Volume 180 — Federal Reporter

Suit in admiralty by Samuel R. Percy and others, as owners of the schooner Cora F. Cressy, against the Union Sulphur Company. Decree for libelants (173 Fed. 534), and respondent appeals.

Action by Charles Gross against the Long Pole Lumber Company. Judgment for plaintiff, and defendant brings error. The plaintiff below — now designated as defendant in error — was employed by the defendant below as locomotive engineer, and was engaged in running defendant’s locomotives from the mills to its timber standing in the woods.

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia, at Abingdon.</p> <p>Bill by Charles M. Kirk and others against N. B. Dotson. Decree for complainants, and defendant appealed.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio.</p> <p>James S. Prettyman and others were convicted of violating an action of banking act, and they bring error.</p>

Suit in equity by the Western Union Telegraph Company against Samuel T. Howe, S. C. Crummer, and W. S. Glass as members of the State Tax Commission, and J. M. Nation, auditor of the state of Kansas. Decree for defendants, and complainant appeals.

Thomas N. Rogers was convicted of unlawfully importing into the-United States certain merchandise without entering, the same in the Unitedl States customs and paying the duty thereon, and he brings-error.

<p>1. Contempt (§ 66*) — Review—Writ op Error.</p> <p>Where, in proceedings to punish a witness for contempt, a fine of $1, payable to the United States was assessed, the case was one in which the fine was punitive, in vindication of the authority of the court, and not compensatory to the complainants in the principal cause, and hence the judgment was reviewable on a writ of error.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 223; Dee. Dig. § 66.*]</p> <p>2. Contempt (§ 66*) — Writ op Error — Review.</p> <p>On a writ of error to review a judgment assessing a fine against a witness for contempt of court, only questions of 'law can be considered.</p> <p>[Ed. Note. — For other eases, see Contempt, Cent. Dig. § 232; Dec. Dig. § 66.*]</p> <p>3. Contempt (§ 66*) — Writ op Error — Review—Assignments op Error.</p> <p>On a writ of error to review a judgment assessing a fine against a petitioner for contempt of court, only such questions can be considered as are presented in the assignments of error each of which must be founded on some alleged defect in the record of the case, except as to proceedings reviewable under Court of Appeals rule 11 (156 Fed. xxvii, 79 C. C. A. xxvii) declaring that the Court of Appeals, at its option, may notice a plain error not assigned.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 232; Dec. Dig. § 66:*]</p> <p>4. Contempt (§ 66*) — Writ op Error — Evidence—Bill op Exceptions.</p> <p>Evidence taken in a criminal case is no part of the record unless brought into the record by some method known to the law.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 231; Dec. Dig. § 66.*]</p> <p>5. Contempt (§ 66*) — Record—Stipulation in Place op Bill op Exceptions.</p> <p>A stipulation, in aid of a writ of error to review a judgment in a contempt proceeding, that the papers mentioned therein should “constitute the record” on the writ of error in connection with the certificate of the clerk that the printed volume was a true and faithful copy of the original pleas and proceedings in the case as per the stipulations of the counsel was sufficient to take the place of a bill of exceptions.</p> <p>[Ed. Note — For other cases, see Contempt, Cent. Dig. § 231; Dec. Dig. § 66.*]</p> <p>6. Contempt (§ 66*) — Writ op Error — Review—Assignments op Error.</p> <p>Assignments that the court erred in entering the order adjudging petitioner guilty of contempt and alleging error in the refusal of the court to deny the order, while not sufficiently specific to conform to the best practice, were sufficient to justify the inspection of the record by the appellate court to ascertain whether there was any apparent error.</p> <p>[Ed. Note. — For other cases, see Contempt, Dec. Dig. § 66.*]</p> <p>7. Witnesses (§ 21*) — Subpcena—Refusal to Obey — Contempt.</p> <p>In a suit against the C. Company for patent infringement in the construction of certain torpedo boat destroyers for the United States, a request was made to the Secretary of the Navy for a certified copy of the plans and specifications filed by defendant in connection with its bid in so far as they related to the construction of the turbine propelling machinery, etc. The' Secretary replied that the furnishing of such information was considered detrimental to the interest of the United States, whereupon the request was recalled by the court after which a subpoena was served on petitioner, who was defendant’s president, requiring him to produce before the examiner the plans, drawings, specifications, and other illustrative and descriptive papers, relating to the construction of such vessels. It was shown that the Navy Department had taken elaborate precautions to keep these plans and papers secret, and petitioner, in response to the subpoena, produced them sealed, but refused to permit them to be opened on the theory that to do so would be detrimental to the interests of the United States, and would expose trade secrets not patented. At a subsequent hearing a statement by the Navy Department was filed reciting that while it was unwilling, for reasons affecting public interest, to furnish copies of the papers asked for, yet so far as it- was concerned, if the papers were put in evidence, otherwise than by the act of the Department, the making public thereof would not cause the discovery of military or other secrets detrimental to the public interest. Meld, that the petitioner’s refusal to disclose such documents while unsustainable, was not contumacious, and was not punishable as for contempt of court.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 40; Dee. Dig. § 21.*]</p>

Action by Gaetano Gallo against Thomas B. Bryson. Judgment for plaintiff, and defendant brings error. This action was begun in the common pleas court of Cuyahoga county, Ohio, by Gaetano Gallo against the Tidewater Building Company and Thomas B. Bryson, to recover damages in the sum of $20,000 for personal injuries alleged to have been suffered by Gallo while in the employ of defendants and through- their negligence.

Suit in equity by John A. Barham against the Peninsula Pure Water Company and causes consolidated therewith. Tippett and Wood, intervening petitioners, appeal from an order disallowing their claim to priority as creditors. The question at issue upon this appeal arises between the holders of bonds of the Peninsula Pure Water Company issued under and secured by a mortgage to the Knickerbocker Trust Company and Tippett & Wood, the appellants.

<p>In Error to the Circuit Court of the United States for the District of Maine.</p> <p>Action by Fred S. Thorne against the Travelers’ Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in admiralty by James H. Hawley, as owner of the schooner May V. Neville, against the steamship Main, the North German Ifioyd, claimant, and cross-libel by the claimant against the schooner. Decree for libelant, and claimant appeals.

<p>1. Appeal and Error (§§ 1000, 1009*) — Equity—Disposition of Cause.</p> <p>On an equity appeal, tlie facts as well as the law are open for consideration, regardless of whether there has been a jury trial, and the issues must be disposed of on the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3925-3927, 3970^-3979; Dec. Dig. §§ 1000, 1009.*]</p> <p>2. Appeal and Error (§ 1175*) — Reservation of Mótion to Reopen Case.</p> <p>A reservation of a motion to reopen a case does not extend to the circuit court of appeals. Appeal in equity brings the cause up for final disposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1175.*]</p> <p>3. Bankruptcy (§ 303*) — Preferences—Agency—Evidence—Sufficiency.</p> <p>Evidence in a suit to set aside an assignment of accounts as a preference in bankruptcy held to show that the assignee was agent of defendants.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>4. Bankruptcy (§ 303*) — Preferences—Insolvency—Evidence—Sufficiency.</p> <p>Evidence held to show that a concern was insolvent when it assigned accounts to a preferred creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>5. Bankruptcy (§ 106*) — “Preference”—Intent.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), providing that a transfer by an insolvent person within four months preceding bankruptcy shall be deemed to be a preference if it enables a creditor to obtain a greater percentage than others of his class, intent of insolvent to give a preference is immaterial; it being sufficient under the express terms of the section that the transferee have reasonable cause to believe that a preference was intended.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5498, 5499; vol. 8, p. 7759.]</p> <p>6. Bankruptcy (§ 303*) — Preferences.</p> <p>Evidence helé to show that the agent of a creditor in receiving an assignment of accounts had reasonable cause to believe that the debtor was insolvent, and that the transfer constituted a preference.</p> <p>[Ed. Note. — For other oases, see Bankruptcy, Dee. Dig. § 303.*]</p> <p>7. Bankruptcy (§ 166*) — Preferences—Agency.</p> <p>A creditor’s agent’s reasonable cause to believe that a transfer by the debtor is intended as a preference is imputable to the creditor.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 106.*]</p>

Libel by Heinrich Vogeman and others against John Raeburn and another for breach of a charter party. The Commissioner awarded damages, fixed at $3,061.37, and defendants appeal.

Suit in admiralty by Warren A. Leonard against the steam tug Harlem River No. 2; James H. 'McConnell, claimant. Decree for respondent, and libelant appeals. On appeal from a decree dismissing a libel filed by tne owner of the scow-barge Isabella against the steam tug Harlem River No. 2, charging the tug with negligent towage in bringing the barge into collision with the central abutment of the Willis Avenue Bridge, which crosses the Harlem river.

Action by Waddill Catchings, trustee in bankruptcy of Max Scheuer, against the Chatham National Bank. There was a directed verdict for defendant, and plaintiff brings error.

Petition for Review of Proceedings of the District Court of the United States for the District of Missouri, in Bankruptcy. In the matter of Joseph H. Huggins, bankrupt. On petition by the Ozark Cooperage & Dumber Company to review an order of the District Court.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by the New York & New Jersey Transportation Company against the Cornell Steamboat Company. Decree for respondent, and libelant appeals.</p> <p>o The following is the oral opinion of the District Court, by Chatfield, District Judge:</p> <p>I am satisfied from the testimony that the question of possible landing at Third street had nothing to do with this matter. The tug Oleary, acting as helper to the tug Terry, which was doing the towing, Raving properly taken one boat to the dock and come back for the other, was unable, in the ordinary course, to take the second boat to the same dock, .and, seeing that the dock could not be made, went on to Newtown creek. The only thing that had anything to do with the sinking of the boat, which has been proven by the libelant, was the breaking of this bitt, which was undoubtedly caused while the boat was going ahead, but which was due to a sudden strain in moving the boat alongside of the other barge. The bitt apparently broke because it was deficient in strength, and that was something that could not be apparent to either the persons towing or to the owners of the barge upon a superficial examination.</p> <p>Nothing has been shown to indicate any cause for the sinking of the boat, except the splashing of the water into this hole that was made in the boat. According to the evidence the boat did not rest on the bottom until after she had sunk, to' a certain extent, at least. The testimony of all the witnesses shows that the only possible cause of the sinking was that water got into the boat, and libelant has shown absolutely nothing to explain how that water got into the boat unless it went through the hole. There is a question as to whether the captain of the tug properly maneuvered the boat when attached as she was by what is called a “strap,” and whether after an accident occurred in which the bitt was broken his leaving the boat under those circumstances was negligence; also if there was negligence in leaving the boat under these circumstances, whether that was more than a breach of the contract of towing.</p> <p>T!he libelant has proven no negligence so far as the method of leaving the boat is concerned, nor has he shown anything for which the tugboat would be responsible, unless the boat was too heavily loaded, and unless the danger from the hole was so apparent that he should not have left the boat to shift for herself. Aside from those quéstions, there was no negligence on the part-of the tug in leaving the boat to be looked after, by her captain; and, if the sinking occurred through the captain’s failure to pump her out, that should be considered in reference to'the negligence of the tugboat, if any, in leaving her there. I am inclined to think that the captain could have prevented the sinking of the boat if he had taken care of the boat; the only cause shown for the sinking of the boat being the slopping in of the water. It is not the question whether he could have done something at the time- he found she was sinking. It is the question whether he could have done something before that by taking proper care of his boat. I am inclined to think that is the point, of the case. I am bound to find on the evidence that the boat did not careen until after she was on the bottom. All the witnesses say that the bpat did careen, but that was after there was some water in her.</p> <p>, I think I will dismiss the libel, for the reasons that I have stated.</p>

<p>Bankruptcy (§ 317*) — Allowance op Claims — Costs .op Suit.</p> <p>Bankr. Act July 1, 1898, c. 541, § 63a, subd. 3, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), provides that debts of the bankrupt may be proved and allowed against bis estate which are founded upon a claim for taxable costs incurred in good faith by a creditor before the filing of the petition in an action to recover a provable debt. Bong before bankruptcy proceedings were instituted, claimant sued the bankrupts to enjoin the use of a certain word in connection with their business. It was stipulated between the parties that the referee should not be limited to the statutory allowance, but that his fee should be at the rate of $25 per hour or fraction of an hour for the time occupied on the reference, and in preparation of his report, and that each side should pay one-half of the stenographer’s bill; the prevailing party to tax his share thereof as a disbursement in the case. The referee announced his decision for claimant, delivering his report to claimant, and directed judgment in its favor. Claimant paid ' the stenographer’s fees, and the referee’s fees were paid prior to filing of proceedings in bankruptcy. Held, that the items of stenographer’s and referee’s fees constituted costs in the equity suit.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 317.*]</p>

Suit in equity by the Wright Company against the Herring-Curtiss Company and Glenn H. Curtiss. Defendants appeal from an order granting a preliminary injunction. 177 Red. 257. This cause comes here upon appeal from an order of the Circuit Court, Western District of New York, granting a preliminary injunction in a bill in equity brought for infringement of a patent. The patent is No. 821,393, issued May 22, 1906, to Orville Wright and Wilbur Wright for a flying machine.

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

<p>In Equity. Bill by the Metal Stamping Company against Lena Gerhab.</p>

<p>In Equity. Suit by the McCreery Engineering Company against the Massachussetts Ean Company and the County Commissioners of Essex County, Mass. On pleas.</p>

At Law. Action by Ignatz Olek against the Fern Rock Woolen Mills. A verdict was returned for plaintiff, and defendant movés for judgment non obstante and for a new trial.

At Law. Action by Edward H. Williams against the American Bridge Company. Verdict for plaintiff. On defendant’s motion for a new trial and for judgment notwithstanding the verdict.

Petition by W. S. Harlan, C. C. Hilton, and S. E. Huggins for a writ of habeas corpus.

Suit by the United States of America against Helmer Aakervik: This is a suit instituted under the act of Congress of June 29, 1906 (Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 [U. S. Comp. St. Supp. 1909, p. 486]), to cancel the certificate of citizenship issued to the respondent by a state court March 10, 1902. The respondent was. a subject of Norway.

<p>1. Building and Loan Associations (§ 11*) — Dividends—Right to Share in. Where building and loan shares were held under an agreement that the holder should be credited in December of each year, his proportionate share of the net profits, provided he remained in until his shares' reached their ultimate value, and that a withdrawal forfeited interest in the profits for the current year, his bankrupt estate, not having kept the monthly payments up after June in a particular year, is not entitled to cre,dit for any dividends in that year.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. § 13; Dee. Dig. § 11.*]</p> <p>% Building and Loan Associations (§ 35*) — Fines fob Nonpayments— Bankruptcy.</p> <p>On involuntary bankruptcy of a borrowing member of a building and loan association, the association’s right to impose fines for failure to make stipulated payments ceases.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. § 68; Dec. Dig. § 35.*] ■</p> <p>3. Building and Loan Associations (§ 14*) — Withdrawal—Bankruptcy op Member — Propits Accrued.</p> <p>Involuntary bankruptcy of a building and loan shareholder is not equivalent to a withdrawal so as to entitle the association to retain profits actually earned and duly credited.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. §§ 16, 19-; Dec. Dig. § 14.*]</p> <p>4. Building and Loan Associations (§ 34*) — Bankruptcy op Member-Rights op His Estate.</p> <p>On involuntary bankruptcy of a building and loan association member, his estate was not entitled to credit for profits or interest on the dues paid for the time between the last apportionment and credit of profits and bankruptcy.'</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. §§ 60, 62; Dec. Dig. § 34.*]</p> <p>5. Building and , Loan Associations (§ 39*) — 'Mortgages—Foreclosure— Sale by trustee in Bankruptcy.</p> <p>A sale by a trustee in bankruptcy of property mortgaged to a building and loan association was, in effect, a foreclosure sale.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Dec. Dig. § 39.*]</p> <p>6. Building and Loan Associations (§ 34*) — Loans—Bankruptcy op Member.</p> <p>On bankruptcy of a borrowing member of a building and loan association, the contract between him and the association governed the value of the shares and the application thereof on his mortgages.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. §§ 60, 62; Dec. Dig. § 34.*]</p> <p>T. Building and Loan Associations (§ 34*) — Bankruptcy op Member — Ep-pect. .... '</p> <p>A building and loan association borrowing member’s bankruptcy did not accelerate the time when his estate was entitled to have applied the amount paid in on his shares.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. §§ 60, 62; Dec. Dig. § 34.*]</p> <p>3. Building and Loan Associations (§ 34*) — Loans—Payment—Bankruptcy op Member.</p> <p>A bnilding and loan association article permitting members to repay mans partly in cash and partly by credit for dues paid, on days when dues are payable, applies to the member’s trustee in bankruptcy.</p> <p>[Ed. Note.' — For other cases, see Building and Loan Associations, Cent. Dig. §§ 60, 62; Dec. Dig. § 34.*]</p> <p>©. Building and Loan Associations (§ 34*) — Loans—Payment—Notice.</p> <p>Under a building and loan association article permitting members to repay loans partly in cash and partly by credit for dues paid, on bankruptcy of the member, the association was bound to take notice that the loan would be paid and that the dues paid would be applied to reduce the loan.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. §§ 60, 62; Dee. Dig. § 34.*]</p>

<p>1. Equity (§ 153*) — Pleading—Requisites.</p> <p>A bill in equity should be construed to mean what it fairly conveys by a fairly exact use of English speech.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 386; Dec. Dig. § 153.*]</p> <p>2. Action (§ 5*) —Violation of Statutes — Right to Recover.</p> <p>By violating a criminal or penal statute one does not render himself liable to a private citizen unless the unlawful conduct is the proximate cause of, or results in, some special injury to such citizen’s business or property.</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. § 6.*]</p> <p>8. Monopolies (§ 32*) — Anti-Trust Daw — Purpose.</p> <p>The prohibitory provisions of Anti-Trust Daw July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), apply to all contracts in restraint of interstate or foreign trade or commerce, without exception or limitation, and are not confined to those in which the restraint is unreasonable.</p> <p>[ lid. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>4. Monopolies (§ 28*) — Anti-Trust Daw — Private Suits for Violation.</p> <p>Under the express terms of Anti-Trust Daw July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), one injured in business or property by another through a combination or conspiracy to restrain or monopolize interstate trade may sue for his damage.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p> <p>©. Monopolies (§ 28*) — Anit-Trust Daw — Private Suit for Violation-Pleading — Sufficiency.</p> <p>A complaint, under Anti-Trust Daw July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), for damages, is not insufficient as failing to show a violation of the law or injury to plaintiff, where it sets out the origin and history of one of defendant companies in absorbing competing companies engaged in manufacturing tobacco; a history of the formation, growth, etc., of the other defendant company; absorption of the latter by the former, under an agreement to keep the purchase secret, all done in furtherance of the first company’s purpose to monopolize the business of manufacturing tobacco and cigarettes in violation of such law; a conspiracy between the two companies to monopolize the supply of manufactured tobacco throughout the country; that in furtherance of a general plan to restrain interstate trade in tobacco, and monopolize its manufacture and sale, defendants first resorted to unfair and oppressive means, fully set out, to prevent plaintiff company’s organization; that plaintiff’s stockholders and prospective stockholders were threatened with injury in business if they pressed the plaintiffs business; that one of plaintiff’s incorporators was offered inducements to abandon plaintiff; that false and unjust statements were circulated concerning plaintiff; that plaintiff established a prosperous interstate business and would have grown but for defendants’ unlawful acts; that plaintiff’s customers were unlawfully taken away by defendants’ threats and inducements; that cigarettes were sold below cost; that jobbers and dealers in plaintiff’s territory were given free goods and extra discounts to press sales as against plaintiff’s goods; that defendants’ employe obtained employment as plaintiff’s sales manager to injure and did injure plaintiff’s business in a specified way, as part of defendants’ scheme; that defendants conspired to destroy plaintiff’s business, etc.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 28.*]</p> <p>6. Pleading (§ 68*) — Sufficiency—Allegations on. Belief.</p> <p>An allegation that plaintiff has “reason to believe,” and therefore “alleges,” etc., is sufficient under Revisal N. O. 1905, § 489, requiring matter to be alleged as of plaintiff’s knowledge or upon “information and belief.”</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 140; Dec. Dig. § 68.*]</p>

In the matter of Charles J. Devlin, bankrupt. On petition of the State of Kansas for preferential payment of defendant’s demands out of the bankrupt’s estate.

