Volume 181 — Federal Reporter

One Richardson, as cashier of the Cosmopolitan National Bank of Pittsburg, Pa., was convicted of making false entries in the books of the bank, and in the reports of its financial condition, and he brings error.

In the matter of the Howe Manufacturing Company, bankrupt. On appeal from order disallowing claim of Hueling Davis. This is an appeal from an order entered in the court below April 9, 1908, rejecting a claim of Davis, appellant, against the Howe Manufacturing Company, bankrupt, for $5,000 and interest. The company was adjudicated a bankrupt December 22, 1906,, and the Louisville Trust Company, one of the appellees, was thereafter appointed trustee.

<p>Petition for Revision of Proceedings of the District Court of the •United States for the Eastern Division of the Southern District of Ohio, in Bankruptcy.</p> <p>In the matter of James F. Lingafelter, bankrupt. On petition of Joseph N. P,ugh, as receiver of the Plomestead Building & Savings-Company of Newark, Ohio, to review an order of the District Court.</p>

Petition to Review an Order of the District Court oE the United States for the Eastern District of Michigan. In the matter of Thomas Hastings, bankrupt. On petition by the National Grocer Company to review an order of the District Court.

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by the Great Lakes Engineering Works against the Northwestern Steam Boiler & Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Action by A. B. Baird against Ohio County, Ky. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>In the matter of the Lansing Veneered Door Company, bankrupt. From an order of the District Court reversing an order of the referee directing certain, payment, John E. Ellsworth appeals adversely to T. Rogers Lyons, trustee of the estate.</p>

<p> (Syllabus by the Court.) </p> <p>1. Waters and Water Courses (§ 34*)—Water Rights—Doctrine oe Appropriation Prevails in Colorado.</p> <p>In Colorado, the common-law doctrine in respect of the rights of riparian proprietors never has obtained, and in its stead there was adopted the doctrine of appropriation which regards the waters of all natural streams as subject to appropriation and diversion for beneficial uses and treats priority of appropriation and continued beneficial use as giving the prior and better right.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 27, 28; Dec. Dig. § 34.*]</p> <p>2. Waters and Water Courses (§ 2*)—Doctrine oe Appropriation Competently Adopted in Colorado—Congressional Sanction as Respects Public Lands.</p> <p>In choosing between the doctrine of riparian rights and that of appropriation, Colorado acted within the limits of her authority, first as a territory and then as a state, and her choice was recognized and sanctioned by Congress, so far as the public lands were concerned.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 1; Dec. Dig. § 2.*]</p> <p>3. Waters and Water Courses (§ 21*)—Water Rights Acquired on Public Lands Not Affected by Subsequent Disposition of Lands Under Public Land Laws.</p> <p>When a water right and a ditch right connected therewith are. acquired while the lands embracing the point of diversion and a portion of the ditch are public lands, those rights are not affected by the subsequent location, entry, and patenting of such lands.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 14; Dec. Dig. § 21.*]</p> <p>4. Waters and Water Courses (§§ 9, 15*)—What Constitutes “Appropriation” of Water is Question of Local Law—Location of Gold Placer Claim Does Not Operate as Appropriation in Colorado.</p> <p>What constitutes a valid appropriation of water to beneficial uses is a question of local law, and by the law of Colorado the location of a riparian gold placer claim is not in itself such an appropriation, for the actual application of the water to a beneficial use is the true test of appropriation.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 4, 7; Dec. Dig. §§ 9, 15.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 466-468; vol. 8, p. 7580.] <</p> <p>5. Waters and Water Courses (§ 9*)—Riparian Rights Acquired through Patents for Public Lands on Nonnavtgable Stream Usually Depend upon Local Law—Patent for Gold Placer Claim in Colorado Gives No Right to Unappropriated Waters.</p> <p>In so far as the rights and incidents of riparian proprietorship are concerned, conveyances by the United States of public lands on nonnavigable streams and lakes, when it is not provided otherwise, are to be construed and have effect according to the law of the state in which the lands are situate; and by the law of Colorado .a conveyance of riparian land, even if it be a gold placer claim, does not carry any right to the unappropriated waters of the stream.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. i 4; Dec. Dig. § 9.*]</p> <p>6. Waters and Water Courses (§ 144%*)—Right of Way for Ditch Over Private Lands—Acquisition Necessary.</p> <p>The right to appropriate the waters of a stream does not carry with it the right to burden the lands of another with a ditch for the purpose of diverting the waters and carrying them to the place of intended use, for that cannot be done without a grant from the landowner or a lawful exercise of the power of eminent domain.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 147; Dec. Dig. § 144%.*]</p> <p>7. Waters and Water Courses (§ 144%*)—Easement for Ditch Does Not Give Right to Alter or Enlarge.</p> <p>An easement for a ditch used in diverting and carrying water covered by an existing appropriation does not carry with it any right to enlarge the ditch, or to change its location or to use it in diverting and carrying a largely increased volume of water under a later appropriation, but is limited, to the maintenance and use of the ditch, substantially as then constructed, for the purpose of utilizing the existing appropriation.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 147; Dec. Dig. § 144%.*]</p> <p>8. Waters and Water Courses (§ 144%*)—Increased Appropriation of Water Effected Through Wrongful Enlargement of Ditci-i—Validity.</p> <p>An increased appropriation of water which is initiated and maintained by an unlawful trespass upon the lands of another, in the nature of an unauthorized enlargement of an existing ditch-, is of no validity against him whose property is the subject of the trespass.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 147; Dec. Dig. § 144%:*]</p>

<p>Chattel Moetgages (§ 97*)—Renewal—Refiling—Time.</p> <p>Lien Law N. Y. (Laws 1897, c. 418) § 95, provides that a chattel mortgage, except as otherwise provided, shall be invalid as against creditors of the mortgagor, and against subsequent purchasers or mortgagees in good faith, after the expiration of the first or any succeeding term of a year from the first filing, unless within 30 days next preceding the expiration of the term a statement containing a description of the mortgage, names of the parties, the time when and place where filed, the interest of the mortgagee, etc., is filed. Held that, on the expiration of a year from the date of the original filing of a chattel mortgage, it becomes invalid, in the absence of the filing of the statement required, and cannot be resuscitated by filing a statement some 5 months thereafter.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Dee. Dig. § 97.*]</p>

In the matter of Max Schmidt, bankrupt. From an order directing John W. McDonald, trustee, to pay a chattel mortgage debt due from the bankrupt to Augusta Mauersburger, he appeals.

Action by Samuel Dempster against William D’Alton Mann and another. Judgment for plaintiff and defendants bring error, and move to remand. This cause comes here upon writ of error to review a judgment of .the Circuit Court, Southern District of New York, for $20,080.75, entered May 13, 1909, in favor of defendant in error who was plaintiff below.

<p>Railroads (§ 358*)—Injuries to Persons Using—Licensee—Duty of Railroad Toward Permissive Way Across.</p> <p>Defendant railroad company opened a freight train at a point where two paths crossing the track converged, near the center of a city block. These paths had been used freely by workmen and others who were accustomed to cross the tracks for a long time. Plaintiff, a boy of 8%, was injured while crossing through the opening between the cars by being run over by the train while being closed together after he had tripped and fallen over a rail. Held, that plaintiff was a mere licensee as to w.liom the railroad company was under no obligation to give warning before the closing of the cut, and that it was therefore not liable.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1237; Dec. Dig. § 358.*]</p>

<p>1. Indictment and Information (§ 110-*)—Sufficiency of Accusation-Indictment in Language of Statute.</p> <p>An indictment charging a statutory crime- in the language of the statute is sufficient when the statute fully, directly, and with certainty sets forth all the elements of the crime.</p> <p>(Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.*]</p> <p>2. Game (§ 9*)—Shipment in Violation of Game Laws—Federal Statute-Indictment for Violation.</p> <p>Under the Game Law of Oklahoma Territory (Wilson’s Rev. & Ann. St. 1903, §§ 3069, 3078) which permits the killing of quail between October 15th and February 1st following -but prohibits the shipping of quail from the territory at any time, an indictment charging a violation of the Lacey Act of May 25, 1900, c. 653, § 3, 31 Stat. 188 (U. S. Comp. St. 1901, p. 3181), by knowingly delivering to a carrier for transportation from the territory into another state the dead bodies of quail killed in the territory in violation of its laws, is sufficient where it avers that such quail were killed “with the intent and for the purpose of being shipped and transported out of the territory,” and need not allege the months in which such quail were killed. The same is also true of an indictment under section 4 of the act for failing to mark the packages containing the bodies of such quail.</p> <p>[Ed. Note.—For other cases, see Game, Gent. Dig. § 9; Dec. Dig. § 9.*]</p> <p>3. Game (§ 3%*)—Power of State to Protect and Regulate—Prohibition of Shipment out of State.</p> <p>A state or territory has authority to provide by legislation that wild game, such as quail, shall not be shipped out of the state or territory even though the game was killed during the open season.</p> <p>[Ed. Note.—For other cases, see Game, Cent. Dig. § 2; Dec. Dig. § 31/2.*]</p> <p>4. Commerce (§ 61*)— Federal Statute Prohibiting Interstate Shipment in Violation of Local Laws—Constitutionality.</p> <p>The provisions of the Lacey Act of May 25, 1900, c. 553, §§ 3, 4, 31 Stat. 188 (U. S. Comp. St. 1901, p. 3181), prohibiting the shipment or transportation in interstate commerce of game killed in violation of the local laws, and requiring all packages containing game shipped in interstate commerce to be plainly marked showing the name and address of the shipper and the nature of the contents, and making the violation of such provisions a criminal offense, are within the powers of Congress, and constitutional and valid.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec. Dig. § 61.*]</p>

<p>In Error to the Circuit Court of the United States for the Western» District of Arkansas.</p> <p>Action by J. T. Eulgham, administrator of E. C. Pogue, against the-Midland Valley Railroad Company. Judgment for plaintiff (167 Eed. 660), and both parties bring error.</p>

<p>1. Patents (§ 165*)—Construction.</p> <p>The rule is that each claim of a patent covers a complete invention, and is in substance an independent patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>2. Patents (§ 168*)—Construction—Effect of Acquiescence in Rejection of Claims.</p> <p>If a claim of a patent is itself so changed through action of the Patent Office as to limit it to a particular means for performing a function, acquiescence therein by the inventor estops him from claiming any different device as an infringement, and also acquiescence in the rejection of certain claims for “means” generally, and the allowance of claims describing specific means precludes a construction of such claims which would include other means.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 243%-244; Dec. Dig. § 168.*]</p> <p>3. Patents (§ 328*)—Infringement—Furnace Grate.</p> <p>The Maag patent, No. 707,855, for a furnace grate consisting of two parts pivotally connected, the front one of which can be lowered in front to permit of cleaning, in view of the proceedings in the Patent Office, is limited to a construction in which such lowering is done by a swinging bail, the turning of which lowers or raises the shaker arm attached to the front section of the grate, sustaining it in each position. As so construed, held not infringed.</p>

Suit in equity by the Union Carbide Company against the American Carbide Company. Decree for defendant (172 Fed. 120) and complainant appeals. Appeal from a decree dismissing the bill in a suit to restrain the alleged infringement of letters patent No. 541,138, granted June 18, 1895, to Thomas L. Willson for an alleged “new and useful product existing in the form of crystalline calcium carbide,” and assigned to the complainant.

<p>Patents (§ 328*)—Infringement—Process of Producing Calcium Carbide.</p> <p>The Willson patent, No. 563,527, for a process of producing calcium carbide by subjecting lime and a carbonaceous deoxidizing agent to the heat of an electric arc in an electric furnace, held not infringed.</p>

<p>Patents (§ 328*)—Infringement—Feeder for Cotton Gin.</p> <p>The Murray patent, No. 472,607, for an improvement in apparatus for elevating, distributing, and feeding seed cotton to gins, the novel feature of the combination being an automatic valve produced by the cotton itself which prevents choking in the chute, held not infringed upon evidence showing that the patented combination will not work successfully without the use of a trip valve, which has been added as a new element in defendant’s machine.</p>

<p>1. Patents (§ 328*)—Validity and Infringement—Machine fob Making Incandescent Mantles.</p> <p>The Von Bultzingslowen patent, No. 638,004, for a machine for making incandescent mantles, was not anticipated and discloses invention, the machine being,very successful and of substantial value; also, held valid as against the claim that the patentee was not the inventor, and infringed.</p> <p>[Utility, extent of use, and commercial success as evidence of invention, see note to Doig v. Morgan Machine Co., 59 O. O. A. 620.]</p> <p>2. Patents (§ 51*)—Anticipation—Unused Machine.</p> <p>One who invents and constructs a machine, hut permits it to slumber, and neither applies for a patent nor makes any public use of it, cannot resort to such invention as an anticipation’ of a subsequent patent obtained by another.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 66-74; Dec. Dig. § 51.*]</p> <p>3. Patents (§ 129*)—Assignment—Effect as Estoppel.</p> <p>One who becomes a stockholder in a corporation organized for the purpose of taking title to a patent, and selling the same, and who participates in such sale and receives liis share of the profits, is estopped to attack the validity of the patent as against an innocent purchaser for value.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 182%-186; Dee. Dig. § 129.*]</p> <p>4. Patents (§ 64*)—'Anticipation—Applications Pending at Same Time.</p> <p>An inventor having two applications for patents pending at the same time; both of which disclose his invention, may base his broadest claims on the one which he considers shows the best form of mechanism, although it may be the later application, and the patent issued thereon will not be anticipated by a later patent issued on his earlier application.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 79; Dec. Dig. § 64.*]</p> <p>5. Patents (§ 196*)—Assignments—Formal Requisites.</p> <p>Patents are creatures of the federal statute, and an assignment is sufficient if it conforms to the requirements of Rev. St. § 4898 (TJ. S. Comp. St. 1901, p. 3387), regardless of the state statutes.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 275; Dec. Dig. § 196.*]</p> <p>6. Patents (§ 289*)—Suit for Infringement—Laches.</p> <p>The fact that the owner of a patent permitted a suit for its infringement to be dismissed without a trial on the merits is not such laches as to bar a second suit against the same defendant.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 467-469; Dec. Dig. § 289.*</p> <p>Laches as a defense in suits for infringement, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p>

In Equity. Suit by James Rowland against John S. Biesecker. This is an ordinary bill in equity upon a patent for a butter cutter, assigned by the patentee, Reuben S. Stone, to the complainant on November 13, 1906.

<p>In Equity. Suit by Edward V. Hartford, George W. Hartford, and the Hartford Suspension Company against Harold J. Moore and Ruth H. Moore.</p> <p>This is an ordinary bill upon a patent for a shock-absorber upon spring-supported vehicles. The commercial adaptation of the patent is the well-known Truffault-Hartford shock-absorber used extensively upon motor cars. The present patent is a reissue, No. 12,437, of January 16, 1906, of an original patent, No. 695,508, issued March 18, 1902. The device is simple in character, and merely consists of two arms each pivotally mounted upon one of the relatively moving parts of the vehicle, which are kept apart by the springs. These two arms are united at their free ends, and can be pressed together by a nut at any desired degree of friction exercised upon a washer introduced between them. In the commercial device the ends are enlarged to a considerable area. As the two relatively movable parts approach each other through the compression of the spring, these two arms move to a more acute angle. As the parts separate through the reaction of the spring, .the arms assume a more obtuse angle. The friction caused by the rotation of the united ends together with the friction in the rotation of the fixed ends of each arm produces two results: First, it adds to the strength of the spring upon its compression, and, second, it in part prevents the too violent reaction of the spring. Thus the shock which is especially felt upon the rebounding of the spring is in part avoided.</p> <p>The defendant’s device is of substantially similar character; the details not being necessary to be stated. The claims in suit are as follows:</p> <p>“I. In a vehicle, the combination with a supporting-spring between the parts of the vehicle movable relatively to each other, of rotating frictional means between the parts which provides a yielding resistance to movement, said means producing a retarding effect on the reaction of the spring, substantially as described.</p> <p>“II. In a vehicle, the combination with the wheel thereof, the frame carried by said wheel and a spring interposed between said wheel and frame, of rotating frictional mechanism which provides a yielding resistance to the movements of tiie parts, said means serving to materially and uniformly exert a retarding effect on the said movements of the parts in both directions substantially as described.</p> <p>“III. A retarding device for vehicle-springs comprising rotating friction members, adjustable clamping means, and means for connecting the rotating members to the parts of a vehicle movable relatively to each other, substantially as described.”</p>

<p>1. Patents (§ 328*)—-Validity and Infringement—Asphaltic Petroleum Products and Process of Making Same.</p> <p>The Byerley patent, No. 524,130, for a process of making asphaltic products from the residuum of petroleum after distillation and for the product itself, called “Byerlyte,” as a new article of manufacture, was not anticipated and discloses invention, the product being one of utility which has become widely known and used; also held infringed.</p> <p>2. Patents (§ 289*)—Suit for Infringement—Defenses—Laches.</p> <p>■ The defense of laches to a suit for infringement of a patent held not sustained.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 289.*</p> <p>Laches as a defense in suits for infringement, see notes to Taylor v. Sawyer Spindle Co., 22 O. O. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>3. Trial (§ 39*)—-Introduction of Evidence—Exhibits.</p> <p>Documents or other things produced by a witness on request in his cross-examination and marked for identification are not before the court as evidence, unless offered and admitted as such.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 92-98; Dec. Dig. § 39.*]</p>

<p>In Equity. Suit by David H. Langan against the Warren Axe & Tool Company.</p>

<p>In Equity. Suit by the Eagle Wagon Works against the Columbia Wagon Company.</p>

In Equity. Suit by the Pressed Prism Glass Company against the Continuous Glass Prism Company. For opinion sustaining the patents and finding infringement, see 150 Fed. 355. On exceptions to report of H. D. Gamble, master.

<p>In Equity. Suit by the Standard Machine Company against Rambo & Regar, Incorporated. On final hearing.</p>

In Equity. Suit by the Phoenix Knitting Works against the Bradley Knitting Company, J. J. Phoenix, W. B. Tyrrell, and W. H. Tyrrell. This is a suit in equity based upon a design patent No. 39,347, granted to one Mead June 9, 1908, for an original and ornamental design for an article manufactured, to wit, a neck scarf, which patent was thereafter, and before the alleged infringement, duly assigned and transferred to the complainant.

In Equity. Suit by the Phoenix Knitting Works against Samuel Grushlaw, individually and trading under the style of the Pennsylvania Knitting Mills, and also trading under the style of Penn Muffler Company. On motion for preliminary injunction.

<p>Patents (§ 328*)—Novelty—Shaft Coupling,</p> <p>The Shaw patent, No. 074,024, for a shaft coupling, is void for lack of patentable novelty.</p>

<p>In Equity. Suit by the McCaskey Register Company against John R. Divens.</p>

<p>Patents (§ 326*)—Injunction Against Infringement—Violation—Attachment for Contempt.</p> <p>A defendant, charged with contempt for violation of an injunction against infringement of a patent, is entitled to all the rights of one charged with a criminal offense, and a court of equity will not grant an attachment for contempt in such case, if the violation of the injunction is to a reasonable extent uncertain.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 613-619; Dec. Dig. § 326.*]</p>

<p>1. Bankruptcy (§ 407*)—False Statement—Concealment of Debts—Refusal of Discharge.</p> <p>Where at the time a bankrupt made a statement to a commercial agency for credit, he had received $3,500 from his father and $1,585 from his wife, for both of which he had given notes, neither of which he disclosed in such statement, but included them in his list of creditors in his assignment for the.benefit of creditors, and also in his bankruptcy schedules, and about the time he made an assignment in trust for the benefit of his creditors, he further acknowledged the indebtedness to his wife by giving her a second note to cover the amount due her, his claim that the concealment of such.debts was not intentional and willful because the debt to his father represented money advanced to him which was to be deducted from his share of the father’s estate in case he lost the money, and that he did not regard the debt to his wife except as an advancement to enable him to go into, business, etc., was unsustainable.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 407.*]</p> <p>2. Bankruptcy (§ 407*)—Insolvency—Knowledge—Presumption.</p> <p>Where .a bankrupt was insolvent in fact when he made a financial statement in which h'e concealed certain of his debts, he should be presu-rned to have had knowledge thereof.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 407.*]</p> <p>3. Bankruptcy (§ 407*)—False Financial Statement—Intent to Deceive.</p> <p>Where a bankrupt had knowledge of his insolvency at the time he made his financial statement, concealing certain debts to his father and wife, his intent to deceive will be presumed.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 407.*]</p> <p>,4. Bankruptcy (§ 407*)—Discharge—False Statement—Commercial Agencies.</p> <p>Where a false financial statement made by the bankrupt to a commercial agency, recited that it was designed as a basis for credit, and a creditor objecting to the bankrupt’s discharge, extended credit on the faith of the statement, a discharge should be denied.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Gent. Dig. § 760; Dec. Dig. § 407.*] ■</p>

In Equity. Suit by the American Lead Pencil Company against L. Gottlieb & Sons. This is a suit between citizens of the state of New York upon a registered trade-mark “Beats-All,” which is applied to lead pencils of the complainant.

