ami without a new bill of lading being executed by the master, ordered the vessel to proceed with the cargo to New York, afterward presenting to the cargo owners a new hill of lading signed by themselves lmt not hy the master, and having no credit thereon, which the cargo owners refused to accept. Held, that there was no implied contract of carriage in such case, but that the-vessel owners in proceeding without further agreement to carry out the contract made by their predecessor were bound by Its terms, which they knew, and were entitled to collect only the balance of freight due thereon.</p> <p>[Ed. Note. — -For other cases, see Shipping, Cent. Dig. § 510; Dec. Dig. § 1-1!>.*!</p> <p>2. Shipping (§ 118*) — Fbelght—Deductions.</p> <p>An additional agreement, however, made by the cargo owners to pay a. further sum from the freight when the cargo was discharged'to a creditor of the former vessel owner, made for the purpose of securing the discharge of the vessel from the attachment but which did not accomplish that result, did not entitle the cargo owners to deduct such sum from the freight as against the new owners who performed the carriage; it not appearing that the agreement was one which the creditor could enforce under the circumstances.</p> <p>I'Ed. Note. — For other eases, see Shipping, Cent. Dig. § 509; Dec. Dig. § ⅛8.*]</p>

<p>Habeas corpus by the United States, on the relation of Hans Huber, to obtain his release from custody oí W. W. Sibray, Immigrant Inspector, under deportation warrant.</p>

Habeas corpus by the United States, on tlie relation of Hans Huber, to obtain her discharge from custody of W. W. Sibray, Immigrant Inspector, under deportation warrant.

<p>In Equity. Bill by Susan C. Higgins against Hervey E. Eaton, as executor of Elizabeth S. Eatorb deceased.</p> <p>On demurrer to a bill in equity. The facts stated in the bill are detailed below.</p> <p>Elizabeth S. Eaton died domiciled in Ann Arbor, Washtenaw county, Mich., in May, 1906, leaving a last will and testament and a codicil thereto. Her estate consisted of about $50,000 worth of personal property, almost all of which was situated in Madison county, N. Y. Soon after the death of the testatrix, and on or about the 28th of May, 1906,' the present defendant who had the will in his possession, and who was named therein as executor, applied to the Surrogate’s Court of Madison county to have the same proved and admitted to probate. A citation thereupon issued on all interested parties, and after the regular hearing the court decreed that the will and codicil together constituted the valid last will and testament of Elizabeth S. Eaton, and the same was admitted to probate on November 12, 1906. In July 1906, Susan C. Higgins, the present complainant and others, applied to the probate court of Wash-tenaw county, Mich., for the probate of the will without the codicil. On December 1, 1908, proceedings pursuant thereto were had in the Washtenaw county probate court, and the will was admitted to probate and an administrator appointed, but the codicil was rejected because of the testatrix’s mental incapacity. The will contained the following provision:</p> <p>“Sixth. I give and bequeath to my sister Susan C. Storms, during the term of her natural life, from the income of my estate, one hundred dollars per month, provided and on condition that she cares for and makes a home for my mute brother George Albert Storms during his lifetime.”</p> <p>The Susan O. Storms referred to in the above paragraph of the will is the same Susan O. Higgins, complainant herein. The codicil provided as follows:</p> <p>“Whereas, my brother George A. Storms is unable to care for himself through physical defects and infirmities, it is my wish that my sister Genevieve S. Jacobs and her husband Nathaniel P. Jacobs do so care for him and make his home with them during the term of his natural life and that they shall receive the sum of seventy-five dollars ($75) per month compensation during that time. In the event of his death before that of Genevieve S. Jacobs or Susan S. Higgins I direct that they shall share alike with the other heirs, in the general and final distribution of my estate.”</p> <p>Since the defendant’s administration began he has been paying $75 per month to the Jacobses in accordance with the codicil. The probate of the will in Madison county has never been appealed from, neither has an application ever been made under the Michigan probate to the Surrogate’s Court for •Madison county for ancillary letters testamentary, or ancillary letters of administration with the will annexed. The bill asks that the defendant pay the legacy of $100 to the complainant. Upon the argument it was not insisted that any decree could go further than to adjudicate the rights of the parties; and it is upon the theory that there is no jurisdiction to direct payment by the executor that the following opinion is written. A plea was also entered to the bill, but in view of the decision upon the demurrer no decision is made in regard to it.</p>

<p>Action by the People of the State of New York against the Bleecker Street & Fulton Ferry Railroad Company and others. On motion to remand to the Supreme Court of the State of New York.</p>

<p>In the matter of the bankruptcy proceedings against Cadenas & Coe. On petition of the Hirsch Cumber Company for an order requiring a trustee to satisfy a judgment recovered by petitioners against the assignee o'f the bankrupts.</p> <p>This is an application by the petitioner, the Hirsch Humber Company, for an order directing the trustee in bankruptcy of the firm of Cadenas & Coe to satisfy a certain judgment rendered in the Supreme Court of the State of New York and entered on March 24, 1910, against Charles B. Hubbell, assignee of the firm of Cadenas & Coe, and in favor of the petitioner.</p> <p>The claims of the petitioner upon which the aforesaid judgment was rendered arose out of a transaction on March 1, 1907, wherein Mr. Hubbell, then in possession of the firm’s property under the deed of assignment dated February 15, 1907, sold a quantity of lumber for $690.92, which lumber the petitioner claimed as its own property.</p> <p>On May 28, 1907, upon the appointment of a trustee in bankruptcy of .the firm of Cadenas & Coe, the following order of this court was entered:</p> <p>“Ordered and adjudged that Charles Bulkley Hubbell be, and he hereby is, directed to pay, turn over, assign, and transfer to Richard II. Webber, trustee in bankruptcy, all of the money, property, and interest in and title or right to property which passed to the said Charles Bnlkley Hubbell under the deed of assignment dated the 15th day of January, 1907; and the said assignee is directed and ordered to execute any and ail papers necessary to transfer and to vest in the trustee all of the title to any property which the said partners assigned to said assignee. And it further ordered that the said trustee shall take all moneys, property, and interest in property so transferred and assigned to him by said assignee, subject to all superior equities which other persons may have to said money or property against said assignee, and that the trustee shall assume to defend the assignee’s title to said funds or property so transferred to him by said assignee, without costs or expense to said assignee, and that he will hold the assignee harmless from any claims which may be made by third persons against said assignee with reference to any money or property which shall be transferred by said assignee to the said trustee.”</p> <p>The trustee held the Arm properly until October 29, 1907, when, pursuant to the confirmation of a composition entered into by one of the bankrupts, William Knox, and creditors of the firm, the court ordered the trustee' to turn over to Mr. Knox all the assets of the partnership. Meanwhile, and during the period when the trustee held the property, and before he transferred it to Mr. Knox, the petitioner's claim and the proposal to bring an action thereon were brought to the knowledge of the trustee's attorneys, White & Case</p>

<p>INSURANCE (§ 321*)-WATCHMAN CLAUSE — BREACH—1“IDLE AND INOPERATIVE.”</p> <p>A fire policy warranted that assured at all times when the property was “idle or inoperative” would keep on duty a constant day and night watchman. and that, if the property was “idle” or shut down for more than 30 days at one time, permission should be secured and indorsed on the policy. Held, that the word “idle” was used in the same sense in both places, that the term “idle and inoperative” meant a state of disuse, and that the plant was not therefore idle or inoperative so as to require a watchman during a customary suspension of operation of the mill on Sunday, or the nonuse of the electric plant during the daytime.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § Toil: Dec. Dig. § 321.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by E- W. Darling against the Wm. N. Elynt Granite Company. Judgment for plaintiff, and defendant brings error.</p>

T^ouis W. Foster and others were convicted of using the United States mails in furtherance of a scheme to defrattd and they bring error. The defendants were .-jointly indicted under section B480 of the Revised Statutes of the United States (U. S. Comp.

<p>Bankruptcy (§ 407*) — Discharge—Grounds fob Refusal — ‘‘False Statement.”</p> <p>A materially false statement within the meaning of Bankr. Act July 1, 1898, e. 541, § 14h(3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1310), which makes it a ground for denying a discharge to a bankrupt that he lias obtained property on credit from any person on a materially false statement in writing made to such person for the purpose of obtaining such property on credit, must have been made with knowledge that it was untrue and with fraudulent intent; and. a statement made by one partner from facts stated to him by his copart-ner, who was to furnish the entire capital for the business, although in fact untrue, will not defeat the right of the partner making it to a discharge, where the untruthfulness of the material statements so made was not known to him.</p> <p>rm Note. — For other cases, see Bankruptcy, Cent. Dig. § 760; Dec. Dig. § 407.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2670.]</p> <p>Waddill, District Judge, dissenting.</p>

In the matter of Jonathan A. Perley, surviving partner of the firm of Perley & Bro., bankrupt. On petition of the First National Bank of Pittsburgh, Pa., against the Guarantee Title & Trust Company, trustee. From the order both parties appeal.

Action by the Newport News Shipbuilding & Dry Dock Company against the United States. Judgment for plaintiff, and defendant brings error. This is a writ of error to a judgment of the-Circuit Court of the United States for the Eastern District of Virginia, in a suit brought under Act March 3, 18S7, c. 359, 24 Stat. 505 (U. S. Comp.

<p>In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling.</p> <p>Action by the Innes-Weld Glass Company against the West Pork Glass Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in admiralty by John J. Deary and James McMasters, owners of the naphtha launch White Seal, against the tug Dizzie Crawford, and cross-libel by George F. Murray, master of the Crawford. On petition by libelants against the United States Fidelity & Guaranty Company. From the decree, libelants appeal.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Arkansas. Actions by W. S. Bryan against the Bliss-Cook Oak Company and others, against Edwin S. Layman, and against William Bagnell, and by M. G. Ryder against the Bliss-Cook Oak Company and others, and by S. L. Moser against Edwin S. Layman. Decree for defendant in each case, and complainants appeal.

Actions by the Updike Grain Company, the Nebraska-Iowa Grain Company, and the Crowell Lumber & Grain Company against the Union Pacific Railroad Company. Judgments for plaintiffs, and defendant brings error against all of the plaintiffs in one writ and against each plaintiff individually.

<p>1. Public Lands (§ 35*) — Homestead Entry — Soldier’s Certificate.</p> <p>Where complainant applied to enter public land, with a void soldier’s additional certificate, and his invalid application was rejected, such application was not an entry of the land, but a mere application to enter, and, having been rejected, complainant was not entitled to additional time within which to obtain another right with which to enter the land as against the holder of a valid application for the land received and pending at the time complainant made his application for additonal time.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 35.*]</p> <p>2. Public Lands (§ 35*) — Soldier’s Entries — Land Department Rules.</p> <p>Act March 3, 1893, c. 208, 27 Stat. 593 (U. S. Comp. St. 1901, p. 1410), provides that where soldier’s additional homestead entries have been made or initiated on the certificate of the Commissioner of the General Land Office of the right to make such entry, and there is no adverse claimant, and the certificate is found invalid for any cause, the purchaser, on making proof of such purchase, may perfect his title by paying the government price for the land. Held, that the statute confines the right to purchase the land to cases where homestead entries have boon made or initiated on a certificate of the Comm&sioner of the General Land Office of the right to make such entry, and then only in casos where there is no adverse claimant, and that the department therefore has no power to make a rule cutting off the right of an adverse claimant.</p> <p>!Iid. Note. — For other cases, see Public Lands, Dec. Dig. § 35.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

■ Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. Petition for naturalization by Namyo Bessho. From an order denying such petition, he appeals.

<p>1. Contracts (§ 164*) — CONSTRUCTION—Distinct Contracts.</p> <p>Where plaintiff contracted with defendants to drill an oil well to the depth of 4,000 foot, under which defendants drilled the well to the depth of 4,190 feet, and plaintiff paid for 4,100 feet, leaving the 90 feet for future adjustment, and on the same day made another written contract with defendants to continue the drilling on different terms to a depth of 5,100 feet, and defendant drilled to a depth of 4,740 feet, when they were unable to drill further because of a cave-in, such contracts were separate and distinct; and the court, in an action for defendants’ breach of the second contract, improperly charged that the jury should consider the contracts together, though the second contract concluded with a clause that all the terms and conditions of the former one, remaining unperformed, should not be affected by the new agreement.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 74,7; Dec. Dig. § 164.*]</p> <p>2. Damages (§§ 120, 218*) — Contract—Breach—Submission to Jury.</p> <p>In an action for breach of a contract to drill an oil well to a greater depth than that required by prior contract, plaintiff’s measure of dam- • ages was the expense or disbursement actually incurred or made by her under the second contract, and for any loss suffered by her as a direct result of the broach, which was not speculative or contingent and was capable of definite ascertainment, and in the absence of such expenses, disbursements, or loss, nominal damages only could be recovered. It was therefore error for the court to leave the question of damages to the jury as a mixed question of law and fact, without any instruction by which the jury should measure the damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 560-562; Dec. Dig. §§ 120, 218.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District-of Pennsylvania.</p> <p>Action by John Zacheyfia against the John Lang Paper Company. Judgment for plaintiff (170 Fed. 617), and defendant brings error.</p>

■Appeal from the Circuit Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (172 Fed. 296), reversing a decision of the Board of General Appraisers (G. A. 6,748 [T. D. 28,-920]), which affirmed the assessment of duty upon certain merchandise imported under tariff act of 1897.

This cause comes here upon appeal from a decision of the Circuit Court (172 Fed. 292), affirming a decision of the Board of General Appraisers (G. A. 6,818 [T. D. 29,297]), which sustained the cob-lector’s classification of certain importations.