In Equity. Suit by Charles Gulden against R. C. Chance’s Sons. _ On final hearing. The following is the label of complainant: The following is the label of defendants: The following is the neck label of complainant: The following is the neck label of defendants:

<p>In Equity. Bill by Belle N.. Whitney against the Whitney Elevator- & Warehouse Company and others.</p>

<p>In Equity. Suit by Felipe Barreda y Osma against Alexander Brown and another.</p>

Action by Ellen M. Regis and others against the United Drug Company and others. ' On motion to remand the case to the state court.

<p>1. Habeas Corpus (§ 70*) — Federal Court — State Court Proceedings— Stay.</p> <p>Rev. St. § 766 (U. S. Comp. St. 1901, p. 597). provides that pending ha-beas corpus proceedings, and until final judgment of discharge, any proceeding against the person so imprisoned or confined, or restrained of his liberty, in any state court or by or under the authority of any state for any matters so heard and determined under such writ, shall be deemed null and void. Held, that where, after the issuance of a writ of habeas corpus out of a federal court to review petitioner’s arrest for violation of Haws Or. 1909, p. 380, regulating peddlers, he was tried and acquitted in the state court, such trial and acquittal were null and void.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 62; Dec Dig. § 70.*]</p> <p>2. Courts (§ 489*) — Concurrent Jurisdiction op State and Federal Courts.</p> <p>State courts have concurrent original jurisdiction with federal courts to determine cases at law or in equity, arising under the Constitution or laws of the United States, or involving rights dependent on such Const"-tution or laws.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 1324-1341, 1372-1374; Dec. Dig. § 489.*]</p> <p>8. Habeas Corpus (§ 45*) — Issuance—Jurisdiction—Discretion.</p> <p>While the federal court has jurisdiction to issue a writ of habeas corpus to determine the jurisdiction of a state court to deprive a citizen of his liberty, whether such writ should be issued in the exercise of such jurisdiction is a matter to be determined in the exercise of a sound discretion in pursuance of law.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §■§ 1376- ■ 1385; Dec. Dig. § 45.*</p> <p>Jurisdiction of federal courts, see note to In re Huse, 25 C. C. A. 4.]</p> <p>4. Habeas Corpus (§ 45*) — Federal Courts — Issuance—Discretion.</p> <p>Where petitioner, a citizen and resident of Iowa, was arrested in Oregon for an alleged violation of Laws Or. 1909, p. 386, regulating and licensing peddlers, and claimed that such ordinance was invalid as violating the commerce clause of the federal Constitution, he was not entitled to a. writ of habeas corpus issued out of the federal court, in the first instance, but should be required to resort to the state courts for relief, and, if unsuccessful, to apply ultimately for review by the Supreme Court of the United States on a writ of error.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 1376-1385; Dee. Dig. § 45.*]</p>

Libels of information by the United States for the condemnation and forfeiture of certain barrels of wine, under Cr. Code U. S. § 240, approved by Act March 4,1909, c. 321, 35 Stat. 1137 (U. S. Comp. St. Supp. 1909, p. 1464).

Action by Eben H. Gay and another against the Hudson River Electric Power Company and others. Petition by John C. Quinn for a lien on certain property.

In the matter of Francis J. Bird, bankrupt. On certificate to review the determination of a referee directing the delivery of certain pledged securities to the Foster-Armstrong Company.

<p>1. Bankruptcy (§ 345*) — Priorities in Distribution or Estate — Construction or Act.</p> <p>Bankr. Act July 1, 1898, § 64b, els. 4, 5, c. 541, 30 Stat. 563 (U. S. Comp. St. 1901, pp. 3447, 3448), which respectively give priority to wages due workmen, etc., and debts owing to any person who by the laws of the states or the United States is entitled to priority, relate exclusively and alone to priority among those whose claims would, in the absence of such clauses, stand on terms of equality before the law as general unsecured claims, and have no reference whatever to the subject of liens.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 345.*]</p> <p>2. Bankruptcy (§ 348*) — Priorities in Distribution or Estate — Displacement or Liens.</p> <p>Claims of laborers for wages against the estate of a bankrupt, although given priority “over every other debt or claim” in cases of receivership or general assignment by the law of the state, and Bankr. Act July 1, 1898, § 64b, els. 4, 5, and section 64, c. 541, 30 Stat. 563 (U. S. Comp. St. 390], pp. 3447, 3448), are not entitled to priority of payment from the proceeds of property subject to valid fixed liens over the holders of such liens in view of section 67d, which provides that valid liens “shall not be affected by this act.”</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 348.*]</p>

<p>Application of Frank N. Hoffstot for a writ of habeas corpus to obtain his release from a Governor’s extradition warrant.</p>

At Law. Action by the Peper Automobile Company against the American Motor Car Sales Company. On motion to quash the return and set aside the service.

In the matter of the Conecuh Pine Lumber and Manufacturing Company. On petition to review a referee’s decision disallowing the claim of the Parsons-Willis Lumber Company.

<p>Commerce (§ 41*) — Interstate Commerce — Transportation—Original Packages — “Intrastate Commerce/’</p> <p>Where merchandise was transported in interstate commerce to Its destination in Oregon, where it was received by the consignee, placed in a warehouse, and freight paid, the interstate character of. the shipment thereupon terminated, and the subsequent transportation of the goods in the original packages to other points in Oregon by the consignee constituted intrastate traffic, for which the carrier was only entitled to charge state rates provided by the State Board of Railroad Commissioners.</p> <p>[Ed'. Note. — For other cases, see Commerce, Dec. Dig. § 41.*]</p>

<p>In Equity. Bill by the White-Smith Music Publishing Company against Ira N. Goff and others. On demurrer to bill.</p>

Condemnation proceedings by the United States against certain-lands in the Town of Narragansett. On motion to confirm the commissioners’ report for assessment of damages.

<p>1. Chattel Mortgages (§ 196*) — Failubf, to File — Effect.</p> <p>Under Act Wash. March 13, 1899 (Laws 1899, c. 98) §§ 2, 3, 6, requiring chattel mortgages to he filed within 10 days after their execution, and making filed mortgages notice to the world, until filing a mortgage not filed within that time, does not affect creditors, whether antecedent or subsequent.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 429; Dec. Dig. § 196.*]</p> <p>2. Bankeuptcy (§ 161*) — Peefbbenoes—Chattel Mortgages.</p> <p>Since a chattel mortgage not filed within 10 days as required by Act March 13, 1899 (Laws Wash. 1899, e. 98) §§ 2, 3, 6, first became a lien when filed, it constituted a preference when filed within four months next preceding the mortgagor’s bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 261; Dec. Dig. § 161.*]</p>

At Raw. Action by Elizabeth Rarsen against the United Gas Improvement Company. Verdict for plaintiff. On defendant’s motions for judgment non obstante veredicto and for a new trial.

<p>1. Collision (§ 125*) — Evidence—Cause of Collision — Overtaking Vessel.</p> <p>Evidence on libel against an overtaking steamship for colliding with a steam tug held to show that the direct cause of the accident was an unforeseen shifting of the river current..</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 275, 277; Dec. Dig. i 125.*</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p> <p>2. Collision (§ 51*) — Overtaking Vessels — Duties.</p> <p>An overtaking vessel must keep out of the overtaken vessel’s way.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. § 57; Dec. Dig. § 51.*]</p> <p>3. Collision (§ 102*) — Narrow Channel — Vessels Abreast — Joint Negligence.</p> <p>A steam tug and a steamship to which the tug had taken a pilot were equally negligent in attempting to enter a pass less than 700 feet wide, abreast and without exchanging signals, at a point where the current was treacherous and frequently shifted.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 182, 190, 196; Dec. Dig. § 102.*]</p> <p>4. Shipping (§ 81*) — Negligence of Pilot — Liability.</p> <p>In admiralty a vessel may be held in rein for the negligence of a compulsory pilot, though the owner would not be liable in an action at common law.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 347; Dee. Dig. § 81.*] .</p> <p>5. Pilots (§ 2]4*) — Pilots’ Association — Nature—“Partnership.”</p> <p>The Associated Branch Pilots of the Port of New Orleans, an association created to pilot and assist in the salvage of vessels, the members sharing in the expenses and the profits equally, the association collecting the fees and being governed by a president and board of directors, is an ordinary partnership under the law of Louisiana and may select, control, and discharge any of its members.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. § 17; Dee. Dig. § 2%.*</p> <p>For other definitions, see Words and 'Phrases, vol. 6, pp. 5191-5202; vol. 8, pp. 7746-7747.]</p> <p>6. Pilots (§ 2yz*) — Pilots’ Association — Right to’ Sue —Negligence of Member.</p> <p>The Associated Branch Pilots of the Port of New Orleans, being a partnership, cannot maintain libel against a steamship for collision with the association’s tug, based on negligence of the steamship’s pilot, where he is a member of the association.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. § 17; Dee. Dig. § 2%.*]</p>

<p>1. Collision (§ 90*) — Rules—Narrow Channel Rule.</p> <p>The narrow channel rule (article 25 of the Inland Rules; chapter 4, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2883]), requiring steam vessels navigating narrow channels when safe and practicable to keep to that side of the fairway which lies on their starboard side,' is not strictly applicable to the passage around the Battery from the East to the North River, but still should be respected by boats passing around the Battery, especially from the North River, when they would otherwise interfere with vessels coming down the -East River rightfully on the west side of the channel.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 90.*]</p> <p>.2. Collision (§ 95*) — Steam Vessels — Fault.</p> <p>The ferryboat Long Beach was passing around the Battery from the North River and stopped to permit a lighter to pass on her starboard side. At the time the tug Powhatan with a tow on her side was coming down East River and to pass around the Battery, being outside of three other tugs with tows which were as close to the New York piers as they could safely go. While so stopped, the ferryboat gave the Powhatan a signal of one whistle, which was answered, and she then started ahead; but, instead of keeping across toward the Brooklyn side so as to pass under the bows of all the tugs, she attempted to go to port to pass between the Powhatan and a tow which was in mid-river and came into collision with the Powhatan, which had stopped when the danger became apparent. Held, that neither the narrow channel rule nor the starboard hand rule for crossing vessels fully governed the situation, but that the ferryboat was solely in fault for not keeping to starboard, which it appeared she could have done, while the tug did not have room to go further to starboard.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §'§ 200-202; Dee. Dig. § 95.*]</p>

In Equity. Bill by R. N. Stevens and others against the Empire Casualty Company for dissolution thereof.

<p>In Admiralty. Libel by Thomas McQueen against the steamer P. P. Miller, her engines, etc., and another.</p>

<p>1. Courts (§ 356*)^ — Federal Courts — Procedure.</p> <p>A suit in a federal court on a supersedeas bond given under the'Pennsylvania statute of May, 1897, regulating practice on appeals to the supreme and superior courts, is governed by the laws and decisions of that state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. jj 356.*</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. O. A. 553.]</p> <p>2. Appeal and Error (§ 1106*) — Disposition—Interlocutory Judgment.</p> <p>Under Act Pa. May 20, 1891 (P. L. 101), empowering the Supreme Court to enter such judgment as may be deemed proper, on appeal in a suit for an accounting the Supreme Court could make an interlocutory order remitting the record for a finding by the referee on a particular point.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4392-4393; Dee. Dig. § 1106.*]</p> <p>3. Appeal and Error (§ 1232*) — Disposition—Interlocutory Judgment.</p> <p>An order of the Supreme Court of Pennsylvania, on appeal in a suit for accounting, remitting the record for a finding by the referee respecting a credit claimed, by defendant, was an interlocutory and not a final judgment, as affecting the liability of the surety on a supersedeas bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1232.*]</p> <p>4. Principal and Surety (§ 145*) — Supersedeas Bond — Liability.</p> <p>The surety on a supersedeas bond is concluded by decisions and orders of the appellate court.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 397 — 101; Dec. Dig. § 145.*]</p>

<p>1. Collision (§ 37*) — Vessels Meeting.</p> <p>A boat, haying accepted the two-whistle signal of a ferryboat approaching on the port sido, and knowing that the ferryboat intended to pass down the river, and was compelled to turn to starboard on account of projecting pierheads, was bound to maintain her own course, so as to allow the ferryboat room to proceed.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 34-30; Dec. Dig. § 37.*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>2. Collision (§ 108*) — Vessels Meeting — Maneuvers In Extbemis.</p> <p>Where collision was imminent, a ferryboat was not negligent in making an incorrect maneuver, where it did what seemed to be best.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 225-231; Dec. Dig. § 108.*]</p> <p>3. Collision (§ 123*) — Negligence—Bubden or Pbooe.</p> <p>On libel against a ferryboat for a collision, the burden was on libelant to show negligence on the ferryboat’s part.</p> <p>LEd. Note. — For other cases, see Cbllision, Dec. Dig. § 123.*]</p> <p>4. Collision (§ 125*) — Negligence—Evidence—Sttei¡toiency.</p> <p>Evidence in libel against a ferryboat for a collision held insufficient to show that the captain of the ferryboat was negligent.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. §§ 26(5-279; Dec. Dig. § 125.*]</p>

<p>Bill by the Keystone Type Foundry against the Portland Publishing Company.</p>

<p>In the matter of Walter W. Chamberlain, bankrupt. On motion to confirm the report of a special master overruling specifications of objections to the bankrupt’s discharge, and recommending that a discharge be granted.</p>

<p>Actions by the.United States against the Waters-Pierce Oil Company. On motions to direct verdicts for defendant.</p>

<p>In the matter of William W. Rudd, bankrupt. Application by the bankrupt’s assignee for the benefit of creditors as an individual for payment of the amount advanced by him to redeem a pledged diamond, which belonged to the bankrupt and was surrendered by petitioner to the bankrupt’s trustee.</p>

<p>1. Removal op Causes (§§ 18, 19*) — Cases Arising Under Constitution or Laws op the United- States.</p> <p>A cause cannot be removed from a state to a federal court simply because in the progress of the litigation it may become necessary to construe the Constitution or laws of the United States, but the decision of the ease must depend upon such construction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 36-46, 48, 52, 53; Dec. Dig. §§ 18, 19.*]</p> <p>2. Removal op Causes (§ 25*) — Proceedings—Allegations op Petition.</p> <p>A case cannot be removed from a state court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws, or treaties of the United States, unless such appears by plaintiff’s statement of liis own claim; and, if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal, or in the subsequent pleading.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 58, 59; Dec. Dig. § 25.*]</p> <p>8. Removal oe Causes (§ 25*) — Cases Arising Under Constitution or Daws oe the United States — Allegations oe Complaint.</p> <p>Where the complaint alleged facts which brought the suit within the employer’s liability act (Act June 11, 1906, c. 3073, 34 Stat. 232 LU. S. Comp. St. Supp. 1909, p. 1148]) and the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), but there was no allegation therein that there was any dispute between the parties as to the construction of such acts, or that there was any controversy over the law applicable to the case, the action was not upon the complaint one arising under a law of the United States, so as to be removable to the United States Circuit Court.</p> <p>[Ed. Note.. — For other cases, see Removal of Causes, Gent. Dig. §§ 58, 59; Dec. Dig. § 25.*]</p>

<p>1. Seamen (§ 29*) — Injuries—Ne&ligence—Evidence.</p> <p>In a libel for injuries to a seaman through being carried aloft while endeavoring to hold the forepeak halyard with a stopper, which libelant alleged broke because it was defective, evidence held insufficient to show either that the stopper broke or that it was insecure.</p> <p>LEd. Note.- — For other cases, see Seamen, Dec. Dig. § 29.*]</p> <p>2. Witnesses (§ 317*) — Discredited Testimony — “Falsus In Uno, Falsus In Omnibus.”</p> <p>Where the evidence of witnesses was in irreconcilable conflict, and the difference was unexplainable on the theory of mistake, libelant's testimony in important particulars being completely discredited, the maxim “falsus in uno, falsus in omnibus” would be applied.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1080-1083; Dec. Dig. § 317.*]</p>

<p>In Admiralty. Libel by Harry Black against the People's Coal Company.</p>

<p>Wharves (§ 18*) — Wharfage—Vessels Subject to.</p> <p>A floating club houseboat, 40 or 50 feet long, about 14 feet wide, with decks forward and aft, and a cabin containing a kitchen and living room, is not subject to Act Pa. 1858 (P. L. 363), giving a lien for wharfage and anchorage against vessels navigating particular rivers.</p> <p>[Ed. Note. — For other cases, see Wharves, Dec. Dig. § 18.*]</p>

<p>Action by John N. McClintock against the City of Pawtucket. On motion for leave to file a bill of review.</p>

Suit by the Guardian Trust & Deposit Company of Maryland against the Greensboro Water Supply Company, in which B. J. Fisher intervened to establish a judgment recovered in the state courts as a prior claim against the assets of the Water Supply Company, to bonds secured by mortgage on the company’s plant, etc. A judgment having been rendered sustaining such claim, the amount of the judgment aftes1 the death of Fisher was, under order of the Circuit Court, paid to C. A. Bray,…

Action by the Atlantic Terra Cotta Company against the Masons’ Supply Company. Judgment for defendant, and plaintiff brings error. This action was brought in the court below by plaintiff in error against •defendant in error (and the parties will be referred to here as “plaintiff” and “defendant”); the former being a New York corporation and the latter an Ohio corporation. The action was one at law and was brought to issue upon amended petition, an answer, and a reply.