<p>In Equity. Suit by the United States Eight & Heating Company of Maine against the United States Eight & Heating Company of New York and another.</p>

<p>Salvage (§§ 15, 18*)—Right to Compensation—Jettison oe Cargo oe Stranded Vessel.</p> <p>The Mexican steamship Olympia, with a cargo of coal, stranded on a Florida reef. She put out two anchors astern to act as hedges before the falling of the tide, and her master refused offers of assistance from libelants’ vessels which arrived. Afterward the master of a pilot boat, in uniform, boarded the steamer, and as the evidence tended to show, claimed to the master, who knew very little English, that he was an officer with authority to assist the vessel and ordered men from libelants’ vessels to jettison cargo, which they proceeded to do. Subsequently the Olympia broke one of her hawsers in attempting to pull off, and had to be assisted by a revenue cutter which appeared. Held, that there was no ground for the recovery by libelant of ordinary salvage compensation, but that as it appeared that the lightening of the vessel by reason of the coal jettisoned was of benefit and perhaps necessary in floating her, the men who did the work were individually entitled to recover reasonable compensation therefor.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 28, 31-43; Dec. Dig. §§ 15, 18.*]</p>

In Equity. Suit by the Kansas City Southern Railway Company against R. M. Quigley and others, in which defendants file cross-bill for affirmative relief. The complainant, a corporation organized and existing under the laws of the state of Missouri, and a citizen of that state, exhibited its ’bill of complaint against R. M. Quigley and 17 other defendants, each and all of them alleged to be citizens and residents of Polk county; in the state of Arkansas, and of the Ft.

<p>1. Courts (§ 311*)—Suit by Receiver to Enforce Statutory Liability of Stockholder—Jurisdiction of Federal Court.</p> <p>Under Rev. St. Ohio 1908, § 3260d, which empowers the court in a creditor’s suit-against an insolvent corporation to adjudge the amount payable by each stockholder under the double liability provided for by the statute, and to appoint a receiver to collect the same with authority to ' maintain suits therefor against stockholders in other j urisdictions, such ■ ' a receiver is in the position of a quasi assignee, representing all of the creditors, and may maintain an action in a federal court in another state, and ;his own citizenship, and not that of the creditors, affords the test of . jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 858; Dec. Dig. § 311.*]</p> <p>2. Limitation of Actions (§§ 58, 106*)—Accrual of Right of Action—Suit by Receiver to Enforce Statutory Liability of Stockholders.</p> <p>Under such statute limitation does not begin to run against an action to recover from a stockholder in-another state, until a decree is entered making an assessment and appointing a receiver for its collection, and, if an appeal is taken and perfected from such decree, the running of the statute is suspended during its pendency, even though it is taken by creditors.</p> <p>LE'd. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 327, 516; Dec. Dig. §§ 58, 106;* Corporations, Cent, Dig. §§ 1084-1063.]</p> <p>3. Limitation of Actions (§ 13*)—Estoppel.to Rely on Statutory Liability of Stockholder—Limitations.</p> <p>A receiver appointed in a creditor’s suit against an insolvent corporation and authorized to bring actions against stockholders for the collection of assessments made against them is not estopped from asserting that the pendency of an appeal from the decree suspended the running of limitation against such an action, because during such pendency he settled and received payment of claims against other stockholders.</p> <p>[Ed. Note.-—For other cases, see Limitation' of Actions, Dec. Dig, § 13.*]</p> <p>4. Corporations (§ 235*)—Statutory Liability of Stockholders—Reorganization.</p> <p>In the reorganization of an Ohio railroad company, the new company assumed' the debts of the old, and provided for an issue of first-lien bonds to be sold, and the proceeds used to pay such indebtedness. Under the statute of the state, the stockholders were subject to double liability, but such bonds contained a provision by which the holders waived the right to resort to such liability in consideration of the lien given. Held, that a stockholder of the old company who became a party to the reorganization and exchanged his stock for stock in the new company was subject to the additional liability for the debts of the old company so far as they were not discharged from the proceeds of the bonds sold.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 235.*]</p>

Application by Doherty & Co. to punish Alex Rice and Fred S. Ball for contempt of court in violating an order restraining the sale of certain shares of stock owned by Rice in the Citizens’ Light, Heat & Power Company and the Citizens’ Light & Power Company.

<p>1. Collision (§§ 63, 64*)—Steamer and Meeting Tow—Mutual Fault—Insufficient Lookout—Unlawful Tow.</p> <p>A tug with three barges in tow tandem, the first two on hawsers of 145 fathoms each and the third on one of 75 fathoms, was proceeding westward in Long Island Sound at night, when the steamer Manhattan, going eastward on a slightly converging course, came into collision with the second barge and sunk her. The Manhattan passed the tug starboard to starboard at a distance of 500 feet, but the tow was drifted more or less to the northward by a southerly wind. The barge was carrying proper lights, but they were not seen by the Manhattan, which ran into her at full speed. Held, that the Manhattan was clearly in fault for failure to keep an efficient lookout; that the tug and first two tows were also in fault for violation of the regulations made under Act May 28, 1908, c. 212, § 14, 35 Stat. 428 (U. S. Cbmp. St. Supp. 1909, p. 1100), which prohibit the use by tows of seagoing barges navigating inland waters of hawsers of greater length than 75 fathoms between each two vessels, and is equally obligatory on tows and towing vessels, and that the damages should be apportioned equally between the four vessels.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 79, 81, 82; Dec. Dig. |§ 63, 64.*]</p> <p>2. Collision (§ 146*)—Suit for Damages—‘Parties—Apportionment of Damages.</p> <p>A libelant in a suit for collision, although suing only as owner of the injured vessel, nevertheless is a party personally, and subjects himself and all his property to the hazard of the litigation, and, if he was also the owner of one or more other vessels concerned in the collision and found chargeable with contributory fault, such vessels must be taken into account, although they have not been formally brought into the suit, and his recovery ’ correspondingly reduced.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 298; Dec. Dig. § 146.*]</p> <p>3. Collision . (§ 146*)—Apportionment of Damages—Different Vessels of Same Owner.</p> <p>The barges Hawthorn, Albany, and Troy, the property of the same owner, were in tow of a tug in Long Island Sound at night when a collision occurred between the Albany and the steamship Manhattan, which caused a second collision between the Albany and Troy. The owner, as owner of the Albany and Troy, brought suit against the Manhattan and the tug to recover for the injury to such vessels. The owner of the Manhattan also brought suit against the tug and the Albany to recover damages for the same collision. The two suits were tried together and the court found that the Manhattan, the tug, the Hawthorn, and the Albany were all in fault. The Hawthorn had not been formally brought into either suit. Held that, under the rule of apportioning the damages equally among the offending res, the original libelant was entitled to recover one-half his damages, one-fourth from the tug and one-fourth from the Manhattan, and the owner of the Manhattan was entitled to recover three-fourths of his damages, one-fourth from the tug and one-half from the original libel-ant, the two suits being treated as one and a single decree entered.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 298; Dec. Dig. § 146.*]</p>

<p>1. Salvage (§ 28*)—-Amount of Compensation—Dekelict.</p> <p>The abandonment at sea by the master and crew of a vessel injured in a storm so that she was unmanageable, leaving her anchored a mile or two from shore in comparatively calm weather, and with the full intention on the part of the master to obtain a towing vessel and return, did not constitute her a derelict, and a salvor is not entitled to compensation on that basis.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 69, 71; Dec. Dig. § 28.*]</p> <p>2. Salvage (§ 26*)—Amount of Compensation—Elements of Awabd.</p> <p>The elements which usually go to influence the amount of a salvage award are the value of the property salved, the value of the property employed in the service and the hazard it undergoes, the risk and peril to the salvors, the labor expended, and the promptitude, skill, and energy brought to the service.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 57-68; Dec. Dig. § 26.*]</p> <p>3. Salvage (§ 22*)—Amount of Compensation—Negligent ob Unskillful Pebfobmanoe of Service.</p> <p>Negligence or skill in the performance of a salvage service, irrespective of resulting damages, must always influence the award, and salvage may be reduced by lack of skill and energy displayed by the salvors; and, where it results in a distinguishable injury, there may not only be a forfeiture of all right to compensation, but an. affirmative award may be imposed against the salving vessel.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. § 52; Dec. Dig. § 22.*]</p> <p>4. Salvage (§ 27*)—Amount of Compensation—Peril at Sea.</p> <p>The steam schooner Kelton, with a cargo of lumber in part on deck and in part below, started from Grays Harbor to San Francisco, and shortly after, leaving port encountered heavy weather. Two days later she was leaking badly, and her deck load was jettisoned, after which she became unmanageable and filled. She finally drifted within a mile or a mile and a' half of the shore, where her anchors were dropped and held. The next day the sea was calm, and, in response to a distress signal, a life saving crew took the crew off and the master started to obtain a tug, but the Kelton was taken in tow by the steam schooner Washington, which found her deserted, and towed into the Columbia river and beached. The place where she was left was not well chosen, and a large amount was expended in getting her afloat and taking her to Portland. She should have been taken farther up the river, and, although the Washington claimed to be unable to do so, the assistance of a tug was offered her and refused. The salvage service was not attended with much danger, and the towing required 22 hours. Held, that the Kelton was not a derelict, and that the unskillful manner in which she was handled detracted from the value of the service; that the Washington should be awarded one-sixth of the salved value of vessel and cargo.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 65, 66; Dec. Dig. § 27.*]</p> <p>5. Salvage (§ 1*)—Nature.</p> <p>Salvage is a reward for perilous service and skill, and not a quantum mer.uit for labor expended.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 1-4; Dec. Dig. § 1.*</p> <p>For other 'definitions) see Words' and--Phrases, vol. 7, pp. 6312-6315; vol. 8, p. 7794.]</p>

Action by Roscoe G. Brown against the Cumberland Telephone & Telegraph Company.

<p>Action by John W. Gruetter against the Cumberland Telephone & Telegraph Company. On plaintiff’s motion to remand.</p>

In Admiralty. Actions by Mary Trauffler, administratrix of the estate of Frank M. Trauffler, deceased, and by "Alice A. McClure, administratrix of the estate of William A. McClure, deceased, against the Detroit & Cleveland Navigation Company, as owner of the steamer Western States, and the Hand & Johnson Tug Line, as owner of the tug Princeton.

<p>In Admiralty. Suit by William Hansen, as owner of the steamship Diana, against Daniel Emery and others, owners of the bark Boylston, and cross-libel by the owners of the Boylston against the Diana.</p>

<p>Monopolies (§ 28*)—Combinations in Restraint of Interstate Commerce-Action for Damages—Sufficiency of Complaint.</p> <p>The complaint, in an action under Sherman Anti-Trust Act July 2, 1890, § 7, c. 647, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), to recover damages for injuries to plaintiff's business caused by an alleged combination and conspiracy between defendants in restraint of interstate trade and commerce and to monopolize such commerce, considered, and held sufficient on demurrer.</p> <p>[Ed. Note.—For other cases, see Monopolies, Dec. Dig. § 28.*]</p>

<p>-1. Towage (§ 4*)—Relation and Duties of Tug to Tow—Loss on Injury to Tow.</p> <p>One undertaking a towage contract is not a common carrier nor liable as such, but his obligation is to perform the service with the reasonable care and skill which a prudent and experienced person should use under similar circumstances, and beyond this he is not responsible.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>2. Towage (§ 15*)—Actions—Division of Damages.</p> <p>The rule in admiralty for the division of damages is not limited to cases of collision, but may be applied in any case where a loss results from the fault or negligence of 'both parties, and without regard to the issues raised by the pleadings, if it appears from the record to be required to meet the ends of justice.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 38; Dee. Dig. § 15.*]</p> <p>3. Towage (§ 12*)—Breaking of Log Raft in Tow—Liability—Fault of Both Parties.</p> <p>Libelant company had a raft of logs moored in the Tennessee river near its mouth, which became endangered by a rise in the river, and libel-ant employed respondent to tow it to libelant’s lumber mills located on the Illinois side of the Ohio. Two tugs were used which safely took the raft across the Ohio, and proceeded down toward the mills. It was necessary from the position of the raft on that side of the river to pass around some piling before reaching the mills, and the tugmasters deemed it dangerous at that time, owing to. a strong wind from the Illinois side, and proposed to tie up the raft until the wind abated, but to this libel-ant’s president, who was on board, refused to consent, and insisted on landing at the mills, promising to supply the necessary lines. He furnished. wire cables, and, owing to their inelasticity and the force of the wind, the raft was broken in landing, and some of the logs were lost. Held, under the evidence, that the tugs were not negligent in the manner of handling the tow, but were in fault for not tying the tow up in accordance with the judgment of the masters, notwithstanding the objection of libelant’s president; that libelant was also in fault because of its interference through its president and the improper ropes furnished, which acts were the proximate cause of the loss; and that the damages should be divided.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 24-26, 29; Dec. Dig. § 12.*]</p>

At L,aw. Action by Edward Eatchtimaclcer against the Jacksonville Towing & Wrecking Company. On motion by defendant for a new trial. This is an action for personal injuries sustained by the plaintiff, Latchtimacker, a seaman, engaged aboard the American barken tine Josephine.

<p>Courts (§ 367*)—Federal Courts—Following State Decision—Rule or Property.</p> <p>A unanimous decision of the highest court of a state construing a writing relating to the sale of a vein of coal underlying land in that state, and holding it to be an option and not a contract of sale, establishes a rule of property, and will be followed by a federal court in construing another contract relating also to property in that state and identical in terms.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.*</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>Street Railroads (§ 58*)—Receivers—Accounting.</p> <p>A petition for an order directing the receiver for an insolvent street railroad company to turn over to petitioners, who were the trustees under a mortgage given by another company, and the purchaser of the property under such mortgage, certain notes and claims held by the receiver against third parties, claimed to be covered by the mortgage, denied to await the result of an accounting between the receiver and the debtors, and also an accounting between the receiver and the trustee petitioner.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec.- Dig. § 58.*]</p>

<p>Street Railroads (§ 58*)—Creditors’ Suits—Intervention by Stockholders.</p> <p>Where the assets of an insolvent street railroad company are being administered by a court of equity in creditors’ suits, and a committee of minority stockholders has been permitted to intervene on behalf of the stockholders represented and all others who may choose to join, to warrant the subsequent granting of leave to intervene to a second committee representing other minority stockholders whose interests are the same, some substantial reason should be shown why they are not, or cannot be, properly and adequately represented by the committee and counsel already in the case.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>Collision (§ 69*)—Steameb and Anchored Barge—Fault of Moving Vessel.</p> <p>A collision at night between a steamer entering the port of Providence, R. I., and a coal barge anchored in the upper harbor near the west side of the dredged channel in a customary and proper place, held due solely to the fault of the steamer in being too near the west side of the channel and going at too great a speed.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 87-90; Dec. Dig. § 69.*]</p>

<p>1. Corporations (§ 308*)—Officers—Bight to Salary.</p> <p>By the common law relating to corporations, neither the president nor any director is entitled to any salary unless there is an authoritative vote granting it and establishing the amount of the same.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. § 308.*]</p> <p>2. Corporations (§ 298*)—Meetings of Directors and Committees—Notice.</p> <p>In the absence of any statute, by-law, or practice of a corporation fixing the time or method of calling meetings of the executive committee or board of directors, a reasonable notice is necessary to the validity of such meetings; and two members of an executive committee calling at the office of the third and stating that there would be a meeting of the committee, and calling it to order at once, does not constitute such notice, unless there was some emergency which justified such action.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1296-1299; Dec. Dig. § 298.*]</p> <p>3. Corporations (§ 299*)—Management by Officers—Powers of Executive</p> <p>Committee—Construction of By-Law—“Full Powers.”</p> <p>The Canadian joint-stock companies act provides that the affairs of a corporation shall be managed by a board of directors, who, in the absence of other provisions in a special act or in by-laws, shall elect the president. It also provides for by-laws regulating the number of directors, etc., and the appointment, functions, duties, and removal of all agents, officers, and servants, and their remuneration. The charter of a corporation organized thereunder provided for the appointment by the directors from among their number of an executive committee with such powers as the by-laws should define, and a by-law provided that the directors should annually appoint from their number two directors, “who with the president shall form an executive committee, and said committee shall have full powers of the board of directors when said board is not in session.” Held, that such “full powers” were limited to the conducting of the ordinary business operations of the corporation and did not include the general powers of the board of directors under the statute to amend the by-laws, change the number of members of the committee, remove a member by a majority vote, or to appoint or remove officers and fix their salaries.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1333; Dec. Dig. § 299.*]</p> <p>4. Corporations (§ 298*) —Meetings of Directors—Sufficiency of Notice.</p> <p>Notice of a meeting of the directors of a corporation, which was held on the next day after the notice was served, at a place 24 hours distant by rail from the place of service on a director, held insufficient, and the action at such meeting inimical to the interests of such director, who was a large stockholder, illegal and not binding.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1296-1299; Dec. Dig. § 298.*]</p> <p>5. Corporations (§ 308*)— Compensation of Officers—Mode of Fixing.</p> <p>A corporation authorized by statute to adopt by-laws fixing the compensation of its officers cannot fix such compensation by a mere resolution of its directors.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1338; Dec. Dig. § 308.*]</p>

<p>1. Evidence (§ 129*)—Competency—Quality of Manufactured Product-Product Made Under Similar Conditions.</p> <p>In a" proceeding by the United States under Rev. St. § 3455 (U. S. Comp. St. 1901, p. 2279), for the forfeiture of whisky contained in the distiller’s original barrels, but alleged to be other than that contained in such barrels when they were branded and marked by the gauger, it was competent for the government to introduce in evidence tabulated analyses of samples of the whisky in such barrels showing the per cent, of its congeneric properties and for comparison similar analyses of whisky taken from a large number of barrels produced by the same distillery under the same .process, out of material in the same proportions and of substantially the same grade, placed in barrels of the same character of wood, treated in the same manner, and stored in the same warehouse- under practically the same conditions as to moisture and temperature, much of such whisky having been made in the same year, some in different years and a portion on the same day as some of the seized whisky, and the testimony being given by expert chemists who made the analyses.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 129.*]</p> <p>2. Evidence (§ 76*)—Sufficiency—Presumption from Failure to Produce Evidence.</p> <p>The silence of a party as to a matter of which he has knowledge cannot authorize a finding against him on an issue upon which the other party has the burden *>f proof, where there is a total lack of affirmative proof.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. § 76.*]</p> <p>3. Evidence (§ 67*)—Presumptions—Existence of Condition Prior to Time Shown.</p> <p>While a given condition, shown to exist at a given time, may be presumed to have continued, there is not, on the other hand, any presumption that it existed previous to the time shown.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 88; Dec. Dig. § 67.*]</p> <p>4. Internal Revenue (§ 46*)—Proceeding for Forfeiture—Receiving Substituted Stamped Packages.</p> <p>In a proceeding by the United States under Rev. St. § 3455 (U. S. Comp. St. 1901, p. 2279), for the forfeiture of. whisky contained in the original distiller’s barrels, but in which it is alleged that the whisky is other than that contained in the barrels when they were branded and marked by the gauger and that the claimants in whose possession the barrels were found received the same in such substituted condition with intent to defraud, the burden rests on the government to prove that they were in that condition when so received, and such fact cannot be inferred from the fact that they were in such condition when seized.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Dec. Dig. § 46.*]</p>

<p>1. Bankruptcy (§ 263*)—Sale of Assets—Purchase by Appraiser—Statutes.</p> <p>Neither an appraiser of a bankrupt nor his attorney for his benefit may purchase the bankrupt’s assets at a public sale thereof, both because by public policy he is as a matter of law incapable of purchasing and under Bankr. Act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]) § 70b, providing that all real and personal property belonging to bankrupts’ estates shall be appraised by three “disinterested” appraisers to be appointed by and to report to the court.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 366; Dec. Dig. § 263.*]</p> <p>2. Bankruptcy (§' 269*)—Invalid Sale—Vacation.</p> <p>Where, after an invalid sale of a bankrupt’s assets to an appraiser, the property was sold to a corporation in which the bankrupts’ wives and the appraiser had the controlling interests, the sale would be set aside and the trustee invested with the title to the business and stock on hand, though some of the stock had been sold in the usual course of business and new stock purchased to take its place; the purchasers being restored to their original situation as nearly as possible.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 370; Dec. Dig. § 269.*]</p> <p>3. Bankruptcy (§ 269*)—Sale of Assets—Intebes-t of Trustee—Evidence.</p> <p>Evidence held to warrant a finding that a bankrupt’s trustee had no individual interest in the sale of the bankrupt’s estate.</p> <p>[Ed. Note.—-For other oases, see Bankruptcy, Cent. Dig., § 370; Dec. Dig. § 269.*]</p> <p>4. Bankruptcy (§ 365*)—Trustee—Accounting.</p> <p>A bankrupt’s trustee was not bound to account for profits made by a corporation in which he was a stockholder on goods sold by the corporation to the receivers of the bankrupt’s estate, of which he was one, in the ordinary course of business and in good faith, with the approval of the co-receiver.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, -Cent. Dig. § 565; Dec. Dig. § 365.*]</p>

Petition by Wong You and others for a writ of habeas corpus. From orders of the District Court (176 Fed. 933) dismissing the writs and remanding petitioners, they appeal. Appeal from orders dismissing writs of habeas corpus and remanding the petitioners, Wong You, Wong Chun, I-Iom Ghee, Wong Yip, and Ju Fong.

