Volume 179 — Federal Reporter

Condemnation proceedings by the United States of America and the County of Canyon, Idaho, against David E. Burley. Erom an order directing condemnation (172 Fed. 615), defendant brings error.

<p>1. Indians (§ 15*) — Lands—Restriction on Alienation by Allottees— Right of United States to Enforce by Shits.</p> <p>The plan of the United States government in dissolving the Five Civilized Tribes of Indians and distributing their lands in severalty was a great governmental project, having for its object the social and industrial advancement of the Indians, and the various acts pertaining thereto must be construed in consonance with such purpose and not merely as real estate transactions. The relation of the government to the Indians is not to be measured by the law governing the ordinary relation of guardian and ward, nor are the limitations imposed on the alienation of land governed by the strict rules of law relating to grantor or grantee, but the United States, by virtue of its peculiar relationship to the Indians and to prevent the policy to be worked out through such legislation from being defeated may enforce such restrictions on alienation in the courts although retaining neither a legal nor an equitable estate in the lands after the allotment.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. Dig. § 15.*]</p> <p>2. Indians (§ 15*) — Lands—Right of United States to Maintain Suits— Construction of Statute.</p> <p>The provision of Act May 27, 1908, c. 199, § 6, 35 Stat. 314, that “nothing in this act shall be construed as a denial of the right of the United States to take such stops as may be necessary including the bringing of any suit * * * to acquire or retain possession of restricted Indian lands * * * in cases whore deeds, leases or contracts * * * have been or shall be made contrary to law with respect to such lands prior to the removal therefrom of restrictions upon the alienation thereof, such suits to be brought on the recommendation of the Secretary of the Interior, without costs or charges to the allottees the necessary expenses incurred in so doing to be defrayed from the money appropriated by this act” is more than a saving clause and when read in connection with the part of the section appropriating $50,000 to cover the expenses incurred in such litigation is an implied grant of power to maintain snch suits and such power extends to- suits relating to allotments which were freed from restrictions by section 1 of the act in respect to conveyances or contracts previously made.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. § 15.*]</p> <p>8. Statutes (§ 185*) — Construction—Implied Provisions.</p> <p>That which is implied is as much -a part of a statute as that which is expressed.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 264; Dec. Dig. § 185.*]</p> <p>4. Statutes (§ 217*) — Construction—Extrinsic Evidence to Aid Construction.</p> <p>The effect of a statute actually passed by Congress cannot be narrowed by reference to a bill which was never voted on, but was merely proposed in committee.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 293; Dee. Dig. § 217.*]</p> <p>5. Indians (§ 31*) — Protection oe Rights by United States — Effect ' of Granting Citizenship.</p> <p>The grant of citizenship to the Indians in Indian Territory by Act Feb. 8, 1887, e. 119, 24 Stat. 388, as amended by Act March 3, 1991, c. 868, 31 Stat.-1447, was intended for their protection, and was not a renunciation by the United States of the authority which it had always exercised to adopt such measures as in its judgment were wise for the protection of the Indian in his rights.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 23; Dee. Dig. § 31.*]</p> <p>6. Indians (§ 15*) — Suits Respecting Lands — Parties.</p> <p>To a suit brought by the United States under the authority conferred by Act May 27, 1998, c. 199, § 6, 35 Stat. 314, to set aside -a deed, lease, or Contract' made by an' Indian allottee in violation of the statutory restrictions on alienation, the allottee is not an indispensable party.-</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. § 15.*]</p> <p>7. >" Parties (§ 51*) — Indispensable Parties — Rule Governing.</p> <p>• -IF is not the mere convenience of the parties before the court that renders absent parties indispensable, but the-protection of the rights of those absent parties.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 76, 77; Dec. Dig. § 51.*]' -</p> <p>8. Equity (§ 159*) — Pleading—Multifariousness of Bill.</p> <p>. A bill- filed by the United States to cancel a large number of separate conveyances made by individual Indian allottees to the several defendants as invalid, because made in violation of a statute imposing restrictions upon the alienation of the land by the Indians, is not multifarious.</p> <p>. [Ed. Note. — For other cases, see Equity, Cent.- Dig. §§ 371-379; Dec. Dig. § 150.*]</p> <p>9. Indians (§ 31*) — Restriction .on Power to Alienate Land — Power of Congress to ' Extend.</p> <p>It is within the power of Congress to enlarge the period within which an Indian allottee is prohibited from alienating his land beyond that imposed when the allotment was made, so long as the land is held by the allottee, although in the meantime he may have been made a citizen.</p> <p>. ¡[Ed..Note. — For. other -cases,■ see Indians, Cent. Dig. § 23; Dec. Dig. § 31.*] .. ......</p> <p>Adams, Circuit Judge, dissenting.</p>

Action by W. T. Day against the Atlantic Coast Dine Railroad Company. Judgment for defendant, and plaintiff brings error. Plaintiff in error, hereinafter called the “plaintiff,” sued the defendant in error, hereinafter called the “defendant,” for the recovery of damages alleged to have been sustained by a personal injury caused by the negligence of defendant.

<p>Corporations (§ 259*) — Jurisdiction—Adequate Remedy at Law — Preventing Multiplicity of Suits — Suits by Receiver Against Stockholders.</p> <p>A federal court of equity is without jurisdiction of a suit by the receiver of an insolvent corporation against numerous stockholders to enforce payment of an assessment of a fixed sum per share on its stock, made by authority of a court in another jurisdiction in a suit to wind up the affairs of the corporation to which suit the defendant stockholders were not individually parties, either on the ground of preventing a multiplicity of suits, or on the ground that it is ancillary to the main suit, where it does not appear that there is any ground of defense common to the defendants, and the bill does not pray for any equitable relief, but merely seeks to collect from each defendant a definite sum as the assessment against his stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1059-1067; Dec. Dig. § 259.*</p> <p>Stockholders’ liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.]</p>

<p>1. Collision (§ 100*) — Precautions fob Preventing Collisions — Speed in Fog — “Moderate Speed.”</p> <p>A steam vessel passing from Portland down the Willamette river in a dense fog at a speed of 15 miles an hour, in view of the extensive commerce on such river, was not going at the moderate speed required by article 16 of the Inland Navigation Rules (Act June 7, 1897, c. 4, 30 Stat. 99 [U. S. Comp. St. 1901, p. 2880]), which provides that in a fog a vessel shall.go at.a moderate speed, “having careful regard to the existing circumstances and conditions.”</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 215; Dec. Dig. ■ § 100.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4551, 4552.</p> <p>Collision rules — speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p> <p>2. Collision (§§ 75, 99*) — Precautions foe Preventing Collisions — Vessels at Anchor — Lights, Signals, and Lookouts.</p> <p>A dredge lawfully fixed in a channel for improving it is to be considered as a vessel at anchor, and is under obligation to use the same precautions to guard against Collisions that a vessel at anchor is in respect to the exhibition of lights, maintaining a watch and other measures calculated to make its position known.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 113, 115, 211, 212; Dec. Dig. §§' 75, 99.*]</p> <p>3. Admiralty (§ 118*) — Appeal—Review—Findings op Fact.</p> <p>On appeals in admiralty, when questions of fact are dependent on conflicting evidence, the decision of the District Judge who heard and saw the witnesses will not be reversed unless clearly against the evidence.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 770; Dec. Dig. § 118.*]</p> <p>4. Collision (§ 100*-) — Vessels at Anchor — Lookout.</p> <p>Whether or not an efficient lookout was maintained on a dredge at work in a channel during a dense fog held immaterial, in a suit for collision with the dredge by a moving steamer, where the fog bell on the dredge was being-rung at intervals of less than a minute, and could be heard many times the distance at which an approaching vessel could he seen.</p> <p>(Ed. Note.- — For other cases, see Collision, Cent. Dig. | 214; Dec. Dig. S 100.*]</p> <p>5. Collision (§ 100*) — Precautions for Preventing Collisions — Speed in Fog.</p> <p>A decree affirmed, holding a steamer passing down the Willamette river from Portland in a dense fog at a speed of about 15 miles an hour solely in fault for a collision with a stationary dredge which was working in the channel, on the ground of excessive speed.</p> <p>I Ed. Note. — B’or other cases, see Collision, Cent. Dig. § 215; Dec. Dig. § 100.*]</p>

<p>1. Municipal Corporations (§ 821*) — Sidewalks—Contributory Negligence — When Question for Jury.</p> <p>A plaintiff, who was injured by stepping into an open coal hole in a sidewalk on a public street at a time when it was quite dark, cannot be held chargeable with contributory negligence as matter of law.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1754-1756; Dec. Dig. § 821.*]</p> <p>2. Master and Servant (§ 300*) — Master’s Liability for Negligent Act of Servant — Grounds.</p> <p>The ground upon which a master in any case is held liable for a negligent act of his servant is not because the servant in his negligent conduct represents the master, but upon the distinct ground that he is conducting the master’s affairs, and the master is bound to see that his affairs are so conducted that others are not injured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig. § 300.*]</p> <p>3. Master and Servant (§ 301*) — Liability for Injuries to Third Persons —Relation of Parties.</p> <p>Where defendant, a coal dealer, in delivering coal from its yards to customers, hired from another dealer a team and a driver in the latter’s general employ, paying a stipulated sum per hour for their services, and having full control and direction of the work and the method of its performance, the driver, while engaged in such work, was a servant of defendant, which was liable for an injury to a third person, caused by the driver’s negligence in its performance.</p> <p>TEd. Note. — For other oases, see Master and Servant, Cent. Dig. §§ 1210-1210; Dec. Dig. § 301.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri.</p> <p>In the matter of the E. H. Abadie Company, bankrupt. Appeal from order of adjudication.</p>

<p>Petition for Revision of a Certain Order of the District Court of the United States for the Northern District of California.</p> <p>In the matter of the United Harness Company, bankrupt. Petition by Dave Staunton for revision of an order of the District Court.</p> <p>The petitioner presents, in a petition for revision in bankruptcy, the following facts: The United Harness Company was a corporation of the state of California, having a branch store in Nevada. On April 22, 1908, a petition in bankruptcy was filed against the corporation, in the District Court of the United ¡States for the Northern District of California, and oil May 12, 1908. at 12 o’clock m., the corporation was adjudged a bankrupt. On April 20, 1908, two days before the petition in bankruptcy was filed, certain personal property of the bankrupt in Nevada was attached in an action brought against the corporation in a court of that state. Judgment was rendered against the corporation in that action, and on May 1, 1908, execution was issued against the attached property, and on May 12, 1908, at 2 o’clock p. m., the sheriff sold and delivered the same to Dave Staunton, the petitioner herein, and he paid the sheriff the purchase price therefor. On June 25, 1908, the trustee of the bankrupt was elected, and thereafter he made demand for the possession of the property so attached, which demand was refused. On February 23, 1909, the trustee filed a petition in the bankruptcy court, setting forth the facts above stated, and praying for an order that said Dave Staunton produce and surrender the said property to the trustee. The referee made an order fixing a time and place for hearing the petition, and directed that said Staunton show cause why the prayer of the petition should not be granted. A copy of the petition and order were duly served upon him. At the time and place designated for the hearing, he specially appeared and objected to the jurisdiction of the court over the matter and the property in controversy. The referee overruled the objection, and made the order, and thereafter the District Court affirmed his ruling.</p>

<p>Sales (§ 355*) — Action fob Peice — Evidence of Sale and Deliveby of Goods.</p> <p>An allegation in a complaint that plaintiff sold and delivered goods to defendants at their special instance and request is supported by evidence that defendants were the general contractors for building a line of railroad, and that on defendants’ request, and on thoir promise to pay for the same, plaintiff furnished supplies to camps on the line of work on orders given by a firm of subcontractors, and charged the same to such firm, as directed by defendants.</p> <p>[Ed. Note. — ITor other cases, see Sales, Cent. Dig. §§ 1030, 1041: Dec. Dig. § 355.*]</p>

<p>1. Shipping (§ 181*) — Demurrage—Construction of Charter Party — Arrival of Ship — Lay Days — “Ready to Discharge.”</p> <p>A charter party of a ship to carry a cargo of coal froru New Castle, Australia, to San Francisco, there to be discharged “as customary, in such customary berth as consignees shall direct,” lay days to commence when the vessel was “ready to discharge,” on written notice by the master, gave the consignee the right to designate any customary place for discharging, and the ship did not reach her destination, and was not ready to discharge, so as to be entitled to give the notice, until she was in the berth assigned; and where the master was promptly notified on arrival in port that the cargo had been sold to a fuel company and was to be discharged at its bunkers, which were customary places for discharging coal, a delay of 42 working days while awaiting her turn to discharge at such bunkers, which was required by the custom of the port, .was at her own risk, and did not entitle her to recover demurrage, the delay being without fault of the charterer, but caused by a congestion of coal vessels in the port at the particular time.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*</p> <p>For other defiriitions, see Words and Phrases, vol. 7, pp. 5935, 5936.</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>2. Shipping (§. 181*) — Construction op Charter Party — Reasonableness op Provisions — Lay Days.</p> <p>A deliberate contract, made by the parties in a charter party, giving the charterer the right to designate the place of discharge, and providing that lay days shall commence when the vessel .is ready to discharge, cannot be varied or relaxed on the ground that its enforcement subjects the vessel to an unreasonable delay.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*]</p>

Suit in equity by Susan Turner, by J. T. Parks, her guardian and next friend, against the Midland Oil Company, T. N. Barnsdall, and William J. Seep. Decree for complainant (167 Fed. 646), and defendants appeal.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Suit in equity by Robert Spade, by J. T. Parks, his guardian and next friend, against William J. Seep, T. N. Barnsdall, and the Midland Oil Company. Decree for complainant, and defendants appeal.</p>

<p>1. Ejectment (§ 116*) — Judgment—Adjudging Validity of Defendant’s Title.</p> <p>In ejectment, where both parties allege title and the evidence sustains that of defendant, it is not error for the court to render an affirmative judgment in his favor, adjudging him to be the owner of the property and entitled to possession.</p> <p>[Ed. Note — For other cases, see Ejectment, Cent. Dig. § 360; Dec. Dig. § 116.*]</p> <p>2. Ejectment (§ 17*) — 'Title to Sustain Action — Deed Intended as Mortgage.</p> <p>Conceding that a deed given as a mere security for an existing debt is not effective to transfer the legal title or right of possession of the mortgaged property from the grantor to the grantee, nevertheless the voluntary surrender of actual possession to the grantee as further security is lawful, and may be effective to create a legal right of possession sufSclent to bar a right of recovery in an action of ejectment by the mortgagor against the mortgagee.</p> <p>[Ed. Note. — For other' cases, see Ejectment, Gent. Dig. §§ 63, 64; Dec. Dig. § 17.*]</p> <p>3. Ejectment (§ 95*) — Title to Sustain Action — Evidence Considered.</p> <p>Evidence considered, and helé insufficient to establish a legal title to real estate in plaintiff which entitled him to recover in ejectment.</p> <p>[Ed. Note. — For other cases, see Ejectment, Gent. Dig. §§ 280-295; Dee. Dig. § 95.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by William Brooks and John H. Ganner against Louis Eisleben, H. C. Reiner, and W. A. Miller. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Courts (§ 372*) — Federal Courts — Authority of Decisions of State' Courts.</p> <p>Under the rule of the federal courts there can be no recovery of damages from a telegraph company for mental anguish caused' by failure to deliver a message, or by delay in delivery, where that is the only ground of .damage ; and in the absence of statutory provisions the question is one of general law, upon which state decisions are not controlling in the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 372.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. O. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Telegraphs and Telephones (§ 56*) — Delay in Delivery of Message— Right of Action by Addressee.</p> <p>By the weight of authority in this country a person to whom a telegram is sent, where it is intended for his benefit or information, has a right of action against the company for negligent delay in its transmission or delivery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.*]</p> <p>3. Action (§ 27*) ^-Nature of Cause of Action.</p> <p>An action by tiie addressee of a telegram against the company for failure to deliver the message is. not one on contract, but in tort for failure to perform a duty imposed upon defendant by law.</p> <p>[Ed. Note. — For other cases, see Action, Dee. Dig. § 27.*]</p> <p>4. Telegraphs and Telephones (§ 27*) — Action for Nondelivery .of Message — Mental Suffering — State Statute.</p> <p>Act Ark. March 7, 1903 (Acts 1903, p. 124), making telegraph companies doing business in the state “liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages,” applies only in cases where the negligence occurred within that state, and does not authorize a recovery by the addressee of a telegram for mental anguish alone because of the negligent failure to deliver the message, where the negligence occurred in another state, by the law of which there could not be such recovery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 27.*</p> <p>Damages for mental suffering from delay in delivering telegram, see notes to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 571; Western Union Telegraph Co. v. Coggin, 15' C. O. A. 250; Western Union Telegraph Co. v. Morris, 28 C. C. A. 62.]</p>

Suit in equity by the Cincinnati Realty Company against Ellen M. Pike, executrix and trustee, and others. Decree for complainant, and defendant's appeal.

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

<p>Appeal from the District Court of the United-States for. the Northern District of California.</p> <p>Suit in admiralty by the Moore & 'Scott Iron Works against the steamer F. A. Kilburn. Decree for libelant, and claimant, the Maritime' Investment Company, appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California. ■ . .</p> <p>- Proceeding by Mrs. Wong Heung against C. T. Elliott, United States Marshal for the Northern District of California for a writ of habeas corpus. . From an order denying the writ, petitioner appeals.</p> <p>On August 1, 1907, "Wong Chun was arrested, charged with violation of the act of Cbngress entitled “Ah act to prohibit the coming of Chinese persons into the United States,” approved May 5, 1892 (Act May 5, 1892, c. 60, 27 Stat. 25), and “the act amendatory thereof, approved November 3, 1893 (Act Nov. 3, 1893, c.,-14, 28 Stat. 7 [-U.' S. Comp. St.. 1901, p. 1320]), and the act approved April 29, 1902 (Act April 29, 1902, c. 641, .32 Stat. 176 [U. S. Comp. St. Supp. 1909, p: 473]). Qn September 27, 19Ó7, after a hearing before a United States commissioner, she was ordered deported from the United States to China. On February 7] 1908, after a hearing' on ■ her appeal; and further evidence adduced in support thereof,- the judgment of -the commissioner .was affirmed. On July 7, 1909,- in compliance with , said judgment, Wong. Chun was taken, into custody by the United States marshal for ".the purpose of deportation, and the following day, Under the'name of Mrs. Wong Heung, she filed a petition in the1 court below for a writ of habeas corpus, alleging that on .October' 28, 1908, pending her .appeal to this court, from, the judgment of the district Court, she had been united in marriage, to .Wong .Heung in the city of Oakland, state of California; that Wong Heung was a native-born citizen of the United States; and. that.-by virtue .of said marriage her status had been changed, and she was entitled .to be discharged from.custody, Upon the hearing on the order to show cause why the writ should not issue, the court below, upon the eyidehce, .’found that the marriage of the petitioner to Wong Heung was not entered into ih good faith, but was a mere sham, pretense, and form, and had been entered into between the petitioner and Wong Heung solely for the purpose and .with the intent of evading the effect of ■ the findings, judgment, and order of deportation, and to enable the petitioner to re-, main within the 'United States, notwithstanding said order. From that judgment, the-petitioner appeals.-' .</p>

<p>Appeal--from the District Court of the United States for the' Northern Division of the Western District of Washington.</p> <p>Petition -by Frank Wayne against- O. P. Halligan, Warden of the United States Penitentiary on McNeil’s Island, Wash., for a writ of habeas corpus. From an order allowing the writ, defendant appeals.</p> <p>The appellee was indicted in the District Court of the United States for the District of. Oregon under five counts. The; first count charged burglary, in that he broke into' and entered a United States post office with intent to commit larceny therein; by stealing and taking away postage stamps and moneys of-the United States; the second count charged him with the larceny of postage stamps Of the value of $22, committed on the same date and in ^the same .-post office; the third, count charged him with the larceny of $3 on the .same date from the same post.office; the fourth charged him with-receiving; concealing,' and retaining in his possession, with intent to convert to his own use,'thé postage, stamps; of the value of $22, which he had already feloniously taken from the said post office; and the fifth'count contained-a like charge of receiving, concealing, and retaining in his possession, with intent to convert to his own use, the said sum of $3 alleged to have been stolen from the post office. Upon his plea of guilty to the indictment, he was sentenced to be imprisoned for the term of three years for the offense charged in the first count, for a further term of two years for the offense charged in the second count, for the term of two years for the offense charged in the third count, for the term of one year for the offense charged in the fourth count, and for the term of one year for that which was charged in the fifth count. After having served the three-year sentence imposed under the first count, the appellee filed his petition in the District Court of the United States for the Western District of Washington, in which district he was confined, praying for a writ of habeas corpus, and for his discharge from the imprisonment. Upon the hearing on an order to show cause, the writ was allowed, and the appellee was discharged. The appeal raises the question whether the appellee could lawfully be sentenced separately for the burglary and the larceny charged in the indictment.</p>

Action by Dennis E. Virtue and the Owatonna Fanning Mill Company against the Creamery Package Manufacturing Company, the Owatonna Manufacturing Company, and Frank Fa Bare. Judgment for defendants, and plaintiffs bring error.