<p>1. Criminal Law (§ 778*) — Trial—Instructions.</p> <p>Where the court charged the jury in a criminal case that “every person is presumed by the law to be innocent, and the burden is on the government to prove beyond a reasonable doubt that the defendants are guilty as charged in the indictment,” it was not error to refuse to charge further that “such presumption of innocence is not a mere form which the jury may disregard at its pleasure, but a substantial part of the law of the land and binding upon the jury in this case.”</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1847; ■ Dec. Dig. § 778.*]</p> <p>2. Criminal Law (§ 652*) — Instructions—Sufficiency or Circumstantial Evidence.</p> <p>In order to convict on circumstantial evidence, not only must all the circumstances concur to show that the defendant committed the crime, but they must be inconsistent with any other rational or reasonable conclusion, and an instruction that the jury should acquit if the facts are “equally consistent” with innocence or guilt is erroneous.</p> <p>[Ed. Note. — For other eases, see 'Criminal Law, Cent. Dig. §§ 1237-1262; Dec. Dig. § 552.*]</p> <p>3. Criminal Law (§ 829*) — Instructions—Burden and Measure of Proof.</p> <p>The refusal of a requested instruction in a criminal case that “no amount of suspicion, however grave or serious, will justify you in finding the defendant guilty,” was not error where the jury had been correctly instructed that the burden rested on the government to prove every fact necessary to establish the guilt of the accused beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. | 829.*]</p> <p>4. Criminal Law (§§ 829, 1172*) — Instructions—Previous Good Character.</p> <p>Where the court in a criminal case instructed the jury that “the previous good character of defendants ought to be considered together with all the other facts in evidence,” it was not error to refuse to charge further that “the law presumes that a man whose character is good is less ' likely to commit a crime than one whose character is not good,” and, while the instruction was erroneous in assuming that previous good character was proven, the error was not prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3160; Dec. Dig. §§ 829, 1172.*]</p> <p>5. Criminal Law (§ 858*) — Trial—1Taking Copy of Instructions to Jury Room.</p> <p>Where the court in a criminal case charged orally and also gave certain written instructions requested by defendant, it was not error to overrule a motion to permit the jury to take such written instructions to their room.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.*]</p> <p>•6. Criminal Law (§ 1093*) — Appeal and Error — Sufficiency op Bill op Exceptions.</p> <p>A bill of exceptions setting out that the judge at a time when the jury had been recalled into court “told the jury that in his opinion the evidence showed the defendants to be guilty and stated the reasons therefor,” but which does not set forth what the judge said in stating his reasons, is insufficient to sustain an assignment of error, except to the fact of giving such an opinion at the time it was given.</p> <p>[Ed. Note. — For other cases, see Criminal Law,» Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.*]</p> <p>7. Criminal Law (§ 762*) — Instructions—Expression op Opinion as to Guilt or Innocence op Dependant.</p> <p>While it is not error in the federal courts for the trial judge to state his opinion as to the guilt or innocence of the defendant in a criminal case if given to the jury with the proper explanation that it has no binding force, yet, when such opinion is given, it should be in connection with the instructions; and withholding it until it appears likely that the jury will not agree is a practice not to be commended.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731, 1750, 1754, 1758, 1759, 1769; Dee. Dig. § 762.*]</p> <p>Waddill, District Judge, dissenting.</p>

<p>1. Grand Juey (§ 15*) — Competency of Jtjeoes — “Civil Officer.”</p> <p>A practicing attorney is not a “civil officer” within Ky. St. § 2248 (Russell’s St. § 3061), rendering such officers incompetent to serve as grand jurors.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 35, 36; Dec. Dig. § 15.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1198.]</p> <p>2. Post Office (§ 48*) — Indictment—“Article of Value.”</p> <p>Money is comprehended by the term an “article of value” within an. Indictment of a railway postal clerk for secreting and embezzling a letter containing “articles of value.”</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 66-80; Dec. Dig. § 48.*]</p> <p>3. Post Office (§ 48*) — -Letters Containing Article — Indictment—Sufficiency.</p> <p>An indictment of a railway postal clerk for embezzling a letter containing “articles of value,” to wit, “$12 in money of the United States,”' which letter was addressed to a specified person at a specified address,, it being alleged that a further description of the letter and its contents is unknown to the grand jurors, sufficiently describes the money.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 66-80; Dec. Dig. § 48.*]</p> <p>4. Post Office (§ 48*) — Letters Containing Article — Indictment—Requisites.</p> <p>An indictment of a railway postal clerk for secreting and embezzling-a letter containing an article of value need not describe the article with the same precision as in a prosecution for forgery or larceny, but the article must be stated.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 66-80; Dec. Dig. § 48.*]</p> <p>5. Post Office (§ 48*) — Letters Containing Articles — Indictment—Sufficiency.</p> <p>An indictment of a railway postal clerk for secreting and embezzling a letter containing an article of value sufficiently describes the article-if it apprises defendant of the charge against him and protects him. against a second prosecution for the same offense.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 66-80; Dec. Dig. § 48.*]</p> <p>6. Criminal Law (§ 1036*) — Confession—Failure to Object — Effect.</p> <p>That accused’s confession was not objected to by him when offered as-not being voluntary, warrants disregard of an objection on appeal on that ground.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2639; Dec. Dig. § 1036.*]</p> <p>7. Criminal Law (§ 519*) — Confessions—Admissibility—Voluntary Character.</p> <p>Confessions not voluntarily made are inadmissible against accused; he being protected against confessions obtained by duress or through, hope or fear.</p> <p>[Ed. Note. — FOr other cases, see Criminal Law, Cent. Dig. § 1163 ; Dec.. I Dig. § 519.*]</p> <p>8. Criminal Daw (§ 519*) — Confessions—Voluntary Nature.</p> <p>A confession is not shown to be involuntary merely because made while under arrest or on questions by an officer.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1167; Dec. Dig. § 519.*]</p> <p>9. Criminal Daw (§ 531*) — Confessions—Voluntary Nature — Evidence— Sufficiency.</p> <p>Evidence held sufficient to show prima facie that a confession made by a railway postal clerk to secreting a letter containing money was voluntary.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent Dig. § 1215; Dec Dig. § 531.*]</p> <p>10. Criminal Daw (§ 781*) — Confessions—Instructions.</p> <p>On request by accused it is proper to specially instruct that a confession must be found to have 'been voluntarily made before it could be considered.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent Dig. § 1864; Dec. Dig. § 781.*]</p> <p>11. Criminal Daw (§ 692*) — Confessions—Voluntary Nature — Waiver Of Objections.</p> <p>Accused did not waive the right to question the voluntary nature of his confession by motion to strike it out by failing to cross-examine as to its voluntary nature.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1629: Dec. Dig. § 692.*]</p> <p>12. Post Office (§ 49*) — Letters Containing Money — Evidence.</p> <p>In a trial of a railway postal clerk for embezzling a letter containing money, the fact that the letter which was introduced in evidence was found in his pocket was some evidence tending to show intent to embezzle.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. § 49.*]</p>

<p>1. Appeal and Error (§ 1058*) — Cube of Error — Exclusion of Testimony.</p> <p>Any error in excluding a question whether witness knew plaintiff and' her general reputation was cured by permitting him to state on the next: question that he did not know her general reputation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. § 1058.*]</p> <p>2. Appeal and Error (§ 1058*) — Cube of Ebboe — Exclusion of Testimony.</p> <p>Any error in excluding a question whether witness knew plaintiff’s reputation in the community was cured by permitting him to state on the-next question that he never heard her word disputed as to truth.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. § 1058.*]</p> <p>3. Libel and Slander (§ 110*) — Plaintiff’s Character — Evidence.</p> <p>A question asked a witness as to the general character of plaintiff in libel not limited to a time at and prior to the publication was properly excluded.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Dec. Dig. § 110.*]</p> <p>4. Appeal and Error (§ 260*) — Offer to Prove — Exceptions.</p> <p>The aggrieved party should except to a rejection of an offer to prove in order to preserve the ruling for review.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dee. Dig. § 260.*]</p> <p>5. Libel and Slander (§ 103*) — Irrelevant Testimony.</p> <p>In a libel suit for insinuating that a child cared for by plaintiff was bom to her out of wedlock, testimony that plaintiff “waywardly held out the impression in the community that there was a mystery about this child” was properly rejected as being incompetent, where communication of the declaration to defendant was not shown.</p> <p>[Eld. Note. — For other cases, see Libel and Slander, Cent Dig. § 281; Dec. Dig. § 103.*]</p> <p>6. Libel and Slander (§ 103*) — Evidence—Admissibility.</p> <p>In a libel suit for charging abuse of her child, one who saw her before and after the publication could testify that she was healthy, robust, rosy cheeked, and full of spirits, though the testimony covered a period extending more than two weeks beyond the publication.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent Dig. § 281; Dec. Dig. § 103.*]</p> <p>7. Libel and Slander (§ 124*) — Instructions.</p> <p>In a libel suit for charging abuse of a child, it was not error to instruct that it was for the jury to say what weight should be given to the facts that the child appeared to be healthy and her relations with plaintiff affectionate, where the jury had observed the child in court, though the trial occurred several years after the publication.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 365-373; Dec. Dig. § 124.*]</p> <p>8. Appeal and Error (§ 1032*) — Error—Prejudice Not Presumed.</p> <p>Prejudice from error should be shown and not presumed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4047-4051; Dec. Dig. § 1032.*]</p>

<p>1. Appeal and Error (§ 1076*) — Assignments of Error — Waiver.</p> <p>Where, after appeal, appellant filed in the appellate court a paper, entitled in the cause, reciting that at the suggestion of the court he would rely on the jurisdictional questions relating to the power of the Circuit Court to appoint respondent as receiver, and to enter a final order vacating a decree discharging appellant from all liability as receiver, he thereby waived an assignment of error that the court did not acquire jurisdiction over appellant’s person by the issuance and service of an order to show cause.</p> <p>[ Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 1076.*)</p> <p>2. Appeal and Error (§ 499*) — Scope of Review' — Questions Not Raised at Trial.</p> <p>An assignment of error, in that the trial court acquired no jurisdiction over appellant’s person by the issuance and service of an order to show cause, could not be reviewed, ivhere there was nothing in the record to show that the jurisdiction of the Circuit Court over appellant’s person was challenged on that account at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2295; Dec. Dig. § 499.*]</p> <p>3. Appeal and Error (§ 674*) — Record—Contents.</p> <p>An assignment of error, in that the court never acquired jurisdiction over appellant’s person by reason of the issuance and service of an order to show cause on appellant in another state, to which he had removed, would not be reviewed, where the record did not show that appellant bad not voluntarily appeared, or that the service, if made, was not made within the court’s territorial jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2874; Dec. Dig. § 674.*]</p> <p>4. Courts (§ 405*) — Federal Courts — Jurisdictional Questions.</p> <p>Assignments of error challenging the jurisdiction of the Circuit Court sitting as a court of equity to review its decree after the term at which it was rendered, and not involving any question as to the court’s jurisdiction over defendant’s person, .were properly reviewable on appeal to the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1099; Dec. Dig. § 405.*</p> <p>Jurisdiction of Circuit Courts of Appeals in general, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>5. Receivers (§§ 35, 59*) — Appointment—Collateral Attack.</p> <p>A Circuit Court of the United States, in the absence of statute requiring notice of application for the appointment of a receiver, in the exer-eise of judicial discretion, may appoint a receiver without notice; such appointment being subject only to direct attack for abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent Dig. §§ 54-60, 103, ' 104; Dec. Dig. §§ 35, 59.*</p> <p>Notice of application for appointment of receiver, see note to Mann v. Caddie, 88 C. C. A. 7.]</p> <p>6. Receivers (§ 64*) — -Appointment op Successor.</p> <p>Where an order discharging a receiver and releasing him from further liability showed that there was money on hand which he was directed to pay over, subject to the order of the court, such money not having been finally disbursed, -and it appearing that there was still property within the court’s jurisdiction belonging to the corporation not administered and which the receiver had concealed, the court had not lost jurisdiction, but could appoint a new receiver, in the exercise of discretion, on an ex parte application, without notice.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 113; Dec. Dig. § 64.*]</p> <p>7. Equity (§ 442*) — Decree—Modipication After Term.</p> <p>While a court of law has no power to chaDge or modify its judgments in substantial respects after the rising of the court for the term at which the judgment was rendered, a court of equity may vacate or modify its decrees by a bill of review filed after the term.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 1065; Dec. Dig. § 442.*]</p> <p>8. Equity (§ 452*) — Bill op Review — Time.</p> <p>Where a bill of review is based on errors appearing on the record, it must be filed within the time in which an appeal could have been taken; but, if based on fraud in obtaining the decree, or for newly discovered evidence, the time within which it may be filed is governed by the equitable rule of laches.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 1104; Dec. Dig. § 452.*]</p> <p>9. Equity (§ 447*) — Bill op Review — Nature op Remedy — Newly Discovered Evidence — Fraud.</p> <p>A bill of review is the proper remedy to obtain a vacation of a decree in equity for newly discovered evidence or fraud.</p> <p>[Ed. Note. — For other-cases, see Equity, Cent. Dig. §§ 1090-1092; Dee. Dig. § 447.*]</p> <p>10. Equity (§ 460*) — Bill op Review — Requisites.</p> <p>A bill of review for fraud or newly. discovered evidence should state when the fraud or new evidence was discovered and should contain a prayer for subpoena or process.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 1117-1123; Dec. Dig. § 460.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District- of Kentucky.</p> <p>Action by Henry Knight, Wright Knight’s administrator, against the Illinois Central Railroad Company. Judgment for defendant, and .plaintiff brings error.</p>

Bill by William L,. Bidwell and another against W. A. Huff and others. On affirmance by the Circuit Court of Appeals of a judgment for complainants, defendant Huff applies individually and as trustee for an appeal to the Supreme Court.

Suit in equity by Andrew K. Van Deventer against Jurien S. Lott and others. Decree for complainant, and defendants appeal. Said decree was in favor of the complainant in an action to quiet title to lands situated in the county of Queens, at the west end of Rockaway Beach. The opinion of the Circuit Court was filed July 34, 1909, and is reported in 173 Fed. 574.

<p>In Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action by William H. Taylor against Andrew Langdon. Judgment for plaintiff for $12,209.34, and defendant brings error.</p>

Action by Andrew Slentz against the Western Bank Note & Engraving Company of Chicago, Ill. There was a verdict for plaintiff, and' a judgment for defendant notwithstanding the verdict, and plaintiff brings error.

For decision below, see 171 Fed. 906, affirming a decision by the Board of United States General Appraisers (G. A. 6,250, T. D. 29,-923), which had affirmed the assessment of duty by the collector of customs at the port of Boston.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suits in admiralty by Frank U. Neall, as trustee, against the P. Dougherty Company and cross-libel by the P. Dougherty Company ■against the- tug Somers N. Smith. • Decree for libelant Neall on both original and cross-libel (168 Fed. 415), and the P. Dougherty Company appeals.</p> <p>On appeal from decrees of the District Court for the Southern District of New York in favor of Frank U. Neall, as trustee, for $875.29 damages and costs in the first of the'above entitled actions, and for $316.89 costs .in the second of said actions. In the first action Neall, as trustee, recovered $500 for towage service, in the nature of salvage, and costs. In the second action, which was a cross-libel filed by the Dougherty,, Company to recover damages against the tug Somers N. Smith for its alleged breach.of a contract of towage, the libel was dismissed with costs.. In both actions the Dougherty Company appeals.</p>

<p>Shipping (§ 81*) — Negligent Management op Vessel — Crushing Coaling Barge Against Pier.</p> <p>A coal barge was placed between a large steamship and a pier at ebb tide, which tended to keep the steamship away from the pier, and remained there until high tide. It was afterward found that her side next the pier was crushed in. The steamship was made fast to the pier by lines, and also breasted off by two booms which extended on an upward slant from the pier to. her side. Held, on the evidence, that the injury to the barge was caused by her being squeezed between the steamship and the pier when the tide rose, due apparently to the elevation of the outer ends of the booms, which permitted the steamship to come closer to the pier,- and that her owner whose employés so placed and left the barge was liable therefor.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 344, 345; Dec. Dig. § 81;* Navigable Waters, Cent. Dig. § 98.]</p>

<p>1. Bankruptcy (§ 409*) — 'Acts in Fraud or Creditors — Failure to Keep Account Books.</p> <p>Where the business of a bankrupt was that of mining promoter, not requiring elaborate accounts, and he had no employes and each of his mining deals was separate and complete in itself, and he relied entirely upon pocket memoranda, noting upon them the deposits and withdrawals from his bank account, having his bank book balanced each month, such records and memoranda were sufficient as respects the riglfts of his creditors ; they disclosing substantially the state of his financial affairs.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 409.*]</p> <p>2. Bankruptcy (§ 414*) — Fraudulent Transfers.</p> <p>Suspicious circumstances are not enough to show a fraudulent transfer ' of property by a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 414.*]</p>

Suit in equity by the Globe-Wernicke Company against the Macey Company and Otto H. E. Wernicke. Decree for complainant, and defendants appeal. The appellants, defendants below, appeal from a decree of the Circuit Court granting an injunction and accounting for alleged infringement of letters patent No. 557,737, under .a bill filed against them by the appellee, as complainant and owner of such patent.

the Northern District'of Illinois. Suit in equity by the Bolte & Weyer Company against the Knight Bight Company. Decree for defendant, and complainant appeals. The appeal is from a decree dismissing the bill for want of equity. The bill was to restrain infringement of letters patent. No. 38,638, issued June 25, 1907, to Joseph J: Weyer, for design for lamps. The design is as follows: The alleged infringing design is as folien

Petition to Revise Order of the District Court of the United States for the Western District of Pennsylvania. ' Proceedings by Roger O’Mara, as trustee in bankruptcy of Harry K. Thaw, to stay an action brought by John B. Gleason against Thaw in the state court of New York. An order was granted staying Gleason’s action, and, on the court’s refusal to take off the stay, Gleason filed a petition to revise.

<p>1. Bankruptcy (§ 407*) — Discharge op Bankrupt — Grounds for Refusal-False Representations — ‘ ‘ Property. ’ ’</p> <p>Since “property” implies dominion, right of user, or of disposition, the. services and advice of an attorney are not property within the provisions of the bankrupt law making it a ground to refuse the discharge of a claim that it is one for obtaining property under false pretenses or false representations.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 407.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5693 -5728; vol. 8, pp. 7768-7770.]</p> <p>2. Bankruptcy (§ 407*) — Discharge of Bankrupt — Grounds for Refusal-Discharge — Fraud.</p> <p>That the gravamen of a complaint against a bankrupt is fraud (not created while acting in a fiduciary capacity) will not prevent the operation of a discharge since the amendment of 1903 to the bankruptcy act (Act Feb. 5, 1908, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1909, p. 1308]), though formerly it would.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dec. Dig. § 407.*]</p> <p>3. Bankruptcy (§ 391*) — Action Against Bankrupt — Stay of Proceedings.</p> <p>A suit by an attorney for services and advice obtained by a bankrupt by false pretenses or false representations will be stayed in accordance with Bankr. Act July 1, 1898, c. 541, § 11, 30 Stat. 549 (U. S. Oomp. St. 1901, p. 3426), providing that a suit on a claim from which a discharge would he a release shall be stayed till an adjudication or dismissal of the petition, and, after adjudication, till 12 months from the adjudication, or till the question of discharge is determined.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 649-651; Dee. Dig. § 391.*]</p>

<p>In Equity. Suit by Olin S. Fellows against Borden’s Condensed Milk Company.</p>