Appeal, from the Circuit Court of the United States for the Southern District of West Virginia, at Huntington. Suit in equity by the Columbus Iron & Steel Company against the Kanawha & Michigan Railway Company. Decree for defendant, and complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia, at Lynchburg.</p> <p>Action by the Powhatan Coal & Coke Company against the Norfolk & Western Railway Company. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia, at Lynchburg.</p> <p>Suit in equity by the Houston Coal & Coke Company against the Norfolk & Western Railway Company. Decree for defendant, and complainant appeals.</p>

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

<p>Appeal front the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, affirming- a decision of the Board of General Appraisers, which sustained the action of the collector in assessing duty on certain sardines packed in tins of a capacity of over 70 cubic inches.</p>

<p>Customs Duties (§ 78*) — Classification—Vbbiiuthí—“WrsK”—'“Cordial”— “Liqueur.”</p> <p>Vermuth is not a “wine,” “cordial,” or “liqueur,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 30 Stat. 174 (U. S. Comp. St. 1901, p. 1654), prohibiting an allowance for the leakage of those three articles.</p> <p>LBd. Note. — For other cases, see Customs Duties, Dec. Dig. § 78.*</p> <p>For other rtefiniUons, see Words and Phrases, vol. 8, pp. 7487-7488; vol. 8, p. 7836; vol. 5, p. 4173; vol. 2, p. 1508.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, affirming a decision of the Board of General Appraisers (G. A. 6.875 [T. D. 29.596]), which affirmed the collector’s classification for duty of certain printed taffata, a woven fabric composed of cotton and jute, cotton chief value, counting between 50 and 100 threads to the square inch. The relative values of component materials are 63 per cent, cotton and 37 per cent. jute. The relevant paragraphs of Tariff Act July 24, 1897, c. 11, § 1. Schedule I, 30 Stat. 175, 178, Í79 (U. S. Comp. St. 1901, pp. 1656. 1659, 1661). are:</p> <p>“32'2. All manufactures of cotton not specially provided for in this act. ⅜ *»</p> <p>“305. Cotton cloth * * * exceeding fifty and not exceeding one hundred threads to the square inch. * * * ”</p> <p>“310. The term ‘cotton cloth,’ or ‘cloth,’ wherever used in the paragraphs of this schedule, unless otherwise specially provided for, shall be held to include all woven fabrics of cotton in the piece or otherwise, whether figured, fancy, or plain, the warp and filling threads of which can be counted by unraveling' or other practicable means.”</p>

<p>Bankruptcy (§ 166*) — Compromise Duty or Creditors.</p> <p>When an offer to compromise is made, creditors are not bound to investigate the debtor’s ability to pay the amount offered, and if it is his intent to pay it to all creditors alike, but are entitled to believe that the offer is made in good faith to all creditors, unless something occurs to put them on inquiry.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Bee. Dig. § 166.*]</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The Circuit Court affirmed decisions by the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York. The importations in controversy consisted of turkeys and guinea fowl. The importers contended that they had been improperly classified as “poultry,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 278, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), on the ground that they were within the provision for “birds and land * * * fowls,” in section 2, Free List, par. 494, 30 Stat. 196 (U. S. Comp. St. 1901, p. 1681).</p>

<p>1. Patents (§ 312*) — Infringement—Proof of Infringement.</p> <p>The mere fact that a device may be within the letter of a claim of a patent is not conclusive proof of infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.*]</p> <p>2. Patents (§ 328*) — Infringement—Controller for Electric Motor.</p> <p>The Potter patent, No. 671,232, for an improvement in controllers for elec trie motors, claim 1, construed in connection with the specification, and, as limited thereby, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents. Dec. Dig. § 328.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the New Jersey Patent Company and the National Phonograph Company against Fred G. Schaefer. Decree for complainants (159 Fed. 171), from which they appeal.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Refrigerator.</p> <p>The Quinn patent, No. 539,009, for a combined refrigerator and freezer, helcTnot anticipated, valid, and infringed by the refrigerator of the Ames patent, No. 625,309.</p> <p>2. Patents (§ 312*) — Suit for Infringement — Estoppel.</p> <p>Evidence held insufficient to establish the defense of estoppel to a suit by a corporation for infringement of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 312.*]</p>

<p>In Equity. Suit by the Seeger Refrigerator Company against Harry S. Parks. On motion for preliminary injunction.</p>

<p>1. Evidence (§ 5*) — Judicial Notice — Invention.</p> <p>In determining the question of invention in a patent suit, the court may and should take judicial notice of generally known facts and devices, and of what is shown and illustrated in the ordinary dictionaries.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. i 5;* Latents. Cent. Dig. § ,14.).]</p> <p>2. Patents (§ 32S*) — Invention—Sled Kunner.</p> <p>The Allen patent, No. 797.338, for a runner for sleds, which runners are laterally flexible, so that the sled may be guided by bending them to the right or left by means of a device attached to the front for that purpose, is void on its face for lack of invention in view of the prior art, as disclosed therein and of which the court can take judicial notice, and especially of the prior patent, No. 408,681, to the same patentee for a runner which differs from that of the later patent only, in that the point where the runner commenced to curve upward might be anywhere in front of the forward knees, while in the later patent it is fixed “intermediate” such knees and the front end of the runner.</p> <p>8. Trade-Marks and Trade-Names (§ 75*) — Unfair Competition — Imitation op Patented Article.</p> <p>If the manufacturer of an article copies the form and ornamentation of a patonled article made by another so as to pass off his article as that of such other, the latter may maintain a suit both for infringement of the patent and for unfair competition, and, although the defendant may not use the patented mechanism and therefore not be liable for infringement, he may still be chargeable with unfair competition.</p> <p>ITíd. Note. — For other casos, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. § 75.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. O. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>4. Trade-Marks and Trade-Names (§ 32*) — Dress op Patented Article-Effect op Expiration op Patent.</p> <p>Where an article made under a patent was made in a certain form and. color and with certain ornamentation to distinguish it as the patented article, the exclusive right to such form, color, and ornamentation ceased with the expiration of the patent, and the right to use them passed to the public.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 36; Dec. Dig. § 32.*]</p> <p>5. Trade-Marks and Trade-Names (§ 92*) — Suit for Unfair Compistition —Sufficiency of Bill.</p> <p>A bill charging the defendant with unfair competition in imitating in form and appearance an article made by complainant for the purpose and with the effect of deceiving purchasers, and inducing them to purchase such article as that of complainant, is not subject to demurrer, which admits such allegations, even though complainant’s article was made under a patent which has expired; the effect of the alleged imitation being a matter to be determined on the evidence.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dee. Dig. § 92.*]</p>

Action by the United States against Charles O. Bailey, as Receiver of the Missouri River & Northwestern Railway Company and the Title Guaranty & Trust Company of Scranton, Pa. On demurrer to the complaint.

<p>In the matter of bankruptcy proceedings against Frank Zotti, trading as Frank Zotti & Co. From a referee’s order directing the European American Bank of New York to pay to the trustee the amount of certain checks, the bank files a petition for review.</p> <p>Upon a petition for a review of the referee’s order herein, the question at issue, together with the evidence relating thereto and the finding and order of the referee thereon, were certified to this court on March 25, 1910. The facts are these:</p> <p>On July 14, 1908, a petition in bankruptcy was filed in the United States District Court for the Southern District of New York against Frank Zotti, trading under the firm name of Frank Zotti & Co., and an adjudication in bankruptcy followed. When the bankruptcy petition was filed, and for some time prior thereto, the bankrupt had a .deposit account with the European American Bank of New York City. On or about the day when the bankruptcy proceeding itself was begun, Zotti & Co. drew their check upon their deposit account for $2,000. Several smaller checks, amounting to $190.70, were drawn at about the same time. There is no proof to show just when these checks were given to the respective payees, and it was assumed by the referee that they were delivered before July 14, 1908, when the petition in bankruptcy was fi]ed. The bank certified the $2,000 check on July 15th, and thereafter all the checks, amounting to $2,190.70 were paid through the Clearing House; the bank having no knowledge of the proceeding in bankruptcy against Zotti & Co. The trustee seeks to recover from the bank the said sum of $2,190.70, together with interest from July 15, 1908.</p> <p>The referee ordered the bank to pay the amount in question to the trustee, together with the interest claimed by him, and the costs incurred in the proceeding before the referee.</p>

<p>In the matter of bankruptcy proceedings against the Otto Freund Arnold Yeast Company. Application for the' allowance of a claim for personal taxes assessed against the bankrupt.</p>

<p>Removat, cut Causes (§ 14*) — Action by Nonresident — District to Which Cause is Removable.</p> <p>Where a suit in equity was brought by a citizen of Ohio in the New Jersey Chancery Court against citizens and residents in New York, the cause was not removable by the defendants to the Circuit Court for the Southern District of New York, under Removal Act, March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 507).</p> <p>[Ed. Note.- — For other cases, see Removal of Causes, Dec. Dig. § 14.*]</p>

<p>Removal of Causes (§ 46*) — Diversity op Citizenship — Removal by One op Several Dependants.</p> <p>A cause is not removable by one of several defendants on tbe ground of diversity of citizenship alone, where no separable controversy is alleged or shown.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 90, 91; Dec. Dig. § 46.*]</p>

<p>Bankruptcy (§ 72*) — Corporations—Nature op Business.</p> <p>• A corporation principally engaged in running a laundry is not subject to bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 17; Dec. Dig. § 72.*</p> <p>What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>At Law. Action by William H. Schlottmann against the E. I. Du Font de Nemours Powder Company. On demurrer to complaint.</p>

<p>In Equity. Suit by the Western Union Telegraph Company against the "City of Richmond.</p>

<p>In Admiralty. Suit by the Société des Voiliers Franjáis, owner of the French bark Marthe Roux, against the Oregon Railroad & Navigation Company.</p>

Condemnation proceedings by the United States of America against One Dot of Hand for Bainbridge Post Office and others. On proceedings for the distribution of the agreed value of the land. Judgment awarding the proceeds to Byron B. Bower, Sr., and others.

<p>1. Sales (§ 179*) — Bankruptcy (§ 145*) — Recovery of Purchase Price — Defenses — Failure of Consideration.</p> <p>Under the law of Georgia the purchaser of a machine cannot defeat a recovery of the purchase price, on the ground of failure of consideration because of misrepresentations in its sale as to its effectiveness, where such purchaser accepted the machine and used it for several months until adjudged a bankrupt, and in the meantime renewed one of the purchase money notes; nor can its trustee in bankruptcy avail himself of such failure of consideration for any purpose.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 45G-Í68; Dee. Dig. § 179 ;* Bankruptcy, Dee. Dig. § 145.*]</p> <p>2. Bankruptcy (§ 140*) — Property Purchased on Conditional Sale — Reclamation by Seller.</p> <p>The seller of a machine to a bankrupt under a contract of conditional sale reserving title until payment of the purchase price, which contract was recorded, held entitled to reclaim the machine or its proceeds, when sold by the trustee in bankruptcy, without repayment of -the portion of the price paid, where the machine had been used by the purchaser for several months and until it had deteriorated in value more than the amount of such payment.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>Bill by William D. Waters against Edwin Shinn.</p>

<p>1. Bankruptcy (§ 9*) — Bankruptcy Act — Superseding Stats Law.</p> <p>Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. Comp: St. 1901, p. 3418), does not supersede a state insolvency law as to an insolvent corporal ion not within the bankruptcy act.</p> <p>[Ed. Note.- — For other eases, see Bankruptcy, Cent. Dig. §§ 7-9; Dec. Dig. § 9.*</p> <p>Effect of national bankruptcy act on state insolvency laws and on assignments for benefit of creditors, see note to Carling v. Seymour Lumber Co., 51 C. C. A. 11.]</p> <p>2. Pledges (§ 58*) — Remedies of Pledgee — Election.</p> <p>A.pledgee, on maturity of the debt secured, may, at his election, sell the securities pledged after uoiice to the pledgor, or he may foreclose the pledgor's right to redeem in equity.</p> <p>[Ed. Note.- — 'For other cases, see Pledges, Cent. Dig. § 129; Dec. Dig. I 53.*]</p> <p>3. Pledges (§ 53*) — Pledgee—Enforcement of Collatebal.</p> <p>Where bonds are pledged as security for a debt, the pledgee on the maturity of the debt is not bound to enforce payment of the debt out of the collateral, but has his election either to enforce the collateral when it matures, or proceed personally against the pledgor.</p> <p>["Ed. Note. — For other eases, see Pledges, Cent. Dig. § 129; Dec. Dig. I 53.*]</p> <p>4. Pledges (§ 30*) — Pledged Collatebals — Pkotection—Duty of Pledgee.</p> <p>Where corporate bonds were pledged to secure a debt, it was the duty of the pledgee, in the event that there was either waste or misappropriation of the properties covered by the deed of trust securing the bonds, to use reasonable diligence to secure the fruits thereof and to preserve and care for their payment.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 75-85; Dec. Dig. § 30.*]</p> <p>5. Courts (§ 344*) — Federal Courts — Procedube—Process.</p> <p>Where a hill filed in the federal court to wind up tho affairs of a corporation and distribute its assets also seeks the removal of an acting trustee under a deed of trust to secure bonds, and, in the event of the corporation’s insolvency, the appointment of a receiver, and the cancellation of alleged fraudulent bonds held by nonresidents of the district, such nonresidents may be brought in by constructive service as provided by tbe eighth section of the act of March 3, 1875 (18 Stat. 473, c 138).</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 917; Dec. Dig. § 344.*]</p> <p>6. Courts (§ 492*) — Jurisdiction—Federal and State Courts.</p> <p>Where a bill was filed by the pledgee of corporate bonds in the federal court to close the affairs of a corporation, remove an acting trustee for bondholders, and secure the appointment of another, and, in the event of the corporation’s insolvency, for the appointment of a receiver, and to cancel alleged fraudulent bonds, the federal court acquired jurisdiction of the entire subject-matter,' with the right to determine and administer the trust, regardless of any provisions of the trust deed, and hence such court was not bound to recognize any subsequent order in proceedings afterwards brought in the state court for the appointment of a new trustee in accordance with the deed' of trust.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1345; Dec. Dig. § 492.*]</p> <p>7. Corporations (§ 506*) — Bonds—Proceedings by Pledgee — Parties.</p> <p>In a suit by the pledgee of corporate bonds to protect the security from waste, for the appointment of a new trustee, the termination of the corporation’s business, and the appointment of a receiver, the pledgor, having an equity of redemption in the bonds, was a proper party.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1971-2000;</p> <p>Dec. Dig. § 506.*]</p>

<p>In Admiralty. Libel by the Tweedie Trading Company against the Laguna Company.</p>

In Ac matter of the Bloodworlh-Stembridge Company, bankrupt. On offer of composition and objections thereto. It appears that the Bloodworth-Slembridge Company were adjudged bankrupts on February 13, 1910. On February 21, 1910, at the first meeting of creditors, they were examined in open court, and afterwards submitted in writing an offer of composition of 40 per cent.

<p>At L,aw. Action by P. A. Henderson against J. J. L- Phillips and another to recover damages for breach of contract. On demurrer to petition.</p>

In the matter of bankruptcy proceedings of M. A. Caldwell. On petition to review a referee’s decision refusing to allow the claim of M. M. Caldwell as preferred.