<p>Patents (§ 328*) — Validity and Infringement — Wire-Winding Machine. Tbe Layne patent, No. 820,507, for a wire-winding machine, held valid and'infringed as to claims 11 to 17, inclusive.</p>

In Admiralty. Suit by John Neiger against the ship General De Sonis, her owner, Société Nouvelle d’Armement, and her master, R. Consinet, by a longshoreman, to recover damages for a personal injury suffered while libelant was assisting in covering a hatchway on the ship, caused by the collapsing of the hatch structure. Decree that the libelant take nothing by his suit in personam, and recover half his damages, with interest, against the ship, with a division of costs.

In Admiralty. Ribel by the State of Maryland, to the Use of Copeland G. Kaupp and others, against Charles E. Ellicott and others. Decree for defendants.

<p>Application of James Robertson for naturalization.</p>

<p>In Admiralty. Suit by the Southern Cotton Oil Company against the Merchants’ & Miners’ Transportation Company. Decree for libelant.</p> <p>The libelant on the 17th day of July, 1907, shipped on board the respondent’s steamer Allegheny at Savannah, 6a., bound for Philadelphia, a quantity of cooking oil and lard compound, the value of which was $3,635. The goods were destroyed by fire en route without negligence upon the part of the respondent. The two bills of lading which covered the shipment limited the carrier’s liability except in case of payment of a higher freight rate. The libelant paid the higher rate, and received bills of lading upon which the following was stamped: “Insured Rate. The freight mentioned in this bill of lading is covered by Marine Insurance while on board the steamers of the Merchants’ & Miners’ Transportation Company under and in accordance with and subject to the conditions and limitations of policies of marine insurance held by them.”</p> <p>At the time of the destruction of the libelant’s goods, the respondent held six policies of marine insurance upon goods shipped in its steamers on northbound voyages. The total value of the cargo upon this voyage, all of which was shipped under similar bills of lading, not including the libelant’s shipment, was $37,567.16, all of which was a total loss. The libelant at the time of the shipment and loss held an open marine policy in the London Assurance (Marine) dated November, 1901, and attaching when the goods were loaded at the inland town of Milhaven. This policy contained the “American Clause,” and a warranty by the assured that the payment of any loss there-' under should not, directly nor indirectly, inure to the benefit of any carrier or bailee, and that the policy should be null and void to the extent of any amount paid by or recoverable from any carrier or bailee. After the loss the London Assurance Company paid to the libelant the amount of the loss, but upon the understanding that the said payment should be regarded as a loan, repayable to the insurer only to the extent that any recovery should be had from the carrier. Of the respondent’s six policies, all of a later date than the libelant’s, five were annual, aggregating $40,000, and the sixth an open policy from $40,000 to $100,000. Each attached on the cargo when laded. The five annual policies each contained the same “rider” to which reference is made in the opinion. The respondent insists, first, that the libelant has been paid in full; second, that the London Assurance Company must bear the loss; and third, that at most there must be contribution. The libelant insists that the respondent’s liability is primary under the language of the several policies.</p>

<p>In Equity. Suit by the Order of 'St. Benedict, of New Jersey against Albert Steinhauser, administrator of Augustin Wirth, deceased. Decree for complainant.</p>

In matter- of bankruptcy proceeding against the Pittsburgh Industrial Iron Works. ' Proceedings for the determination of certain liens and the ownership of a derrick car as between' the trustee, the First National Bank of Huntingdon, and the American'Car & Foundry Company. Judgment for car and foundry company and the bank.

<p>1. Equity (§ 163*) — Plea—Grounds—Prior Adjudication.</p> <p>A plea setting up a prior adjudication of the same matters between the same parties is a good plea in equity.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 163.*]</p> <p>2. AVills (§ 501*) — Construction—“Family.”</p> <p>The will of a testator made a bequest to a son for certain specific purposes, and' provided that the balance, if any, and the son’s share of the residuary estate, should be held in trust for the benefit of the son and “his family.” Held that, unaided by the context, the words “his family” should be construed as “his children.”</p> <p>[Ed. Note. — For other cases, see AVills, Cent. Dig. § 1069; Dec. Dig. § 501.*</p> <p>For other definitions, see AVords and Phrases, vol. 3, pp. 2673-2691; vól. 8, p. 7661.]</p> <p>3. Judgment (§ 690*) — Persons Concluded.</p> <p>A will made a bequest in trust for the benefit of a son of the testator and “his family.” Some years later the son filed a petition in a court of competent jurisdiction, and obtained a rule on the trustee for an accounting. After a hearing on the answer of the trustee stating his account of the fund, the rule was discharged. Held, that the adjudication was binding on the son, but not upon his children, who constituted “his family,” and who were not in privity with him, since they did not claim through or under him by any mutual or successive relationship to the same rights but independently of him, and that it was not a bar to a subsequent suit by them against the trustee.</p> <p>[ Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1213; Dec. Dig. § 690.*]</p>

Suit by John V. Doniphan against Abraham Lehman and others. On motion to quash information for contempt and to vacate rule to ■show cause.

<p>Master and Servant (§ 256*) — Federal Employer’s Liability Act — Action by Railroad Employé — Pleading.</p> <p>In an action by an employé against a railroad company to recover for a personal injury, an allegation in the declaration that “at the time of the injuries hereinafter complained of your petitioner was engaged in the transportation of interstate commerce” is insufficient to state a cause of action under the federal employer’s liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), in the absence of any allegation that defendant was a common carrier engaged in interstate commerce by railroad. • t ■</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 256.'*]</p>

<p>1. Habeas Corpus (§ 62*) — Procedure—Dismissal of Petition.</p> <p>Under Rev. St. § 755 (U. S. Comp. St. 1901, p. 593), which provides that on an application to a federal court for a writ of habeas corpus the court or judge shall fórthwith award a writ, “unless it appears from the petition itself that the party is not entitled thereto,” where it appears^ from the petition that the case is not one which would justify the exercise of federal authority, it may he dismissed, and the court is not required to either award a writ or issue an order to the respondent to show cause.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 55; Dec. Dig. § 62.*]</p> <p>2. Habeas Corpus (§45*) — Hearing in Federal Court — Matters Concluded by Determination of State Court.</p> <p>In a criminal prosecution in a state court, where the statute creating the offense is not repugnant to the federal Constitution, and the court has jurisdiction, its determination with respect to the sufficiency of the charge is controlling in the federal courts on an application by the accused for a writ of habeas corpus after conviction.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38^t5; Dec. Dig. § 45;* Courts, Cent. Dig. §§ 1376-1385.]</p> <p>Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. O. A. 4.]</p> <p>3. Habeas Corpus (§45*) — Hearing in Federal Court — Matters Concluded by Determination of State Court.</p> <p>The determination by the highest court of a state that the offense charged in an indictment is one punishable under the laws of the state is conclusive in a subsequent proceeding by the accused in a federal court for release on a writ of habeas co.rpus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-4»; Dec. Dig. § 45;* Courts, Cent. Dig. §§ 1376-1385.]</p> <p>4. Statutes (§§ 118, 138*) — Formal Requisites — Constitutional Provisions.</p> <p>Daws Wash. 1891, c. 28, § 1 (Ballinger’s Ann. Codes & St. § 6774 [Pierce’s Code, § 1545]), amending section 782 of the territorial Code of 1881, relating to common-law offenses, is not in violation of Const. Wash, art. 2, .§ 27, as amending by mere reference to the title of the act amended, nor of section 19, as not expressing the subject of the act in the title, since it sets out the section as amended in compliance with the constitutional requirement, and also states in the title that it relates to the prosecution of public offenses, and gives the number of the section amended, which under the state decisions is sufficient.</p> <p>[Eid. Note. — For other cases, see Statutes, Cent. Dig. §§ 158-160, 205, 206; Dec. Dig. §§ 118, 138.*]</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Eastern District of Texas. Suit in equity by Annie E. Snow and others against R. R. Hazlewood and others. Decree for complainants, and all parties appeal.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>In the matter of Frank Torchia, bankrupt. From an order of the District Court, refusing the petition of Jacob Gold, he appeals.</p>

<p>1. Courts (§ 359*) — Federal Courts — State Laws as Rules of Decision.</p> <p>In determining the title of real estate, the federal courts are governed by the law of the state as to transfers and alienation, and the effect of decrees and judgments of the state courts and as to the construction of its statutes are controlled by the decisions of its highest court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 939, 943; Dec. Dig. § 359.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Courts (§ 374*) — Federal Courts — Prooedure of State Courts — Equitable Defenses in Actions at Daw.</p> <p>The rule that equitable defenses cannot prevail against the legal title in the federal courts is not affected by the statutes of the state or the procedure of its courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 981; Dec. Dig. 9 374.*]</p> <p>S. Public Lands (§ 172*) — Texas State Lands — Sale of Headright Certificate by Administrator — Effect of Patent to Heirs of Decedent.</p> <p>Where a headright certificate issued by the Board of Land Commissioners of Texas was sold and transferred by the administrator of the holder under an order of court, -was located by the purchaser, and a patent issued in accordance with the usual practice to “the heirs” of the decedent, their heirs and assigns, the purchaser acquired only the equitable title to the land, the legal title passing to the heirs of the deceased.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 573; Dec. Dig. § 172.*]</p> <p>4. Judgment (§ 475*) — Collateral Attack — Probate Courts — Granting Administration.</p> <p>Where a probate court, having jurisdiction, has determined that administration upon the estate of a decedent was proper, and has issued letters of administration and administered upon the property, no other court not exercising appellate jurisdiction can correct its errors of judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 910; Dee. Dig. § 475.*]</p> <p>5. Executors and Administrators (§ 29*) — Order of Appointment of Administrator-Collateral Attack.</p> <p>If an order appointing an administrator is so written as to leave it doubtful in what estate the appointment is made, other parts of the probate record may be referred to for the purpose of removing the doubt, and where it appears that the administrator qualified and acted in a particular estate and made final report and settlement, under the law of Texas his authority cannot be questioned collaterally to invalidate a sale made by him.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 178-182; Dec. Dig. § 29.*]</p> <p>6. Judgment (§ 497*) — Collateral Attack — Courts of Probate Jurisdiction.</p> <p>Where the record of a court of general jurisdiction in probate matters shows that the necessary steps were taken to invoke such jurisdiction in a given case, or when the record is silent on the subject, the decrees of the court are conclusive when collaterally called in question.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 937; Dec. Dig. § 497.*]</p> <p>7. Injunction (§ 26*) — Restraining Action — Trespass to Try Title — Equitable Title.</p> <p>In 1850 a county court of Texas, which was a court of general jurisdiction in probate matters, appointed an administrator of the estate of a decedent, who under order of the court sold a land certificate which had been issued in favor of decedent, the sale was approved and a conveyance executed to the purchaser. He located the certificate and a patent was issued in favor of the heirs of the decedent, but was delivered to and recorded by the purchaser who with his grantees asserted ownership of the land, exercised control over it and paid the taxes thereon for more than 50 years, a part of the time being in open and notorious possession. By Laws 2d Leg. Tex. c. 157, in force at the time, the administrator’s deed was prima facie evidence that all the requisites of the law had been complied with in making the sale. Held, that the heirs of the decedent were not entitled after such lapse of time to assert- the legal title as against such equitable title and- that an action -of trespass to try title brought by one of .such heirs in a federal court would be enjoined.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 54, 57, 58; Dee. Dig. § 26.*]</p> <p>8. 'Equity (§ 86*) — Laches—Grounds of Bar — Recognition of Right by Adverse Party.</p> <p>Laches cannot be imputed to one in possession of land under -an equitable title for delay in resorting to a court of equity for protection against the legal title so long as there is no attempt to assert such title, and he has no reason to anticipate such an attempt. ■</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. § 232; Dec. Dig. § 86.*]</p>

<p>1. Bankruptcy (§ 293*) — Jurisdiction of Court — Accounting by Assignee for Benefit of Creditors — Power to Make Summary Order for Surrender of Property.</p> <p>A general assignment for the benefit of creditors under a state law does not constitute the grantee an assignee for value, but merely makes him the agent of the assignor for the distribution of the proceeds of the property, and being such agent his possession is that of his principal, and, as to property or its proceeds remaining in his possession after the bankruptcy of the assignor, 'he does not hold adversely to the latter’s trustee by the mere fact of such- possession; and where he voluntarily, or in obedience to an order of the state court without objection, submits his account to the bankruptcy court, such court has jurisdiction to settle his accounts and to make a summary order requiring him to turn over such property or funds .to the trustee, notwithstanding his claim to credits on account of commissions, extra services, and bills for legal services and expenses incurred but not paid. As to sums which have been actually paid out by him, however, the court may properly remit the trustee to a plenary action for their recovery.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 293.*]</p> <p>2. Bankruptcy (§ 484*) — Assignee for Benefit of Creditors — Services and Expenses Incurred After Bankruptcy.</p> <p>Where an assignee for the benefit of creditors retained possession of the property for some years after the filing of a petition in bankruptcy against the assignor and until final adjudication and the appointment of a trustee, no receiver having been appointed, be may not improperly be treated as to the settlement of his accounts as a quasi receiver and allowed compensation for such services and disbursements as benefited the estate, but his right to commissions should be determined by the bankruptcy act ratber than the state statute.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 484.*]</p> <p>3. Bankruptcy (§ 446*) — Proceedings to Revise — Matters Reviewable.</p> <p>In a proceeding to revise under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), the Circuit Court of Appeals is limited to a review in matter of law and cannot determine questions of fact involved in the finding or order sought to be reviewed, where there is any evidence to support such finding or order.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 446.*]</p> <p>4. Bankruptcy (§ 471*) — Assignee for Benefit of Creditors — Expenses Incurred in Resisting Adjudication.</p> <p>An assignee for the benefit of creditors, on an accounting after his assignor has been adjudicated a bankrupt, is not entitled to an allowance from the funds in his. hands for expenses incurred in resisting the adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 471.*]</p>

Petition to Superintend and Revise in Matter of Daw Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy. In the matter of Charles B. Burdette, bankrupt. On petition by bankrupt to revise order of District Court. On the 25th of November, 1908, the petitioner by voluntary proceedings, was adjudged a bankrupt, and in due course a discharge followed.

<p>Patents (§ 328*) — Invention—-Process eor Extraction oe Cotton Seed Oil.</p> <p>The Johnson patent, No. 691,342, for a process for the extraction of oil from cotton seed'by using a mixture in stated proportions of cotton seed bran with the cotton seed meats, is void for lack of invention; it being shown that in the process previously used a mixture of hulls and meats occurred through the inability of the machinery used to wholly separate them.</p>

<p>In Equity. Suit by the Weed Chain Tire Grip Company, Harry D. Weed, and the Parsons Non-Skid Company,’' Limited, against the Excelsior Supply Company and the Motor Appliances Company. Decree for complainants.</p>

Max Freed was indicted for causing the bankrupt, Suffolk Boarding .& Livery Stable, of which he was president, to fraudulently conceal from its trustees various sums of money and other assets, and Freed, David Heller, and Hyman Gerchikoff were each also indicted for a false oath alleged to have been committed by them while witnesses before Nathanial S. Smith, referee in bankruptcy, in the matter of the Suffolk Boarding & Livery Stable.

<p>Railroads (§ 194*) — Right of Wat for Spur Tracks — License—Rights of Purchaser.</p> <p>Where a commissioner under a judicial decree sold the property of a' railroad company, expressly enumerating in the deed certain spur tracks, constructed on the land of an iron company under a verbal license and then in use by the railroad company, the iron company cannot assert an exclusive right to the use of such tracks for individual purposes as against the purchaser, which, without notice -of such claim, has expended money in making extensive repairs and improvements thereon, and - es: pecially where such tracks are. situated in Georgia, in view of Oode-Ga. 1895, § 3069, which provides that “a parol license * * * is not revocable when the licensee has executed it, and in so doing has incurred expense. In such case it becomes ah easement running with the land.”</p> <p>Ed. Note. — For other cases, see Railroads, Cent. Dig. § 649; Dec. Dig. § 194.*]</p>

In Equity. Suits by the Pennsylvania Steel Company and another against the New York City Railway Company and others, by the Morton Trust Company against the Metropolitan Street Railway Company and others, by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others, and by the Morton Trust Company against the Metropolitan Street Railway Company and others.

<p>Street Railroads (§ 55*) — Insolvency Proceedings — Distribution of Fund.</p> <p>Where the decree of sale in consolidated suits against the lessees' of an extensive street 'railway system creates a consolidated fund, to be distributed among all parties interested in accordance with their respective rights and priorities as thereafter determined by the court, all claims against any part of the fund will be left for consideration together in a single proceeding.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 55.*]</p>

<p>In Equity. Suit by the Omaha & Council Bluffs Street Railway Company and another against the Interstate Commerce Commission.</p>

In Equity. Suit by.J. Harvey Ladew and others against the Tennessee Copper Company and the Ducktown Sulphur, Copper & Iron Company, Limited. On separate motions by defendants to dismiss. Sustained as .to'the Tennessee'Copper Company, and overruled as to ;the Ducktown Sulphur,' Copper & Iron Company, "Limited. •

■ In Equity. Suit by the Harris-Woodbury Lumber Company against E. G. Coffin and D. Samuel White. On exceptions to_ report of special master. Exceptions overruled, and decree for complainant.

