Volume 182 — Federal Reporter

Action by the Tacoma Mill Company against the National Bank of Commerce of Tacoma, Washington. Judgment for plaintiff, and defendant brings error. The plaintiff in error was the defendant below, and the Tacoma Mill Company the plaintiff. The action was instituted to recover moneys alleged to have been wrongfully paid to one F. Pinkham upon certain cheeks and drafts of which the mill company was the owner.

Suit by the Rewis Publishing Company against Prank Wyman and another. Judgment for defendants (168 Ped. 752), and complainant appeals.

<p> (Syllabus by the Court.) </p> <p>1. Trade-Marks and Trade-Names (§ 25½,* New vol. 6, Key No. Series)— Manufacturer or Dealer Not Limited to a Single Mark.</p> <p>A manufacturer or dealer may secure the right to be protected in the-exclusive use of as many separate trade-marks as he first adopts and then so continuously uses that they clearly become to purchasers and those who intend to purchase distinguishing marks of the, origin and character of the goods he makes or sells.</p> <p>2. Trade-Marks and Trade-Names (§ 84*) — Previous Infringement brothers Who Have Ceased no Defense. ■</p> <p>It is no defense for a continuing infringer that others who had renounced their claim or right to use the trade-mark or have conveyed it to the complainant formerly infringed the right of its owner.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 84.*]</p> <p>3. Trade-Marks and Trade-Names (§ 32*) — Accessory Words and Symbols-do Not Destroy.</p> <p>It is the province and right of the owner and not of the infringer -of a trade-mark to select and adopt it, and the fact that he uses with it other symbols or words which he does not adopt as a part of that trademark does not deprive him of the right to it.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 32.*]</p> <p>4. Trade-Marks and Trade-Names (§ 84*) — Prior Use by Another Abandoned Before Infringement no Defense.</p> <p>It is no defense to a continuing infringement of a trade-mark that previous to the infringement a third party claimed or acquired the exclusive right to use the trade-mark which he abandoned by nonuser, or by assignment without his business or its good will, years before the present infringement.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 84.*]</p> <p>0. Trade-Marks and Trade-Names (§ 35*) — Olean Hands — Notice of Assignment When Necessary.</p> <p>When the chief effect of an assigned trade-mark is to point out by name the original manufacturer of the article and the original place of its manufacture, courts refuse relief to the assign who uses such a trademark upon goods made by himself at a different place without giving notice of tho assignment, under the rule that “he who comes into equity must come with clean hands.”</p> <p>But when the assigned trade-mark has been so long and favorably associated with the goods to which it was affixed before the assignment that it had come to indicate their superior quality or character as completely as their manufacturer or place of manufacture, and the assign affixes it to goods of a like character so that it works no actual deception, a court of equity will not fail to protect him in the exclusive use of it, although he gives no notice of the assignment.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 39, 40; Dec. Dig. § 35.*]</p> <p>3. Trade-Marks and Trade-Names (§ 80*) — Baches Not Chargeable Before Notice of Infringement.</p> <p>The owner of a trade-mark is not chargeable with laches for a failure to prosecute an infringer before he knows or has such notice as would lead an ordinarily prudent person to inquire and learn the existence of the infringement. It is not his duty to search out and discover it because the presumption- is that parties will abide by the law and respect his rights.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. § 86.*]</p> <p>7. Trade-Marks and Trade-Names (§ 65*) — Infringement—Test.</p> <p>The test of the infringement of a trade-mark is the affirmative answer to the question: Is the device used by the defendant likely or calculated to induce purchasers using such care as buyers ordinarily exercise to purchase the articles to which it is affixed in the belief that they are the articles made or sold by the owner of the trade-mark?</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 64; Dec. Dig. § 65.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3590-3594.]</p> <p>5. Trade-Marks and Trade-Names (§ 97*) — Technical Trade-Mark — Injunction Against Infringement — Intent and Damage Immaterial.</p> <p>Infringement of a common-law or technical trade-mark is a continuing trespass upon the property of its owner, and he is entitled to an injunction to suppress it whether the infringement was or is intentional or not, and whether it was or is injurious or not. Intent and damage are immaterial.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and: Trade-Names, Dec. Dig. § 97.*]</p> <p>9. Trade-Marks and Trade-Names (§ 93*).— Infringement — Evidence of the Eyes.</p> <p>In determining the question of the infringement of a trade-mark the evidence of the eyes is more persuasive and satisfactory than any ether.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, • Dec. Dig. § 93.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Trade-Marks and Trade-Names (§ 61*) — Infringement — Classes of Goods — Baking Soda and Baking Powder in Same Class.</p> <p>To sustain a charge of infringement the owner of a trade-mark must have used it on the same class but not necessarily on the same species of goods as the alleged infringer.</p> <p>Baking soda and baking powder are in the same class, and the use of a trade-mark for the former on the baking powder of a manufacturer other than that of the owner is an infringement.</p> <p>After one has acquired a trade-mark for one member of a class of goods, in this instance baking soda, another may not acquire the same trade-mark for another member of the class, in this case baking powder, although the former has not applied the trade-mark to that member.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 76; Dec. Dig. § 61.*]</p> <p>2. Trade-Marks and Trade-Names (§ 86*)— Infringement — Laches — Accounting — Injunction.</p> <p>To a suit for an accounting for profits secured by an infringement of a trade-mark the general rule of laches applies that suits will be stayed under ordinary circumstances after, and will not be stayed before, the time fixed by the analogous statute of limitations at law, but that if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of the suit after a briefer, or to forbid its main-' tenance after a longer, period than that fixed by the statute, the court will determine the extraordinary case in accordance with the equities which condition it.</p> <p>But a suit for injunction against future infringement of a trade-mark is not subject to the general rules of laches and the statute of limitations because repeated or continuous infringements establish no right to continue them, and mere delay in bringing suit to enjoin them does not prove an abandonment of his rights by an owner of a trade-mark, or an estoppel from preventing subsequent infringement.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 86.*]</p> <p>3. Trade-Marks and Trade-Names (§§ 97, 98*) — Injunction—Accounting.</p> <p>The owner of a trade-mark on baking soda and baking powder, who had used it on the former but never on the latter, learned that the defendant corporation was using it on baking powder but not upon baking soda about nine years before it brought suit for an injunction and an accounting.</p> <p>Held, the complainant was entitled to an injunction against future infringement, hut its accounting must be limited to the time subsequent to the commencement of the suit.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trado-Names, Cent. Dig. §§ 110-112; Dec. Dig. §§ 97, 98.*]</p>

<p>1.Master and Servant (§§ 204, 228*) — Injury to Servant — Machinery-Statutes — Assumed Risk — Contributory Negligence.</p> <p>Rev. Laws Minn. 1905, § 1813, declares that all saws and other dangerous appliances in any factory, mill, or workshop shall be so located as not to be dangerous to workmen, and every dangerous place in and about mills, near to which any employs is obliged to pass or to be employed, shall he securely fenced, inclosed, or otherwise protected. Held not to exempt the employs from the assumption of risk in working ¡around unguarded machinery, nor relieve him from his own want of ordinary care, which might directly contribute (to produce an injury of which he complains.</p> <p>[Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 544-546, 670, 671; Dec. Dig. §§ 204, 228.*</p> <p>Assumption of 'risk incident to employment, see note to Chesapeake & 0. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Master and Servant (§ 217*) — Injuries to Servant — Assumed Risk.</p> <p>Plaintiff, a millwright in a sawmill, was employed to make repairs to the machinery at night. He was an. experienced millwright, and had been at work in and around the mill for some 3 weeks, and had worked 18 months in a mill of like kind, except that it was a single .instead of a double band saw mill. I-Ie was also familiar with the saw and the machinery by which, the log and lumber carriers were operated. On being directed to repair or replace a sprocket chain near to the saw, instead of stopping the machinery before attempting to remedy the trouble, as he was authorized to do, he opened the housing and thrust his hand into a known' place of great danger next to the saw in an attempt to discover the cause of the trouble and to repair it while the machinery was in motion. His arm came in contact with the saw and was severed. Held, that he attempted to perform the work in a dangerous way, when a safe way was open to him, and that he voluntarily assumed the risk.</p> <p>[Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>3. Master and Servant (§ 190*) — Injuries to Servant-Fellow Servants— . Directions oE Foreman.</p> <p>Where plaintiff’s foreman, though authorized to hire and discharge employes, was still plaintiff’s, fellow workman, plaintiff was not entitled to rely on a statement of the foreman that the saw in the mill, by which plaintiff was injured, was properly guarded.</p> <p>[Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 449-.474; Dec. Dig, § 190.*]</p> <p>4. Master and Servant (§ 284*) — Injuries to Servant — Grounds oe Negligence-Pleading.</p> <p>Whore, in an action for injuries to a servant, plaintiff did not allege the dangerous condition of the premises as the ground of recovery, he was not entitled to have evidence showing such dangerous condition submitted to the Jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>5. Master and Servant (§ 154*) — Injuries to Servant — Failure to Warn.</p> <p>Where plaintiff, prior to the accident, had become fully acquainted with the place, and knew as much concerning the dangers of working about the machinery in the dark within the housing as any of defendant’s officers or employes could have told him or have known, defendant was not negligent in not informing plaintiff of the dangers surrounding the place in which he was injured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 808, 309; Dec. Dig. § 154.*]</p>

<p>In Error to the District Court of the United States for the Western District.of Missouri.</p> <p>The Nave-McCord Mercantile Company was convicted of a violation of the pure food law, and brings error.</p>

In Error,,to the Circuit. Court of the United States for the Southern District of Mississippi. Action by J. A. Tibbs against the Deemer Manufacturing Company. Judgment for defendant, and plaintiff brings error.

<p>Aliens (§ 68*) — Naturalization—Proceedings—Witnesses—Posting..</p> <p>Act Cong. 29, 1900, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 1909, p. 477), relating to the naturalization of aliens, requires a petition, signed and verified by two credible witnesses, certifying to the character, etc., of the applicant. Section 5 requires notice of the petition to be posted by the clerk, with the names of the witnesses whom the applicant expects to summon in his behalf, and requires the clerk, if the applicant request it, to issue a subpoena for witnesses so named by the applicant to appear on the day set for hearing, but, in case such witnesses cannot be produced on the final hearing, other witnesses may be summoned. Held that, where the court on final hearing is satisfied that one or more of the posted witnesses cannot be produced by the petitioner, the court may then order other witnesses to be summoned at the request of the applicant and accept their testimony.</p> <p>[Ed. Note. — Por other cases, see Aliens, Cent. Dig. § 141; Dec. Dig. § 68.* . .</p> <p>Citizenship under state and federal laws, see note to City of Minneapolis v. Reum, 6 C. C. A. 37.] ' ,</p>

<p>Appeal and Eeeoe (§§ 1097, 1195*) — Determination on Foemee Weit of Ee-eoe — Law of Case in Eeeoe.</p> <p>All questions of law determined on a former writ of error become the law of the case, both for the trial court and for the court of appeals on a second writ of error, provided the facts remain substantially the same.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4661-4665; Dec. Dig. §§ 1097, 1195.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Helga M. Odegaard against the Minneapolis Street Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from- the Circuit Court of the United States for the Northern Division of the Southern District ,of California.</p> <p>Suit in equity by United States Consolidated Seeded Raisin Company against the Kings County Raisin & Fruit Company and others. From an order granting a preliminary injunction, defendants appeal.</p>

<p>In Equity. Suit by the Trust Company of America against the City of Rhinelander, Wis.</p>

<p>Petition for writ of habeas corpus on behalf of Edwin H. Hubbard.</p>

<p>In Equity. Suit by the Southern Lumber Company against J. C. Long. On motions to modify preliminary restraining order.</p>

<p>1. CORPORATIONS (§ 80*)-SUBSCRIPTIONS - TO STOCK — RESCISSION FOP. FRAUD— Estoppel.</p> <p>A stockholder of a corporation brought a suit in equity on behalf of himself and all other stockholders to have the affairs of the corporation wound up, alleging that fraudulent mismanagement by its officers had rendered it insolvent. Receivers were appointed, who brought a suit in another state for the cancellation of a contract made by such officers on behalf of the corporation, which suit was compromised and settled with the approval of the court; the receivers being paid a considerable sum. Thereupon notice was sent to all stockholders to come in and prove their holdings, and from the proceeds of the settlement of the receivers’ suit a dividend of 20 per cent, was paid to all stockholders. Held, that stockholders, who came in pursuant to such notice, proved their claims, and received their dividends, were estopped to afterward maintain suits to rescind their contracts of subscription for fraud and claim as creditors of the corporation the amounts paid for the stock or to attack the validity of the settlement in the proceeds of which they had shared.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dec. Dig. § 80.*]</p> <p>2. Corporations (§ 682*) — Insolvency and Receivers — Settlement of Suit by Receivers — Rights op Resident Creditors.</p> <p>Receivers for a corporation which had ceased to be a going concern brought an ancillary suit in another state, which was compromised and settled with the approval of the court, and the compromise agreement partially executed by tbe payment by the defendant of a large sum of money to the receivers, which was distributed by the court of primary jurisdiction among the stockholders of the corporation. Held, that local creditors of the corporation in the state of the ancillary suit who had previously made no claims, conceding their claims to be valid, had no equity at that time to have the settlement set aside to enable them to • collect the same by garnishment of the defendant.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2662; Dec. Dig. § 682.*]</p> <p>3. Words and Phrases — “Class Suit” — “Creditors’ Suit” — “Stockholders’ Suit.”</p> <p>A “class suit” is one in which one or more members of a numerous class, having a common interest, sue in behalf of themselves and all óther members of that class. Sucb suits are sometimes called “creditors’ suits” and sometimes “stockholders’ suits.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, yol. 2, p. 1728.]</p>

In Equity. Suit by the Empire Trust Company and others against the Egypt Railway Company and others. On exceptions to master’s report,. and motion to recommit.

<p>Petition by Isidor Gelders and Mrs. Emeline Hall for disbarment of J. W. Haygood and Eldridge Cutts, attorneys.</p>

At Law. Action by Mrs. Beulah Peters, as administratrix, etc., against the Queen Insurance Company of America, on a fire policy, removed from the city court of Moultrie, Ga. On motion to remand.

<p>Appeal from the United States Court for the Southern District of the Indian Territory.</p> <p>Action by J. E. Hamilton against the Choctaw, Oklahoma & Gulf Railroad Company, the Western Oklahoma & Gulf Railway Company, and the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Carriers (§ 303*) — Injury oe Passengers — Management or Train at Station.</p> <p>Where a passenger train has stopped at a station platform to let passengers alight, any movement of the train without sufficient warning before a reasonable time has elapsed to permit passengers to alight or board the train, which results in injury to any such passenger, is a violation of ■ the duty the carrier owes passengers, whether the movement of the train be performed with ordinary care or negligently.</p> <p>[Ed. Note. — Lor other cases, see Carriers, Cent. Dig. §§ 1216-1243; Dec. Dig. § 303.*]</p> <p>2. Carriers (§ 318*) — Injury of Passenger — Negligent Movement of Railway Train.</p> <p>In an action against a railroad company to recover for an injury to a passenger, the complaint charging that “the engineer carelessly, negligently, and without warning gave the train a sudden start” after the train had stopped at a station, by which plaintiff was thrown against the railing, the evidence held insufficient to show that the movement of the train was with such unusual violence as would amount to negligent operation, unless under the circumstances it was negligence to move it at all without warning.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307-1314; Dec. Dig. § 318.*]</p> <p>3. Carriers (§ 320*) — Action for Injury to Passenger — Questions for Jury. .</p> <p>Whether the stopping of a railway train after a station has been called, but before it reached the platform, and the starting again without warning to passengers, was negligence which rendered the company liable for the injury of a passenger who had started to alight, was a question of fact, to be determined by the jury, in an action to recover for the injury, on consideration of all the attendant circumstances which may affect the questions of defendant’s negligence and plaintiff’s contributory negligence; such movement of the train not being negligent as matter of law.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 320.*]</p>

<p>1. Receivers (§ 154*) — Allowances—Counsel Fees.</p> <p>The fees of counsel 'employed to oppose a motion to vacate an order appointing a receiver are not a proper charge against the estate; the matter being one for litigation by the parties, and not by the receiver.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 282; Dec. Dig. § 154.*]</p> <p>2. Corporations (§ 557*)- — Receivers—Application pop. Appointment without Notice — Requisites oe Application.</p> <p>Where a court is asked to appoint a receiver for the property of a corporation without notice, and especially where it is asked to depart from the usual practice and appoint a complainant in the bill, it is the duty of the complainant to make a full, frank, and complete statement to the court of all facts which might affect its action.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2230; Dec. Dig. § 557.*]</p> <p>8. Receivers (§ 42s) — Duties—Effect of Teems of Order of Appointment.</p> <p>Where an order appointing a receiver, without notice, although perrna-' nent in form, reserves leave for any person interested on notice to move for his discharge, the effect is to make the appointment temporary in ita nature and to require the receiver to act accordingly.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 68; Dec. Dig. § 42.*]</p> <p>4. Corporations (§ 558*) — Receivers — Nature oe Appointment — Unwarranted Exercise op Authority.</p> <p>Complainant was substituted for the original trustee in a deed of trust executed by a corporation to secure bonds by action of the holder of a majority in amount of the bonds, under a power contained in the deed, and at once presented á bill and application for his own appointment as receiver for the corporation to a federal judge. None of the officers or stockholders had notice of the application, except the president, who at complainant’s request signed a letter consenting to the appointment. The judge signed the order presented1, after adding a provision giving any person interested the right to move for its vacation on five days’ notice. The annual meeting of the stockholders of the corporation was to be held on the day the application was made, but such fact was not disclosed to the judge by the bill or otherwise. Three days after the order was signed, stockholders and creditors served notice of a motion for its vacation, and, a minority bondholder having bought the bonds of the majority holder, the order was vacated and complainant was removed as trustee. Held, that ' the order as signed made the receivership temporary in character, and it was complainant’s duty to take no further action as receiver than was absolutely necessary to protect the interests of the corporation, until it was known whether the receivership would he continued; that, having been allowed $500 for his services as trustee, he was entitled to no compensation as receiver, nor to the allowance of counsel fees he had contracted to pay for instituting suits on behalf of the corporation, which action on his part was neither necessary nor warranted under the circumstances.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 2237-2240; Dec. Dig. § 558.*]</p>

Joseph Wendling was indicted for murder, and removed the case to the federal court. On motion of the Commonwealth to remand.

<p>In Admiralty. Suit by the Carolina-Portland Cement Company against the schooner F. & T. Lupton.</p>

<p>In Equity. Suit by Louis De Jonge & Co. against the Breuker & Kessler Company. On final hearing.</p>

In Equity. Suit by the Pennsylvania Steel Company against the New York City Railway Company and others. On motion to direct receiver to pay certain claims.

<p>In Equity. Suit by the United States against Charles Bellm. On demurrer to bill.</p>

In Bankruptcy. In the matter of bankruptcy proceedings against F. K. Kyte. On exceptions to the report of a referee making distribution on a sale of real estate.