<p>At Law. Action by R. F. Taylor against the Southern Railway Company and another. On motion to remand.</p>

<p>In the matter of bankruptcy proceedings against Daniel V. Rieley and Anna E. Quinn, individually and as copartners doing business under the name of the Naroma Chocolate Company. On objections by Anna E. Quinn to the adjudication.</p>

Action by W. H. Waters, trustee in bankruptcy, against George R. Clay and others. From a judgment finding defendant George R. Clay guilty of contempt, he brings error and also appeals.

Suit in admiralty by Notley Brothers, a corporation, against the steam schooner Gualala, the Gualala Steamship Company, claimant. Decree for libelant, and claimant appeals.

<p>In Error to tEe Circuit Court of the United States for the Southern District of West Virginia, at Huntington.</p> <p>Action by Frederic J. Waddell against the E. I. Du Pont Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Southern District of New York. Cross-actions in admiralty between the Actieselskabet Jason, as owner of the steamship Jason, and John Arbuckle and others. From the decrees, both parties appeal.

Action by the American Can Company against Christopher U. Williams, as receiver of tlie Fredonia National Bank. Judgment for plaintiff for less than the relief demanded (176 Fed. 816), and plaintiff brings error. The plaintiff is a manufacturing corporation organized under the laws of tlie state of New Jersey and doing business in the state of New York and elsewhere.

Action by the Edison Electric Company against the City of Pasadena. Judgment for defendant, and plaintiff brings error.

<p>Action by the Edison Electric Company against the City of Pasadena. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by Mary Jackson, administratrix of the estate of Harry Jackson, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p> <p>The plaintiff brought this action in the state court against the defendant company and Peter Couture for the alleged wrongful act resulting in the death of plaintiff’s intestate. On the ground of diversity of citizenship and an alleged separable controversy the case was removed on the petition of tiu-railway company to the United States court. That court overruled a motion to remand. Thereupon plaintiff dismissed as to Couture by filing an amended petition against the railway company only.</p> <p>Jackson, the deceased, with five others, wore seotiomnen under Couture, their foreman, all of whom were engaged in the maintenance of six miles oí track. The foreman employed and discharged the men as he deemed proper, and directed them in their work. Nearly all of the section was north of the village where they resided. They would leave for their work In the morning, carrying their dinners with them, and return in the evening. In going over their section, and to and from their work, they rode on a hand car of the company; the seetionmen propelling it.</p> <p>Jackson had worked for the company under Couture for about five months. Upon several occasions Con Lure took his shotgun with him to shoot ducks and other game, solely for liis own pleasure and benefit; the gun being in no wise of any service in his work. The gun and magazine held six shells. On the return home after the day’s work on an evening in October, 1007, Couture fired three shots at some birds. He then withdrew two shells, thinking there were none left. Arriving at the station, Couture alighted, leaving the gun on the hand car. Jackson and the other five men went a short distance down the track to where the hand ear was to be put away for the night. In taking the car from the track, in some unexplained way the remaining shell in the gun was exploded, killing Jackson instantly.</p> <p>Fitzgerald was the roadmaster. He employed and discharged the foremen. Fitzgerald went over his division every day or so, giving directions as to the maintenance of the roadway and track, and seeing what work was neces sary and what was done. It is possible that at times he saw the gun on the hand car, but that he did see it there is no evidence, and there is no evidence that ho knew or believed Hie gun was loaded.</p> <p>At tiio close of the evidence, on motion of Hie company, the court directed a verdict for the defendant, and there was a judgment accordingly.</p>

<p>In Error to the District Court of the United States for the District of New Jersey.</p> <p>Oscar E- Lockwood was convicted of violating the oleomargarine law, and he brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Harry Hokasona against the City of Trinidad. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas.</p> <p>Rellis A. Chitwood was -convicted of perjury, and brings error.,</p>

<p>1. Patents (§ 167*) — Construction—Right to Equivalents.</p> <p>The facts that the specification of a patent describes two forms of one element of the combination which may be used in the alternative, while a claim describes but one of such forms, does not preclude the patentee1 from invoking the doctrine of equivalents as to the alternative form.</p> <p>[Ed. Note. — E'or other cases, see Patents, Cent. Dig. § 243; Dec. Dig. § 167.*]</p> <p>2. Patents (§ 328*) — Infringement—Thread Guides fob Spinning Machines.</p> <p>The Houghton reissued patent, No. 12,263 (original No. 753,577), for improved thread guides for spinning or twisting machines, claim 3 construed, and held infringed.</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Northern District of Illinois, "Eastern Division. Suit in equity by the Chicago Railway Equipment Company and John C. Wands against the Perry Side Bearing Company and Uenry D. Eaughlin.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Single Tube Automobile & Bicycle Tire Company against the Continental Rubber Works. Decree for complainant (174 Fed. 50), and defendant appeals.</p>

<p>Patents (§ 328*) — Invention—AiirasYiNG Hoen eoe Talking Machines.</p> <p>The Dennison patent, No. 832,896, for an amplifying horn for talking machines, which consists of a horn of the old form made in two separable and telescoping parts for convenience in shipment, and provided with well-known means for uniting the parts for use, is void on its face for lack of invention.</p>

<p>In Equity. Suit by the Carlson *Motor & Truck Company against the Maxwell-Briscoe Motor Company. On final hearing.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below sustained the importers’ protests against the assessment of duty by Charles F. Gallenkamp, surveyor of customs at the port of St. Louis; the Board making the finding “that the merchandise is printing paper.”

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

In the matter of Walter H. Stewart, bankrupt. On petition of Thomas H. Mitchell for an order of this court directing the trustee to pay to him the sum of $231.11, as moneys in the hands of the bankrupt and of the trustee after his appointment belonging to the petitioner.

In the matter of bankruptcy proceedings against J. B. Agnew. Petition by the F. A. Ames Company for the reclamation of goods delivered under a contract of conditional sale. From a referee’s order denying the petition, petitioner appeals.

In Bankruptcy. In the matter of bankruptcy proceedings against C. J. McDonald & Sons. On petition to review a referee’s order establishing the validity of a mortgage to B. R. Casque, in so far as It attempted to secure the claim of the Bank of Marion.

<p>Smppma (§ 84*) — Llaiulity of Vessel — Injury to Stevedores.</p> <p>A vessel was lying at a pier discharging cargo, and while libelants, who were stevedores engaged in the work, were descending the ladder leading from the deck to near the stringpiece of the pier, the ladder broke, and they fell between the vessel and the pier and were injured. From the evidence it appeared that the ladder was sound and of sufficient strength to sustain considerably more weight than that of the men who were upon it. The ladder had not been inspected nor its position changed for several hours, and the only reasonable explanation of the accident to be dra.wn from the evidence was that the falling tide, and the consequent movement of the vessel downward and away from the pier, caused the bottom of the ladder to catch thereon, twisting and fracturing the sides which were both broken at the same height. Held, that it was the duty of the vessel to prevent such result, which could readily have been done by raising the ladder, and that she was liable for the injuries to libelants.</p> <p>jKd. Note. — For other cases, see Shipping, Cent. Dig. § Dec.. Dig. § 84.*1</p>

<p>1. Corporations (§ .ICO*) — Insolvency and Receivers — Priorities op Claims —“Wages” op Ejrpr.oYfe).</p> <p>Under a statute giving preference in the distribution of the assets of an insolvent corporation to claims for “wages of mechanics, workingmen and laborers,” the wages preferred and the class of persons within the statute depend upon the nature and kind of work done, rather than on the social position or professional character and standing of the person rendering tiie service, and, if the service is such as to bring the person rendering it, within the statute, his compensation, whether large or small, or whether payable by the day, week, month, or year, is “wages,” within the meaning of the statute, and preferred.</p> <p>[Ed. Note. — For «{her cases, see Corporations, Cent. Dig. §§ 2283-228(5; Dec. Dig. § 5(5(5.*</p> <p>Por other deiiuitions, see Words and Phrases, vol. 8, pp. 78(59-7373, 7831.]</p> <p>2. Courts (§ 3(5(5*) — Federal Courts — Authority of State Decision*).</p> <p>In the federal courts the decisions of the highest court of a state as to the meaning and construction of the statutes of the state are controlling and binding, when such highest court has spoken on the subject, and, where two decisions of such court conflict, too latest must control.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-9(58; Dec. Dig. § 3(5(5.*</p> <p>State taws as-rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. O. A. 7J : liiil v. Hite, 29 C. C. A. 553.1</p> <p>3. Corporations (§ 500*) — Insolvency and Receivers — Priority of Claims ■ — Wauls of Employes — “Workingman”—“Laborer”—“Employé.”</p> <p>Laws N. Y. 1897, c. 415. § 8. provides that, “upon the appointment of a receiver of a partnership or of a corporation organized under the laws of this state and doing business tlieiein, other than a moneyed corporation, the wages of the employes of such partnership or corporation shall be preferred to every other debt or claim.” Section 2 define*) the word “em-v ployó” as used in the act as moaning “a mechanic, workingman or laborer who works for another for hire.” •Held that, under the construction placed upon a similar prior statute by the Court of Appeals of the state, an attorney at law employed by an electric company to procure options on certain property and water power sites which the company desired to bny, at an understood compensation of $10 per day and expenses for the time employed in the service, was not a “workingman” or “laborer,” ¿nd hence not an “employe” entitled to preference under the statute.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 566.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7522; vol. 5, pp. 3052-3968; vol. 8, p. 7700; vol. 3, pp. 2309-2377; vol. 8, p. 7049.]</p>

<p>In Equity. Suit by William Love against the Louisville & Eastern Railroad Company and others. On demurrer to petition of Henry Glover, receiver, against Dudley Gregory and others.</p>

Suit by Jeremiah Smith, Jr., as trustee in bankruptcy of one Dunning, to recover assets disposed of in fraud of creditors against the Mutual Life Insurance Company of New York and others.

<p>Corporations (§ 637*) — Forkion Corporations — Noncompt.iance with State Laws — Varidity op Contracts.</p> <p>The provision of General Corporation Law N. Y. (Consol. Laws, c. 23) §§ 15, 16, that no foreign stock corporation doing business in the state shall maintain any action in the state upon any contract made by it in the state, unless prior to making of such contract it shall have procured from the Secretary of State a certificate that it has complied with all the requirements of law to entitle it to do business in the state, does not render void a contract made by a foreign corporation which has not obtained such certificate, but merely makes its possession before the contract is made a condition precedent to an action thereon in a state court; and, the contract being valid, an action may be brought on it in a federal court.</p> <p>[Ed. Note. — For other cases, see Corporations. Cent. Dig. § 2540; Dec. Dig. § 657. *J</p>

Petition to Review and Appeal from the District Court of the United States for the Southern District of New York. In the matter of the Jassoy Company, bankrupt. On petition to review and appeal from an order of the District Court by Ingomar Goldsmith and Frederick Goldsmith. The Jassoy Company is a corporation organized under the laws of the state of New York for the purpose of carrying on a manufacturing jewelry business.

Suit in equity by the Spring- Garden Insurance Company and others against the Amusement Syndicate Company and others. Decrees for defendants Amusement Syndicate Company and the Bank of Topeka against complainants and their codefendants, and the latter appeal.

'Appeal from the Circuit Court of the United States for the EasU ern District of Missouri. The opinion of Trieber, District Judge, in the court below, reads as follows: The court declares the law as to the different matters in controversy in this case as follows: 1.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Samuel Larsen against the O'Rourke Engineering Construction Company. Judgment for defendant for costs, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>Suit by Benjamin Moore & Co., a corporation, against Bouis C. Auwell. Decree for defendant (172 Fed. 508), 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>In the matter of U. W. Day & Co., a corporation, bankrupt. On petition to revise an order of the District Court (174 Fed. 164).</p> <p>This cause comes _here on petition to revise an order of the District Judge, vacating an order o'f the referee appointing a trustee in bankruptcy, and directing that at the new election of trustee no claim shall be voted “which is held uow or has been hold since the petition was filed by any oflicer of the bankrupt, or by Julius Wodiska, or the attorney for the bankrupt.” The opinion of the District Judge is found in 174 Fed. 104. It refers to certain concessions made on the hearing before him. He has certified to this court that the following were such concessions.</p> <p>“Wodiska was the father-in-law of President Dillihof, and was a director of the company. He had indorsed nine notes of the corporation, which were held by Arnstein Bros, up to two days before the day of election of the trustee. On that day Wodiska paid the notes not yet due in full, ns indorser, and took them up. He then caused each of these notes to he transferred to a separate person. No consideration was paid, but there was no evidence that Wodiska retained any beneficial interest in the notes. The holders of these notes gave to Wodiska’s attorneys proxies to vote at the election of the trustee. and those attorneys did in fact vote upon them.”</p> <p>Counsel for the petitioner contends that the District Judge misunderstood him as conceding that Wodiska was a director; tint, if he were not, it makes no difference in the result. All the other concessions are not disputed here.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. Suits in equity by Emile Reizenstein and Edwin M. Goldsmith, respectively, against Elias B. Koopman and another. Decrees for complainants (176 Fed. 922), and defendants appeal. This cause comes here upon appeal from a final decree which overruled exceptions to the master’s report and adjudged in favor of complainant against defendant for the amount found by the master.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Ferry-Hallock Company against William Herman. From an order granting a preliminary injunction, defendant appeals.</p> <p>On appeal from an order of the Circuit Court for the Southern District of New York granting a preliminary injunction restraining the defendant from infringing the claims of letters patent, No. 574,894 dated January 12, 1897, for an improvement in hat packing rings. The decision below is reported in .171 Fed. 437.. The Circuit Judge felt constrained to follow a prior decision of the Circuit Court sustaining the patent in the case of Ferry v. Waring Company, 129 Fed. 389.</p>

Suit in equity by the American Thermos Bottle Company against the Vacuum Specialty Company. Decree for defendant, and complainant appeals. This cause comes here upon appeal from a decree dismissing the bill in a suit brought to restrain infringement of letters patent No. 884,567, granted April 14, 1908, to R. Burger for improvement in double-walled vessels. The opinion of the Circuit Judge is found in 171 Fed. 670.