Bill by the Wickwire Steel Company and others against the New York Central & Hudson River Railroad Company and others. From a decree for complainants, defendants appeal.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Arthur P. Heinze was convicted of endeavoring to impede the administration of justice, and he brings error.</p> <p>Writ of error to review a judgment convicting the plaintiff in error (hereinafter called the defendant) of a violation of section 5399 of the Revised Statutes (U. S. Comp. St. 1901, .p. 3656), which reads as follows:</p> <p>“Every person who corruptly, or by threats or force, endeavdrs to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both.”</p> <p>The indictment contains three counts, but the defendant was convicted upon the third count only. This count states, in substance, that there was pending before the grand jury of the Circuit Court for the Southern District of New York, at the May Term, 1909, an inquiry into charges against Fritz Augustus Heinze for a violation of the national banking act; that on May 21, 1909, a writ of subpoena was duly issued directed to Tracy S. Buckingham commanding him to appear before the grand jury on May 24, 1909, to testify in regard to said matter; that said writ was placed in the hands of a deputy marshal—Joseph J. Kumb—for service; that said Buckingham was then within the jurisdiction; and that the deputy marshal endeavored to serve the writ. The indictment then charges that the defendant, well knowing of the issuance of said writ, “unlawfully and corruptly did endeavor to impede the due administration of justice in the said court by then and there, and before the said Joseph J. Kumb had an opportunity to find and see the said Tracy S. Buckingham and serve the said writ upon him, knowingly, willfully, and corruptly advising and directing the said Tracy S. Buckingham to secure and conceal himself from and avoid the said Joseph J. Kumb and evade the service of the said writ upon him, and to depart from the said district in order to evade such service, all of which the said Tracy S. Buckingham, in pursuance of the said advice and direction of the said Arthur P. Heinze, immediately did—and by furnishing a sum of money, to wit, one hundred dollars, to the said Tracy S. Buckingham to assist and enable him to depart from the said district and go to the said foreign country.”</p> <p>The writ of subpoena which was duly introduced in evidence bore the following indorsement:</p> <p>“I hereby certify that the within subpoena was served as follows: John Williams P. S., after due and diligent search I have been unable’ to find Tracy S. Buckingham, Frederick Eckstein and Geo. Baglin in my District.</p> <p>“William Henkel, U. S. Marshal, S. T), N. Y.</p> <p>“May 21/09.”</p> <p>Other material facts are stated in the opinion.</p>

<p>1. Master and Servant (§ 182*)—Death oe Servant—Employer’s Liability Act—“ Superintendence.”</p> <p>The person in charge of a particular piece of work as a subforeman or pusher is a person engaged in superintendence within the New York employer’s liability act (Laws 1902, c. 600), making the master liable for injuries to servants caused by the negligence of a superintendent or a person exercising superintendence.</p> <p>[Ed. Note.—Por other cases, see Master and Servant, Cent. Dig. §§ 371, 372; Dec. Dig. § 182.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6791-6792.]</p> <p>2. Master and Servant (§ 286*)—Death of Servant—Negligence of Superintendent—Question for Jury.</p> <p>In an action for the death of a servant by being struck by a falling iron saucer used in the erection of bridge beams, whether the subforeman in charge of the work was negligent in pulling out the pin attached to the fall before the saucer had been taken off held for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dent. Dig. §§ 1032-1035; Dec. Dig. § 286.*]</p> <p>3. Courts (§ 366*)—Federal Courts — Rules of Decision — Decision of Highest State Court.</p> <p>Where the sufficiency of the notice of a servant’s injury served on the master depended on the construction to be given to the New York employer’s liability act (N. Y. Laws 1902, c. 600), pursuant to which the notice was served, that construction of the statute approved by the New York court of last resort would be followed in the federal courts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 954-968; Dec. Dig. § 366*</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>4. Master and Servant (§ 252*)—Employer’s Liability Act—Notice.</p> <p>New York Employer’s Liability Act (N. Y. Laws 1902, c. 600) § 2, provides that an action thereunder for injuries to a servant cannot be maintained unless notice of the time, place, and cause of the injury is given to the employer within'120 days. Held, that where a notice gave the time and place of decedent’s injury, and stated that the cause was his beiilg struck by a large piece of iron which fell on him from above the place where he was working while performing his duties pursuant to directions by reason of the negligence of the superinténdent or person acting as superintendent in failing to exercise reasonable care, diligence, and prudence in the premises, it was sufficient, though it also stated that the superintendent was negligent in furnishing deceased with an improper and unsafe appliance, tool, and instrument about his work, and directing the use of it, which assignment was thereafter abandoned.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. § 252.*]</p>

Action by the Warsaw-Wilkinson Company against the Exchange Mutual Fire Insurance Company. Judgment for plaintiff for want of a sufficient affidavit of defense, and defendant brings error.

<p>1. Courts (§ 279*)—Federal Courts—Jurisdiction—Record.</p> <p>Since federal courts exercise but a limited jurisdiction, conferred by the federal Constitution and laws; there is no presumption in favor of their jurisdiction which must affirmatively appear of record.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. *§§ 816, 817; Dec. Dig. § 279.*]</p> <p>2. Courts (§ 280*)—Federal Courts—Jurisdiction—Dismissal.</p> <p>It is the duty of a federal court to dismiss of its own motion, if jurisdiction does not affirmatively appear.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 816, 818; Dec. Dig. § 280.*]</p> <p>3. Appeal and Error (§ 1166*)—Federal Appellate Court—Want of Jurisdiction of Court Below—Reversal.</p> <p>Where, on appeal to a federal appellate court, jurisdiction of the court below does not affirmatively appear, it is incumbent on the court of its own motion to reverse, without reviewing the merits. „</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4527-4530; Dec. Dig. § 1166.»</p> <p>Jurisdiction of Circuit Court 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>4. Courts (§ 322*)—Federal Courts—Jurisdiction—Diversity of Citizenship-Domicile.</p> <p>Where, in an action in which federal jurisdiction depended solely on diversity of citizenship, there was nothing in the record to show that either plaintiff or defendant was a citizen of any state, but the complaint alleged that plaintiffs were residents and inhabitants of Kentucky, but did not state the residence of the defendants, and there was nothing to show the domicile of the parties, as distinguished from residence, jurisdiction was not shown.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 876-878; Dec. Dig. § 322.*]</p> <p>5. Courts (§ 356*)—•Reversaj>-Remand—Amendment.</p> <p>Where, on a writ of error, the record failed to show federal jurisdiction, necessitating a reversal, plaintiff, on remand, might be permitted in the trial court to amend, so as to correct the defect.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 356.*]</p> <p>6. Costs (§ 238*)—Costs on Appeal—Reversal—Jurisdictional Defect.</p> <p>Where the record on a writ of error failed to show federal jurisdiction, ■ necessitating a reversal, but defendants in error did not raise the jurisdictional question, either in the trial court or in the Circuit Court of Appeals, the judgment would be reversed without costs of the appeal, and in the absence of amendment in the Circuit Court the cause would be dismissed without costs in that court.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. § 912; Dec. Dig. § 238.*]</p>

In the matter of Ralph Straschnow and another, bankrupts. From an order confirming the report of a referee, directing the payment of dividends op the claim of Henry L,. Ketcham, assignee of Eli Bernays, William H. Roberts appeals. The bankrupts carried on business in New York City under the name of “International Electrical and Engineering Company” and said Bernays was the fatlier-in-law of the bankrupt Wiener.

<p>Patents (§ 328*)—Infringement—Spring Structures.</p> <p>The D’Arcy patent, No. 785,410, for an improvement in spring structures, claim 2, which covers ai wire clip for securing spiral springs to a wire frame in spring structures in upholstery constructions, consisting of a wire bent into a double loop with a central and two end arms, each of which is clamped around both the frame wire and spring, while valid, is not of a broad and primary character in view of the prior art, but for a secondary improvement only, and must be limited to the precise construction shown and described in the specification and drawings, with the respective functions of the arms and bases as therein shown, and to a correspondingly narrow range of equivalents. As so construed held not infringed.</p>

<p>1. Patents (§ 16*)—Invention—Enlargement of Use in Same Art.</p> <p>Photography and blue printing are simply different phases of the art of light printing, and the mere transfer of a device used in one to the other does not involve patentable invention.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 16.*]</p> <p>2. Patents (§ 328*)—Validity and Infringement—Blue Print Machine.</p> <p>The Pullman patent, No. 771,774, for an apparatus for copying drawings (a blue print machine), which consists of an upright glass cylinder around which are wrapped the drawing and sensitized paper, an arc light which is lowered into the cylinder by a clockwork mechanism and an automatic cut-off for extinguishing the light when it reaches the bottom was anticipated in the prior art in all respects except in the specific means shown for effecting the automatic cut-off. Claims 1, 2, 3, and 5, which claim such means broadly, are void for anticipation. Claim 4, which is limited to the particular means described in the specification, held valid, but not infringed.</p> <p>3. Patents (§ 11-2*)—Presumption in Favor of—When Not Indulged.</p> <p>The ordinary presumption in favor of a patent, because of the action of the Patent Office in allowing it, is not to be indulged, where controlling references were not cited or considered in that connection.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. § 112.*]</p> <p>4. Patents (§ 35*)—Recognition By the Public—Consideration to be Given to.</p> <p>The recognition of the patent by the public, as where it has- been bought up under the advice of counsel, instead of being contested, or where licenses have been taken out or infringement discontinued on the failure to negotiate for them satisfactorily, are matters which are entitled to consideration on the subject of invention, but are of no significance against an adverse showing.</p> <p>[Ed. Note.—For other cases, see Patents, Gent. Dig. § 39; Dec. Dig. § 35.*]</p> <p>5. Patents (§ 297*)—Interference Proceedings—Effect of on Subsequent Litigation.</p> <p>The result of interference proceedings is not conclusive of invention in a subsequent suit for infringement between the same parties. The only question there is one of priority, and while it is no doubt persuasive that in those proceedings invention was affirmed by one who subsequently denies it, it is not to be allowed to prevail over other considerations which control it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 486; Dec. Dig. § 297.*]</p> <p>6. Patents (§ 18*)—Invention—Contemporaneous Application by Several Parties for 'the Same Device.</p> <p>Semble, that, where several persons contemporaneously apply for patents for the same device, the fact that they caught the idea at the same time goes to show that it was simple and obvious, and that it did not require inventive genius to produce it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 18; Dec. Dig. § 18.*]</p>

<p>1. Patents (§ 328*)—Validity and Infringement—Drop for Electric Circuits.</p> <p>The Robins patent, No. 850,101, £or a drop for electric circuits, covers a new automatic plunger drop which was not anticipated, discloses patentable invention, and is not shown by the evidence to be invalid on the ground of prior public use for more than two years before the application therefore was filed. Also held infringed.</p> <p>2. Patents (§ 81*)—Prior Public Use—Evidence.</p> <p>The defendant in an infringement suit who attempts to defeat the patent by evidence of prior public use not only has the burden of proof, but must establish the fact by clear and satisfactory evidence beyond a reasonable doubt.</p> <p>[Ed. Note.—For other cases, see Patents, Cent Dig. $ 104; Dec. Dig. § 81.*</p> <p>Priority and continuance of public use of invention as affecting patentability, see note to Eastman v. City of New York, 69 C. C. A. 646.]</p> <p>8. Patents (§ 328*)—Infringement—Vault Lining.</p> <p>The Grass patent, No. 880,020, for a vault lining for use in connection with an electrical alarm circuit, construed, and held not infringed.</p> <p>4. Patents (§ 328*)—Infringement—Electric Time Alarm.</p> <p>The Robins and Jacoby patent, No. 771,748, for an electric time alarm consisting of a combination with a time mechanism of an electric alarm circuit connected therewith, held not infringed by a device using an entirely different mechanism in its circuit closer and its arrangement with respect to the mechanism of the clock by which it is actuated.</p> <p>5. Patents (§ 328*)—Validity and Infringement—Burglar Alarm.</p> <p>Tlie Robins and Jacoby patent, No. 771,749, for a burglar alarm, claims 3 and 6, for a combination of a time circuit closer and door bolt circuit closer and a gong circuit, are void for lack of invention, and the circuit-closing device shown in other claims must be limited to that described or its mechanical equivalent. As so construed, held not infringed.</p> <p>6. Patents (§ 327*)—Decisions—Previous Decisions as Controlling—Previous Adjudication of Validity of Patent.</p> <p>A decision of a Circuit Court sustaining the validity of a patent should be followed by another Circuit Court if the evidence in both cases is substantially the same.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. § 622; Dec. Dig. § 327.*]</p> <p>7. Patents (§ 328*)—Validity and Infringement—Burglar Alarm.</p> <p>The Robinson and Green patent, No. 708,496, for a burglar alarm, held not anticipated, valid, and infringed as to claims 1, 2, 3, 7, 8, and 10, but not infringed as to claims 9, 11, 12, and 13.</p> <p>8. Patents (§ 328*) — Validity and Infringement — Electric Burglar Alarm.</p> <p>The Coleman reissue patent, No. 11,626 (original No. 570,906), for an electric burglar alarm, claims 6 and 21, are void for lack of invention .in view of the prior art. Claims 18 and 20 are for a combination which was not anticipated and disclose invention and are entitled to a fairly broad construction. As so construed, held infringed.</p> <p>9. Patents (§ 138*)—Reissues—Validity.</p> <p>A reissue patent cannot be defeated by a patent to another issued before the reissue, but after the original patent on which it is based.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 202; Dec. Dig. § 138.*]</p> <p>10. Patents (§ 328*)—Infringement—Electrical Burglar Alarm.</p> <p>The Coleman patent, No. 626,670, for an electrical burglar alarm, in view of the prior art, must be limited to the specific mechanism therein described or its mechanical equivalent. As so limited, held not infringed.</p> <p>11. Patents (§ 328*)—Infringement—Electrical Burglar Alarm System.</p> <p>The Coleman patent, No. 627,054, for an electrical burglar alarm system, claim 17, limited as it must be to the means set forth in the patent for testing the alarm mechanism, or their equivalent, held not infringed.</p> <p>12. Patents (§ 328*)—Infringement—Electrical Burglar Alarm System.</p> <p>The Coleman patent, No. 632,513, for an electrical burglar alarm system, construed, and held not infringed.</p> <p>13. ' Patents (§ 328*)—Infringement—Burglar Alarm System.</p> <p>The Coleman patent, No. 667,115, for a burglar alarm system, claims 12, 13, 14, and 15, limited to the devices described, were not anticipated and are valid. Also held infringed.</p> <p>14. Patents (§ 287*)—Liability fob Infringement—Officers of Corporation.</p> <p>Directors of a corporation cannot be held individually liable for infringement of a patent by the corporation merely because they signed a paper agreeing to save harmless from infringement suits purchasers who had previously bought the infringing devices.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. $ 459; Dec. Dig. § 287.*]</p> <p>15. Patents (§ 325*)—Suit for Infringement—‘Costs.</p> <p>A complainant in an infringement suit who recovers only on a part of the claims of a patent sued on is not entitled to recover costs as to such patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 607; Dec. Dig. § 325.*]</p>

<p>In Equity. Suit by the American Bank Protection Company against the City National Bank of Johnson City, Tennessee.</p>

<p>In Equity. Suit by Frank J. Matchette against Streeter Bros., a corporation. On final hearing.</p>

<p>1. Patents (§ 328*)—Infringement—Acetylene Gas tanks—Contributory Infringement;</p> <p>The Claude & Hess patent, No. 664,383, for an acetylene gas tank, for use on automobiles, etc., covers as the patented package, not only the steel tank containing acetone, but the internal equipment of a supersaturated solution of acetylene gas, which is an essential part of the patented ’ device, and an unlicensed refilling of such tanks after the gas has been exhausted constitutes an infringement, and one who knowingly aids and abets such refilling is a contributory infringer.</p> <p>[Contributory infringement of patents, see notes to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 486; Æolian Co. v. Harry H. Juelg Co., 86 C. C. A. 206.]</p> <p>2. Patents (§§ 256, 259*) —Infringement — Violation of License Restrictions—Contributory Infringement.</p> <p>It is within the rights of the owner of a patent for an acetylene gas tank charged with gas for use on automobiles, which with normal use requires recharging after having been used a certain number of hours, by a notice attached to such tanks when sold to prohibit their use except when charged by the seller, and any one who with knowledge of such limited license recharges such tanks, which requires the practice of the invention of the patent, is an infringer of the patent, and one who with such knowledge sells an apparatus used and designed for recharging the same is chargeable as a contributory infringer.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 400-402; Dee. Dig. §§ 256, 259.*]</p> <p>3. Patents (§ 283*) —Infringement.</p> <p>The fact that the manufacturer of a patented device is unable to supply the demand therefor with promptness, and that users are subjected to inconvenience by reason of the delay, furnishes no legal excuse for infringement.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 448; Dec. Dig. § 283.*]</p>

<p>In Equity. Suit by John J. Dittgen against the Racine Paper Goods Company and O. L- Parmenter.</p>

<p>In Equity. Suit by Otis A. Mygatt against the M. Schaffer-Flaum Company. On motion for preliminary injunction on United States patent 821,306 and design patent 37,983 for prismatic reflectors.</p>

<p>At Law. Action by Mary R. Kavanagh, as administratrix, etc., against George W. Folsom, committee. Demurrer to complaint.</p>

On Application for Review of a Decision by the Board of United States General Appraisers, In the decision below the Board of General Appraisers overruled protests of Butler Bros, against the assessment of duty by the collector of customs at the port of Chicago on so-called shida baskets, which are composed of a vegetable fiber consisting of part of the primary axis growing above ground of a fern.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, G. A. 6,788 (T. D. 29,144), affirmed the assessment of duty by the collector of customs at the port of New York. This decision was rendered July 6, 1908, which was after Act May 27, 1908, c. 205, 35 Stat. 403, had been passed, section 2 of which, prescribed, as an amendment to Customs Administrative Act June 10, 1890, c. 407, § 15, 26 Stat. 131, that “The parties litigant shall hereafter be required to introduce all of their evidence before the said Board of General Appraisers prior to Its decision of the case.” On these proceedings for review of the board’s decision the importer took out an ex parte order for further testimony to be introduced in the Circuit Court, as provided in said section 15 of the amended customs administrative act. The government moved for the vacation of said order on the ground that the act of 1908 had repealed the provision for further evidence contained in said section 15. The importer contended that the act of 1908 was not intended to apply to cases which like the present had arisen prior to the passage of that act and in which the hearings before the Board of General Appraisers had been completed prior to such date, even though the Board’s decision was rendered after that date.</p>

At Law. Action by the Mitchell Coal & Coke Company against the Pennsylvania Railroad Company. On motions to amend plaintiff’s statement of claim and exceptions to referee’s report. Motions overruled and exceptions sustained in part.