<p>1. Shipping (§ 84*) — Liability of Vessel for Injury to Stevedore — Defective Condition of Vessel.</p> <p>A ship held liable for an injury to a stevedore, resulting from the giving way of a hatch cover on which he stood to remove another section, caused by the fact that the crossbeam on which the fore-and-after rested was sprung, increasing the distance to be reached by the fore-and-after, arid allowing the end to slip off.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Damages (§ 132*) — Personal Injury.</p> <p>An award of $4,500 made to a stevedore, 48 years old, for an injury which entirely disabled him for life, caused great suffering, and was probably of a progressive character.</p> <p>[Ed. Noto. — For other eases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p>

<p>1. Master and Servant (§§ 101, 102, 124*) — Duty of Master — Tools and Appliances — Inspection and Tests.</p> <p>The master’s duty to the servant requires the 'exercise of reasonable care and skill, not only in furnishing safe machinery and appliances, but in keeping them in a safe condition, and includes the duty of making inspection and tests, at proper intervals.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 180-184, 192, 235-242; Dee. Dig. §§ 101, 10.2, 124.*]</p> <p>2. Master and Servant (§ 205*) — Defective Appliances — Assumption of Risk.</p> <p>The servant has the right to assume that the master has exercised due care and diligence to provide suitable appliances, and does not assume the risk from the master’s negligence in performing such duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>8. Master and Servant (§§ 288, 289*) — Master’s Liability fob Injury to Servant — Assumption of Risk — Questions for Jury.</p> <p>Plaintiff, who was helper for a boiler maker working for defendant railroad company, was injured by the breaking of a handle of an air motor which they were using on top of a boiler. The handle was not the kind usually used, but was a piece of pipe, which had been substituted, and was weakened by the deep cutting of the threads; but such defect was not observable, unless the handle was removed and inspected. Held, that plaintiff could not be said as matter of law to have assumed the risk, or to foe chargeable with contributory negligence, and that such questions were properly submitted to the jury.</p> <p>[J3d. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1132; Dee. Dig. §§ 288, 289.*]</p> <p>Ross, Circuit Judge, dissenting.</p>

<p>Contracts (§ 352*) — Action fob Beeach — Questions fob Juey.</p> <p>A written promise by defendant to pay to plaintiff a stated sum in consideration of “services in securing” a theater helé susceptible of a construction making it apply to services yet to be rendered, and to render it error to direct a verdict for plaintiff in an action to recover such sum for services alleged to have been previously rendered, where defendant gave evidence tending to show that the theater had not then been, and was not thereafter, secured within the meaning of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 352.*]</p> <p>Coxe, Circuit Judge, dissenting.</p>

<p>1. Collision (§ 91*) — Navigation Rules — Narrow Channel Rule — Application to New York Bat.</p> <p>While the narrow channel rule (Act June 7, 1897, c. 4, art. 25, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2S83]), requiring vessels to keep to the right in narrow channels, does not apply to upper New York Bay, considered as a single body of water, it does apply to each of the well-recognized deep water channels which run in a generally parallel direction through the bay, including Main Ship Channel.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 187; Dec. Dig. § 91.*]</p> <p>2. Collision (§ 102*) — Contributory Fault — Violation of Rules.</p> <p>The fact alone that one of two vessels at the time of a collision was on the wrong side of a channel in violation of the narrow channel rule, will not constitute a contributory fault where the collision occurred in the daytime on a clear day through the direct fault in navigation of the other vessel with nothing to obstruct her actions.</p> <p>[Ed. Note. — For other cases, see Collision, Dee. Dig. § 102.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Oliver Dailey against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff (167 Fed. 592), and defendant brings error.</p>

Proceeding by D. Charlie Mark against H. Edsell, Chinese In-r spector in Charge of the Port of Sumas, for writ of habeas corpus. Judgment granting the writ, and defendant appeals. The appellee, D. Charlie Mark, a Chinese person, seeks admission to the United States as a returning native-born citizen. He was denied admission after'the usual investigation, by the appellant, the Chinese inspector in charge at Por,t Sumas, Wash.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Annie V. Fallon, as administratrix, etc., against the Cornell Steamboat Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Suit in equity by Warren F. Vrooman and Arba F. Vrooman against Grant S. Penhollow, Frank Penhollow, and Wallace U. Baker. Decree for defendants, and complainants appeal.</p>

<p> (Syllabus by the Cowt.) </p> <p>1. Appeal and Error (§ 1097*) — Second Appeal — Caw or the Case.</p> <p>Propositions of law once considered and decided by an appellate court in a given case are not open to reconsideration in that court upon a second. appeal in the same case, and this although the first appeal was from an interlocutory decree.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4358; Dec. Dig. § 1097.*]</p> <p>2. Appeal and Error (§ 1022*) — Findings or Master Concurred in by Trial Court — Review.</p> <p>Findings of a master concurred in by the trial court are regarded as presumptively correct, and must be permitted to stand, unless seine obvious error has intervened in the application of the law or some serious or important mistake has been made in the consideration of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4015; Dee. Dig. § 1022.*]</p> <p>8. Patents (§ 318*) — Infringement—Profits Recoverable When Invention is Mere Improvement.</p> <p>In an accounting for profits received by an infringer, where the infringement is not of an entire machine but only of an improved feature thereof, the recovery must be restricted to such portion of the profits derived from the entire machine as arose from the patented feature.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 572; Dec. Dig. § 318.*]</p> <p>4. Patents (§ 318*) — Infringement—Ascertainment of Profits — Standard of Comparison.</p> <p>In ascertaining or measuring the profits recoverable upon an accounting for an infringement, the true standard of comparison is that ’device or appliance which was open to the defendant, and, next to the plaintiff's invention, could have been most advantageously used in the place of that invention at the time of the infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 570; Dec. Dig. § 318.*</p> <p>Accounting by infringer for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 C. O. A. 8.]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>Habeas Corpus. Application for the discharge from civil arrest of James H. Mansfield, bankrupt.</p>

<p>i. Removal of Causes (§ 19*) — Federal Employee’s Liability Act — Paramount Effect.</p> <p>An action by an employé against a railroad company to recover for a personal injury, where both parties were engaged in interstate commerce at the time of the injury, is governed by the federal employer’s liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), which supersedes all other law, and is controlling on the question of the jurisdiction of a federal court and the right of removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 37-46, 48, 52, 53; Dec. Dig. §' 19.*]</p> <p>2. Removal oe Causes (§ 12*) — Fedekal Question — Nonresidence oe Both Parties — Consent.</p> <p>Where neither of the parties to a suit is a resident of the district, the consent of both is necessary to confer jurisdiction on a federal court, and the cause is not removable over the plaintiff’s objection, whether the ground of removal is diversity of citizenship, or because the suit is based on a law of the United States.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32. 33; Dec. Dig. § 12.*]</p>

<p>Bankruptcy (§ 407*) — Grounds for Refusal of Discharge — Concealment of Property.</p> <p>A disposition of bis property by a bankrupt with intent to keep it from his creditors is with intent to hinder, delay, or defraud them, and will bar his right to a discharge.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 407.*]</p>

<p>Bankruptcy (§ 346*) — Debts Entitled to Priority — Cost or Preserving Estate — Taxes.</p> <p>In the distribution of the estate of a bankrupt, the actual and necessary cost of preserving the estate subsequent to filing the petition, which is an expense necessary to enable the court to exercise its jurisdiction, is entitled to priority of payment over taxes due the. state.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. § 346.*]</p>

<p>Railroads (§ 328*) — Injuries to Pedestrian — Failure to Look and Listen-Contributory Negligence.</p> <p>Where the distance between the track on which a freight car was standing and that on which an engine was approaching was such that plaintiff could have seen the approaching engine for some distance if he had looked in that direction as he was passing the freight car before he stepped on the track, the presence of the freight car, instead of being an excuse for plaintiff’s failure to see the approaching engine, was notice to plaintiff of danger, so that his failure to look and listen constituted contributory negligence, precluding a recovery for injuries sustained in the collision which followed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §'§ 1057-1070; Dec. Dig. § 328.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of South Carolina, at Charleston.</p> <p>In Equity. Suit by Peter B. Bradley and Robert S. Bradley against Elizabeth M. Heyward.. Decree for complainants (164 Fed. 107), and defendant appeals.</p>

<p>1. Courts (§ 365*) — Federal Courts — Following State Decisions.</p> <p>Upon the question of the measure of damages in an action in a federal court for breach of a covenant of quiet enjoyment in a lease, the court is governed by the decisions of the highest court of the state where the property is situated, so far as they determine the question.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 955: Dec. Dig. § 365.*</p> <p>State laws as rules of decisions in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Landlord and Tenant (§ 130*) — Eviction oe Tenant — Measure oe Damaoes.</p> <p>The general rule in New York, established by decision, is that for breach of a covenant for quiet enjoyment in a lease the lessee can recover only nominal damages, with nothing for the value of his lease or for improvements. The only exceptions to such rule which call for compensatory damages are in case o‘f fraud, or that which approximates fraud, on the part of the lessor, or in case of fault, or that which amounts to fault, on his part; and his making of the lease with knowledge that he is without full authority to do so does not amount to a fault, unless the lessee is without such knowledge and is misled.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent Dig. § 479; Dec. Dig. § 130.*]</p>

Cross-Appeals from the District Court of the United States for the District of Maryland. Suit in admiralty by Absalom Higbee against the tug Dauntless, the P. Dougherty Company, claimant. Decree for libelant, and both parties appeal.

<p>1. Appeal and Error (§ 1031*) — Review—Harmless Error — Presumptions as to Effect of Error.</p> <p>The presumption always is that error produces prejudice, and it is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]</p> <p>2. Trial (§ 110*) — Reception of Evidence — Misconduct of Counsel.</p> <p>In an action by an employé to recover for a personal injury, it was prejudicial error to permit plaintiff’s counsel on the examination of a juror to ask questions the evident purpose and effect of which were to convey to the jury a strong intimation that defendant was insured against such liabilities, and that the insurance company was the real party in interest as defendant, contrary to what appeared from the record.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 271; Dec. Dig. § 110.*]</p> <p>3. Master and Servant (§§ 217, 238*) — Master’s Liability for Injury to Servant — Negligence of Servant — Assumption of Risk.</p> <p>Plaintiff, who was a licensed engineer with several years’ experience in operating derricks, was operating a derrick for defendants in pulling sheet piling, used in constructing the foundation of a building, when he was injured by the breaking of an eyebolt to which one of the guy ropes of the mast was attached. The derrick was of a common and usual construction, practically new, and was sound, including the eyebolt, and being used for an ordinary purpose. It was shown that the amount of power applied to a. piling was left wholly to plaintiff’s control, and that, if after one pull the piling did not come out, it was cut off and left in the ground. Held, that if, as he alleged, the derrick and eyebolt were being at the time subjected to an excessive strain he alone was responsible tberefor, and that if, as he also alleged, the number of guy ropes was insufficient, and they were not anchored at sufficient distance from the mast, he was as competent as any one to know such fact, and assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 587, 744; Dee. Dig. §§ 217, 238.*]</p>

Suit in admiralty by J. Ludwig Mowinckel, as owner of the steamer Rygja, against James Dewar, John McRaren, Ernest Gripper, and William Webb, partners as Dewar & Webb, the Lithgow Coal Association, Evan C. Evans, garnishee, and Joseph L. Schmidt and James B. Smith, sureties. Decree for libelant (173 Fed. 544), and respond* ents appeal.

<p>Electricity (§ 16*) — Obstruction—Injuries Incident to Use.</p> <p>The foreman in charge of the poles and wires of an electric light company, in undertaking to remove a broken wire which hung from a pole of a telephone company against an electric light pole in such position as to interfere with the climbing of such pole by his workmen, was not a volunteer, interfering with the property of the telephone company, but was acting within his duty to his employer to remove an obstruction to its own property, and was not required to first notify the telephone com-' pany to remove the wire; and the latter company is liable for its negligence in permitting the broken wire to remain in such position as to become dangerously charged with electricity by contact with a light wire, which caused the death of the foreman when he took hold of it.</p> <p>[Ed. Note. — For other eases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16»</p>

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p> <p>In the matter of William W. Tracy and others, bankrupts. On petition to revise order of District Court.</p> <p>This cause comes here upon petition to review' an order of the District Court, Southern District of New York, referring it to William H-. Willis, as special master, to hear and determine the title and rights of persons who have instituted reclamation proceedings to recover, as their. Own, certain stocks, bo.nds, and securities found in the possession of the bankrupt or pledged by him, and of which the receiver and trustee, have- taken possession, or the proceeds thereof.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Proceeding for deportation of Yee King and Yee Sing under the Chinese exclusion act. From an order of the District Court, affirming an order of deportation made by the commissioner, defendants appeal.</p> <p>The cases were originally heard before United States Commissioner Shields in the Southern district of New York, who found that the defendants were Chinese persons and laborers and were within the said Southern district without having the necessary certificates of residence. He also found that the testimony that they were born in the United States was unsatisfactory and unconvincing and ordered them deported to China.</p>

' Kum Sue and Quan Ding were ordered deported to China, and from an order of the District Court, affirming that of the commissioner, they appeal.

<p>Shipping (§ 58*) — Charter—Deficiency in Speed — Liability of Owner.</p> <p>Evidence considered, and held insufficient to establish by .the decisive proof required to sustain an action for deceit that representations made in a charter party as to the speed of the vessel were not believed by the owner to be true, and therefore not to entitle the charterer to recover damages; the charter party expressly providing that “these particulars are not guaranteed.”</p> <p>(Ed. Note. — For other cases, see Shipping, Dec. Dig. § 58.*]</p>

<p>1. Food (§ 14*) — Food and Drugs Act — “Misbranding”—“Salad Oil.”</p> <p>“Salad oil” prima facie means olive oil, and, in the absence of evidence that the term has recently acquired a more general meaning to include other oils, its use without further explanation on packages of cot ton seed oil shipped in interstate commerce constitutes a misbranding in violation of Food and Drugs Act June 30, 1906, e. 3915, § 2, 34 Stat. 768 (U S. Comp. St. Supp. 1909, p. 1188).</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 14.*]</p> <p>2. Criminal Law (§ 1036*) — Writ of Error — Review.</p> <p>The question whether there was sufficient evidence to warrant the submission of a ci-iminal case to the jury cannot be raised for the first time in the appellate court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2641; Dec. Dig. § 1036.*]</p>

<p>Appeal from the Circuit Court of the United States- for the Southern District of New York.</p> <p>Suit in equity by Charles A. Juengst against Alexander Gullberg and Charles E- Smith, as copartners. Decree for defendants, and complainant appeals.</p> <p>This cause comes here on appeal from a decree of the Circuit Court, Southern District of New York, dismissing the bill. The suit was brought for alleged infringement of letters patent No. 761,496 issued May 31, 1904, to Charles A. Juengst for a signature-gathering machine. The opinion of the Circuit Court will be found in 171 Fed. 428. The following excerpt therefrom succinctly describes the art.</p> <p>“Printed sheets, as they come from a printing machine, are usually folded once or more. These folded sheets are known to the trade as signatures. They may be in pamphlets or simply sheets. They are gathered to form a book or magazine. A signature-gathering machine takes these several sheets or pamphlets automatically and assembles them for the book or magazine. As these sheets or pamphlets called signatures are frequently imperfect, by leaves being missing or too many present, it is essential that the machine be so constructed that it shall gather only perfect signatures, and that imperfect signatures may be detected in such a manner that the error may be readily corrected. The machine must be adjusted for a pre-determined thickness of the signatures, and, if there is a deviation from that, it must be detected.”</p>

<p>1. Patents (§ 157*) — Rules of Construction — Construction to Give Validity and Effect to Grant.</p> <p>Patents granted under the laws of the United States pursuant to Const, art. 1, § 8, are grants made in consideration of discoveries which ’‘promote the progress of science and useful arts,” and are to be construed liberally so as to effect their real intent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. >§§ 230, 231; Dec. Dig. § 157.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5228-5231; vol. 8, p. 7748.]</p> <p>2. Patents (§§ 27, 328*) — Invention and Infringement — Electric Wall Boxes.</p> <p>The Bossert patent, No. 571,297, is for an improvement in electric wall boxes which are constructed with holes already made in the bottom and sides so as to accommodate the entrance of the conduits at any desired point; the holes being closed, however, in such manner that the workmen wiring the house can open such as are required without special tools, leaving the rest of the box imperforate. This had previously been done in various ways, as by partially cutting out the holes, leaving uncut connections, by weakening the part so it could be knocked out, or by covering the holes with stiff paper or fitting them with stoppers. The improvement of the patent consisted in cutting the holes with an ordinary punching die and forcing the cut out portion back as a plug, where it is held by frictional contact, but may be readily punched out. Held that, although the punching process had been used for various other purposes, it had never before been applied to such boxes, and that, in view of the superior results attained by sucb construction, the improvement involved invention. Claim 5 also construed, and held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 31, 32; Dec. Dig. § 27.*]</p> <p>3. Patents (§ 328*) — Infringement—Electric Wall Boxes.</p> <p>The Bossert patent, No. 682,233, for improvement in outlet boxes for interior conduits, construed narrowly, and held not infringed.</p>

Habeas corpus, on relation of John Gordon, against George Crook, Major General Commanding the Military Department of the Platte. Hearing on writ and return. Order for surrender of petitioner to civil authorities.

In Equity. Suit by the Board of Trade of the City of Chicago against Thomas E. Price and others. On order to show cause why an injunction should not be granted.

In the matter of bankruptcy proceedings against C. M. Burkhalter & Co. Petition by Thomas M. Rogers, receiver, for a rule on the People’s Savings Bank & Trust Company, to show cause why it should not return a payment by a former receiver.