In Admiralty. Proceeding by the Winnisimmet Company, as owner of the ferryboat City of Boston, for limitation of liability, in which Mary R. Davenport and Vernon B. Davenport filed claims. On motion for the appointment of a commissioner to take proofs, and motion by petitioner for consolidation with other proceedings.

Er Admiralty. Proceedings by the Winnisimmet Company, as owner of the- ferryboat City'of Boston, for limitation of liability: Oh claims for loss, .damage, and injury by Mary R. Davenport and Vernon B. Davenport.

<p>In Admiralty. Proceedings by the Eastern Dredging Company, as owner of the Scow No. 34, for limitation of liability.</p>

In the matter of the bankruptcy proceedings of W. W. Taylor. On exceptions to the report of a special master denying a discharge.

<p>In Equity. Suit by the Atchison, Topeka & Santa Fé Railway Company and others against the Interstate Commerce Commission. On petition for an interlocutory injunction suspending the enforcement of an order of the Commission requiring complainants to establish and maintain for a period of two years a rate not exceeding $1 per hundredweight for the transportation of lemons.</p>

In the matter of Morris Krall, bankrupt. On certificate of referee, filed in response to the bankrupt’s petition for review of an order directing that the bankrupt surrender to the trustee goods of the value of $5,000 or that amount in money.

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Actions by Edwin S. Dayman against Joseph Forshaw, Jr., and another and against C. H. Williams and others. Judgment for plaintiff in each case, and defendants bring error in the first case, and appeal in the second.</p>

Action by the Société Commerciale de L’Oceanie against the El Do-rado Oil Works Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of Texas.</p> <p>Bill in equity by th.e Houston Oil Company of Texas and others against W. J. Drake and others. From a decree in favor of defendants, complainants appeal.</p>

Action by the Houston Oil Company of Texas and others against the Williams Lumber Company and others. From a judgment in favor of plaintiffs, defendants appeal.

<p>1. Assumpsit, Action of (§ 23*) — General Issue.</p> <p>In an action of assumpsit, described as a “plea of the case,” the general issue is “never promised,” which opens up all defenses except limitations and set-oif.</p> <p>[Ed. Note. — For other cases, see Assumpsit, Action of, Cent. Dig. §§ 130-152; Dec. Dig. § 23.*]</p> <p>2. Assumpsit, Action of (§ 31*) — Verdict—Effect.</p> <p>In assumpsit, described as a “plea of the case,” defendant answered that it never promised in manner and form as plaintiff declared, whereupon a verdict was rendered that “defendant did not promise in manner and form as plaintiff in his writ and declaration declared against it.” Held, that such verdict followed the plea, and amounted to no more than a general verdict for defendant, based on a general denial.</p> <p>[Ed. Note. — For other cases, see Assumpsit, Action of, Cent. Dig. §§ 165-167; Dee. Dig. § 31.*]</p> <p>3. Contracts (§ 348*)' — Conditions Precedent — Burden of Proof.</p> <p>The contract in this case rested on a condition precedent Held, therefore, that the burden rested on the plaintiff to meet the condition by proper proof, although a negative was involved, but that only a modicum of proof was required.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1754-1780; Dec. Dig. § 348.*J</p>

Suit in equity by the Consolidated Loops Company against Edwin D. Miner, Charles Hadfield, and Agnes Hadfield. Decree for defendants, and complainant appeals. The following is the opinion of Hough, District Judge, in the Circuit Court, so far as referred to by the Circuit Court of Appeals: In my opinion, the patent in suit, under even a liberal interpretation, has been anticipated by the Jones British patent (17,328 of 1901).

<p>In the matter of Amos L,. Forse and George W. Roseboom, individually and as members of the partnership of Forse & Roseboom, bankrupts. Controversy over the title to $131, claimed by W. A. Neff, being, the proceeds of certain personal property sold by the trustee free and clear of incumbrances, under agreement that liens, if any, should attach to such proceeds!</p>

In Equity. Bill by Andrew J. Howard against the National Telephone Company and others. On demurrer to bill. Howard, a citizen of Indiana, has filed his bill herein against the National Telephone Company, a West Virginia corporation, the Continental Telephone & Telegraph Company, a New Jersey corporation, and 14 other telephone companies, corporations existing under the laws of West Virginia, Pennsylvania, and Ohio.

Actions by John B. Anderson, William H. Howard, and Robert Brown against Charles E. Myers and A. Claude Kalmay for refusal to register complainants as qualified voters. On demurrer to plaintiffs’ declarations.

In the matter of the bankruptcy proceedings against the V. & M. Lumber Company, Incorporated. On petition of the trustee to sell real estate and determine the validity of liens thereon.

Suit by the United States, to the use of the General Electric Company, against the Schofield Company and the Title Guaranty & Surety Company. Motion for judgment for want of- a sufficient affidavit of defense.

<p>Bankbuptct (§ 68*) — Pebson Subject to Adjudication — “Wage-Eabneb.”</p> <p>Where an alleged bankrupt had engaged in a mercantile business in which he had contracted debts, and thereafter acquired property by inheritance, worth $40,000, which he immediately assigned to his brother for $180, and during the year the assignment was made received wages for his services exceeding $1,500 per annum, he was not a “wage-earner,” exempt from bankruptcy adjudication, under the provision of the bankruptcy act authorizing an adjudication against any natural person, except a wage-earner, defined to be an individual working for wages at a rate not exceeding $1,500 per year.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 68.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7365.]</p>

<p>In the matter of bankruptcy proceedings of Mrs. S. L. Duggan. On petition by the trustee to review a referee’s order sustaining the validity of an unfiled chattel mortgage.</p>

<p>1. Aliens (§ 32*) — Chinese Exclusion Proceedings — Nature.</p> <p>Proceedings for the exclusion of Chinese, authorized by the exclusion act (Act May 5, 1892, c. 60, § 6, 27 Stat. 25, as amended by Act Nov. 3, 1893, c. 14, § 1, 28 Stat. 7 [U. S. Comp. St. 1901, p. 1320]), though providing for the arrest, trial, and deportation of Chinese found unlawfully within the country, are not criminal proceedings.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dec. Dig. § 32.* Nature and form of actions, whether civil or criminal, see note to United States v. Atlantic Coast Line R. Co., 98 C. C. A. 117.]</p> <p>2. Jury (§ 19*) — Searches and Seizures (§ 7*) — Criminal Law (§ 1213*)— Constitutional Law (§ 318*) — Bail (§ 42*) — Exclusion—Chinese— Proceedings — Constitutional and Statutory Provisions.</p> <p>The constitutional and statutory provisions guaranteeing trial by jury, prohibiting unlawful seizure and search, cruel and inhuman punishment, and the deprivation of life, limb, or property without due process of law, and regulating the admission to bail in criminal cases, have no application to Chinese exclusion proceedings.</p> <p>[Ed. Note. — FOr other cases, see Jury, Cent. Dig. §§ 10A-133; Dec. Dig. § 19 ;* Searches and Seizures, Cent. Dig. § 5; Dee. Dig. § 7 ;* Criminal Law, Cent. Dig. §§ 3304-3309; Dec. Dig. § 1213;* Constitutional Law, Cent Dig. § 949; Dec. Dig. § 318;* Bail, Cent. Dig. § 139; Dee. Dig. § 42.*]</p> <p>3. Aliens (§ 32*) — Chinese Exclusion Proceedings — Bail—Authority to Grant.</p> <p>Where proceedings are instituted for the deportation of an alleged Chinese alien, after he has been allowed to enter and is domiciled within the country, a federal court, having jurisdiction of proceedings to determine the validity of proceedings for Ms deportation, has inherent authority to admit him to bail pending such determination.</p> <p>[E'd. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dec. Dig. § 32.*]</p> <p>4, Aliens (§ 32*) — Chinese Depoetation Peoceedings — Right to Bail.</p> <p>Where an alleged Chinese alien, domiciled in the United States, is arrested in deportation proceedings, he is not entitled to bail as of right, but only in the discretion of the court, to be exercised with reference to the facts of the particular case.</p> <p>[Kd. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dec. Dig. § 32.*]</p>

In the matter of E. H. Gay and others, bankrupts. On petition by bankrupts for review of referee’s order authorizing and directing the trustee to appear in and prosecute a pending suit begun by bankrupts.

In Equity. Suit by Arthur K. Brown, as receiver of the American Alkali Company, against Edwin S. Allebach and others. On petition of Augustus T. Ashton to strike off the judgment against him for stockholder’s liability.

<p>John F. Ehrgott and others were indicted for violating the internal revenue law.' On demurrers to indictment.</p>

<p>. 1. Aliens (§ 54*) — Immigration—Right to Enter — Physical Condition— Certificate op the Medical Officer — Decision of Board of Inquiry — Conclusiveness.</p> <p>Where, on the arrival of an alien, he was examined by. the medical officer of the United States public health and marine service, who certified that he was “afflicted with idiocy," and thereafter a board of special inquiry decided on such certificate that the alien was not entitled to enter, and directed that he be deported, the decision of the board was a conclusive finding as to the existence of the physical disability and that the applicant was within Act Feb. 20, 1907, e. 1134, § 2, 34 Stat. 898 (U. S. Coinp. St. Supp. 1909, p. 448), providing that all idiots shall be excluded.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 54.*]</p> <p>2. Citizens (§ 9*) — -Children of Naturalized Parents — Citizenship—Commencement.</p> <p>Act March 2, 1907, c. 2534, § 5, 34 Stat. 1229 (U. S. Comp. St. Supp. 1909, p. 440), provides that a child bom without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship of the parent, provided that such naturalization or resumption takes place during the minority of the child, and that the citizenship of such minor shall begin at the time the minor begins to reside permanently in the United States. Belcl, that where a minor child, whose father was a naturalized citizen, had never resided in the United States, and on applying to enter was found by a board of special inquiry to be an idiot and within excluded classes, he was not entitled to enter because of the citizenship of his father, as such right could not begin until the child had begun to permanently reside within the United States.</p> <p>[Ed. Note. — For other cases, see Citizens, Cent. Dig. § 10; Dec. Dig. § 9.*]</p>

<p>At Law. Action by Bainbridge Grocery Company against the Atlantic Coast Line Railroad Company and another. On motion to remand cause to the state court.</p>

<p>UouRTS (§ 508*) — Restraining Suits — Federal and State Courts — Concurrent Jurisdiction — Statutes.</p> <p>Rev. St. § 720 (U. S. Comp. St. 1901, p. 581), provides that an injunction shall not be granted by any federal court to stay proceedings in any court of a state, except where such injunction would be authorized by any law relating to proceedings in bankruptcy. Section 716 says that the federal, court shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law. Held, that section 720 was modified by section 716, and hence, where a federal court, in the exercise of its concurrent jurisdiction, has taken possession of all the property of certain corporations in receivership proceedings, it will enjoin the prosecution of suits against such corporations in the state, court, by which the property so taken may be seriously impaired and the operations of the receiver seriously interfered with.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 508.*</p> <p>Enjoining proceedings in state courts, see notes to Gardner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. O. A. 437.]</p>

At Law. Action by Richard Stockton, as administrator, against the Pennsylvania Railroad Company. On rule to show cause why the verdict should not be set aside as excessive.

The United States sued the Atlantic Coast Tine Railroad Company, in 20 counts, to recover the sum of $100 in each count for 20 violations of what is commonly called the “Safety Appliance Act.” The government produced evidence to sustain each of the counts in the declaration. The defendant introduced no evidence. A motion was made in behalf of the government for the direction of a verdict in its favor.

<p>In Equity; Bill by Morris & Co. against C. R. Whitley and others. On demurrer to bill.</p>

In the matter of bankruptcy proceedings against George W. Glis-sqn. On objection to a referee’s decision disallowing a homestead to the bankrupt.

<p>Aliens (§ 68*) — Naturalization—Proceedings — Time — Member or Navy or Marine Corps.</p> <p>Act Cong. June 29, 1906, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 1909, p. 477), to provide for a uniform rule for the naturalization of aliens throughout ttie United States, declares, in section 4, that an alien may be admitted to become a citizen of the United States in the following manner, and “not otherwise.” Held, that the provision of such act requiring notice of the petition to be posted for 90 days prior to hearing was applicable to an alien applying for citizenship under Act Cong. July 26, 1894, c. 165, 28 Stat 124 (U. S. Comp. St. 1901, p. 1332), providing that service in the navy or marine corps for a specified term, and honorable discharge, shall be counted as residence, and shall entitle an alien having other necessary requisites to citizenship.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 68.⅜]</p>

Circuit Court of the United States for the Southern. District of -Iowa. Proceedings before the Board of Supervisors of Appanoose County, Iowa, to establish a drainage ditch. From an award of damages by-appraisers to the Chicago, Burlington & Quincy Railroad Company that company appealed and removed the cause into the federal court. From the judgment of that court (170 Fed. 665), it brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>Proceedings before the Board of Supervisors of Appanoose County, Iowa, to establish a drainage ditch. From an assessment of benefits against the property of the Chicago, Burlington & Quincy Railroad Company that company appealed and removed the cause into the federal court. From the judgment of that court affirming the assessment (170 Fed. 665), it appeals.</p>

Suit in equity by Charles Gulden against Robert C. Chance, Albert Chance, and Wilmer Chance, copartners as R. C. Chance’s Sons. Decree for defendants (180 Fed. 178), and complainant appeals. Tfie illustrations herewith shown aré of certain olive bottles, with their dress, discussed in the opinion.

Action by Beckie Jarowski against the Hamburg-American Packet Company. From a judgment for defendant, entered on a directed verdict at the close of the testimony, plaintiff brings error.

Action by Mary Mohns against the Netherlands-American Steam Navigation Company. Decree for libelant, and defendant appeal's. The following is the opinion of Adams, District Judge, in the trial court: This action was brought b'y Mary Mohns to recover from the Netherlands-American Steam Navigation Company for personal injuries received on the 28th of June, 1905, while a second-class passenger on the respondent’s steamer Rotterdam during a voyage from New York to Rotterdam.

<p>1. Patents (§ 271*) — Action foe Infringement — Issues—Demubber.</p> <p>The question whether or not the subject-matter of a patent is within one of the classes of things which are patentable under the statute is purely one of law, and may be determined on demurrer in an action for its infringement.</p> <p>[Ed. Note. — For'other cases, see Patents, Dec. Dig. § 271.*]</p> <p>2. Patents (§ 13*) — Subjects of Patents — “Manufacture” — Room in House.</p> <p>A house, or a room in a house, is not a “manufacture,” within the meaning of Rev. St. § 4886 (IT. S. Comp. St. 1901, p. 3382), which authorizes the granting of patents for “any new and useful art, machine, manufacture, or composition of matter,” and a particular form of construction of a room, or portion of a room, in a house, is not patentable.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 11, 12; Dec. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, yol. 5, pp. 4344-4346; vol. 8, p. 7716.]</p> <p>3. Patents (§ 328*) — Validity—Apartment House with Disappearing Bed.</p> <p>The Holmes patent, No. 839,996, for an apartment house with disappearing bed, is void, because the subject-matter is not within the patent law.</p>

<p>Recjgivebs (§ 158*) — Management op Property — Priority op Claims.</p> <p>Where mill property in the hands of a receiver is sold under order of court, a claim for water rent, the property not being dependent on the water supplied for fire protection, the receivers not having availed themselves of the right to use the water; and the property being sold without that right, cannot be treated as anpexpense of the receivership, so as to give it priority over a mortgage which was recorded at an earlier date.</p> <p>[Ed. Note. — For other cases, see Receivers, 'Cent. Dig. §§ 301-306; Dec. Dig. § 158.*]</p>

<p>Separate applications by Sadie M. Sprung, Rebecca Bloom, and Abraham Bloom for himself and infant children, for writs of habeas corpus to procure their release from detention by W. R. Morton, Immigrant Inspector, in deportation proceedings.</p>

<p>1. Death (§ 31*) — Actions foe Causing Death — Persons Entitled to Sue.</p> <p>Since the action for negligence causing death is wholly statutory, and Carter’s Ind. T. St. (Ind. T. Ann. St. 1899, §§ 3430, 3431), giving the right of action, expressly specifies as the parties who may bring the action the personal representative of the deceased person, and, if there be no personal representative, then the heirs at law of the deceased person, those parties only may maintain the action.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35-36; Dec. Dig. §31.*].</p> <p>2.. Death (§ 50*) — Actions fob Causing Death — Pleading^-Matters to be Proved.</p> <p>In an action by the widow and heirs of a decedent for causing his death, plaintiff must not only plead, but must also prove, that there has been no administration.</p> <p>[Ed. Note. — For other eases, see Death, Cent-. Dig. § 67;. Dee. Dig. § 50.*]</p> <p>3. Appeal and Ebboe (§ 499*)— Recobd — Pbesentation of Geounds of Review.. ■.</p> <p>A record showing that defendants requested a directed verdict, and the motion for new trial alleging its refusal as error, and the'statement of the case in defendant’s brief on writ of error, reciting that the case presents three phases, namely, negligence of a workman, negligence of the servants of defendant railroad company and the contributory negligence of the decedent show that the failure of proof of nonadministration of the decedent’s estate, so as to give the heirs the right to sue,. was not called to the attention of the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2299; Dec. Dig. § 499.*]</p> <p>4. Appeal and Ebboe (§' 1170*) — Review—Harmless Ebbob.</p> <p>■ Whether Mansf. Dig. Ark. § 5083 (Ind. T. Ann. St. 1899, § 3288), ifi force in Indian Territory when the ease, at bar was tried and appealed to the Court of Appeals,. of which the federal Circuit Court is the successor, providing that the court must disregard any error which does not affect the'substantial rights of the adverse party, is binding'on the federal Gir-cuit Court or not, it embodies a sound principle of lavv.</p> <p>[Ed. Note.- — F'or other cases, see Appeal and Error,. Cent. Dig. §§-4540-4545; Dec. Dig. § 1170.*] . -</p> <p>5. Parties (§,76?) — Capacity to Sue — Waiver of Objections.</p> <p>-In an action -for causing death tried more than three years after the death, the failure of plaintiff to prove that there had been no administration, after pleading such want of administration and a denial thereof by defendant, is'waived where it is not brought to the attention of the court.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 117-121; Dec. Dig. § 76.*]</p> <p>6. Death (§ 75*) — Actions for Causing Death — Evidence.</p> <p>In an action by a widow and heirs for causing death, testimony of the widow that she was married to the decedent, and that they had three children, who were the other plaintiffs associated with her in the case, was sufficient to warrant the jury in finding that she was the decedent’s lawful wife, and that the other plaintiffs were his only children.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 93, 95; Dec. Dig. § 75.*]</p>

<p>1. Bankruptcy (§ 241*) — Fax.sk Sweabing — Witnesses—Statutes—Construction — -“Pebson.”</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 41, 30 Stat. 556 (U. S. Comp. St. 1901, p. 3437), providing that certain acts committed by any “person” before a referee in bankruptcy shall constitute a contempt of court, the word “person” is not limited to the bankrupt, but extends to a witness guilty of perjury before the referee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 241.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.1</p> <p>2. Bankruptcy (§ 241*) — Contempt—Punishment.</p> <p>Bankr. Act July 1, 1898, c. 541, § 2 (16), 30 Stat. 545 (U. S. Comp. St. 1901, p. 3421), empowering the court to punish persons for contempts committed before referees, authorizes punishment as for contempt of a witness who has committed perjury in bankruptcy proceedings before a referee ; the same power being also conferred on the court by Rev. St. U. S. § 725 (U. S. Comp. St. 1901, p. 583).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 241.*]</p>

In the matter of the bankruptcy of C. M. Burkhalter & Co. Hearing on motion to confirm the report of master on a reference to restate the account between Thomas Rogers, as; receiver,- and the People’s Savings Bank & Trust Company. Findings against the bank’s claim'as preferential creditor.