<p>1. Patents (§ 132*) — Term—Effect of Treaty.</p> <p>Article 4 bis provided by the International Convention for the Protection of Industrial Property of December 14, 1900, at Brussels, ratified by the United States Senate, and proclaimed by the President to take effect September 14, 1902 (President’s Proclamation Aug. 25, 1902, 32 Stat. 1940), did not repeal the limitation of a United States patent to 'the term of a previous foreign patent for the same invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 18814-191: Dec. Dig. § 132.*] c</p> <p>2. Patents (§ 99*) — Validity—Sufficiency of Specification and Claims.</p> <p>That a patent of a method for evacuating incandescent electric lamps by first introducing into a tubular elongation of the bulb suitable substances capable of being gasified by heat and combining with the gases generated by the filament when brought to incandescence to form solid or liquid precipitations, and then exhausting the bulb by means of a pump and sealing the elongation, then bringing the filament to intensive incandescence and simultaneously heating the substance in the elongation, and finally sealing off the elongation, in the specification and claim directs that, after the partial exhaustion of the bulb by the pump, the pump connection is to be sealed off, did not mention specifically the ordinary “working” of the filament during the pump action, would not render the patent process inoperative.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 133-139; Dec. Dig. « 99.*]</p> <p>8. Patents (§ 157*) — Constbuction.</p> <p>When two constructions of a patent are permissible, the court will adopt that which will give to an inventor the protection to which, under the law, he is entitled.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 229-232; Dec. Dig. § 157.*]</p> <p>4. Patents (§ 118*) — 'Validity— Sufficiency of Disclosures.</p> <p>That the claim of a patent for a method of exhausting incandescent electric lamps contains no limitation as to the extent to which the bulb must be exhausted before sealing, and the specification only states it approximately, would not render the disclosure of the patent insufficient to enable one skilled in the art to practice the process, though it might be necessary to make several tests to determine with exactness what the patentee meant by the expression “exhausted tO' the extent of about two millimeters of mercury.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 118.*]</p> <p>5. Patents (§ 314*) — Infbin&ement—Action—Reopening Case foe Additional Peooe.</p> <p>A suit for infringement of a patent will not be reopened after final hearing to admit proof to support a defense set up by answer filed more than four years before final hearing, where the importance of the issue was as apparent at that time as later, and the matters sought to be proved were accessible during the four years.</p> <p>I Ed. Note. — For other cases see Patents, Cent. Dig. §§ 55(1-553; Dec. Dig. § 314.*]</p> <p>(5. Patents (§ 328*) — 'Validity—Infringement.</p> <p>Malignani patent, No. 537,693, for a process of evacuating incandescent lamps, held valid and infringed.</p> <p>7. Patents (§ 118*) — Process—Sufficiency of Description.</p> <p>The naming of nonessential conditions by a patentee, so long as the essential conditions of a process to accomplish the desired results are set forth in the patent, is immaterial; it not appearing that the patentee describes as essential a condition which would defeat the successful performance of the process, or omits an essential condition not implied by a familiar knowledge of ihe art.</p> <p>I Ed. Note. — For other eases, see Patents, Dee. Dig. § 118.*]</p> <p>8. Patents (§ 318*) — Process—Description.</p> <p>Erroneous statements of a patentee as to the theory of his process are immaterial, so long as the patent clearly directs the reader what to do to successfully practice the process.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 138.*]</p> <p>9. Patents (§ 163*) — Construction—Sufficiency of Description.</p> <p>Whore the language employed in a patent is indefinite or ambiguous, it should be read in the light of the reader’s knowledge of the prior art.</p> <p>[Ed Note. — For other cases, see Patents, Cent. Dig. § 236% 5 Foe. Dig. § 361.*]</p> <p>10. Patents (§ 328*) — Process—Description.</p> <p>In the practice of the process of the Malignani patent, No. 537,693, for exhausting incandescent lamps, phosphorus (though not mentioned in the patent! held to be the equivalent of arsenic, sulphur, and iodine.</p> <p>11. Patents (§ 230*) — Processes—Sufficiency of Description.</p> <p>Evidence proving the operativeness, in the practice of a process, of three substances specifically named in a patent under conditions varying slightly from those indicated in the specification, but under the same conditions met with in the commercial practice of the process when another substance (not named in the patent) is employed, held sufficient to establish the equivalency of all four substances.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 230.*]</p> <p>12. Patents (§ 13S*) — Validity—Fraudulent Suppression.</p> <p>It is not necessarily improper for a patentee, believing himself to be the inventor óf a new process, to so frame his claims and specification as to anticipate and cut off attacks in the Patent Office that may be based upon a prior art which he considers irrelevant, and for this purpose to omit mention of a substance capable of use in the practice of his process which may have been described in prior patents.</p> <p>[Ed. Note. — For other cases, se Patents, Dec. Dig. § 118.*]</p> <p>13. Patents (§ 123*) — Validity—Fraudulent Suppression.</p> <p>Where a patentee, about the time of the issuance of his patent, makes public - disclosures of his process which remove any doubt as to the' meaning of his specification, that act is so inconsistent with an intention to reserve to himself the advantage of secrets that it negatives an attempt to deceive.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 175; Dec. Dig. § 123.*]</p> <p>14. Costs (§ 154*) — Depositions of Experts — Improper Testimony.</p> <p>Complainant held, not entitled to costs for taking, transcribing, and printing-the depositions of an expert, which consist of argumentative departures from.-, the province of expert testimony and which deal in vituperative personalities-</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 154.*]</p>

<p>Patents (§ 328*) — Validity and Infringement — Block Signaling System for Electric Railways.</p> <p>The Struble patents, No. 819,322 and No. S19.323, for automatic block signaling systems for electric railways, so far as relates to the generic claims for a system using a direct current for operating the car motors and an alternating current for energizing the signal relays, were not anticipated and disclose patentable invention; nor are' they invalid because of the new matter introduced into the applications by amendment in the Patent Office which was merely to more clearly and specifically describe the invention. As to the specific claims covering as a specific form of the generic invention what is termed the “two-rail return” system, Struble is entitled to priority of invention over Young, to whom patents Nos. 757,537, 762,370, 815,890, and 815,891 were issued on later applications. The Struble patents also heló, infringed by the system of the Young patents.</p> <p>[Ed. Note. — Amendment of application, see note to Cleveland Foundry Co. v. Detroit Vapor Stove Co., 68 C. C. A. 239.]</p>

<p>In Equity. Suit by the Spirella Company against the Nubone Cor. set Company.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Cheese Stirring Apparatus.</p> <p>The Dteal patent, No. 772,701, for a cheese stirring apparatus, was not anticipated and is valid, being for a new combination of old elements which act together to produce an improved result by securing a more uniform stirring of the milk in making brick or Swiss cheese, and shortening the operation; also, held infringed.</p> <p>2. Patents (§ 81*) — Patentability—Prior Use — Burden op Proof.</p> <p>To avoid a patent on the ground of prior use, the burden rests on the defendant, and the evidence must be clear and convincing.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. ■§ 81.*]</p>

<p>In Equity. Suit by August J. Oehring and the Pratt & Whitney Company against William Gardam & Son.</p>

<p>Patents (§ 328*) — Novelty—Skirt.</p> <p>The Eeuchtwanger patent, No. 062,714, for a skirt consisting of three parts, the lower part being of nonelastic material, the hip portion of a material having some elasticity, and the waistband of still more elastic material is void for lack of patentable novelty.</p>

<p>Commerce (§ 27*) — Safety Appliance Act — Violations—“Engaged in Interstate Commerce.”</p> <p>Safety Appliance Act Cong. March 2, 1893, c. 196, § 6, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3175), as amended by Act Cong. April 1, 1896, c. 87, 29 Stat. 85, requiring common carriers “engaged in interstate commerce toy railroad” to equip their cars with automatic couplers, etc., must be construed with the “Act to regulate commerce,” etc., approved February 4, 1887 (Act Feb. 4, 1887, e. 104, 24 Stat. 379 [U. S. Comp. St. 1901, 'p-3154]) as thereafter amended, and known as the “Interstate Commerce Act” (Act June 29, 1906, e. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1909, p. 1149]), which relates to “any common carrier engaged in the transportation of passengers or property wholly by railroad,” etc., “under a common control, management, or arrangement, for a continuous carriage or shipment” from one state to another, such laws being part of one scheme, which is limited strictly to interstate commerce, and not intended to affect railroads operated wholly within a state independent of outside connections, and it is only when there is an arrangement with outside carriers for a continuous carriage from one state to another that the act applies ; and hence, where the difference in gauge between defendant’s line and that of a connecting carrier .prevented a continuous carriage in the same car, and there was no through bill of lading and no conventional division of through charges, each company receiving its own charges according to its own rates, defendant was not “engaged in interstate commerce” within the meaning of the act though the goods carried were intended for shipment beyond the state.</p> <p>[Ed Note. — For other cases, see Commerce, Cent Dig. § 25; Dec. Dig. S 27.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p>

<p>1. Railroads (§ 254*) — Federal Saeett Appliance Act — Violation—Pleading — Sufficiency.</p> <p>In an action against a railway company for penalties for violating the safety appliance acts (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]; Act April 1, 1896, c. 87, 29 Stat. 85; Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1909, p. 1143]), the government need not allege that the company acted knowingly and negligently ; it being sufficient that the dereliction was set forth in the language of the statute, with specification of the time and place, the car, the particular part of the car where the defect existed, and the nature of the defect.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 254.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Action (§ 18*) — Penal Actions — Nature.</p> <p>A penal action is not necessarily a criminal prosecution.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 96; Dec. Dig. § 18.*</p> <p>Nature and form of actions, whether civil or criminal, see note to United States v. Atlantic Coast Line R. Co., 98 C. C. A. 117.]</p> <p>3. Indictment and Information (§ 110*) — Sufficiency of Allegations.</p> <p>It is sufficient in an accusation to follow the words of the statute describing the offense, if by doing so the act constituting the offense is fully, directly, and expressly alleged, without uncertainty or ambiguity.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.*]</p>

H. Y. Scanlon was informed against and convicted of violating Pure Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp.' 1909, p. 1187), in blending and selling blended maple syrup.

At Raw. Action by Lena Hovden against the Seattle Electric Company to recover damages for personal injuries in a collision with a street car. A verdict was rendered for plaintiff, and defendant moves for a judgment non obstante veredicto.

<p>1. .Shipping (§ 84*) — Injury to Stevedore — Contributory Negligence.</p> <p>A stevedore employed by a railroad company in discharging a coal barge was not guilty of contributory negligence in grasping spikes in the inside edge of the hatch coaming, to aid him in leaving the hold, where, on account of removal of a rope by one of the deck hands 20 minutes before, the spikes were his only means of exit, where such use of the spikes was customary, and where he tested the one, the loosening of which caused his injury, before using it.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 342; Dec. Dig. § 84.*]</p> <p>2. Shipping (§ 84*) — Injury to Stevedore — Negligence.</p> <p>As affecting liability of a coal barge for injury to a stevedore caused by loosening of a spike in the inside edge of the hatch coaming, placed there by employes long before the accident, while he was using it as a means of leaving the hold, those in charge of the barge were negligent in failing to remove the spike or to see that it was suitable to sustain one’s weight.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 350; Dec. Dig. § 84.*]</p>

<p>Seamen (§ 16*) — Employment oe Engineer — Breach op Contract — Damages.</p> <p>Where, after part performance of an engineer’s contract to operate a yacht, the engineer refused to continue unless he was furnished a fireman, which the owner refused, but there was no meeting of minds at that time with reference to a rescission of the engineer’s contract for the season, and on the owner procuring a new engineer libelant left the boat without expressing any desire to continue the contract, merely intimating that he would stand on his rights, the original contract not having in-eluded services of a fireman unless subsequently agreed to, libelant was only entitled to recover for services up to the time he quit work.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 56-65; Dee. Dig. § 16.*]</p>

<p>In Admiralty. Libel by Ichil Kohn and others against the International Mercantile Marine Company.</p>

In the matter of the Roebuck Weather Strip & Wire Screen Company, bankrupt. Petition to review an order of the referee disallowing the claim of Jesse D. Alger as a preferred labor claim.

<p>In the matter of David I. Hanyan, bankrupt. On motion to confirm the report of a special master on issues raised by the involuntary petition and answer.</p>

<p>Habeas corpus by the United States, on relation of Mrs. Enriquita Pazos, to obtain her discharge from the custody of S. E. Redfefn, United States Immigration Commissioner.</p>

<p>Herman Garbish, having been indicted for violating the eight-hour law of August 1, 1892, demurs to the indictment.</p>

<p>At Law. Action by the Pensacola State Bank against the ■ Merchants’ & Farmers’ Bank. Verdict for defendant, and plaintiff moves for a new trial.</p>

<p>Application by the United States, on the relation of Guiseppe Cala-mia, against Samuel E. Redfern, Commissioner of Immigration, for a writ of habeas corpus. The writ having been discharged, relator moves for a new trial.</p>

<p>Bankruptcy (§ 384*) — Composition.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 12d, 30 Stat. 550 (U. S. Comp: St. 1901, p. 3427), the approval of the majority of creditors of an offer of composition is evidence, prima facie, that the composition is for the-best interests of the creditors; and the burden is upon those who attack, the composition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 384.*]</p>

<p>At Raw. Action by R. E. Jung against the American Credit Indemnity Company.</p>

<p>In Admiralty. Suit by Frederic R. Eaton against cargo of lumber, lately on board schooner Edward T. Stotesbury.</p>

<p>Receivees (§ 88*) — Claims—Compromise.</p> <p>Where the receiver of a street railway company had claims against a securities company amounting to $8,615,555.24, including interest, but, to recover such sum, it would be necessary for him to prevail on substantially every one of the questions in controversy between himself and the various defendants, involving in one case a doubtful appeal to the Supreme Court of the United States, and the amount of interest on such Claim alone was $1,200,000, he would be directed to accept a cash compromise offer to pay him $5,500,000, especially where it was approved by substantially all the interests affected.</p> <p>[E3. Note. — For other eases, see Receivers, Cent. Dig. § 162; Dee. Dig. § 88.*]</p>

<p>1. Courts (§ 350*) — Federal Courts — Common-Law Actions — Mode oír Proof —Depositions.</p> <p>Under1 the express terms of Rev. St. § 861 (U. S. Comp. St. 1901, p/661), iw common-law actions in the United States courts,- the witnesses' must appear in open court, unless the case falls within one of the statutory exceptions.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 923; . Dec. Dig. § 350.*</p> <p>Conformity'of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594, Nederland Life Ins. Co. v. Hall, 27 C. C..A. 392.]</p> <p>2. Courts (§ 350*) — Federal' Courts — Depositions- De Bene Esse — Foreign Witnesses.</p> <p>Testimony of foreign witnesses cannot be taken under Rev. St. § 863 (U. S. Comp. St, 1901, p. 661), authorizing depositions de hene esse.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 923; Dec. Dig. § . 350.*]</p> <p>3. Courts (§' 350*)-^Federal' Practice — Foreign Witnesses.</p> <p>Under Act Cong.. March- 9, 1892, c. 14, 27 Stat. 7 (U.'S. Comp.-St, 1901, p. 664), authorizing depositions to be taken in causes in, the federal courts in the mode prescribed by the state laws, and under the Connecticut law, permitting' the taking of depositions of nonresidents and providing for their oral examination, direct and cross, the Circuit'Court for the District of Connecticut can grant a dedimus potestatem to take depositions in Cuba, where otherwise there will be a failure or delay of justice.</p> <p>[Ed. Note. — For other cases, see-Courts, Cent.-Dig. § 923; Dec. Dig. ■ § 350.*]</p> <p>4. Courts (§ 334*) — Federal Practice — Judicial Power.</p> <p>Federal courts cannot go beyond federal authority, and adopt special privileges or restrictions enforced by states, in their courts.</p> <p>• [Ed. Note. — For other cases, see Courts, Cent. Dig. § 899;’ Dec. Dig. g 334.*]</p>

<p>1. Commerce (§ 55*) — Pure Food and Drug Act — Constitutionality.</p> <p>Pure Ftood and Drug Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), prohibiting the transportation of adulterated and misbranded food in interstate commerce, is not unconstitutional as an attempted exercise by Congress of police power belonging to the states.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 91; Dec. Dig. § 55.*]</p> <p>2. Statutes (§ 47*) — Pure Food and Drug Act — Certainty.</p> <p>Pure Food and Drug Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), is not void for uncertainty and indefiniteness, in that no standard of grade, quality, or purity is prescribed, but that the determination of the standard is left to the courts, as such objection may be obviated by requiring specific and properly drawn pleadings.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.*]</p>

In the matter of the T. H. Bunch Company, bankrupt. On petition for review of allowance by the referee of a claim of the Chicago, Rock Island & Pacific Railway Company. , As some of the claims are not questioned, it is only necessary to state the facts bearing upon the disputed claims, amounting to $205,767.53.

<p>1. Specific Performance (§ 94*) — Performance by Plaintiff.</p> <p>One suing to specifically perform a contract to convey must show substantial compliance with his obligations or waiver thereof by vendor.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 249-256; Dec. Dig. § 94.*]</p> <p>2. Specific Performance (§ 117*) — Defense—Pleading.</p> <p>On suit to specifically perform a contract to convey, a vendor cannot complain of purchaser’s failure to show payment of taxes as required by the agreement, where no issue on that point is made by the pleadings.</p> <p>[Ed. Note. — For other eases, see Specific Performance, Dec. Dig. § 117.*]</p> <p>3. Vendor and Purchaser (§ 335*) — Contract to Convey — Forfeiture.</p> <p>Where a contract to convey does not provide for forfeiture on purchaser’s failure to make stipulated payments when due, no forfeiture results ipso facto from such default; it being necessary for the vendor to signify to the purchaser a purpose to insist on surrender.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 981; Dée. Dig. § 335.*]</p> <p>4. Vendor and Purchaser (§ 260*) — Contract to Convey — Plaintiff's Default-Vendor's Remedies.</p> <p>Where a contract to convey does not provide 1'or forfeiture on the purchaser's failure to make stipulated payments when due, on such default the vendor may elect to retake possession and sue in ejectment; or sue to foreclose contract and recover the balance due on the purchase price or sue to cancel the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 269.*]</p> <p>5. Vendor and Purchaser (§ 187*) — Contract to Convey — Purchaser’s Default — 'Waiver.</p> <p>The purchaser’s default in making stipulated payments under a contract to convey may he expressly waived by agreement or impliedly by the vendor’s acts relied on by the purchaser.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 374, 375; Dec. Dig. § 187.*]</p> <p>6. Vendor and Purchaser (§ 187*) — Contract to Convey — 'Purchaser’s Default — Waiver—Acceptance of Payment.</p> <p>Purchaser’s default in making stipulated payments under a contract to convey is waived by the vendor afterwards accepting payment.</p> <p>LEd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 374, 375; Dec. Dig. § 187.*]</p> <p>7. Vendor and Purchaser (§ 299*) — Contract to Convey — Purchaser’s Default-Waiver.</p> <p>Demand for possession by a vendor under a contract to convey on the purchaser’s default in making stipulated payments being waived by subsequent acceptance of a payment, another demand was necessary before the vendor could rescind the contract.</p> <p>■ [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 838; Dee. Dig. § 299.*]</p> <p>8. Principal and Agent (§ 123*) — Agent’s Authority — Evidence—Sufficiency.</p> <p>Evidence held to show that the agent of vendor, under a contract to convey, did not exceed his authority in accepting a payment after the purchaser’s default.</p> <p>[ Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*]</p> <p>9. Principal and Agent (§ 171*) — Agent’s Acts — Ratification.</p> <p>' If an agent of the vendor under a contract to convey exceeded his authority in accepting a payment after the purchaser’s default, the act was ratified by the vendor’s retention of the payment.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 644-655; Dee. Dig. § 171.*]</p> <p>10. Specific Performance (§ 97*) — Right to Relief.</p> <p>One who demanded a deed under a contract to convey tendering the required payment after waiver by the vendor of default in earlier payments was entitled to specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 286-298; Dec. Dig. § 97.*</p> <p>Persons entitled to enforce specific performance, see note to Lawyer v. Post, 47 C. O. A. 493.]</p> <p>11. Specific Performance (§ 16*) — Requisites—Equity.</p> <p>One seeking specific performance must show, not only a legal right thereto, but also that it will be just.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 35, 36; Dee. Dig. § 16.*]</p>

At Daw. Action by the Proctor-Gamble Company against the Warren Cotton Oil Company and others.

In the matter of Swofford Bros. Dry Goods Company, bankrupt. Supplemental bill to enjoin action in state court. Decree for complainant as to certain causes of action, and for defendant as to another.

Application by* Elizabeth Eaglesfield for a writ of habeas corpus. . This is a habeas corpus proceeding. The petitioner is a resident of Grand Rapids in the- district of Michigan.