<p>Patents (§ 318*) — Infringement—Profits Recoverable.</p> <p>On an accounting for profits made by an infringer of the Schroeder patent, No. 546,251, for “a thread package consisting of a folded casing embracing the skein,” the defendant is liable only for the enhanced price received for the silks when sold in the infringing package.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318,*]_</p>

<p>1. Patekts (§ 138*) — Reissues—Time oe Making Application.</p> <p>A patentee must act promptly in applying for a reissue after discovery of the error which makes a reissue necessary, especially after public use of the device covered by the reissue claims, or after such an act as would have been infringement if the reissue claims had been in the original patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. D'ig. §§ 201-203; Dee. Dig. § 138.*</p> <p>Time for application for reissues of patent, see note to United Blue-Jlame Oil Stove Co. v. Glazier, 55 C. C. A. 560.]</p> <p>2. Patents (§ 144*) — Reissues—Review oe Decision oe Commission®».</p> <p>The question whether the whole record shows such inadvertence or mistake as entitles a patentee to a reissue is one of law, and the decision of the Commissioner of Patents thereon will be reviewed by the courts.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 215-217; Dec. Dig. § 144.*]</p> <p>3. Patents (§ 136*) — Reissues—Validity.</p> <p>A reissue patent may broaden a claim in a proper case as well as narrow it; the purpose of the law being to encourage honest reissues and to condemn only those which are fraudulent, unjust, or negligent.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. § 198½ ; Dec. Dig. § 136.*]</p> <p>4. Patents (§ 136*) — Reissues—Grounds oe Reissue — Inadvebtence.</p> <p>The inability of tlie solicitors of a patentee to put the claims into proper form to cover the real invention constituí es a case of inadvertence authorizing a reissue, and in such case the abandonment of such claims on their rejection by the Patent Office was not an abandonment of the invention and did not preclude a reissue and the substitution of claims which properly disclose it.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. § 198½; Dec. Dig. § 136.*]</p> <p>6. Patents (§ 328*) — Validity and Ineiungement — Computing Scale.</p> <p>The De Vilbiss reissue patent, No. 12,137 (original No. 649,915), for a computing scale, is not invalid as departing from the original invention nor because the claims are broader than those of the original patent, being no broader Ilian necessary to cover the real invention shown by the specification and drawings. The reissue also covers a true combination which produces an improved result and discloses patentable invention. Also, held infringed.</p> <p>0. Patents (§ 319*) — Infringement—Increased Damages.</p> <p>Where the validity of a patent is a debatable question and is contested by defendant, the court will not award increased damages for infringement.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 577-586; Dec. Dig. § 319.*]</p>

<p>Suit in equity by the Seeger Refrigerator Company against the White Enamel Refrigerator Company. On motion for preliminary injunction.</p>

<p>Patents (§ 211*) — Inkringeidcnt—Violation oi? Injunction — ‘‘Operate Under a Patent.”</p> <p>A license to “operate under a pateni"’ does not authorize the licensee to buy up infringing articles made by others, who have been adjudged in-fringers, and resell them under its own name.</p> <p>[Ed. Note.™For other eases, see Patents, Dec." Dig. § 211.*]</p>

<p>Bills and Notes (§ 477*) — Actions—Defenses—Want of Consideration— Impeachment of Settlement — Pleading.</p> <p>Defendant executed notes to plaintiff in settlement of an account for materials purchased, and, after some of them matured, made a payment thereon and gave renewal notes for the balance due, and at the same time signed a contract expressly reciting that the arrangement was in full settlement of all matters between the parties. In an action on such notes, defendant filed an answer, alleging that, when the settlement was made, he did not have a copy of the account, but accepted the statement of plaintiff's agent as to the amount of the same, and his promise to send a statement and to correct any errors therein, which promise he did not keep, but fraudulently included in the account a charge for a car load of material which was never delivered, which fact was not known to defendant when he signed the renewal notes and contract. Held, that such answer did not state grounds for impeaching the settlement for fraud or mistake, nor any sufficient defense to the notes, especially where it did not allege the date or any facts relating to the alleged false charge; the allegation of fraud being too general and indefinite, and defendant’s mistake, if any, being due solely to his own negligence.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 477.*]</p>

<p>In Equity. Suit by Isador Strauss and another against the American Publishers’ Association and others. On exceptions to bill of particulars.</p>

<p>L Shipping (§ 84*) — Liaisimty tor Ixjury — Unsafe Passage to Work:.</p> <p>A vessel was lying at a wharf loading lumber; bet decks being from 16 to 20 feet below the level of the wharf. To enable the 'longshoremen doing the loading to reach the vessel, the master ran a plank a foot wide from the wharf to one of the ratlines in the rigging, and libelant’s intestate, who was one of the workmen, fell from such plank to the deck, and was killed. The ship had a gangplank which could have been used and would have been safe, but the master used the plank as more convenient. It was not lashed and apparently tipped up edgewise, causing the fall. Held, that the master did not use proper care in the matter for the safety of the employes, and that the vessel was liable for the death.</p> <p>[Ed. Note. — For other cases, see Shipping. Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84;* Master and Servant, Cent. Dig. § 492.J</p> <p>2. Shipping (§ 84*) — Master's Liability for Injury — Assumption of Risk.</p> <p>The plank having been in use but a day or two at the time of the accident, plaintiff’s intestate could not be charged with assumption of the risk in using it.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84;* Master and Servant, Cent. Dig. § 492.]</p> <p>8. Death (§ 95*) — Amount.</p> <p>An award of $3,500 damages made for the death of a longshoreman 35 years old and earning about $60 per month.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig., §§ 108-115, 120; Dec. Dig. § 95.*]</p>

<p>In Admiralty. Suit by Gilbert Palache, George Aimer Newhall, and Edwin White Newhall, partners as H. M. Newhall & Co., against the steamship Indrapura.</p>

<p>1. Fraudulent Conveyances (§ 47*) — Sales in Bulk — Statutes.</p> <p>Failure to comply with Laws Me. 1905, c. 114, regulating sales of merchandise in bulk, does not render the sale fraudulent as a matter of law.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. 5 34; Dec. Dig. § 47.*]</p> <p>2. Bankruptcy (§ 279*) — Sales—Sales by Bankrupt in Violation oe Bulk Stock Law — Rig-hts oe Bankrupt’s Trustee.</p> <p>Where a sale in bulk by a bankrupt had been made in good faith and for more than the value of the goods, though not complying with Laws Me. 1905, c. 114, regulating such sales, the only aid for which the bankrupt’s trustee could invoke the jurisdiction of a court of equity was to enable him to reach either the goods or the money.</p> <p>[Fid. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p>

<p>■Customs Duties (§ 78*) — Dutiable Weight or Fish-Allowance fob Salt, etc. — “Bakbel.”</p> <p>It appeared that salted herring are dealt in by the barrel, that in wholesale trade a “barrel” means 200 pounds of net flsli, that it is usual to deliver 228 pounds of fish as taken from the hold of a vessel, in accordance with a long-standing custom to allow for salt, scale, and dirt, and that at no time does this extra 28 pounds enter into the marketable weight of the merchandise, field that, in assessing duty on the weight of such flsli under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 260, 30 Stat. 171 (II. S. Comp. St. 1901, p. 1651), a like allowance should be made.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 194 '; Dec. Dig. § 78*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 713, 714.)</p>

<p>1. Customs Duties (§ 85*) — Weight oe Wool on Skin — Burden oe Proof.</p> <p>In attacking the estimate of customs officers as to the quantity of wool on imported sheepskins, it is not enough to show a different weight to have been found by others. It must appear by direct and positive evidence that the method adopted by such officers was incorrect; and, in the absence of evidence to the contrary, it will not be assumed that a test of 8 out of 20,000 skins was inadequate, especially where there is evidence that such test was in accordance with the usual mode.</p> <p>[Ed. Note. — Eor other cases, see Customs Duties, Dec. Dig. § 85.*]</p> <p>2. Customs Duties (§ 85*) — Evidence—“Reasonable Number.”</p> <p>The question of what is a “reasonable number” of skins to test in ascertaining the quantity of wool thereon is one that is to be determined by the testimony of men qualified by experience and knowledge to pass upon that subject. Without such evidence, it will not be held to be self-evident that an estimate based on an examination of 8 out of 20,000 skins was inadequate.</p> <p>TEd. Note. — Eor other eases, see Customs Duties, Dee. Dig. § 85.*]</p>

<p>Deeds (§ 160*)' — Conditions Subsequent — Forfeiture foe Breach- Municipal Corporation-Unauthorized Acts or Officers.</p> <p>The city of Pittsburg, which, under the law of Pennsylvania governing cities of the second class (Act March 7, 1901 [P. L. 20]), can make no contract, except in writing, executed as required by the act, and signed by the mayor and the head of the proper department, cannot he deprived oí a vested title in real estate by the unauthorized acts of individual officers or employes in permitting a use of the land in violation of a condition subsequent annexed to the grant.</p> <p>[Ed. Note.- — For other cases, see Deeds, Cent. Dig. §§ 505-517; Dec. Dig. § 160.*]</p>

<p>Customs Duties (§ 68*) — Americas Goods Reimported — Treasury Regulation's.</p> <p>The regulations for tlie proof of identity of American goods, prescribed by the Secretary of the Treasury under the authority of Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 483, 30 Stat. 195 (U. S. Comp. St. 1901, p. 1080), must be complied with. Congress having provided this mode of proof, no other can be permit ted; this express provision being of the very essence of the exemption permitted by the law.</p> <p>[Bd. Note. — For other cases, see Customs Duties, Dec. Dig. § 68.*]</p>

Bill of John H Powell, trustee in bankruptcy of the John C. H«mes Crockery Company, against the Gate City Bank and another. Decree of dismissal and complainant appeals.

<p> (Syllabus by the Court./ </p> <p>3- Constitutional Daw (§§ 211, 245*) — Equal Protection of Haws — Requisites of Constitutional Classification — Employee’s Inability Raw.</p> <p>The employer's liability law of South Dakota (Daws 1907, c. 219) excepts from the general law of the state all common carriers and all their employes, 'subjects the former to and grants to the latter causes of action for injuries to the employes caused by the negligence of their fellow servants and for those to which their own negligence contributes, while no such liabilities are Imposed upon other employers and no such rights are granted to other employes. The fourteenth amendment to the Constitution forbids any state to “deny to any person the equal protection of the laws.” Held:</p> <p>(1) Legislatures of states for some sound reason of necessity or propriety inherent in the subjects of their legislation may classify those subjects and make laws applicable to one class that are inapplicable to another, but may not make such classifications arbitrarily.</p> <p>(2) There are three indispensable conditions to a constitutional imposition by a state of liabilities or burdens upon and to a constitutional grant by a state of rights or privileges to the members of a class that other members of the state may not bear or enjoy:</p> <p>(a) There must be such a difference between the situation and circumstances of all the members of the class and the situation and circumstances of all other members of the state in relation to the subjects of the discriminatory legislation as presents a just, natural reason for the difference made in their liabilities and burdens and in their rights and privileges.</p> <p>(b) No one who does not belong to the class may be included therein, and all the members (of the class must he treated alike.</p> <p>(c) All who are in a situation and circumstances relative to the subjects of the discriminatory legislation indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the members of the class.</p> <p>(3) The employer’s liability law of South Dakota fulfills neither of these conditions and is violative of the prohibition of unequal laws contained in the fourteenth amendment because there is no sound reason of necessity or propriety for the difference of liabilities and rights it makes between the masters and servants in the class it forms and other masters and servants in the state in the same situation and circumstances relative to its subject-matter as the members of the class, and because it does not subject to its provisions all masters and servants who are in the same situation and circumstances relative to its subject-matter as the.members of the class it forms.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. § 702; Dec. Dig. §§ 211, ¾5.*]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Missouri. In the matter of Derr Bros., a partnership, and Jacob W. Derr and Charles C. Derr, as individuals, bankrupts. On petition by Celsus -Orear, trustee, to review an order of the District Court.

<p>1. Railboads (§ 22f>*) — Regulation of Inteustate Roads — Safety Appliance Act.</p> <p>The safety appliance act (Act March 2, 1893, c. 196, § 2, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) imposes upon a railroad company engaged in interstate commerce the absolute duty of seeing that all cars used in such commerce that are moved by it are, when so moved, equipped with a coupling device in such condition that it will couple automatically by impact, and so constructed that it can be uncoupled from an adjoining car without the necessity of the person uncoupling going between the cars.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 229.*1</p> <p>2. Commerce (§ 27*) — Safety Appliance Act — Cabs Used in Interstate Commerce.</p> <p>A foreign freight car, moved by one railroad company from one state into another, loaded, and there delivered to defendant company, and by defendant to the consignee, and after being unloaded >plaeed by defendant on a switch track, from which it was afterwards redelivered to the original company, again loaded by it, and returned into the state whence it came, was, when on defendant’s switch track awaiting redelivery, a car in use in interstate commerce, and subject to the requirement of the safety appliance act (Act March 2, 1893, c. 196, § 2, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as to equipment with automatic coupling devices in such condition as to be operative, and its movement on such track by defendant, when so defective that it would not couple by impact, was a violation of such act.</p> <p>[Ed. Note. — For other cases, see Commerce, Dee. Dig. § 27.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to 37 C. C. A. 8.J</p> <p>8. Master and Servant (§§ 204, 228*) — Federal Employer’s Diability Act —Injury op Railroad Employé — Movement of Defective Car.</p> <p>Under the employer’s liability act (Act April 22, 190S, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1172]), where a railroad company moved a car being used in interstate commerce having a coupler so defective that it would not couple automatically by impact, as required by Act March 2, 1893, c. 196, § 2, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), and an employé, while attempting to remedy the defect in the performance of his duty, was caught between the cars and injured, the violation of the statute by the company was a contributing cause of the injury, which rendered it liable therefor; the questions of assumption of risk and contributory negligence being immaterial, under sections 3 and 4 of the act.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 204, 228.*]</p> <p>4. Commerce (§ 27*) — Federal Employer’s Diability Act — Servant Employed in Interstate Commerce.</p> <p>An employé of a railroad company, charged with the duty of seeing to the coupling of the cars and of the air brake pipes upon ears standing upon a switch track to be transferred to another company, some of which cars were being used in interstate commerce,, was being employed in interstate commerce, and was within the provisions of the employer’s liability act (Act April 22, 1908, c. 149, 35 Stat 65 [U. S. Comp. St. Supp. 1909, p. 1172]).</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 27.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Condemnation proceeding by the Iaeger & Southern Railway Company against Augustus U. Patterson, Roswell H. Patterson, and Levi A. Patterson, executors and trustees of the estate of Roswell P. Patterson, deceased. Erom the judgment awarding compensation, defendants bring error.