At Raw. Action by Fannie Pulom against the Jacob Bold Packing Company. On demurrer to petition. This suit was brought by the plaintiff to recover damages for the death of her husband.

At Law. Action by Harry C. Dale against Charles H. F. Smith and others, as receivers of the Chicago Great Western Railway Company. On plea to the jurisdiction and motion by plaintiff to remand the cause to the state court.

In Equity. Suits by Morris Engel against-Edward R. O’Malley and by Samuel Kohan against Edward R. O’Malley and others. On motion in each case for preliminary injunction and demurrer to complaint.

<p>1. Bankruptcy (§ 327*) — Action Against Trustee — Effect Of Judgment.</p> <p>The voluntary litigation against the trustee of a claim against a bankrupt .estate, resulting in a judgment' against the trustee, does not create a new lien or a preferred debt, which can be enforced against the estate; but its only effect is to liquidate the claim, and the judgment must be proved as provided in Bankr. Act July 1, 1898, a 541, 30 Stat. 563 (D. S. Comp. -St. 1901, p. 3447).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, .Dec. Dig. § 327.*]</p> <p>2. Bankruptcy (§ 319*) — Provable Claims — Liquidation of Debt After Expiration of Year for Filing Qlaims.</p> <p>Where the trustee of a bankrupt, 18 mouths after the adjudication, brought an action in a state court against a supposed debtor of.the estate, but was defeated, and the defendant recovered a judgment on a counterclaim against the bankrupt, the trustee is liable for the costs of the action; but the creditor, having filed no claim within the time allowed, cannot prove the judgment against the estate. ...</p> <p>[Ed. Note. — For- other- cases, see Bankruptcy, Dee. Dig. § 3Í9.*]</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 Jennie Dawson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p> <p>This action was brought by Mrs.-Jennie Lawson against the Western Union Telegraph Company to recover damages for the alleged negligence of the defendant in failing to make prompt delivery of a telegraphic message to her at her residence in Seattle, Wash.</p> <p>It is alleged in the complaint: That Mrs. Jennie Lawson was in January, 1908, proprietress of a certain hotel and lodging house in the city of Seattle, in the state of Washington; known as the St. Francis Hotel. That, being apprehensive that an indebtedness of about $500 which was to fall due about February 1, 1908, could not be met by her without assistance - from relatives or friends, she had offered her leasehold interest and her furniture in said hotel for sale for the sum of $10,000 which sum was more than $2,000 less than the reasonable value thereof. That, in .order to avoid the making of so large a sacrifice in the sale.of said leasehold interest and personal property, she applied to A. P. White, residing in Weston, in the state' of West Virginia, for a loan of $500 to enable her to meet said obligation and prevent said sacrifice. That in her letter to said White she requested him to telegraph to her whether or not he could and would loan her'that amount. That said White received her letter on Sunday, the -26th day of January, 1908, and on the next day he sent to her from said Weston a telegraphic message by the defendant’^ lines reading as follows: “Weston, West Virginia, January 27, 1908. Jennie Lawson, Care St. Francis Hotel, No. 816 Union Street, Seattle, Washington. Will mail you draft to-day. A. P. White.” That said telegraphic message wks delivered to defendant’s agent at Weston by one H. W. Lightbum, who at the time of so delivering the same told said agent it was very important that the telegram be delivered to Jennie Lawson that same day. That said telegram was received in the'defendant’s telegraph of-flee in Seattle at 35 minutes past 7 o’clock on the morning of the 27th day of January, 1908. That defendant did not deliver the same to the plaintiff on said day, nor at any time, nor at all until Saturday, the 15th day of February, 1908. That from and after the 26th day of January, 1908, the plaintiff by telephone daily called up the defendant’s office in said city of Seattle, giving her name and residence, and inquired if there was any telegram for her. That plaintiff told defendant’s Seattle office that she was expecting a telegram, that it was very important that it be delivered to her immediately upon its receipt by defendant. That the defendant’s said office invariably answered her that there was no telegram there for her. That between the 26th day of January, 1908, and the 1st of February, 1908, she frequently made said inquiry of said telegraphic office two or three times a day with the same result. That, failing to receive said telegram and assuming that said White was unable to make said loan to her, she was obliged to accept an offer of certain real property valued at §5,000, the assumption by the purchaser of the mortgage of personal property amounting to §2,650, and cash $850, making a total of §8,500 for her leasehold interest and furniture in the hotel. This offer she was obliged to accept and did accept on the 1st day of February, 1908. That, had she received said telegram seasonably, she would have been in position to save said leasehold interest and personal property, and would have refused said offer and would have awaited, without sacrifice, the arrival of said draft by mail had she been informed that it was on its way to her. That after she had accepted said offer and conveyed her said interest and property, she received by mail a bank draft from the said White for the sum of $500. That it came to her too late to be of any benefit to her. That by reason of the premises she had made a sacrifice of not less than $3,500, and that by reason of the gross negligence of the defendant the plaintiff had suffered damage in the sum of $3,500.</p> <p>The defendant in its answer admits that on the 27th day of January, 1908, A. P. White at Weston, W. Va., delivered to the defendant for transmission over its lines to the plaintiff the telegram set forth in the complaint; but denies that its agent at Weston was told by any one'at-the time of the delivery of said message that it was very important, or important at all that the telegram be delivered to the plaintiff that same day;! admits the receipt of the telegram at defendant’s office in Seattle as alleged in the complaint; admits that defendant did not deliver the contents of the telegram to the plaintiff on- said day nor at any time prior to the 7th day of February, 1908, and did not deliver the written message itself until February 15, 1908; denies knowledge as to the application to A. P. White for a loan, or the reason for such an application,' or the purpose of the loan, or the contents of the letter, or when the said White received such a letter; denies that the plaintiff sustained the damages alleged in the complaint. But the answer does not deny the allegations of the complaint that from and after January 26, 1908, plaintiff by telephone daily called up the defendant’s office-at Seattle, gave her name and residence, and inquired if there was any telegram for her, stating that she was expecting a telegram; that it was very important-that it be delivered to her Immediately upon its receipt by the defendant; that defendant’s said office invariably answered her that there was no telegram there for her; that between January 26, 1908, and February 1, 1908, she frequently made said inquiry at said telegraph office — two or three times a day —with the same result.</p> <p>Upon the issue thus presented the case was tried before the court and jury.</p> <p>The plaintiff testified that she was the proprietress of the Hotel St. Francis, 816 Union street, Seattle. That she wrote a letter to Mr. A. P. White, Weston, W. Va., on January 19, 1908, which she identified and it was introduced in evidence. In this letter to White she States her financial condition and requests a loan of $500, which she says if he can make her she must know at once. “Please wire me,” she says, “at once what I can depend upon. Send me wire message at my expense.” It appears from the deposition of Mr. White that this letter was received by him on Saturday night, January 25, 1908; that on Sunday, January 26th, he answered the letter, stating that on the following day he would send her the money and would wire her in the morning. In this letter he inclosed a draft in,favor of the plaintiff for §500. This letter and draft were received by the plaintiff on the afternoon of January ⅝1, 1908. In the deposition off Mr. White he says he was . sick when he received the letter from plaintiff, and on Monday morning he called on H. W. Lightburn to'procure the draft for him, and to. telegraph plaintiff that the money was coming. From the deposition- of H. W. Lightburn, it appears that he obtained the draft from the bank when the bank opened about ⅜ o’clock on the morning of January 27, 1908, inclosed it in an envelope with Mr. White’s letter addressed to plaintiff. He also wrote a telegram and delivered it to defendant’s operator at Weston, W. Va., addressed and to be transmitted to plaintiff at Seattle. This telegram was. delivered to the operator at Weston at about 8 o’clock in the morning. The witness told the operator “that it was an important message and to get it through as quick as possible.” The message was-as follows: “Weston, West-Virginia, January 27, 1908. Jennie Lawson, Care St. Francis Hotel, No. 816 Union Street, Seattle, Washington. Will mail you draft to-day. A. P. White.”</p> <p>It appears from the testimony introduced on behalf of the defendant that this telegram was-received at Seattle at 7:35 on the morning of January 27, 1908. The address on the message as received Was “Jennie- Lawson, care St. Francis Hotel, 816 Union Street, Seattle,” but “816 Union Street" was left off. the message when it was written, out and placed in the envelope for delivery by the clerk in the telegraph office whose business it was to address the envelope. He says, he took it for granted that it was the St. Francis Hotel at Ninth and Madison streets. The message was delivered at the latter address at eight minutes past 8, and was receipted for by one W. O. Johnson. Plaintiff testified that she received the telegram on February 15, 1908; that on the morning of January 27th she knew that they (White) had got her letter and would certainly reply at once; that about 10 o’clock on that morning she called up the telegraph office and inquired if there was a message for her. They said no message had been received, and from that time on frequently, time and again, night and day, she called up the telegraph office. She thought perhaps they might misunderstand the name. She told them to look and see if there was any message at all for any Lawson — if they had received any Lawson message whatever; it was a matter of vital Importance to her; it meant something to her. This she did repeatedly. The answer was there was no message whatever for Lawson. Each time they said there- was no message for her. She mentioned the street and number, there being some confusion about the other St. Francis. She mentioned the street each time, and her name and everything as clear as possible. She finally received the message on February 15, 1908. The witness also testified concerning the damages she had sustained by reason of the failure of the defendant to promptly deliver the telegram from White.</p> <p>The defendant claimed that it appeared from the amended complaint that plaintiff was not entitled to more that nominal damages, and offered to allow such a judgment to. be entered for the plaintiff. . At the close of the testimony on behalf of the plaintiff, the defendant also moved the court to withdraw the case from the jury and enter a judgment in favor of the plaintiff for nominal damages. The court denied the motion, and the jury rendered a verdict for $500.</p> <p>The case comes here on writ of error from the judgment entered upon the verdict.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>Suit in admiralty by F. Lopes and 16 other seamen against the whaling bark John and Winthrop (H. J. Knowles and the Millen Griffith Company, claimants), in which two other seamen intervened. Decree for libelants and interveners, and claimants appeal.</p> <p>This is an action in rem, brought by the libelant F. Lopes and 16 others against the whaling bark John and Winthrop for wages and for breach of contract of good treatment while the libelants were .on board the bark as seamen on a whaling voyage on said vessel in the North Pacific and Arctic Oceans. There is also an intervention of two other seamen alleging the same causes of action. The shipping articles signed by the libelants and inter-veners provided for a term of service not to exceed 12 calendar months, and in consideration of the lay in the catch of the vessel the seamen to receiye no share or interest in the trade. The share of each of the libelants and in-terveners was to be a lay of 1/175 in addition to an advance of $35 paid them on signing the shipping articles. It was provided in the articles that the “seamen or mariners do severally hereby promise and oblige themselves to do their duty and obey the lawful commands of the officers on board said vessel or boats thereunto belonging as become good and faithful seamen or mariners while cruising for whales and at all places where said vessel shall put in or anchor at during said voyage, * * * and not to neglect or refuse doing their duty by day or night, and that they shall not go out of said vessel on board any other vessel, or be on shore under any pretense whatever until the aforesaid voyage be ended and the vessel discharged of her loading, without leave first obtained of the captain or commanding officer on board.”</p> <p>These articles were signed by the libelants in San Francisco in January, 1908. The vessel on her voyage reached the port of Hakodate, Japan, on July 23, 1908. It appears that on the next day the crew asked for and was granted shore leave by the master; the two watches being required to take their turns on successive days. The permission was given the men by the master to go ashore in the evening on the express condition that they would return on the next morning at 6 a. m. There was nothing due the men at that time, but the master gave them a small sum — one yen each. The first watch to go ashore was the starboard watch, on Saturday, July 25th. This watch returned on Sunday morning, July 26th, in accordance with the agreement had with the master, and on Sunday evening the port watch went ashore. This watdlj returned on Monday morning in accordance with the agreement. On Monday evening, July. 27th, the starboard watch again went ashore; but on Tuesday morning, July 28th, all the members of the watch did not return. Five of the watch were missing, namely, Olsen, Svensson, Mattsen, Costa, and Wilkins. The master reported these missing members of the crew to Mr. E. J. King, the United States consular agent at Hakodate, who applied to the local authorities for their arrest. The. consular agent at the same time directed the master not to allow any more of the crew to go,ashore, as it would . interfere with the apprehension of those that were missing. On the afternoon of Tuesday Olsen, Svensson, and Mattsen, were brought on board the vessel by the police, and on Wednesday, July 29th, Costa was returned to the vessel by the police, but Wilkins was not found and brought back until Friday, July 31st. In the meantime, and on Tuesday, July 28th, the port watch applied for leave to go ashore and was refused by the master, in accordance with the directions of the consular agent. Thereupon the entire crew quit work. At this time the master was ashore on business with the consular agent in connection with missing members of the crew. When the master returned and was informed of the situation by his chief mate, he asked the crew to go to work; but they refused, insisting that they should have more money and shore liberty. The master explained to the men the orders he had from the consular agent, but they persisted in their refusal to go to work. On July 29th and 30th the crew continued their refusal to go to work. They, however, sent a note to Mr. King, the consular agent, asking him to come aboard the vessel to hear their complaint; but as he was sick at the time he requested the master to allow two of the men to come and see him. On Friday, July 31st, two of the men, Prescott and Taylor, were allowed to go ashore to see the consular agent concerning their complaint and the right of the men to have shore leave. These two men went ashore as the representatives of the other members of the complaining crew. The consular agent heard their complaint, but refused to interfere further than to direct the master to place all the men in irons who refused to do duty. On Saturday, August 1st, each member of the crew was again asked to go to work, and upon refusing to do so several members of the crew were placed in irons; but, as there was not a sufficient number of irons on the vessel for all the disobedient members of the crew, additional irons were obtained from the consular agent, and subsequently all of the crew refusing to do duty were placed in irons, but allowed the freedom of the vessel and their regular rations. Three times on Saturday the members of the crew who had been placed in irons were requested to return to duty, but all refused. Some were willing to go to work, but were afraid of the leaders, who told the others not to go to work. On Sunday, August 2d, the members of the crew in irons were asked on several different occasions to go to work, but on each occasion all refused as before.</p> <p>The vessel made ready to sail from the port of Hakodate on Sunday, but before sailing the American consular agent came on board the vessel and had the men called on deck, and thereupon each man was asked to return to duty, but they all refused; the ground of refusal being that they had been refused shore leave and money. The vessel was taken to sea by the officers, assisted by the consular agent and three seamen who had not refused to do duty. On Monday, August 3d, the vessel was at sea, and upon the continued refusal of the disobedient crew to go to work, coupled with threats and the use of abusive language against the master, he called all the officers together to consider what should be done. After consultation it was determined to place the men on chains fastened to beams in the main hold or between-decks. There were three small chains stretched parallel to the three sides of the hatchway, one across athwartships and two on each side, running fore and aft. The men were handcuffed, and a chain run between the arms of each man, and the chain suspended from 4½ to 5 feet' above the deck; but they were not triced up in the sense in which that term is used on board ship. The purpose of the chain was to keep the men from dancing, or moving around, or lying around. There was the further reason for the chain in the fact that there was no other place or method of confining them. The handcuffs were not fastened to the chain, but could be rested upon it or elevated above it. The men could move along the chain from right to left from two to four feet. Their rations while on the chain were bread and water. At meals and while attending to the calls of nature the men were released from the chain from 20 to 30 minutes. On Monday night, August 3d, the chain was let down so that the men could lie down on deck. On Tuesday morning, August 4th, the chain was again suspended, and the men were again asked in the morning and at noon to return to duty, and they at first refused; but in the afternoon they asked to have the articles read to them, which was done, and about 6 o’clock in the evening they signified their willingness to return to duty, and they were immediately taken from the chain and released from their handcuffs. Some of the men complained of the punishment, they received because the handcuffs made their wrists sore, and others because the deck where they slept on Monday night was wet from the splashing of a water-cask. The men had been told, and they knew all the time, that as soon as they were willing to go to work they would be released from the chain and relieved from the handcuffs. The record does not contain all the testimony in the case.</p> <p>The foregoing facts leading up to the action of the master on August 3, 1909, when the libelants and interveners were placed on the chain, are taken from the stipulations and admissions of the parties to the action, the entries in the mate’s log book, and a certified statement, signed by E. J. King, the American consular agent at Hakodate, and such testimony as has been incorporated in the record relating to those occurrences; but the testimony of the witnesses that has been brought here on this appeal relates mainly to the occurrences on boards the vessel on and after August 3, 1909, and after the libel-ants and interveners had been placed on the chain, the appeal being limited in express terms to so much of the decree as was entered in favor of the libel-ants and interveners upon such causes of action.</p> <p>Upon arrival in San Francisco the crew were paid $1 each, for which they each executed a receipt, releasing the vessel, her owners, agents, master, or officers from all claims whatsoever. Subsequently they brought this action in the District Court. Upon the trial of the case the court awarded the libelants Olsen and Wilkins $50 each, on the ground that the master was not justified in placing Olsen and Wilkins in irons and imprisoning them on said vessel while in the harbor of Hakodate. To the remaining libelants, Lopes, Svens-son, Brown, McVey, Williamson, Naza, McDonell, Cramer, Olivier, Fraser, Mattson, Johnson, Anderson, George, Mahoe, Prescott, and Berg, the court awarded each the sum of $125, on the ground that the master was not justified in placing the libelants in irons and confining them in the main hold or between-decks of said vessel in the manner described.</p> <p>No appeal has been taken from the award of $50 each to Olsen and Wilkins. It is only that part of the decree awarding $125 to each of the latter named libelants that is involved in this appeal.</p>

Suit in admiralty by the United States against the steam tug John Twohy, Jr., Eambert’s Point Towboat Company, claimant, and petition by claimant for limitation of liability. Appeal by claimant from orders setting aside a sale of the tug and approving and confirming a second sale.