<p>Writ of entry by Benjamin W. Hubbard against the Worcester Art Museum. Judgment for defendant.</p>

<p>1. Bankruptcy (§ 21*) — Jurisdiction—Waiver.</p> <p>Where, in a proceeding in bankruptcy against stockholders of a corporation to compel the delivery of their stock to the bankrupt’s trustee, on the theory that an exchange of property for the stock by the bankrupt in tbe first instance was fraudulent, the stockholders, by answering to the merits, waived an objeción to the jurisdiction of the bankruptcy court to determine the issue oD.title to the stock.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 21.*]</p> <p>2. Bankruptcy (§ 250*) — Assets—Title to Corporate Stock — Determination.</p> <p>Where more than four months had elapsed between tbe date of issuing stock of a corporation and that of filing a petition in bankruptcy against M., who organized the corporation and transferred his property in exchange for stock, a part of which he had transferred to others, and in proceedings against such stockholders to recover the stock for the benefit of his estate in bankruptcy, on the theory that the transfer was originally void as to his creditors, it appeared that one of the alleged owners was an infant and that various other transactions and events were involved in determining the title of the stockholders, the matter should be determined in a plenary suit by tbe trustee, and not in a summary proceeding in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 250.*]</p>

<p>Action by Mary Marach against the Columbia Box Company and another. On motion to remand.</p>

<p>In the matter of Robert Greenberg & Bro., bankrupts. On petition to review the referee’s order requiring the bankrupts to turn over to the trustee concealed assets.</p>

<p>Parties (§ 40*) — Intervention—Suit rob Unfair Competition.</p> <p>In a suit for unfair competition in trade, consisting in part of the use by defendant of bottles for its product alleged to be similar in design to complainant’s and calculated to deceive purchasers, the fact that the bottles used by defendant are of a patented design does not give the manufacturer and patentee any legal or equitable interest in the suit which entitles him to intervene.</p> <p>[Ed. Note. — For other cases, see Parties, Dec. Dig. § 40.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Action by the McLean Hardwood Lumber Company against the South Memphis Land Company. Judgment for plaintiff, and defendant brings error.</p> <p>The defendant in error brought this suit for the recovery of damages by reason of the failure of the plaintiff in error to perform its agreement to furnish certain switching facilities. Upon a jury trial plaintiff recovered verdict and judgment for $15,000. There were motions for new trial and in arrest of judgment, both of which were overruled. The facts are these:</p> <p>Before and at the time of the making of the contract in question the defendant wais the owner of a large tract of land, for the most part undeveloped, adjoining the city of Memphis, Tenn., which it was desirous of developing, and on which it wished to secure the location of factories and industries generally. W. A. McLean, an officer of the Hugh McLean Lumber Company, which operated in the state óf New York and perhaps elsewhere, went, in the early summer of 1905, to Memphis, and there opened negotiations with defendant respecting the purchase of a site for a' large lumber manufacturing plant then ip .contemplation, The .site which was made the- subject of negotiation was at 'this time without any immediate railroad facilities, .not being on or connected with a railroad, and thus was unsuited to McLean’s requirements, which, as communicated to defendant, included switching facilities to all the railroads in Memphis. The tracks of the Illinois Central Railroad and the Yazoo & Mississippi Valley Railroad (the latter being under Illinois Central management) passed through the defendant’s lands. The Illinois Central also operated a belt line for switching ears to its own aind Other railroads in Memphis. The Union Railway Company, exclusively a belt line, w.as projecting its road towards defendant’s lands. McLean insisted that in the event of his purchase of the site in question he be furnished with both the Illinois Central and the Union Railway Company switching facilities. ' Defendant negotiated a contract with the Union Railway Company that the latter should construct its main track upon defendant’s land, including the locating of the line upon •‘Railroad Avenue,” so-called, and should construct spur tracks from the main line “to any industry that may be located on the said tract of land of (South Memphis) Land Company, upon the request of the land company, provided the business to be obtained by the railway company by the construction of such spur tracks will .be sufficient in the opinion of the managing officer of said railway company,” and on August 3, 1905, conveyed to McLean the 10-acre site in question upon a consideration of $5,000, of which $500 was paid down, the balance being secured by reservation of vendor’s lien. Concurrently with the delivery of this deed, the parties entered into a written agreement whereby, for a consideration of $5 paid by McLean to defendant “and of the consideration paid for” the 10-acre site in question, “the said South Memphis Land Company' for itself, its successors and assigns, covenants and agrees with the said William A. McLean, his heirs and assigns, as follows:</p> <p>“The said Wm. A. McLean expects to convey the said ten acres of land to a corporation known as the Hugh McLean Lumber Company, which will establish a branch in Tennessee after duly complying with Tennessee laws, and said Hugh McLean Lumber Company expects to use said ten acres of land as a site for its sawmill and: lumber yards. In order to operate said plant certain railroad and.transportation facilities and street improvements are necessary, and are guaranteed by the party of the first part as follows: (1) That the Illinois Central Railroad Company or the Y. & M. V. Railroad Company will, within sixty (60) days from this date construct necessary side track from its1 main line or from line on Railroad avenue, to the sawmill to be erected by the second party or his assigns. (2) That the Union Railway Company will, by February 1, 1906, erect a spur track from its line on Railroad avenue to the sawmill to be erected by the second party or his assigns. To enter yard of the second party at or near southeast comer of the ten-acre tract, and to continue north to the north boundary of said ten-acre tract. (3) The first party will cause Mallory avenué to be gradéd and graveled from Florida avenue to the Y. & M. V. Railroad within sixty (60) days from this date.</p> <p>“The covenants and undertakings of the first party in and by this agreement made and entered into are a part of the consideration moving from the second to the first party, paid upon the execution and delivery of said warranty deed to said ten acres of land, and run with that land to any company hereafter operating a sawmill plant thereon.”</p> <p>Instead of establishing in Tennessee a branch of the Hugh McLean Lumber Company, the plaintiff company was organized November 18, 1905 (which McLean testified “was the Hugh McLean Lumber Company”), to take over the site. The plaintiff company immediately began the erection upon the site of a large lumber manufacturing plant, completed the same (at a cost of about $100,600), and began the operation thereof in the latter part of April or early part of May, 1906; plaintiff’s total investment in and connected with the business done at the plant being about $250,000. The date of the conveyance of the site’ from McLean-to the plaintiff is not shown in the record, although the acknowledgment theré'-given bears date of December 17, 1906. The construetion of the Illinois Central (or Yazoo & Mississippi Valley) side track to plaintiff’s mill, as well as the grading and graveling of Mallory avenue, were done as provided by the contract. The Union Railway Company constructed its line up to the right of way of the Illinois Central Railroad Company, and was preparing to cross the tracks of that company and enter upon Railroad avenue when, upon bill filed by the latter company in the court below, it was on January 20, 1906, restrained, and on February 6, 1906, temporarily enjoined “from crossing or attempting to cross with railroad tracks the track of complainant with the same grade or level as the tracks of complainant at said point described in the bill until further order of this court.” The injunction was never dissolved, and, so far as shown by the record, the injunction suit has not been tried. The crossing has never been made, the tracks of the Union Railway Company have never been built on Railroad avenue, and no switch has been constructed from plaintiff’s plant to the tracks of the Union Railway Company. As early as April 3, 1906, plaintiff began complaining of defendant’s failure to furnish the agreed switching facilities, and on March 11, 1907, proceedings were threatened unless within 30 days the Union Railway Company’s switch should be furnished. Nothing resulting from this threat, this suit was begun May 8, 1907. The trial was begun December 4, T908. Upon the trial the court construed the contract in suit as obligating defendant to furnish an actual switch connection with the Union Railway Company, holding that the existence of the temporary injunction did not excuse defendant from liability to the plaintiff for failure to furnish the connection; submitted to the jury the question of plaintiff’s alleged waiver and defendant’s breach, and ruled that the measure of damages was the difference between the respective values of the plant with and without such switching connection. The jury fixed the date of the breach as February 1, 1906.</p>

Action by Jacob Berry and Harold L. Bennett, copartners as Jacob Berry & Co., for the use of John P. Darwent, against Mattie L. Chase and Ike A. Chase, executors of the last will and testament of William J. Chase, deceased. Judgment for defendants, and plaintiffs bring error.

Action by J. J. Boyle, administrator of the estate of Conrad Hoover, deceased, against the Petroleum Iron Works Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by Wincénta Cyborowski against the Kinsman Transit Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by Charles Russell, ancillary administrator of the estate of Charles F. McCay, deceased, against the Girard Trust Company. Decree for complainant (171 Fed. 161), and defendant appeals.

<p>1. Municipal Corporations (§ 78*) — Legislative Grant oe Power — Construction.</p> <p>Legislative grants of power to municipal corporations must be strictly construed, and cannot operate as a surrender of legislative power, except so far as expressly delegated or indispensably necessary to the exercise of some other power which has been expressly delegated.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 182; Dec. Dig. § 78.*]</p> <p>2. Municipal Corporations (§§ 680, 681*) — Powers—Grant oe Perpetual Franchise to Light Company.</p> <p>A legislative grant of power to a city generally to “provide for lighting the streets” and to “care for and control the streets” is not specific enough to warrant a grant by the city to a business corporation of the right to use the streets of the city forever for the purpose of conducting a general lighting business; that being a servitude not embraced within the ordinary control over streets usually given to municipalities.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1463; Dec. Dig. §§ 680, 681.*]</p> <p>3. Electricity (§ 4*) — Grant to Company oe Right to Use Streets — Construction — Duration oe Franchise.</p> <p>A city by ordinance granted to an electric light company a franchise to erect and maintain poles and wires “for the purpose of transacting a general electric light business through, upon, and over the streets, alleys, and public grounds of the city * * * under such reasonable regulations as may be provided by ordinance; * * * provided, further, that whenever the city council shall by ordinance declare the necessity of removing from the public streets and alleys the * * * electric poles or wires thereon constructed or existing said company shall within sixty days” remove the same. The company was not at the time incorporated, but was immediately afterward incorporated, in accordance with the understanding of the parties, for a term of 20 years. Held, that it could not be presumed that it was intended to grant to such company a perpetual franchise, but, no term being expressed, it would be construed as a grant at least for the life of the corporation, and that its assigns or successors might thereafter hold and enjoy the same at the will of the city only.</p> <p>[Ed. Note. — For ’ other cases, see Electricity, Cent. Dig. § 1; Dec. Dig. § 4 ;* Municipal Corporations,- Cent. Dig. § 1482.]</p>

Suit in equity by the Abilene National Bank, of Abilene, Kan., and others, against J. N. Dolley, as Bank Commissioner of the State of Kansas, and another. From an interlocutory order granting a preliminary injunction (175 Fed. 365), defendants appeal.

Action by T. H. Benton against William E. Kelley and Allan H. Daugharty, partners as W. E. 'Kelley & Co. Judgment for plaintiff, and defendants bring error.

Action by Rincoln Sutton against the Southern Railway Company.. Judgment for plaintiff, and defendant brings error. The defendant in error, who was the plaintiff below, recovered verdict and judgment against the plaintiff in error on account of injuries suffered by the plaintiff through collision with defendant’s railway engine. Defendant’s liability was predicated upon sections 1574 to 1576 of Shannon’s Code of Tennessee.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Daw (§ 150*) — Conspiracy—Overt Act — Statute op Dimitation.-.</p> <p>While under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), the gravarmen of the offense is the conspiracy, there also must be an -overt act to-make the offense complete, and so the period of limitation within which-it may be prosecuted must be computed from the date of the overt act. rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts, the period or limitation,must be computed from the date of the last of them, of which, there is appropriate allegation and proof.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 274, 275;. Dee. Dig. § 150.*]</p> <p>2. Conspiracy (§ 33*) — Overt Act — “Object of the Conspiracy.”</p> <p>Under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), making criminal’ a conspiracy “either to commit any offense against the United States or-to defraud the United States in any manner or for any purpose” when one or more of the conspirators do some “act to effect the object of the-conspiracy,” it is not enough that the conspiracy be directed to the attainment of some unlawful object, or to the attainment of some lawful object by unlawful means; it must be directed to the attainment of one of the objects specified. Nor is it enough that the overt act be directed to the attainment of another object; it must be directed to the attainment of the object which brings the conspiracy within the class made criminal; and when that object is attained '“the object of the conspiracy,” in the sense of the statute, is effected, and there cannot be a further overt act.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 60; Dee. Dig. § 33.*]</p> <p>S. Public Lands (§ 114*) — 'Patents—When Title Passes — “Perfect and Effective Patent.”</p> <p>Under the public land laws of the United States, a patent becomes perfect and effective when it is executed and is recorded in the office of the recorder of the General Land Office at Washington, and no further act is essential to pass the title.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 314-322; Dec. Dig. § 114.*]</p>

<p>1. Courts (§ 276*) — Jurisdiction of Federal Courts — District of Trial— Waiver.</p> <p>A corporation, sued by a nonresident in the Circuit Court for the Maine District as organized in that state, although in fact a citizen of another state, with the right'to object to the jurisdiction of the court in that district, waives such right by entering a general appearance; and, as it has full knowledge of the facts it cannot avail itself of the objection after plaintiff has amended his declaration to correctly allege its citizenship.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*</p> <p>Waiver of right a® to district in which suit may be brought, see notes to Memphis Savings Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. R. Co., 87 O. C. A. 634.]</p> <p>2. Trial (§ 238*) — Instructions—Refusal of Requests.</p> <p>The fact that language found in a requested instruction was copied from a judicial opinion does not necessarily render it error to refuse the request, since, as used in the opinion, it may be qualified by the text, and may not be correct as a general proposition.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 552, 562; Dec. Dig. S 238.*]</p> <p>3. Master and Servant (§ 267*) — Action for Injury to Servant — Evidence.</p> <p>In an action by an employe to recover for an injury received while tending a machine in defendant’s paper mill, the admission of evidence that defendant’s superintendent refused to allow plaintiff to go into the mill after the injury to examine the machinery held not error, under the circumstances of the case.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 267.*]</p>

<p>Appeal from Order of the District Court of the United States for the Southern District of Ohio.</p> <p>Involuntary bankruptcy petition by Albert Dorsch and others against the Herman Keck Manufacturing Company. From a bankruptcy adjudication, the debtor appeals. On motions with reference to the record. Allowed in part.</p> <p>This is an appeal by the debtor from a judgment adjudicating it to be a bankrupt upon a creditor’s petition. The record filed in this court contains about $2,000 typewritten pages. It appears from the certificate of the clerk that the transcript contains only such papers as the attorney for the appellant designated in a praecipe filed in the court below. Counsel agree that there is a large amount of evidence in the case which has not been transcribed or brought up to this court; but the appellant contends that it is not material on this appeal. The original books and records kept in the business of the appellant, and other exhibits, have not been copied or included in the transcript filed in this court.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p> <p>In the matter of Robert S. Pollet, bankrupt. The bankrupt appeals from an order refusing a full discharge.</p>

<p>Bankruptcy (§ 258*) — Sale op Mortgaged Property — Liability op Mortgagee por Commissions. -</p> <p>A court of bankruptcy is not a, court of general Jurisdiction for the adjudication of controversies or the administration of assets in which the bankrupt’s estate is in no wise interested, and if it undertakes to sell property which is subject to a mortgage, the validity of which is unquestioned, it is to be assumed that some benefit was expected to accrue . to the general creditors, and if. the proceeds are insufficient to pay the mortgage the holder is entitled to the full amount, without deduction for the commissions of the trustee and referee, where there is a general estate from which they may be paid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 258.*]</p>

<p>In Error to the Circuit Court of the United States for the District -of Massachusetts.</p> <p>Action by Hebron E. Young against the Richard T. Green Company. Judgment for plaintiff, and .defendant brings error.</p>

Action by Erank Knitter against the Chicago, Lake Shore & Eastern Railway Company. Judgment for defendant, and plaintiff brings error. The facts are stated in the opinion.

<p>1. Criminal Law (§ 824*) — Instructions—Necessity of Request.</p> <p>An accused cannot object to the court’s failure to charge on a legal issue, in the absence of a request therefor.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.*]</p> <p>2. Criminal Law (§ 827*) — Instructions—Requests to Charge — Sufficiency.</p> <p>A bare exception to a charge given is not equivalent to a request to charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 827.*]</p> <p>8. Criminal Law (§ 1186*) — Appeal—Reversal.</p> <p>Where the record fails to disclose proof of all the essential elements of an offense, or evidence from which the jury might have found them, the Circuit Court of Appeals may set aside the conviction, though the appropriate objection has not been made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1186.*]</p>

<p>1. Patents (§ 168*) — Construction—Proceedings in Patent Office.</p> <p>Where an -applicant for a patent acquiesces in the rejection of claims presented, and amends the same or substitutes others to meet the objections of the Patent Office, he must be deemed to have surrendered and disclaimed what he thus conceded,-and is bound by the limitations so imposed,. and it is immaterial whether the office was right or wrong in rejecting the original claims.</p> <p>[Ed. Note. — For other Cases, see Patents, Cent. Dig. § 244; Dec. Dig. § 168.*]</p> <p>•2. Patents (§ 328*) — -Infringement—Cargo Vessel.</p> <p>The Campbell patent, No.' 675,812, for a cargo vessel, as limited by the proceedings in the Patent Office, held, not infringed.</p>

<p>1. Patents (§ 224*) — Falsely Marking - Article as Patented — Action fob Penalty.</p> <p>Rev. St. § 4901 (U. S. Comp. St. 1901, p. 3388), which imposes a penalty for every offense of marking upon or affixing to any unpatented article the word “patent,” or any word importing that the same is patented, for the purpose of deceiving the public, does not prescribe a distinct penalty for each individual article marked, but merely for the offense of marking; and, in order to authorize the recovery of more than a single penalty, the proof must go further than to show the marking of a number of articles, and must toe sufficiently specific as to time and place and circumstance to show a number of distinct offenses of marking, although it need not show the specific date of each.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 354, 355; Dec. Dig. § 224.*]</p> <p>2. Patents (§ 224*) — Falsely Marking Article as Patented — Action fob. Penalty.</p> <p>To authorize the recovery of the penalty imposed by Rev. St. § 4901 (U. S. 'Comp. St. 1901, p. 3388), for marking upon or affixing to an unpatented article a word importing that the same is patented, for the purpose of deceiving the public, such purpose must be proved, and where the article is sufficiently like that described in a patent to.permit of an honest belief that It is within the patent, although on a construction of the patent the court is required to rule that it is not, the question of the intent of defendant in marking it as covered by the patent is one for the Jury.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 355; Dec. Dig. § 224.*]</p> <p>3. Patents (§ 224*) — Falsely Marking Article as Patented — Liability of Corporation — “Person. ’ ’</p> <p>A corporation is a “person,” within the meaning of Rev. St. § 4901 (U. S. Comp. St. 1901, p. 3388), which imposes a penalty on “every person” who marks am unpatented article with any word importing that the saméis patented for the purpose of deceiving the public, and may be convicted of such offense.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 354; Dec. Dig. § 224.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.)</p> <p>4. Witnesses (§ 297*) — Privilege—Officer of Corporation.</p> <p>An officer of a corporation is not privileged from giving testimony as-a witness because it may tend to convict the corporation of a penal offense.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1026, 1031; Dec. Dig. § 297.*]</p> <p>5. Witnesses (§ 307*) — Privilege—Persons Entitled to Claim Privilege.</p> <p>The claim that a witness is privileged from answering a question cannot be asserted on behalf of a third person.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1058-1060; Dec. Dig. § 307.*]</p>

<p>1. Patents (§ 26*) — Invention—New Combinations of Old Elements.</p> <p>There is' no invention in bringing old elements into new combinations-where each performs the same service as it did in the earlier art.</p> <p>[Ed. Note. — For other eases, see Patents, Gent. Dig. §§ 27-30; Dec. Dig. § 26.*</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 O. C. A. 123.]</p> <p>2. Patents (§ 16*) — Invention—Carrying Forward Old Idea.</p> <p>The mere carrying forward of an original conception, patented, involving only change of form, proportion, or degree, or the substitution of equivalents doing the same thing as did the original invention by substantially tbe same means with better effects, is not such invention as will sustain a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §| 14-25; Dec. Dig, § 16.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Incandescent Lamp Sockets.</p> <p>The Perkins patent, No. 626,927, for an incandescent lamp socket, held valid and infringed by one structure which had been made and sold by defendant, but not infringed by other styles.</p>

Suit in equity by Leo Frank and Israel De Keyser against William Bernard, heard on appeal and writ of error by William Bernard, Incorporated, to review an order of the Circuit Court, entered September 22, 1909, holding William Bernard, Incorporated, guilty of contempt of court for making and selling articles in violation of an injunction issued July 25, 1904, and fining the said corporation $500, half to the United States and half to the complainants.

In Equity. Bills by -the Shawnee Milling Company and the Updike Milling Company against Marcellus E. Temple, United States District Attorney, and Frank B. Clark, United States Marshal, and others, to restrain them from seizing complainants’ flour in interstate shipments under the national pure food law (Act Cong. June 30, 1906, c. 3915, 34 Stat.. 768 [U. S. Comp. St. Supp. 1909, p. 1187]).

In the matter of Potee Brick Company of Baltimore City, bankrupt. Proceedings to determine the rights of the Curtis Bay Company, landlord, as against James O. Dickinson, mortgagee of the bankrupt’s property. Judgment for the Curtis Bay Company.