<p>1. Courts (§ 508*) — State and Federal.</p> <p>Kansas City Charter, art. 10, § 4, confers on the municipal court of such city concurrent jurisdiction with the circuit court of the state of proceedings for the enforcement of special tax bills for taking and damaging private property, and article 6, § 1, provides that such proceedings shall be taken in the municipal court. Section 4 declares that a special tax bill may be issued by the municipal court clerk, attested by the city clerk, and then filed in the office of the clerk of the circuit court and indexed as a judgment in favor of the city against the property described in the bill, on which a special execution may be issued; and also declares that tax bills so filed and recorded shall be subject to the order of the court and may be set aside, or the amount of the assessment reduced on motion of any party interested in the property assessed on reasonable notice to the city. Held, that where a property owner, against which a special tax bill had been ordered, claimed that the proceedings were void for lack of proper notice, it had an adequate remedy at law in the state court either by a proceeding under section 4, or by certiorari, and hence could not maintain a bill in the federal Circuit Court to restrain the city clerk from attesting and the circuit clerk from filing the tax bills against its property on the theory that to do so would constitute a taking of property without due process of law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1418-1430; Dec. Dig. § 508.*]</p> <p>2. Municipal Corporations (§ 538*) — Bill—Laches.</p> <p>Where complainant had no knowledge of certain proceedings by a city to condemn property for public uses and to assess the cost thereof on an adjoining district, until after the time to appeal from the assessment had expired, he was not guilty of laches.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 538.*]</p> <p>3. Courts (§§ 259, 262*) — Federal Courts — Equity Jurisdiction.</p> <p>The equity jurisdiction of the federal courts is the same as that possessed by the High Court of Chancery in England, and is uniform throughout the states and not subject to limitation nor restraint by state legislation.</p> <p>' [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 795, 7917, 798; Dec. Dig. §§ 259, 262.*] •</p>

<p>Action by Frank B. Hayne against R. J. Woolley and another. Petition by defendants for a writ of habeas corpus.</p>

In Equity. Suits by the Eagle White Lead Company against Albert Pflugh and another, copartners, doing business as Pflugh & Co., for infringement of complainant’s registered trade-marks as applied to' white lead, to wit, trade-mark No. 60,062, registered January 29, 1907, covering a representation of an eagle and trade-mark No. 60,993, registered February 26, 1907, covering the word “Eagle.”

<p>1. Removal of Causes (§ 60*) — Citizenship—Sepabable Controversy.</p> <p>Wkere two persons, one a resident of the state and one a resident of another state, were joint receivers of a corporation, and acted jointly in receiving and holding what they have received from their predecessor, so that they were both indispensable parties to an action concerned with their receivership, or with their conduct as receivers, there was no separable controversy between the nonresident receiver and plaintiff suing for relief from certain transactions of the receivers’ predecessor relating • to the receivership, which would entitle the nonresident receiver to remove the cause to the federal court.</p> <p>[Ed. Note. — ‘For other cases, see Removal of Causes, Cent. Dig. § 114; Dec. Dig. § 60.*</p> <p>Separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86Meeke v. Yalleytown Mineral Co., 35 O. C. A. 155.]</p> <p>2. Removal of Causes (§ 102*) — Right op Removal — Doubtful Case.</p> <p>Where the right, to remove a case from the state to the federal court is doubtful, the doubt is resolved in favor of a remand; and hence in an a#ction against receivers, where it is a doubtful question whether the acts and jurisdiction of the successive receivers, which are complained of, were in carrying on the business connected with the property placed in receivers’ hands by the federal court, so that no leave to sue would be necessary under the express provisions of Act Cong. Aug. 13, 1888, c. 866, I 3, 25 Stat. 436 (U. S. Comp. St. 1901,- p. 582), the case will be remanded.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent Dig. §§ 218-224; Dee. Dig. § 102.*]</p>

<p>Action by the Wrightsville Hardware Company against. Nicholas H. Colwell and others. On motion to remand to the state court.</p>

At Law. Action by James Herbert Stitzer against the Township of Horsham. On plaintiff’s motion for a new trial and defendant’s motion for judgment non obstante veredicto.

<p>Action by the Foreign Mines Development Company, Limited, a corporation, against E. J. Boyes. Motion by defendant to discharge attachment.</p>

<p>At Law. Action by Lizzie Lewis Clark and husband against the City of Atlantic City. On demurrer to declaration.</p>

<p>1. Bankruptcy (§ 396*) — Exemption—Nature of Daw.</p> <p>The law of homestead exemption is strictly a state law, applicable in bankruptcy as well as in local litigation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 668; Dec. Dig. § 396.*]</p> <p>2. Homestead (§ 5*) — Exemption—Construction of Daw.</p> <p>The homestead exemption law, being one of public benefits, is entitled to such liberal construction as will protect the community, without encouraging dishonesty or fraud.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 7; " Dec. Dig. § 5.*]</p> <p>S.Bankruptcy (§ 400*) — Exemptions—Burden of Proof.</p> <p>One objecting to the allowance of a bankrupt’s exemption must show affirmatively that bankrupt was not entitled to claim the property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 674; Dec. Dig. § 400.*]</p> <p>4. Bankruptcy (§ 400*) — Exemptions—Pleading.</p> <p>Under the Florida statutes (Rev. St. 1892, §§ 2003, 2007), requiring an execution debtor who claims exemptions to point out all his personalty and verify an inventory thereof, and authorizing suit to ascertain omitted property, property claimed as exempt in bankruptcy being presumed to have been paid for, a pleading contesting bankrupt’s right to claim an exemption on the ground that the property had not been paid for must be verified.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 674; Dec. Dig. § 400.*]</p> <p>5. Bankruptcy (§ 399*) — Exemptions—Commingled Goods.</p> <p>An allowance of exemptions in bankruptcy out of a stock of goods cannot be defeated on the theory that the stock, being made up by commingling goods paid for with goods not paid for, must be treated as a unit, and that, since it is not all paid for, no part of it can be exempted, or that, since the assets are less than the liabilities, presumably nothing has been paid for.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 669; Dec. Dig. § 399.*]</p> <p>6. Bankruptcy (§ 400*) — Exemptions—Rights of Creditors.</p> <p>On a bankrupt’s claim of exemptions out of a stock of goods, creditors, objecting that certain shoes were unpaid for, should have an opportunity to point out such shoes.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 672; Dec. Dig. § 400.*]</p> <p>7. Evidence (§ 568*) — Opinions—Knowledge of Witness — Exemptions—Allowance.</p> <p>On allowance of a bankrupt’s exemptions, opinions by representatives of creditors as to the value of a stock of goods, based on casual observation, cannot be considered sufficient to defeat the bankrupt’s rights.</p> <p>[Ed. Note. — If or other cases, see Evidence, Cent. Dig. §§ 2392-2394; Dec. Dig. Í 568.*]</p>

<p>1. Collision (§ 9*) — Harbor Rules — Nonenforcement.</p> <p>Where a navigation rule adopted tor Mobile Harbor provided that pn the arrival of vessels in the Mobile river they should rig their outriggers, etc., but it had not been enforced for many years, such nonenforcement might be considered as permission to vessels to keep their outriggers out.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 8; Dec. Dig. § 9.*]</p> <p>2. Collision (§ 9*) — Outriggers—Harbor Rules.</p> <p>Nonenforcement of a harbor rule for a considerable period, requiring vessels at anchor to take in outriggers, did not relieve a vessel from responsibility for damage to other vessels by reason of outriggers not taken in.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 8; Dec. Dig. I 9.*)</p> <p>8. Collision (§ 69*) — Schooner at Anchor — Precautions.</p> <p>Where a schooner at anchor in Mobile river was in the proper place, but by reason of stress of weather swung into the channel, resulting in collision with a steamer, and it appeared that the weather had been unsettled during the day and storm warnings displayed, the vessel was at fault in failing to let out a stem anchor, or to provide a proper anchor watch, under the rale that a vessel at anchor in a dangerous position should take such precautions as are commensurate with the perils assumed.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 89; Dec. Dig. § 69.*]</p> <p>4. Collision (§ 71*) — Vessel at Anchor — Dutt to Vessel Under Wat.</p> <p>In general a vessel under way is prima facie at fault for collision with a vessel at anchor, though the latter is brought up in an improper place, provided the vessel under way could with ordinary care have avoided her.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p> <p>5. Collision (§ 43*) — Duty of Steamship.</p> <p>A steamship about to collide with a schooner easily seen is bound to use due precaution and care and to come to a standstill by reversing her engines if necessary before she should collide.</p> <p>[Ed. Note. — For other- cases, see Collision, Cent. Dig. §§ 43-47; Dec. Dig. § 43.*]</p> <p>6. Collision (§ 72*) — Steamer in Collision with Schooner at Anchor-Fault.</p> <p>Where a schooner at anchor in the channel of a river by reason of stress of weather had swung astern into the channel, and notwithstanding notice of the weather conditions had not been protected by a stem anchor or anchor watch, and collision with a steamer resulted from this and from the steamer’s failure to come to a standstill when collision was imminent, or to have deflected sufficiently to avoid collision as could easily have been done, both were at fault, requiring a division of damages.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 102; Dec. Dig. § 72.*]</p>

<p>1. .Shipping (§ 84*) — Explosion—Injury to Workmen — Care Required.</p> <p>Wliere workmen of contractors were engaged in repairing the oil tanks of a steamer at the time one of them was injured by an explosion of oil flowing from a pump they were disconnecting, the workmen and contractors By whom they were employed were bound to use reasonable care in doing the work and in using lights in the tank, according to their experience, to obviate dangers that might be anticipated.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 84.*]</p> <p>2. Shipping (§ 84*) — Repairs—Injuries to Workmen — Explosion—Contributory Negligence.</p> <p>Where the tanks of an oil steamer were about to be repaired, and for this purpose the ship emptied and cleaned the tanks with live steam, and the ship’s officers informed the contractors’ servants that the pump in one of the tanks was ready to be disconnected, the workmen were not negligent in assuming that they could proceed with freedom from danger as to matters which officers of the vessel or those furnishing the place for the work might have made safe.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 84.*]</p> <p>3. Shipping (§ 84*) — Repairs—Diability op Contractors.</p> <p>Where the servants of contractors for repairs on a tank steamer were injured by an explosion of gas therein, the contractors were responsible for the ordinary risks which they should have guarded against for the purposes of their own work, but were not responsible for hidden risks or unascertainable dangers which the officers of the vessel should have anticipated.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 84.*]</p> <p>4. Shipping (§ 84*) — Repairs—Dangers—Negligence op Vessel.</p> <p>A tank steamer having contracted for repairs to certain of its tanks attempted to clean them with live steam, and, after having done so, the contractors’ servants appeared, and were informed that the pump in one of the tanks was ready to be disconnected. While doing this work, with the aid of an open light, oil ran out from some portions of the pump, resulting in an explosion of gas by which libelant was injured. Held that, the ship having undertaken preparations for the work, the contractors were only responsible for the method of doing the work in the light furnished them, and that the ship was negligent in permitting the contractors’ servants to perform the work with open lights without warning.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 84.*]</p> <p>5. Damages (§ 132*) — Personal Injuries — Amount op Recovery.</p> <p>Dibelant, a steam fitter, was injured in an explosion on a vessel while engaged in repairing the same. His hands and lower arms were so burned that he was unable to work from November until April, and at the trial ho had injuries resembling scars over the back of his hands, fingers, and lower arms. The muscles of his hands and lower arms were so affected that he could not thereafter grip the tools necessary in following his trade, but, after his recovery, he was enabled to obtain the same wages by acting as a foreman for his employers. He suffered considerable pain, and his injuries appeared to be permanent. His physician’s expenses amounted to $150. Held, that he was entitled to recover $1,650.</p> <p>[Ed. Note. — For other cases, see Damages, Dee. Dig. § 132.*]</p>

<p>Action by A. S. Cowan, trustee in bankruptcy of J. M. Gwin, against Walter H. Burchfield. Petition to review order of referee disallowing bankrupt’s exemption.</p>

In Admiralty. Suit by the owners of the steamship Saratoga against the steamship Taunton, and cross-libel against the Saratoga. Decree against the Saratoga alone.

<p>1. Courts (§ 357*) — •Security for Costs — Federal Courts.</p> <p>A motion for security for costs in a federal court sitting in the Northern District of New York is governed by the provisions of Code Civ. Proe. N. Y. § 3268, etc.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*</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. Costs (§ 136*) — ¡Security for Costs — Laches.</p> <p>Where a bill showed on its face that complainant was a nonresident and that defendant was entitled to security for costs, but no application was made therefor until some 18 months after issue joined, nor until after defendant had been taking proof for 8 months, to rebut plaintiff’s prima facie case, defendant’s right to security was waived by laches.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 531-536; Dec. Dig. § 136.*]</p>

<p>■ In Equity. Bill by Michael Zuber against the Micmac Gold Mining ■Company and others.</p>

<p>■Salvage (§ 7*) — Compensation—Assisting Vessel After Collision.</p> <p>Awards in the nature of salvage made for services rendered to a steam yacht after collision, and when she had been abandoned by her crew, while still under steam with her engines reversed, in keeping her afloat, and preventing further collisions with other vessels.</p> <p>[Ed. Note. — 'For other eases, see Salvage, Dee. Dig. § 7.*</p> <p>Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.)</p>

<p>Action by the United States against the Illinois Central Railroad Company to recover a penalty.</p>

<p>On Application for Review of Decisions by the Board of United States General Appraisers.</p> <p>The decision below related to merchandise imported at the port of New York, which the Board of General Appraisers described as consisting “of goose skins with the feathers plucked and the down remaining on the skins; the same having been advanced in condition by cleaning and dressing.” The Board held that these articles had been properly classified under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 425, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1675), the pertinent portion of which reads as follows:</p> <p>“Feathers and downs of all kinds, including bird skins or parts thereof with the feathers on, * * * dressed, colored, or otherwise advanced or manufactured in any manner, including * * * manufactures of down, * * * not specially provided for, fifty per centum ad valorem.’*</p>

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

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

<p>Libel by Albert J. Olivier against the steamship Venus to forfeit the vessel for alleged violation of Rev. St. § 5283 (U. S. Comp. St. 1901, p. 3599), prohibiting the arming of vessels against people at peace with the United States.</p>

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

<p>In Equity. Bills by the Guaranty Trust Company of New York and by the Farmers’ Loan & Trust Company, as successor to the Morton Trust Company, against the Metropolitan Street Railway Company and others. On application for an adjournment of the sale of the railroad company’s property.</p>

<p>1. Customs Duties (§ 88*) — Classification—Sawed Talc — "Advanced in Value or Condition.”</p> <p>Talc sawed into cubes for use in making gas burners and insulators, the sawing being not merely to remove foreign matter and to put the material in shape for transportation, but to give it certain desired dimensions, has been “advanced in value or condition” within the meaning of Tariff Act July 24, 1897, e. 11, § 2, Free list, par. 614, 30 Stat. 198 (U. S. Comp. St 1901, p. 1685).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 38.*]</p> <p>■2. Customs Duties (§ 24*) — Similitude—French Chalk.</p> <p>Talc in the form of cubes, which is used in making gas burners and insulators, is dutiable as French chalk by similitude, under Tariff Act July 24. 1897, c. 11, § 1, Schedule A, par. 13, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1627).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 24.*]</p>

<p>1. Equity (§ 252*) — ’Pleading—Exceptions to Answer.</p> <p>Allegations of an answer, constituting new matter and set up by way of defense, are not subject to exception.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 523, 524; Dec. Dig. § 252.*]</p> <p>2. TRADE-MARKS AND TRADE-NAMES (§ 92*) — INFRINGEMENT—PLEADING.</p> <p>While, in a certain sense, there is analogy between infringement of a patent and trade-mark cases, in the absence of a statute, the court will not, in a trade-mark case, require defendant to embody in his pleading the evidence as to prior use on which he relies to establish his defense.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 102, 103; Dee. Dig. § 92.*]</p> <p>3. Trade-Marks and Trade-Names (§ 94*) — In Equity — When Dies.</p> <p>When a bill to restrain infringement of a trademark waives the oath of defendant, discovery will not lie.</p> <p>[Ed. Note, — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 94.*]</p>

Action by the People of Porto Rico against the Title Guarantee & Surety Company. Judgment for defendant, and plaintiff brings error. At the trial of the cause, the plaintiff having rested, a motion was made by the defendant for a compulsory nonsuit, which the court (Archbald, District Judge) disposed of in the following oral opinion: ARCHBALD, District Judge.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity 'by the'Barber Asphalt Paving Company against the F.orty-Second Street,. Manhattanville & St. Nicholas' Avenue Railway ■Company and others. On appeal from interlocutory decrees (175 Fed. 154) settling claims by William W. Ladd, receiver of the New York City Railway' Company, Frederick W. Whitridge, receiver of the Third Avenue Railway Company, and the Central Trust Company of New York.</p>

Suit in admiralty by the Pittsburg Steamship Company against the ’Duluth Steamship Company, and cross-libel. Decree for ’libelant, and :respondent appeals. This is a libel in admiralty of the Pittsburgh Steamship Company against the Duluth Steamship Company in the United States District Court for the Northern District of Ohio, growing out of a collision of two vessels. The libel, the answer thereto, and a cross-libel were filed.