<p>1. Cotjbts (§ 366*) — Exemptions—Law Governing.</p> <p>The right of a bankrupt to exemptions under Bankr. Act July 1, 1898, c. 541, § 6a, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), is to be determined by the law of the state as construed by its highest court, if such a construction has been clearly given.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954r-957, 960-968; Dec. Dig. § 366.*]</p> <p>2. Bankruptcy (§ 396*) — Homestead Exemption — Kentucky Statute.</p> <p>Ky. St. § 1702 (Russell’s St. § 4661), exempts as a homestead “so much land including the dwelling house and the appurtenances owned by debtors who are actual bona fide housekeepers with a family, resident in this commonwealth, as shall not exceed in value one thousand dollars; but this exemption shall not apply * * * if the debt or liability existed prior to the purchase of the land.” Section 1705 (Russell’s St § 4664), provides that where the real estate in the opinion of the appraisers is of greater value than $1,000, and not divisible without great diminution of its value, it shall be sold, and $1,000 of the proceeds shall be paid to the debtor to enable him to purchase another homestead. Held, under the construction placed on such provisions by the Court of Appeals of the state, and the liberal rule of interpretation also announced by such court, which gives a debtor a reasonable time after acquiring unimproved land to convert the same into a homestead, that where a bankrupt within a few days before his bankruptcy acquired by descent an undivided interest in certain unimproved lands, not capable of division, and the proceeds of such interest, when sold, were less than $1,000, the bankrupt was entitled to the same as a homestead exemption; his intention to use the money to acquire a homestead being unquestioned.</p> <p>[Ed. Note. — Fbr other cases, see Bankruptcy, Cent. Dig. § 06S: Dec. Dig. § 396.*] ■</p> <p>3. Homestead (§ 56*) — Nature and Extent of Right — Kentucky Statute.</p> <p>Under the homestead statute of Kentucky, as construed by the Court of Appeals of the state, the fact that a debtor has received the value of one homestead exemption from the proceeds of land sold does not debar him from the right to the exemption of another homestead, subsequently acquired, after he has expended such proceeds, ás against the same debts.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 81, 82; Dec. Dig. § 56.*]</p> <p>4. Homestead (§ IS*) — Kentucky Statute — Effect of Residence on Wife’s Land.</p> <p>Under the homestead statute of Kentucky, as construed by the Court of Appeals of the state, the fact that a debtor is living with his family on land owned by his wife does not debar him from the right to claim a homestead exemption in lands of his own.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 14; Dee. Dig. § 13.*]</p>

<p>In Equity. Suit by'the Interlocking Steel Sheeting Company against the Friestedt Interlocking Channel Bar Company and.Luther. P. Erie-stedt;.-</p>

<p>In Equity. Suit for injunction by the Missouri, Kansas & Texas Railway Company against Harry A. McCrary and others.</p>

<p>1. Teade-Mabks and Teade-Names (§ 58*) — TNEEiNGEMENay-HoasE Nails.</p> <p>Complainant, a manufacturer of horse nails, adopted a trade-mark, consisting of a check figure formed of intersecting lines impressed on the under or bevel face of the heads of the nails. Defendants manufactured a nail of substantially the exact form of complainant’s nail, and to the eye not distinguishable therefrom. On the bevel face of the head of defendants’ nail was placed a check mark like complainant’s, covering two-thirds of such bevel face in the form of two triangles, which check was divided by an interposed triangular smooth surface covering the remain-' ing third of the bevel face. Reid, that defendants’ mark was calculated to deceive purchasers, and so resembled complainant’s mark as to constitute an infringement.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 66, 67; Dec. Dig. § 58.*]</p> <p>2. Tbade-Maeks and Teade-Names (§ 93*) — Use—License—Evidence.</p> <p>In, a suit to restrain infringement of a trade-mark, evidence held insufficient to sustain defendants’ burden of proving a verbal license to use complainant’s mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p>

<p>1. EVIDENCE (§ 450*)-WRITTEN CONTRACT — AMBIGtrOTTS TERMS — EXPLANATION —“At”—“At Nov. 15th.”</p> <p>A memorandum of sale provided that the goods should be delivered at specified dates thereafter, designated as “June 15/30,” “May 15/30,” “July 1/15,” and “at Nov. 15th.” It was conceded that the phrase “at June 15/30” meant between June 15th and June 30th. Held that, since “at,” when used both as to time and place, often means “near,” or “about,” the phrase “at Nov. 15th” was ambiguous, and did not necessarily mean on Nov. 15th, and hence parol evidence was admissible to explain the same.</p> <p>[Ed. Note. — For other eases, see Evidence, Dec. Dig. § 450.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 593-599; vol. 8, p. 7585.]</p> <p>2. Sales (§ 179*) — Condition Precedent — Waiver—Shortage.</p> <p>Where buyers had ample opportunity to know of a shortage in delivery, having the goods and invoice, they waived the condition of full delivery, entitling the sellers to recover the price of the goods delivered, under the rule that, where there is only an implied condition, promisors who have waived conditions precedent will be held liable, without proof of performance by the promisee.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 464; Dec. Dig. § 179.*]</p>

<p>In the matter of bankruptcy of Samuel Oldstein, on objections to the jurisdiction of the court.</p>

<p>1. Discovery (§ 80*) — Federal Statute — Requiring Production or Books in Actions at Law.</p> <p>Rev. St. § 724 (U. S. Comp. St. 1901, p. 583), which provides that “in the trial of actions at law” the federal courts may on motion require a party to produce books or writings in Ms possession which contain evidence pertinent to the issue in cases and under circumstances where he might be compelled to produce the same by ordinary rules of proceeding in chancery, confers power on the courts to require a party to produce books before as well as at the trial, where it would be required on a bill of discovery, but not otherwise.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 103, 105; Dec. Dig. § 80.*]</p> <p>2. Discovery (§ 97*) — Federal Statute — Requiring Production of Books in Actions at Law.</p> <p>To authorize a federal court to require a party to produce private books and papers for the inspection of his adversary before trial in an action at law, under Rev. St. § 724 (U. S. Comp. St. 1901, p. 583), it must be shown, not only that they contain evidence pertinent to the issues, but that they are in the possession or under control of the party against whom the motion is made, and that the moving party cannot secure the evidence from any other source.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 122-125; Dec. Dig. § 97.*]</p> <p>3. Discovery (§ 80*) — Definition.</p> <p>“Discovery” is the disclosure by the defendant of facts, titles, documents, or other things, which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery, as a part of a cause of action pending or to be brought in another court, or as evidence of his rights or title in such proceeding.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 103, 105; Dec. Dig. § 80.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2093-2095.]</p>

<p>1. Domicile (§ 2*) — Definition — “Residence” Distinguished — “Citizenship.”</p> <p>“Domicile” and “citizenship” are substantially synonymous terms in most cases, but there is a marked distinction between “domicile” and “residence”; the term “residence” indicating a place of abode, whether permanent or temporary, while “domicile” denotes a fixed permanent residence, to which, when absent, one has the intention of returning, and when there has been an actual removal with intent to make a permanent residence, and the acts of the party correspond with the purpose, the change of domicile is completed, and the law forces on him the character of a citizen of the state whore he has chosen his domicile, although he may have formerly declared that he nevertheless considered himself a citizen of the state he had left.</p> <p>[Ed. Note. — For other cases, see Domicile, Gent. Dig. § 2; Dec. Dig. § 2.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642; vol. 7, pp. 6151-6161; vol. 8, p. 7788; vol. 2, pp. 1175, 1176.1</p> <p>2. Citizens (§§ 2, 11*) — “Citizenship.”</p> <p>“Citizenship” carries with it the idea of connection or identification with the state, and a participation in its functions, and, as such, implies much more than residence. In the Constitution and laws of the United States, the term is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a state or of the United States. A change of citizenship is no(t shown unless residence in the old state Is In gpod faith given up and a permanent residence is acquired in a new one.</p> <p>[Ed. Note. — For other cases, see Citizens, Cent. Dig. §§ 1, 13-15; Dec. Dig. §§ 2, 11.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1175, 1176.]</p> <p>3. Removal of Causes (§§ 26, 86*) — Petition—Residence—“Citizenship.”</p> <p>An allegation of residence in a removal petition is not an allegation of citizenship in the state where residence is alleged. “Citizenship,” as used in the removal laws and the jurisdiction statute of 1875,, means residence with the intention of permanently remaining in a particular place.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ CO-63, 170-174; Dec. Dig. §§ 26, 86.*]</p> <p>4. Words and Phrases — “Residence.”</p> <p>A person cannot be a resident of two states at the same time, since residence is the act of residing or dwelling in a place for some continuance of time; the act or state of being seated or settled in a place. The term “residence” is flexible in its meaning, and may be given a restricted or enlarged meaning according to the connection in which it is used. It involves, however, the idea of permanency and fixed intention to remain, so that an allegation of residence in one state implies nonresidence in another.</p> <p>5. Words and Phrases — “Residence”—“Inhabitancy”—“Inhabitant.”</p> <p>“Inhabitancy” and “residence” are synonymous terms; an .“inhabitant” of a place being one who ordinarily is personally present there, not merely in itinere, but as a resident and dweller therein.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 4, pp. 3594-3604; vol. 8, p. 7687.]</p> <p>6. Citizens • (§ 11*) — “Change op Citizenship” — Elements.</p> <p>A “change of citizenship” involves an intention to make the change, actual removal accompanied by permanent residence in a new home 'with the intention of remaining there permanently, and the intention of returning there whenever absent.</p> <p>[Ed. Note. — For other cases, see Citizens, Dee. Dig. § 11.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1051-1050; vol. 8, p. 7599.]</p> <p>7. Citizens (§ 10*) — Change op Citizenship — Evidence.</p> <p>Evidence held insufficient to show a change of citizenship of complainant from Illinois to California.</p> <p>[Ed. Note. — For other eases, see Citizens, Dec. Dig. § 10.*]</p>

<p>1. Battkkuptot .(§ 348*) — Claims—Preference—'“Workmen”—1“Wages.”</p> <p>Bankrupts, operated a. sash, door, and blind factory;. claimants having ■charge of the blind, and sash departments under contract, by which claimants employed and discharged their own men and were responsible for the work that they turned out, but for convenience the men drew their wages from the bankrupts, tie pay rolls being made out by claimants and turned in for that purpose, • Claimants were compensated by an agreed schedule of prices for each character of .work, turned out; the bankrupts in general furnishing materials, as well as the tools and machinery. All- the em-ployés were subject to certain factory rules prescribed by the 'bamsrupts, and the hours of the men were regulated by the shop whistle'; the amounts receiye.d.by claimants depending on their success in managing their departments and.getting out-the work for less than the scheduled prices. Held, that claimants were not “workmen.” iior their compensation' “wages.” within Bankr.»Act July 1, 1898; c. 541,-§.64b, shbd. 4, 30 Stat.: 563 (U.'S. .Comp. St..1901-, p: 34⅜7) giving, priority to wages due to workmen earned within three months before bankruptcy proceedings, not exceeding $300 to each claimant.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dec. Dig. § 348.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7360-7373; vol. 8, p. 7831; vol. 8, pp. 7522-7523.]</p> <p>2. Bankruptcy (§ 348*) — Priority of Claims — “Wages.”</p> <p>“Wages” is the reward paid for labor. It is none the less wages because it is paid for by the piece; but compensation for labor is not wages, where payment is by the job, nor where it consists of the profits derived from the labor of others, and this, though the claimant himself takes part in the work.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dec. Dig. § 348.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7369^-7373; vol. 8, p. 7831.]</p>

• In the matter of proceedings against Thomas Deutschle & Co., bankrupts. On exceptions to the action of the referee, expunging and refusing to expunge certain claims.

<p>Bankruptcy (§ 310*) — Secured Claims — Exempt Property.</p> <p>A bankrupt owned certain real estate, part of which was exempt as a homestead as against all creditors, and the balance exempt as homestead, except as to debts created prior to the taking effect of Rev. Laws Minn. 1905, §§ 3453, 3454, which extended and enlarged the exemption laws previously existing. Claimant, having a debt created prior to the revision, recovered a judgment against the bankrupt in the county where the real estate was situated, after adjudication, but before the bankrupt’s discharge, and such judgment became a lien on a part of the debtor’s homestead. Held, that such claim, in so far as the property was sufficient to pay the same, was a secured claim, as provided by Bankr. Act July 1, 1898, c. 541, § 57, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), enforceable only in the state courts to that extent, and not through a sale by the trustee; and hence the claim was provable in bankruptcy proceedings only to the extent of the balance.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 310.*]</p>

In the matter of bankruptcy proceedings of Allen L,. Graves, in which Percival W. Clement filed a claim against the bankrupt as the indorser of a note secured by a mortgage executed by the Vail Right & Lumber Company. The special master reported against the allowance of the claim, and claimant petitioned for review of said report and for a new trial.

In the matter of the A. P. Wilson Company, bankrupt. From an order of the District Court denying its claim to certain money (In re A. P. Wilson & Co., 176 Fed. 652), the Aldine Trust Company appeals.

Action by Harry R. Burgoyne, as trustee, and another, against Pat- . rick E. McKillip and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Interpleader between the State of Kansas and Hunter M. Meri-wether and others. Decree in favor of Meriwether, and the State appeals.</p> <p>The question presented by this record is whether Meriwether or the state of Kansas is entitled to the sum of $22,000 resulting from a condemnation for the use of a railroad company of a tract of land situated in Wyandotte -county, Kan. The case has- been here before and is reported in 96 C. C. A. 281, 171 Fed. 39, to which reference can be made for some facts deemed unnecessary to be stated here. The Chicago Great Western Railway Company, successor to the rights of the City Terminal Railway Company, for whose benefit the condemnation was had, filed a bill of interpleader to secure an adjudication of the claims of several persons to the money. While others originally asserted some right to it, the controversy now' concerns the claims of Meriwether and the state of Kansas only, and is to be determined by ascertaining which of the two owned the land at the time it was condemned. They each, in obedience to the order of the court requiring them to inter-plead, filed intervening cross-bills setting forth their respective claims to the money, which1 was deposited in the registry of the court.</p> <p>Meriwether in his cross-bill alleged that the land, which was situated on the south bank of the Missouri river immediately below the influx of the .Kansas river and west of the state line between Kansas and Missouri, constituted a part of a larger tract, patented by the United States in 1857 to Silas Armstrong, which part he, by mesne conveyances, had duly acquired; that subsequently the Missouri river washed away a large tract of land lying on its south' bank including that in question: that its channel was diverted southwardly and for many years ran over the lower and remaining strata of this land. He then employed the following language: “That in the year 1888 the said river- began anew to change its course, and new land or accretions were gradually deposited-against and added to the remaining portion of said land on the south side of said river, such accretions and additions continuing from time to time until all of the tract hereinafter described (being the land involved in this suit) had thereby been created, * * * and that your orator and those under whom he claims have reclaimed and made per-nianent again their lands which they originally owned as the successors and grantees of said Silas Armstrong and those holding under him. * * * ” He then proceeded at length to show the steps taken by him and his grantors to reclaim and permanently hold the new land, and alleged that all these steps were taken openly and notoriously, with the knowledge, approval, and consent of the state of Kansas. Other averments are found in his cross-hill which will be referred to later.</p> <p>The state of Kansas in its cross-bill, after making allegations similar to those of Meriwether concerning the title and washing away of the land and the change of the river’s channel, alleged that afterwards “there appeared above the surface of said stream, and within the channel of said stream, an island, which was on both sides of the state line at said point, and on the Missouri side of the main channel of said stream of which island the state of Kansas was the owner by reason of its being formed upon and within the bed and channel of said stream, which island gradually extended toward the Kansas or right bank of said stream, also that another or other islands appeared in the bed of said stream on the Kansas side of the state line, and on the Missouri side of the main channel or deeper part of stream, which other island or islands also belonged to the state of Kansas for tire same reasons, and that said islands by gradual accretion thereto became united and extended until they reached the Kansas bank. * * * And defendant says that the said land so condemned was not an accretion to the main land or to any land owned by said Meriwether or to any person through or under whom he claims, but that the same consisted of islands which formed and appeared in the channel of the Missouri river and accretions thereto, all of which belonged* to this defendant, by reason of which fact this defendant is entitled to have and receive the said sum of $22,000.”</p> <p>To this intervening cross-bill Meriwether filed an answer, in which he denied the insular theory of the state and reasserted his claim that the lane condemned was formed by accretions to his riparian possessions.</p> <p>On these pleadings the canse was referred to a special master to find the facts and report the same with his conclusions of law for the information of the court. He found, among other things, that at the time the patent was issued to Armstrong in 1857 the south bank of the Missouri river was considerably north of the land condemned; that soon thereafter the river washed away its southern bank; that in 1889 it liad reached and washed away the land in question, which then belonged to Meriwether or his grantors, with considerable more land lying south of it; that its progress was then stayed by riprapping the bank; that by this invasion of the land the' channel of the river was diverted southwardly so that it ran immediately along and north of the riprapped bank where it continued to run for a period of about 20 years until 1887 when, employing the language of the master, “a change in the bed of said river caused by a shallowing of the channel opposite the riprapped bank began to occur, and a sand bar accretion to said bank began to form after the spring rises in said river, and also a sand bar began to form on the northern and eastern side of the channel as it then existed and from thence on said band bar accretion and sand bar extended north and east and substantially parallel with the south bank and increased in height and width, and, with their extension and growth, the channel of the river grew shallower and receded in a northerly and easterly direction'.”</p> <p>He found that in the year 1889 the National Waterworks Company, an owner of land fronting on the river above that in question, constructed a dyke located about 1,600 feet up stream from the land in question; also, that the city of Kansas City at about that time extended a sewer ont into the new current of the river; that the effect of these constructions was to retard the flow of water around the point of land at the influx of the Kansas river, make it flow further northward, accelerate the accretion along the southern bank of the river, and increase the height, width, and length of the sand bar in the receding channel of the river; that as a' result the channel receded further north and east until in the year 1891 or 1892 it rail, and lias ever since continued to run, several hundred feet north of the land in question.</p> <p>He made á finding In the following words: “Prior to tlie building of tbe dyke by the National Waterworks Company hereinbefore mentioned and the shallowing of the' channel of said river along and opposite to the riprapped bank as hereinbefore stated, there was an island which had formed in said river east of the state line between the states of Kansas and Missouri. After the building of said dyke' and during the recession of the channel of said river from the riprapped bank to the north and east, accumulations of sand formed upon and along the western side of said island and extended across the state line upon the landl in controversy. This sand formation was visible during the low stages of water and appeared as an extension of said island at such times but.was submerged at high water.”</p> <p>He also found that the ground immediately north and along where the riprapped bank had been located was at a lower level than the sand bar formation further to the north, and that the land in question was partly in the bed of the channel of the river as it was before it receded to the north, but principally on the slope of the sand bar formation on the west and south of the island in Missouri east of the state line.</p> <p>After finding these facts and some others which are involved in them or are immaterial to a disposition of the case, the master advised the court that Meriwether was the owner of the land which' had been condemned, and that the state of Kansas had no right or title to it, or to the money derived from its condemnation.</p> <p>The Circuit Court afterwards heard the case on the pleadings, report of the master, exceptions thereto filed by the state, and the evidence produced; confirmed the findings ahd conclusions of' the master; and entered a decree in favor of Meriwether. To reverse this decree the state prosecutes an appeal.</p>

William Adler was convicted of misapplication of funds of a national bank of which he was.president, and he brings error.

Ancillary suit in equity by the Houston Oil Company of Texas and its receiver against Cora Wilhelm and L. Wilhelm, her husband. Decree for defendants, and complainants appeal.