<p>1. Indictment and Information (§§ 11, 22*) — Formal Uequisitks — Name ok Court.</p> <p>Since the territorial courts of Oklahoma exorcised a dual criminal jurisdiction, one over offenses against the United States and the other over offenses against the territory, it was not improper for Indictments relumed in such court for federal crimes to recite that they were fonnd by grand jurors of the “United States” within and for a particular county: nor was it improper that the minutes of the court recited that the indictments were returned to the “United States” District Court of Logan O'odnty, Oklahoma Territory, when in fact the-grand jurors were territorial grand jurors and the court a territorial court.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. §§ 11, 22.*]</p> <p>2. Criminal Law (§ 107*) — Venue—Bill of Rights — Trial in the Place of Commission of Crime.</p> <p>Const. Amend. 6, providing that in all criminal prosecutions accused shall enjoy the right to a speedy and public trial by -an impartial jury of the state and district where the crime shall have been committed, etc., is inapplicable to offenses committed in a territory.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 219; Dec. Dig. §-107.*]</p> <p>3. Criminal Law (§ 107*) — Venue—Constitutional Rights.</p> <p>Const, art. 3, § 2, provides that, when crimes are not committed within-■any state, the trial shall be at such place or places as the Congress may by law have directed, and Oklahoma Amended Enabling Act March 4, 1907, c. 2911, 34 Stat. 1280. provides that pending prosecutions for offenses theretofore committed in territorial times shall be transferred ■ and thereafter conducted in the Circuit or District Court for the district in which they were committed. Held, that the creation of judicial districts by the new state on its admission into the Union was intended to supersede the old territorial subdivisions, and to supersede for jurisdictional purposes the new districts for the old territorial counties and enlarge the area of jurisdiction accordingly, so that an offender, having been indicted for an offense committed within the Western district of Oklahoma, was only entitled to a trial within that district, and not within the county in which the offense was committed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 219; Dee. ' Dig. § 107.*]</p> <p>4. Banks and Banking (§ 257*) — National Banks — Offenses—False Entries — Indictment—Intent to Deceive.</p> <p>An indictment. charging a bank officer with false entries “with the intent to deceive any agent appointed to examine the affairs of the bank” sufficiently designated the person intended to be deceived.</p> <p>[Ed. Note. — -For other cases, see Banks and Banking, Cent. Dig. § 971; Dec. Dig. § 257.*]</p> <p>5. Banks*and Banking (§ 257*) — National Banks — Offenses—False Entries — Description of Book.</p> <p>In a prosecution of a national bank officer for making false entries, an allegation that they were made “in a book of said bank known as ‘Journal K’ ” sufficiently alleged that the book was a book of the association within Rev. St. § 5209 (U. S. C'omp. St. 1901, p. 3497), prohibiting the making of false entries in any book of an association to injure or defraud it or to deceive any officer thereof or agent appointed by the Comptroller to examine the bank’s affairs, etc.</p> <p>[Ed. Note. — For other eases, see Banks -and Banking, Cent. Dig. § 971; Dec. Dig. § 257.*]</p> <p>6. Banks and Banking (§ 257*) — National Banks — False Entries — Statutes — Construction.</p> <p>Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), declares that every president, director, cashier, etc., of any banking association, who embezzles any of its funds, or who makes any false entry in any book, report, or statement of the association with intent in either case to injure or defraud the association, or to deceive any officer or any agent appointed by the Comptroller, etc., shall be guilty of a misdemeanor. Held, that such section contemplated two separate intents, one to injure or defraud the association, and the other to deceive, either of which, when accompariying a forbidden act, constitutes an offense, and hence it was not necessary that an indictment alleging a false entry with intent to deceive should also charge an intent to injure or defraud the association or any oilier company or person.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 971; Dec. Dig. § 257.*]</p> <p>7. Banks and Banking (§ 257*) — National Banks — False Entries — Offenses — Conviction—Evidence.</p> <p>In a prosecution of a national bank officer for making false entries in the bank’s books, evidence held to sustain a conviction.</p> <p>[Ed. Note. — Bor other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>8. Indictment and Information (§ 203*) — Conviction oln Several Indictments — Appeal—'Review.</p> <p>Where the judgment and sentence. under all the consolidated indictments on which accused was tried were the same and ran concurrently, the judgment, would not bo reversed on appeal if any of the indictments were good and sustained by the proof.</p> <p>TEd. Note.- — Por other eases, see Indictment and Information, Cent. Dig. § 651; Dec. Dig. § 203.*]</p> <p>9. Banks and ■ Banking (§ 256*) — National Banks — Pause Entries — Real - Transaction.</p> <p>Officers of a national bank may not make a false entry in the bank's books with intent to deceive in violation of Bev. St. $ 5209 (U. S. Oomp. St. 1901, p. 3197). and escape criminal liability because they go through the idle and deceitful form of making a transaction to which the entry might nominally but not really relate.</p> <p>[Ed. Note. — Bor other cases, see Banks and Banking, Dec. Dig. § 256.*]</p>

Action by the United States against the Mutual Transit Company. Judgment for plaintiff, and defendant brings error. A judgment was rendered against the plaintiff in error, the defendant below, upon an information charging such defendant with the offense of unlawfully and willfully offering, giving, and granting a rebate or concession, in violation of the act to further regulate commerce of February Í9. 1903.

Suit in equity by Annie W. Stanwood and others against the Des Moines Savings Batik and the Des Moines Loan & Trust Company. From the decree both parties appeal.

Suit in admiralty by the Dunlop Steamship Company, Limited, as owner of the streamship Queen Olga, against the Tweedie Trading Company. Decree for respondent (162 Fed. 490), and libelant appeals.

<p>Corporation's (§ 99*) — Issuance op Stock — Suppioiency op Consideration.</p> <p>A contract by a corporation of Minnesota, representing sugar refiners, to issue to plaintiff full-paid sitares of its stock, in consideration for which plaintiff agreed to sell a certain part of such shares of stock to retail merchants for par value in cash, to give them other shares as a bonus, and to establish relations with them by which a co-operative business should be conducted in the manufacture, distribution, and sale of refined sugar, cannot be held void as a matter of law, as in violation of Gen. St. Minn. 1894, § 3415, which provides that corporations having capital stock “shall net issue any shares for a less amount to be actually paid in on each share than the par value of the shares first issued,” nor as against public policy, because in fraud of subscribers to the stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444^-446; Dec. Dig. § 99.*]</p>

<p>Banks and Banking (§ 143*) — Liability op Bank to Depositor pop. Refusal to Pay Check — Damages.</p> <p>A depositor,' whose check is dishonored by a bank when he has funds on deposit to meet it, has a right of action against the bank for a violation of his legal rights, and is entitled to recover at least nominal damages. If he is a merchant or trader, it will be .presumed, without further proof, that substantial damages are sustained, and such damages may be recovered; but, if he is not a merchant or trader, there is no such presumption, and where the act of the bank was without malice, and simply the result of a clerical error, he is entitled to recover only nominal damages, unless special damages are alleged and proved.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 414; Dec. Dig. § 143.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 95*) — Impingement—Use or Trade-Name.</p> <p>An order affirmed, granting a i>reliminary injunction restraining defendant, the “Bates Numbering Machine Company,” from using such corporate name, or the words “Bates Numbering Machine,” which had been for 18 years the trade-name of complainant’s product, in connection with machines of any other make.</p> <p>[Ed. Note. — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dee. Dig. § 95.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by George Bagliu against the Title Guaranty & Surety Company. Judgment for plaintiff (166 Fed. 356), and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Emil Klein, to the use of George Baglin, against the Title Guaranty & Surety Company. Judgment for complainant (166 Fed. 365), and defendant brings error.</p>

<p>1. United States (§ 67*) — Contract tor Public Work — Contractor’s Bond —Action—Limitation—Statutes.</p> <p>Where a federal contract had been performed prior to Act Cong. Peb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1900, p. 948), amending Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), the one-year limitation prescribed by such amendment was inapplicable to an action by a materialman against the- contractor’s surety.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. Principal and Surety (§ 104*) — Contractor’s Bond — Paid Surety — Discharge— Extension oe Time — Presumption cot Injury.</p> <p>The fact that a person furnishing material to a government contract- or extended the time of payment by accepting the contractor’s three months note raised no presumption that the contractor’s paid surety was injured thereby sufficient to constitute a defense to an action by the ma-terialman on the contractor’s bond.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 186-190, 193-195, 197-199, 200; Dec. Dig. § 104.*]</p> <p>3. Principal and Surety (§ 155*) — Paid Surety — Discharge—Extension op Time — Pleading.</p> <p>Where, in an action on a contractor’s bond against his paid surety, defendant’s affidavit of defense urged an extension of time to the principal in discharge of its liability on the bond, and that, pending such extension, receivers were appointed for the contractor, but did not allege that the contractor 'became insolvent during such extension, or that the receivers were appointed because of the contractor’s insolvency, or facts showing that the extension operated injuriously to the surety in any other manner, it was insufficient.</p> <p>[Ed. Note. — For other eases, see Principal and Surety, Dec. Dig. § 155.*]</p>

<p>1. Couets (§ 366*) — Federal Courts — Rules oe Decision — State Statutes —Construction.</p> <p>The scope of a state statute regulating foreign corporations doing business within the state, as determined by the decisions of the highest court of the state, is binding on the federal tribunals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-968; Dec. Dig. § 366.*</p> <p>State laws as. rules of decisions in federal courts, see notes to Wilson v. Perrin, 11 O. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Corporations (§ 657*) — Foreign Corporation — “Doing Business Within State” — Compliance with State Law.</p> <p>Plaintiff, a corporation not registered in Pennsylvania, was engaged in engineering and contracting. It had no factory or workshop where anything was made and did not manufacture the machinery which it designed and sold; its capital being chiefly invested in patterns, drawings, and the good will.of its business, and its usual agreements contemplating a particular plant contracted for in accordance with such an agreement as was in controversy with defendant. Held, that plaintiff’s purchasing and assembling the necessary parts to comxflete the plant it had agreed to construct for defendant, was not interstate commerce, but constituted “doing business in Pennsylvania” where the plant was to be erected in violation of Act Pa. 1874 (P. L. 108), prohibiting foreign corporations from “doing business within the state” without having complied with such act, and hence plaintiff could not recover on the contract.</p> <p>[Ed. Note. — For othér cases, see Corporations, Dec. Dig. § 657.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640-7641.</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & G. Meakin, 33 C. O. A. 585; Ammons v. Brunswick-Balke Collender Co., 72 C. O. A. 622.]</p> <p>NOTE. — The following is the opinion of Buffington, Circuit Judge, in the court below:</p> <p>BUFFINGTON, Circuit Judge. This was a suit by the Buffalo Itefriger-ating Machine Company, a corporation of the state of New Jersey, herein called the “Buffalo Company,” against the Penn Heat & Power Company, a corporation of Pennsylvania, herein called the “Penn Company.” It was brought to recover the consideration provided in a certain contract between the parties, dated January 4, 1906, for the furnishing and erection of machinery by the Buffalo Company for an ice-malting and refrigerator plant of the Perm Company on the premises of the latter. In such suit the Buffalo Company claimed to recover 831,200, being the entire contract price. The Penn Company contended the contract had not been complied with, and claimed damages of 839,495, which would make a certified balance in its favor of ⅜5,295 for damages sustained by reason of the Buffalo Company’s' nonperformance. The jury found a verdict for plaintiff of 826,070, evidently allowing the Penn Company’s offset to the extent of some 87.530. The defendant now moves for a new trial and for judgment non obstante veredicto.</p> <p>As ground for this latter motion they contend that in fulfilling said contract the Buffalo Company, a foreign company, was doing business in the state of Pennsylvania, without registering under the act of that state of April 22, 1874 (P. L. 108), which provides: “It shall not be lawful for any such corporation to do any business in this commonwealth, until it shall have filed in the office of the Secretary of the Commonwealth, a statement under the seal of said corporation, and signed by the president or secretary thereof, showing the title and object of said corporation, the location of its office or offices, and the name or names of its authorized agent or agents therein; and the certificate of the Secretary of the Commonwealth, under the seal of the commonwealth, of the filing of such statement, shall be preserved for public inspection by eac-h of said agents in each and every of said offices.” It is conceded the Buffalo Company did not register. The motion, then, turns on the question whether in fulfilling the contract in question the Buffalo Company was doing business in the state in the sense of that act. At this point we note, so there may be no question hereafter, that in answer to the court’s inquiry at the argument of this motion as to what would he the status of the parties in the event judgment was entered for the defendant, it was stated in defendant’s brief: “That the title to the various parts making up this ice plant remains in the plaintiff company (see page 17 of the contract), and, upon entering judgment for the defendant, the plaintiff will be entitled to retake the said plant and pay to the defendant the amount of its damages, suffered by reason of the default of the plaintiff.”</p> <p>Turning, then, to the question whether the Buffalo Company in the fulfilling of this contract was doing business in the state of Pennsylvania in the sense of this act, we inquire what the contract in question provided and what the company did in the fulfillment thereof. Much stress has been laid on the question whether this contract was a New York or a Pennsylvania one, but that question is not to our mind specially material, certainly not controlling. If the making of this contract was the only act of doing business in the state, it might be material; but the important question is the significance of acts done in pursuance of the contract which is here sought to be enforced. In point of fact the contract was in the form of a proposition of the Buffalo Company, signed by W. J. Woodcock, its engineer, who had negotiated the same, and was accepted by the Penn Company. The contract provided it was not valid until approved and signed by an executive officer of the Buffalo' Company. Por that purpose it was mailed to New York, where this was done. By 1he contract the Buffalo Company agreed “to furnish and erect on your premises at Wilkinsburg” a 50-ton ice plant, which consisted, inter alia, of two large steam engines with a gas compressor plant, etc., the shipping weight of which was some 60 tons: ammonia condenser; ammonia separator; brine cooler: piping connections, etc., the shipping weight being some 27 tons; freezing, thawing, and cold water pumps, air blowers, gauges, shipping weight 2 tons; six freezing tank's, weighing 41 tons, together with fore-coolers, brine tanks, brine piping, and other appliances incident to such a plant in complete working order. The Buffalo Company agreed “to furnish the skilled and common labor, tools, and plans necessary for the erection of our work. It is our intention to furnish the herein specified plant complete, and we will, therefore, with the exception of the parts to be provided by you, herein mentioned, furnish and erect plant in complete working order. Upon completion of our work we will furnish erecting engineer for a- term of 30 days to instruct your man in the operation of the machinery, and to make a test run of the same, you furnishing all the necessary supplies and labor. You [the Penn Company] are to provide a suitable room for our employes for use as a storage and work room, and are to permit them free access to every part of your premises where work is to be done.” It is agreed that W. J. Woodcock (who made and signed the contract for the Buffalo Company) “will be the constructing engineer and have charge of the work from the start until after the test has been made.” The Buffalo Company has no manufacturing plant of its own. It had various parts of the ice plant constructed by other parties and delivered at the Penn Company’s premises, where they were erected, coupled, and connected into an operative system by the employes of the Buffalo Company, who spent several months in so doing. The extent of the work done by the Buffalo Company in erecting and connecting Ilia different parts into a unitary system is possibly as well shown by the facts that the testimony bearing on performance by the Buffalo Company covered some 500 pages of this record.</p> <p>It seems to ns unite clear.that it cannot be gainsaid that the Buffalo Company, as a mat ter of fact and as a matter of law, under the Pennsylvania decisions construing its own statutes, was doing business in the state, and as such should have registered. In support of this conclusion we refer to the Pennsylvania cases of .rohnson v. Hilling's. 103 Pa. 501, 49 Am. Rep. 331, Thorne v. Travelers’ Insurance Co., 80 Pa. 29, 21 Am. Rep. 89, Lasher v. Stiw-son, 145 Pa. 30, 23 A-tl. 552, and Delaware Company v. Passenger Ry. Co., 201 Pa. 25, 53 All. 533, cited by the Circuit Court for the Western District of Pennsylvania in Pittsburgh Company v. West Side Belt'll. R. Co. (C. O.) 151 Fed. 125, and to the additional case of Fertilizer Co. v. Kelly, 30 Pa. Super. Ct. 505. Great stress is laid by counsel for the plaintiff on the case of He La Vergne Co. v. Koliseher, 214 Pa. 400, 63 Atl. 971, and the Wolff Dryer Co. v. Bigler, 192 Pa. 406, 43 Atl. 1092. In (he former case, as the Supreme Court held ihe De La Vergne Company had registered, it was not necessary to, and the court did not, pass on the question whether it was doing business and registration was necessary. In the other ease suit was not to recover for work done under a contract — that is, to enforce the contract — but to recover possession of property, title to which it was alleged had not passed under the contract. Moreover, in that case the Wolff Company had simply contracted to sell the parts of the dryer, but had not undertaken to or done any erection work. Manifestly, neither of the cases are controlling here.</p> <p>The rule of the defendant will therefore be made absolute, and the clerk will enter judgment non obstante veredicto in favor of the defendant</p>