In Admiralty. Suit by the English & American Shipping Company, Limited, as owner of the steamship Murcia, against the steamship Sif, Anton Hermandsen, claimant, and cross-libel by Hermandsen against the Murcia.

<p>In Admiralty. Suit by E. W. Simmons and others, composing'the officers and crews of the tugs Helen, Alice, and James Smith, Jr., against the steamship Jefferson.</p>

<p>1. Intoxicating Liquors (§ 122*)—Distillers—Branding of Spirits—Legality of Regulations.</p> <p>Circular No. 33, issued by the Commissioner of Internal Revenue May 10, 1910, instructing subordinates in his department that “all forms of distilled spirits from which the substances congeneric with ethyl alcohol have been removed for practical purposes altogether, and which have been heretofore marked as ‘pure, neutral, or cologne spirits,’ will be marked ‘alcohol,’ ” under which the marking of any distilled product as “spirits” has been discontinued, is in violation of Rov. St. § 3287 (U. S. Comp. St. 1901, p. 2130), which provides that “all distilled spirits shall be drawn from the receiving cisterns into casks or packages, * * * and the particular name of such distilled spirits as known to the trade, that is to say, high-wines, alcohol, or spirits, as the case may be, shall be marked or branded on the head of such cask or package”; it being shown that one distinct product of alcoholic distillation is known to the trade as “spirits,” while another product is known as “alcohol,” the distinction being so well known and established that their being so marked does not constitute a misbranding, and therefore the provision therefor-is not by implication repealed by Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909; p. 1187).</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. $ 122.*] .</p> <p>2. Injunction (§ 85.*)—Grounds of Relief—Irreparable Injury.</p> <p>A distiller is entitled to an injunction to restrain the enforcement by the Internal Revenue Bureau of an unauthorized order requiring a distilled product known to the trade as “spirits” to be branded as “alcohol,” which as known in the trade is an inferior and cheaper product.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]</p>

<p>.Bankruptcy (§ 60*) —“Act op- Bankruptcy”—Appointment op Receiver por Corporation.</p> <p>The appointment of a receiver for a corporation by a court of equity at suit of minority stockholders who alleged fraud and mismanagement by the majority and prayed for the appointment of a receiver pendente lite to conduct the business, but did not ask for a winding up of its affairs, held not to constitute an act of bankruptcy by the corporation within Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (U. S. Comp. St 1901, p. 3422), as amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1309) ; it not appearing that the appointment was made “because of insolvency.”</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 60.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.]</p>

<p>At Law. Action by the Richmond Cedar Works against William P. Buckner and others. On demurrer to complaint.</p>

<p>Proceeding by the United States against 1,950 Boxes of Macaroni, and four other cases; V. Viviano & Bros, and S. Viviano & Bros., claimants.</p>

<p>In the matter of Patrick Lennox and others, bankrupts. On petition for rehearing by alleged bankrupt.</p>

<p>In Equity. Suit by the United States against Charles Peter Johnson.</p>

<p>In Equity. Suit by the Park & Pollard Company against Ernest Kellerstrass and the Fidelity Printing Company. On motion for preliminary injunction.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Daniel C. Lewis against the New York Life Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

Suits in admiralty by the British & South American Steam Navigation Company, Limited, as owner of the steamship Hesperides, against the steamship Persian, and by the Miners’ & Merchants’ Transportation Company, as owner of the steamship Persian, against the steamship Hesperides. Cross-suits for collision. Decrees in favor of the Hesperides (159 Fed. 788), and the owner of the Persian appeals.

Ancillary bill filed by the T. A. Gillespie Company of New Jersey in a creditors’ suit against the Whitney Company and others. Decree for the Gillespie Company, from which the Bankers’ Trust Company of New York, trustee, appeals.

Action by C. H. Rexford against the Brunswick-Balke-Collender Company. Judgment for defendant, and plaintiff appeals. This action was brought originally in the superior court of Swain county, N. C., to the July term, 1908, of said court. Upon due proceedings had, the case was removed for trial to the Circuit Court of the United States for the Western District of North Carolina, at Asheville.

District of North Carolina, at Wilmington, in Bankruptcy. In the matter of John L. James, bankrupt. An application for discharge was contested by Stone & Co., creditors. Decree denying-discharge (175 Fed. 894), and the bankrupt appeals. This is an appeal from a judgment of the District Court of the United-States for the Eastern District of North Carolina, sitting as a court of bankruptcy.

Action by Charles C. Burlingham and others, as trustees in bankruptcy of T. A. McIntyre & Co., against Charles M. Crouse and the Equitable Life Assurance Society, to recover the proceeds of certain policies on the life of T. A. McIntyre.

Appeals from the District Court of the United States for the Southern District of New York. Libel by E. M. Herr and others, as receivers of the Westinghouse Electric Manufacturing Company, against the Tweedie Trading Company, and cross-libel by the Tweedie Trading Company against E. M. Herr and others, as receivers. From a decree in favor of the receivers and dismissing the cross-libel, the Tweedie Company appeals.

<p>Bonds (§ 128*)—Evidence (§ 460*)—Action for Breach—Identity of Contract Therein Referred to -Issues and Proof.</p> <p>In an action on a bond given by the lessee of a coal mine and conditioned for the performance of the lease therein referred to, defendants, who were the sureties, denied that the lease set up in the statement of claim was the one secured and attached to their affidavit of defense a copy of another which they alleged was the one secured. On the trial, plaintiff produced a lease which was not attached to the bond, but by its terms required a similar bond, and this was admitted in evidence over defendant’s objection. Held that, while such lease by reason of its conformity to the recitals in the bond may have been properly admitted as prima facie the one secured, it was not conclusive, and, its identity having been put in issue, defendants were entitled to show that another lease, unsigned, of even date, but differing materially in iis terms, was the one shown them by defendants previous to the execution of the bond, and that they signed the latter on plaintiff’s assurance that such lease was the one that had been signed; that the offer of such evidence was not an attempt to set up an equitable defense, nor to vary the contract by parol, but that it went directly to the issue as to the identity of the lease, which was an essential part of the contract sued on.</p> <p>[Ed. Note.—For other cases, see Bonds, Cent. Dig. §§ 205-217; Dec. Dig. § 128;* Evidence, Cent. Dig. § 2116: Dec. Dig. § 460.*]</p>

Suit in equity by the Wysong & Miles Company against D. S. Oakley, E. N. Jansen, and Norton E- Upson. Decree for defendants (169 Fed. 640), and complainant appeals.

<p>1. Patents (§ 297*)—Suit fob Infringement—Preliminary Injunction.</p> <p>While it is the general rule that a preliminary injunction will not be issued on an unadjudicated patent, there are exceptions, and such' an injunction may properly be granted where the validity of the patent is reasonably certain, infringement is clear, and the defendant corporation was organized to act as sales agent for the patented machine, and after selling its sales contract commenced making the infringing machines, which it marked as patented on the date of the patent in suit.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 481-488; Dec. Dig. § 297.*]</p> <p>2. Patents (§ 328*)—Validity and Infringement—Folding Typewriter.</p> <p>. The Rose patent, No. 754,242, for a folding typewriter, held valid and infringed, affirming an order granting a preliminary injunction.</p>

<p>1. Patents (§§ 172, 178, 328*)—Validity and Infringement — Electrical Distribution System fob Railways.</p> <p>The Schlesinger patent, No. 546,059, for a system of distribution of electricity for electric railways, claim 1, covers a combination which was not anticipated and discloses invention, and which was sufficiently shown in the application and drawings, although not appearing in any one of the original claims prior to their amendment. The character of the invention, also, as a new, meritorious, and highly successful combination in the electric railway art, entitles the claim to a somewhat liberal construction and range of equivalents. Also construed, and infringed.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 247, 254%; Dec. Dig. §§ 172, 178.*]</p> <p>2. Patents (§ 112*)—Validity—Abandonment of Application.</p> <p>The reinstatement of an application for a patent after several years, during which no action had been taken thereon, on a finding by the Patent (Mice that the delay was unavoidable within the meaning of Rev. St. § 4894 (U. S. Comp. St. 1901, p. 3384), is conclusive on the courts that the application was not abandoned.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 112.*]</p> <p>3. Patents (§ 87*)—Validity—A-bandonment of Invention.</p> <p>An abandonment of an invention after the filing of an application for a patent, upon which a patent was subsequently granted, must be established by clear proof showing an intention to abandon, especially where the invention is a meritorious and valuable one.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 112; Dec. Dig. I Sir-</p> <p>Abandonment of invention, see note to Hayes-Young Tie Plate Go. v. St, Louis Transit Co., 70 C. C. A. 6.]</p> <p>4. Patents (§ 83*)—Validity—Effect of Delay in Patent Office.</p> <p>A patent cannot be defeated or limited by intervening rights of third persons applying for and receiving patents between the filing of the application and the issuing of such patent, where there was no abandonment of either the application or invention, and no expansion of claims, merely because there was delay in prosecution of the claims, which was satisfactorily explained to the Patent Office.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. § 83.*]</p>

<p>In Equity. Suit by the Sarfert Company against Eranlc Chipman and others. On final hearing.</p>

<p>1. Patents’ (§ 327*) —Accounting fob Infringement—Evidence.</p> <p>A decree holding a patent valid necessarily determines that the invention covered thereby is both new and useful, and, on an accounting for infringement under such decree, evidence to show that -the patented feature of-the machine is of no utility is - incompetent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 620-625; Dec. Dig: § 327.*] '</p> <p>2. Patents (§ 318*)—Infringement—Profits Recoverable.</p> <p>Where the owner of a patent and the maker of an infringing machine were thb. only manufacturers having machines .of the kind in the market, no competing machine being then known, the infringer is accountable for the entire’profits made which must be attributed to the patented feature of the machine.</p> <p>[Ed. .Note.—For other cases, see Patents, Cent Dig. §’§ 566-576; Dec. Dig. §.-318.*' .,</p> <p>. Accounting, by infringer for profits, see note to-Brickill v. City of New York, 50 C. C. A. 8.]</p> <p>S. Patents (§ 318*)—Infringement—Accounting for Profits.</p> <p>The testimony of an oflicer of a defendant corporation on an accounting for profits made from the sale of an infringing machine that some of the accounts for machines sold were not collectible was not sufficient in itself to require the deduction of the profits on account of such sales; there being no testimony of attempts to collect nor offer to assign any part of the accounts to complainant.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p> <p>4. Patents (§ 318*)—Infringement—Damages Recoverable.</p> <p>Where, on an accounting for profits made by defendant from the sale of an infringing machine, the profits made on certain- sales made in direct competition with complainant were allowed, complainant was not entitled to also recover as damages the profits it weuld have made from the same sales on its own machines.</p> <p>[I?d. Note.—For other cases, see Patents, Cent Dig. §§ 566-576; Dec. Dig. § 318.*]</p>

<p>1. Patents (§ 327*)—Suit for Infringement—Effect of Prior Adjudications.</p> <p>Where the questions involved in determining the validity of a patent are fairly doubtful, the decision of one Circuit Court of Appeals sustaining the patent should be followed in- another circuit if the record is substantially the same, although a court would have no right to abdicate its own judgment. .</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 622; Dec. Dig. § 327 ;* Courts, Cent. Dig. § 328.]</p> <p>2. Patents (§ 328*)—Validity and Infringement — Tabulating Attachment for Typewriters.</p> <p>. The • Gathright patent, No. 436,916, for a tabulating attachment for typewriting machines, was not anticipated, and, while not for a pioneer invention, covers a primary improvement, and the claims are entitled to a liberal construction and a fairly broad range of equivalents. Claims 4 and 5 also held infringed.</p> <p>3. Patents (§ 328*)—Construction and Infringement—Tabulating At- ■ TACHMENT FOR TYPEWRITERS.</p> <p>The Gathright patent, No. 452,268, for a tabulating attachment for typewriting machines, which covers specific improvements on the patentee’s prior patent No. 436,916, construed, and held not infringed.</p>

<p>In Equity. Suit by the Underwood Typewriter Company against the Fox Typewriter Company, Limited, and the Graves Typewriter Company.</p>

<p>Patents (§ 326*)—Suit fob Infbingement—-Violation of Injunction—Contempt Pboceeding.</p> <p>Evidence heló, insufficient to warrant the punishment of a defendant for contempt for violation of an injunction against infringement of a patent, under the rule that the proof in such case should be very convincing.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 613, 618; Dec. Dig. § 326.*]</p>

<p>In Equity. Suit by Egbert H. Gold against Edward E. Gold and another. On demurrer to bill.</p>

<p>1. Public Lands (§ 120*)—Stone and Timber Entries—IPeaud—Evidence. Evidence held to require a finding that certain stone and timber entries were fraudulent, and not made for the sole benefit of the entrymen.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 120.*]</p> <p>2. Principal and Agent (§ 177*)—Notice to Agent as Notice to Principal.</p> <p>Where the agent of defendant S. had knowledge of the fraudulent acquisition of title to certain public timber land, and assisted the entrymen in procuring title from the government, intending thereafter to obtain the lands for S., and, this having been accomplished, S. organized a corporation which was a mere holding company formed by himself and other members of his family, to which the lands were conveyed in exchange for stock, neither S. nor the corporation could be regarded as bona fide purchasers without notice.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. § 177.*</p> <p>Bona fide purchasers, see note to United States v. Detroit Timber & Lumber Co., 67 C. C. A. 13.]</p> <p>S. Public Lands (§ 108*)—Fraud—Interior Department—Determination Before Patent—Effect.</p> <p>Where a decision of the Secretary of the Interior directing that certain fraudulent stone and timber claims be passed to patent was brought about by false and fraudulent proof and affidavits, such determination was mv bar to suit by the government to vacate the patents.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 304, 300" Dec. Dig. § .108.*]</p> <p>4. Public Lands (§ 120*)—Patent—Suit to Vacate—Parties.</p> <p>In general, the holder of the legal title to land is an indispensable party to a suit to set aside the patent.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 120.*]</p> <p>5. Limitation of Actions (§ 119*)'—Operation of Statute—Time.</p> <p>The statute of limitations does not cease to run in favor of the holder of the legal title to land as against a suit by the United States to set aside the patent until he is made a party to the suit and process issued and placed in the hands of the marshal with a bona fide intent that it be served.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Dec. Dig. § 119.*]</p> <p>6. Public Lands (§ 120*) —Fraudulent Entries — Suit to Vacate—Limitations.</p> <p>Under Act March 3, 1891, c. 559, 26 Stat. 1093 (ü. S. Comp. St. 1901, p. 1521), providing that suits by the United States to vacate patents to public lands shall only be brought within five years from the passage of the act, and suits to vacate and annul patents subsequently issued shall only be brought within six years after the date of the issuance of the patent, suits to vacate patents for fraud are barred after six years from the datf of the patent, and not from the date of the discovery of the fraud.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 120.*]</p> <p>7. Public Lands (§ 120*)—Fraudulent Entry—Vacation of Patent—Limitations—Parties. • ■</p> <p>Certain public timber land having been fraudulently entered and patents having been issued, the land was conveyed to S. or for his benefit, and he organized a corporation, he and members of his family owning all of the stock. To this corporation the land was'thereafter conveyed. Within six years from the date of the patent, suits were brought by the United States against S. and others to set aside the patents as to most of the land, but the corporation was not joined until after the six-year period had expired. Held, that the corporation tinder such circumstances was not a bona fide ’purchaser; and that neither it nor S. was entitled to claim that the suits were barred by reason of the corporation’s nonjoinder until after the time had expired.</p> <p>[Ed.. Note.—For other cases, see Public Lands, Dec. Dig. § 120.*]</p>

<p>Action by William S. Lovell, trustee in bankruptcy of Knight, Yancey & Co., against H. Ilentz & Co. and others. On motion of plaintiff for peremptory instructions.</p>

<p>1. Druggists (§ 2*)—Pure Food and Drug Act—Offenses.</p> <p>Pure Food and Drug Act (Act Cong. June 30, 1908, c. 3915, 84 Stat. 78,8 [U. S. Comp. St. Supp. 1909, p. 1188]) § 2, provides that the introduction into any state from any other state of any drug which is adulterated or misbranded is prohibited, and any person who shall ship or receive and, having so received, shall deliver, or offer to deliver, in original unbroken packages, for pay or otherwise, to any other person, any such article so adulterated or misbranded, shall be guilty of a misdemeanor. Held, that the mere receipt of an adulterated or misbranded drug did not constitute an offense, where claimants had not delivered, or offered to deliver, the drug in unbroken packages; claimants having retained the packages in their possession, opened and tested them, and caused the standard of strength, quality, and purity to be plainly stamped on the containers prior to seizure.</p> <p>[Ed. Note.—For other cases, see Druggists, Dec. Dig. § 2.*]</p> <p>2. Druggists (§ 11*) —Pure Food and Drug Act —Construction — Forfeiture.</p> <p>Pure Food and Drug Act, § 2, makes it a misdemeanor for any .person having received adulterated or misbranded drugs from another state to ship the same from one state to another or to deliver the same in unbroken packages for pay or otherwise, or offer to deliver the same to another person so adulterated or misbranded, and section 10 declares that such articles shall be liable to seizure and forfeiture when in the course of being transported from state to state, or when having been transported they remain unloaded, or unsold, or in the original packages. Held, that such sections were independent of each other, and hence it is not essential to the forfeiture of adulterated or misbranded drugs, under section 10, that the owner shall have been guilty of violating section 2.</p> <p>[Ed. Note.—For other cases, see Druggists, Dec. Dig. § 11.*]</p> <p>3. Commerce (§ 41*)—Interstate Commerce—Regulation—Original Packages.</p> <p>Pure Food and Drug Act, § 10, provides that any drug that is adulterated or misbranded Within the meaning of the act, and is being transported from one state to another for sale, or having been transported remains unloaded, or unsold, or in the original packages, shall be subject to forfeiture. Held, that where, after an adulterated or misbranded drug had been transported in interstate commerce and received by the consignee who was the owner, the packages were opened and samples taken that the strength, quality, and purity might be tested, such sampling'did not constitute a breaking of the original packages. . '</p> <p>[Ed. Note.—For other cases, see Commerce, Dec. Dig. § 41.*]</p> <p>4. Druggists (§ 11*)—Pure Food and Drug Act—Forfeitures—“Adulterated.”</p> <p>Pure Food and Drug Act, § 7, provides that drugs shall be deemed adulterated when they differ from the standard of strength, quality, or purity as determined by the test prescribed in the United States Pharmacopoeia or National Formulary official at the time. of investigation, and that no drug shall be deemed adulterated if the standard of strength, quality, or purity be plainly stated on the container, although the standard may differ from the test. Section 10 declares that any. drug that is adulterated or misbranded and is being transported from one state to another for sale, or having been transported remains unsold, or in the original or unbroken packages, shall be liable to condemnation in any District Court of the United States and condemned. Held, that a drug is not adulterated or misbranded so as to be Subject to condemnation unless adulterated or misbranded at the time of seizure, and hence, where a safretida below the prescribed test and misbranded was received by claimants in interstate commerce and tested and correctly branded before seizure, it was not subject to forfeiture.</p> <p>[Ed. Note.—For other eases, see Druggists, Dec. Dig. §’ 11.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 210-212.]</p>

<p>Libel by the United States for the condemnation of nine boxes of asafcetida.</p>

In Admiralty. Suit by Charles Walker, on behalf of the steam tug Enterprise and her master and crew, against the steam tug Richmond, for salvage.