<p>In Error to the Circuit Court' of the United States for the District of Kansas.</p> <p>Action by Samuel Sullivan against E. J. Pritchett, H. W. Folck, Jr., and H. C. Church. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>John C. Humes was convicted on two indictments for violating provisions of section 5480, Rev. St. 1878 (U. S. Comp. St. 1901, p. 3696), which were brought on for trial under an order of consolidation. Verdicts of guilty were rendered and judgments entered accordingly. T-o reverse these judgments the present writs of error are prosecuted.</p>

: Ancillary -.bill in equity :by the Houston .Oil Company of Texas, by its receiver, against Oliver Jenkins, Philander Samuels, Earl Samuels, and. others. ■ From a decree in favor of the defendants named, complainant appeals.-

<p>Appeal from the Circuit Court of the United States for the Southern District of Texas.</p> <p>Ancillary bill in equity by the Houston Oil Company of Texas, by’its receiver, against Josh Farr, Margaret Dry, and others, From a decree in favor of the defendants named, complainant appeals. Affirmed as to defendant Farr, and modified as to defendant Dry.</p>

<p>Master- and' Servant (§ 252*) — Injury Through Negligence op Fellow-Servant — Kansas Railroad Statute.</p> <p>Under Laws Kan. 1905, c. 341, which make railroad companies liable for injuries to or the death of employés through the negligence of fellow servants, provided that a notice in writing that an injury has been sustained, stating the time and place thereof, shall have been given to the railroad company within eight months, such notice is an essential condition precedent, without which no liability is incurred.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. § 252.*]</p>

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

Action by Inez Dutcher, administratrix of the estate of George W. Dutcher, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant. brings error.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>Suit in equity by the Hennebique Construction Company against the Urban Construction Company and others. Decree for defendants, and complainant appeals.</p>

<p>In Admiralty. Suit by the Kensington Steamship Company against the tugs Starke and.Welcome, Sophie Meyer and others, owners; the City of Milwaukee being impleaded.</p>

<p>In the matter of bankruptcy proceedings of James Carothers & Co. On exceptions and petitions for review of referee’s order concerning the disposition of certain assets of the estate.</p>

<p>In the matter of the Medina Quarry Company, bankrupt. On application for allowance of fees to attorneys and others.</p>

<p>At Law. Action by Grace A. Kern against the Thompson Starrett Company. On defendant’s motion for judgment notwithstanding the verdict.</p>

<p>1. Limitation or Actions (§ 182*) — Availability or Defense — Necessity or Pleading — Waiver.</p> <p>Failure to plead the statute of limitations constitutes a waiver thereof. • [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 678, 680; Dec. Dig. § 182.*]</p> <p>2. United States (§ 67*) — Contractob’s Bond — Right to Sue — Time—Statutes.</p> <p>Act Feb. 24, 1905, c. 77S, S3 Stat. 811 (U. S. Comp. St Supp. 1909, p. 948), amending Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), provides that a contractor with the United States for any public work shall execute a bond to pay all persons supplying labor and materials for the work, and that, in case of suit thereon by the United States, any creditor having a claim for labor or materials may intervene therein and have his claim adjudicated and paid, subject to the priority of the claim and judgment of the United States, and in ease no suit is brought by the United States within six months from the completion and final settlement of the contract, any such creditor may sue on the bond in the name of the United States for the benefit of himself and all other similar creditors, provided that such suit shall not be commenced until after complete performance and final settlement of the contract, and shall be commenced within one year after such performance and final settlement, and not later. Held, that such act, in so far as it prohibited the bringing of an action by a subcontractor prior to the expiration of six months from the completion and final settlement of the contract, was not a statute of limitations, but that during such period no right of action accrued to the subcontractor; the right to sue during that time being vested exclusively in the United States.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>3. Pleading (§ 382*) — Contractor’s Bond — Action—Assumpsit—Defenses.</p> <p>In assumpsit on a federal contractor’s bond by a subcontractor, the objection that the suit was prematurely brought was available under a plea of non assumpsit.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1280-1294; Dec. Dig. § 382.*]</p> <p>4. Assumpsit, Action of (§ 23*) — Defenses—Premature Suit — Pleading— Waiver.</p> <p>Defendants in assumpsit on a contractor’s bond, not being required, under a plea of non assumpsit, to plead that the suit was prematurely brought in order to render sueh objection .available, their failure to plead such defense did not constitute a waiver thereof.</p> <p>[Ed. Note. — For other cases, see Assumpsit, Action of, Cent. Dig. § 139; Dec. Dig. § 23.*]</p> <p>5. United States (§ 67*) — Contractor’s Bond — Action—Accrual-Premature Suit — Waiver.</p> <p>Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), amending Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), provides that, in ease no suit is brought by the United States on a contractor’s bond within six months from the completion and final settlement of the contract, any creditor for whose benefit the bond has been taken may sue thereon in the name of the United States for the benefit of himself and all similar creditors, provided that the suit shall not be commenced until after the complete performance of the contract and final settlement thereof, and that it shall be commenced within a year after such performance and final settlement, and not later. Held, that -the nonaccrual of the cause of action in favor of a subcontractor until six months after final completion and settlement was jurisdictional, and that the provision could not be waived by the parties.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>6. United States (§ 67*) — Public Improvements — Contractor's Bond — Action — Accrual—“Completion and Settlement.”</p> <p>Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), amending Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), provides that, if no suit is brought on a federal contractor’s bond by the United States within six months from the completion and .final settlement of the contract, any included creditor may sue, provided such suit shall not be commenced until after the complete performance of the contract and final settlement thereof and shall be commenced within one year after such final settlement and performance and not later. Held, that the words “completion and final settlement,” as used in such provision, were not equivalent, though the latter may by inference be held to include the former, but that both constitute an essential prerequisite to a subcontractor’s right to sue, and’ hence where a contract was still open and unsettled as late as July 12, 1909, a suit on the contractor’s bond, begun October 21st following, was premature and unsustainable.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. § 50; Dec. Dig. § 67*</p> <p>For other definitions, see Words and Phrases, yol. 2, pp.' 1366-1368.]</p>

<p>Appeal from the District Court of the United States in and for the Territory of Hawaii.</p> <p>Suits in admiralty by the Inter-Island Steam Navigation Company, Limited, against the British ship Loch Garve and by the J. D. Spreckels & Bros. Company against the same. The cases were tried together, and decrees rendered for libelants, from which claimant appeals.</p>

<p>Corporations (§189*) — Suit by Preferred Stockholders — Parties.</p> <p>To a suit by the holders of the preferred stock of a corporation to establish their right to a lien on the franchises and property of the corporation, given by a statute of the state to a certain class of preferred stock, the common stockholders are indispensable parties, and either all, or some, as representatives of all, should be joined with the corporation as defendants; the suit being in effect one between different classes of stockholders in which the corporation is presumptively indifferent and does not represent either class as against the other.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 189.*]</p> <p>Keller, District Judge, dissenting.</p>