<p>1. Judgment (§ 199*) — Trial' (§ 139*) — Taking Case from Jury — Sufficiency or Evidence.</p> <p>If the evidence in a case is such that a verdict for the plaintiff reasonably could be found by the jury in the honest discharge of their duty, the court cannot properly give a binding instruction for defendant, nor render judgment for him non obstante veredicto.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 367; Dec. Dig. § 199;* Trial, Cent Dig. § 338; Dec. Dig. § 139.*]</p> <p>2. Masteb and Servant (§ 286*) — Action eob Injury to Servant — Questions bob Juey.</p> <p>Evidence considered in an action by an employs in a steel car manufacturing plant to recover for an injury, and held sufficient to warrant the submission to the jury of the questions of defendant’s negligence in permitting an electric crane to become and remain out of repair, and whether the injury was due to such defective condition of the crane.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 286.*]</p>

<p>1. TRIAL (§§ 329, 331*) — Sufficiency of Verdict — Responsiveness to Issues.</p> <p>Plaintiffs sold a clay works plant on leased land to defendants, and gave possession, also contracting to sell' defendants the sewer pipe and fittings on hand at a stated price for each grade; the contract providing that in the event of a disagreement as to the grade, each party should select an arbitrator and the two should fix the grades, but before acting should also select a third arbitrator, who in the event of their disagreement should make-a decision, which should be final. Plaintiffs brought an action to recover for the pipe and fittings, .which it was alleged defendants had taken and disposed of without any agreement as to the. grades, and also the value of other property and materials left on the premises, valued at over $200, which it was alleged defendants had converted to their own use. Held, that a verdict finding “for the defendants on the ground that in the opinion of the jury the plaintiffs did not make proper effort to agree upon a third arbitrator to appraise and' value the sewer pipe sued for, as provided in the agreement on which suit is brought,” was insufficient to support a judgment, since it made no disposition of the issues as to the other property sued for, upon which evidence was introduced, and was inconclusive and indefinite and ineffectual as to the issue passed on; there being no provision of the contract requiring the parties to take any action toward selecting a third arbitrator, which was the only ground on which it was based.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-783; Dec. Dig. §§ 329, 331.*]</p> <p>2. Appeal and Error (§ 264*) — Record—Presentation of Grounds of Review — Verdict.</p> <p>A verdict is a part of the record, and no exception is necessary to support an assignment of error raising the question of its sufficiency.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. § 264.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>In the matter of the Vulcan’ Foundry & Machine Company, bankrupt. From an order of the District Court, S. B. Strasburger and others appeal.</p>

<p>Shipping (§ 58*) — BREACH op Charter — Liabilities.</p> <p>The owner of a schooner chartered her for six months, with an option of renewal for four years, and the option was exercised by the charterer’s assignee, which became, and was treated as, the charterer. The vessel was employed in carrying petroleum in bulk;, and the charter provided that the charterer should fit her with wooden bulkheads and make other alterations necessary to fit her for the service. Such fittings were put in, but the bulkheads and expansion trunks which were placed above the main tanks to feed and keep them full were never sufficiently tight, and leaked more and more with use, until a survey showed that the vessel was unsea worthy to carry oil in her then condition, and in accordance with the report of the surveyors the owner demanded her equipment with steel bulkheads and expansion trunks. A day or two later it modified this demand by requiring that the wooden fittings be made tight, and on the refusal of the charterer to comply withdrew the vessel from the charter. Held, that such action was justified, and that the owner was entitled to recover damages for breach of the charter, including loss of earnings for the unexpired term.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 58.*]</p>

<p>1. Shipping (§ 190*) — General Average — Damage to Cargo — Liability of</p> <p>Vessel to Contribute — Damage Kesulting eeom Concealed Defect in Cargo.</p> <p>A shipper is not deprived by the maritime law of the benefit of contribution in general average when the peril is caused by a concealed defect in his shipment equally unknown to him and to the shipowner.</p> <p>[Bd. Note. — For other cases, see Shipping, Cent. Dig. § 602; Dec. Dig. § 100.*</p> <p>General average see notes to Pacific Mail S. S. Co. v. New York, II. & R. Min. Co., 20 C. O. A. 357; The Santa Ana, 84 C. C. A. 316.]</p> <p>2. Shipping (§ 190*) — General Average — Liability of Ship to Contribute to Cargo Loss — “Tankage.”</p> <p>A schooner was chartered to carry a cargo of garbage tankage, which is a dry powder, the result of the boiling, drying, and pressing of street garbage, and is packed in bags. Owing to the failure of the manufacturer to properly cure and dry out the tankage, the cargo took fire from spontaneous combustion, and the hold was flooded to put out the fire causing damage to the remainder of the cargo not burned. The shipper purchased the tankage from the manufacturer, and had nothing to do with its loading or stowage, and no knowledge that it was not in proper condition, but it was a well-known article of commerce and both shipper and shipowner knew its character. Held, that the shipper or his insurer which paid the loss was entitled to recover from the vessel its contribution in general average to the loss caused by the water damage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 602; Dec. Dig. § 190.*]</p>

<p>1. Bills and Notes (§ 452*) — Defenses—Failure of Consideration.</p> <p>Failure of consideration is a defense to a note as between the immediate parties.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1867-1371; Dec. Dig. § 452.*]</p> <p>'2. Trial (§ 34*) — Admissions in Affidavit of Defense — Rule of Court Marino. Affidavit of Defense a Pleadino.</p> <p>Where by rule of court an affidavit of defense is made a part of the pleadings, the admissions contained in it are available to the plaintiff at the trial, without having been formally offered in evidence; only disputed facts having to be proved, and these being undisputed. It is not the same as if the affidavit were a mere admission, which might be explained away by the defendant with her attention called to it.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 87; Dec. Dig. § 8'4.*]</p> <p>'3. Trial (§ 39*) — Admissions in Affidavit of Defense — How Brought into Record.</p> <p>Where an affidavit of defense by rule of court is made a part of the pleadings, and admissions contained in it are twice made the basis of objections by tbe plaintiff to offers of evidence, this had the effect of bringing these admissions upon the record, as did the affirmance by the court of a point that under the pleadings and evidence the verdict must be in favor of the plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 92-98; Dec. Dig. § 39.*]</p> <p>-4. Banks and Banking <§ 117*) — Acts of Cashier — Agency.</p> <p>The act of a bant cashier in inducing defendant to execute a note to the bank for discount by it, the proceeds to he invested by the cashier for defendant’s benefit, and his act in receiving the proceeds, were acts of defendant’s agent and not the bank’s, and hence defendant cannot assert failure of consideration as a defense to the note, although the cashier appropriated the proceeds to his own use; the bank having discharged its duty to defendant by turning the proceeds over to the cashier as the defendant’s accredited agent.</p> <p>[Bid. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dec. Dig. § 117.*]</p> <p>• 5. Banks and Banking (§ 116*) — Imputed Notice — Fraud.</p> <p>Though generally the knowledge of an agent, acquired in the course of his agency; is imputed to the principal, a bank is not chargeable with notice of its cashier’s fraud in inducing defendant to make a note to the bank for discount by it, the proceeds to be invested by the cashier for defendant’s benefit, though he intended from the beginning to misappropriate the proceeds, since knowledge of an agent’s fraud is not imputable to the principal, where actual knowledge of the facts by the principal would defeat the consummation of the fraud.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 282-287; Dec. Dig. § 116.*]</p>

<p>Tbade-Marks and Trade-Names (§ 73*) — Infringement—Exclusive Right to Use the Name “Liebig” eor Extract oe Meat.</p> <p>Complainant held entitled to an injunction restraining defendant from using the word “Liebig” in connection with the sale of extract of meat, on evidence showing without contradiction that Baron Liebig granted to complainant’s predecessor in business the exclusive right to use his name in connection with extract of meat made by his process, and that complainant sold its product in the United States under such name for 20 years before the name began to be used in this country by any one else.</p> <p>[Ed. Note. — Eor other cases, see Tra<Je-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*</p> <p>Assignment of right to use a person’s name as a trade-name, see notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner’s Malzkaffee Fabriken Mit Beschraenkter Haftung v. Pastor Kneipp Medicine Co., 27 O. O. A. 357.]</p>

<p>1. Shipping (§ 40*) — Time Charter — Expiration.</p> <p>A steamer was chartered “for a period of about twelve months, charterers guaranteeing to redeliver steamer within three weeks, more or less, of this period.” Subsequently the parties agreed that the charter should be “extended for a further period of three calendar months from expiration of period named in original charter.” Three weeks before the end of the year the charterer gave notice that it elected to use the steamer for ihe maximum period of one year and three weeks. Held, that it was within its rights, and that the extension began at the expiration of that time.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 40.*]</p> <p>2. Shipping (§ 58*) — Chabtee—Withdrawal or Vessel by Owner — Damages.</p> <p>A time charter of a steamer gave the charterer the right to redeliver the vessel at any time during six weeks. Twelve days before the expiration of the time the owner withdrew her from the charter; the charterer being about to send her on another voyage which could not be completed within the time, and the owner having rechartered her, to the charterer’s knowledge. Held, that while the owner had no right to take the vessel at that time, in view of the fact that the charterer could not employ her during the remaining time, repayment of the hire paid from that time forward and payment for the coal on board was full compensation for its damages; it not being entitled in equity to recover the expenses incurred in contemplation of the intended voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 58.*]</p> <p>3. Shipping (§ 58*) — Suit por Damage to Gargo — Pleading—Issues—Proof and Variance.</p> <p>Where a libelant rested its claim for damage to cargo on the ground of improper stowage in its libel, it cannot recover on the ground of unseaworthiness of the vessel, an issue which was not tried.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 58.*)</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Application by Bhicaji Franyi Belsara for admission to citizenship. From an order admitting applicant (171 Fed. 294), the United States appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the New York, New Haven & Hartford Railroad Company against the ferryboat Montauk, the Union Ferry Company, claimant. From the decree, libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by John Newman and others against the steam tug Edmund Moran, the Moran Towing & Transportation Company, claimant. Decree for libelants (173 Fed. 109), and claimant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Principal and SuRett (§ 79*) — Extent op Liability-Different Capacities.</p> <p>No liability of surety for acts of employs as the officer or servant of a third party.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 125; Dec. Dig. § 79.*]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in equity by the Pennsylvania Steel Company and another against the New York City Railway Company and others. With this case were heard suits in equity by the Morton Trust Company, by the Guaranty Trust Company of New York, and by the Morton Trust Company against the Metropolitan Street Railway Company and others.

<p>Towage^ {! 11*) — Collision Between Tows — Fault or Tug.</p> <p>A) nig ¡ issing down the Passaic river with a scow on one side and a schitom*.' in tow on a hawser, hold liable lor a collision between tlie tows while r," sing through the draw of a railroad bridge, on the ground that thfj ntar.i' -r failed to signal the bridge in time and while waiting for the opditmg of the draw after the passing of trains permitted the tug to drift too near the bridge and too close to one side, by reason of which the scow stfim-k ihe trestle on that side, breaking the lines and causing the collision wii h the following schooner.</p> <p>< }¡Fd. Note. — For other cases, see Towage, Cent. Dig. § 19; Doc. Dig. § ;UF*]</p>

Suit in admiralty by Margaret S. Brandreth, as owner of the yacht Taormina, against the steam tug Fred Richards. Decree for libelant, and claimant appeals.

Petition by Frank R. Williams against John Molther and another, as local inspectors of steam vessels, to compel defendants to examine him as an applicant for a pilot’s license. From an order denying the application, petitioner appeals.

Suit in equity by the Central Trust Company of New York against the Third Avenue Railroad Company and others; the American Surety Company of New York, intervener. From an order of the Circuit Court, intervener appeals.

<p>1. Patents (§ 328*) — Anticipation—Validity—Pneumatic Despatch System.</p> <p>The Bavier & Hawkes patent, No. 658,102, for improvements- in pneu- ' matie despatch systems, held not anticipated and valid.</p> <p>2. Patents (§ 173*) — Construction op Claims — Pioneer Invention — Doctrine op Equivalents.</p> <p>The claims of a patent of a pioneer invention are entitled to some liberality in the application of the doctrine of equivalents.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 248; Dec. Dig. % 173.*]</p> <p>3. Patents (§ 328*) — Infringement.</p> <p>The Bavier & Hawkes patent, No. 658,102, for improvements in pneumatic despatch systems, held infringed.</p> <p>McPherson, District Judge, dissenting.'</p>

<p>Patents (§ 328*) — Infbingement—Typewbiting Machines.</p> <p>The Wagner patent, No. 523,698, and the Wagner and Wagner patent, No. 559,345, both for improvements in typewriting machines, construed, and held not infringed.</p>

the United States for the Middle District of Pennsylvania. Suit in equity by the W. B. Bertels & Son Company against William’ Trethaway, John Trethaway, Joseph Trethaway, Richard Trethaway, and Charles Trethaway. Decree for complainant (175 Fed. 971), and defendants appeal.

Suit in equity by the State .Bank of Chicago, Walter A. Mayr,. Charles G. Carlson, and the Chicago Curtain Stretcher Company against Hillman’s, a corporation. Decree for defendant, and complainants appeal. The appeal is from a decree dismissing the bill for want of equity. The bill was to restrain the infringement of letters patent No. 705,857,. issued July 29,1902, to Walter A. Mayr, for a curtain-stretcher.

' Appeal from the Circuit Court of the United States for the Southern District of New York. Suit by the George Frost Company and another against Henry F. Samstag and others. From a decree of the Circuit Court for the Southern District of New York dismissing the bill on the ground that letters patent No. 552,470, for hose supporters, was not infringed ([C. C.] 173 Fed. 793), complainants appeal.

<p>In Equity. Suit by the Parson Manufacturing Company against Charles T. Coe, trading as the New York Grate Bar Company.</p>

<p>In Equity. Suit by the Westinghouse Electric & Manufacturing Company against the Allis-Chalmers Company.</p>

<p>In Equity. Suit by the American Street Flushing Machine Company against the St. Rouis Street Flushing Machine Company and William Ratican. On report of master, and exceptions thereto by defendants.</p>

<p>In Equity. Suit by the Simplex Electric Heating Company against H. Ward Leonard, the Wárd Leonard Electric Company, and the Carpenter Enamel Rheostat Company.</p>

<p>1. Patents (§ 328*) — Infringement—Sewing-1 Machine.</p> <p>The Dearborn patents, No. 639,669, No. 679,553, and No. 705,326, relating to blind stitch sewing machines, construed, and each held infringed.</p> <p>2. Words and Phrases — “Blind Stitches.”</p> <p>“Blind stitches” are stitches which enter the cloth without going entirely through it, and show on one side only.</p>

<p>1. Equity (§ 125*) — Service of Process — Objections—Plea.</p> <p>An objection to service of subpcena on a foreign corporation by serving on a stenographer who was not the corporation’s agent, while otherwise sustainable, will not be allowed, where not raised by plea to the jurisdiction.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. § 304; Dec. Dig. § 125.*)</p> <p>2. Patents (§ 287*) — Infringement—Sales—Goods.</p> <p>A sale of goods made by defendant’s agent, involving an infringement of complainant’s patents, to defendant’s customers, who were pressing for quick deliveries, not on his own account, and out of the ordinary course of business, constituted an infringement by defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 457-459; Dec. Dig. § 287.*]</p> <p>3. Corporations (§ 662*) — Foreign Corporations — “Place of Business.”</p> <p>Defendant’s agent maintained an office in New York, paying his own rent and stenographer, from which defendant’s wares were advertised without protest. Defendants used such office as their own when they wished to press slow debtors. They permitted the agent to advertise and represent that he was their Eastern agent, and from this office many sales were made, though most of the sales were concluded at the corporation’s home office at Chicago. Held, that the corporation had a “place of business” in New York, and was therefore subject to suit there.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2568-2570; Dee. Dig. § 662.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5390-5392.</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & G. Meakin, 33 C. C. A. 585, and Ammons v. Brunswick-Balke Collender Co., 72 O. C. A. 622.]</p>

<p>In Equity. Suit by Louis A. Sayre and Howard C. Condit, partners as L. A. Sayre & Co., against the Bonney Vehslage Tool Company.</p> <p>The hill was filed for the infringement of letters patent No. 698,820, issued* to L. A. Sayre & Co., dated April 29, 1902, for a ticket punch invented by Herbert Cottrell. The punch was one of the kind known as .edge and central ticket perforators, and the fulcrum was between the handle and the punch.</p> <p>Testimony was taken on both sides and the anticipatory devices claimed were a punch made under the patent to F. P. Becker, No. 572,625, dated December 8, 1896, and also an edge and central perforating punch pivoted at. one end, and not in the middle.</p>

<p>In Equity. Suit by Anne E. W. Erazer against Charles Rohr.</p>

<p>In Equity. Suit by Clara C. Collins against Dunlap & Co. On motion for preliminary injunction.</p>

<p>Patents (§ 326*) — Suit foe Infringement — Violation of Injunction.</p> <p>It is not a defense to a proceeding to punish a 'defendant for violation of an injunction against infringement of a patent that he had instructed his employés to observe the injunction, and that the violation was by one of them without his knowledge.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. ü§ 613-619; Dec. Dig. § 326.*]</p>

In Equity. Suits by the Victor Talking Machine Company against William H. Hoschke and others, and same against the Sonora Phonograph Company. On motions to punish for contempt and for preliminary injunction.

<p>Patents (§ 314*) — Infringement—Default.</p> <p>Where, in a suit for patent infringement, defendant made default after the taking of full proofs, the court will not pass on the questions arising in detail on the theory that the decision wouid be of use in case of subsequent infringement, as the basis of a preliminary injunction, but will only go over the case sufficiently to dispose of the actual controversy.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 550; Dec. Dig. § 314.*]</p>

At Raw. Action by Oscar Battling Matthew Nelson against George C. Boldt and another. On plaintiff’s motion for a new trial.

<p>At Law. Action by Alexander Sprunt and another against the Hurst'-Streator Company. On motion to direct a verdict for plaintiffs.</p>

<p>Petition by Harry George for a writ of habeas corpus.</p>

<p>In the matter of M. A. Pinson and Pinson & Co., alleged bankrupts. On petition for adjudication.</p>

Suits by the Pennsylvania Steel Company against the New York City Railway Company and others, by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company and others, by the Guaranty Trust Company against the Metropolitan Street Railway Company and others, and by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company and others.

<p>In the matter of M. M. Griffin, bankrupt. Application for confirmation of composition, to which the Silvey-Smith Hat Company filed objections.</p>

Action by Cantrell & Cochrane, Limited, against Jacob E. Wit-temann and others as partners, under the firm name of the Wittemann Lithographic Company. On motion to punish Rudolph A. Witte-mann for contempt.

On Application for Review of Decisions by the Board of United States General Appraisers. There were also cases entitled in the names of C. M. Horch, of Horstmann, Von Hein & Co., of the Ideal Gas & Electric Company, of the Will & Baumer Company, of the H. Hohenstein Company, and of G. Hirsch’s Sons.

In Admiralty. Libels by the State of Maryland, for the use of James V. Pryor and others, against Andrew Miller and another; the Mayor and City Council of the city of Baltimore, and Henry P. Mann and others, constituting the Board of County Commissioners of Baltimore County.

Bill by Charles L. Greenhall, as trustee in bankruptcy of Joseph Fleischman, against the Carnegie Trust Company and others. This is a final hearing of a bill in equity brought by a. trustee in bankruptcy to rescind a contract which has been performed and which was executed on March 27, 1909, between the National Center Realty Company, a New York corporation, and one Moorehead, acting in the interest of the Carnegie Trust Company.

<p>In Equity. Suit by Walter B. Lawrence against the Southern Pacific Company, Frederic P. Olcott, the Central Trust Company of New York, the Farmers’ Loan & Trust Company, the Metropolitan Trust Company of the City of New York, the Plouston & Texas Central Railroad Company, the Texas Central Railroad Company, and the Houston & Texas Central Railway Company. On pleas.</p>

At Law. Action by Michael Colasurdo against the Central Railroad of New Jersey. Verdict for plaintiff. Motion for new trial on exceptions. This is an action of negligente against a railroad company. The plaintiff was a track walker whose leg was cut off by a train of four'cars running without an engine in the Jersey City yard of the defendant on Christmas day, 1908, at about 10 minutes before 7, at which time he and two other men were at work repairing a switch in the yard.