<p>1. Street Railroads (§ 54*)—Mortgages — Construction — Property Included.</p> <p>A clause in a mortgage given by a street railroad company operating an extensive system acquired largely by leases from various other companies, by which the mortgage is made to include all the railroads, contracts, and leaseholds then owned by the mortgagor, is sufficiently broad to cover an indebtedness due from a constituent company, or lessor, to the mortgagor arising under the terms of the lease, for betterments made by the mortgagor on the leased property.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 54.*]</p> <p>2. Street Railroads (§ 54*)—Mortgages — Construction—After-Acquired Property Clause.</p> <p>The after-acquired property clause of a street railroad mortgage construed with respect to the property subsequently coming within the mortgage thereunder.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 54.*]'</p>

<p>In Equity. Suit by the Brooklyn Daily Eagle against Edward W. Voorhies, as Postmaster of the United States Post Office in the Borough of Brooklyn, City of New York.</p>

In the matter of William A. French, bankrupt. On petition to review a referee’s order disallowing claims presented by the Marble-head National Bank and the Marblehead Savings Bank, and on petition by the same creditors that provision be made for distribution on their claims before confirmation of an offer in contribution by the bankrupt.

<p>1. Food (§ 7*)—Food and Drugs Act—'“Misbranding”—“Spring Water.”</p> <p>Ordinary Croton water drawn from the pipes in New York City filtered and bottled after the addition of small quantities of mineral salts and carbonic acid gas, is not “spring water,” as the term is generally understood, and the labeling of the bottles as spring water constitutes a misbranding within the meaning of the food and drugs act (Act June 80, 1906, c. 8915, § 8, 81 Stat. 771 [U. S. Comp. St. Supp. 1909, p. 1191]).</p> <p>[Ed. Note.—For other cases, see E'ood, Dec. Dig. § 7.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6617.]</p> <p>2. Criminal Law (§ 37*)—Violation of Food, and Drugs Act—Entrapment.</p> <p>The fact alone that the only interstate shipment shown of a misbranded food article by the manufacturer was secretly induced by an agent of the Department of Agriculture is not a defense to a prosecution therefor under the food and drugs act (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]), the reasons for the action of such agent not appearing.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 37.*]</p> <p>3. Food (§ 20*)—Food and Drugs Act—Prosecution for Violation—Conditions Precedent.</p> <p>Although an indictment under the food and drugs act (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]) for adulteration or misbranding is not demurrable because it contains no allegation of notice from the Department of Agriculture to the defendant of the result of the examination of the article, and that he was, given an opportunity to be heard, as required by section 4 of the act, since such prosecutions may be maintained by the district attorney under section 5 without the intervention of the department, such allegations and proof are necessary in all cases where the prosecution is instigated by officers or agents of the department; and, if it appears on the trial that the case is such, there can be no conviction in the absence of such allegation and proof.</p> <p>[Ed. Note.—For other cases, see «Food, Dec. Dig. § 20.*)</p>

<p>In the matter of bankruptcy proceedings of Meyer H. and Edward I. Margolis.</p>

<p>Street Railroads (§ 52*)—Bonds—Payment or Purchase.</p> <p>Defendant railway company in 1872 issued a block of bonds payable in 30 years, and before maturity leased all its franchise property to another railway company, which subsequently became consolidated with the M. Company. In March, 1902, the M. Company executed a mortgage on all its property owned and leased to secure refunding bonds to replace bonds, including those in question, which were called “collateral bonds.” The mortgage provided that after the maturity of any of the outstanding old bonds or collateral bonds, or within 12 months before such maturity, the railway company might sell refunding bonds in order to provide means to “purchase or pay” such outstanding old bonds or “to purchase” such collateral bonds as shall not have been delivered to the trustee and held by it under the mortgage and which have matured or are about to mature within 12 months, and that the trustee shall deliver to the railway company refunding bonds to the face amount of such outstanding old bonds or collateral bonds which have matured or are about to mature, provided that the par value of the refunding bonds so certified and delivered shall simultaneously be deposited in cash with the trustee in exchange therefor, and out of the cash so received by the trustee it shall on demand of the railway company and on delivery to the trustee of the outstanding old bonds or collateral bonds so paid or purchased by the railway company pay to the railway company a sum equal to the par value of the bonds so paid or purchased. Before the maturity of the collateral bonds, the directors of the M. Oompany requested the trustee to certify and deliver new refunding fionds to an amount equal to such 30-year collateral bonds outstanding on deposit with the trustee of an amount equal to the face of such refunding bonds in cash in exchange therefor, and directed the trustee on such deposit to pay $1,000 of the deposit for every $1,000 of the collateral bonds of the lessor company delivered to the trustee under the mortgage. Held, that as to the collateral bonds the refunding mortgage contemplated a purchase only, and not a payment of the bonds, so that a payment by the trustee out of the amount so deposited to the holders of the collateral bonds constituted a purchase thereof and not a payment and satisfaction of the bonds for the benefit of the lessor railway company.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 52.*]</p>

Actions against the United States by Thomas S. Coleman, by A. J. Dunn and J. N. Coleman, and by Martha C. Truss. Heard together. Judgment for the plaintiff Thomas S. Coleman, and for defendant in the other two actions.

<p>1. Collision (§ 77*)—Fault—Absence of Lookout.</p> <p>The absence of a lookout on a vessel stationed where he should he will not render such vessel in fault for a collision, where she was navigated exactly as she should have been had there been a lookout reporting the.situation.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 140-149; Dee. Dig. § 77.*]</p> <p>2. Collision (§ 61*)—Tug and Tow Meeting Schooner—Negligence of Tug.</p> <p>A collision between a schooner passing up the Main Ship Channel into lower New York Bay, at night, before the wind, but against an ebb tide at a speed of not more than 1% knots and the tow of a meeting tug on a hawser 1,200 feet long, held due solely to the fault of the tug in failing to keep further toward the west side of the channel in view of her duty as the burdened vessel to keep out of the way and the length of her hawser, which by the set of the tide would cause her tow to sag to the eastward of her own course.</p> <p>[Ed. Note.—For other eases, see Collision, Cent. Dig. § 78; Dec. Dig. § 61.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 O. O. A. 581.]</p> <p>3. Collision (§ 114*)—Liability to Cargo Owner.</p> <p>The owner of the cargo of a vessel sunk In collision which occurred through the sole fault of the other vessel is entitled to recover his damages against the vessel so in fault.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 243; Dec. Dig. § 114.*]</p>

<p>1. Navigable Waters (§ 24*) —Obstruction by Wreck—Liability of Owner for Failure to Mark Wreck—Abandonment.</p> <p>Under Act March 3, 1899, e. 425, §§ 15, 19, 30 Stat. 1152, 1154 (U. S. Oomp. St. 1901, pp. 3543, 3546), which provide that whenever any vessel or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and maintain such marks until it is removed or abandoned, and to at once commence the removal of the same, and that if not removed within 30 days, or if sooner abandoned, it may be broken up or removed by the Secretary of War, the neglect to mark a sunken craft as required is not a prima facie abandonment, nor is the failure to remove it an abandonment until the expiration of 30 days, and during all of such time it is the duty of the owner to keep the place marked, and if he does not he is liable for injuries caused to others thereby, unless there has been an actual abandonment.</p> <p>[Ed. Note.—For other cases, see Navigable Waters, Cent. Dig. § 66; Dec. Dig. § 24.*]</p> <p>2. Navigable Waters (§ 24*) —- Obstruction by Wreck — Liability for In-</p> <p>jury Caused to Other Vessels—“Owner.”</p> <p>Respondent, a coal company, having in its possession as bailee a coal flat partly loaded with coal, moored to its float in the Allegheny river in Pittsburg, cast it loose during a flood, and it sank some distance below. The place was not marked, and some three weeks later libelant’s vessel ran into it and was injured. Held, that respondent was the “owner,” within the meaning of Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (U. S. Comp. St. 1901, p. 3543), and required by such act to mark the place until the flat was removed or abandoned, and, it appearing that there had been no abandonment, that respondent was liable to libelant for the injury to its vessel.</p> <p>[Ed. Note.—For other cases, see Navigable Waters, Cent. Dig. § 66; Dec. Dig. § 24.* ,</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5134r-5151; vol. 8, p. 7744].</p>

<p>Suit by Frank Bond against the United States of America, as trustee for the heirs of John Calipooia, alias Calapooya Jack, deceased.</p>

<p>In the matter of Elbridge L. Sweetser, bankrupt. On petition for revision by Warren O. Kyle and W. B. H. Dowse. Order directed in accordance with opinion of District Court.</p>

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

<p>Four actions by the United States against the St. Joseph Stockyards Company.</p>

<p>1. Insurance (§ 580*)—Insurance Agents—Advance of Premiums—Lien on , Proceeds of Insurance.</p> <p>A fire insurance agent, who made advances for an insured of premiums on policies which nave expired, in the absence of a definite contract therefor, has no equitable lien for such advances on the proceeds of a subsequent policy on the property which was in force at the time of a loss.</p> <p>[Ed: Note.—Eor other cases, see Insurance, Dec. Dig. § 580.*]</p> <p>2. Insurance (§' 580*)—Insurance Agents—Advance of Premiums—Lien.</p> <p>A provision of a mortgage on real estate that, If the mortgagor does not keep the property insured, the mortgagee may do so and add the amount of the premiums paid to the mortgage debt does not inure to the benefit of an insurance agent who advances such premiums for ttie mortgagor.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 580.*]</p>

<p>1. Food (§ 24*)—Food and Drugs Act—Proceeding for Violation.</p> <p>When proceedings for violation of Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), by adulteration or misbranding, are instituted at the instance of the Department of Agriculture, whether such proceedings are in personam or for a forfeiture of goods under «section 10, It would seem that the notice of examination and opportunity to be heard provided for by section 4 are necessary conditions precedent and must be alleged and proved; but under section 5 a district attorney may institute such a proceeding upon complaint of any state health officer or any adequate proof without the action of the agents of the department.</p> <p>[Ed. Note.—For other cases, see Food, Dec. Dig. § 24.*]</p> <p>2. Commerce (§ 33*)—Interstate Commerce—Power of Congress to Regu-</p> <p>late—Food and Drugs Act.</p> <p>Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), is within the constitutional power of Congress to regulate interstate commerce.</p> <p>[Ed. Note.—For other cases, see Commerce, Dec. Dig. § 33.*]</p>

<p>In Equity. Complaint by the Portland Railway, Light & Power-Company against the City of Portland and others.</p>

<p>Action by the United States against Nicholas Psaki and others. On demurrer to complaint.</p>

<p>1. Corporations (§ 559*)—Receivers—Appointment—Effect.</p> <p>Though the appointment of a receiver for a corporation does not ordinarily dissolve it, it does deprive the corporation of the right to exercise its corporate powers in any manner inconsistent with the decree and deprives the corporation’s officers of the power to bind it or its assets by contract.</p> <p>[Ed. Note.—For other cases,! see Corporations, Cent. Dig. §§ 2243, 2244 Dec. Dig. § 559.*]</p> <p>2. Receivers (§ 154*)—Counsel Fees—-Payment.</p> <p>Where, after the -appointment of a receiver for a corporation, its officers employed petitioners to represent the corporation in the litigation- and to resist the court’s action, and petitioners performed no service that increased or protected the fund or that brought the fund into court, they were not entitled to payment of their fees by the receiver out of the-fund.</p> <p>[Ed. Note.—For other eases, see Receivers, Dec. Dig. § 154.*]</p>

<p>Receivers (§ 154*)—Fees of Counsel—-Charge on Fund.</p> <p>A solicitor, employed by complainant in a suit to wind up the affairs of a building and loan association, after the original bill had been filed and a receiver had been appointed, and who performed no service at the instance of the complainant that increased or protected the fund, or in any way benefited the creditors or stockholders of the corporation, -was not entitled to payment of his fees by the receiver out of the fund.</p> <p>[Ed. Note.—For other cases, see Receivers, Dec. Dig. § 154.*]</p>

<p>Bankruptcy (§ 117*)—Acts of Bankrupt—Contempt.</p> <p>It was a contempt of court for the bankrupt, after the filing of the bankruptcy petition and service of the subpcena, to deliver property in his possession to a third person on the claim that the latter was the owner and that the bankrupt was only a bailee; such alleged owner’s remedy being by application to the bankruptcy court for surrender of the property by the receiver or trustee.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Dec. Dig. § 117.*]</p>

<p>1. Bankruptcy (§ 165*)—Validity of Liens—Collateral Security Pledged Generally for Indebtedness.</p> <p>A note given by a corporation more than four months before its bankruptcy, reciting that the maker had deposited “as collateral security for said sum, or for any other liability or liabilities of ours to the holder hereof, now due or to become due,” certain property, including assigned accounts, held to entitle the bank to hold such accounts as security for a prior note given to it by the bankrupt and then unpaid; the good faith of the transaction being unquestioned.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 165.*]</p> <p>2. Bankruptcy (§ 165*)—“Voidable Preference”—Substitution of Securities.</p> <p>The assignment by a corporation within four months prior to its bankruptcy of accounts receivable to a bank to secure a prior indebtedness did not constitute a voidable preference under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), although the corporation was known to be insolvent, where such accounts were merely substituted for other valid accounts held by the bank, which had been paid, for the purpose of keeping the security good.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 165.*]</p>

<p>1. Collision (§ 39*)—Steam Vessels, Meeting—Fault.</p> <p>A collision on the Hudson river between the steamer Volund, passing up, and the steam yacht Normandie, passing down, held, in accordance with the finding of the commissioner, confirmed by the District Court, due solely to the fault of the steamer (1) in attempting to pass to the left under a two-blast signal without having obtained the assent of the yacht, (2) in not keeping to her own starboard side of the channel, (3) in not sounding alarm signals, but keeping on at full speed and repeating her two blasts when her first signal was not answered, (4) in crossing the one-blast signal of the yacht, (5) in not stopping and reversing when danger of collision should have been obvious, and (6) in not maintaining a competent and sufficient lookout.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §' 39; Dec. Dig. § 39.»</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>2. Collision (§ 115*)—Time Charter—Liability for Collision.</p> <p>A time charter by which the owner is to provide and pay the master and crew, although providing that the master shall be under the orders of the charterer as regards “employment, agency and other arrangements,” does not amount to a demise of the vessel, but leaves the owner responsible for her navigation. Nór is the charterer liable for a collision for which the vessel was in fault because she was at the time being navigated by a supercargo employed by the charterer as provided by the charter party who was acting as pilot with the consent of the master.</p> <p>[Ed. Note.—For other cases, see Collision, Dec. Dig. § 115.*]</p> <p>3. Death (§ 99*)—Excessive Award.</p> <p>An award of $12,000 for the death of an engineer 31 years old, in good health and of good habits, who was earning from $1,300 to $1,500 a year and left a wife and child, held not excessive.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p> <p>4. Collision (§ 154*)—Costs—Premium Paid for Stipulation for Costs.</p> <p>On recovery for collision, it is proper to allow the libelant as a part of ' his costs the premiums paid to a surety company for furnishing his stipulation for costs.</p> <p>[Ed. Note.—For other cases, see Collision, Dec. Dig. § 154.*]</p>

<p>1. Bankruptcy (§ 318*)—Provable Debts—Rent Accruing After Bankruptcy—“Fixed Liability.”</p> <p>The consideration for rent is the use of the land, and a covenant to pay rent creates no debt until the time stipulated for the payment arrives, and therefore rent accruing under a lease after the filing of a petition in bankruptcy against the lessee is not provable against his estate ■ as “a ‘fixed liability’ * * * absolutely owing at the time of the filing of the petition,” within the meaning of Bankruptcy Act July 1, 1898, c. 541, § 63a (1), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447); both its existence and amount being at that time contingent upon uncertain events. [Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 318.*]</p> <p>2. Bankruptcy (§ 255*)—Effect on Lease—IPutube Installments of Rent.</p> <p>The bankruptcy of a lessee does not sever the relation of landlord and tenant, and the tenant’s obligation to pay rent under his lease is not discharged as to the future, unless the trustee elects to retain the lease as an asset.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 255.*]</p> <p>3. Bankruptcy (§ 318*) — Provable Debts — Covenant for Indemnity Against Loss of Rent.</p> <p>A provision in a lease that in case the lessees should be declared bankrupt the lease should terminate, and the lessor should have the right to re-enter, and that in such case the lessees should indemnify the lessor for any loss of rents during the remainder of the term, paying the same monthly as upon rent days, does not create “a fixed liability * * * absolutely owing at the time of the filing of the petition” against thé lessees, within the meaning of Bankruptcy Act July 1, 1898, c. 541, § 63a (1), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), which can be proved as a claim against their estate; but the liability is altogether contingent, because bf the uncertainty as to whether the lessor will re-enter and terminate the lease, and, if he does, whether there will be any loss, and its amount; nor is such claim provable as “a debt founded upon an express contract," under section 63a (4), which must be read in connection with, and as limited by, subdivision 1, and cannot be construed as permitting the proof of claims which are contingent both as to liability and amount at the time of the filing of the petition.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 318.*]</p> <p>4. Landlord and Tenant (§ 181*)—“Rent.”</p> <p>“Rent” is a sum stipulated to be paid for the use and enjoyment of land.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 730; Dec. Dig. § 181.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6087-6091.]</p>

In the matter of bankruptcy proceedings against Otho L,. Hays. On petition of Carrie E. Hays to review an order awarding her dower in the surplus of the proceeds of mortgaged premises.