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>Suit in equity by Nellie Mae Moore against John M. Smith, Napoleon B. Smith, and Smith Bros. Sheep Company, a corporation, and Mary M. Smith as executrix of the estate of John M. Smith, deceased, substituted as defendant for the defendant John M. Smith. Decree for defendants, and complainant appeals.</p> <p>The record shows that for many years John M. Smith and William A. Smith, who were brothers, were the owners of a large amount of land in the state of Montana, upon which they carried on the sheep, cattle, and horse business. At first they managed the business themselves, but in 1S90 they organized a corporation under the laws of Montana, under the name of Smith Bros. Sheep Company, to which corporation they conveyed all of their property. Each of them was married, and to the wife of each was given 5,000 shares of the capital stock of the company, which amounted to. 250,000 shares. The remainder of the stock was divided equally between the brothers. The wife of William A. Smith deserted him in 1891, leaving three small children —the oldest a boy then seven years old, and two younger girls, the older of whom was the complainant In this case and is the appellant here. These children William A. Smith subsequently sent to lire with their aunt, a Mrs. Iteynolds, in Ohio, who was a sister of the two brothers. Napoleon B. Smith, who was their nephew, was an attorney at law residing at White Sulphur Springs, Meagher county, Mont., in which county most of the property of the brothers was situated, and in which they both resided. William A. Smith died there on February 13, 1897, and on his deathbed made his will, which was drawn by Napoleon B. Smith, by which will he left all of his estate to his three children and appointed his said nephew executor thereof.</p> <p>During the course of his examination as a witness, John M. Smith was asked what, if any, request his brother William made of him in his last illness regarding his children, and answered: “A. The last words that he said to me was ‘N. B. Smith is my administrator, and he .will attend to the affairs in that way, and I want you to look after the interests of my children.’ Those were the dying words that he said. Q. And did you say you would? A. I said I would, and I have, faithfully.” At the time of his death William A. Smith was the owner of 122,950 shares of the stock of the Smith Bros. Sheep Company — John M. Smith then owning a majority of the stock.</p> <p>The case shows that John M. Smith was himself then in poor health, as was his wife, and that in consequence he spent much of his time at Pasadena, Cal., where he was at the time of much of the correspondence hereinafter referred to. Some time after the business was incorporated one Mc-Naught, who was a brother-in-law of John M. Smith, became manager of the property under the supervision and direction of the latter. The will of William A. Smith was admitted to probate, and Napoleon B. Smith became executor of his estate. After the death of William A. Smith, and because of the age and poor health of John M. Smith, and perhaps for other reasons, both John M. Smith and the executor became desirous of selling the whole property. A sale by John M. Smith of his majority of the stock to a stranger might have worked to the injury of the minority interest of the children of the deceased William A. Smith, so that both John M. Smith and the executor of the estate of William A. Smith became desirous that both interests be sold together. Repeated efforts in that behalf failed of accomplishment.</p> <p>On the 23d of November, 1897, McNaught asked for an option of purchase, to run until the end of the year, on all of the property, free of debts, except future payments on certain railroad land contracts, on which application J. M. Smith endorsed this:</p> <p>“My figuers is two hunderd and twenty thousend $220000 Subject to the aproyel of Mary Smith (wife of John M. Smith) & N. B. Smith to date from Jan I” 1892 time to complete sale about to the 10 of Jan. 1898. J. M. Smith.”</p> <p>The executor of the estate of William A. Smith indorsed thereon the following:</p> <p>“In case a buyer can be found for the property at the amount above stated I will immediately make application to the District Court of Meagher County, Montana, to sell the interest of the Estate of W. A. Smith, deceased, in said property at the rate above stated. [Signed], N. B. Smith.”</p> <p>The evidence shows that the executor regarded the estimate of John M. Smith as to the value of the property at the time too high, as did others.</p> <p>On the 14th of December, 1897, John M. Smith wrote 'a letter from Mar-tinsdale, Mont., to the executor, which reads in part as follows:</p> <p>“N. B. Smith Der Sir & Nefue. * * ⅝ Mr. McNaught is back from Helena ho could not get a party to take hold of the property, but I think the chance will be better next sommer I want to sell out so as to go some piase that I can be with my famley & can send Stanely [his son] to school-as long as I hold it I can’t be sadesfied away from it & I dont want to sell out & leave the. childrens interest in it I think the coming year will be the time to let gow of the intire plant you can at the next turm get a permit to sell wills intrest at anney time that we can get fair value for it then we can go ahead with it when the opertunity Shows up I think it will be well to arange that the next turm of Court I dont think that we will sell much, befoar next July or Auges but I dew want to sell as soon as we can to advantage if I was yong I would not cair to sell for it is a good property well managed at what I ask for it.”</p> <p>The record shows that on the 24th day of January, 1898, the judge of the probate court made an order based upon the application of the executor, authorizing him to sell all of the 122,950 shares of the stock of the company belonging to the estate of William A. Smith, deceased, “at private sale,, and without previous notice, provided that' said personal property be sold at a sum not less than seventy-live thousand dollars, and may indorse said stock for the purpose of said sale, and may do all other acts and things requisite and necessary to transfer all of the interest of said estate in and to said stock and the property represented by said stock. That said stock be present at the time of said sale, and that said executor present to this court at the next term thereof after such sale, an account of sale, verified by his affidavit.”</p> <p>On the 19th of the following March, John M. Smith wrote a letter from Helena, Mont., to the executor, which is in .part as follows:</p> <p>“Mr. N. B. Smith Dear Nefue X wish to get the least price that you can ex-cep for the children stalk [stock] I may have to dew some figuering to sell the Plant & in case I knawd fest how much I could drop and pay all debts it would give me a chance to handel my self what would you give me a opten on the Stock after the debts is payed I think you said the order was for you to sell for $75,000 but we think we can dew better then that I think I can get them 80 or 85000 out it clear for them now can you name enney price that would soat you to give a opchen on so X might have a maregen to mark [work] on think the .matter over & let me know.... (Signed) J. M. Smith.”</p> <p>On March 25th, 1898, the executor replied as follows:</p> <p>“Office- of N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Mont. March 25th, 1898.</p> <p>“Dear TJncle: Your letter in regard to the stock of the estate came to hand. I have been thinking over the matter. I think rather than see a sale go bye I would be willing to take eighty-five thousand dollars for the stock. I want to do what is fair by the estate and also by you. I want to see a sale go through in some shape, but at the same time I want to do the best I can for the estate. I would want the eighty-five thousand dollars alone for the stock, and the party who gets the stock to pay all the debts of the Company, and also, that the sheep company cancel whatever debts it might have against the Alice or Blackhawk Mining Companies. Yours truly, [Signed] N.. M. Smith.”</p> <p>July 2, 1898, John M. Smith wrote to the executor as follows:</p> <p>“Smiths P.anch July 2 1898.</p> <p>“N. B. Smith Dear Nefue</p> <p>“I have bin figerin Since you laft on this Sheep Sale you know that our Judgment difers as to the value of the property you being willen to take less then would sadesfy me & thaught that you would rether than miss a sail would take $80000 for the pert you represent rether then miss a sail it was on that bases that I made my offer to Me My offer gave me a maregen that would sadesfy me but if I dont have a small margen it cuts me down so low that I dont feal sadesfiged if I had made my figers with the intent of giving you the benefit of my Judgement I should have piase my figers higer then I did so you can see that your estemate throwd me off-in my .calculation & will bring me out with less money then is sadesfactery to me & Mary I told her as you was willing to take less then I thought the stock worth & I was willing to take 80000 that I would have a margin to work on & bost my offer acorded now under théas circumstances I think you can afoard to take $84000 as your figers estemate 85000 now if I can have a small margen to work on as I dont know jest what it will take to Squair all debts but I think if I can get yours at 84,000 that I will still have a Small margein to work on if this deel goes but I would not be sadesfied to take the offer & devide equel as our Judgement difered as to value I made the offer below what I should have done if I had not had some aserenee that you would take 80000 for the interst now if you think you can take 84000 I think that will be be very close to to it if the sail goes if you cant aford to take that Mary may not sell her stock & that will spoil the sale if enny ean be made atall. let me know at once So I can calculat acorden. Your uncel, John M. Smith.”</p> <p>“If we dont sell this time we may get that much.”</p> <p>December 30, 1898, came without the effecting of any sale, although strenuous efforts in that behalf were made by John M. Smith (to one Miles, among others) as well as by McNaught. On the day last mentioned Henry Neill made to the executor the cash offer of eighty thousand dollars for the stock belonging to the estate. The next day the executor wrote to John M. Smith this letter:</p> <p>“Office of N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Mont., Dec. 31st, 1898.</p> <p>"Dear Uncle: Neill of Helena was in to see me yesterday in regard to the ranch property. He wanted an option on my interest. I told him I could not give it at this time as I liad let you have an option. If you are figuring on Miles making a trade I think you had better look for other parties. Neill thinks he can sell the property. I am very anxious to do something with the property as I feel that the estate is going to lose money by holding it. Heitman and Danzer have a large number of sheep feeding in east and it is the prevailing opinion of those who know that they will lose from 50 cents to a dollar a head on the transaction. Neill said he would make me a cash offer of 880000.00 for the estate’s interest in the.property. If you will make me a cash offer of $85000.00 you can have the property. I told Neill I would not make such an offer. McNaught writes me that you now owe the Company $13839.35, and that the Company will have to commence borrowing money. If you do not take the stock it would be your duty to put your note in to the Company for the amount so that the Company could raise the money on the same to carry on the business. Under our law the only way money can be drawn out of a company by a stockholder is by declaring so much dividend on each share of stock. I do not make the suggestion to hurt your feelings, but you know yourself that such large transaction should not be carried on in such a loose way. Please let me hear from you in the matter. We are all well. I wish you all a happy new year. I got a letter from Barnes at your place. Give all the Montana people my best regards. Tour nephew.”</p> <p>On the 14th of January, 1899, John M. Smith wrote to Mr. George L. Ramsey, cashier of the Union Bank & Trust Company, Helena, Mont., this letter:</p> <p>“Pasadena, Cal., Jan. 14, 1899.</p> <p>“Mr. George L. Ramsey Helena Mont.</p> <p>“Would your bank lone ninty thousand dollars to me & take the entire stock of the Smith Bros Sheep Co as security.</p> <p>“I consider it gilt edge I am about to buy the estates intrest I will onley want it ontell I can make a sale of the property perhops 4 or 5 months Wire me your lowest rate of intrest & if can get it wire at my expence all the Compny owes is the $2000 — that I sent the Note for the othr day Yeus Trudy J M Smith.”</p> <p>Two days thereafter, to wit, January 16, 1899, John M. Smith wrote from Pasadena, Cal., to the executor at White Sulphur Springs, Mont., as follows:</p> <p>“N B Smith Dear Nefue W S Springs I wired you that I would except your offer for the Stock of the Sheep plant beloning to the children I have not herd from Milos yet if he makes a raise I will pay you the $90000 if he fails I will give you the $85000 that you asko you of corse would jrat it ⅛ gove-rnont bonds if you had it now to make things safe & you be absolutly safe 1 will give you all of the Sheep Company Stock to hold as security for the payment of the $85000 & I will pay the same interst that you would get on Gov bonds & pay you 3 times per year ontill I can sell out to advantage then you will be safe & if enny one is looser it will be me & I am willing to take the chances they never will be a time but what the hole business will bee the best of security for that amount but I dont intend to hold it very long at enny time that 1 can make a good sale I will pay off your $85000 I think this the best way for us to close up business I intend never to run less than 40000 head of sheep on the ranch as long as I have enny-thing to dew with it by you holding all the stock as Security no one could com in ontill your Note is payed first I never tried to get in debt much enny moro as I intend to keep close payed up all land payments & Taxes & keep the Smith Bros Sheep Co Or as good as it has always bin you can get up the papers so you ar safe & at the same time gives me a chance to handel my self to advantage if Miles fails you & Mach can fix things so you can that I will not have to come ontill Apr or May or may ⅝⅜⅜ Send the papers down hear for I and Mary to signe I will pay all revenew Stamps required I don’t thinh you will have to pay taxes on the $85000 while it is repsented by the Smith Bros.' Sheep Oo Stok as I have to pay on all the property if you did haye to pay taxes I will agree to pay it for you So it will leave it just the same as- gov bonds now I hope you will consider this & after ITeb the first proceed to fix up the papers or soaner if you wish I could Borrow the money of the Bank at Helena by giving the sae seciorty but I would soaner deel with you & you ar jest as safe as tho you had gov bonds let me hear from you at once & oblige Your uncel John.”</p> <p>On the same day, to wit, January 16, 1S99, the executor wrote from White Sulphur Springs, Mont., to John M. Smith at Pasadena, Cal., the following letter:</p> <p>“Office of N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Mont., Jan 16th, 1899.'</p> <p>“John M. Smith, Pasadena, Cal.</p> <p>“Dear Uncle: Your telegram came to hand in which you said you would take the stock. I want a clear understanding with you, so that there may be no hereafter in the matter. It is understood that I am to get eighty-five thousand dollars for the stock and .the estate is to have that and not owe the Company anything for money advanced for uncle Bill’s estate. Mack wrote me the other day about the four hundred dollars you were to pay, but I will make no claim as to that if you take the property at the above figures. You had better pay a portion down and then I will make the return to the court, and if the Court approves the sale, of which I have no doubt, I will want the remainder of the money. Please let me hear from you at once in the matter. Yours Truly, W. B. Smith.”</p> <p>The record shows that on the 20th of January, 1899, the executor wrote to John M. Smith a letter which in some way disappeared, and is not produced. Before it could have been received at Pasadena, Cal., John M. Smith wrote from that place to the executor this letter:</p> <p>‘‘Pasadena Cal Jan 22.1899</p> <p>“N. B. Smith Dear Nefue I received yours of the 16 in reply to my telegram I had written 2 letters that you have no dout receved befoar this in which I asked turras but have not herd from ether yet it dofit look as tho Miles is going to make a deel. I now will ask you the amount you wish me to pay down on the property & what interst you want on the balence I will take the astates Stock at the $85000 and no claim on the astate for enny money advanced it at enny time tell me the least you will take as a down payment & what time you will give on the balence & & what interst ontill payed & you hold all the property as seeurty I made you a propersition in my last but don’t know how it will soat you pleas give me yours best turms as soan as you get this and I will arange to meet it on the $85000 bases Yours Truly Your uncle John.</p> <p>“I think the Coart will aprove of the Seeurty & offer for the balence I know your Bondsman would I dont think that it will take me longer then May the first to make some turn So I will get the balence for you.”</p> <p>On the 21st of January, 1899, Mr. Ramsey, cashier of the Union Bank & Trust Company, of Helena, Mopt., wrote this letter .to John M. Smith:</p> <p>“Mr. J. M. Smith, Pasadena, California.</p> <p>“Dear Sir: In response to your favor of the 14th, we have wired you today that we would make the loan of $90,000 at 9% interest. We suggested in the telegram, however, that the offer to make would be based upon whether or not you should use the money at once. Unless you could take it right away, we would not, of course, want to carry so large a sum here for any particular length of time,’ awaiting investment, i really hope you will be able to use it. If you have not telegraphed us at the time this letter reaches you of your conclusion as to whether or not you can use the money, we want to 'ask you to do so, as the loan is a large one and we might have to loan the funds elsewhere, which we would not do, In anticipation of your possible call for these funds. Yours respectfully, George I/. Ramsey, Cashier.”</p> <p>That John M. Smith replied by wire to the letter last quoted that he did not want the money, is shown by this letter from Ramsey of date January 28th, 1899:</p> <p>“January 28, 1899.</p> <p>“Mr. John M. Smith, Pasadena, Cal.</p> <p>“Dear Sir: We now have your telegram reading: ‘Do not' want money’ which is interpreted to mean that you are not in a position to use the money just at the present time. But that you may possibly desire to later. If our surmise is correct, I beg to advise you that we will be glad to figure with you whenever you are ready; but we would not of course want to promise so large an amount of money at any time in the future as it is a considerable sum and we may have to invest it elsewhere. Just at this time we would be very glad to make the loan and it is possible we may be in the same position whenever you get ready. Yours respectfully, George D. Ramsey, C-ashier.”</p> <p>January 24, 1899, the executor wrote to John M. Smith at Pasadena, Cal., as follows:</p> <p>“N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Mont., Jan. 24th, 1899.</p> <p>“J. M. Smith, Pasadena, California.</p> <p>“Dear Uncle: Your letter of the 16th of Jan. came to hand. I can not sell the way you indicated. The only way I can sell is for cash down. If you are appointed Guardian of the children then I could turn the money over to you. As I told you all the time I have no right to sell on credit. You had better forward me a draft for ten thousand and then I will file the petition, and on the approval of sale by the Court the balance can bo paid. The offer that I had was a cash down offer. If you but [buy] the stock the Company can run on just the same and I can act as one of the trustees as I have some stock in my own name. Give my love to all. Yours, etc.”</p> <p>Before the letter last quoted could have been received, John M. Smith wrote from Pasadena to the executor as follows:</p> <p>“Pasadena, Cal., Jan. 27.</p> <p>“N. B. Smith:</p> <p>“Dear Nefue: I receved yous of the 20 & I think your plan good I will take steps to get the ten thousend down payment & we will proceed to business at once I will write to the Bank & arange for the money if you have me apointed garden for the Children as soon as I as sell out I uou & [“wan to,” according to original exhibit] invest in Gove bonds all thair money and also my one as I dont intend to try to dew anny buisness after I sell out & I fully intend to let goew this spring I think your sugjestion a good one I think I should have the children come out hear the schools is first cías & the climat is good also good society Yous Treuly J. M. Smith.” “will wright agane soon.”</p> <p>On the same day, to wit, January 27, 1899, John M. Smith wrote from Pasadena, Cal., to Ramsey, this letter:</p> <p>“Pasadena Cal Jan 27, 99.</p> <p>“G L Ramsy Helena Mont</p> <p>“I received yours of the 23 in regard to the mony I did not want it all at once. I received a letter today from the adminestrator & now I am in shape to use ten thousand of the money at once. I wish the lone for 6 months with the understanding that I have the privilege of paying it at enny time I can befour it is dew intrest to be at the same for what time I have used the money. You understand I want the money to make a payment on the estate of my brother the money will be turned ovr to the ad-minestrator N B Smith at White Sulpher Springes, if you will you can make out a Note for ten thousand & send it hear to me I will signe & retern then I will turn it over to the admnestratr & close a deel then I will ;be the entier oner of the Smith Bros Sheep Co Yous respctfuly J M Smith.”</p> <p>Four days thereafter, to wit, January 31, 1899, John M. Smith wrote to Ramsey as follows:</p> <p>“Pasadena Cal Jan 31 1899</p> <p>“George D Ramsey Helena</p> <p>“Sir: I have taken the liberty of drawing a cheek on your Bank for ten thousend Dollars $10,000 — in favor of N. B. Smith of White Sulphr Springes the adminestratr of my Brothers astate I dont think that the money will be caled for onley plast to his cr. I inclose his letter so you can se how</p> <p>we intend to manage so that I don’t think we will have to call for enny of</p> <p>the money will leave it as a creddet for when I am apointed gardeen of</p> <p>the children I will turn it all back to the Bank & .pay what intrest has</p> <p>acrued for what time we have the money, hoping this will meat your aprovel X wrote you a letter a few days ago asking you to forward me a Note for $10,000 — for me to signe but I have not receved it yet hoping you can favor me with my request & oblige J M Smith.”</p> <p>On the 2d of February, 1899, Ramsey wrote to John M. Smith as follows: “Mr. John M. Smith, Pasadena, California.</p> <p>“Dear Sir: We inclose you herewith a blank note for $10,000, sent agreeable to your favor of the 27th, drawn for six months, with the understanding that you shall have the privilege of taking it up at any time prior to maturity if you like, interest to be charged only for the actual time the money is in use. I also inclose several blank notes, which can be filled up by you at any time the money is needed. With regards, X am,</p> <p>“Tours respectfully, George L. Ramsey, Cashier.”</p> <p>On February 6, 1899, Ramsey wrote to John M. Smith as follows:</p> <p>"Mr. J. M. Smith, Pasadena, California.</p> <p>“Dear Sir: We now receive your letter of January 1st [31st], and beg to advise that we shall have pleasure in honoring your check for $10,000, when it shall be presented. We return herewith letter from N. B. Smith. With regards, I am,</p> <p>“Tours respectfully, George D Ramsey, Cashier.”</p> <p>On February 6th Ramsey also wrote to N. B. Smith this letter:</p> <p>“Union Bank & Trust Company of Montana.</p> <p>“Helena, Feb. 6, 1899.</p> <p>“Mr. N. B. Smith, White Sulphur Springs.</p> <p>“Dear Sir: Receiving a letter to-day from Mr. J. M. Smith, advising that he had drawn on us for $10,000.00 in your favor, and his letter indicating that he would probably draw further checks, I am lead to suggest that we would be very happy indeed to serve you as a depository, for all or a part of the proceeds of the check, if it is in your plans to leave it on deposit.</p> <p>“Tours respectfully, George L. Ramsey, Cashier.”</p> <p>On the 8th of February, 1899, John M. Smith wrote to Ramsey as follows:</p> <p>“Pasadena Cal Feb 8 1899</p> <p>“G L Ramsey yours of the 2 came to land last night I hear signe & return Note. When I am caled on for the balence I will fil out & send on Notes to cover the balence of the perches. I dont think that one dollar of it will be caled for except as a credet as you saw in my last letter the way N B Smith perposes.to dew with me Many thanks for your acomedation Tous Truely John M. Smith.”</p> <p>On the same day, to wit, February 8, 1899, the executor wrote from White Sulphur Springs, Mont., to the Union Bank & Trust Company, as follows:</p> <p>“White Sulphur Springs, Mont., Feb. 8th, 1899.</p> <p>“Union Bank and Trust Co., Helena, Mont.</p> <p>“Gentlemen: I don’t know yet what disposition I will make of the Money that J. M. Smith will place to my credit. I would want a certificate of deposit payable on demand. If my Mr. Smith is appointed guardian this money will be turned back to him. I will make no arrangements about the money at, this time as I want to get the estate settled up as soon as possible. Tours truly, N. B. Smith.”</p> <p>On February 10, 1899, a certificate of deposit for $10,000 was issued by the Union Bank .& Trust Company,.and sent to the executor, with a letter of that date in which the bank said:</p> <p>“We are this morning placed in possession of your favor of the 8th instant and having instructions from the First National Bank of White Sulphur Springs to send you certificate of deposit for J. M. Smith’s check of $10,000, we are now having pleasure in handing you same herewith. We note that you do not care to make any arrangements about the money at this time, as it is your desire to get the estate settled as soon as possible.”</p> <p>On February 12, 1899, the executor wrote to the Union Bank & Trust Company this letter:</p> <p>“White Sulphur Springs, Mont., Feb. 12, 1899.</p> <p>“Union Bank & Trust Go., Helena, Montana.</p> <p>“Gentlemen: Your favor of the 10th enclosing draft for $100000 [$10000] came to hand. I am much obliged to you for your kindness in the matter. I presume I will leave the money with you for the present as I have no use for it. If my uncle is appointed guardian of the children, then in that case, the money will all be turned back to him as guardian. I think I can wind up the estate within three months. I shall be pleased to meet you when I come to Helena which may be some time in this month.</p> <p>“Very respectfully, N. B. Smith.”</p> <p>The executor proceeded to make application for the confirmation of the sale of the stock, and engaged, in behalf of John M. Smith, an attorney named Waterman to make application for the appointment of John M. Smith as guardian of the children — the return of sale being filed with the court by the executor on the 20th of February, 1899, and three days thereafter, to wit, February 23d, John M. Smith’s application for his appointment as guardian of the children was filed by Max Waterman as his attorney. On that same day, to wit, February 23, 1899, the executor wrote to Mrs. Reynolds this letter:</p> <p>“Office of N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Mont., Feb. 23rd, 1899.</p> <p>“Dear Aunt: Uncle John intends to apply to be the permanent guardian of the children. I presume you will be notified in the matter. Under our law a child that is fourteen years of age can appoint his own guardian. I think Willie is about that age. If he is that old he can appoint who he wants and the Court will confirm the appointment. Under our law a guardian has to be appointed so that the estate can be distributed. The estate will have to go into the hands of a guardian so that it can be invested in bonds. Uncle John’s address is 481 Eldorado Street, Pasadena, California. He will have to give a bond to the amount of about ninety thousand dollars. I don’t think he will make any change in the case of the children, and he can’t make any change after the children become 14 years of age for then they can appoint their own guardian. I thought it my duty to mention the fact to you so that you might understand the proceedings and why they were taken. You see I will have the eighty-five thousand dollars and the same must be invested which I could not well do as executor. It was Uncle Will’s desire that you should look after the children and that desire will be no doubt carried out. I have explained fully because I thought you might worry in the matter. If you have any suggestion to offer would like to hear from you in the matter. Give my love to the children. Yours, etc., N. B. Smith.”</p> <p>On the 1st day of March, 1899, John M. Smith wrote from Pasadena, Cal., to Mr. Ramsey at Helena, Mont., as follows:</p> <p>“Pasadena, Cal. March 1, 1899.</p> <p>“George L. Remsey Helena Mont If enny one deposets - $5000 — to my Cr for a option Wire me at once at my expen 481 El Dorado St Pasadena Cal.</p> <p>“I cant say jest when I will be cald to turn over the other $75000 — on the Ranch Deele. the Money will not be drawed out of the Bank but left as a Cr to the adminestrater N B Smith as soon as I am apointed gerdean the money will be turned back to me I pay intrest for what time I have it. Will Í have to send my note or can you pay my check by Cr to N B Smith fer the amout & he leave it in the bank & transfer it back to me Yous Tuely J M Smith.”.</p> <p>■ March 10, 1899, the Union Bant & Trust Company wrote to N. B. Smith this letter:-</p> <p>‘•‘Union Bant & Trust Company. Helena, March 10, 1899.</p> <p>“Mr. N. B. Smith, White Sulphur Springs.</p> <p>“Dear Sir: As you are perhaps aware, we had made arrangements with-Mr. John M. Smith to advance him the sum necessary to purchase the estate’s half- interest in the Company. He writes us by letter received today, as follows: T can’t say just when I will be called to turn over the other $75,000.00 on the ranch deal.’ The amount to 'be advanced on this transaction is a large one, and we like to figure ahead a little bit, so that we may calculate at all times upon the amounts which we have arranged to advance to our several 'customers, and I am going to take the liberty of inquiring, whether you can tell us at this time about when the balance will be called for, so that we can figure accordingly. We felt quite a bit complimented at- your making us your depository for the payment that has already been made by Mr. Smith, and I assure you we will be happy to serve you -in the future as well.</p> <p>“Yours respectfully, ‘ George L. Ramsey, Cashier.”</p> <p>On the 28th of March, 1809, the sale of the stock to John M. Smith was confirmed, and the order of confirmation signed and filed. On the same day, to wit, March 28, 1899, John M. Smith who was then in California, was appointed guardian of the persons and estates of the minors, the order made and filed reciting due notice of the application, and directing “that letters of guardianship of the persons and estates of said minors be issued to him upon his giving a bond to each of said minors in the penal sum of thirty thousand dollars, and upon his taking and subscribing the oath according to law.”</p> <p>On the 18th of April, 1899, John M. Smith wrote from Pasadena, Cal., to Mr. Ramsey at Helena, Mont., as follows:</p> <p>“Pasadena, Cal Apr 1899</p> <p>“Mr. G. L. Ramsey Helena Mont</p> <p>“I will be in Helena about the 18 of May. I leave hear the 13 then I will be redey to straten out business sadsfactry I hope I will have McNaught send the Stock over to the Bank so it will be thair when I get back I will have N B Smith meet me in Helena & then we can fix up every thing sades-factry I drew a check to N B Smith for $75,000 — but X dont think he will Send it in ontill I get back Yous Truely J. M. Smith.”</p> <p>April 24, 1899, the bank replied to John M. Smith by letter, saying: “We are ready to honor your check for $75,000.00 when Mr. N. B. presents the same.”'</p> <p>On the 27th of April, 1899, a four-months note for $75,000 of John M. Smith, bearing 9 per cent, interest, was cashed by the Union Bank & Trust Company, and the proceeds put to his credit, with which the bank paid the $75,000 check which John M. Smith had given upon it to the executor, and which was by the executor indorsed, such payment being then charged by the Bank & Trust Company to John M. Smith’s account. The before-mentioned $10,000 certificate of deposit was at the same time surrendered by the executor, who took from the Bank & Trust Company a certificate of deposit to his order for $80,000 and deposited $5,000 of the amounts mentioned to his personal credit; $2,161.49 of which he paid himself as due him “on the sale of the property,” and the balance to other persons and for other purposes.</p> <p>On the 28th of April, 1899, John M. Smith wrote from Long Beach, Cal., to the executor, this letter:</p> <p>“Long Beach, Cal., Apr. 28, 1899.</p> <p>“N. B. Smith:</p> <p>“Dear Nefue X return Pour of atorney [appointing N. B. Smith John M. Smith's attorney in fact] with instietions to indors the stock that I bought of you to the union Bank as colotral security for the payment of the $10,000 & $75,000 nots now in the bank. I am booked to leave hear the 13 of May for Helena will arive about the 17 or 18 & want you to meat me in Helena at that time if I should deside to make it later I will wire you to that afect. * * * Yors Truly our love to orseal J M S” .</p> <p>John M. Smith returned to Montana from California on the 18th of May, 1899, and on the 25th of the same month executed his bond as guardian and took the oath of office and filed them with the court. June 1, 1899, the executor filed the final account of his administration of the estate of William A. Smith, and on the 12th of June of the same year a decree settling the account and distributing the estate was signed and on the 14th of June, 3899, placed upon file, the decree providing, among other things: “That the said executor shall be finally discharged from his duties as such executor upon his filing a receipt for the residue of said personal property duly signed by John M. Smith as guardian of William Smith, Nellie Mae Smith, and Annie Maud Smith, minor children of said deceased, and upon the filing of such receipt his bondsmen as such executor shall be discharged.”</p> <p>On the same day, to wit, June 14, 1899, the executor paid the entire amount in his hands over to the guardian, John M. Smith, and took his receipt therefor as such guardian, whereupon an order of final discharge of the executor was signed and filed. John M. Smith thereupon went to Helena, Mont, and, on the 17th of June, 1899, there used the money of his wards so received by him in discharging his indebtedness to that bank, as far as it would go, giving a new note to the bank for the balance due it from him. John M. Smith was questioned in respect to that matter when upon the stand as a witness in this cause, and gave this testimony:</p> <p>“Q. Mr. Smith, I believe you said this morning, that you had used the money turned over to you by Mr. N. B. Smith when you were appointed guardian, to pay your notes at the bank? A. I did.</p> <p>“Q. Was the money cash that he turned over to you, or was it certificates of deposit? A. It was a certificate of deposit; it wasn’t counted out as cash, but it was a credit certificate of deposit that he turned over to me when I qualified as guardian, he turned it over to me as administrator. I done business with the bank hero, and I will refer to them. I cannot remember lust about how it was done at the time, but I will refer you to the bank and Geo. L. Ramsey; they are better authority than my memory is, a great deal.</p> <p>“Q. I will state, Mr. Smith, for your information, that these two certificates of deposit were produced here by the bank officers. A. The certificates of depmsit were turned over to me as guardian of the children of William Smith by the administrator.</p> <p>“Q. And you turned them into the bank in payment of your note? A. I thought I had a right to.</p> <p>“Q. But you did? A. I did, and I thought I had a right to, because I gave security for the amount.</p> <p>“Q. Hid you understand when you did that that you were using money of minors for your own purposes? A. I understood I was using it, and that I had a right to; I didn’t talk with any one about it.</p> <p>“Q. You thought that you had a right to take the money of minors and use it to pay your debts? A. As I had given security for that money, it was the same as though it was in my possession.</p> <p>“Q. Do you understand that you, as a guardian, had the right to use guardianship money, the money of minors, to pay your own debts and for your own personal account? A. I may have made a mistake, but I didn’t do it with the intention of defrauding anybody; I might have made a mistake.</p> <p>“Q. But you knew what you were doing? A. I knew I was paying off my indebtedness.</p> <p>“Q. And using the money of minors? A. The money that was given security for.</p> <p>“Q. Without asking anybody’s permission? A. Without asking anybody’s permission.</p> <p>“Q. Without consulting anybody? A. I didn’t do it with the intention of defrauding anybody, and if I have wronged anybody in any way I am willing to make it right.</p> <p>“Q. Was it your view at that time that you as guardian had a right to do such a thing? A. I thought this way: that it was just the same as if I put it in government bonds if I paid the same interest. I acknowledge it may have been wrong, but I didn’t do it with the intention of defrauding anybody. I paid off my note, and that is the condition of things just as they were.”</p> <p>- N. B. Smith, the executor, testified that he did not know until the fall of .1899 what use the guardian had made of his wards’ money; that ‘‘in October, or before October,” 1899, the guardian told him. He also testified in answer to the question, “Did you report the fact to the judge of the court that the money you had given to John M. Smith, turned over to him as guardian, had been used by him to pay off his own debts?” “I made no such report whatever.”</p> <p>On the 20th of November, 1899, N. B. Smith wrote to Mrs. Reynolds this letter:</p> <p>“Office of N. B. Smith, County Attorney, Meagher County.</p> <p>\ “White Sulphur Springs, Mont. Nov. 20th, 1898 [1899]</p> <p>“Mrs. D. B. Reynolds, Fayette, Ohio.</p> <p>“My Dear Aunt: Enclosed find draft for your charges for looking after and caring for the minor children of Uncle Bill, until December first, 1899. Please sign the enclosed receipt. In regard to uncle John buying the stock will say that he borrowed the money from a bank in Helena to buy the stock. I would not let him have the stock until he had actually paid me the money. I had 'the money in my name in the bank until I was finally discharged from my trust. When I made my final account I showed the judge my draft, and my bank account subject to check. I turned over to him the money and took his receipt for the same, and filed the same in court and the same is now a matter of record. The Union Bank & Trust Company furnished his bond and same is perfectly good. He has to pay •the bank quite a sum of money for furnishing the same. . I think he has to pay about three hundred dollars a year for his bond. The judge and Uncle John and I talked over the matter of the use of the money, and the understanding was that he should pay four per cent, for the use of the money until such time as it should be invested in bonds. That is better than we could do with government bonds, and as long as the Union Bank & Trust Company is his surety the same is perfectly safe. Nothing has been said as to the compensation that the court will allow him. I think the compensation would be arrived at in this way, he would be allowed his actual expenses in looking after the children, and a reasonable amount for what time spent in looking after the children and their estate, and the costs connected with the court procedure. In eases of administrators the law fixes the compensation at a certain per cent., based on the value of the estate. I don’t think the court would fix his compensation at anything unreasonable. Uncle Bill reposed confidence in me and I think I did the best thing for his children that could have been done in making the sale. Before making the sale I talked with the best business men of the county in relation to the matter, and not one' but what told me to close the sale as I had made a great deal. Although I am no longer administrator, yet I shall always look after their interests. ⅞ ⅜ ⅜ Xour nephew.”</p> <p>Both John M. Smith and N. B. Smith gave some testimony tending to show that in 1899 the former had some talk with the judge of the court in which the guardianship matter was pending, about his (John M. Smith’s) using the money of the minors and paying interest on it at the rate of 4 per cent, per annum.</p> <p>In December, 1900, this order was made and entered in the matter of the estate and guardianship of the minors:</p> <p>“Probate Minutes, December, 1900.</p> <p>“Tuesday, the Eleventh day of December, 1900.</p> <p>255.</p> <p>“Estate and Guardianship of Wm. Smith, et al., Minors.</p> <p>“Max Waterman, counsel ^or guardianship, asked to have his name withdrawn as counsel in the case. N. B. Smith asked to have his name entered as counsel instead of the Max Waterman’s. John M. Smith, the guardian of said minors, having made application to the court for an order authorizing him to borrow the funds in his hands belonging to said minors amounting to the sum of about $82,000 at the rate of three per cent, per annum.</p> <p>“The court being fully advised in the premises: It is ordered that said guardian be authorized to borrow said sum of $82,000 at the rate of 3% per annum, and to so hold the same at said interest until the further order of .this court.”</p> <p>N. B. Smith testified that he did not procure this order to be made, and did not know of it at the time. He admits in his testimony that he thereafter acted as the attorney of the guardian, and prepared the final account of the latter in which the wards were charged for the money paid by the guardian to the surety company for , going on his bond as guardian, .and in which also the guardian was charged interest on the money of the wards only from December 11, 1900, .and at the rate of 3 per cent, per annum, but claims that, as respects the interest, his doing so was an inadvertent mistake.</p> <p>In regard to his guardianship attorney John M. Smith was questioned and answered as follows:</p> <p>“Q. Who was your lawyer in the guardianship matters? A. Waterman for about a year and a half or two years, I forget about it, .but Waterman acted-as my attorney.</p> <p>“Q. Max Waterman, of White Sulphur Springs? A. Yes, he used to assist me about court matters and get the accounts in and accepted. I didn’t know anything about the business myself. Badger made out some first of it, and Waterman acted lated on, and after that I had N. B. Smith. He was fairly conversant with everything, and I knew he would do the square business by all the parties concerned and so I got him after that — after. Waterman.”</p> <p>And there is in the record this letter from John M. Smith to Mr. Ramsey, of date October 15, 1900:</p> <p>“Martindale, Mont. Oct 15 1890 [1900]</p> <p>“Geo L Ramsey Helena I- have sent to the Springes to have N. B. Smith fill out my report as Gardien of Brother William he is my attorney & keeps My acounts it will be in in a few days as filed in eaar.. Your treuly J M Smith.”</p> <p>The appellant was but 10 years old when the stock was sold, and became 18 on the 27th of August, 1906. On the 5th of November of the same year her guardian paid her the amount shown to be due her by his final account, which had been approved by the probate court.</p> <p>In the deposition of the complainant which was introduced on the trial of the cause, she was asked, among other things, what information she had regarding the sale of the stock, when her guardian settled with her in November, 1906, to which interrogatory she answered:</p> <p>“I knew that the sale had been made, of course, and I knew that uncle John has been the purchaser — that is all I knew. I knew nothing about the stock company or the incorporation of the company. I received my money, and that was all I knew about it — what he gave me.”</p> <p>Being asked what knowledge she had at that time regarding the method, validity, and good faith of the sale of the stock, she answered:</p> <p>“I had no knowledge of its method, its validity, or of its good faith, and knew nothing about their intentions.”</p> <p>In response to the interrogatory, “What was told you by your uncle, John M. Smith, or your cousin, Napoleon B. Smith, the above-named defendants, about your affairs, and particularly about the sale of said stock?” she answered:</p> <p>“Nothing was told me by either John M. Smith or Napoleon B. Smith, concerning the estate in any way — unless I asked it directly, and I never talked to ‘Poly’ about my affairs very much, but I have spoken to Uncle John — he' always avoided me or would talk in an indirect way, and I knew no more when I finished than when I begun. He didn’t seem to care about discussing it very much — he didn’t want me to think much about it. I once asked him about the difference between his estate and ours and why he had more than we had, and he said, ‘Papa owed large sums of money when he died, and they had to be paid off.’ I also spoke about the 3 per cent, which was paid us on our money, and asked him why he didn’t give us more — he said, ‘It was all he could afford.’ ‘Poly’ never told me anything at all, except what we had, and in fact intimating that we ought to be thankful for what we got.”</p> <p>Both John M. Smith and N. B. Smith were questioned in respect to con-, versations they had with the complainant.</p> <p>John M. Smith gave this testimony:</p> <p>“Q. Do you remember when the complainant in this suit came out to the ranch at the time of the settlement? A. I don’t remember the date, but it was in August, I think.</p> <p>“Q. Of what year? A. The 27th of August.</p> <p>‘‘Q. Of what year, I said? A. 1906.</p> <p>“Q. About how long was she there? A. Well, she wasn’t there long. I can’t remember, but.it wasn’t but a few days.</p> <p>“Q. What occurred in her matters while she was there? A. N. B. Smith,</p> <p>I think was down there, and was talking about her loaning money. There was a party wanted to borrow the money.</p> <p>“Q. Was, there any settlement made with her? A. The settlement wasn’t made at the ranch.</p> <p>“Q. Where was it made? A. At White Sulphur Springs.</p> <p>“Q. Was it made that year? A. Yes, sir. I wasn’t present at the settlement. N. B. Smith done the entire business, he and the court, as I recollect it.</p> <p>“Q. Do you recall any talk when N. B. Smith was down at the ranch and the complainant was down at the ranch, about her affairs? A. I cannot recall just what it was, no. They had some talk, but I cannot—</p> <p>“Q. Where did they have it? A. In the office.</p> <p>“Q. Who was present? A. I don’t know as I could say exactly who was present.</p> <p>“Q. Was the complainant present? A. The complainant was present.</p> <p>“Q. Was N. B. Smith present? A. N. B. Smith and myself.</p> <p>“Q. Were you present? A. Yes, sir, and I think Mr. Matt and I think probably my wife was. I don’t know whether she was or not. I know at the time she was there it was talked over, but I can’t recall the conversation.</p> <p>“Q. What was talked over — what was it about, generally? A. It was talked about what was best for her to do with the money, as near as I can remember.</p> <p>“Q. Was there any talk about the matter of your purchase of the stock of the company? A. I don’t remember that that was talked over, but it might have been; I don’t remember.</p> <p>“Q. Was there any explanation given her of her matters and how the results and amounts due her were arrived at? A. I think that N. B. Smith gave her full information in regard to it. I think so, as near as I remember, but I cannot recall what it was.”</p> <p>N. B. Smith was also questioned in respect to the same matter, and also in respect to a visit of the complainant to Montana in 1904, when she was .about 16 years old, as follows:</p> <p>“Q. Do you recall when the plaintiff came out to Helena in 1904? A. Yes, sir; I recall when she came out here.</p> <p>“Q. Where did she stop, if she stayed at all in White Sulphur Springs? A. Well, she stopped with us a few days.</p> <p>“Q. At your home? A. Yes, sir, at our home.</p> <p>“Q. With yourself and wife? A. With myself and wife.</p> <p>“Q. And during that time, was any explanation given to her of these matters about which you have been testifying? A. Yes, sir.</p> <p>“Q. What was done in that regard, you may tell. A. I showed her the final account of myself as trustee or executor, as in my letter, I invited her to come out here, that was in 1903. I also showed her the annual' account. I said I would be glad to explain the affairs of the estate to her, that I was fixing up the annual account as guardian and she was there at the time, and when I was at. the courthouse I got the final account and the annual account as executor and showed them to her.</p> <p>“Q. Where were you when you showed them to her? A. I was there in my office at the little room at the north — there is two rooms to the office.</p> <p>“Q. You said as you had invited her in your letter? A. Yes, sir, in my letter I had invited her.</p> <p>“Q. What letter did you refer to, the one of August 13, 1903, that is in evidence here? A. August 33, 1903.</p> <p>“Q. In connection with the explanation of the papers in question, did you say anything to her about it, or what did you say? A. Oh, I explained to her about the sale of the property.</p> <p>“Q. As you have — ■</p> <p>“Witness (continuing): I explained to her about the sale of the property and the items of the account.</p> <p>“Q. Did you tell her the facts about those matters as you have told them here. A. I related the facts to her about the sale and why I sold the property.</p> <p>“Q. Well, did you give her information the same as you now tell the matter, or definitely? A. Well, the same information — probably I didn’t go into it quite as fully, but I explained generally the nature of the transaction and why I sold it, and wKat I got for it, and showed her the accounts.</p> <p>“Q. Do you remember, in 1906, when the complainant came out to Montana? A. Yes, sir.</p> <p>“Q. Did you see her at that time? A. Yes, sir.</p> <p>“Q. Where? A. I saw her down at the ranch of Smith Bros. Sheep Company.</p> <p>“Q. What was she doing down there? A. She had, I think, came back from Germany if I remember correctly, and was going back.</p> <p>“Q. Well, that states where she came from and where she was going to, but I asked you if you knew what she was doing down there on the ranch? What she was there for. A. Well, she was there, looking after her estate. I don’t remember whether the final account had been put in or not, but we discussed the matter there in our presence there in the office.</p> <p>“Q. In the office, where do you mean? A. The office of Smith Bros. Sheep Company.</p> <p>“Q. Who discussed it? A. Well, I discussed it with her and Uncle John.</p> <p>“Q. Who was present? A. Mr. Flatt was present.</p> <p>“Q. And you discussed what matter? A. Oh, about the sale of the property, and how it had been handled, and how we had tried to manage the property for her.”</p> <p>In the same connection a letter written by N. B. Smith to the complainant’s younger sister on the 7th of April, 1905, is pertinent:</p> <p>“N. B. Smith, County Attorney, Meagher County.</p> <p>“White Sulphur Springs, Montana, April 7th, 1905.</p> <p>“Dear Anna: Your favor of the 4th inst. came to hand. Will say presume you have my letter inclosing the $500.00. Yes, you will get your money in June. You need be at no expense about attorney’s fees. I would like to have you come out and be here when the estate is settled. You can go over all the accounts with me and see where the money has gone. I have taken receipts for everything and have paid out all money by checks. I want you to know everything and then I will feel that I have done my duty. * * * Your cousin, N. B. Smith.”</p> <p>This suit was commenced August 22, 3907, to annul the sale of the stock in so far as.concerns the complainant, and to recover the complainant’s share of the stock'so sold — the complainant having tendered, and continuing to tender, to John M. Smith her proportionate share of the money he paid for the stock, together with interest thereon, the original bill alleging, among other things, that the sale of the stock “was illegal and fraudulent, and that it was collusive; that the said John M. Smith was without right to purchase said property; that his duty as guardian was incompatible with the purchase by him of said property; that more than one year had elapsed from the date of the making of the order of sale thereof; that no reappraisement of this property was had; that said John M. Smith had by his affidavit and otherwise procured or aided in procuring the making of the order of sale; that he was the president of the said company, had been for many years a part-'her in business of William A. Smith, and stood "at'that time in thé pláce of a parent to said children; that meanwhile, as your oratrix alleges on her information and belief, the'said John M. Smith had decided to retain his stock in the said company and to continue the business thereof, and did in fact do so;' that the business and prospects of said company had greatly improved during the said year, and that the business in which it was engaged was, at the time of the sale, increasing in prosperity and in value, and that the property of’ the said company was also steadily increasing in value; that the reasons given in the petition of the said executor and in the affidavit of the said John M. Smith for the sale of the said property had, most of them, ceased to exist, and that all had lost' their force, if they ever had any; that it was then and there to the interest of the said children and of the said estate of the said William A. Smith to rétain the ownership of the said shares of stock, but notwithstanding all these considerations, the said Napoleon B. Smith and the said John M. Smith colluded and confederated, as your ora-trix alleges on her information and belief, to secure the said property to the said John M. Smith, and to sell the same to him at much less than its real value, 'and that in pursuance of this collusion, the said Napoleon B. Smith proceeded to make the alleged sale to the said John M. Smith, and to obtain confirmation thereof, and delivered said shares to him, and the latter to enter into the alleged contract of purchase heretofore set out; that the value of said shares of stock so sold to the said John M. Smith was very much in excess of the price paid therefor, arid that the price was greatly disproportionate to the real value thereof; that the said Napoleon B. Smith had full knowledge of the petition of said John M. Smith for his own appointment as guardian and of the appointment of the said John M.1 Smith as guardian; that the said Napoleon B. Smith is a nephew of the said John M. Smith, and was at the times in question herein his attorney and connected with his business, and the said John M. Smith was one of the sureties on the bond of the said Napoleon B. Smith as the executor of the estate of William A. Smith; that by means of his appointment as guardian, rind within less .than two months after the day mentioned in the accounts of Napoleon B. Smith as that of the receipt of the $75,000 from the said John M. Smith, as the balance of the purchase price, the said John M. Smith came into possession of all the moneys and property of the said estate and of the very money which he was supposed to have paid to the estate of William A. Smith; that later, to wit, on or about the 11th day of December, 1900, the said John M. Smith procured from the said District Court an order authorizing him to borrow from, the funds in his hands belonging to the said minors, to wit, the sum of about $82,000, according to the statements in said order, at the rate of 3 per cent, per annum; that the said John M. Smith is still the holder of the aforesaid shares of stock of the said corporation; that the same are now of great value; that the rate of interest charged by banks and other money lenders was at the times in question not less than 8 per cent., and that the said John M. Smith had to pay that rate or more on moneys borrowed.”</p> <p>John M. Smith having died pending the suit, the bill was revived as against his widow as executrix of his estate, and after the taking of the evidence this amendment to the original bill was allowed by the court below:</p> <p>Instead of the words, “That the plaintiff has no knowledge of the payment of these sums except what appears in the papers on file in the matter of said estate,” appearing in the original bill, the following was inserted: “That the said pretended payments of $10,000 and $75,000 respectively, were not made with money, but only as follows, to wit, the said John M. Smith obtained credits at the Bank known as the Union Bank & Trust Company, in Helena, Montana, for the said sums, by giving his personal notes therefor, and sent his checks for similar sums to N. B. Smith; that John M. Smith was then in California and sent his checks from there; that in the month of February, 1899, said N. B. Smith obtained with the check of $10,000 a certificate of deposit for a similar sum from said bank;. that on or about April 27, 1899, defendant N. B. Smith turned in to the said bank the said certificate of deposit, and the said check of John M. Smith for $75,000, and in exchange therefor obtained a certificate of deposit for $80,000 to his order as executor and an open account credit for $5,000, to his personal order; that on June 14, 1899, the said N. B. Smith endorsed and turned over to said John M. Smith, who had meanwhile been appointed guardian of the plaintiff and of her brother and sister, the said certificate of deposit for $80,-000, and gave him his (N. B. Smith’s) check on said bank for $2,174.20; that within three days thereafter the said John M. Smith indorsed and turned in to the said bank the said certificate of deposit of $80,000, and the said check of N. B. Smith in part payment of the notes which said John M. Smith had given to the said bank, as aforesaid, and then, or later, paid the balance of said notes with moneys obtained from Smith Bros. Sheep Company.”</p> <p>There having been judgment for the defendants in the court below, the complainant there brought the present appeal.</p>