<p>1. Bankruptcy (§ 350*) — Claims—Rent—Priority—What Law Governs.</p> <p>Whether a landlord’s claim for rent accrued at the time of adjudication is entitled to priority in bankruptcy depends on whether it is entitled to ■ priority under the laws of the state by virtue of the provision of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), giving priority to debts owing to any person who by the laws of the states or the United States is entitled to priority.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. § 350.*]</p> <p>2. Bankruptcy (§ 350*) — Claim of Landlord — Rent—Priority.</p> <p>Under Code Pub. Gen. Laws Md. 1888, art. 47, § 11, providing that the estate of an insolvent shall be distributed according to the principles of equity, and no creditor shall acquire a lien by fieri facias or attachment, unless the same be levied before the filing of his petition, a landlord not having priority for rent accrued prior to the adjudication of the tenant in bankruptcy was not entitled to a lien therefor under St. 8 Anne, c. 14, § 1, declaring that, before any chattels shall be removed from the premises by virtue of any execution thereon, rent accrued for a period not exceeding one year shall be paid, and hence the landlord was not entitled to payment of accrued rent out of the sale of assets distrainable by the bankrupt’s trustees.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. § 350.*]</p>

<p>1. Bankruptcy (§ 350*) — Rights op Landlord — Lien on Distrainable Assets.</p> <p>Where a landlord, not having distrained on the assets of his tenant for rent in arrear prior to bankruptcy adjudication, had no lien under the laws of Maryland, he could not obtain a lien against the proceeds of a sale of distrainable assets by the tenant’s trustee in bankruptcy, under the bankrupt act, giving priority to debts owing to any person who by the laws of the state or of the United States is entitled to priority, by applying to the bankruptcy court for payment of the rent in arrear or in the alternative for permission to distrain on the goods on the premises. [Ed. Note.- — For other cases, see Bankruptcy, Dee. Dig. § 350.*]</p> <p>2. Courts (§ 366*) — Federal Courts — Rules oe Decision — Decision of State Courts.</p> <p>Decision of a state court of last resort that a landlord, in the absence of distraint, is not entitled to priority for rent in arrear, on the insolvency of the tenant, is binding on the federal courts sitting in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 956; Dec. Dig. § 366.*</p> <p>State laws as rules of decision in federal court, see notes to Wilson v Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p>

<p>In Equity. Bill by Paul A. Primeau against Horace Granfield.</p>

<p>1. Mines and Minerals (§ 45*) — Entry or Coal Lands — Cancellation or Patents — Fraud.</p> <p>Evidence held to show that two patents of public coal lands running to two persons were acquired as part of a general plan for procuring title in behalf of a single association to an area of coal lands in excess of the limits prescribed by law.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 131; Dec. Dig. § 45.]</p> <p>2. Mines and Minerals (§ 42*) — Entry or Coal Lands — Patents—Validity —Fraud.</p> <p>Where two persons were engaged in an unlawful combination to procure title in behalf of a single association to an area of coal lands in excess of the limits prescribed by law, that only two claims aggregating 320 acres allowed by Rev. St. § 2347 (U. S. Comp. St. 1901, p. 1440), were actually patented to them, would not make the patents valid; the unlawful combination making the proceeding illegal from the beginning.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 123; Dec. Dig. § 42.*]</p> <p>3. Mines .and Minerals (§ 45*) — Voidable Patent — Cancellation—Bona Fide Purchaser.</p> <p>A corporation was formed to take over two patented coal land claims, the patents being in fact voidable, having been illegally obtained, one of the incorporators being father of the patent holder, and he and another incorporator having been parties to the transaction whereby the patents» were obtained. The holder of the patent subscribed for all but four shares-of the capital stock and. sold to the corporation the two claims in payment of her subscription. Upon issuance to her of the shares she immediately transferred part of them to the treasurer of the company to be sold' for the company’s use. She was made secretary of the corporation and' her father manager, and they continued to hold those offices until the-present time, covering a period of five years. Held, that the corporation was not a bona fide purchaser for value without notice precluding the-, government from proceeding to cancel the patents, as one holding a voidable .patent to public lands cannot protect himself against the process of the government by forming a corporation in which he is the dominant-factor and conveying to it the premises which he has acquired in violation.-, of law.</p> <p>[Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. § 131£. Dec. Dig. § 45.*]</p>

In Admiralty. Proceeding by the Oceanic Steam Navigation Company as owner of the steamship Georgic for limitation of liability for damages occasioned by collision between that vessel and the steamship Finance.

At Law. Action by Lizzie M. Troxell against the Delaware, Lack-awanna & Western Railroad Company. Verdict for plaintiff, and defendant moves for judgment non obstante, and for new trial.

<p>1. MASTER AND SERVANT (§ 189*)-INJURIES TO SERVANT — RAILROADS—SUPERINTENDENT.</p> <p>Where, by a long-existing custom on defendant’s road, when a conductor or engineer wished to call the superintendent, he telephoned to the chief dispatcher’s office, where it was in the discretion of the person answering whether he would communicate with the superintendent or advise what should be done, the railroad company thereby substituted for the superintendent’s direction that of the person in the dispatcher’s office who received a message and directed what should (be done, not only with reference to the movement of the train, but as to such matters as were within the duties of the superintendent.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. § 433; Dec. Dig. § 189.*]</p> <p>2. Master and Servant (§ 185*) — Tools and Appliances — Delegation oe Duty.</p> <p>Where a master delegates to fellow servants his own duty of providing servants with safe tools and appliances, he cannot excuse himself for a default because it arose from the negligence of those to whom the duty had been delegated.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 392-410; Dec. Dig. § 185.*]</p> <p>3. Master and Servant (§ 124*) — Injuries to Servant — Defective Locomotive — Inspection.</p> <p>Where a railroad locomotive became defective on its trip, and it appeared that the engine, before going out, had been inspected and certain defects corrected, the duty to inspect did not again arise until the locomotive had been returned to the place where it could be examined and the defect remedied.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. § 124.*]</p> <p>4. Master and Servant (§ 185*) — Injuries to Servant— Negligence — Fellow Servants.</p> <p>A locomotive became disabled on one side en route, whereupon the conductor asked the train dispatcher for a pusher, which was promptly sent No information was given by the train operatives that it was dangerous to run the engine further. Held, that there was no actionable negligence on the part of the railroad company; it not being liable for the negligence of the engineer and conductor in operating the train, they being fellow servants.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 401; Dec. Dig. § 185.*]</p>

<p>1. Injunction ' (§ 128*) — Publication, of Biography — Evidence—Weight.</p> <p>Evidence on a bill to enjoin publication of complainant’s biography held to show that lie gave facts concerning his life on an understanding that they would be used in a set of books officially recognized by the federal government.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 278; Dec.' Dig. § 128.*]</p> <p>2. Injunction (§ 59*) — Publication op Biography.</p> <p>Injunction lies to prevent publication of complainant’s biography in a set of books other than a set issued under auspices of the federal government, where he gave the facts for use in such set only.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 111-116; Dec. Dig. § 59.*] g</p> <p>3. Contracts (§ 168*) — Terms Implied — Publication op Biography.</p> <p>Complainant having indicated that he would give facts concerning his life for use only in a biography issued under auspices of the federal government, there was an implied promise that they would not be otherwise used.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 751; Dec. Dig. § 168.*]</p> <p>4. Equity (§ 141*) — Bill in Equity — Requisites.</p> <p>While a bill in equity must advise defendant of the facts on which complainant relies, it need not state a cause of action, at law, a bill which asks relief not itself inconsistent, and justified by the narrative part of the bill, being ordinarily sufficient; and complainant is not limited to any given theory of law if he does not depart from thé bill itself.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 323-333; Dec. Dig. § 141.*]</p> <p>5. Courts (§ 329*) — Federal Courts — Jurisdiction — Value op Subject-Matter.</p> <p>On a bill to enjoin publication of complainant’s biography in a set of books, an allegation that the right infringed is worth $2,000 is. prima facie sufficient to confer jurisdiction of the subject-matter on the federal circuit court, in the absence of proof that the facts which he gave for publication in another set of books were merely formal, or such as any one might learn.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 897; Dec. Dig. § 829.*</p> <p>Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>6. Courts (§ 328*) — Federal Courts — Amount in Controversy — Joinder or Claims Not Related.</p> <p>On enjoining publication of complainant’s biography in a set of books other than that for which he gave facts of his life, relief cannot be had in the United States Circuit Court against a contract to subscribe for a set at $10 a volume; the subject-matter concerning the biography and the subscription being distinct.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 891; Dec. Dig. § 328.*]</p>

<p>I. Removal or Causes (§ 36*) — Adverse Citizenship — Joint Action Against Resident and Nonresident.</p> <p>While a joint defendant sued purely by a fictitious name without other facts identifying him as a proper or necessary party to the action stated will be regarded as a formal party merely, whose presence on the record will not affect the right of removal by one otherwise entitled thereto, yet one may sue any or all of those jointly liable for a tort, and, where a joint cause of action is stated against them, a defendant so sued cannot question the good faith with which his codefendants have been joined with him, though such joinder may appear to be for the very purpose of preventing a removal to the federal court.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*]</p> <p>2. Removal of Causes (§ 43*) — 'Proceedings—Time fob Taking — Amendment Discontinuing as to Joint Defendant.</p> <p>Where an original complaint stated a joint cause of action against a resident and nonresident defendant, and an amended complaint for the first time made the resident defendant a mere nominal party to the record, asserting no cause of action against him, the nonresident defendant was not precluded from removing the cause to the federal court because the case was not removable at the time when, by the literal terms of the statute, removal might be had, and he had answered the original complaint and went to trial thereon, the time within which application for removal must be made being not jurisdictional, but modal and formal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 87; Dec. Dig. § 43.*] .. ..</p> <p>3. Removal of Causes (§ 41*) — Citizenship—Controversy Between Nonresidents in State Court.</p> <p>The Circuit Court has jurisdiction under the judiciary act (Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]) to entertain by removal an action by a nonresident alien in a state court against a citizen of another state.</p> <p>[Ed. Noté. — For other cases, see Removal of Causes, Cent. Dig. §§ 82%'-84; Dec. Dig. § 41.*]</p>

<p>In Admiralty. Suit by the owñer of the steamer Erika against the steamship Varzin.</p> <p>This is a libel for salvage of the German steamship Varzin, a steel screw freight steamer of 4,470 tons gross tonnage, while on a voyage from Australia to Boston and New York with a cargo of wool. At 9:28 p, m., January 29, 1910, the Varzin broke her tail shaft about a foot from the stern post and aft of her water-tight bulkhead. At that time her position as figured from an astronomical observation at noon on that day was latitude 37° 18' N. and longitude 63° 42' W'. She had therefore come near the end of her voyage, as her first port was Boston. Repairs were made which made her substantially water-tight and were themselves of a durable and excellent character, so that she was to all intents and purposes seaworthy, except for tho fact that she could no longer steam under her own headway. At the same time the master bent sails with which she was supplied, and besides rigged all other canvass, including awnings and tarpaulins, which ho had on board, and which could in any way take the wind. Most of these were of an obviously provisional character. Two in particular were bent upon yards rigged upon the stay running from the mainmast to the foremast, and one was bent upon a derrick-boom which was itself rigged upon the foremast. With these sails and the help of southwesterly and southeasterly winds, she made considerable headway on her course on January 30th, and again on January 31st, the wind being during that time substantially favorable.</p> <p>There is some dispute as to the distance she had covered before February 1st in the evening. The evidence of the claimant shows that even with southerly winds she could not in any sense shape a course, but she was nevertheless considerably nearer her port on the 1st than when the shaft broke. On the 29th the vessel had sent up rockets in signal of distress, and on the 31st sighted an east-bound steamer, which she signaled with rockets, hut which paid no attention to her. On the morning of the 1st of February she sighted another east-bound steamer, which she again signaled by rockets, hut which also passed her. On the evening of the 1st, at 9 p. m, she sighted the steamer Erika, bound from New York to the Azores and Lisbon, which she managed to speak. The Erika had left New York on January 30th and had passed southward of the usual track to the Azores to get advantage of the Gulf Stream. She was a German ship of 2,605 gross tonnage engaged on freightage charter by the Gans Steamship Line, and plying regularly upon her charter between those ports. After speaking the Erika, the Varzin unsuccessfully attempted to agree upon a price for towage with the master of the Erika. Thereupon the following entry was made in the log of the Varzin at 1 a. m., February 2d: “As our ship was not manageable the mooting of the officers decided in order to save ship and cargo to accept the said condition.” The condition referred to was the settlement of the salvage by arbitration. The Varzin wished to start at once, the weather at that time being calm, but the night was dark and cloudy, and the Erika was unwilling to take the risk of putting a line from one ship to the other until the moon rose, which, being in the last quarter, was some time about 3 or 4 o’clock; moreover, the Erika needed some time to make ready by removing the steam pipes which ran along her hatches about which the hawsers were to be made fast. When the moon rose, the Erika was still unwilling to put out a boat, owing to a heavy swell, and by daybreak tho wind had begun to blow from the north, increasing to a squall. The log of the Varzin conclusively shows that during that day, and while the Erika stood by, nothing could have been done with safety. Just how far the Varzin drifted at this time is somewhat uncertain, but on the morning of the 3d the sea had gone down enough so that at 8:45 a. m. the Varzin put out a boat which got a small lino from the Erika, and eventually 320 fathoms of steel hawser, made fast to 90 fathoms of anchor chain, were stretched between the two vessels. During this time the ships were kept very near together, as was necessary to hoave the hawser on board. The Erika began to tow at about O o’clock in the morning, the Varzin keeping a part of her canvas set, heaving the lead and signaling the distance made. The weather continued good with light winds on the 3d, but began to increase in force on the morning of the 4th, blowing northwest by west. On the afternoon of the 4th, the wind continued substantially from the northwest, but greatly increased in velocity until in the night of that day it was blowing at what is variously described as either,a hurricane or “full storm,” with a high sea, certainly 11 on Beaufort scale. At 8:30 the hawser parted, and the Varzin again went adrift. Further sails were set to keep the vessel as much as possible into the wind, and 15 gallons of oil were used to quiet the sea. The Erika had been prepared to cut the hawser before it broke, as she was laboring heavily and could not keep steerageway, particularly as the Varzin was veering in the wind widely from side to side. After the hawser parted, and during the night of the 4th and oth, the salvor stood by, and on the morning of the 5th, the weather having moderated, the Varzin a second time put out a small boat which got a line to the Erika, which again- heaved the hawser on board and began towing on the morning of the 5th. Just how far the ships drifted during the night is a matter of doubt, as the last astronomical observation had been at noon on February 4th, and by the next they were well in advance of that, but there can be no doubt that they had drifted some distance in a general southeasterly direction. The wind during the 5th and 6th blew no stronger than 6 on the Beaufort scale, but freshened again on the 7th, accompanied by snow squalls and bad weather. Bate on the 7th Highland Light was sighted, and from then the voyage was easier, the ships reaching Boston on the morning of the 9th. When the hawser broke, both ships were to the south of George’s Bank, but subsequently, and on the 5th and 6th, while both vessels were pitching heavily and the hawser was again in danger of parting, the ships were fairly upon George’s Bank.</p> <p>The hawser, because of its weight, had a downward pull of about 45 degrees astern from the fair lead of the Erika, and when she pitched, and the bow of the Yarzin at the same time rose to a sea, this created a strain upon the stern of the Erika which" bent the ship somewhat. The engineer testifies that the shaft through this bending of the ship actually bore upon the upper shaft bearings -so that they became heated by the friction, smoked, and constantly had to be cooled with oil and water. This testimony is contradicted by the testimony of the Lloyd’s surveyor, Stewart, who denies the possibility of working an engine under the conditions testified to by the engineer of the Erika.</p> <p>The value of the Yarzin was at the least $110,000, that of her cargo approximately $1,300,000, and that of her freight nearly $80,000, the whole of which she earned upon her arrival at Boston. The total values therefore came to something short of $1,500,000. The total time consumed by the Erika in the towage was 10 days and 13 hours, of which 36 hours was spent in standing by on- the 1st and 2d of February. The loss to the Erika in coal is estimated at substantially $1;070, her disbursements, in Boston $544, her time, about $1,075, repairs about $550. In addition to this, there was some proof of a loss due to the disarrangement of her schedule in Spain, which will fee alluded to hereafter. The agreed distance of the towage was 358 miles.</p>

In Equity. Bill by Charles R. Irving and another, partners as Irving & Casson, against the Joint District Council of New York and Vicinity of the United Brotherhood of Carpenters and Joiners of America and the Amalgamated Society of Carpenters and Joiners of America and others. On motion to continue a restraining order as a temporary injunction.

<p>1. Admiralty (§ 1*) — Jurisdiction—Matters of Equitable Cognizance.</p> <p>While a court of admiralty is often spoken of as one of equity, the phrase means no more than that equitable principles are applied to the solution of matters of maritime jurisprudence, and not that an admiralty court may draw within its jurisdiction matters primarily of nonmari-time cognizance.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 1-17; Dec. Dig. § 1.*]</p> <p>2. Admiralty (§ 3~6*) — Answer—Set-Off.</p> <p>There is no warrant in the admiralty practice for a counterclaim, and a set-off is cognizable only so far as it relates to the particular transaction which is the subject of the libel, and goes to reduce or overcome the original demand.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 36.*]</p> <p>3. Admiralty (§ 36*) — Pleading—Cross-Libel.</p> <p>A cross-libel cannot be maintained in admiralty unless it arises out of the same cause of action as that propounded in the original libel.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 36.*]</p> <p>4. Admiralty (§ 36*)— Suit for Breach of Contract — Set-Off—Gross-Label.</p> <p>Libelant for a number of years performed lighterage services for respondent under an agreement fixing the prices therefor. New officers having succeeded to the management of the business of respondent corporation, a new agreement as to prices was made between them and libelant. Held, that a new contract was thereby created, and that in a suit by libelant to recover for services rendered thereunder respondent could not plead as a set-off or by way of cross-libel a claim for damages, on the ground that the prices previously paid were exorbitant and the agreement therefor collusive and fraudulent, something did not arise out of the same transaction or cause of action for which libel was filed, but out of a separate contract. ^</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 36.*]</p> <p>5. Contracts (§ 1*) — Definition.</p> <p>A contract is a transaction between two or more persons in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised by the other.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1513-1634; vol. 8, pp. 7615, 7616.]</p>

In Admiralty. Suit by the New York & Texas Steamship Company, as owner of the steamship Denver, against the steam tug Lehigh, and cross-libel by the Lehigh Valley Transportation Company, as owner of the Lehigh, against the Denver.

<p>Petition by the United States of America against Frederick Stol-ler to cancel a certificate of naturalization issued by the clerk of the superior court of Washington for Clarke county.</p>

In Admiralty. Suit by the steamship Kennebec against the steamship Strathnairn for collision, and cross-libel by the Strathnairn against fhe Kennebec.