<p>1. Master and Servant (§ 125*) — Injuries to Servant — Actionable Negligence-Defective Appliances — Knowledge of Defects.</p> <p>Where, in an action for injuries to a brakeman ¡by the breaking of a ladder rung on the side of a car, there was no proof that defendant knew of the defect in time to have repaired it before the accident, or that its condition had lasted so long that it could have been discovered by defendant’s use of reasonable care and prudent inspection, actionable negligence was not shown.</p> <p>Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]</p> <p>2. Courts (§ 372*) — Federal Courts — Rules of Decision.</p> <p>Whether the doctrine res ipsa loquitur applies to an action for injuries to a servant by the breaking of a ladder rung on the side of a freight car is a question of general jurisprudence, and not of local law, as to which federal courts are governed by their own decisions and not by those of the state in which the court is sitting.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 977-979; Dec. Dig. § 372.*]</p> <p>3. Master and Servant (§ 265*) — Injuries to Servant — Res Ipsa Loquitur.</p> <p>In an action for injuries to a brakeman by the breaking of a ladder rung on the side of a freight car, the burden is on plaintiff to prove actionable negligence, and is not shifted to 'the defendant under the doctrine res ipsa loquitur by plaintiff’s proof of the accident without evidence of ^defendant’s actual or implied knowledge of the defect within a time sufficient to have enabled it to have repaired the same.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*</p> <p>Application of doctrine of res ipsa loquitur in actions for injuries to servants, see note to Carnegie Steel Co. v. Byers, 82 C. C. A. 121.]</p>

At Law. Action by Martha A. Jenkins and her husband against the Atlantic Coast Line Railroad Company. On motion to strike the second defense from the answer.

<p>1. Equity (§ 166*) — Pleading—Double or Separate Pleas.</p> <p>Double or separate pleas are 'never allowed in equity without special leave of court, and then only in exceptional cases where special hardship and inconvenience would otherwise result.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 393, 400, 404; Dec. Dig. § 166.*]</p> <p>2. Equity (§ 166*) — Pleas—Duplicity.</p> <p>Where, in a suit by a minority stockholder against a corporation and the majority stockholder to restrain the foreclosure of a chattel mortgage and the enforcement of a judgment, and for other relief for fraud, the majority stockholder filed a plea without answer and without leave of court, first attacking complainant’s capacity to sue, and then setting up two different defenses, denying plaintiff’s right to attack the mortgage, the plea was bad for duplicity.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 404; Dee. Dig. § 166.*]</p> <p>3. Courts (§ 500*) — Conflicting Jurisdiction — Appointment.of Receiver by State Court.</p> <p>Appointment of a receiver for a corporation by a state court does not prevent a suitor in another forum, who began his suit before such appointment, from prosecuting it to judgment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 140S; Dec. Dig. § 500.*</p> <p>Conflict of jurisdiction with state courts, see note to 22 C. C. A. 356.]</p> <p>4. Corporations (§ 671*) — Foreign Corporations — Receivers.</p> <p>Appointment of a receiver for a foreign corporation by a state court does not prevent the corporation from exercising its franchise elsewhere, nor from continuing alleged fraudulent practices in matters not pertaining to the property within the state where the receiver is appointed.</p> <p>[Ed. Note. — -For other cases, see Corporations, Cent. Dig. § 2644; Dec. Dig. § 671.*]</p> <p>5. Corporations (§ 671*) — Foreign Corporations — Injunction—Receivers— Stockholders’ Rights.</p> <p>Where a 'receiver was appointed for a foreign corporation in New Jersey, and its powers were limited to the corporation’s property located within the state, an injunction issued only restrained the use of the corporation’s franchises in New Jersey and did not iirevent a minority stockholder from suing to prevent the fraudulent exercise of the corporation’s franchises in other states and to restrain the foreclosure of a chattel mortgage, and the execution of a judgment for fraud.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2643; Dec. Dig. § 671.*]</p> <p>6. Corporations (§ '211*) — Stockholders’ Bilu-Plea — Answer in Support.</p> <p>Where a minority stockholder’s bill alleged a fraudulent exercise of the corporation’s franchises, and prayed an injunction restraining the enforcement of a chattel mortgage and judgment against the corporation for fraud, it pleaded a cause of action within equity rule 94, providing for stockholders’ bills, so that a plea thereto not accompanied by an answer fortifying it, and explicitly denying the fraud as required by equity rule 32, was insufficient.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 823; Dec. Dig. § 211.*]</p>

<p>In Equity. Bill by W. A. Gaines '& Co. against the Rock Spring Distilling Company and others. On petition of the Heilman Distilling</p> <p>Company to intervene, and on sufficiency of defendants’ plea.</p>

<p>Assignments (§ 52*) — Equitable Assignments — Consteuction.</p> <p>.A bankrupt having assigned his interest under certain wills to a finance company to secure repayment of $50,000, certain French creditors attached the interest of the bankrupt in the hands of the executors, and in order to procure a release of the attachment, so that the finance company might receive certain payments from the executors, a letter,'approved by the bankrupt, was written to the foreign creditors’ attorney by the president of the "finance company, agreeing that after payment of- the amounts due it, including liens and actual disbursements, expenses, and counsel fees in certain suits, the finance company would pay to such attorney from the money coming into its hands on account of the bankrupt the full amount of the claims which he represented, and which were fully specified therein, on the faith of which the attachment was released. Held, that such letter constituted an equitable assignment of the bankrupt’s interest in such estates; the intention being to make over the bankrupt’s interest pro tanto in satisfaction of the claims.</p> <p>[Ed. Note.- — For other cases, see Assignments, Cent. Dig. §§ 107-111; Dec. Dig. § 52.*]</p>

<p>In the matter of David Z. Kaufman, bankrupt. On petition to review a referee’s appointment of a trustee.</p>

<p>Action of ejectment by the Elk Garden Company against the T. W. Thayer Company. On demurrer to declaration for want of jurisdiction.</p>

<p>1. Aliens (§ 62*) — Naturalization—“Good Moral Character.”</p> <p>“Good moral character,” within the provision of the naturalization act (Act June 29, 1906, c. 3592, 34 Stat. 596 [Ü. S. Comp. St. Supp. 1909, p. 475]), requiring a finding that applicant for citizenship has behaved as a man of good moral character, is such character as measures up to the standard of the average citizen of the community in which applicant resides.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 124; Dec. Dig. § 62.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3124.]</p> <p>2. Aliens (§ 62*) — Naturalization—Applicant’s Moral Character — Sufficiency.</p> <p>That applicant for citizenship keeps his saloon open in violation of the state Sunday closing act does not show want of the good moral character essential under the naturalization act (Act June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St Supp. 1909, p. 475]), where the law has never been enforced in his city on account of adverse public sentiment, and where he is willing to obey the law if insisted upon by the proper authorities.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 124; Dec. Dig. § 62.*]</p>

<p>Aliens (§ 32*) — Chinese Persons — Citizens—Evidence.</p> <p>Evidence held to require a finding that a Chinese person was born in the United States, and therefore was not subject to deportation under the exclusion law.</p> <p>[Ed. Ñote. — For other cases, see Aliens, Dec. Dig. § 32.*</p> <p>Citizenship of Chinese persons, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Dee Sing Far v. United. States, 35 C. C. A. 332.]</p>

At Law. Action by the United States, to the use of William F. Vaughan, against James Herbert Stitzer and another. On motion by defendants for judgment notwithstanding the verdict.

<p>At Law. Action by Thomas B. Hagstoz against the Mutual Life Insurance Company of New York. On demurrer to the court’s jurisdiction.</p>

<p>In the matter of bankruptcy proceedings by Morris Magen and an- . other. Application to punish the bankrupts for contempt.</p>

'Action by J. Howard Reber, trustee of J. Stern & Sons, bankrupts, against Louis Shulman & Bro. to recover a preference. On motions for a new trial and for judgment notwithstanding the verdict. Motion for judgment notwithstanding the verdict allowed.

<p>1. Bankruptcy (§ 414*) — Offenses Against Bankrupt Daw — Concealment of Assets.</p> <p>Where a bankrupt, while insolvent, conveys property to a near relative without consideration, and afterwards fails to disclose the existence of such property in his schedules, he is prima facie guilty of concealing assets from his trustee, though the conveyance may have been made more than four months before the petition was filed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 414.*]</p> <p>2. Bankruptcy (§ 408*) — Discharge of Bankrupt — Grounds for Refusal— Concealment of Assets.</p> <p>Where a bankrupt conveys property to a near relative without consideration, and fails to disclose it in his schedules, if the innocence of the transaction is made to appear, the conveyance and subsequent omission from the schedules will interpose no obstacle to the bankrupt’s discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 408.*]</p> <p>3. Bankruptcy (§ 415*) — Discharge of Bankrupt — Hearing—Question of Fact.</p> <p>On proceedings for the discharge of bankrupts, the question whether an explanation offered by them of a transfer to a near relative without consideration and of the omission of the property from the schedules is credible is a question of fact.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p> <p>4. Bankruptcy (§ 415*) — Discharge—Grounds foe Refusal — Concealment of Assets.</p> <p>Where the finding of a special referee rejecting the explanation given by bankrupts of a conveyance to a near relative without consideration and of the omission of the property from the schedules is supported by the evidence, the discharge of tíre bankrupts will be refused.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p>

<p>1. Railroads (§ 328*) — Accidents at Crossings — Care Required oe Automobile Driver — Duty to Stop, Look, and Listen.</p> <p>The duty of an automobile driver approaching a grade railroad crossing, where there is restricted vision to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1057; Dee. Dig. § 328.*]</p> <p>2. Railroads (§' 328*) — Accidents at Crossings — Contributory Negligence —Driver oe Automobile.</p> <p>The driver of an automobile which was struck by a train at a grade crossing of railroad tracks was chargeable with contributory negligence which precludes his recovery from the railroad company for his injury, where, as he approached the crossing, his view of the tracks in the direction from which the train approached was obstructed by buildings and trees until he reached a point within 30 or 40 feet from the track, from which point he could have seen along the track for at least 500 feet, but he drove upon the crossing without stopping to look or listen.</p> <p>[Ed. Note. — FOr Other cases, see Railroads, Cent. Dig. § 1058; Dec. Dig. § 328.*]</p> <p>3. Railroads (§ 327*) — Accidents at Crossings — Contributory Negligence —Person Riding in Automobile Driven by Another.</p> <p>One riding in an automobile by invitation of the owner and driver, with whom he sat on the front seat, equally with such driver was required to exercise care for his own safety, and where without objection or protest he permitted the driver to negligently drive upon a railroad crossing immediately in front of an approaching train without stopping to look or listen, exercising no care on his own part to ascertain whether the crossing was safe, although the view of the track was obstructed until they reached a point only a few feet distant, he is chargeable with negligence contributing to his own injury by the striking of the car by the train and cannot recover therefor from the railroad company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1055; Dec. Dig. § 327.*]</p> <p>4. Railroads (§ 330*) — Accidents at Crossings — Care Required oe Persons in Automobile.</p> <p>The fact that there was a flagman at a grade crossing of a railroad, and that he gave no warning nor did any act of any kind to mislead those approaching the crossing in an automobile, did not relieve such persons of the duty to themselves exercise care before driving on the crossing by stopping to look and listen when they reached a point from which they could first see along the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1072; Dec. Dig. § 330.*]</p> <p>5. Railroads (§ 327*) — Accidents at Crossings — Contributory Negligence-Occupant oe Automobile.</p> <p>A woman riding on the rear seat of an automobile, with two persons in the front seat and another in the seat beside her, at the time the car was struck by a train on a railroad crossing by which she was injured, held not chargeable with contributory negligence as.matter of law because. she' aid not look nor listen for the train, in the absence of evidence that she could have seen, Or that she knew.or could have known, that they were approaching the crossing.</p> <p>[Ed. Nóte'. — Eor other cases, see Railroads, Cent. Dig. § 1035; Dec. Dig. § 327.*] . .</p>

<p>1. Criminal Law (§ 284* )• — Plea in Abatement — Trial.</p> <p>Where a plea in abatement in a criminal case was submitted to the court and overruled, being determined as a question of law, it was not error, when it subsequently appeared that a question of fact was involved, to submit such question to a jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 655; Dec. Dig. § 284.*]</p> <p>2. Criminal Law (§ 1035*) — Appeal and Error — Necessity of Objections in Lower Court.</p> <p>The objection that an issue of fact raised by a plea in abatement in a criminal case was submitted to the jury which tried the case on the merits cannot be made for the first time in the appellate court, since there can be no reviewable error in relation to a question which was not presented to nor ruled upon by the trial court, unless the error was plain and absolutely vital to the defendants’ case.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig- § 2643; Dec. Dig. § 1035.*]</p> <p>3. Conspiracy (§ 43*) — Indictment—Variance—Designating Known Conspirator as Unknown.</p> <p>There is not a fatal variance between indictment and proof in a prosecution for conspiracy under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), because the indictment charges that defendants conspired with each other and with others to the grand jurors unknown, while the evidence shows that the name of another conspirator was in fact known, where the indictment fully sets out his connection with the conspiracy, and designates him by name, so as to clearly advise defendants of the charge against them.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 90; Dec. Dig. § 43.'*]</p> <p>4. Conspiracy (§ 45*) — Trial—Evidence.</p> <p>Evidence considered in a prosecution for conspiracy, and held to have a sufficient tendency to show the connection of other defendants with the conspiracy, to render letters written by them, charged in the indictment as overt acts, admissible in evidence against the defendants on trial.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 102; Dec. Dig. § 45.'*]</p> <p>5. Conspiracy (§ 47*) — Trial—Sufficiency op Evidence.</p> <p>In a prosecution under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for a conspiracy to defraud the United States, the government is not required to prove that all the overt acts alleged were committed, nor that all the defendants named in the indictment were engaged in the conspiracy, and, in such a prosecution, the fact that there was evidence tending ■to show that the conspiracy in which some of the defendants not on trial were engaged was separate from that in which' those on trial were engaged did not entitle the latter to an acquittal.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*]</p> <p>6. Criminal Law (§ 368*) — Evidence—Declarations of Co-Oonspirator.</p> <p>Declarations made by one conspirator while the conspiracy was in progress, and relating to its object, although not in furtherance thereof, are admissible as part of the res gestse against each conspirator.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 812, 815; Dec. Dig. § 368.*]</p> <p>7. Criminal Law (§ 369*) — Evidence—Competency.</p> <p>Where evidence is competent and relevant in a criminal case as tending to establish the guilt of defendant of the crime charged, it is not rendered incompetent because it may also tend to establish another offense or a breach of trust on his part.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. § 369.*]</p> <p>8. Witnesses (§ 372*) — Impeachment—Bias—Cross-Examination—Evidence of Other Offenses — Motion to Strike Out.</p> <p>Where, on cross-examination of a witness for the prosecution in a criminal case, it was sought to discredit his testimony by showing his hostility to defendant, the fact that his answers, admitting and explaining such hostility tended to show that defendant had committed other illegal acts did not entitle defendant to have them stricken out.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192, 1193; Dec. Dig. § 372.*]</p> <p>9. Criminal Law (§ 423*) — Evidence—Conspiracy.</p> <p>In a prosecution for conspiracy to defraud the United States of public lands by fraudulently acquiring state lands, and having them included within a national forest reservation, thus acquiring the right to select in exchange public lands of the United States of greater value, where one of the defendants was at the time of the transactions Commissioner of the General Land Office, evidence that the reservation was established on his recommendation, that news of the fact was given cut in advance of the official anouncement, and that his resignation was afterward requested by his superiors because of his conduct in relation to forest reservations was competent on the trial of a codefendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 989; Dec. Dig. § 423.*]</p> <p>10. Criminal Law (§ 1169*) — Review on Error — Harmless Error — Admission of Evidence.</p> <p>Testimony admitted on the trial of an indictment for conspiracy held competent and material, and its admission, even if erroneous, not prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. § 1169.*]</p> <p>11. Criminal Law (§ 371* ^Evidence — Acts Part of a Series Showing Design-Conspiracy.</p> <p>On the prosecution of defendant for conspiracy to defraud the United States of public lands by fraudulently.acquiring state lands of little or no value, procuring their inclusion in a national forest reservation, and obtaining lieu lands of greater value from the government in exchange therefor, evidence of such fraudulent acquiring of state lands within the boundaries of the reservation subsequently established more than three years before the finding of the indictment, and the sale of which by the state had afterward been validated by an act of the Legislature, was nevertheless admissible as tending to prove the intent and design of the conspiracy.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832: Dec. Dig. § 371.*]</p> <p>12. Criminal Law (5 150*) — Limitation—Conspiracy.</p> <p>Where an alleged conspiracy to defraud the United States contemplated various overt acts, and the consequent continuance of the conspiracy beyond the commission of the first one, each overt act gives a new, separate, and distinct effect to the conspiracy, .and constitutes another crime, and a prosecution is not ..barred until three years after the last overt act averred in the indictment</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 274, 275; Dec. Dig. § 150.*</p> <p>Commencement of period of limitations against prosecutions for continuing offenses, see note to Ware v. United States, 84 C. C. A. 519.]</p> <p>13. Criminal Law (§ 371*) — Evidence—Similar Acts Showing Design.</p> <p>On the trial of a defendant fpr conspiracy to defraud the United States of public lands, evidence that hie had'previously been engaged in the illegal acquisition of public lands elsewhere by a different method was admissible as bearing upon the questions of intent, purpose, and design.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 832; Dec. Dig. § 371.*]</p>