<p> (Syllabus 6y the Court.) </p> <p>1. Bankruptcy (§ 440*) — Revie-vV—Appeal oe Petition eoe Revision — Adjudication of C'keditob’s Claim of Lien — Reviewable Either Way— “Proceeding in Bankruptcy.” ,, , ,</p> <p>,, , , A decision of a controversy arising in bankruptcy proceedings which involves the validity of the claim of a creditor to a lien upon the property of the bankrupt, or its proceeds under administration in possession of the court, is a proceeding in bankruptcy within the meaning of section 24b of the bankruptcy law and reviewable in matter of law upon a petition to re-</p> <p>V1Tho grant of jurisdiction to the Circuit Court of Appeals (Bankruptcy Act July 1, 189¾ c. 541, § 24a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431]) to review by appeal the final decision of a controversy arising in bankruptcy proceedings of which that court would have had appellate jurisdiction, if it had arisen in any other case in the federal court, and the grant of jurisdiction to revise and superintend in matter of law the proceedings of the inferior courts of bankruptcy (section 24b [U. S. Gomp. St. 1901, p. 3431]), are not exclusive of each other, but cumulative or concurrent grants, the former of jurisdiction to review questions of law and of fact, the latter of jurisdiction to review questions of law only.</p> <p>An aggrieved party often has a choice of these methods.</p> <p>[lid. Note. — For other cases, see Bankruptcy, Dec. Dig. § 440.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5631-5038.</p> <p>Appeal and, review in bankruptcy cases, see note to In re Eggert, 43 O. O. A. 9.]</p> <p>2. Bankruptcy (§ 440*) — Petition to Revise — Questions of Daw on Agreed Facts Reviewable.</p> <p>Decisions of issues of law which arise on agreed or proved facts that are neither contradictory nor doubtful and that leave nothing but their legal effect for determination may be reviewed by petition to revise under section 24b (Act duly 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431]).</p> <p>But the review of such decisions which require the consideration of conflicting evidence regarding controverted facts may not be invoked successfully by such a petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 440.*]</p> <p>3. Subrogation (§ 23*) — Bankruptcy (§ 314*) — Loan to Pay Incumbrance Under Agreement of Owner to Give Dike Dien Entitles to Subrogation.</p> <p>Where money is lent in pursuance of an express agreement that it is to be used to discharge an existing incumbrance on the borrower’s property and that the lender is to have a first lien upon the property to secure its payment, and the money is so used, such lender may be subrogated to the rights of the incumbrancer whose debt has been paid, not only as against the borrower, but also as against his trustee in bankruptcy, and as against any one else who subsequently acquires an interest in the property with knowledge of the circumstances under which the money was lent.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23 ;* Bankruptcy, Dec. Dig. § 314.*</p> <p>To rights of mortgagee, see note to Rachal v. Smith, 42 C. C. A. 304.]</p> <p>Reed, District Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Iowa.</p> <p>Action by the C. A. Hoover Distilling Company against the Mechanics’ Insurance Company of Philadelphia, the St., Paul. Eire & Marine Insurance Company, the Phenix Insurance Company of Brooklyn, N. Y., the Royal 'Insurance, Company of'Liverpool, the German American Insurance Company of New York, the Insurance Company of North America, the North British & Mercantile Insurance .Company of London and Edinburgh, the Rochester German Insurance Company of Rochester, N. Y., the Phoenix Insurance Company of Hartford, Conn., the Eire Association of Philadelphia, the City of New York Insurance Company of New York, the Security Insurance Company of New Haven, and the iEtna Insurance Company of Hartford, Conn. Actions were, consolidated. Judgment for plaintiff, and defendants bring error.</p>