<p>Appeal from the Circuit Court of the United States lor the District of Massachusetts.</p> <p>Suit in equity by the D. & W. Fuse Company against the Chase-Shawmut Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents (§ 110*) — Date op Application — Second Application por Same Device.</p> <p>A second application for a patent, describing the same device as a former ono, which is abandoned with the acquiescence of the Patent Office, will he treated as a continuation of llie first, and as relating back to the date of its filing, for the punióse of a claim of prior public use more than two years before the second application was filed, but loss than two years before the first ivas filed, even though the patentee requested the suppression of the first.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 153; Dec. Dig. § HO.*]</p> <p>2. Patents (§ 310*) — Suit for Infringement — Pleading.</p> <p>The complainant in a suit for infringement should advise ihe defendant by allegations in his pleading of the date when the application for the patent was filed, when a date earlier than that of the application on which the patent was granted is relied on to meet a defense of prior public use.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 310.*]</p> <p>3. Patents (§ 51*) — Invention—Nature op Patentadle “Invention.”</p> <p>A theory or mental conception of a new device is not “invention” within the patent law, and the date of an invention cannot be carried back of the time when it was embodied in a model or drawing, or some concrete form would enable those skilled in the art to construct the device.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. § 72; Dec. Dig. § 51.* .</p> <p>For other definitions, see Words and Phrases, vol. 4, pin 3749-3754.]</p> <p>4. Patents (§ 81*) — Pbiob Use — Evidence to Establish.</p> <p>While prior use, to invalidate a patent, must be established beyond a reasonable doubt, the testimony must be weighed in a patent cause as in other causes, and the court is not permitted to reject arbitrarily the testimony of respectable witnesses because of mistakes and differences in nonessentials.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 104; Dec. Dig. § 81.*]</p> <p>5. Patents (§ 328*) — Anticipation—Inebingejient—Fluid Pbessube Bbaku Appabattjs.</p> <p>In the Corrington patent, No. 762,282, for a fluid pressure brake apparatus capable of operating as an engine brake system in connection with the regular automatic brake system on the cars, either jointly or alternately, holding brakes on the engine while releasing and recharging on the cars, or vice versa, claims 1 to 6, inclusive, which are broad claims, are void for anticipation, an apparatus embodying all the essential principles of that of the patent having been in actual use prior to the date of the patentee’s invention; and in view of the invalidity of the generic claims, those remaining, Nos. 7 to 14, inclusive, must be limited to the structures described. As so limited, such, claims, if not anticipated, held not infringed.</p>

<p>In Error to the Circuit Court of the United States for the Eastern. District of New York.</p> <p>Action by Richard.E. Ee Brocq against William H. Childs and Walter A. Forman. Judgment for plaintiff, and defendants bring error.</p>

Action by the United States, to the Use of the J. B. Van Server Company, against the United States Fidelity & Guaranty Company and another. On rule for judgment for want oí a sufficient affidavit oE defense.

In Admiralty. Suit by the Vancouver Transportation Company against the steamboat Cascades, and cross-libel against libelant as owner of the steamboat Lurline.

<p>In the matter of the bankruptcy of the Tysor-Cheatham Mercantile Company. On petition to review findings of a referee denying the validity of a mortgage in intervention proceedings by W. R. Bean, mortgagee.</p>

<p>1. INJUNCTION (§ 133*)-PBELIMJXAKY iNJUNOTrONS — Mandatoby Injunction.</p> <p>The object of a preliminary injunction is to preserve tile status which exists at the time the bill is filed, and a mandatory injunction will not he granted on a preliminary hearing, except in rare instances and in a clear case.</p> <p>[Ed. Note. — -For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 333.*]</p> <p>2. Injunction (§ 133*) — Pkeijminaky Injunctions--Mandatory Injunction.</p> <p>Defendant, while in the einploy of complainant, signed a contract by which he agreed that, in consideration of his employment, should it terminate, he would not for a period of three years enter the employment of any one engaged in a similar line of manufacture, nor use Ms knowledge of the secret processes, etc., of complainant for the benefit of any such person. The continued employment of: defendant at the same rate of pay was the only consideration for such agreement. Later defendaut quit and entered the employ of a rival concern, and complainant filed a bill for an injunction to restrain him from violation of his contract. Defendant denied that he had- disclosed or intended to disclose any of the trade secrets of complainant, in which lie was supported by affidavits of his employers. Held that, while complainant might have a preliminary injunction restraining such disclosure, in view of the doubtful questions of law and fact involved, the court would not, in advance of final hearing. grant a mandatory injunction requiring defendant to leave his employment.</p> <p>[Kd. Note — For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 383.*</p> <p>Restraining breach of contract by employs to not engage in competing business, see note to Harrison v. Glucose Sugar Refining Co., 58 O. C. A. 492.]</p>

In Admiralty. Suit by Israel Snow and others against the schooner Oliver Ames. On claim of the mate, David A. Morgan, for wages. Lien allowed priority for part of wages due.

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

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

<p>Bail (§ 73*) — Deposit in Lietj of Bail — Attachment of Deposit.</p> <p>Where defendant, charged with a criminal offense against the United States and held to bail, has, pursuant to an order of the court, deposited a sum of money in its registry to secure his appearance, it would seem to be 'against public policy to permit the United States to attach the deposit in a civil suit, and in any event the defendant is entitled to recluiré the action to proceed to trial without delay. ' •</p> <p>[Ed. Note. — For other cases, see Bail, Dec. Dig. § 73.*]</p>

<p>In Admiralty. Suit by Virgil K. Pollard, by Edward N. Deady, his guardian ad litem, against the steamer Ruth. Decree for libelant.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>Bill by Thomas B. Stuart and Charles A. Murray against the Union Pacific Railroad Company. Decree for defendant, and complainants appeal.</p>

Action by Stephen Bassett against the Rocky Mountain Bell Telephone Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error was engaged in digging ditches.in the streets of Butte wherein to place conduits for its telephone wires. The ditches were dug to the depth of about 5 or 5½ feet. The defendant in error was an employe of the plaintiff in error. He bad been working in the ditch on Broadway.

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina, at Wilmington.</p> <p>Suit in equity by the New Jersey & North Carolina Land & Lumber Company and others against the Gardner-Lacy Lumber Company and others. Decree of dismissal (161 Fed. 768), and complainants appeal.</p>

Action by Daniel A. Davis and Elliott M. Eldredge, executors of Orris K. Eldredge, deceased, against the Bessemer City Cotton Mills and John A. Smith. Judgment for defendants, and plaintiffs bring error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by the United States against the Bagnell Timber Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Thaddeus Davids Company against Cortland I. Davids and another. Decree for defendants (165 Fed. ‘792), and complainant appeals.</p> <p>The bill alleges, in substance:</p> <p>(1) That the complainant is, and for many years has been, the owner of a trade-mark used in interstate commerce.</p> <p>(2) That in 1906 the complainant duly applied for the registration of said trade-mark in the Patent Office under Trade-Mark Act Feb. 20, 1905.</p> <p>(3) That a certificate of registration was duly issued to the complainant which is made profert of [By this certificate it appears that the alleged trademark consists of the word “Davids’ ”].</p> <p>(4) That said trade-mark' had been actually and exclusively used by the complainant and its predecessors in business as a mark to distinguish their goods for more than 80 years prior to said registration.</p> <p>(5) That the defendants 'have infringed said trade-mark.</p> <p>The bill also contains allegations of unfair competition; but, as the complainant and the defendant are citizens of the same state, it was conceded that those allegations could not, in themselves, make out a ease within the jurisdiction of the court.</p> <p>The defendants demurred to the bill upon the ground, primarily, that the alleged registered trade-mark was invalid. The defendants also demurred to the prayers for relief.</p>

<p>In Error to the Circuit Court of the United States for the Southern ■District of Iowa.</p> <p>Action by the Under-Feed Stoker Company of America against the Savery'Hotel Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by the North Packing & Provision Company against the American Surety Company of New York. Judgment for plaintiff, and defendant brings error.</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 Dey Time Register Company against the W. H. ' Bundy Recording Company. Decree for defendant, and complainant appeals.</p> <p>This cause comes here upon appeal from a decree dismissing the bill in a suit for infringement of letters patent 786,011, issued March 28, 1905, to John Dey and Alexander Dey for improvements in time recorders. The opinion of the Circuit Court will be found in 169 Fed. 807.</p>

<p>1. Patents (§ 129*) — Assignments—Effect as Estoppel.</p> <p>One who actively participates in the sale of a patent, and receives a share of the proceeds, and all in privity with him, are estopped to deny its validity as against the purchaser or his assigns, and a corporation subsequently organized by him is so in privity with him and affected by such estoppel.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182½-186; Dee. Dig. § 129.*]</p> <p>2. Patents (§ 93*) — Persons Entitled to Patents — Cokpobatjon and Of-riCKK.</p> <p>The fact that a patentee, when he made the invention of the patent, was general manager and a director of a corporation, does not give the corporation any rigid or interest in the patent, in the absence of an agreement therefor.</p> <p>[Ed. Note.- — For other eases, see Patents, Cent. Dig. § 125; Dec. Dig. § 93.*]</p> <p>8. Patents (§ 168*) — Construction—-Acquiescence in Ruling op Patent Office.</p> <p>Where an applicant for a patent materially modifies a claim in accordance with a requirement of the Patent Office, it will not be construed as it. would have been it it had not been so modified, even though the modification was made under protest, or the decision of the Patent Office was erroneous.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 243½-244; Dec. Dig. § 168.*]</p> <p>4. Patents (§ 235*) — '“Infringement”—-Identity of Devices.</p> <p>The performance by a device of 1 lie same function as the device of a patent does not alone constitute infringement, hut it must also be the mechanical equivalent, performing the function in substantially the same way.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 871; Dec. Dig. § 2Bo.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3590-3594.]</p> <p>5. Patents (§ 328*) — Infringement—Watek-Cooled Grates.</p> <p>The Johnson patent, No. 778,749, for a grate, having hollow bars adapted to be cooled by circulation of water through them, is not infringed by the grate of the Parkison patents, No. 828,769 or No. 834,932.</p>

<p>Patents (§ 328*)- — Infringement—Piano Plater.</p> <p>The Wright patent, No. 596,730, for an improvement in automatic musical instruments which are controlled by rolls of perforated paper, construed, and held not infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Harvey A. Moyer against the Metal Stamping Company. Decree for defendant (169 Fed. 825), and complainant appeals.</p>