<p>1. Conspiracy (§ 43*) — Conspiracy to Defraud the United States — Indictment.</p> <p>An indictment under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for conspiracy to defraud the United States of public lands is not one charging a conspiracy to do an act not unlawful in itself, because there is no separate statute making it a crime to defraud the United States, so that it is necessary to set out criminal or unlawful means to charge an offense, but the statute itself makes a conspiracy to defraud the United States a distinct crime, and no further offense need be averred nor proved.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 79, 97; Dec. Dig. § 43.*]</p> <p>2. Conspiracy (§ 43*) — Conspiracy to Defraud the United States — Indictment.</p> <p>An indictment for conspiracy to defraud the United States of public lands by fraudulently obtaining the title to worthless state lands, securing the establishment of a forest reserve including such lands and then exchanging the same for public lands of the United States under the law authorizing such exchange, is not bad because it does not describe the state lands to be so acquired, further than to state the counties in which they are situated, where they had not been obtained and no further description was possible.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § &7; Dec. Dig § 43.*]</p> <p>3. Conspiracy (§ 45*) — Conspiracy- to Defraud the United States — Evidence — Materiality.</p> <p>In a prosecution for conspiracy to defraud the United States of public lands by fraudulently acquiring state lands and exchanging them under the forest reservation laws for lands of the United States, evidence of the fraudulent acquisition of the state lands was material as showing the foundation on which the conspiracy was based and the method of procedure adopted to carry it into effect.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 100; Dec. Dig § 45.*]</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>The Standard Oil Company of New York was convicted of a criminal offense, and it brings error.</p> <p>Writ of error to review a judgment of the District Court, Western district of New York, entered upon the verdict of a jury finding the defendant guilty of violations of the act to further regulate commerce of February 19, 1908, commonly known as the “Elkins Act.” Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Snpp. 1909, p. 1138). In the following statement and opinion the parties are designated as in the court below.</p> <p>There are 40 counts in the indictment and the offense charged in each of them is the acceptance of a concession from published and filed tariffs on the interstate transportation of petroleum. Each count covers the transportation of a car load of oil on a date between August 15, 1904, and May 17, 1905. In 28 counts the transportation is between Olean, N. Y., and Rutland, Vt., and in the remaining 12 counts, between said Olean and Bellows Falls, Vt. The allegations of a typical indictment are, in substance, that the Pennsylvania Railroad Company, the New York Central & Hudson River Railroad Company, and the Rutland Railroad Company were common carriers engaged in the transportation of property over their connecting railroads from Olean, N. Y., to Rochester, N. Y., thence to Norwood, N. Y., and thence to Rutland, Vt, under a common arrangement for continuous carriage; that the published and filed tariff and, consequently, the lawful rate of the Pennsylvania and New York Central Railroads for the transportation of petroleum was 26% cents from Olean to Norwood, and that the rate of the Rutland road from Norwood to Rutland was $28 per tank car; that the defendant knew the foregoing facts; that the said common carriers, at the defendant’s request, unlawfully transported over said route a car load of oil in a tank car at a rate lower than that named in said tariff; and that thereby the defendant knowingly accepted and received a concession in violation of the statute.</p> <p>The following is a statement of the facts in the case which are undisputed, although the parties draw different inferences therefrom:</p> <p>The shipments in question were made on orders sent to the Vacuum Oil Company, a corporation doing business at Olean, N. Y., by the defendant through its agents in Vermont. The shipments were delivered by the Vacuum Company to the Pennsylvania Railroad at Olean. With each shipment the Vacuum Company delivered to the railroad agent a shipping order and bill of lading; one being a duplicate of the other. The agent retained the shipping order and signed the receipt on the bill of lading and returned the latter to the Vacuum- Company. The Vacuum Oil Company indicated in its shipping order and bill of lading the route which the transportation should take, viz., by the Pennsylvania to Rochester, by the New York Central to Norwood, and by the Rutland Railroad to Rutland.* At the time of each shipment a postal card was sent by the Vacuum Company to the defendant’s agent at the place of destination notifying him of the shipment. These notices stated the aforesaid route as that over which the shipments would move.</p> <p>The waybill contained no statement of the rate, but did contain the following direction: “Agent N. Y. C. and H. R. R. R., Rochester, N. Y., prepay charges from Rochester to Norwood and charge to the Standard Oil Company of New York.” This m'ethod of billing, without stating the charges, is called “blind billing.”</p> <p>When the'car arrived at Rochester it was transferred from the Pennsylvania to the New York Central tracks, and a transfer card’ was delivered from the one railroad to the other. Thereupon the New York Central’s agent made out a waybill covering the transportation from Rochester to Norwood, and sent the same to the Central’s agent at Norwood. This waybill stated the rate and the aggregate freight change for the transportation1 between Rochester and Norwood. At Norwood the car was switched from the Central’s tracks to the tracks of the Rutland Railroad, and toy that road was hauled to the Vermont points and delivered to the defendant’s agents.</p> <p>The rate charged by and paid to the Pennsylvania for the transportation from Olean to Rochester was 9 cents per barrel; to the New York Central for the transportation from Rochester to Norwood, 9 cents per hundred pounds, and to the Rutland Railroad for the transportation from Norwood to Rutland, $28 per tank car. This 9 cents per barrel rate of the Pennsylvania road was under a rate order in force at the time of the shipments which was marked “not to be posted,” and was not published or filed. The 9 cents per hundred pounds rate of the New York Central was under an unpublished rate order also marked “not to be posted,” and which was in force at the time of the shipments! This rate, however, applied only to shipments destined to points on the Rutland road beyond Norwood. No tank shipments were made to Norwood, and the rate upon all shipments which stopped at Norwood was higher. The rate paid the Rutland road was in accordance with its lawfully filed tariff. . •</p> <p>The tariff upon petroleum and its products from Olean, N. Y., to Norwood, N. Y., as published and filed with the Interstate Commerce Commission by the Pennsylvania Railroad in April, 1904, was at the rate of 26%’ cents per hundred pounds. A concurrence in this rate was duly filed with the Commission by the New York Central Railroad. No revocation of this tariff or of the concurrence therein had been made prior to the shipments in question, and no other tariffs of the Pennsylvania and Central roads concerning rates for the transportation of oil between Olean and Norwood, or by either road for part of the distance, were filed -with the Commission during the time of such shipment It did not appear, however, that any shipments of oil had ever been made from Olean to Norwood at the 26%-cent rate. This rate upon the shipments in question amounted to much more than the rate actually charged and paid.</p> <p>There were two possible routes over which shipments could have moved from Olean to Norwood. One was the fairly direct route by way of Rochester which the shipments actually took. Another was a more roundabout route over the Pennsylvania from Olean to Buffalo, and thence over the New York Central by way of Suspension Bridge and Charlotte, N. Y., to Norwood. The published tariff did not designate the route which shipments made thereunder should take, but contained the following statement: “Route in accordance with agreed percentages and as designated within.” It did not appear that any oil was ever carried over the route by way of Buffalo.</p> <p>Other material facts are stated in the opinion.</p>

Suit in equity by the Singer Sewing Machine Company of New Jersey against James F. Benedict, Treasurer of the City and County of Denver, and others. Decree for defendants, and complainants appeal.

<p>1. Limitation of Actions (§ 130*) — New Action After Dismissal of Former Action — Suit Against Wrong Defendant — Virginia Statute.</p> <p>Code Va. 1904, § 2934, which provides that where an action is brought against the wrong defendant, and judgment is rendered against the plain-tilt solely on such ground, he may bring a new action within one year thereafter, notwithstanding the expiration of the time within which the action must otherwise have been brought, applies to any case where, through a misapprehension of the facts or for any other reason, without fraud, the action is brought against the wrong party, and is for that reason dismissed by the court.</p> <p>TEd. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 561; Dec. Dig. § 130.*]</p> <p>2. Carriers (§ 315*) — Action for Injuries — Variance—Allegations of Neg- - ligence.</p> <p>Under the rule of pleading in Virginia that the declaration must allege the facts upon which plaintiff relies as constituting his cause of action, that defendant may be advised of the issue he is required to meet, which rule governs the federal courts in that state by virtue of the conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), a declaration in an action against a street railroad company which alleges that after plaintiff had boarded one of defendant’s cars as a passenger, and was standing on the step, defendant’s empolyés negligently ran another car against him by which he was injured, is not supported by evidence that the car on which plaintiff was standing was moving while the other car was standing still at the time of' the injury, and an instruction permitting a recovery on such state of facts was erroneous.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1281, 1282; Dec. Dig. § 315.*]</p> <p>Brawley, District Judge, dissenting.</p>

Suit in equity by Abram C. Mott against the Buckhorn Portland Cement Company; John T. McGraw intervener. Decree for complainant, and the intervener appeals.

In the matter of Thomas B. Teter, bankrupt. Appeal by Mary Sophia Teter from an order of the District Court in bankruptcy. T. B. Teter was adjudged a bankrupt on the 16th of March, 1909, and on the same day an order was entered referring the matter to Referee George P. Shirley.

<p>1. Criminal Law (§ 97*) — Jurisdiction—Locality of Offense — “Haven.”</p> <p>Waters inclosed in whole or in part by a breakwater or other artificial structure to afford a protected anchorage, as well as those so inclosed by natural land, constitute a' “haven” within Rev. St. §§ 5346, 5361, 5362 . (U. S. Comp. St. 1901, pp. 3630, 3640), making certain acts offenses against the United States when committed “upon the high seas, or in any arm ...of the sea, of in any river, haven, creek, basin or bay within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state.”</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 183, 184; Dec. Dig. § 97.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3220.]</p> <p>2. Criminal Law (§ 97*) — Jurisdiction—Locality of Offense — “Haven.”</p> <p>The waters inclosed between the shore and the government breakwaters in Lake Erie at the port of Buffalo, without as well as within the line designated on the government chart as “Buffalo Harbor Line,” constitute a “haven,” and not “high seas,” within the meaning of Rev. St. § 5346 (U. S. Comp. St. 1901, p. 3630), and an assault with a dangerous weapon committed on a vessel belonging to the United States or citizens 'thereof anchored in such waters is within the state, and not the federal, jurisdiction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 183, 184; Dec. Dig. § 97.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3287-3289.]</p> <p>3. Criminal Law (§ 97*) — Jurisdiction—Offense Committed on Vessel on a Voyage.</p> <p>A steam vessel which has been towed from her winter berth on one of the Great Lakes to an anchorage to be fitted out for tbe season, but which has not signed a crew nor had a fire built uuder her boilers, is not “on a voyage,” so that jurisdiction of an offense committed thereon is given to the courts of the United States by Act Sept. 4, 1890, c. 874, 26 Stat. 424 (U. S. Comp. St. 1901, p. 3627).</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 183, 184; Dee. Dig. § 97.*]</p> <p>Coxe, Circuit Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by George Hanna against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity by Allen W. Field and others, as policy holders in the Western Indemnity Company, against George M. Moulton and others. Decree for complainants (166 Fed. 607), and defendant Moulton appeals.

<p>Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by James Talcott against Henry Eriend, Solomon C. Moss, and Henry Morris. Judgment for defendants, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Emma V. Coppock against the Baltimore & Ohio Railroad Company. Judgment for plaintiff (174 Fed. 264), and defendant brings error.</p>

Action by John P. Moore, administrator of the estate of Sallie B. Kraft, deceased, against E. W. Kraft. Judgment for defendant, and plaintiff brings error. In April, 1909, plaintiff in error filed his declaration in debt against defendant in error upon a judgment rendered in a state court of Arkansas.

<p>Aliens (§ 68*) — Proceedings foe Naturalization — Qualifications of Witnesses.</p> <p>Under Naturalization Act June 29, 1906, c. 3592, §§ 4, 5, 34 Stat. 596, 598 (U. S. Comp. St. Supp. 1909, pp. 478, 480), which provide that an applicant’s petition for naturalization shall be verified by the affidavits of at least two credible witnesses who are citizens of the United States, that on the hearing the testimony of at least two witnesses who are citizens of the United States shall be required to the fact of residence, etc., and that on the filing of the petition the clerk shall give notice by posting of the filing thereof and of the names of the witnesses whom the applicant expects to summon in his behalf, “hut in case such witnesses cannot be produced, upon the final hearing other witnesses may be summoned,” the witnesses at the final hearing are not required to be the same who verified the petition, nor is the applicant limited to those whose names are given in the posted notice, but in case they, or either of them, “cannot be produced,” he may summon others, subject to the right of the court to make whatever orders may be deemed necessary to enable the government to investigate as to their qualifications, character, and credibility.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 68.*]</p>

<p>■Appeal from the Circuit Court of the United States for the Eastern District of Illinois.</p> <p>Suit in equity by Edwyn E. Watts against the La Hogue Drainage District No. 1 of the County of Iroquois, State of Illinois, and Louis Kraft, Jr., Patrick Drinan, and Albert • Vandervliet, Commissioners. From an order granting a preliminary injunction, defendants appeal.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Action by William H. Lohr against the Federal Lead Company. Judgment for plaintiff, and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Illinois, in Bankruptcy. In the matter' of John King, alleged bankrupt. On petition by bankrupt for revision of orders of the District Court in proceedings by Bank of Whiting and others.

<p>Maritime Liens (§ 65*) — Repairs—Work Ordered by Charterer.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting on a libelant to show by a clear preponderance of the evidence that repairs made on claimant’s barge, for which the suit was brought, were ordered by claimant’s agent; it being shown that the barge was delivered for repairs by the charterer, which had a running account with libelant, and to which the work was charged, and which was required by the charter to pay for the same.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 10S; Dec. Dig. § 65.*]</p>

Information by the United States for the forfeiture of one engine and belting, etc., for violation of the internal revenue laws. Donegan & Swift and William E. Headley claim the property. From the decree, the United States appeals.

Action by the Fidelity Trust Company, trustee under the will of Richard Smith, deceased, against the American Surety Company of New York. Judgment for plaintiff (175 Fed. 200), and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by Fairchild Bros. & Foster, a corporation, against John J. Boehm. Decree for complainant, and defendant appeals.</p>

Suit in equity by the Farbenfabriken of Elberfeld Company against Edward A. Kuehmsted. Decree for complainant (171 Fed. 887), and defendant appeals. The appeal is from a decree of the Circuit Court sustaining patent No. 644,077, issued February 27, 1900, on an application filed August 1, 1898, to Felix Hoffmann of Elberfeld, Germany, assignor to appellee; finding appellant an infringer thereof; and granting an injunction.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the Wilson Trolley Catcher Company against the Frank Ridlon Company and others. Decree for defendants (173 Fed. 308), and complainant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Arkansas.</p> <p>Action by Union County National Bank of Liberty, Indiana, against the Ozan Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Bills and Notes (§ 330*) — Checks—-Indorsement—Rights of Indorsee.</p> <p>Where defendant drew a check to its own order, and indorsed it without restriction for credit to an insolvent bank, in which defendant had an account, and the indorsee indorsed the check for collection and credit to plaintiff bank, its correspondent, which credited the check, and paid out the amount thereof on drafts of the insolvent bank before notice of the. bank’s failure, when defendant stopped payment of the check by the drawee hank, plaintiff, having no knowledge that the insolvent bank was a mere collecting agent, was entitled to assume that it had title to the check which it could transfer, and hence was entitled to recover thereon.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 330.*]</p>

<p>In the matter of David Jackier, bankrupt. On petition by the receiver to compel Adolph Leventhal to deliver goods alleged to belong to the bankrupt.</p>

<p>In the matter of the bankruptcy of the Caloris Manufacturing Company. Heard on certificate of referee disallowing claim of landlord.</p>

In the matter of Josiah Robinson, bankrupt. Application for an •order for the .examination of George McMasters before a referee in 'bankruptcy in another district in support of a creditor’s specifications •of objection to the bankrupt’s discharge.

<p>In Bankruptcy. In the matter of the Northampton Portland Cement Company. On.motion to enter adjudication.</p>

<p>Triad (■§ 259*) — Requested Charge — Form.</p> <p>An oral request to charge, made after the charge had ¡been delivered and as the jury was about to retire, was properly refused, under the rule that such requests must be plainly written and so framed that the court’s answer will be full, direct, and explicit by a simple affirmation of negation, and that a copy shall be presented to the court and the opposite counsel at the close of the evidence and before argument.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 648; Dec. Dig. § 259.*]</p>

<p>At L,aw. Action by Charles R. Hamilton, receiver, against Ferdinand L. Loeb. On final hearing. Judgment for defendant.</p>

Information for violation of the pure food and drug law of the United States by George B. Curtiss, District Attorney, against Frank J. Baumert and others. On motion for process.

In the matter of the bankruptcy of W. C. Carpenter. Petition to review the order of the referee disallowing the claims of Mrs. Carrie J. Carpenter.

In the matter of the bankrupt proceedings of Charles M. Davison. On petition of the Citizens’ National Bank for review of a referee’s order for settlement of allowance of trustee’s account involving a prior order fixing the value of a secured creditor.

<p>Shipping (§ 209*) — Limitation op Vessel Owner’s Liability — Scope op Remedy — Single Claim por Less Than Appraised Value.</p> <p>Rev. St. § 4283 et seq. (U. S. Comp. St. 1901, p. 2943), limiting a vessel owner’s liability for damage done without bis privity or knowledge to the value of bis interest in the vessel and in ber freight then pending, and Supreme Court admiralty rules 54 to 57, prescribing procedure to ascertain the value of such interest, etc., relate to a claim or claims growing out of'a particular act for which it is sought to hold the owner liable, and in the proceeding to limit the owner’s liability it is these claims only that are pertinent in the first instance, the ultimate disposition of the fund produced by the owner’s interest being a matter for subsequent determination; and admiralty, may refuse to exercise its jurisdiction to limit liability, where there is and can be only a single claim against a single owner, and when the appraised value of the vessel exceeds many times the sum already adjudged to be due claimant.</p> <p>[Ed. Note. — For .other cases, see Shipping, Cent. Dig. § 648; Dee. Dig. § 209 *</p> <p>Limitation of owner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p>

<p>1. Banks and Banking (§ 287*) — National Banks — Shareholder's Agent —Suit.</p> <p>Where a shareholder’s agent has been appointed to take charge of the assets of a national bank under Act June 30, 1876, c. 156, § 3, 19 Stat. 63 (U. S. Comp. St. p. 3510), providing that such agent may sue and be sued in his own name or in the name of the association, suit was properly instituted against him by an alleged creditor of. the bank to recover on a guaranty collateral to a sale to complainant of certain stock owned by the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 287.*]</p> <p>2. Banks and Banking (§ 260*) — National Banks — Guaranty—Ultra Vibes.</p> <p>Where a national bank, in order to induce complainant to purchase certain steamship stocks owned by it, agreed to take complainant’s note for $50,000 for the stock and hold the stock as collateral security, and to guarantee plaintiff against any loss in the transaction from the execution and delivery of the note, such guaranty was not an ordinary commercial guaranty, but one outside the ordinary business of banking, and ultra vires.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 260.*]</p>

Thomas H. Campbell, Henry C. Stump, and George Turner and another having been indicted in the District of Columbia for conspiring to violate the so-called “bucket shop” law, the United States applies for warrants of removal.

<p>1. Bills and Notes (§§ 358, 379*) — Bona Pide Holders — Creditors,</p> <p>Under sections 25, 27, 29, art. 2, of the Missouri and Pennsylvania negotiable instruments acts (Laws Mo. 1905, p. 247 [Ann. St 1906, §§ 463— 25, 463 — 27, 463 — 29]; Act Pa. May 16, 1901 [P. L. 199]); mailing a preexisting debt a 'valuable consideration, providing that where a holder has a lien on the instrument he is deemed a holder for value to the extent of his lien, and making an accommodation indorser liable to a holder for value, accommodation indorsers are liable on a note transferred before maturity to a creditor as additional collateral security for a preexisting debt.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 922; Dec. Dig. §§ 358, 379.*]</p> <p>2. Pledges (§58*) — Collateral Notes — Liability.</p> <p>Judgment is properly awarded against accommodation indorsers for the full amount of a note deposited with the holder as collateral security, though tliere have been payments on the original note; execution on the judgment being properly controlled to avoid injury to the indorsers.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 180; Dec. Dig. § 58.*]</p>

<p>In the matter of Barned Schwartz, bankrupt. On report of special master.</p>

<p>1. Bankruptcy (§ 413*) — Discharge op Bankrupt — Objections — Sufficiency.</p> <p>An objection to tbe discharge of a bankrupt because of his failure to keep proper books of account, which does not state that such failure was with intent to conceal his financial condition, is insufficient, but the defect is amendable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 413.*]</p> <p>2. Bankruptcy (§ 413*) — Discharge of Bankrupt — Objections — Sufficiency.</p> <p>Objections to the discharge of a bankrupt, charging in effect a fraudulent transfer of the bankrupt’s property within the four months period, are sufficient.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 413.*]</p>

Action by the Charlotte National Bank of Charlotte, N. C., against the Southern Railway Company. There was a directed verdict for defendant, and plaintiff brings error.

In the matter of Nathan B. Trank, bankrupt. Trom an order denying the bankrupt’s application for discharge on objections of the Michigan Paper Company and Kalamazoo Paper Company, the bankrupt appeals. On the 21st day of May, 3908, the firm of McDonald & Frank, at the time composed of Walter A. McDonald and Nathan B. Frank, was adjudicated an involuntary bankrupt.

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>In Admiralty. Suit by Henry Lund and Henry Lund, Jr., partners as Henry Lund & Co., against the Swedish bark Medea. The Aktiebolaget Standard, claimant. Decree for respondent (173 Fed. 498), and libelants appeal.</p>

Action by P'lorence E. Parks against the Illinois Commercial Men’s Association. Judgment for plaintiff, and defendant brings error.

Action by Stella E. West, administratrix of the estate of Henry W. West, deceased, against the Chicago/ Burlington & Quincy Railway Company. Judgment for defendant, and plaintiff brings error.

Suit in equity by Harvey H. Atherton, as trustee in bankruptcy of James W. Quillen, against J. W. Green and Barnet Trimmer. Decree for defendants, and complainant appeals.