<p>1. Bankruptcy (§ 242*) — Privilege—Probability op Damage.</p> <p>In order to entitle a bankrupt to claim bis privilege to refuse to testify on the ground of danger of self-incrimination, there must be sonie-tKing which gives rise to a probability of damage on which a doubt may be based.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 400; Dec. Dig. § 242.*]</p> <p>2. Witnesses (§ 305*) — Objections—Use of Evidence Received.</p> <p>Testimony objected to, although privileged, may he used for all purposes when once brought out.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 305.*]</p> <p>3. Bankruptcy (§ 242*) — Privilege—WVcveb—Incriminating Statement.</p> <p>Where a bankrupt had volunteered on a disclosure of what was in his shop on January 1, 1910, he waived his privilege to refuse to testify fully on such subject on the theory that his testimony might.incriminate him by reason of a financial statement previously made in. the fall of 1908.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 242.*]</p> <p>4. Bankruptcy (§ 242*) — Privilege—Exercise.</p> <p>Where a bankrupt testified partially as to his real estate holdings beginning with the year 1909, he was not entitled to protection from testifying further in that regard on the ground that his testimony might incriminate him by reason of a prior financial statement, in the absence of a showing of some of the details to indicate that he would be incriminated.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 242.*]</p> <p>5. Bankruptcy (§ 242*) — Privilege—Waiver.</p> <p>Where a bankrupt voluntarily commenced to testify with reference to his ownership of real estate during the year prior to bankruptcy, he waived his privilege to refuse to testify on the ground that his testimony might incriminate him, and was required to make a full disclosure.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 242.*]</p>

<p>Action by R. Guastavino Company against John Comerma and another.</p> <p>This is an application for a writ, of injunction pendente lite forbidding the defendants from the use of the phrase “Guastavino tile arch,” “timbrel vault,” “Spanish tile arch,” and “cohesive tile arch.” The complainant or its predecessors has engaged in the business of making tile arches of peculiar structure continuously since the year' 1881, and has always made its vaults •and arches under one or other of the names in question during that time. The structures themselves are not wholly new; they are an adaptation made by Guastavino, Sr., of an ancient form of tile arch used in Spain for many centuries, and dating back to Roman and even to Assyrian times. The complainant’s modification of this arch is peculiar, in that the surfaces of the tiles are roughened so as to add to the cohesive force between them and the mortar; but they do not claim the exclusive right to the manufacture even of this improvement. There are existing now in Spain and in Mexico arches made upon the same principle as these, and the complainant does not contend that the names “Spanish tile” or “cohesive tile” would make a good trade-mark independently of an exclusive user. In proof of that they' show that no one in this country except the complainant or its predecessors has made arches of this structure at all until the defendant set up in business within about a year. There was, it is true, one such arch made some years ago, which soon gave way. Cornerina is a Spaniard who had learned the general kind of construction in Spain and came over here some six years ago in the employ of the complainant for 3 or 3y2 years. He says that during this time he was a foreman, but the complainant insists that he was only a tile layer upon the same daily wage as that of others in its employ. The affidavits raise a square dispute upon this point. Comerma organized a corporation in the year 1309, and advertises that he will make Spanish tile arches or cohesive tile arches. He has also represented himself as formerly a foreman in the employ of the complainant and has asserted that he can make arches as well as the complainant.</p> <p>Upon the argument the defendant conceded the right of the complainant to the terms “Guastavino arch’’ and timbrel vault,” so that the issues are reduced to the phrases “Spanish tile” and “cohesive tile.”</p>

<p>In the matter of John A. Baker Notion Company, bankrupt. On motion by James Talcott to compel the referee to accept proof of claim.</p> <p>This is a motion on behalf of Talcott to compel the referee in bankruptcy to accept a proof of claim tendered by him on June 24, 1910, and refused acceptance by the referee. The bankrupt was adjudicated on January 9, 1903, upon petition filed December 16-, 1902. On December 15, 1902, Talcott seized all of the assets of the bankrupt under the claim of a factor’s lien for advances which arose under contract more than four months prior to December 15, 1802. A trustee was appointed in April, 1903, and instituted a suit in equity in the District Court against Talcott on April 20, 1904, to declare void Talcott’s lien as a voidable preference under the bankruptcy act, and to compel him to deliver to the estate all the property that he had seized, or to account for its value. A final decree was entered in that suit May 17, 1910, in favor of the trustee, declaring Talcott’s lien, void, and directing him to make payment in the sum of over $24,000. Talcott appealed from, the decree.</p> <p>The proof of claim in question is a voluminous document, which contains annexed to it the original contract between the bankrupt and Talcott, and which sets forth in great detail all the proceedings, and asks that, if his lien be validated upon appeal, his claim, may be allowed to the extent of any deficiency, and, if the decree be affirmed, it may be allowed for its full amount. The trustee, as preliminary objections, raises the question that the procedure was improper, in that only a petition of review lay from the decision of the referee, that the claim itself was improper in form, and that in any event the time had expired within which Talcott had a right to file any claim under section 57n. No order was entered by the referee upon refusal to accept the claim, and the petition for this motion was made more than 10 days after the objection. A rule in the Southern district of New York requires petitions for the review of a referee’s order to be made within 10 days after entry of the order.</p>

<p>1. Equity (§ 428*) — Decree—Enrollment.</p> <p>In federal courts, and in the American equity practice generally, there has never been an enrollment of the decree in the old English sense; but the decree is regarded as recorded and enrolled at the conclusion of the term.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 1015-1019; Dec. Dig. § 428.*]</p> <p>a. Equity (§ 428*) — Decree—Entry—Fees.</p> <p>Under Rev. St. § 828 (U. S. Comp. St. 1901, p. 635), providing that the clerk shall be paid his fees for entering a decree, the clerk may refuse to enter a decree until his fees are paid, and the decree, though remaining physically in the clerk’s office, is neither effective nor entered until the fees are paid.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 428.*]</p> <p>3. Equity (§ 428*) — Decree-Signature.</p> <p>Though the practice exists in the federal courts of signing decrees, a decree may pass on an oral direction by the judge in open court to enter it; the judge’s signature being only evidence to the clerk that it has in fact been passed, so that he may safely enter it.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 428.*]</p> <p>4. Appeal and Error (§ 440*) — Correction op Judgment After Appeal Taken.</p> <p>The court has power to correct a misprision of the clerk as to the date of entry of a decree, though the term has expired and an appeal has been taken.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2201; Dec. Dig. § 440.*]</p> <p>5. Equity (§ 428*) — Entry op Decree — Date—Correction.</p> <p>Final decree was signed by the judge April 25, 1910, and was taken at once to the clerk’s office, and there remained until May 17, 1910, when complainant’s attorneys paid the fees for entry, and it was then marked “Filed”; the “record of, the case” containing the statement that the court caused the final decree to be entered “on the 25th day of April, 1910.” Held, that the recital as to the date of entry was a misprision, and should be corrected nunc pro tunc to recite that it was entered May 17, 1910.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 428.*]</p>

<p>Suit by the Fayette Title & Trust Company, trustee, against the Maryland, Pennsylvania & West Virginia Telephone & Telegraph Company. On petition by defendant to restrain plaintiff from acting as receiver.</p>

<p>In Admiralty. Suit by the Clinton Point Stone Company against the steam tug Raymond.</p>

At Raw. Action by the Ralph Brown Company against the Norwich Union Dire Insurance Society. On motion to strike out as irrelevant and redundant certain portions of the answer.

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

<p>In Equity. Action by the Taylor Provision Company against Adolph Gobel for trade-mark infringemeht. Application by complainant for temporary injunction.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of General Appraisers, G. A. 6,909 (T. D. 29,761), reads as follows: FISCHER, General Appraiser.

<p>1. Bankruptcy (§ 7*) — Statutes. , v</p> <p>The act of Congress of 1910, amending Bankr. Act July 1, 1893, e. 541, SO Stat 544 (U. S. Comp. St. 1901, p. 3418), was not intended to tie retroactive.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 7.*]</p> <p>2. Bankkuptct (§ 195*) — Liens—Attachment—Execution.</p> <p>An attachment or execution levied against a corporation not in the classes mentioned in Act Cong. Feb. 5, 1903, c. 487, 32 Stat. ,797, (O, S. Comp. St. Supp. 1909, p. 1308), amending Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), created an unconditional right of payment out of the property levied on and an actual lien not subject to be defeated by bankruptcy adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 195.*]</p> <p>3. Bankruptcy (§ 38*) — Act op Bankruptcy — Consent to Adjudication— ■Voluntary Proceedings.</p> <p>Where a corporation within the classes mentioned in Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1308), amending Bankr. Act July 1, 1898, c. 541, 3Ó Stat. 544 (U. S. Comp. St. 1901, p. 3418), passed a resolution consenting to be adjudicated a bankrupt in involuntary proceedings instituted against it, such proceedings thereupon in substance became voluntary proceedings, though involuntary in’form.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 38.*]</p>

In the matter of Louis Ullman and others, individually, and composing the firm of L. Ullman .& Sons. Proceedings' for confirmation of composition.

<p>1. Grand Jury (§ 33*) — Supervision—Evidence.</p> <p>The evidence tliat shall be received before a grand Jury is not subject to judicial control.</p> <p>[Ed. Note. — Por other cases, see Grand Jury, Dec. Dig. § 33.*</p> <p>Review by trial court, of evidence given before grand jury, see note to McGregor v. United States, 69 C. C. A. 488.]</p> <p>2. Grand Jury (§ 36*) — Supervision—Witnesses.</p> <p>That a witness called to testify before a grand jury is interrogated with reference to an offense against the Sherman act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), which is the subject of a crime ’ and of an offense laid in an existing indictment, does not confer on/the witness a privilege to refuse to testify, as an answer when given is a complete bar to the pending prosecution, or any further prosecution for the offense, if it be pertinent to the subject-matter.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Dec. Dig. § 36*]</p> <p>3. Witnesses (§ 304*) — Self-Incriminating Testimony — 'Privilege op Witness.</p> <p>The constitutional privilege of a witness against incrimination cannot be claimed, if all prosecution is barred from .the date of the testimony, regardless of whether he has been indicted1 or not.</p> <p>[Ed. Note. — For other eases, see Witnesses, Dec. Dig. § 304.*]</p> <p>4. Criminal Law (§ 42*) — Privilege—Immunity—Sherman Act.</p> <p>The provision of the act granting immunity to a witness testifying to violations of the Sherman act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) is not retroactive; the constitutional guaranty being satisfied by a construction that the witness is not subject to future prosecution after giving his testimony.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. § 42.*]</p>

<p>Injunction (§ 137*) — Temporary Restraining Order — Right to.</p> <p>Uffler Rev. St. § 718 (U. S. Comp. St. 1901, p. 580), providing for a temporary restraining order only when danger of irreparable injury is apparent, and under Circuit Court rule 30, providing that such order shall be granted without notice only when such danger exists, a municipality should not be temporarily restrained without notice, at the suit of a street railway company, from taking further proceedings to construct a competing road, where the bill fails to show that any threatened injury is likely to result before a hearing on the application can be had.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 307-309; Dec. Dig. § 137.*]</p>

Suit by James Pollitz against the Wabash Railroad Company and others. On motion to vacate an order sustaining demurrer of the defendant Metropolitan Trust Company of New York, and a judgment dismissing the bill, and to reinstate that company as a defendant in the cause and remand it to the state court.

<p>Trade-Marks and Trade-Names (§ 61*) — Infringement.</p> <p>Complainant manufactured two preparations for making root beer. One was in syrup form, to be prepared as a beverage by the addition of carbonated .water, and the other was an extract intended to be prepared as a beverage by the addition of sugar and water and fermented with yeast. Complainant had extensively advertised its fountain syrup preparation, and the beverage prepared therefrom "was called by consumers “Hires” or “Hires Root Beer.” Defendant purchased the extract, and made a beverage therefrom by .the addition of simple syrup and carbonated water, without following the directions to prepare it by fermentation with yeast, and sold the beverage as “Hires” or “Hires Root Beer.” Held, that defendant’s action constituted a violation of complainant’s trade-name rights in the name “Hires.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 61.*]</p>

<p>Customs Duties (§ 26*) — Cuassutcation — “Penholders” — Incomplete Fountain Pens.</p> <p>Fountain pens without the pen points are not “penholders,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 187, 30 Stat. 166 (TJ. S. Comp. St. 1901, p. 1645).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 26.*]</p>

<p>Collision (§ 74*) — Tug and Anchored Scow — Fault of Moving Vessel.</p> <p>A tug held solely in fault for a collision in the night with a dump scow anchored in a proper place on the eastern side of the Delaware river; a preponderance of the evidence showing that the scow was displaying a proper anchor light.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 104; Dec. Dig. § 74.*]</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 6,487 (T. D. 37,743), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on imported merchandise.</p>

<p>1. Customs Duties (§ 85*) — Appeal—Assignment op Erbob.</p> <p>On appeal from the Board of General Appraisers the Circuit Court will not consider whether a protest decided by the board was sufficient, unless the question of insufficiency is raised by the assignment of errors.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 201; Dec. Dig. § 85.*]</p> <p>2. Customs Duties (§ 85*) — Appeal—Assignment op Ebeob.</p> <p>On appeal from the Board of General Appraisers, error was assigned on the point that the board had erred in holding the merchandise in question to be free of duty. Helé, that this assignment related to the merits, and was not sufficiently comprehensive to include the point of the sufficiency of the protest passed on by the board.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 201; Dec. Dig. § 85.*]</p>

<p>In the matter of Joseph 'Revenstein, a bankrupt. On motion to restore to the files the discharge stricken therefrom April 18, 1910.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. For decision below, see G. A. 6,613 (T. D. 28,230), affirming the assessment of duty by the collector of customs at the port of New York.

In Error t.o the Circuit Court of the United States for the Southern District of Ohio. . Action by William D. McKemy,- as receiver of the Grand Dodge of the-Ancient Order of United Workmen of the State of Ohio, and others, against the Supreme Dodge of the Ancient Order of United Workmen. From a judgment of. dismissal, plaintiffs bring .error.

Suit in admiralty by the City of New York against the steam dredge No. 1; S. Pierson & Son, Incorporated, claimant. Decree for libelant, and claimant appeals. The following is the opinion of Adams, District Judge, in the court below: ADAMS, District Judge.

Circuit Court of the United States for the Southern District of New York. Action by George P. Hudson against the New York & Albany Transportation Company and others, in which the Empire Trust Company, as trustee, intervenes.

Appeals from the District Court of the United States for the Southern District of New York. In the matter of Alfred Kessler and others, bankrupts. On certificate of the referee to determine the propriety of the payment of interest on the balance of secured claims. From an order directing such payment (171 Fed. 751), the trustee appeals.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Excelsior Drum Works against Sheip & Vande-grift, Incorporated. Decree for defendant (IT'S Eed. 312), and complainant appeals.</p>

<p>1. Patents (§ 129*) — Assignment—Eiutect as Estoppel — Corporation ORGANIZED BY ASSIGNOR.</p> <p>A corporation organized by a patentee, who subscribed ior two-thirds of the stock and paid for it with money received from another corporation to which he assigned the patent, is bound by his estoppel, and cannot question the validity of the patent, nor introduce evidence so to limit its construction as to render it worthless.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 18234-186; Dec. Dig. § 129.*]</p> <p>2. Patents (§ 177*) — Claims—Combination—Effect.</p> <p>Every part of a combination claimed in a patent is presumed to be material to the combination, and in a suit for its infringement evidence to the contrary is not admissible.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 253, 254; Dec. Dig. § 177.*]</p> <p>3. Patents (§ 168*) — Construction—Acquiescence in Rejection op Claims.</p> <p>A patentee who originally sought broader claims which were rejected, and who acquiesced in such rejection, cannot insist on such a construction of an allowed claim as would cover what had been previously rejected.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 2-13 (4-244; Dec. Dig. § 168.*]</p> <p>4. Patents (§ 202*) — .Assignment—Effect as Estoppel.</p> <p>In a suit for infringement by the assignee of a patent against the assignor, where it is not shown that the assignor made any representations other than those necessarily involved in the assignment, he is estopped only to deny that the invention presented a sufficient degree of utility to justify the issuance of the patent, and with this limitation the court will apply the same rule of construction which would be applicable between the patentee and a stranger, and, on the question of infringement, the defendant may show the prior state of the art to limit the scope of the claims sued on.</p> <p>[Ed. Note. — For other cases, see Patents. Cent. Dig. §§ 281-280; Dec. Dig. § 202.*]</p> <p>5. Patents (§ 328*) — Infringement—Electric Switches.</p> <p>The Whittingham patents, No. 716,504 and No. 757,853, for improvements in electric switches, construed, and held not infringed.</p>

<p>In Equity. Suit by the Foster Hose Supporter Company against Thomas P. Taylor.</p>

In Equity. Suit by Michael C. Neenan against the Otis Elevator Company. Decision for the defendant, but decree held in abeyance. This is a bill in equity to compel the defendant to reassign to the complainant certain patents conveyed by him to it on the 24th day of May, 1904.

<p>1. Patents (§ 141*) — Reissue—Identity oe Invention.</p> <p>A patentee is not entitled to claim in a reissue a feature of the device not claimed in the original patent as a part of his invention, although it ■was incidentally shown or indicated in the drawings.</p> <p>. [Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 208-213; Dec. Djg. § 141.*]</p> <p>2. Patents (§ 328*) — Validity oe Reissue — Buckle.</p> <p>' The Barahasz reissue patent, No. 12,855 (original No. 877,035), for a single piece sheet metal huclile, is void; the claims being for a different invention from that claimed in the original patent.</p>

<p>Patents (§ 828*) — Inekingement.</p> <p>A preliminary injunction granted against infringement of the Ellis patent, No. 714,880, for paint remover.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The Board of General Appraisers in the decision below sustained the importers’ protests against the assessment of duty by the collector of customs at the port of Chicago. The assessment was under Tariff Act July 24, 1897, c. 11, § 1, Schedulé B, par. 95, while the importers contended for classification under Schedule N, par. 418, the pertinent provisions of which read as follows: “95.

<p>1. Mandamus (§ 133*) — Interstate Commerce — Express Companies — Transportation op Intoxicating Liquors.</p> <p>Interstate Commerce Act Feb. 4, 1887, e. 104, § 3 (24 Stat. 380 [U. S. Comp. St. '1901, p. -3155]), makes it unlawful for any common carrier subject to the act to make or give any undue or unreasonable preference or advantage to any particular person or locality or description of traffic, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice in any respect whatsoever. Held that, where an express company doing interstate business refused shipment of intoxicating liquors offered by petitioners in Arkansas for transportation to purchasers in that portion of Oklahoma formerly called the Indian Territory, petitioners were entitled under such section to mandamus to compel the express company to transport and deliver such liquor as an article of commerce not prohibited by law from being introduced into that part of Oklahoma to which it was consigned.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 268; Dec. Dig. § 133.*]</p> <p>2. States (§ 9*)' — Admission into Union — Effect.</p> <p>Since Congress has no power to admit a state into the Union except on an equal footing with the original states in accordance with the rights, powers, and duties defined by the Constitution, the admission of Oklahoma fixed her status and that of her people as that acquired by the other states of the federal Union, under the Constitution, anything in the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267 [Ú. S. Oomp. St. Supp. 1909, p. 155]) to the contrary notwithstanding;' and conferred on such state the exclusive power to enact its own laws, regulating intrastate commerce and in the exercise of its police power regulating the introduction and sale of intoxicating liquors.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. § 4; Dec. Dig. § 9.*]</p> <p>3. Commerce (§ 15*) — Interstate Commerce — Subjects—Intoxicating Liquors.'''</p> <p>Intoxicating.liquors are articles of commerce so far as the interstate commerce law'"is-concerned, and hence no state may prohibit their intro-ductioif within'its borders.</p> <p>[Ed.' Note. — For other cases, see Commerce, Dee. Dig. § 15.*]</p> <p>4. Indians (§ 35*) — Introduction of Liquor Into' Indian Territory — Statt utes — Nonintercourse Act — Repealed.</p> <p>Since by the'enabling act by which Oklahoma was admitted into the Union (Act Cong. June 16, 1906, c. 3335, 34 Stat. 267 [U. S. Comp. St. Supp. 1909, p..l55]), the state was left, with jurisdiction of the introduction of intoxicating liquors from Oklahoma into that part of the state known as Indian Territory, and was authorized to control the sale of liquor through its own courts, the nonintercourse act (Act Cong. Jan. 30, 1897, c. 109, 29 Stat. 506), forbidding the introduction of intoxicating liquors into Indian Territory, was no longer in force in that part of Oklahoma formerly known as Indian Territory after its admission as a state so as to prevent the introduction therein of liquor from Arkansas in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 61, 62; Doc. Dig. § 35.*]</p>

<p>1. Master and Servant (§ 265*) — Injuries to Servant — Contributory Negligence — Assumed Risk — Burden, on Proof.</p> <p>Where by the pleadings defendant made the issues of assumed risk and contributory negligence substantive defenses, the burden was on him to establish them by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 907, 908; Dec. Dig. § 265.*]</p> <p>2. Master and Servant (§ 280*) — Injuries to Servant — Assumed Risk.</p> <p>Plaintiff, while clearing awa.y wet “broke” from an alleyway, slipped and got his hand caught and badly injured in the rollers of a machine. On being asked if he did not know at the time of the accident that if he fell while in the alleyway, so that his hand or arm came in contact with the rollers, he would be likely to get caught and hurt, he answered “that he never thought about it,” that he knew if he put his hand between the rollers it would be drawn in, because he had seen paper drawn in between the rolls, but denied that his mind carried him any further in that direction at that time. Held insufficient to show that plaintiff appreciated the danger and assumed the risk as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. '§ 280.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, which is reported as G. A. 5,633 (T. D. 25,172), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of General Appraisers reads as follows: McClelland, General Appraiser.

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