<p>1. Patents (§ 160*) — Construction—Reverence to Drawings.</p> <p>Tlie drawings accompanying tlie specification of a patent and referred to in the descriptive parts thereof will be examined to ascertain the true meaning of the terms used in describing the invention.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. § 235; Dec. Dig. § 160.*]</p> <p>2. Patents (§ 72*) — Anticipation—Pbiob Patents.</p> <p>The lack of interchangeability of parts in'two combinations is an important factor in determining the question of equivalency or mechanical suggestion, where lack of novelty and invention is claimed because of a prior patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 86-91; Dec. Dig. i 72.*]</p> <p>3. Patents (§ 26*) — Invention—New Combination oir Old Elements.</p> <p>A new combination of old elements is entitled to the protection of a patent, where it produces a new and useful result, although each old element, as seen in a prior device may have been suggestive of the use which could be made of it in the new.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 29; Dec. Dig. § 26.*]</p> <p>4. Patents (§ 136*) — Reissues—Patents Subject oe Reissue.</p> <p>It is not necessary that a patent should be wholly inoperative or invalid to justify a reissue; but if it is so broad as to be of doubtful validity, and the defect was due (o inadvertence, the patentee is entitled to a reissue to limit his claims to his actual invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 198½; Dec. Dig. § 136.*]</p> <p>5. Patents (§ 138*) — Reissues--Time oe Making Application.</p> <p>Where a reissue narrows the claims of the original patent, mere delay In applying for a reissue does no more than suggest laches, which is negatived where there was nothing on the face of the original patent nor any reference by tlie Patent Office to charge the patentee with notice that his claims were too broad, and he acted with reasonable diligence when put to inquiry as to whether they were confined to his actual invention; and what is reasonable diligence depends on the particular circumstances of the case.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 201; Dee. Dig. § 138.*</p> <p>Time for application for reissue, seo note to United Blue-Flame Oil Stove Co. v. Glazier, 55 O. G. A. 560.]</p> <p>6. Patents (§ ,138*) — Reissues—Validity—Laches.</p> <p>A delay of 12 years before applying for a reissue held not to bar a pat-entee by laches, where the device manufactured and sold by him was in strict conformity with that shown in his patent, and his exclusive right, was acquiesced in by the trade for more than 10 years, and it was only when after that serious infringement commenced that he was put upon notice that his claims were probably invalid as too broad.</p> <p>[Ed. Note. — For oilier cast's, see Patents, Cent. Dig. § 203; Dec. Dig. § 138. *]</p> <p>7. Patents (§ 138*) — Reissues—Validity—Intervening Rights.</p> <p>The doctrine of intervening rights cannot be invoiced to invalidate a reissue patent by an infringer of the device disclosed by the original patent and protected by the narrower claims of the reissue.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 202; Dec. Dig. § 138.*]</p> <p>8. Patents (§ 328*) — Reissue—'Validity and Infringement — 'Window.</p> <p>The Giesey reissue patent, No. 12,405 (original No. 488,761), for a window having a centrally-pivoted horizontally-swinging sash, is within the invention disclosed by the original patent, was not barred by laches, and is valid. Also, held infringed.</p> <p>9. Patents (§ 16*) — “Invention”—What Constitutes.</p> <p>That which influences the mental conception, and leads one, step by step, until his device is successfuly produced, is “invention,” as distinguished from mere “mechanical skill.”</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3749-3754.]</p>

<p>In Equity. • Suit by the Western Pocahontas Corporation against Abraham Acord and another. On motion to quash execution.</p>

The El Paso & Northeastern Railroad Company was indicted for a criminal offense. On demurrer to indictment. The indictment charges, in effect, that the defendant unlawfully transported two head of cattle from the territory of New Mexico into El Paso, Tex.; their ultimate destination being Wilcox, Ariz.

<p>In Admiralty. Suit by Chester A. Dady ag'ainst the steam tug Raymond and owners.</p>

In the matter of the bankruptcy of R. E. Peacock. From an order of the referee on a petition to expunge proof of debt and for other relief, au appeal is taken.

<p>Collision (§ 53*) — Overtaking Vessels — Fault of Overtaking Vessels.</p> <p>A collision between two steamers passing down the Willamette river from Portland, wbicli occurred when the overtaking vessel was attempting to pass the one ahead, held due solely to the fault of the overtaking vessel under the rules which required her to keep out of the way of the other and place on her the burden of proof, it being shown by the evidence that, although there was ample room to pass, she crowded against the overtaken vessel, and then throwing over her wheel turned the overtaken vessel completely around, breaking her shaft and doing her serious injury.</p> <p>[Ed. Note. — For other eases, see Collision, Dec. Dig. § 53.*</p> <p>^Overtaking vessels, see note to Pile Rebecca, 60 O. C. A. 254.]</p>

<p>MASTER AND SERVANT (§ 111*)-INJURIES TO SeRVANT — FAII/ORE TO FURNISH Proper Aimu.tancks — Sakety Appliance Act — Car When Not Used in Interstate Commerce.</p> <p>Where the coupling apparatus of a ear engaged in interstate commerce was found, on inspection, to be defective, and while it was being shifted about for the purpose of sending it to a shop for repairs a br alienism was injured in an accident that would not have occurred but for the crippled, condition of the coupling apparatus, the master was not liable under safely appliance acts (Act March 2, 1893, c. 196, 27 Stat. 531 LU. S. Comp. St. 1901, p. 3174); Act; April 1, 1896, c. 87, 29 Stat. 85; Act March 2, 1903, c. 976, 32 Stat. 913 [U. S. Comp. St. Supp. 1909, p. 1143]).</p> <p>[F.d. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217; Dec. Dig. § 111.*]</p>

<p>At Law. Action by Maria Michele Di Paolo against the Laquin Lumber Company. On demurrer to plaintiff’s statement.</p>

<p>Bankruptcy (§ 340*) — Property Passing to Trustee — Right oe Seller to Reclaim: Goods — Stoppage in Transitu.</p> <p>Where goods previously ordered were shipped to a bankrupt after his bankruptcy and delivered to his receiver, who paid the freight and took possession of them, it was then too late for the seller to lay a foundation for reclaiming them from the trustee by an attempted exorcise of the right of stoppage in transitu.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>1. AoxioN (§ 13*) — Persons Entitled to Sue — Action on Contract.</p> <p>Who may maintain a suit is a matter of law, not subject to be controlled by the conventions of parties; and the parties to a contract cannot confer on a third party the naked right to sue thereon.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 76; Dec. Dig. § 13.*]</p> <p>2. Corporations (§ 479*) — Foreclosure op Corporation Mortgage nr Trustee — Deficiency Decree — Merger of Cause of Action on Bond.</p> <p>The trustee in a corporate mortgage securing bonds, who is neither the owner nor payee of the bonds, cannot maintain an action at law thereon, and the bonds are not merged in a deficiency judgment taken by him against the corporation in a suit to foreclose the mortgage.</p> <p>lEd. Note. — For other cases, see Corporations, Cent. Dig. § 1872; Dec. Dig. § 479.*]</p> <p>3. Bankruptcy (§ 331*) — Persons Entitled to Prove Claims — Bonds of Corporation — Proof by Mortgage Trustee of Deficiency Decree.</p> <p>A bankrupt corporation had issued and sold bonds secured by mortgage to a trustee on all its property. The mortgage authorized the trustee to resort to any appropriate proceedings, legal or equitable, for the enforcement of the mortgage or bonds “against or with reference to any property which is or may become security for the payment of the bonds,” or against the company to collect and recover for the owners of the bonds the principal and interest due thereon, but contained a waiver of any right of the bondholders or trustee to recover from the officers or stockholders of the company. It further provided that any remedy there! y conferred on the trustee or the holder of any bond should be cumulative and in addition to every other remedy given or existing at law or in equity, or by statute. Prior to the bankruptcy the trustee brought suit to foreclose the mortgage, sold the property, and took a deficiency decree, which it proved as a debt against the estate in bankruptcy; that being the only -claim proved. The trustee in bankruptcy commenced a suit in another state against the stockholders, who -were also the officers and promoters of the corporation, to recover on unpaid subscriptions, claiming that the slock was issued without consideration, and also that fraudulent representations were made by the defendants to the bondholders when they purchased the bonds. Hold, that ihe cause of action arising on the bonds was not merged in the deficiency decree taken by the trustee, such right of action being in the bondholders, and that since the trustee in bankruptcy in his suit against the stockholders had no higher right than the creditors he represented, and the right of the mortgage trustee to maintain such a suit in behalf of the bondholders was doubtful, the bondholders were entitled to prove the bonds directly in their own names as debts of the estate.</p> <p>LEd. Note. — For other (‘ases, see Bankruptcy, Oont. Dig. § 520; Dec. l>ig. § 331.*]</p> <p>Adams, Circuit Judge, dissenting.</p>

Petition of J. C. Piles & Co. and others in the matter of the estate of Louis R. Hough, bankrupt. From an order of the District Court, reversing a finding of the referee against the petitioners, John L. Gillespie, trustee in bankruptcy, appeals. J. C. Piles & Co. and others file a petition fof review.

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

<p>Appeal from the Circuit Court of the United States for the Southern Division of the District of Idaho.</p> <p>Suit in equity by Solomon Hopkins against Mary M. Hopkins, as executrix of the will of Eli M. Hopkins, deceased, and in her own right and as lieir at law and devisee of said Eli M. Hopkins. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by the Western Union Telegraph Company against Abraham V. D. Pelhemus and others. Decree for defendants (167 Fed. ¾31), and complainant appeals.</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Action by Warner U. Grider against Annie B. Wood and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Master asto Servant (§ 287*) — Action por Death op Braiceman — Questions por Jury — rNCOin>ETEis,CY of Fellow Servant.</p> <p>In an action against a railroad company to recover for the death of a brakeman, who was killed on the mountain division of defendant’s road while helper engines were being taken into the train on which he was head brakeman to assist up a grade, there was evidence that his death was caused by the action of the engineer of the rear engine in moving the rear section of the train up against the forward section without receiving the signal required by the rules and at a speed of about eight miles an hour. There was also evidence that the operation of trains on such section of the road, and especially the breaking and making up of trains, required engineers who were not only competent and careful, but who understood that feature of the business, and that the most competent and careful men were usually assigned to the mountain service. It was also shown that the engineer in question had only been on the road as a train engineer for three months, and then not on the mountain division, and that previously, while acting as fireman and engineer of a switch engine, he had been once suspended and twice disciplined by defendant. Held, that such evidence was sufficient to entitle plaintiffs to go to the jury on the issue of defendant’s negligence in employing an engineer who was not competent for the position to which he was assigned.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1.051-1067; Dec. Dig. § 287.*]</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Idaho,</p> <p>Action by the United States against the Bunker Hill & Sullivan Mining & Concentrating Company. From the judgment, defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri.</p> <p>In the matter of Adolph E. Neumann, bankrupt. From a decree of the District Court, Annie Neuman appeals.</p>

Suit in admiralty by Jacob Elzer, Sr., administrator of the estate of Rudolph Elzer, against the schooner Marshall O. Wells. Decree for libelant (172 Fed. 984), and claimant, the Perth Amboy Dry Dock Company, appeals.

Petition for Revision of Order of the District Court of the United States for the Northern District of California. In the matter of James Amoratis, bankrupt. On petition to revise order denying priority to claim of Rauer’s Raw & Collection Company.

Suit in admiralty by E. Dubedat and A. Ratye, partners, as Pascal Dubedat & Co., against the steamship Soyo Maru, of which Toyo Risen Kaisha, a corporation, is claimant. Decree for libelants, and claimant appeals.

<p>Appeal from the Circuit Court of the United States for tlie Eastern District of Missouri.</p> <p>Suit in equity by the Sanitary Street Flushing Machine Company against the St. Louis Street Flushing Machine Company, William Rati-can, Stephen J oseph Ratican, and J ames C. Wilson. Decree for complainant, and defendants appeal.</p>