<p>In Error to the District Court of the United States for the Western District of Arkansas.</p> <p>Clarence C. Waller was convicted of a criminal offense, and brings •error.</p>

<p>1. Bills and Notes (§ 144*) — Negotiability.</p> <p>A note is not negotiable merely because it contains no conditions .precedent, performance of which must be alleged in suing on it.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. § 360; Dec. Dig. § 144.*]</p> <p>2. Bills and Notes (§ 164*) — Negotiability—Essentials.</p> <p>It Is elementary that a promise to pay must he absolute and unconditional to make the instrument containing it a negotiable note.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. 411; Dec. Dig. § 164.*]</p> <p>3. Bills and Notes (§§ 164, 315*) — Negotiability—Defenses Against Assignee of Nonnegotiable Note.</p> <p>A note containing special stipulations and payable on a contingency is not negotiable, and is subject in the hands of an assignee to any defense available against the payee.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 411, 758; Dee. Dig. §§ 164, 315.*]</p> <p>4. Bills and Notes (§ 315*) — Defenses Against Assignee of Nonnegotiable Note.</p> <p>When payment of a note is expressly made subject to equities growing out of, and defenses based'on, an existing or contemporaneous agreement, one taking the note holds it subject to such equities and defenses.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 758; Dec. Dig. § 315.*]</p> <p>5. Bills and Notes (§ 315*) — Defenses Against Teansfekee.</p> <p>A note “subject to terms of contract between maker and payee” of a specified date is subject to the maker’s defenses in the hands of a transferee.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 758; Dec. Dig. § 315.*]</p>

District of Illinois. Habeas corpus proceeding by Nicholas' Manolis against Daniel D. Davies, Immigration Inspector in charge at Chicago.

The French Silver Dragée Company was convicted of violating the pure food act, and it brings error. Writ of error to review a judgment convicting the plaintiff in error (hereinafter called the defendant) of a violation of Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by Charles T. E. Churchill, Alexander B. Sim, Thomas G. Sharp, Frederick E. Elliott, H. M. Taylor, and Charles S. G. Clark, copartners doing business as Churchill & Sim, against Charles C. Heisen, George W. Griffin, George C. Waddill, and G. M. Selden, co-partners as the Chicago Export Dumber Company. Judgment for plaintiffs, and defendant Heisen brings error.</p> <p>The action in the Court below was by defendants in error, co-partners doing business as Churchill & Sim, London, England, against the plaintiff in error, Charles O. Heisen, and George W. Griffin, citizens of Illinois; George C. Waddill, a citizen of New York; and G. M. Selden, a citizen of Mississippi, co-partners as The Chicago Export Lumber Company. The suit was on an account and for money advanced. A separate plea was filed by Heisen (none of the other defendants joining in this proceeding in error) denying that at the times in the declaration mentioned, or at any other time, he was a co-partner of the other defendants; and the plea of the general issue. Accoml>anying these pleas, was notice to Churchill & Sim that on the trial the defendants would give evidence that Churchill & Sim were indebted to the defendants in the sum of $35,000 (the judgment prayed for in the declaration was for $10,000), on account of certain goods, chattels, etc., delivered to Churchill & Sim by the defendants, the copy of the account bearing the following. heading: “Churchill & Sim, to C. C. Heisen, George Griffin, George C. Waddill, G. M. Selden, co-partners as The Chicago Export Lumber Company, Dr.”</p> <p>The bill of exceptions shows that upon the case coming up for hearing, and as the result of a colloquy between counsel, the Court ruled that owing to the language in the notice of set-off, to wit, the heading to the copy of the account sued on aforesaid, plaintiff in error was precluded from proving, in support of his special plea that he was not a partner, that the Chicago Export Lumber Company was a corporation and was not a copartnership. An exception having been saved to this ruling, plaintiff in error moved to withdraw the plea of set-off, which motion was denied and an exception duly reserved. Thereupon, defendants tendered as evidence that they were not co-partners, the original articles of incorporation, incorporating them under the name of the Chicago Export Lumber Company. Limited, under the laws of the State of Louisiana; the certificate of the proper officer of the State of Louisiana that the same was approved; the certificate of the clerk and ex officio recorder that the same had been recorded; as also the testimony of the plaintiff in error:</p> <p>“That he is one of the defendants in this suit, and that he and the other defendants, Waddill, Griffin and Selden, were members of the corporation known as the Chicago Export Lumber Company, Limited; that this corporation is the one that dealt with the plaintiffs Churchill & Sim during the period covered by the transactions Involved in this suit; that those transactions are the same as were had by the corporation Chicago Export Lumber Company, Limited, with the plaintiffs, Churchill & Sim and that there were no other transactions with them by these defendants; that in the fall of the year 1S99 before these transactions were begun, he was in London, England, and that then and there he arranged to do business with the plaintiffs and then and there stated to the plaintiffs that he would return home and incorporate a company to deal with them in timber and lumber; that in the spring of 1909 he was again in London, England, and had an interview with the plaintiffs, in which he informed a member of the firm that his company was in process of incorporation and that said firm had actual personal knowledge of this fact; that many letters and drafts of the Chicago Export Lumber Company Limited to and upon the plaintiffs in the early part of their dealings were signed by himself as president of the company and Griffin as Secretary of the Company; that he was never a co-partner with the defendants Griffin, Waddill and Selden, and that therefore neither he nor either of the other defendants ever held themselves out as co-partners either to the plaintiffs or to anyone else” ;</p> <p>—all of which was excluded upon the objection of defendants in error, and exceptions duly reserved. Thereupon, upon motion of defendants in error, duly excepted to by plaintiff in error, the jury returned a verdict against plaintiff in error and his codefendants for the sum of $8,805.24. Plaintiff in error then moved the Court to set aside the verdict and grant a new trial, which motion was overruled and judgment entered upon the verdict in favor of plaintiffs, to all of which exceptions were duly reserved.</p>

<p>1. Courts (§ 299*) — Federal Courts — Federal Question.</p> <p>Federal jurisdiction is not conferred on the ground that the case arises under the Constitution and laws of the United States, when it does not really and substantially involve a controversy as to the effect or construction of the Constitution or some law or treaty of the United States, on the determination of which the result depends, and which appears from the plaintiff’s statement of his own claim unaided by allegations as to defenses which may be interposed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299.*]</p> <p>2. Courts (§§ 282, 285*) — Federal Courts — Jurisdiction—Federal Ques- . TION.</p> <p>Since the only statute recognizing the right of an entryman to settle on unsurveyed lands of the United States is Act May 14, 1880, c. 89, 21 Stat. 140 (U. S. Comp. St.'1901, p. 1392), providing that a homestead settler on public land surveyed or unsurveyed shall be allowed the same time to file his application and perfect his original entry as is allowed to settlers under the pre-emption laws, a suit by a homestead settler on unsurveyed public land to protect his possessory right as against an adverse claimant does not involve a construction of the Constitution and laws of the United States so as to sustain federal jurisdiction on that ground.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820, 827, 828; Dec. Dig. §§ 282, 285.*]</p>

<p>Aliens (§ 61*) — Naturalization—Persons Capable — Wipe of Alien.</p> <p>. The alien wife of an alien husband cannot become a naturalized citizen of the United States.- ,</p> <p>[Ed. Note. — For other eases, see Aliens, Dee. Dig. § 61.*</p> <p>Citizenship of married women, see note to Hopkins v. Fachant, 65 C. O. A. 5.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Leo Poslusny was admitted to citizenship, and the United States appeals.</p>

Action by Samuel Dempster against William D’Alton Mann and another.- Judgment for plaintiff, and defendants bring error. Reserved for further hearing.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the application of Samuel Hoffman, petitioner for Annie Palina, alias Annie La Pina, for a writ of hábeas corpus. From an order dismissing the writ, and remanding petitioner to the custody of the Commissioner of Immigration, for deportation under Act Cong. Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 459), petitioner appeals.</p>

<p>Bankruptcy (§ 304*) — Eiens—Effect of Instrument.</p> <p>On petition to require a receiver in bankruptcy to turn chattels over to petitioner, an auctioneer, under a claimed lien, it was improper to summarily dispose of an instrument as not giving a lien, where it recited receipt of a sum of money by the bankrupt from the petitioner as an advance on the chattels, and that petitioner was to sell the chattels at public auction ánd pay tlxe proceeds to the bankrupt, less a commission and expenses and such advance, since evidence that, under tlxe agreement as the parties construed it, petitioner took immediate possession of the chattels in good faith to sell them, might result in a finding that he was entitled to hold them or their proceeds to secure repayment of the advance.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 304.*]</p>

<p>Bankruptcy (§ 391*) — Stay of Suits.</p> <p>Since a suit to require defendant corporation to issue a certificate of stock, and for damages for refusing to issue it, involves a claim from which a discharge in bankruptcy would not be a release, the suit cannot be stayed, under Bankr. Act July 1, 1898, c. 541, § 11a, 30 Stat. 549 (II. S. Comp. St. 1901, p. 3426), providing for the stay of certain suits pending on bankruptcy.</p> <p>[Ed. Noto. — For other cases, see Bankruptcy, Cent. Dig. § 651; Dec. Dig. § 391.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by George E. Hibbard against the Niagara Eire Extinguisher Company. Decree for complainant, and defendant appeals.</p>

In Equity. Suit by Charles F. Neureuther against the Mineral Point Zinc Company. Decree for defendant, and complainant appeals. The appellant, as patentee and owner of letters patent No. 666,390, filed his bill against the appellee to enjoin an alleged infringement of claims in the patent; and upon final hearing of the issues the bill was dismissed for want of equity. This appeal is from the decree thereupon.

' Appeal from the Circuit Court of the United States for. the Southern District of Illinois. Suit in equity by the Star Manufacturing Company against the Crescent Forge & Shovel Company and O. B. Thorp. Decree for defendants, and complainant appeals.

<p>Patents (§ 301*)' — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction will not toe granted to restrain alleged infringement of an unadjudicated patent of recent date, where the defenses-involve issues of fact, and where complainant cannot in any event be subjected to more than a small amount-of damages before the case can be heard on the merits.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 489-495; Dec. Dig. § 301.* •</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Eoos Mfg. Co., 72 C. C. A. 123.]</p>

<p>Action by Elizabeth Skinner against the County of Franklin. Judgment for plaintiff.</p>

In the matter of the C. K. Hutchins Company, bankrupt. On petition of creditor for delivery of certain machinery alleged to have been sold to the bankrupt pursuant to a conditional sale, and not paid for.

<p>Food (§ 12*) — Shipping Adulterated Foods — Statutes—Persons Liable.</p> <p>Ttie federal pure food law (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Oomp. St. Supp. 1909, p. 1187]), providing that any person who shall ship or deliver for shipment, from any state or territory to any other state or territory, any foods, drugs, medicines, or liquor, etc., adulterated or misbranded, shall be guilty of a misdemeanor, is not limited to a manufacturer or dealer, but applies as well to a warehouseman shipping adultferated or misbranded goods .from one state to another.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 12.*]</p>

<p>At Law. Action by Charles Lube against the Philadelphia Rapid Transit Company. Verdict for defendant, and plaintiff moves for a new trial.</p>

<p>In Equity. Bill by the American Ice Company against the Pocono Spring Water Ice Company and others. On exceptions to the master’s report. Decree directed.</p>

<p>Bankruptcy (§ 196*) — Administration of Estate — Liens on. property of Bankrupt — Staying Proceedings for Enforcement.</p> <p>The lien of a Judgment and execution against a bankrupt for a fine imposed for illegal liquor selling is not excepted from the operation of Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), providing that- all liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy shall be deemed void in case he is adjudged a bankrupt: and hence the execution will be stayed pending the bankruptcy proceeding, whether the claim for the fine is provable or not, and whether it will be affected by the discharge of the bankrupt</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 306-316; Dec. Dig. § 196.*]</p>

<p>Bankruptcy (§ 318*) — Administration of Estate — Claims Against Estate.</p> <p>A claim by the vendor of land against a bankrupt purchaser for the balance of the price due, less the value of the land, will not be allowed, where the trustee has delivered and the vendor has accepted a quitclaim deed to the land; the contract of sale to the bankrupt being thereby virtually rescinded.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 318.*]</p>

<p>At Law. Action by W. E. Wark against William G. Moore. Verdict for plaintiff, and defendant moves for judgment nothwithstanding the verdict.</p>

In the matter of the bankruptcy of F. T. Thompson. On petition for a rule to show cause why the alleged bankrupt should not be attached for contempt for failing to answer interrogatories by petitioning creditors.

Bill by Edwin H. Risley and others against the City of Utica, the Consolidated Water Company of Utica, and others, in which the city filed a cross-bill. On motions of the water company to dismiss and of complainant Risley to be allowed to discontinue. Motions allowed.

<p>1* Master and Servant (§ 189*) — Who Are “Fellow Servants” — Section Foreman and Crew.</p> <p>A railroad section foreman and the members of the crew working under him are “fellow servants” within the rule of the federal courts.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 428; Dec. Dig. § 189.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2710-2730; vol. 8, p. 7662.</p> <p>Who are fellow servants, see notes,to Northern Pac. R. Co. v. Smith, 8 O. (X A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>2. Commerce (§ 58*) — Power of Congress — Regulation of Railroads — Employer’s Diability Act.</p> <p>Employer’s Diability Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), has not perpetuated the infirmities which rendered Act June 11, 1906, c. 3073, 34 Stat. 232 (U. S. Comp. St. Supp. 1909, p. 1148), unconstitutional. Under the present statute a railroad company engaged in interstate commerce is liable to the extent therein provided to an employe injured while assisting in carrying on such commerce when the injury results from the negligence of a fellow servant, if such fellow servant is also engaged in interstate commerce. The facts disclosed by the complaint do not make it necessary to decide whether, if injury should result through the negligence of an employe engaged in intrastate commerce, there would be a liability under the act. The purpose to render a carrier engaged in interstate commerce liable to employe's so engaged being apparent, the provisions are separable, whatever be the rule regarding an injury resulting to an interstate employs from the- negligence of an employs not so engaged.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 58.*]</p> <p>S. Commerce (§ 58*) — 'Power of Congress — Interstate Carrierst-Diability to Employes.</p> <p>Congress has authority under its constitutional power to regulate interstate commerce to prescribe rules of liability as between an interstate carrier and its employés in such interstate commerce in cases of injury to the employes while actually engaged in such commerce.</p> <p>[Ed. Note. — F’or other cases, see Commerce, Dec. Dig. § 58.*]</p> <p>4. Commerce (§ 58*) — Employer’s Diability Aot — Employ® Engaged in “Interstate Commerce.”</p> <p>A seetionhand working on the track of a railroad over which both interstate and intrastate traffic is moved is employed in “interstate commerce” within the meaning of Employer’s liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), and within the protection of such act.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 58.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3724r-3731.]</p> <p>5. Removal of Causes (§ 10*) — Jurisdiction of Federal Court.</p> <p>The jurisdiction of a federal court in a cause removed from a state court must rest on that of the state court from which the removal was made.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 28; Dec. Dig. § 10.*]</p> <p>6. Courts (§ 42*) — Jurisdiction of State Courts — Bights Created by Federal Statute. ■ • ■</p> <p>Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (IT. S. Comp. St. Supp. 1909, p. 1171), does not attempt to delegate judicial power of the United States to state courts, in violation of article 3 of the Constitution but creates substantive rights not solely cognizable in the federal courts, but which may be availed of in any court of competent jurisdiction, state or federal.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. '§ 42.*]</p> <p>7. Commerce (§ 58*) — Power of Congress — Employer’s Liability Act.</p> <p>Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), conceding it to be otherwise within the constitutional power of Congress to regulate interstate commerce, is not invalid because it results in establishing rules and measures of liability in cases to which it applies different from those which exist under the state laws in other eases arising from the relation ,of master and servant, nor because it gives the right of recovery in case of the death of an employé to different parties; but in cases to which it applies it is paramount and governs in the state as well as the federal courts.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 58.*)</p> <p>8. Statutes (§ 64*) — Partial Invalidity — Employer’s Liability Act.</p> <p>The provision of Employer’s Liability Act April 22, 1908, c. 149, § 5, 35 Stat. 66 (U. S. Comp. St. Supp. 1909, p. 1173), making void any contract, rule, regulation, or device, the intent of which shall be to exempt any carrier from liability under the act, is clearly separable from the other provisions of the act, which are not involved in the question of its constitutionality.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. '§§ 58, 59; Dec. Dig. § 64.*]</p> <p>9. Constitutional Law (§ 70*) — Employer’s Liability Act — Constitutionality.</p> <p>Whether or not Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), is effective to carry out the purpose intended, and thus promote interstate commerce, is a legislative and not a judicial question, which cannot affect the constitutional power of Congress to enact it.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-* 132; Dec. Dig. § 70.*]</p> <p>10. Constitutional Law (§ 245*) — Equal Protection of Laws — Employer’s Liability Act.</p> <p>Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), is not unconstitutional as denying the equal protection of the laws to the carriers affected thereby.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 702; Dec. Dig. § 245.*]</p>

Bill by John H. Nelson against the City of Murfreesboro and others. This case was heard upon demurrers to the complainant’s bill, and on the •complainant’s application for preliminary writ of injunction.

<p>1. Municipal Corporations (§ 51*) — Dissolution.</p> <p>Where a municipal corporation has once been organized, it does not become dissolved by a mere failure to elect officers, or by a failure of such officers elected to perform corporate functions, but, for the purpose of being sued for corporate debts, continues to exist per se.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. § 51.*</p> <p>Dissolution and reincorporation — effect on indebtedness, see note to City of Uvalde v. Spier, 33,C. C. A. 506.]</p> <p>2. Process (§ 141*) — Service—Return—Right to Attack.</p> <p>Where, in a suit against a city, the marshal returned that he had served the writ By delivering a true and certified copy to J., mayor, and there was no attempt to charge such officer with an individual liability, the marshal’s return was conclusive on the defendant until vacated in the regular course of procedure, and J. had no capacity to appear specially and object to the service on the ground that, though he had been elected mayor of the city, the election was illegal, and that the city had passed out of existence.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 189-192; Dec. Dig. §.-141.*]</p>

<p>Action by the Denver Engineering Works Company against John P. Elkins and another. Judgment for plaintiff.</p>

<p>, In- the matter of Medina Quarry Company. On exceptions to the 'report of the special master.</p> <p>The1 Medina Quarry Company (hereinafter called the Medina -Company) was Incorporated in March, 1902, and conducted-stone quarries in' Orleans county, N. Y. Its capital stock was $2,000,000, for which bonds were'Issued* amounting to $1,200,000, secured by a trust mortgage on all its property, real and personal, and such as thereafter should be acquired. The bond issue was to raise money to pay the purchase price of the quarries, machinery, and other-property. Out of the total sale of bonds $410,980 was expended in the purchase of real and personal property and the balance, $264,700, remained in dhe treasury of the company. After purchasing certain other properties, .and pay-ing therefor out of the bonds in the treasury of the company, there* remained in the treasury on April 4, 1904, bonds amounting to $56,500. Oh April 1, 1904, a partial default was made in the payment of interest on the bonds,' and on Ootober 1, 1904, the company completely defaulted in the payment of. interest upon its bonded indebtedness. The insolvency of the company was recognized by the directors and understood by the bondholders. The company, however, continued business with borrowed capital until late in - the year 1904, when Kessler & Co., bankers, assumed charge of the business. To secure advances made by Kessler & Co., amounting in the aggregate to $85,000, chattel mortgages were executed by said Medina Company to said company on quarried stone, and assignments of bills receivable were also made to it.* A bondholders’ committee of 11 members was formed by the directors, and efforts were made to continue the business and to reorganize or readjust the affairs of the company. Subsequently the bondholders’ committee and directors acting together organized the Orleans County Quarry Company* (hereinafter called the Orleans Company), a corporation, and in the month of December, 1904, they caused to be transferred, to it by bill of sale all the property and assets of the Medina Company under an agreement that the latter would pay full value therefor, said value to be ascertained by appraisers. No appraisal, however, was made nor any consideration paid whatever although the Orleans Company took possession under bill of sale and lease and conducted the business up to February 1, 1906. Soon afterwards the attorneys for the Medina Company and several of its officials to whom the company was indebted filed a petition in involuntary bankruptcy against the Medina Company and it was subsequently adjudicated bankrupt in this court. The plan or scheme of reorganization of the affairs of the Medina Company, as indicated -by a circular letter dated January 12, 1905, and mailed to the bondholders, was the formation of the aforesaid Orleans Company for the purpose of buying for the bondholders the property and assets of the Medina Company at foreclosure or bankruptcy sale. To carry out this intention the Orleans Company was capitalized at $600,000, and upon acquiring the property of the Medina Company as above stated, first-mortgage bonds were' issued, amounting to $350,000, to be secured by trust mortgage upon all its property. Second-mortgage income bonds were also issued, amounting to $200,000, which it was agreed would be divided among such of the first-mortgage bondholders of the Medina Company as had deposited their bonds with the bondholders’ committee of 11 members. Iu accordance with this intention a large number of such bondholders deposited their bonds with the bondholders’ committee, the total thereof being $960,400. Subsequently the property and assets of the bankrupt were sold by order of the court to the Orleans Company for the sum of $228,000, and the bondholders’ committee were allowed by order of the bankruptcy court to use the bonds to pay the purchase price to the extent to which said bonds were entitled to share in the distribution of the amount realized on the sale. After the sale the bondholders’ committee filed a claim as'unsecured creditors against the bankrupt for the difference between the par value of the bonds in their possession and the amount1 for which it was permitted to turn in the bonds in payment of the purchase price. Other facts are so fully stated in the opinion of the special master as to make it unnecessary to repeat them here.</p>

Bill by William A. Stephens against J. E. Gall and the Christie Gráin Company. On defendants’ demurrers to the bill. Defendant Gad’s demurrer sustained and the company’s dismissed.