<p>1. Estoppel (§ 63*)—National Banks—Subscriptions to Stock—Liability of Stockholders.</p> <p>Officers of a national bank may not hold themselves out to the Comptroller of the Currency, the bank examiners, and the business public as original subscribers for and holders of its capital stock, which they have never paid for, and yet escape liability on obligations given for such stock by a secret agreement among them that the stock shall be considered as belonging to the bank, and not to the one to whom it is issued.</p> <p>[Ed. Note.—For other eases, see Estoppel, Dec. Dig. § 63.*]</p> <p>2. Bills and Notes (§§ 4!>, 537*)—Accommodation Notes—Liability to Bank as Indorsee.</p> <p>A national bank desired to increase its capital stock, and, having failed to sell the entire issue, which was necessary before it could do business on the increased capital, in accordance with an agreement between the officers, a third person gave his note for the price of the remaining shares to one of the directors, who indorsed and delivered the same to the bank; the shares being issued in bis name. The maker having become insolvent, defendant was induced by such director to execute his accommodation note to the director’s uncle, who indorsed it, and it was substituted for that of the first maker. Tjie notes were carried and reported as assets of the bank until its failure; but neither maker paid any interest, the dividends on the stock being applied thereon. The cashier gave defendant a letter assuring him that he would not be held liable on his note. Held, in an action by the receiver on a renewal of defendant’s note, that such note was collectible, if given for the accommodation of the director and his associates, and not of the bank, and that such question was one of fact for the jury, under the evidence.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 66, 1862; Dec. Dig. §§ 49, 537.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by the Denver Engineering Works Company against John P. Elkin and T. L. Eyre. Judgment for plaintiff (179 Fed. 922), and defendants bring error.</p>

<p>Railroads (§ 350*)—Action for Injury at Crossing—Questions for Jury.</p> <p>In an action against a railroad company to recover for an injury to plaintiff at a crossing, where there was substantial evidence in favor of plaintiff on the issues of defendant’s negligence and plaintiff’s contributory negligence, the court properly submitted such issues to the jury.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p>

<p>Appeal from the Circuit Court of the United States for the Middle District of Pennsylvania.</p> <p>Suit in equity by the Pioneer Lace Manufacturing Company against John A. Dodd. From order granting a preliminary injunction, defendant appeals.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Middle District of Pennsylvania.</p> <p>In the matter of F. P. Lesaius, bankrupt. On petition to revise order of District Court; Henry Goodman, as trustee, being respondent</p>

<p>Patents (§ 328*)—Infringement—Vault-Light Construction.</p> <p>The Caldwell patents, No. 741,010 and No. 760,728, each for improvements in vault-light construction, as limited by the prior art, held not infringed.</p>

<p>1. Patents (§ 18*)—Invention.</p> <p>A change produced in a process or combination is not to be rejected as obvious or wanting in inventive thought because it tends to simplicity of action, but the simplifying of a device or process may in itself amount to invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 18; Dec. Dig. § 18.*]</p> <p>2. Patents (§ 230*) — Infringement — Improvement Patents — Doctrine of Equivalents.</p> <p>Secondary or improvement patents, equally with those of a primary character, are entitled to be protected against infringement from equivalents to the full extent that a fair and reasonable construction of their claims will warrant.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 367; Dec. Dig. § 230.*]</p> <p>3. Patents (§ 26*)—Invention—New Combination of Old Elements.</p> <p>If a new combination and arrangement of known elements produces a new and beneficial result never attained before, it is evidence of invention, and such result need not be new and useful in a primary sense, but only approximately so.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. §26.*</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]</p> <p>4. Patents (§ 328*)—Validity and Infringement—Process of Putting Metal Facing on Wood.</p> <p>The Beryle patent, No. 887,995, for a method of casing wooden mould- ' ings, etc., while for an improvement on the prior art, was not anticipated, and discloses invention, and is of such merit as to entitle it to a construction sufficiently broad to give it protection against a method using palpable equivalents. Also, held infringed.</p>

<p>In Equity. Suit by John M. Conroy against the Penn Electrical & Manufacturing Company. On final hearing.</p>

<p>1. Courts (§ 272*)—Federal Courts—Jurisdiction—Action Based, on Federal Statute—Employer’s Liability Act.</p> <p>Where after suit brought March 5, 1910, in the federal Circuit Court, sitting in Pennsylvania, by a citizen of Pennsylvania against a Maryland corporation, to recover damages for injuries resulting from defendant’s negligence, in which federal jurisdiction rested exclusively on diverse citizenship, plaintiff so amended his original statement aa to allege a cause of action for injuries to a servant while engaged in interstate commerce, under the federal employer’s liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), so that jurisdiction did not depend solely on diversity of citizenship, the court was thereby deprived of jurisdiction; the suit not having been brought in the district of defendant’s residence.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 272.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249, Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Courts (§ 256*)—Federal Courts—Jurisdiction—Statutes.</p> <p>Act Cong. April 5, 1910, c. 143, 36 Stat. 291, amending the employer’s liability act (Act April 22, 1908, c. 149, § 6, 35 Stat. 66 [U. S. Comp. St Supp. 1909, p. 1173]), providing that actions may be brought thereunder in the Circuit Court of the United States in the district of the residence of the defendant, or in that in which the cause of action arose, or in which defendant shall be doing business at the time of the commencement of the action, has no application to suits brought prior to the amendment, which could only be brought in the district of the defendant’s residence, as provided by Act March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508); jurisdiction not being founded solely on diversity of citizenship.</p> <p>[Ed. Note.—For other cases, see 'Courts, Dec. Dig. § 256.*]</p>

<p>Bankbuptcy (§ 348*)—Debts Entitled to Pbiobity—Sufficiency of Claim.</p> <p>A statement in a claim filed against the estate of a bankrupt that it is for “wages due deponent as clerk and manager and is a preferred claim” is not sufficient to entitle the claimant to priority of payment, in the absence of either statement or proof that such wages were earned within three months before the filing of the petition.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 848.*]</p>

<p>Bankruptcy (§ 258*)—Sale of Property—Mortgaged Property—Rights of Mortgagee.</p> <p>Property oí a bankrupt incumbered by mortgage liens given in good faith and duly recorded more than four months prior to the filing of the petition, which it is provided by Bankr. Act July 1, 1898, c. 541, § 67d, 30 Stat 564 (ü. S. Comp. St. 1901, p. 3449), “shall not be affected by this act,” should not he ordered sold by the trustee, unless it appears that the Mens will not be affected, and that the sale will benefit the estate. Where such Mens were nearly twice the appraised value of the property and the mortgagee made no claim against the estate, a sale was not justified and should be set aside, nor can the mortgagee be charged with the expense thereof.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Dec. Dig. §' 258.*]</p>

<p>1. Toets (§ 22*)—Joint Wrongdoers—-Satisfaction.</p> <p>Where two parties are jointly responsible to a third party for one .wrong, while the wronged party may sue either or both, and recover judgments against either or both, he can have but one satisfaction for the same wrong.</p> <p>[Ed. Note.—For other cases, see Torts, Cent. Dig. § 29; Dec. Dig. § 22.*]</p> <p>2. Accord and Satisfaction (§ 3*)—Construction and Operation—Settlement with One of Two Joint Wrongdoers.</p> <p>Plaintiff brought.suit in a state court against the president of a wholesale grocers’ association to recover damages for an alleged wrongful interference with his business. He subsequently commenced an action in a federal court against the association to recover damages for the same injury, alleged to have been caused by a conspiracy in restraint of trade, in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200). Pending such action he settled the suit in the state court, and received payment of the agreed sum from the defendant therein. Held, that such settlement was an accord and satisfaction of his entire claim, and a bar to the second suit, and that, not being entitled to recover actual damages in such suit, he was not entitled to recover the threefold damages or attorney’s fees provided "for by section 7 of the act.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 22-31; Dec. Dig. § 3.*]</p>

<p>Seamen (§ 17*)—Fishermen Shipping on the Lat—Share in Earnings.</p> <p>■ Members of the crew of a fishing schooner, shipping on the half lay, to be paid by shares in the catch, have the rights of seamen claiming wages as regards recovery of the amounts of their shares, and a member of such a crew who without his fault became separated from his vessel, and was unable to.rejoin it during the season, is entitled to the same proportion of his share of the proceeds of the whole catch as the time of his actual service on board bears to the time occupied by the whole voyage, the remainder of his share to be distributed between the other members of the crew.</p> <p>[Ed. Note;—For other cases, see Seamen, Dec. Dig. § 17.*]</p>

In Equity. Suit by the St. Louis & San Francisco Railroad Company against R. P. Allen and others, constituting the Arkansas Railroad Commission, and D. B. Horsley, prosecuting attorney for the Fourth judicial circuit of Arkansas. On demurrer to bill. The facts alleged in the bill are substantially as follows: The complainant is a corporation organized under the laws of the state of Missouri, and is a citizen of that state.

<p>Action by .the United States, for the use of the Choctaw and Chickasaw Nations, against John F. McMurray, James M. Lindsay, Fisher A. Tyler, Jr., and John L. Simpson.</p>

<p>Aliens (§ 68*)—Naturalization—Residence—Proof.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 4, subd. 2, 34 Stat. 597 (U. S. Comp. St. Supp. 1909, p. 478), declares that the petition shall be verified by at least two credible witnesses who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for at least five years continuously, and of the district in which the application is made for at least one year preceding the filing of the petition. Held that, while the verification must show that petitioner has resided continuously in the country for at least five years, such showing need not be made by the same witnesses for the entire period, and that so long as there are at least two credible witnesses testifying as to each fraction of the period, so as to cover the whole, the statutory requirement is satisfied.</p> <p>[Ed. Note.—For other cases, see Aliens, Dec. Dig. § 68.*]</p>

<p>In Equity. Suit by the Central Trust Company of New York against the Bodwell Water Power Company, James B. Mullen, the Stanley Manufacturing Company, the Grady Construction Company, and the Allis-Chalmers Company.</p>

<p>1. Towage (§ 4*)—Relation and Duties of Tug to Tow—Liability for Injury to Tow.</p> <p>One engaging to perform a towage service is neither an insurer nor a common carrier, and his obligation is only to use reasonable care and diligence and ordinary skill in the performance of the work.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>2. Towage (§ 11*)—Injury to Tow—Negligence of Tug.</p> <p>Libelant, a dredging company, engaged respondent’s steamer to tow. its dredge and two scows down the Ohio river from one place of work to another. The water was low, and the tow only proceeded after a consultation between the officers of libelant, who were on board the dredge, and the captain of the steamer, which was in charge of a competent pilot. The dredge and scows were placed in front of the steamer, and while proceeding the dredge, which was in front, struck some obstruction under the water, the nature of which was not known, and was injured. Hold, that the risk from the low stage of the water was assumed by libelant, and that the evidence was insufficient to show _ that the injury to the dredge was due to any negligence on the part of the steamer, which rendered her liable therefor.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>3. Admiralty (§ 62»)—Cross-Libel—Separate Suits.</p> <p>A separate suit, filed by the owner of a steamer against a dredge to recover for towage and for services rendered in raising the dredge after she had sunk, cannot be treated as a cross-libel in a pending suit by the dredge owner against the steamer for injury to the dredge through alleged negligent towing.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. § 507; Dec. Dig. § 62.*]</p>

<p>In Admiralty. Suit by S. W. Carpenter against the dredgeboat Enterprise; the Enterprise Contracting Company, claimant.</p>

<p>1. Mines and Minerals (§ 20*)—Mining Claims—Marking Boundaries on the Ground.</p> <p>Where stakes were set to mark the boundaries of a mining claim and proper notices posted, it was a sufficient marking upon the ground, even though the corner stakes were not inscribed with the name of the claim.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 40-44; Dec. Dig. § 20.*]</p> <p>2. Mines and Minerals (§ 27*)—Mining Claims—Conflicting Locations.</p> <p>The'fact that a mining claim which has gone to final entry without adverse claim includes the original discovery on which a prior claim was based does not necessarily defeat the right of the prior locator to the remainder of his claim, provided other veins have been discovered on such portion, and it appears that there was no actual intent to abandon the claim.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 27.*]</p> <p>3. Mines and Minerals (§ 27*)—Mining Claims—Conflicting Locations.</p> <p>A failure to perform the required annual assessment work on a mining claim does not in and of itself work a forfeiture, but only permits a relocation, and cannot aid an adverse location which was made prior to the year in which the failure occurred.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 27.*]</p>

<p>In Equity. Suit by B. E. Karns against the W. L,. Imlay Rapid Cyanide Process Company and others. On motion that plaintiff enter security for costs.</p>

Action by William Witherow against the South Side Trust Company of Pittsburgh, as trustee in bankruptcy of the estate of Howard Bayley, bankrupt. From a decree affirming a referee’s decision overruling exceptions to the final account, Witherow appeals.

<p>1. Contracts (§ 289*) — Work and Labor (§ 12*) — Building Contract-Architect’s Certificate.</p> <p>Where plaintiff contracted to make certain alterations and additions to a building under the directions and to the satisfaction of an architect, acting as agent for the owner, who agreed to make final payment Within 30 days after the contract was finished, provided the architect should certify in writing that all the work, on the performance of which payment was to become due, was done to his satisfaction, and, after the contractor had completed performance, the architect refused a final certificate, plaintiff could recover on the contract, provided he could prove substantial performance, and that the architect’s .certificate had been fraudulently withheld, and if the contract had not been substantíally performed, but the work done was accepted by the owner, then plaintiff could recover the reasonable value thereof on quantum meruit under the common counts.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1310, 1311; Dec. Dig. § 289;* Work and Labor, Cent. Dig. § 27; Dec. Dig. § 12.*1</p> <p>2. Contracts (§ 353*) — Building Contract — Performance — Architect’s Certifícate—Instructions.</p> <p>Where a building contract provided for payment only on an architect’s certificate, which was refused, and the builder sued, alleging that the certificate had been fraudulently withheld, an instruction authorizing a recovery on the contract in case the jury found from all the evidence that the architect ought reasonably and fairly to have been . satisfied with the work and approved it, and issued his final certificate, was erroneous, as substituting the judgment of the jury for that of the architect.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1840; Dec. Dig. § 353.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Public Lands (§ 110*)—Essentials of Right to Patent.</p> <p>To entitle one to a patent under the public land laws it is essential, among other things, that he comply with all .the requirements of the statute under which he seeks the title and the authoritative regulations of the Land Department thereunder.</p> <p>[Ed. Note.—Eor other cases, see Public Lands, Cent. Dig. §§ 308, 309; Dec. Dig. § 110.*]</p> <p>2. Public Lands (§ 110*)—Right to Patent as Affected by Mineral Character of Land—Time to Which Inquiry Must be Directed.</p> <p>When the right to a patent under such a law as the soldier’s additional homestead law depends upon whether the land is agricultural or is known to be chiefly valuable for coal, that question must be determined according to the conditions existing at the time when the applicant complies with all the requirements of the statute and the authoritative regulations. If at that time the land is not known to be chiefly valuable for coal, he acquires a right to a patent which will not be disturbed by a subsequent change in the conditions; but, if before such compliance it is discovered that the land is thus valuable for coal, nothing that he subsequently may do will give him a right to a patent, because land known to be of that character is not subject to acquisition under such a law, but only under the coal land law.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 308; Dec. Dig. § 110.*]</p> <p>3. Evidence (§ 47*)—Regulations of Land Department—Judicial Notice.</p> <p>Courts take judicial notice of the regulations of the Land Department, and when required to pass upon the existence of a particular regulation, as when ascertaining any other fact of which they take judicial notice, may resort to any source of information which in its nature is calculated to be trustworthy and helpful, always seeking first for that which is most appropriate.</p> <p>[Ed. Note.—For other eases, see Evidence, Cent. Dig. § 69; Dec. .Dig. § 47.*]</p> <p>it. Public Lands (§ 97*)—Land ' Department—Power to Prescribe Regulations.</p> <p>The Commissioner of the General Land .Office and the Secretary of the Interior, although powerless to adopt a regulation which is in any wise inconsistent with, or repugnant to, the public land laws, are empowered to enforce, by appropriate regulations, every part of those laws, as to which’ it is not otherwise specially.provided. ,</p> <p>[Ed. Note.—For other cases, see, Public Lands, Cent. Dig. §§ 288, 289; Dec. Dig. § 97.*] '</p> <p>5. Public Lands (§ 98*)—Regulation Requiring Nonsaline Showing.</p> <p>The regulation of the Land Department prescribed November 19, 1903, requiring applicants under" the nonmineral laws to support their applications by a showing that the land applied for is nonsaline, is a valid regulation, and an applicant under the soldier’s additional homestead law-does not do all that he is required to do to entitle him to a patent until he complies with that regulation.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 290; Dec. Dig. § 98.*]</p>

Suit in equity by the Franklin Trust Company against the Milford Fink Granite Quarries. On petition of the receiver of defendant for instructions, the court made an order directing the payment of certain franchise taxes to the state of N.ew Jersey, from which complainant and other creditors appeal.

<p>1. Pleading (§ 212*)—Demurrer—Answer to Merits.</p> <p>A demurrer to tu complaint for want of facts is waived by an answer to the merits.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 522; Dec. Dig. § 212.*] •</p> <p>2. Carriers (§ 69*)—Carriage of Freight — Special Contract—Breach-Complaint.</p> <p>Plaintiff’s complaint alleged an agreement whereby defendant was to equip a side track to be laid to plaintiff’s orchard, and furnish sufficient refrigerator cars to handle plaintiff’s apple crop estimated at about 50 cars, at the rate of six or eight cars per week, as required by plaintiff, in consideration of which plaintiff agreed to ship all his apple crop over defendant’s railroad. It also alleged that defendant failed and refused on demand to furnish cars in accordance with - the contract, and that, by reason thereof, plaintiff was damaged, etc. Helé, that the complaint alleged a contract mutual in its terms, and was not uncertain for failure to specify the time when the cars were to be furnished, it being presumed that the parties made their contract in view 'df the'usual custom relative to thé transaction with knowledge of the time when, in the ordinary course, the crop would be moved.</p> <p>[Éd." Nóte.—For other cases, see Carriers, Dec. Dig. § ,69.*]</p> <p>3. Appeal, and Error .(§ 169*)—Questions not Raised at Trial—Review.</p> <p>, A point asserted in support of an assignment of error will not be reviewed on appeal when it was not presented to the trial,court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1018; Dec. Dig. § 169.*] • -</p> <p>4. Carriers (§ 13*)—Cars—Special Contract to Fúrnish—Validity.</p> <p>, A carrier's special contract to furnish a shipper a specified number of cars' at specific times and places is not invalid, as contrary to public policy and discriminatory.</p> <p>,[Ed. Note—For other cases, see Carriers, Cent. Dig. § 22;' Dec. Dig. §■13.*]</p> <p>5. Carriers (§ 67*)—Contract to Furnish Oars—Breach—Defenses.</p> <p>Where a carrier contracted to furnish a specified number of cars to move plaintiff’s apple. crop at specified ,times and places, the carrier's inability to furnish the cars contracted for- owing to unusually heavy ^traffic at the,time the cars were demanded, constituted no defense to an action for plaintiff’s damages for such failure.</p> <p>. ‘ ’ [Ed. Note.—For other cases, see Carriers, Cent. Dig. § 226; Dec. Dig. • § -67.*] ■</p> <p>6. Contracts (§ 108*)—Validity—Public Policy.</p> <p>A court should declare a contract void as against- public policy only when the case is clear and free from doubt, and the injury t'o the public is substantial, and hot theoretical or problematical. ""</p> <p>[Ed.. Note.—For "other cases, see Contracts, Cent. Dig. § 498; Dec' Dig.';§ 108.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 363*)—Federal Courts—Laws oe State Against Practice of National Courts.</p> <p>Where the constitutional laws of a state which govern the descent, alienation, and transfer of real property and constitute rules of property conflict with the practice of the national courts in equity, the former prevail; and where there is no conflict, both are enforced.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. § 363.*]</p> <p>2. Courts (§ 332*)—Federal Practice—English Chancery Practice.</p> <p>The practice of the federal courts in equity regarding abatement and revival is regulated by the practice of the High Court of Chancery in England in 1842, when rule 90 in equity was adopted.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 332.*]</p> <p>3. Courts (§ 343*)—Federal Courts—Death of Defendant After Submission and Before Decree—Revival.</p> <p>It was the general rule under the English chancery practice in 1842, as it is now in the federal courts in equity, that the death of a sole defendant, which had the effect to transfer his interest to others, abated the suit, in the absence of a revival, and rendered void all subsequent proceedings to affect that interest.</p> <p>An exception to that rule was, as it is in the federal courts in equity still, that when the suit had been finally heard and submitted the subsequent death of the defendant wrought no abatement, but the court had plenary jurisdiction to decide the issues and enter a valid decree without a revival.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 915; Dec. Dig. § 343.*]</p> <p>4. Mortgages (§ 526*)—Foreclosure Decree and Sale Without Revival-Collateral Attack in Nebraska.</p> <p>It was the settled law of Nebraska, when certain mortgages were made, that an order of sale, a sale, and a confirmation of the sale, made after the death of the party to a suit In enulty. subsequent to the decree, were impervious to collateral attack. After the final hearing, decision, and order for decree of foreclosure of mortgages, the sole defendant died, and a decree, sale, and confirmation were made without revival. An application for a writ of assistance against the heirs of the defendant in possession was made. ’</p> <p>Held, the law of Nebraska became a part of the contract of the parties to the mortgages. The decree, sale, and confirmation were not open to collateral attack, and the writ was rightly issued.</p> <p>[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 526.*']</p>

<p>In Error to the Circuit Court of the United States for the Southern District pf Iowa.</p> <p>Action by Marion Bennett against the Chicago, Milwaukee & St. Paul Railwáy Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action by the Boatmen’s Bank against the Trower Bros. Company. Judgment for defendant (171 Fed. *964), and plaintiff brings error.</p>

<p>appeal from the District Court of the United States for the Middle District of Pennsylvania.</p> <p>In the matter of the L. M. Alleman Hardware Company, bankrupt. Appeal from an order refusing to permit H. N. Gitt, a creditor, to share in the distribution of assets.</p>

Appeals from the District Court of the United States for the Southern District of New York. Libel by the Red Star Towing & Transportation Company against The Steamtug Ashbourne and the Steamtug Bouker No. 2, and by the Phoenix Towing & Transportation Company against the same vessels. From a decree dismissing the libels as to the Ashbourne and assessing damages against the Bouker No. 2, she appeals.

Action by Thomas A. Jones and others, to the use of J. W. Van Dyke, against Edward B. Smith and others, trading as Edward B. Smith & Co. Judgment for plaintiffs, and defendants bring error.