Appeals from the Circuit Court of the United States for the Western District of Michigan. Suits in equity by the Dumber Anti-Stain Company against George Nester, Margaret Nester, John F. Nester, Frank B. Nester, and Mary Ann Bourlce, and the same against the South Arm Dumber Company, William Hibbee, and Richard P. White, respectively. Decree for de-. fendants in each case, and complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Schmertz Wire Glass Company and the Mississippi Wire Glass Company against the Highland Glass Company. Decree for complainants, and defendant appeals.</p> <p>The following is the opinion of the Circuit Court, by Buffington, Circuit Judge:</p> <p>This is a bill in equity filed by the Schmertz Wire Glass Company and the Mississippi Wire Glass Company against the Highland Glass Company. It charges infringement of claims 1, 2, 6, and 7 of Sehmertz’s reissue patent No. 12.443 of January 30, 1906 (original patent No. 791.216 of May 30. 1905), and claims 1, ¾ 3, and 4 of same patent No. 791,217 of May SO, 1905. The defenses are invalidity of both patents and noninfringement. These patents have been before this court in several cases and their validity decreed. As a discussion of the art and the questions affecting the validity of the patents is reported in the opinion of this court at 168 Fed. 73, we refrain from restating the same in this ease and content ourselves with making such opinion part hereof by reference. Since the filing thereof these patents were before the Circuit Court of the Northern District of Illinois, and in an opinion reported in 178 Fed. 977, Judge Sanborn stated they have been considered by this court and “the patents held valid and meritorious. With this conclusion I agree.” We will therefore in the present case dispose of the validity of the patents on our opinion already filed and confine ourselves to the question of infringement. On this question the respondent plants itself on the proposition that its process — -which to aid in reference we call the Highland process — is what has been called through all this litigation the European process. Following this leading, we will in this opinion confine ourselves to two propositions, namely: First, that the Highland process is not the European process; and, secondly, that the Highland process is the process of Schmertz.</p> <p>To determine what a particular process really is, two things must be considered and ascertained: First, the process means; and, second, the process product. In the former ease we ascertained, after a full examination, these features of the European process and such process means and process product are thus described: “Through this protracted litigation we have seen no reason to change the view we took of Sehmertz’s process when it first came before us in Schmertz v. Appert (0. G.) 144 Fed. 117, where we said: ‘Appertand Schmertz seem to have been working at substantially the same period in developing the wire glass process: the former in France and the latter in America. It' related to casting rough plate glass for skylight and other purposes, having a wire mesh embedded in the center. This had been done by wíiat is known as the “European method,” which consisted in first casting the lower part of the plate, then placing the wire mesh upon it, then casting the upper part thereon. The diffiralty with that process was that the plate when finished consisted of two separate strata, the lower of which had so far congealed or solidified before the upper half was cast that the two would not unite and form a homogeneous whole. The result was they separated and split.’ ” This in brief space, is the European process. The means were such that the lower half “had so far concealed or solidified before the upper half was cast that the two would not unite and form a homogeneous whole.” The product was such that the parts “separated and split.” The reason for this is quite plain. Within a short space of time after molten glass is poured and rolled, -there forms upon it a glazed or congealed surface. This is known as its “skin.” When once the “skin” is formed, it fixes, so to speak, the individuality of the plate. If thereafter another mass of molten glass is poured upon the “skinned” surface of the first while the two may be pressed and indeed welded together, they do not unite so as to form a homogeneous whole. This was what the European or sandwich method of making wire glass was. The sandwich consisted of an upper and lower layer, so separated by a congealed skin or skins that in effect they remained two layers. This was the European process as worked, and this was all its users developed.</p> <p>So much for the means used in the process. As to its product, the effect of the nonhomogeneiiy of the sandwich make-up was such that when the plate was subjected to the heat variations incident to annealing, the two skin separated sections asserted their individuality in the different stress and strain incident to glass and under such stress and strain fractured. This is well stated by Leon Appert, an experienced French glass manufacturer, who in the specifications of his American patent, No. 608,036, said: “The importance and value for various purposes of glass reinforced by a metallic trellis of network embodied therein are well understood and need not here be set forth. It has therefore been very desirable to discover a process which, while admitting of the production of such articles under conditions analogous to those attending the manufacture of ordinary wire glass, and consequently at a moderate price, would preserve all the essential qualities of limpidity and transparency of the glass without reducing resistance or increasing its fragility. Attempts in this direction were made in 18S6, when it was proposed to place a metallic trellis or network between two glass plates and unite the latter. That attempt, however, was unsuccessful, as the product possessed neither homogeneity nor cohesion.” '</p> <p>It will thus be seen that the European process never proved practical or commercial, that it left no impress on the art, and neither in earlier nor later times was it practically worked. ■ It is true it was experimented on for years and was tenaciously clung to by those who sought to solve the problem of making wire glass, for it seemed the natural and simple way to do so; To this we referred in the opinion cited, saying: “Now, the first thought in connection with this art is that, when the idea of making glass is once suggested, the manufacture must be very simple. In other words, that the inventive thought, if one exists, consists in the conception of wire glass. Casting tables, and rollers for smoothing glass are old. The casting of sheets of rough glass is obviously simple and grinding and polishing a developed process. What, then, more simple than to cast a sheet, then lay a net of wire netting upon it and on the two pour and east a second sheet? And that such should be the first impression is quite natural, for this was the- idea and practice of the ■whole glass art, and it found expression in the patent development of three foreign countries and in the name, ‘European process.’ But experience, as we shall see, proved that this seemingly simple method did not and could not produce wire glass, and that even rough wire glass was only a hoped-for product.” Indeed, the European process was considered by the Circuit Court of Appeals of the Eighth Circuit in Streator v. Wire Glass Company, 97 Fed. 950, 38 C. C. A. 573, and, speaking of it in connection with the Shuman process (a later development), Mr. Justice Brown said: “The Shuman patent was evidently the first practical method of making wire glass.” And Judge Jenkins in a concurring opinion, said: “Others ⅜ * ⅞ Rad conceived the thought of wire glass and provided certain means for the manufacture; but they never achieved success, or pointed out any practical means for its accomplishment. There was no wire glass in use or upon the market, either in Europe or in this country, when Shuman obtained his patent.” These judicial findings that the prior wire glass art, which included the European or sandwich process, was simply theory, produced no practical result and put no wire glass in use or on the market, simply embodied in judicial opinion, the estimate of the commercial world as will fully appear by reference to the citations from the proceedings of the Franklin Institute of Philadelphia, extracts from the Iron Age, the Scientific American, the Paris Kevue Industrielle, the Encyclopedia Brittanica, and the Wonders of Modern Mechanism, cited in our prior opinion.</p> <p>The European process therefore being a failure, it is clear that the Highland process, which, in direct antithesis, produces a plate which “when finished (did not) consist of two separate strata, the lower of which had (not) so far congealed or solidified before the upper half was cast that the two would (instead of would not) unite and form a homogeneous whole,” and “the result was that it did (not) separate or split” — is not the European process. Indeed, it goes without argument that two such radically different results spring from radically different moving causes. Theoretically the Highland and the European processes to a degree resemble each other, as indeed all processes of making wire glass must ex necessitate resemble each other, in that at some time during any one of such processes three different factors are provided, viz., an upper and lower layer of glass and an intermediate layer of wire; but in the method of uniting these factors there is in the Highland and European procedes, in spite of formal resemblances, the fundamental and vital difference between success and failure, and this unquestioned fact of failure in ihe European and success in the Highland practice results so far as the glass is concerned from the fact of plate homogeneity, which is 1lie case in the Highland plate, and nonhomogeneity, which is the fact in the European plate. And the plate homogeneity in the Highland practice results from the simultaneity of the stops of suc-h practice.</p> <p>Now, let there be no misunderstanding or word quibbling in this vital and essential feature of this case. When the words “simultaneous," “synchronism.” and “simultaneity” are used in connection with an operation which consists of casting and rolling two large sections of molten glass and introducing a web of fragile wire between, it is physically clear that these three operations cannot be lilorally and absolutely simultaneous. It is therefore manifest that when we refer to such a series of operations as simultaneous, or •when the Patent Office delines them as simultaneous, we and they are not literally accurate for acts are only literally, absolutely simultaneous when they ail happen at the same precise instant, lmt the acts in making wire glass are. as stated in our opinion, of a “practically synchronous or simultaneous character." In getting to the gist of a patent, what was really disclosed, and what the Office meant to protect, we must go beyond the literature of dictionary definitions and from the context, from the failure of the prior art. and the successful device or process disclosed, ascertain the actual meaning of words used to describe what was invented. For words must he treated as agencies to find, not to lose the novel, practical, useful device or process given to the public. And in that connection we refer to Blair v. Jeannette (C. O.) 1G1 Fed. 355; lU'nnville v. Excelsior Needle Oo., 107 Fed. 533, 93 O. O. A. 216; Malignan! v. Germania Co. (C. <’.) 1G9 F'ed. 209: and Fullerton v. Anderson, 166 Fed. 443, 92 C. C. A. 295 — where it was held that the word “immediately,” in a claim “Immediately plunging the nuis into the solution,” was answered by plunging them within 20 minutes; the court saying: “The force of these 'considerations becomes apparent when it is considered that in the actual operation of the appellee's invention it is not practicable to plunge the nuts into the bleaching solution at the very instant of the addition of the acid. Even if the protection of the patent is to be limited to coincident immersion, the interim should receive a reasonable interpretation, and should be held to mean an immersion of the nuts in the bleaching solution practically at the time when the acid is added and while it continues to accomplish the result of releasing the nascent elilorin. It is shown in evidence that aceiic acid accomplished that result for a period of 20 minutes, during which time, in the practical operation of the process, crates of nuts aro consecutively dipped and allowed to remain for the space of a few seconds. Any immersion of the nuts during the space of time during which that reaction is taking place, it is reasonable to say, is an immersion coincident with the addition of the acid.”</p> <p>Now, when this large record is boiled down to the crucial point, it will be seen that the vital point in making a single plate from two pours is, so far as the glass Is concerned, simultaneity of operation. Time is of the essence of the operation. And synchronism, practical simultaneity is the life which the Highland process has imparled to lifeless, fruitless European process. And if the reasoning of the Inst case we have cited be correct--and we hold it is — that in case of a simple immersion bath which required no delay in giving, the term “immediate” was answered by 20 minutes because during that time the results disclosed by the patent could be obtained, what shail be said of the contention that in a complicated operation, involving the handling of great pots of molten glass and delicate webs of fragile wire, the space of 15 to 18 — not minutes but seconds — makes the process nonsimultane-ocs. In making a two-roll plate, time is measured, not by the seconds used, but by the effect of time on the molten glass in forming a skin. The necessity of forestalling by seconds this skin formation is incidentally under the terms “slightly quicker than nature” and “before the bottom shall become stiff a. shade too soon,” but all the more forcibly testified to in a letter by one of respondent’s officers to his counsel, wherein he strikes the crux of the operation of making a homogeneous plate by a two-pour rolling in saying: “You ap-predate we are working in seconds of time, and tilings must be done to a nicety to accomplish good results.” Now, in this Highland practice, we have the almost incredible result that in from 14 to 18 seconds there is a completed operation of workmen pouring a great mass of molten glass on a casting table, mechanically advancing a highly heated roller over it, following this by a second roller on which a wire trellis is laid, of getting the wire we'b out of the way of a second pour and passing over it a third roller. That this operation of making a finished plate is completed in that time shows a rapidity of sequence that we think is aptly described as simultaneous, and that it is practical simultaneity is, we thinfc, conceded virtually by the fact that the practice could be still speeded higher, but that would bring it infringingly near a literal simultaneity. Indeed, that the several steps are virtually and functionally synchronous is shown by the fact that no time intervenes between the steps in which the glass of the lower section can congeal, skin, or become stiff, as it did in the European process, and prevent the formation of a homogeneous whole. Such instantaneous rapidity of sequence has no prototype in the European process. It is simply not found, taught, or practiced in it, and we are therefore fully justified in saying the Highland practice is not the European process. And the reason why it is not is because it has simultaneity and because it has simultaneity it gets homogeneity of product.</p> <p>The Highland Company therefore not being able to shield itself as a mere user of the European process, it remains to consider whether it has appropriated the process of the Schmertz patents. In view of the discussion in our prior opinion of that process and of its creation of the commercial wire plate industry, we refrain from a repetition thereof and simply restate therefrom our conclusion. We there said: “The length of this opinion precludes a statement in detail of the benefits arising from the introduction of this new article (wire plate) which our reading of the entire record has disclosed. An examination of the prior art in the record has further satisfied us that Schmertz first disclosed the process and apparatus by which the remarkable development of wire glass plate came about. The effective feature of Schmertz’s process is the practically synchronous or simultaneous character of his differently recessed two-roll, two-sheet process, coupled with a successful wire feed. Molten glass responds very quickly to changes in heat conditions, and such changes render impossible results which might have been obtained an instant before. ⅜ ⅜ * Schmertz obtained his product by an apparatus adapted to effectuate such a synchronous process and a perfect feed, and a study of the various patents satisfies us that none of the various prior patentees disclosed in the making of wire glass the necessity of simultaneous treatment, which in connection, be it observed, with ■ suitable mechanism to effectuate both it and a perfect feed, made Schmertz’s process successful. These essential features in combination are lacking in the alleged anticipation.”</p> <p>Now to us it is clear that the Highland practice has appropriated the Schmertz process. The first claim of reissue No. 12,443 is “the process of making glass sheets with wire inclosed therein, consisting in simultaneously forming a layer of glass and introducing wire thereto and completing the sheet by forming another layer upon the first layer of glass; the process being carried on progressively.” Now the Schmertz process is simultaneous and progressive. So also is the Highland. Indeed, it relatively more closely approximates literal simultaneity than Schmertz’s, in that the whole Highland operation is finished in a shorter time than that in which Schmertz showed a practical means of operating his process and which the Patent Office described by the word “simultaneous.” It is also functionally simultaneous, in that it effects homogeneity which, up to this time, has only been obtained by the simultaneity of the Schmertz process. It is,, however, contended that the' Highland practice simply applies modern mechanism to the European process, and it is argued that this the respondents are first to do. Passing by the fact that a continuous tank furnace, an overhead trolley system for glass haulage, and roll driving by clutch attachment, have all come into the glass art comparatively lately, and were not iiv use when the European piroeess was the attempted way to make wire glass, it suffices to say that such reasoning would nullify every patent. While it is true the respondents are perfectly free to practice the European process, and while they are perfectly free to use their own mechanical appliance's, they are not freo to use those elements, or any other, in working the process of Schmertz’s claims. These they have done and have infringed the claims charged of Schmertz’s reissue patent.</p> <p>As this determination of these primary underlying questions of process suffices to warrant making final the injunction heretofore granted in this case, we are not impelled to lengthen this opinion by a discussion of the claims of the other patent as a ’basis of a decree.</p> <p>A decree mav therefore be drawn in which both patents as to the claims involved be adjudged valid, and that the four claims on the reissue patent are infringed, and such infringement be enjoined.</p>

<p>In Equity. Suits by the Sehmertz Wire Glass Company and another against the Western Glass Company. On motions by defendant for attachment for contempt and. for dismissal and motion by complainants for a preliminary injunction.</p>

<p>1. Judgment (§ 515*) — Collateral Attack — Collusion—Uniting of Adverse Interests — Suit to Obtain Patent.</p> <p>In a suit brought under Rev. St. § 4915 (U. S. Comp. St. 1901, p. 3092), to obtain a patent, by an unsuccessful applicant against the successful one, who was awarded priority of Invention in interference proceedings, the fact that before the hearing one party acquires the interest of the other, which is made known to the court, does not deprive it of jurisdiction to proceed to a decree, and where such decree awards priority to the complainant, to whom a patent is thereupon issued, it cannot be collaterally impeached on the ground of collusion by one subsequently charged with infringement of such patent.</p> <p>(Ed. Note. — For other cases, see Judgment, Cent. Dig. § 957; Dec. Dig. § olo.*]</p> <p>2. Patents (§ 69*) — Anticipation—Prior Publication.</p> <p>A description by a foreign inventor of a process which was never patented and never used in order to constitute an anticipation of a subsequent American patent must be an account of a complete and operative invention, and in case of doubt the success of the pa rented process, invented many years later, should turn the scale in favor of patentability and nonanticipation.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 82-85; Dec. Dig. § 69.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Process and Mechanism. fop. Making Wire Glass.</p> <p>The Sclimertz patents, reissue No. 12,443 (original No. 791,216), and No. 791,217 each for an apparatus and process for manufacturing wire glass, were not anticipated and disclose invention, and, while not generic, in a broad sense cover an important improvement in the art and are entitled to a fairly broad construction and a liberal range of equivalents. As so construed, they are infringed by the process and device of the Jungers patent. No. 867,510, which differ from those of Se’hmertz in no substantial respect, except that, instead of allowing the wire to he fed upon the lower layer of glass, as it is being rolled, by gravity it is fed through the greater pari, of its length under tension.</p>

<p>In Equity. Suit by the Live Poultry Transportation Company Against the American Poultry Company.</p>

<p>In Admiralty. Suit by Michael O’Connell against the steamship Italia.</p>

At Law. Action by Alsie N. Payseno against H. E. Swensen, John Swensen, C. Anderson, G. W. Allen, and H. L. Snell, surviving partners of the partnership of Allen & Snell, and as individuals. On motion for directed verdict at close of plaintiff’s testimony.

<p>Appeal from the Circuit Court, of the United States for the Southern District of New York. For decision below, see 172 Fed. 303, affirming a decision by the Board of United States General Appraisers. <1. A. 0,810 (T. D. 29,27<i).</p>

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

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

<p>In Error to Criminal Court of Appeals for the State of Oklahoma.</p>

<p>In Error to the United States Court of Appeals for the Indian Territory.</p>

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

<p>On Removal from Supreme Court of Oklahoma.</p>

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut. Appeal from a decree dismissing a bill of complaint charging infringement of letters patent No. 820,076, granted May 8, 1906, to the complainant, as assignee of John II. Trumbull, for an improvement in panel switches and cut-outs.</p>

<p>in Error to the Circuit Court of the Unifed States for tho Northern District of Iowa.</p>

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

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

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

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

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

<p>In Error to the Circuit Court of the United States for District of Maryland, at Baltimore.</p>