' In the matter of M. F. Malloy, bankrupt. On referee’s certificate to review- an'order "directing the trustee to set apart certain land as the bánkrup’t’s. homestead.

<p>In Admiralty. Suit by Charles C.- Sparks against the schooner Mary E. Morse. Decree for respondent.</p>

Action by John Hamilton against the David C. Beggs Company. On petition for the allowance of the claim of the National Cash Register Company. Claim allowed as a general claim.

<p>1. ‘Courts (§ 289*) — United States Courts — Jurisdiction—Nature of Subject-Matter.</p> <p>The United States Circuit Court has jurisdiction of an action by a telegraph company to restrain the enforcement of a tax of $1,000 by the municipality, on the ground that it is a tax on interstate commerce and is discriminatory; it being alleged that the.damage to the complainant was greatly in excess of $2,000.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 830; Dec. Dig. § 289.*]</p> <p>2. Commerce (§ 72*) — Means of Regulation — Taxation.</p> <p>No state can levy a tax on interstate commerce in any form, whether by duties laid on the transportation of subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 123-136; Dec. Dig. § 72.*</p> <p>Taxation of interstate commerce by state, seo note to Board of Assessors v. Pullman’s Palace Car Co., 8 O. C. A. 492.]</p> <p>3. Commerce (§ 28*) — Interstate Commerce.</p> <p>Telegraph business is interstate commerce, and the telegraph company is engaged in interstate commerce.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 22; Dec. Dig. § 28.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]</p> <p>4. Injunction (§ 152*) — Preliminary Injunction — Hearing—Burden of Proof.</p> <p>On a motion for preliminary injunction, the burden is on complainant to satisfy the court that there is at least a reasonable probability of ultimate success on the question of jurisdiction as well as on the merits of the controversy.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 152.*]</p> <p>5. Injunction (§ 144*) — Preliminary Injunction — Hearing.</p> <p>On a motion for preliminary injunction, allegations of the bill are to be taken as true.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent Dig. §§ 316, 317, 321; Dec. Dig. | 144.*]</p>

<p>Habeas corpus’ by Charles Kroschel against I. A. Munkers, Chief of Police of Albany, Or.</p>

<p>1. Bankruptcy (§ 228*) — Referee’s-Findings—Conclusiveness..</p> <p>The findings of a referee in bankruptcy on a question of fact .will not be reversed unless manifestly, wrong;</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 387; Dee. Dig. § 228.*</p> <p>Appeal and review in bankruptcy cases,- see note to In re Eggert, 43 C. O. A. 9.]</p> <p>2. Bankruptcy (§ 340*)‘ — Claims—Prima Facie Proof.</p> <p>A proof of claim-' in bankruptcy is prima facie proof of the allegations therein; but, where the proof is rebutted, the referee should disallow the claim unless further evidence to establish it is produced.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>3. Evidence (§ 594*) — Uncontradicted Testimony — Conclusiveness.</p> <p>While positive and uncontradicted testimony on a hearing in bankruptcy should not be disregarded’ arbitrarily, it may be disregarded if it is grossly or inherently improbable..</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2431; Dec. Dig. § 594.*]</p> <p>4. Bankruptcy (§ 340*) — Claims—Proof—Sufficiency.</p> <p>Evidence in bankruptcy helé to sustain a referee’s finding disallowing a claim for borrowed money.'</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*].</p>

In Equity. Suit by Wanna Stuart against Josephine Holland and others. This suit was commenced October 9, 1884, in tlie circuit court of the state of Oregon for Marion county, under the title of John F. Miller and Win. P. Miller v. Vallier Wattier, to enjoin the maintenance of a dam across Little Pudding river, in Marion county. The cause was removed -to this court at once, whereupon a motion was interposed to remand, resulting in a denial thereof June 17, 1885.

<p>Action by the New Jersey Terminal Dock & Improvement Company and others against the Estates of Long Beach. Heard on appeal from taxation of costs. Appeal allowed as to item of referee’s fees.</p>

<p>1. Maritime Liens (§ 20*) — Supplies—State oe Home Port.</p> <p>No maritime lien, is presumed for supplies furnished in New York to- a vessel whose home port is in the state, and unless an agreement therefor is shown a lien can only be secured by following the requirements of the state statute.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 27; Dec. Dig. § 20.*]</p> <p>2. Maritime Liens (§ 25*) — Statutory Lien.</p> <p>A claimant held entitled to a lien for services and supplies furnished to a dredge on orders of the master, under Consol. Laws N. Y. 1909, c. 33, § SO.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Dec. Dig. § 25.*</p> <p>Created by state laws, see note to The Electron, 21 C. C. A. 21.]</p>

<p>In Admiralty. Libel by the New York & New Jersey Transportation Company against the steam tugs Coleraine and Nellie Tracy. Damages divided.</p>

Action by the Romona Oolitic Stone Company against John J. - Bolger and others, partners as John J. Bolger Stone Company, Limited. On rule to open judgment. Rule made absolute, and judgment opened as to petitioners Erank Heavner and others.

<p>1. Street Railroads (§ 58*) — Mortgages — Foreclosure — Character of Funds.</p> <p>The transformation by a receiver in mortgage foreclosure against a street railway company of surplus income fund into cars does not change the fund’s character.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>:2. Street Railroads (§ 58*) — Mortgages—Foreclosure—Surplus Income-Application.</p> <p>In mortgage foreclosure proceedings against a street railway, determination of the rights of all creditors to a fund comprising the surplus income from receivership should be first raised before the special master.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58i*]</p> <p>-3. Street, Railroads (§ 58*) — Mortgages—Foreclosure.</p> <p>On mortgage foreclosure and sale of a street railway, the purchaser should be required to pay cash to the amount of surplus income from receivership invested in cars sold as part of the road, though the decree permits him to turn over bonds as to the rest of the property, where the value of the bonds is indeterminate and question is raised as to whether the income is covered by the mortgage.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>1. Food (§ 24*) — Tube Food Law — Aditltebatjon ob MTSBEANDING — FORFEITURE— PRELIMINARY EXAMINATION.</p> <p>Food and Drugs Act June 30, 1906, c. 3915, § 4, 84 Stat. 769 (U. S. Oomp. St. Supp. 1909, p. 1189), providing for preliminary examination by the Department of Agriculture for alleged adulteration or misbranding of food or drug products, does not apply to a libel for forfeiture authorized by section 10, which provides for a hearing in court in accordance with proceedings in admiralty, so that a preliminary examination before the-Department of Agriculture is not a necessary condition precedent to the maintenance of a libel 'for the condemnation of the alleged objectionable product.</p> <p>[Ed. Note. — For other eases, see Food, Dec. Dig. § 24.*]</p> <p>2. Food (§ 24*) — (Puke Food Daw — Possession—Bond—Effect.</p> <p>Food and Drugs Act June 30, 1906, c. 3915, § 11, 34 Stat'. 772 (U. S. Comp. St. Supp. 1909, p. 1194), provides for the examination of articles sought to be imported, suspected of being adulterated or misbranded, by the Department of Agriculture, and declares that, if they are found to be so, entry shall be forbidden, and they shall be destroyed unless exported within three months from the date of notice of refusal of entry, except that, pending examination, the importer shall obtain possession by executing a penal bond conditioned to return the goods to the Secretary of the Treasury when demanded, etc. Held that, where proceedings were instituted for the examination and exclusion of certain alleged adulterated or misbranded olives, the importer’s execution of a bond for possession under such section did not amount to an official declaration that the olives had been found to comply with the act.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*]</p>

Action by the United States of America to forfeit 100 Cases of Tepee Apples and 172 Cases of Tepee Blackberries for alleged violation of the food and drug act, because of misbranding. Judgment of forfeiture.

<p>Suit by Howard W. Page, trustee in bankruptcy of Moore & Co.,, Incorporated, against William G. Moore.</p>

In the matter of George Cleary, alleged bankrupt. On motion to strike off the answer, on demurrer to the answer, and on motion for adjudication.

Petitions for habeas corpus and certiorari by Rufus J. Ireland, by Patrick T. Wells, by George W. Dally, and by Wilberforce Sully against William Henkle, United States Marshal. The four petitioners were indicted in the district of Wyoming, May 21, 1909, for conspiracy, in violation of section 5440, Rev. St. U. S. (U. S. C'omp. St. 1901, p. 3676), to defraud the United States by obtaining coal lands from the government in violation of law.

<p>Appeal from Decision of Commissioner.</p> <p>From an order of deportation by Commissioner Wellington, Chu King Foon appeals.</p>

<p>1. Libel and Slander (§ 86*) — Innuendo—Surplusage.</p> <p>A declaration for slander, alleging that defendant had stated that plaintiff had been convicted of heating his mother, imputed a criminal offense, indictable as provided by P. L. N. J. 1898, p. 854, §§ 215, 2.18; and hence an innuendo that the words intended to charge that plaintiff was then and there guilty of a crime, to wit, the crime of assault and battery, was unnecessary and surplusage.</p> <p>[Ed. Note.- — For other cases, see Libel and Slander, Cent. Dig. 205-208; Dec. Dig. § 86.*]</p> <p>‘2. Libel and Slander (§ 7*) — Words Slanderous Pér Se.</p> <p>Words -charging complainant with having been convicted of a crime are not slanderous per se, unless the crime charged involved moral turpitude.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-19; Dec. Dig. § 7.*]</p> <p>,3. Libel and Slander (§ 7*) — Words Slanderous Per Se — Moral Turpitude:</p> <p>Alleged slanderous words, charging that plaintiff had been convicted of beating his mother, imputed a crime involving moral turpitude, and were therefore slanderous per se.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 31; Dee. Dig. § 7.*]</p>

<p>1. Shipping (§ 80*) — Injury to Person on Vessel — Care Required.</p> <p>A vessel is required to exercise reasonable care not to maintain places which are dangerous to persons coming on board with the permission of those in charge, whether on business or for their own pleasure.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 335; Dec. Dig. § 80.*]</p> <p>2. Shipping (§ 80*) — Liability op Vessel for Injury to Visitor — Open Hatchway.</p> <p>A vessel held not liable for an injury to a person who came on board while she was lying at a pier from falling through an open hatchway in a corner of the deckhouse, not used as a passageway and lighted by open doors on either side.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 335; Dec. Dig. § 80.*]</p>

<p>1. Statutes (§ 188*) — -Construction—Meaning of Wobds.</p> <p>In construing a statute, words and phrases are to be assumed to have been used in their popular sénse, if they have not acquired a technical meaning. -</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 266 ;• Dec. Dig. § 188.*]</p> <p>2. Aliens (§ 61*) — Natubalization—“Fbee White Pebsons” — “White.”</p> <p>The term “free white persons,” within Rev. St. § 2169 (ü. S. Comp. St. 1901, p. 1333), making the naturalization provisions applicable to such persons, comprehends a Syrian, who is a native of Palestine and a Maronite; the term “white” being intended to be applied in its popular sense, to denote at least the members of the white or Caucasian race.</p> <p>[Ed. Note. — For other casts, see Aliens, Cent. Dig. § 119; Dec. Dig. § 61.*</p> <p>For" other definitions, see Words and Phrases, vol. 8, pp.' 7446, 7447.]</p>

<p>1. Aliens (§ 32*) — Deportation Proceedings — Appeal—Certification of •Judgment.</p> <p>Failure of the commissioner in Chinese deportation proceedings to eertify the judgment to the District Court on appeal is not a jurisdictional defect; the court being authorized to direct certification and require transmission of the judgment.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*) — Deportaiton Proceedings — Appeal—Notice.</p> <p>Where a notice of appeal in Chinese deportation proceedings, though entitled in the District Court, was nevertheless left with the commissioner and transmitted with the papers in the case, the fact that the notice was entitled in the District Court, and not before the commissioner, was not a jurisdictional defect.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 32*) — Deportation Proceedings — Appeal—Trial de Novo.</p> <p>A Chinaman’s appeal from a commissioner’s order of deportation is triable de novo before the District Judge, and not on the record made before the commissioner.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*]</p> <p>4. Aliens (§ 32*) — Chinese—Deportation—Citizenship—Evidence.</p> <p>In Chinese deportation proceedings, evidence held to establish defendant’s right to remain in the country.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*</p> <p>Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.)</p>

<p>In Bankruptcy;</p> <p>The only question to be determined is whether the trustee was right in setting apart to the bankrupt the property in controversy as his homestead. The facts are undisputed and they appear in the following findings by the referee:</p> <p>“Findings of fact upon contest of report of trustee setting apart to the bankrupt as exempt property lot No. 2, in city block No. 125, in the city of San Antonio, Bexar-' county, Tex., together, with all improvements thereon: I find: That the property in controversy was acquired by the bankrupt in the year 1888, at which time the bankrupt was a widower and the head of a family, consisting of himself and three minor children and his mother-in-law. That said property has ever since its acquisition been occupied and used by the bankrupt, together with the members of his family, as a homestead, and that he had no other homestead during that time. That after his children came of age his son left the homestead and is no longer a member of bankrupt’s family. That some years prior to this date his daughter Mabel married, but was separated from' her husband four years ago, and upon such separation returned to the shelter of her father’s home, together with her three minor children, grandchildren of the bankrupt. That said daughter and her children have no other homestead nor income, and are dependent upon and have since been furnished by the bankrupt with means of support and the shelter of a home. That the bankrupt’s daughter Laura, although of age, has never ceased her relation as a member of bankrupt’s family, but has continued to live with the bankrupt and occupy the property in controversy as her home, and as one of the members of his family, and, although she is earning a livelihood, she is still dependent upon the bankrupt for a home, and he has continued to assist in her support and maintenance. I find, therefore, that Hart Mussey is the head of a family, which consists of himself, his unmarried daughter, his married daughter Mrs. Bates, his three grandchildren, and his mother-in-law, who, although possessed of independent means, has continued to use this property as her home.”</p> <p>In addition to the foregoing facts, it is conceded by counsel representing the respective parties that the bankrupt is insolvent. The referee approved the report of the trustee, setting apart the property to the bankrupt as his homestead, and therefore exempt from the claims of his creditors, and denied the petition of D. Sullivan & Co., the exempting creditors.</p>

In the matter of Lewis J. Wermuth, bankrupt. On application to confirm report of special master recommending discharge of the bankrupt.

<p>In Equity. Suit by the Morton Trust Company against the Metropolitan Street Railway Company and others to foreclose a mortgage securing bonds. Order passed fixing time of sale.</p>

<p>1. Pleading (§ 212*) — Demurrer—Waiver.</p> <p>An answer filed to a complaint waives defendant’s right to demur.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 521, 522; Dec. Dig. § 212.*]</p> <p>2. Trade-Marks and Trade-Names (§ 92*) — Unlawful Competition.</p> <p>A bill for unlawful competition in the use of complainant’s trade-name and good will in the sale of root beer syrup was not demurrable for failure to allege the amount and value of the syrup fraudulently used by defendant, the names of defendant’s agents, or of the parties buying the same; nor was the bill not sufficiently specific because it only alleged that defendant’s use of the fraudulent syrup occurred on “divers days and at divers places” within the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 102; Dec. Dig. § 92.*]</p>

<p>In the matter of Louis W. Koplin, bankrupt. On certificate to review an order of the referee overruling a demurrer to the trustee’s petition to require the bankrupt to- turn property over.</p>

<p>Bankruptcy (§ 167*) — Preferences by Partners — Recovery of Conveyance.</p> <p>A trustee in bankruptcy may not recover a conveyance of partnership property as a preference, unless it is shown that the partners as individuals were insolvent at the time of the conveyance.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 167.*]</p>

In the matter of the Famous Clothing Company, bankrupt. On-order to show cause why property in the possession of a third person, should not be delivered to the bankrupt’s trustee. Order allowed.

<p>At Law. Action by Thomas Gallagher against the Worth Bros, Company. Plaintiff moves to take off nonsuit.</p>

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

<p>On petition to review and revise, in matter of law, proceedings of the District Court of the United States for the Northern District of Illinois.</p>

<p>Appeal from the District Court of the United States for the District of Connecticut. This is a limited appeal from a decree of the District Court, District-of Connecticut, confirming master’s • report and adjudging that certain of the libelants recover against the steam tug H. A. Baxter certain sums of money in satisfaction-of certain liens for wages, repairs, and supplies. The opinion of. the District Judge is found in 172 Fed. 260.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding Furness, Withy & Co., owners of the steamship Dalton Hall, solely in fault for damages to cotton shipped from Montgomery, Ala., to Genoa under through bill of lading. The cotton was damaged through the sinking of a lighter after delivery to the steamer in the port of Savannah. The opinion of the District Judge will be found in 172 Fed. 1016.</p>

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

Petition to Review Order of the District Court of the United States for the Southern District of New York. This cause comes here upon petition to review an order .of the District Court, Southern District of New York, sitting in bankruptcy.

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

<p>Appeal from the District Court of the United States for the Northern District of' Illinois, Eastern Division.</p>

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Appeal from a decree of the District Court, Southern District of New York, fixing the value of petitioner’s barge at $3,500 and adjudging that claimant is entitled to recover $3,500 on account of damages sustained from the death of her husband.</p>

<p>Appeal from District Court of the United Statesi for the Eastern District of Wisconsin.</p>

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

<p>Motion to Vacate Summons and Dismiss Suit.</p>

<p>On Demurrer to Complaint.</p>

<p>Action by the -Finance Company of •Pennsylvania against S. S. Kresge. Verdict for defendant, and plaintiff moves for a new trial.</p>

<p>In Equity. On Motion to Amend Bill of Complaint.</p>

<p>In Admiralty. Final hearing.</p>