<p>1. Appeal and Error (§ 188*)'—Federal Jurisdiction—Question of Jurisdiction-Review.</p> <p>The Circuit Court of Appeals of its own motion will inquire whether the trial court had jurisdiction of the controversy, and will not determine the appeal if federal jurisdiction is not shown.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1166 - 1169; Dec. Dig. § 185.*]</p> <p>2. Courts (§ 299*)—Federal Courts — Jurisdiction — Controversy Under</p> <p>Constitution and Laws of the United States.</p> <p>Federal jurisdiction on the ground that the cause arises under the Constitution and laws of the United States obtains only when the cause really and substantially involves a controversy as to the effect or construction of the Constitution or some law or treaty of the United States, on the determination of which the result depends, appearing from plaintiff’s statement of his own claim unaided by defensive allegations interposed.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299*</p> <p>Jurisdiction in cases involving federal question, see note to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.]</p> <p>S. Courts (§ 285*)—Federal Courts — Jurisdiction — Controversy Under Federal Laws.</p> <p>Plaintiff sued to restrain an alleged continuing trespass on his homestead entry, alleging that he had a subsisting uncanceled homestead entry on the land in controversy, and that proceedings had progressed so far as to entitle him to a patent; also, that defendant had taken possession of the land. The bill did not allege that defendant’s possession had been taken under any claim of right, and defendant in his answer did not assert any claim of right under any provision of the land laws of the United States or under any grant or deed, only claiming that proceedings were pending to cancel complainant’s title, and that defendant was in possession to make a homestead entry on the land in case plaintiff's entry was finally canceled. The bill further alleged that, though complainant’s entry be canceled, his improvements and relinquishment were vendible and worth $4,500. Held that, since a homestead settler’s right to transfer his possession and sell his Improvements depended on no statute, the complaint did not show a case of federal jurisdiction depending on the Constitution, laws, or treaties of the United States.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 285.*]</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action by Lester W. David against Edward E. Swift and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Master and Servant (§§ 221, 289*)—Master’s Liability for Injury to Servant—Assumption of Risk.</p> <p>An employs, engaged in loading stone on the cars at the defendant’s quarry, was struck and fatally injured by the derrick boom, by means of which the stone was being hoisted, by the breaking of the cable sustaining the boom. The deceased had noticed and reported to the foreman on Saturday, preceding the Monday on which the accident occurred, that the cable was frayed, and on investigation it was found that one strand had been cut or broken. The foreman stated his intention of fixing it on Monday morning, but delayed doing so, and under press of work continued to use the derrick as it was, cautioning the deceased, however, not to get under the boom. There was a tag rope attached to the end of the boom, by which it could be guided, without the necessity for going under it, and this was always used when stone was being lifted out of the quarry, and also at times when stone was being taken off of the ground to be loaded on the cars, but not, as a rule, after the stone had been lowered, and was being set in place on the car; the stone, if it needed to be shifted, being then more conveniently steadied by hand, and the boom, even if it came down, being over the center of the car, involving no danger. This tag rope was not used on the occasion of the accident. The deceased and the man working with him having merely to raise the stone a little and shove it over by hand as they stood beside it, held, that whether the deceased was guilty of contributory negligence in not moving the stone by means of the tag rope was a question for the jury, the way the stone was being handled not only being the most convenient, but the customary way of doing so, and not being ordinarily or obviously attended with danger, no one, as a rule, being required to be wise above the custom of the business. But there was an extra hazard by reason of the defect in the cable, and the deceased having discovered and reported the defect, and knowing that it had not been repaired, and the danger arising from it being obvious, he assumed the risk, and binding instructions should therefore have been given for the defendant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 638-647, 1089-3132; Dec. Dig. §§ 221, 289*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</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 Taylor Dredging Company against the steam tug P. R. R. No. "5; the Pennsylvania Railroad Company, claimant. Decree for libelant, and claimant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Patents (§ 27*)—New Use—When Patentarle.</p> <p>The application of an old machine or combination to a new use is not in itself invention, or the subject of a patent.</p> <p>If the relations between the two uses be remote, and if the use of the old device produce a new and beneficial result, the application to the new use may involve the exercise of the inventive faculty and be patentable.</p> <p>But it is only when the new use is so recondite or so remote from that to which the old device has been applied, or for which it was evidently conceived, that its application to the new use would not readily occur to the trained mind of the ordinary mechanic skilled in the art, seeking to devise means to accomplish the desired function, that its conception rises to the dignity of invention. -</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]</p> <p>2. Patents (§ 328*)—Dettebs Patent No. 454,964 to Hall, June 30, 1891, eob Double Use and Void.</p> <p>The combination of thermostatic valves with the return pipes or the connections between the return pipes and the radiators of suction or vacuum systems of steam heating, such as are disclosed in letters patent No. 256,089, to Williames, issued April 4, 1882, did not rise to the dignity of an invention, in view of the combination of such valves with the return pipes of pressure steam-heating systems shown in letters patent No. 113,434, to John J. Jordan, issued April 4, 1871. And letters patent No. 454,964, to W. E. Hall, issued June 30, 1891, was for a double use, and the patent for it is void.</p>

<p>In Equity. Suit by Frank M. Ashley against the Samuel C. Tatum Company.</p> <p>On final hearing of a bill in equity to enjoin the infringement of design patent No. 37,504 and construction patent No. 829,752. Both patents relate to glass inkwells, and the design patent, though best shown in the drawing, may be described in words as a low square base surmounted by a low dome of diameter somewhat less than a side of the base, with an orifice at the top, in which fits a hard rubber inverted cone. The ink is held within the dome and a shallow recess in the base. The well is wholly devoid of any ornamentation, and depends for its success upon the association of the dome with the base and upon the proportions. To indicate such proportions, the following dimensions are taken from the drawing attached to the patent: Width of base 2% inches; height, % of an inch; opening at top of dome 114 inches. The total height is therefore one-half of the width of the base.</p> <p>The defendant’s inkwells are also of glass, consist of a low, flat base, surmounted by a similar dome, and have relatively nearly the same proportions as the complainant’s. They are devoid of ornamentation except as herein-before stated. No point is made of their dissimilarity except that from the base of the dome to a point about one-half way up the glass side of the dome is markedly thickened and moulded into a band of triangular facets, some perpendicular, some inclined, the top of this band forming a kind of narrow horizontal terrace.</p> <p>The defenses are want of invention and noninfringemen-t.</p> <p> </p> <p>COMPLAINANT’S INKSTAND.</p> <p> </p> <p>DEPENDANT’S INKSTAND.</p>

<p>In Bquity. Suit by John Murray against the Seattle Cedar Lumber Manufacturing Company.</p>

<p>"Admiralty (§§ 28, 66*)—Jurisdiction in Personam—Libel in Rem for Death —Amendment.</p> <p>A suit in admiralty to recover for the death of a person will not lie in rem against a vessel unless a lien thereon is given by the state laws, and, when such is not the case, the filing of a libel in rem does not give the court jurisdiction, and, where the only process issued and served was an attachment against the vessel and her owners have not appeared except as claimants, the libel cannot be amended to give the court jurisdiction to render a personal judgment against them</p> <p>LEd. Note.—For other cases, see Admiralty, Cent. Dig. §§ 285, 288, 524; Dec. Dig. §§ 28, 66.*]</p>

<p>1. Indians (§ 27*)—Indian Land—Lease.</p> <p>Under Act Cong. June 7, 1897, c. 3, § 1, 30 Stat. 72, authorizing Indian allottees within the limits of the Quapaw agency to lease their allotments for a term not exceeding 10 years, where a lease of such land is made for a period exceeding 10 years, the United States may sue in its own name to cancel the instruments as a violation of congressional conditions placed on the alienability of the land, but with reference to leases for purposes named in the act, and which do not exceed the term allowed, the government has no capacity to sue to cancel the same, though made by the allot-tee for an improvident consideration.</p> <p>[Ed. Note.—For other cases, sée Indians, Cent. Dig. § 45; Dec. Dig. § 27*]' ' ■</p> <p>2. Indians (§ 16*)—Indian Lands—Allotment—Leasing.</p> <p>Under Act Gong. June 7, 1897, c. 3, § 1, 30 Stat. 72, authorizing the leasing of Indian allotments within the limits of the Quapaw agency subject to the condition that such leases should not extend for more than 10 years for mining or business purposes, an Indian allottee had complete power to lease his land in any manner and for any consideration he might desire, except that the term should not extend beyond that prescribed.</p> <p>[Ed. Note.—For other cases, see Indians, Gent. Dig. § 45; Dec. Dig. § 16.*]</p> <p>3. Indians (§ 16*)—Leases—Effect.</p> <p>Where an Indian allottee in the Quapaw agency leased his allotment for mining purposes for 10 years, and before the expiration of such lease granted. another lease for a similar term to run concurrently without cumulation of periods, the second lease to the holder of the first operated as a surrender of the first, and was therefore not a violation of Act Cong. June 7, 1897, e. 3, § 1, 30 Stat. 72, limiting the period of such leases to 10 years.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p> <p>4. Indians (§ 16*)—Indian Lands—Allotment—Leases.</p> <p>An Indian allottee in the Quapaw agency, being authorized to lease his allotment for mining purposes for 10 years by Act Cong. June 7, 1897, c. 3, § 1, 30 Stat. 72, having done so, had authority during the term to agree with the tenant to annul the lease, and execute a new one for the maximum period.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p> <p>5. Indians (§ 16*)—Indian Lands — Allotment — Leases—'Assignment of Royalties.</p> <p>Where an Indian allottee in the Quapaw agency leased his allotment for mining purposes, reserving a royalty for the maximum period authorized by Act Cong. June 7, 1897, c. 3, § 1, 30 Stat. 72, an assignment of the royalties payable under the lease was valid.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p>

<p>In Admiralty. Suit by Knohr & Burchard against the Pacific Creosoting Company, and cross-libel by respondent.</p>

<p>Petition by Coloraba Mango for writ of habeas corpus, directed to Louis T. Weis, Commissioner of Immigration, and Charles A. Hook, Warden of the Baltimore City Jail.</p>

In Equity. Suit by C. E. Frost and William S. Lovell, as receivers of Knight, Yancey & Co., bankrupts, and Joe T. Gibson against Latham & Co. and others. On motion by William S. Lovell, as trustee of said bankrupts, for leave to file supplemental bill.

<p>Bankruptcy (§ 74*) —Involuntary Proceedings—Reduction of Indebtedness After Act of Bankruptcy.</p> <p>A debtor who owed more than $4,000 made a general assignment of his property, which was assented to by some of his creditors, and not by others. The assignment was an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (ü. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1309), and entitled the nonassenting creditors, who held claims sufficient in number and amount, to file a petition in involuntary bankruptcy within four months, which they did. Subsequent to the assignment, but before the filing of such petition, the debtor made a settlement with the assenting creditors, and, on payment to them of a percentage of their claims, received releases discharging him and the assignee from any further liability which left his indebtedness to the remaining creditors at the time of the filing of the petition in bankruptcy less than $1,000. Held, that the provision of section 4b that “any natural person * * * owing debts to the amount of $1,000, or over may be</p> <p>adjudged an involuntary bankrupt,” should probably be construed as having reference to the indebtedness at the time of the commission of the act of bankruptcy charged, but, in any event, it was not within the power of the debtor and the assenting creditors, by a transaction which on an adjudication could be avoided as a constructively fraudulent or' preferential transfer of property, to deprive the nonassenting creditors .of their accrued right to avail themselves of the act of bankruptcy committed.</p> <p>[Ed. Note.-—For other cases, see Bankruptcy, Dec. Dig. § 74.*]</p>

<p>L Admiralty (§ 30*)—Pleading—Joinder op Causes in Contract and Tort.</p> <p>A court of admiralty may, in its discretion, permit the joinder in the same libel of claims in contract and tort.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. § 299; Dec. Dig. § SO.*]</p> <p>2. Seamen (§ 11*)—Medical Treatment—Equipment of Fishing Vessel.</p> <p>There-is no law requiring fishing vessels, which are generally .not far distant from a port of supply, to carry a medicine chest; and as a rule the failure to do so cannot be charged as negligence, which will render the owners liable in damages to a member of the crew who is injured, and especially where the master and crew shipped on a lay, and are chargeable with the supplies and share in the profits of the voyage, in which case the master is the representative of the crew, rather than of the owners.</p> <p>[Ed. Note.—For other cases, see Seamen, Dec. Dig. § 11.*</p> <p>Rights and liabilities of seamen as to medical treatment, see note to The Cuzco, 83 C. C. A. 186.1</p> <p>• 3. Seamen (§ 28*)—Fishermen—Share in Earnings—Effect of Sickness or Injury.</p> <p>A member of the crew of a fishing vessel, shipping on- a lay, who was injured while in the service without his fault, and thereby disabled until after the voyage ended, is entitled to his share in the proceeds, as though he had remained on board and served until the end.</p> <p>[Ed. Note.—For other cases, see Seamen, Cent. Dig. §§ 170-175; Dec. Dig. § 28.*]</p> <p>4. Seamen (§ 28*)—Compensation—“Half Dine.”</p> <p>The “half line” plan in the fishing business is an, arrangement between the owners of a fishing vessel and a master and his crew, whereby the master undertakes a fishing voyage, in which the gross proceeds of the catch, less certain deductions, are shared equally between the vessel and the master and crew; the latter half share, after payment for certain things charged to the master and crew as a body, being divided among them share and share alike. The voyage is a “half line voyage.”</p> <p>[Ed. Note.—For other cases, see Seamen, Dec.' Dig. § 28.*]</p>

<p>Proceeding by the United States against the Northern Pacific Terminal Company. On motion by defendant for directed verdict.</p>

<p>Criminal prosecution by the United States against the Chicago, Burlington & Quincy Railroad Company. Trial to the court by agreement.</p>

<p>In Equity. Bill by the United States against John E. Rundell and others.</p>

<p>In Equity. Suit by the Healey Ice. Machine Company against Robert Green, Louisa A. Green, and others.</p>

In the matter of Jacob Wishnefslcy, bankrupt. On petition to. review referee’s refusal to permit bankrupt to amend his schedules so as to claim exemption. The referee’s refusal is based on the ground that the bankrupt had no title to the goods claimed.

In Bankruptcy. In the matter of Alexander Mason, petitioner in bankruptcy. Order for filing of petition by clerk. On submission, by agreement of the clerk and attorney for petitioner to the court, of the question as to whether the clerk should file a petition in bankruptcy, when pauper’s oath is made and proposed bankrupt is shown to have assets with which to pay the costs.

<p>Bankruptcy (§ 318*)—Provable Claims—Conditional Sale or Property-Election op Remedies.</p> <p>Under the law of Pennsylvania, a contract, called a lease, under which a machine was delivered to the lessee, who gave his notes for installments of so-called rent, with the privilege, on full payment, of buying the machine for a nominal sum, and which provided that until such purchase it should remain the property of the lessor, who on default might retake possession, was in effect a contract of conditional sale, and on default of the purchaser the seller could, at his election, affirm the sale and enforce the notes or retake the property, but could not do both; and where, on the bankruptcy of the purchaser, the seller retook possession of the machine, he cannot prove the notes as a claim against the estate.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 481, 482; Dec. Dig. § 318.*]</p>

<p>1. Bankruptcy (§ 372*)—Reopening Estates.</p> <p>A petition to reopen a bankrupt’s estate, under Bankr. Act July 1, 1898, c. 541, § 2a (8), 30 Stat. 546 (U. S. Oomp. St. 1901, p. 3421), on the ■ground that it was closed before fully administered, can only be filed by ' one who has an interest and will be benefited thereby.</p> <p>[Ed: Note.—For other cases, see Bankruptcy, Dec. Dig. § 372.*]</p> <p>2. Bankruptcy (§ 328*)—Proof of Claims—Limitation.</p> <p>The court has no power, under Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561 (U. S. Comp. St. 1901, p. 3444), to permit the proof of claims after the expiration of - a year from the adjudication, even though the creditor was misled, and no proof made,, because of the fraudulent concealment of assets by the bankrupt, who scheduled no assets.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec, Dig. § 328.*]</p>

<p>Prosecution by the United States against David Eccles, and others. On demurrer to indictment.</p>

In the matter of-the bankruptcy proceedings against the Breon Lumber Company. On exceptions to the report of a referee, rejecting a claim of the Tomb Lumber Company.

<p>In the matter of Meadows, Williams & Co., bankrupts. On application for order directing trustee to compromise claim against Fannie B. How.</p>

<p>1. Death (§ 58*)—Issues—Burden of Proof.</p> <p>Where, in an action for wrongful death, issue is taken on the fact of death, the burden, of proving it is on the plaintiff.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 78; Dec. Dig. § 68.*]</p> <p>2. Death (§ 75*)—Pro of—Circumstantial Evidence.</p> <p>In an action for wrongful death, the fact of death may be proved by circumstantial evidence.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 93; Dec. Dig. § 75.*]</p> <p>3. Evidence (§ 288*)—Pedigree—Death—Hearsay.</p> <p>The rule that under some circumstances^ the fact of death, as well as of birth, marriage, pedigree, etc., may be* proved by hearsay evidence, is limited to the members of the family; the tradition being admissible only when coming from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they spoke the truth and could not have been mistaken.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1147; Dec., Dig. § 288.*]</p> <p>4. Death (§ 75*)—Proof of Death—Inferences.</p> <p>Where a passenger was alleged to have died from injuries and the amputation of his leg, but it was affirmatively shown that he survived such injuries for a week or 10 days, no inference of his death could be properly drawn therefrom.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 93; Dec. Dig. § 75.*]</p>

<p>1. Evidence (§ 417*)—-Parol Evidence—Written Contract.</p> <p>Where a written instrument executed pursuant to a prior verbal agreement or negotiation does not express the entire agreement or understanding of the parties, parol evidence is admissible to show the contract entered into.</p> <p>[Ed: Note.—For other cases, see Evidence, Cent. Dig. §§ lS74r-1899; Dec. Dig. § 417.*]</p> <p>2. Evidence (§ 450*)—Parol Evidence—Written Contract—Receipt.</p> <p>After the adjustment of a fire loss, plaintiff executed to defendant insurance company a receipt for an amount equal to 75 per cent, of the loss adjusted “in full of all such claims.” Plaintiff claimed that the receipt was given pursuant to a contract of settlement because of defendant’s alleged insolvency pursuant to which defendant paid 75 per cent, of its claims, and agreed that, if it should pay any other San Francisco creditor a higher amount, it would pay plaintiff the difference, while defendant claimed that the receipt was given in compromise of plaintiff’s claim agdinst defendant and of various differences of law and fact, and was in full settlement and satisfaction thereof. Held, that the words “in full of all such claims” were not conclusive terms of the receipt, but were ambiguous, and that parol evidence was admissible to show the agreement under which the receipt was executed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2066-2082; Dec. Dig. § 450.*]</p> <p>8. Pleading (§ 249*)—Nature of Action—Contract or Tort—Amendment.</p> <p>Plaintiff after suit brought was not entitled to amend Ms complaint so as to change the cause of action from contract to tort.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 710-729; Dec. Dig. § 249.*]</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p> <p>Suit in admiralty by the Waimanalo Sugar Company against the Pacific Mail Steamship Company.</p>

Suits in admiralty for collision by the schooner Marie Palmer against the Blanche Hopkins and the tug James McCaulley, and by the Hopkins against the McCaulley and the Palmer. Decree against the McCaulley in each case, and claimant appeals.

<p>1. Carriers (§ 347*)—Setting Down Passengers—Time to Alight—Jumping prom Moving Train—Negligence.</p> <p>Where a carrier either, did not stop the train on which decedent was riding at all at the station where he desired to alight, or did not stop for a sufficient length of time to enable him to get off while the train was stationary, decedent was not per se negligent in alighting while the train was moving slowly.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1393, 1402; Dec. Dig. § 347.*]</p> <p>2. Carriers (§ 333*)—Alighting from Train—Contributory Negligence.</p> <p>A passenger is not negligent in alighting from a moving train if the speed of the train and all the surrounding circumstances are such that a person of ordinary prudence would have done the same thing.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1391-1393; Dec. Dig. § 333.*]</p>

<p>L Mines and Minerals (§ 122*)—Conveyance of Surface—Right to Support.</p> <p>Where the surface of land is owned by one, and the mineral beneath, with the right to extract the same, is owned by another, whether the two interests have been created by a conveyance of the surface with a reservation of the mineral, or by a grant of the mineral with a reservation of the surface, the owner of the mineral right is bound to protect the surface, unless the right to destroy the surface has been expressly reserved in terms .so plain as to admit of no doubt.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. § 243; Dec. Dig. § 122.*]</p> <p>2. Mines and Minerals (§ 122*)—Conveyance of Surface—Deeds—Provisions for Support—Construction.</p> <p>Certain co-owners of a mining claim conveyed the surface by separate conveyances at different times; each deed reserving the minerals and the right to extract the same, and covenanting not to excavate nearer to the surface than 20 feet. One deed contained a covenant by the grantors to conduct their mining operations so as not to injure the surface rights conveyed, and so as to protect the surface for a depth of 20 feet thereunder. The other deed, while covenanting that the grantors should leave 20 feet below the surface of the ground for support, expressly provided that they did not obligate themselves to support or maintain the surface by timber or otherwise. IIeld% that neither deed absolved the grantors from their obligation, implied in the grant of the surface, so to conduct their mining operations that the surface should at all times be sustained.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent Dig. § 243; Dec. Dig. § 122.*]</p> <p>3. Mines and Minerals (§ 125*)—Actions—Issues and Proof—Decree.</p> <p>Complainant, the owner of the surface of a mining claim, sued to quiet ■ title against the owners of the minerals; and they by answer alleged the mineral ownership, with the right to extract all ores therefrom, provided that the surface should not be damaged or in any way interfered with. Complainant, in answer to defendant’s cross-bill, alleged its right to the surface and all country rock underlying the same to a depth of 20 feet, with the right to have the same undisturbed, damaged, or in any way interfered with by any of defendants’ mining operations. Held, that a decree enjoining defendants from extracting the minerals in such a way as to injure the surface, and requiring them at all times to protect the surface, was not beyond the issues, under the rule that, in rendering a final decree the court may look to all the pleadings in the case to determine the issues created.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 125.*]</p>

<p>Insurance (§ 477*)—Marine Insurance—General Average Expense—Tow-age to Port oe Necessity.</p> <p>A steamer, insured under a term policy providing that the insurer should not be liable for any particular average loss not amounting to 5 per cent, net, was proceeding to Hoqulam, in Gray’s Harbor, for a cargc of lumber for San Francisco, when, in entering the harbor, she broke her rudder, rendering her unseaworthy. It was agreed between owner and insurer that San Francisco was the nearest port where she could be properly repaired, and by agreement she was towed to I-Ioquiam, loaded with lumber, and towed to San Francisco, where she was repaired. Held, that the voyage to San Francisco was one of necessity to a port- of repairs, and the expense of the towage was in the nature of a general average, charge, for the benefit of both owner and insurer, and for which the insurer was liable.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1248, 1249; Dec. Dig. § 477.*</p> <p>Marine insurance, general average, see note to Pacific Mail S. S. Co. v. New York, H. & R. Min. Co., 20 C. C. A. 357.]</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Idaho.</p> <p>Action by George Goodwin against the Cceur d’Alene Lumber Company. Judgment for plaintiff, and defendant brings error.</p> <p>This is an action for damages, arising on account of personal injuries received, alleged to have been caused by the negligence of the plaintiff in error. Plaintiff below, the defendant here, was injured while at work' in an edger pit or box tailing the edgings from boards or pjanks as they came from a double edger. The table which carried the boards was 5 feet and 1 or 2 inches wide, and was provided with- rollers, over which the boards were moved ns they came from the machine. These rollers were four in number after leaving the press rollers. The press rollers were arranged one set in front and one aft of the edger saws, and were used for holding the planks in place while passing through the machine. The edger pit was an open space left in the table between two of the rollers over which the planks were carried away. In dimensions it was about 5 feet 1 inch in .width, the width being crosswise of the table, 2% feet in length, and 2 feet 9 inches in depth. The last roller formed the back end of the edger pit, in front of which was constructed a fender about 8 inches in width, extending from near the top of the roller downward on an incline within the pit. The purpose of the fender was to guide the boards as the ends came across the pit above the roller and allow them to pass on to the table below. The plaintiff was put to work in the edger pit; his duty being to shove or cast the edgings from the planks to the outside of the table, to be carried away. The edger being of the double pattern, boards were edged at the same time upon both sides of the table, and the man in the pit was required to stand between these boards, as they came away from the machine, and perform the work. His position was facing the edger; but his work required him to shift or turn about more or less to clear the table of the edgings as they came down the table along with the planks. The distance from the last pair of press rollers, or those just aft of the edger, was about 18 feet, or possibly 18 feet 9 inches, to the edge of the pit, and 21 feet to the roller at the after edge. The boards, while passing through the pressure rollers, were driven through with considerable force by the power of the machinery; but, when released, were carried on by their own momentum, and could be checked or stopped by a person in the pit, but not otherwise.</p> <p>Now, in view of this construction of the edger, the table for carrying away the boards and edgings, the edger pit, and its relation to the edger, and the manner in which the whole was operated, it is alleged in purport by the plaintiff that defendant, in May, 1907, employed plaintiff to work in and about its sawmill; that plaintiff was at the time wholly inexperienced with respect to the working and operation of the machinery of sawmills; that he was. first set to work on the log decks in getting logs out of the water, and about a month later was directed to work in the edger pit “tailing the edger.” After describing the duties required of plaintiff in that position, the operation of the edger and edger table, the dimensions of the table, the dimensions of the edger pit. and the workman’s position therein, the complaint continues as follows:</p> <p>“That said work which plaintiff did, and which plaintiff was directed to do by the said defendant as aforesaid, was dangerous work; that the place where plaintiff was directed to stand in performing, said work and labor was not large enough to permit plaintiff or any laborer to stand therein and work and labor with safety to himself; that the work required by defendant of plaintiff as aforesaid was too great for one person to perform, and in the attempted performance thereof was fraught with great danger to plaintiff, or any person engaged in the operation of such work; that the plaintiff at said time was ignorant of the danger attendant upon the performance of said labor, and was ignorant and inexperienced as aforesaid, and did not know or appreciate the danger incident to- the performance thereof, but that the defendant at all of said times, and at the time of putting plaintiff to work as aforesaid, did know and fully realize that said work was dangerous, and that the labor required was too great to be performed by one ordinary man in safety, and did know that the place provided for plaintiff to work was not sufficiently large to enable plaintiff to work with safety to himself; but that said defendant did not, nor did any of its agents or. officers, give .plaintiff any instructions whatever as to the dangers attendant upon such work, or inform"-him of the dangerous place in which he was required to work, or of the fact 'that more work was required df him than could be- safely performed by one laborer; ' that the mill of defendant in which'plaintiff was put" to work as aforesaid is a very large mill, having a large, capacity for the manufacture of lumber, and that it is th,e custom in mills of such capacity universally to have more than one man employed to do the work required to he done by plaintiff as aforesaid, all of which facts were known to defendant, but unknown to plaintiff. * * *</p> <p>“That plaintiff at the time of said accident was of the age of 26 years, and had not had ordinary experience, and did not at said time have even ordinary knowledge of dangers incident to and connected with the operation of sawmills in general, and of the work as aforesaid in particular, and had not the ability and understanding to know and appreciate the dangers of said position, or even common ordinary dangers incident to and in connection with the operation of sawmill machinery and of machinery in general, and then and there knew no more about such machinery, or any machinery, than a child of the age of 14 years and Of ordinary intelligence.</p> <p>“That on or about June 9, 1907, and after plaintiff had been employed for eight days tailing the edger as aforesaid, and while plaintiff was in the discharge of his duties as aforesaid, and exercising reasonable care and caution, and without any fault, negligence, or carelessness on the part of plaintiff, plaintiff’s right leg was caught between a board passing from’ the edger table to the table with live rollers beyond the plac'e where plaintiff was standing, and plaintiff was pushed and dragged by means thereof until his leg was fastened and pinioned against the said table beyond said edger table, and pinched and crowded between said table and the said board, and the flesh, muscles, tendons, bones, and blood vessels of plaintiff’s said right leg were bruised, wounded, lacerated, and mangled in a most shocking and painful manner, and the cords and ligaments of said leg were so cut, bruised, and mangled that plaintiff was forced to quit said employment as aforesaid; and plaintiff went to a hospital and received treatment therein at the town of Coeur d’Alene, and afterwards at other places, and was in the care of physicians until finally in December, 1907, after two operations had been performed in a vain attempt to cure said injury, it became necessary to amputate and cut off said leg in order to save plaintiff’s life, and in December, 1907, said leg was amputated and removed at a point about two inches above the knee joint; that said amputation of said leg was caused and made necessary by the injury received by plaintiff as aforesaid in the mill of defendant * * * And said board which caught plaintiff’s leg as aforesaid was a very wide board, and came across said table and projected and filled a largo portion of the space provided for plaintiff to stand in, and left no remaining room sufficient for plaintiff to stand and perform the labor required of him.”</p> <p>To this com plaint a demurrer was interposed, on the ground that it did not state facts sufficient to constitute a cause of action, and was overruled by the court. After answer, and the cause having gone to trial, the sufficiency of the complaint was again objected to by way of demurrer to the evidence. This objection was also overruled. At the close of plaintiff’s testimony, defendant moved for a nonsuit. This was denied. Again, at the close of all the testimony, the defendant moved for an instructed verdict dismissing the cause, which was also denied. The cause being submitted, and verdict and judgment rendered for plaintiff, the defendant prosecutes its writ of error.</p>

<p>Petitions to Review and Appeals from an Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of bankruptcy proceedings by T. A. McIntyre & Co. Mary H. Pludson and another petition to review, and appeal from, an order of the District Court of the Southern District of New York disposing of certain property of which the bankrupts’ trustees had taken possession.</p>

<p>1. Trusts (§ 358*)—Conversion by Trustee—Subsequent Replacement of Money.</p> <p>Where a trustee has drawn out of a deposit moneys which belonged to several different persons, and thereafter makes a deposit to the same account, the deposit will be considered as a general restoration, in which all the defrauded cestuis que trust will share ratably.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 523, 553; Dec. Dig. § 358.*]</p> <p>2. Bankruptcy (§ 155*)—Ownership of Property Pledged—Recovery.</p> <p>Bankrupts, who were stockbrokers holding stock for a customer, used the stock as their own, pledging the same, with other stock, for loans. When they failed, there were 95 shares of the kind of stock so purchased among collateral deposited with the C. Bank, 10 shares were pledged on another loan, and there were 2 shares in the bankrupts’ vault. They owed to their customers 1,651 shares of that variety of stock, and there was no identification of the 95 shares, or any of them, as those bought for a particular customer. Held, that the customer for whom 200 shares were purchased could not recover the certificates so pledged, under the rule that persons whose stock has been so used cannot establish title to specific certificates of the stock found after bankruptcy pledged as collateral to a loan, unless they can identify the certificates as representing the shares which the bankrupt took from them.</p> <p>[Ed. Note.—-For other cases, see Bankruptcy, Dec. Dig. § 155.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>' Suit in admiralty by Thomas Haskins and Max Schwabacher, partners as Leege & Haskins, against the steamer Santa Rita, the United Steamship Company, claimant, and others. Decree for libelants, and claimant and others appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>Suit in admiralty by A. Schilling & Co., a corporation, against the steamer Santa Rita, the United Steamship Company, claimant, and others. Decree for libelant, and claimant and others appeal.</p>

<p>On petitions for rehearing. Amended, and rehearing denied.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Union Typewriter Company against L. C. Smith & Bros. Typewriter Company and E. N. Price. Decree for defendants (173 Eed. 288), and complainant appeals.</p>

<p>Perjury (§ 11*)—Patent Laws—'Commissioners’ Rules—Offenses—Perjury.</p> <p>Rev. St. § 4886 (U. S. Comp.'St. 1901, p. 3382), requires an applicant for a patent to,make oath that he fairly believes himself to be the original ’and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent, that he does not Snow and does not believe that the same was. ever before known or used, and shall state of what country he is a citizen. The Commissioner of patents, with the approval of the Secretary of Interior, under authority to make rules, promulgated rule 46, providing that the applicant shall make oath or affirmation that he does verily believe himself to be the original and first inventor and discoverer of the art, and also to state whether he is the '‘sole”or joint inventor of the invention claimed in his application. Section 5392 (page 3653) declares that every person who, in any case in which a law of the United States authorizes an bath to be administered, willfully and contrary to his oath states any material matter which he does not believe to be true, is guilty of perjury. Held that, since the Interior Department could not! by rule or regulation add any word or words to the statutory oath, an applicant for .a patent was not guilty of perjury, though he falsely stated that he was the “sole” inventor of the article for which a patent was applied.</p> <p>[Ed. Note.—For other eases, see Perjury, Cent. Dig. § 48; Dec. Dig. § 11.*] .</p>

<p>1. Patents (§ 114*)—-Jurisdiction of Federal Courts—District of Suit— ■ Suit to Obtain Issuance of Patent.</p> <p>■ The provision of section 1 of the federal. judiciary act of 1875 (Act March 3, 1875, c.' 137, 18 Stat. 470), as amended by Act March 3, 1887, c. 373, § 1, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (IT. S. Comp. St. 1901, p. 508), that “no civil suit shall be brought * * * against any person * * * ini any other district than that whereof, he is an inhabitant, * * * ” applies only to the civil suits specified in said section,- of which the federal and state courts have concurrent jurisdiction, and does not affect a suit brought, under Rev. St- § 4915 (ü. S. Comp. St. 1901; p. 3392), to obtain the issuance of a patent, of which a Circuit Court is given exclusive jurisdiction, regardless of the citizenship of the parties or the amount in controversy, and such a suit may be brought in any district where valid service can be had on the defendant.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 166; Dec. Dig. § 114.*] ■ ■ •</p> <p>•2. Abatement and Revival .(§ 3*)—Jurisdiction—Determination of Question. ' •</p> <p>Where a question of jurisdiction is purely one of law, it may be raised either by motion, or plea in abatement.</p> <p>[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 7-24; Dec. Dig. § 3.*]</p>

In the matter of Thomas D. Faulkner, bankrupt. On review of order of referee, denying petition of the American Slicing Machine Company for possession of a slicing machine.

In Admiralty. Petition for limitation of liability by Thomas Butler and others, as owners of the steamer C. H. Northam. On motion to dismiss for want of jurisdiction.

<p>Shipping (§ 209*)—Proceedings por Limitation op Liability—Valuation op Vessel.</p> <p>Where a vessel, at the time of the commission of injuries for which her owners seek limitation of liability, had been so far dismantled as to have no market value as a vessel, for the purpose of fixing the amount of the stipulation to be given by petitioners, the net value of the materials in her after she is broken up may properly be taken; but in such computation the value of a dummy engine placed on board for use in removing her machinery, and which was no part of her equipment, should be excluded.</p> <p>[Kd. Note.—For other cases, see Shipping, Cent. Dig. §§ 656-658; Dec. Dig. § 209.*</p> <p>Limitation of liability of vessel owner, see note to The Longfellow, 45 C. C. A. 387.J</p>

In Admiralty. Petition for limitation of liability by Thomas Butler and others, as owners of the steamer C. H. Northam. On questions of petitioners’ privity or knowledge, and their liability for damage to claimants.

<p>1. Electricity (§ 9*)—Injuries Incident—Scope oe Injunction.</p> <p>A court of equity has no power to prescribe by injunction the use by an electric street railway company of any particular' system of circuit or negative return, even though it is shown that the system in use results in the continuous injury, and will result in the destruction by electrolysis by its r.etum current of the pipes of a water company, but the utmost possible relief which the court can grant is to restrain the continuance of the injury, and punish the company and its officers for contempt in case of disobedience, leaving the means to be adopted to cure and prevent the injury entirely to its discretion.</p> <p>[Ed. Note.—For other cases, see Electricity, Dec. Dig. § 9.*]</p> <p>2.. Electricity (§ 9*)—Injury to Pipes oe Water Company by Electrolysis —Injunction—Measure oe Relief.</p> <p>In a suit by a water company against an electric street railway company to enjoin defendant from injuring the mains and service pipes of complainant by electrolysis caused by electricity generated by defendant, the evidence showed that both parties used in part the same streets under franchises granted by the city; that defendant operated its line by the single trolley system using the rails as return conductors; that complainants’ pipes were being injured by electricity which passed to them from the rails through the earth, but not to the serious extent claimed, and that the injury was being lessened by means adopted by defendant by the use of brazed rail bonds and by feeder wires from the rails to the negative side of the dynamos. The,weight of the expert testimony also tended to show that, while the escape of electricity from the rails to the water pipes and consequent injury to the latter by electrolysis could not be entirely prevented in the system used by defendant, it could be so lessened by the mean's defendant was adopting or other means suggested and used elsewhere as to practically prevent serious injury to the pipes of complainant. Held, that it was the legal duty of defendant to prevent such [1 injury by all reasonable and practical means; that it would be enjoined from continuing such injury, but would be left free to adopt within a reasonable time such means to that end as it should be advised.</p> <p>[Ed. Note.—F'or other cases, see Electricity, Dec. Dig. § 9.*]</p> <p>3. Words and Phrases—“C. G. S. System”—“Centimeter-Gram-Second System.”</p> <p>Units of electrical force and volume have been fixed by law with reference to what is known as the centimeter-gram-second system, generally referred to as the “C. G. S. system.” This system was adopted with reference to length, expressed by the centimeter, mass, expressed by the gram, and time, expressed by the second. These are the fundamental units of scientific work.</p> <p>4. Words and Phrases—“Unit of Force.”</p> <p>The unit of force, in scientific work, is that force which, when acting on a body weighing one gram, will give it an acceleration of one centimeter in one second. • .</p> <p>5. Words and Phrases—“Oiim”—“Unit of Resistance.”</p> <p>The unit of resistance, called the “ohm,” is 1,000,000,000 units of the 0. G. S. system;</p> <p>6. Words' and Phrases—“Unit of Volume”—“Ampere.”</p> <p>The unit of volume, called the “ampere,” is one-tenth unit of the C. G." S. system.</p> <p>7. Words and Phrases— “Unit oe Pressure”—“Volt.”</p> <p>The unit of pressure, called the “volt,” is that electrical force which when steadily applied to a wire or other conductor having a resistance of 1,000,000,000 units of the O. G. S. system will produce a current of one-tenth of a unit per second of that system. '</p> <p>8. Words and Phrases—“Unit oe Power”—“Watt”—“Horse Power.”</p> <p>The unit of power, called the “watt,” equals 10,000,000 units of power in the C. G. S. system, or one ampere times one volt. One horse power is 746 watts or % kilowatts.</p> <p>9. Words and Phrases—“Electrolysis”—“Electrolyte.”</p> <p>“Electrolysis” is the decomposition of a metal solution in water, liquid ammonia, etc., accompanied by decomposition of the water into oxygen and hydrogen, or of a mass of molten metal, by having an electric current passed through it. The solution or melted mass is known as an “electrolyte.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, vol. 3, p. 2343.]</p>

<p>In Equity. Actions by the Cascade Town Company and by Leander A. Bigger against the Empire Water & Power Company and others.</p>

In the matter of Max I. Hollander,' bankrupt. On petition of S. John Lion for permission to attach in the hands of the bankrupt’s trustee money belonging to a creditor of the bankrupt and payable to the creditor as a dividend out of the bankrupt’s estate, or for an order of the bankruptcy court directing the trustee to pay over the dividend to the petitioner.

<p>Petition to Review and Revise Order of District Court of the United States for the Northern District of Illinois,</p>

<p>On Petition to Review and Revise Order of District Court of the United States for the Northern District of Illinois.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. In the matter of David 1. Hanyan, bankrupt. From an order of adjudication (180 Fed. 498), the bankrupt appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Wilmington, in Bankruptcy.</p>

<p>On Petition for Leave to File a Bill of Review.</p>

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

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

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

<p>In Error to the Circuit Court of the United States for the Western District of Virginia, at Lynchburg.</p>

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

<p>On petition for a writ of mandamus requiring the allowance of an appeal from a decree entered in the Circuit Court of the United States for the Eastern District of Virginia on March 13, 1908, in case of the. Seaboard Air Line Ry. Co. v. Continental Trust Co. Wyndham R. Meredith, for petitioner.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Maryland, at Baltimore.</p>

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