■ Appeal from, the District Court of the United States for the Southern District of Georgia. In the matter of bankruptcy proceedings of the Tysor-Cheatham Mercantile Company. Priority having been denied! to the claim of W. R. Bean, as mortgagee of certain real estate of the bankrupt on objection of Oliver Orr, trustee, and such determination having been affirmed by the District Judge, Bean appeals.

<p>Appeal from the District Court of the United States for the Middle District of Pennsylvania.</p> <p>In the matter of Harry Rinker, bankrupt. On appeals from orders of the District Court (174 Fed. 490) by the Liquid Carbonic Company and the National Cash Register Company.</p>

<p>1. Corporations (§ 98*)— Stockholders — Rights op Paid Subscribers to Stock.</p> <p>The owner of a paid subscription to the stock of a corporation is the full beneficial owner of the stock, a certificate of stock being merely evidence of ownership; and, during the time in which a company fails or refuses to issue a certificate to a subscriber who has paid in full, it is at most the holder of the naked legal title in trust for the beneficial owner.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 436-443; Dec. Dig. § 98*]</p> <p>2. Corporations (§ 98*)— Stockholders — Rights op Paid Subscribers to Stock.</p> <p>A decree requiring a corporation to issue a certificate of stock to the complainants, who were owners of a paid subscription, did not create their ownership of the stock, but merely adjudged the fact that they had been the full beneficial owners since their ownership of the subscription with all the rights of stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 436-443; Dec. Dig. § 98.*]</p> <p>3. Corporations (§ 190*) — Suits by Stockholders — Grounds for Relief.</p> <p>A bill, which, alleges that complainants were the equitable owners of stock in a railroad- corporation, and that defendant with full knowledge of their claim acquired control of a majority of the stock, and, through such control and for the purpose of defeating their rights, caused the company to refuse to issue them a certificate and to litigate their claim and in the meantime to transfer its entire property to defendant under such an arrangement as to render the stock valueless when complainants finally obtained it, states a cause of action for equitable relief.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 190.*]</p> <p>4. Equity (§ 72*) — Laches—Suits for Fraud.</p> <p>' ■ In cases of fraud it usually takes something besides mere delay to make a chancellor close the door to relief, such as a change of conditions Brought about by complainant’s apparent acquiescence in the wrong.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 207-226; Dec. Dig. § 72.*]</p> <p>5. Corporations (§ 189*) — Suits by Stockholders — Laches.</p> <p>Stockholders in a railroad company held not barred by laches from maintaining a suit to set aside transfers of its property by the company to its codefendant, which caused the company to litigate complainant’s claim'to their stock and in the meantime concealed the fact that it had become the owner of a large majority of its stock and controlled all its acts and in the transactions by which the property was transferred was virtually both seller and buyer.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 189.*]</p> <p>6. Corporations (§ 189*) — Suits by Stockholders — Conditions Precedent.</p> <p>Where a railroad company transferred its property by leases and afterward by sale to another company, which had acquired practically all of its stock, a minority stockholder is not required to return the consideration paid for such leases and deeds to entitle him to maintain a suit to set aside such transfers.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 706-722; Dec. Dig. § 189.*]</p>

Action by E. P. Kyle against the Chicago, Rock Island & Pacific Railway Company, and by G. B. Kyle against the same. Judgments for defendant, and plaintiffs'bring error.

<p>1. Arbitration and Award (§ 35*) — Award by Majority — Validity.</p> <p>Under the rule that the power of arbitrators is derived from and measured by the submission, where the submission either by express terms or by fair implication allows a majority to make an award, a majority award is valid; otherwise, by the common-law rule, it is void unless all unite therein.</p> <p>■ [Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. 1 186; Dec. Dig. § 35.*]</p> <p>2. Arbitration and Award (§ 40*) — Umpire—Majority Award.</p> <p>Where an arbitration agreement provides for the appointment of two arbitrators, and authorizes them to appoint a third in case they cannot agree, the third is an umpire, and hence under such a submission the majority award would be valid.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §' 204; Dec. Dig. § 40.*]</p> <p>3. Arbitration and Award (§ 40*) — Submission—Construction—Majority Award.</p> <p>A submission to arbitration provided that one of the arbitrators should be selected by each party, that the two should have power to name a third, and that the deeison of the arbitrators should be binding on the parties. Held, that the selection of a third arbitrator was not conditional on the failure of the two to agree, and hence the third was an arbitrator, and not an umpire, so that an award in order to be valid must be the award of all.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. § 204; Dec. Dig. § 40.*]</p>

<p>Master and Servant (§ 316*) — Death of Servant — Subcontractor—Independent Contractor.</p> <p>Defendant, the lessee of a building, desiring alterations, procured plans which were approved by the city building bureau, and a permit was granted thereon to the contractor. The contract stipulated that the contractor should provide all materials and perform all work required by the drawings” and specifications prepared by the architects. The contract provided that the work should.be done under the direction of the architects acting as counsel for the lessees, etc.; that the decision of the architects as to the true intent of- the drawings and specifications should be final; and that the contractor should bear all loss or damage from. accidents which might occur to neighboring property or persons during the progress of the work, whether from accidents or carelessness on his part, or on the part of his representatives, until possession was taken by the owner. Held, that the contractor was an independent contractor, and that the lessee not having interfered with the work either by itself or its architect, was not liable for the death of a servant of a subcontractor caused by the collapse of a building due to the negligent manner in which the work was performed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. § 316.*</p> <p>Who are independent contractors, see note to Atlantic Transport Co. v. Coneys, 28 C. C. A. 392.]</p>

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Alabama.</p> <p>In the matter of Jacob Traub, bankrupt. A "petition to reopen the estate was granted by the District Court, and the bankrupt files a petition to revise the order.</p> <p>This was an application by a creditor to reopen a bankrupt’s estate. The application was granted against the bankrupt’s objection, and this action of the District Court is sought to be reviewed.</p> <p>Traub was adjudged a bankrupt, on December 4, 1907. A trustee was appointed shortly afterward, and on- December 10, 1909, the trustee was discharged and the estate closed by order of the court. On June 16, 1910, respondent, as a creditor, filed a petition to reopen the estate. The petition as amended alleged the adjudication in bankruptcy; that the estate had been closed on December 10, 1909; that in December, 1907, Traub had delivered $4,000 to one Schwartzman, with the statement that the money belonged to Mrs. Traub; that Mrs. Traub, in January, 1908, had stated on examination that she had assets amounting to less than $1,000 and no money deposited. The petition alleged on information and belief that the $4,000 was the property of Traub and subject to administration, and alleged that petitioner first learned of the facts in the matter prior to June, 1909.</p> <p>By way of excuse for the delay in filing the petition, it was alleged that it was “impliedly agreed” between petitioner’s attorney and the attorney for the trustee that it would be better to defer action against Traub until after the trial of an indictment which had been found against Schwartzman, and that Traub’s estate would not be closed until after the termination of Schwartz-man’s case, nor until a course of proceeding against Traub had been agreed on.</p> <p>Traub demurred to the petition, making in several forms the objections: (a) That the petition did no show what property was surrendered by the bankrupt, nor what representations were made in his schedules, nor that any creditor had been deceived as to the facts in the case or by the schedules; and (b) that petitioner’s action was stale and the relief barred by laches and delay.</p> <p>Traub’s demurrer being overruled by the court, he filed answer as follows:</p> <p>“Said bankrupt, for answer to the amended petition of Marshall Field & Co., praying that the said estate be reopened, says:</p> <p>“(1) He admits the allegations of the first paragraph of said petition.</p> <p>“(2) He is informed that the allegations of the second paragraph of said petition are true, and therefore admits same.</p> <p>“(3) He admits the allegations of the third paragraph of the petition;</p> <p>“(4) Answering the fourth paragraph of said petition, he denies that said estate has not been fully administered. He admits that in December, 1907, he delivered $4,000 to D. Schwartzman, and says that said money was the property of Mrs. Minnie Traub, who had handed it to respondent with instructions to deliver the same to said Schwartzman. He admits that on his examination in bankruptcy he stated that he had no assets in the hands of any other person and no assets other than those disclosed by such examination or by his schedules, and he avers that the statements then made by him wore true arid correct. He is not advised as to any statement made by said Minnie Traub on any examination had by her in said cause, and he is informed and Relieves, and on such information and belief states, that the said Minnie Traub made no such ‘ statement as alleged in such paragraph and that the said Minnie Traub did not then and there state under oath, as "alleged, that all her possessions and property in money consisted of less than $1,000, and that she had no money deposited elsewhere, and he expressly denies this allegation of the petition. He further avers that the information that he had delivered money to said Schwartzman under the circumstances mentioned in said petition came to said petitioner and was in its possession prior to June T6, 1909, and that on said date said petitioner, or its authorized agents and attorneys, knew or had notice that he had delivered the said money to said Schwartzman on said date, and knew in substance all the facts alleged in said petition, and in -substance all that petitioner now knows as to said matters, notwithstanding "which said petitioner, without taking action therein, suffered the said estate to be closed and the said trustee discharged on December 10, 1909, as alleged in third paragraph of said petition; and respondent avers that petitioner is barred by laches and delay from seeking the relief prayed for by said petition. He denies the allegations made a part of the fourth paragraph of the petition by amendment and demands proof of same.</p> <p>“(5) Respondent denies all the allegations of the fifth paragraph of the petition, and avers that the reopening of said estate would have no beneficial effect to the estate; that no trustee could recover the said sum delivered by him, as Minnie Traub’s agent, to said Sehwartzman; that same is not his property or the property of his estate in bankruptcy; that his estate in bankruptcy has no claim nor right thereto; and that such proceedings would be a vain and useless thing.</p> <p>“Said respondent denies all the allegations of said petition not hereby expressly denied or admitted.</p> <p>“George Huddleston, Attorney for Jacob. Traub.</p> <p>“State of South Carolina, County of Charleston. Before the undersigned,a notary public in and for said county and state, personally came Jabob Traub, the person mentioned in the foregoing answer, who on oath says that the statements made in said answer as of his' knowledge are true, and that the statements therein made as of his information and belief, affiant is informed and believes the same to be true. Jacob Traub.</p> <p>“Sworn to and subscribed before me, this 5th day of July, 1910.</p> <p>“F. M. Bryan, Notary Public.”</p> <p>The proceeding was heard upon the petition and answer, no evidence being offered by either party at the hearing, and thereupon an order was made granting the petition and reopening the estate.</p> <p>The matter comes before the Court of Appeals upon Traub’s petition for the review of the order of the District Court reopening the estate. Errors are assigned as follows:</p> <p>(1) The District Court erred in overruling Traub’s demurrer to the petition-of Marshall Field & Co. to reopen the bankrupt estate.</p> <p>(2) The District Court erred in granting the petition of Marshall Field & Co. to reopen Traub’s estate; no evidence having been offered in support of the petition, material averments of which were denied.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Action by the City of Paducah against the East Tennessee Telephone Company. Judgment for defendant, and plaintiff appeals.</p>

In Equity. Suit by the National Malleable Casting Company against the American Steel Foundries. Suit for infringement of letters patent Nos. 728,049 and 728,182, both granted May 12, 1903, to complainant, as assignee of Clinton A. Tower, for improvements in car couplers.

<p>' - In Equity; Suit by the American Stoker Company against the Underfeed- Stoker Company of America and David Hunter, Jr.</p>

In Equity. Suit by James Bredin and others against the National Metal Weather Strip Company. On exceptions to report of master appointed to state an account. For opinions sustaining the patent in the Fourth Circuit, see Bre-din v. Solmson (C. C.) 132 Fed. 161, affirmed.136 Fed. 187, 69 C. C. A. 203; and in the Third Circuit, see Bredin' v. National Weather Strip Company (C. C.) 147 Fed. 741, affirmed "157 Fed. 1003, 85 C. C. A. 281.

Action by the Canary Oil Company against the Standard Asphalt & Rubber Company. Defendant having removed the case to the federal court, plaintiff moved to remand.

<p>Action by the Cumberland Gaslight Company against the West Virginia & Maryland Gas Company. On demurrer to declaration.</p>

Basil Rizzinelli and another were convicted of maintaining saloons on mining claims within the limits of the Coeur d’Alene National Forest Reserve without a permit. On demurrer to indictment.

<p>1. Injunction (§ 59*) — Breach of Contract — Irreparable Injury.</p> <p>The threatened breach by one party of a contract between two connecting railroad companies for a division of rates on through shipments passing from one road to the other for a certain length of time, the validity of which is not denied, affords ground for an injunction; the damages being incapable of approximate estimation by a jury in an action at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.⅝]</p> <p>2. Contracts (§ 303*) — Action tor Breach — Defenses.</p> <p>A railroad company is not justified in refusing to observe a contract with another company for a division of rates on through shipments, apparently valid, because of an opinion of the Interstate Commerce Commission delivered in a proceeding to which neither of the companies was a party.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 303.*]</p>

<p>In the matter of the petition of the Jefferson Casket Company to be •adjudged a voluntary bankrupt. On objection to the petition.</p>

<p>1. Febries (§ 3*) — Character op Ferries as Public Highway — Eights an» Responsibilities.</p> <p>While the owner and operator of a ferryboat is In a sense a common carrier, it is not responsible in the way in which a railroad or steamboat line is responsible for goods committed to its care to be delivered at the end of the transportation, but its rights and responsibilities are nearer those of a toll road or bridge; the charge being for the right to use a public highway, including the power necessary for transportation.</p> <p>[Ed. Note. — For other cases, see Ferries, Cent. Dig. § 3; Dec. Dig. § 3.*</p> <p>Ferries as carriers, see note to Wade v. Lutcher & Moore Cypress Lumber Co., 20 C. a A. 536.1</p> <p>2. Ferries (§ 27*) — Power to Kegulate on Navigable Waters — Federal Statutes.</p> <p>A ferryboat plying entirely within the boundaries of a state, but in navigable water, which is accessible for general purposes of navigation to craft from other states and foreign countries, is subject to such statutes and regulations controlling navigation under the jurisdiction of the United States as are applicable to vessels engaged in such business, whether owned and operated by a private individual or corporation or by a municipality.</p> <p>[Ed. Note. — For other cases, see Ferries, Cent. Dig. § 74; Dec. Dig. ⅜ 27.*]</p> <p>3. Ferries (§ 29*) — Steam Ferryboats — Applicability oe Federal Statutes —Carriage, op Dangerous Articles.</p> <p>The provision of Rev. St. § 4472 (U. S. Comp. St. 1901, p. 3050), that no “crude or refined petroleum, or like explosive burning fluids, or like dangerous articles, shall be carried as freight or used as stores on any steamer ■carrying passengers,” does not apply to a steam ferryboat plying between Manhattan and Brooklyn in such sense as to render it unlawful for such boat to transport a wagon or truck loaded with barrels of kerosene.</p> <p>[Ed. Note. — For other cases, see Ferries, Cent. Dig. § 76; Dec. Dig. § 29.*]</p>

<p>In Admiralty. Suit by Charles C. Banks as master of the schooner J. Dallas Marvil against the steamer Everett.</p> <p>Decree for libelant.</p> <p>The J. Dallas Marvil was a three-masted schooner, 160 tons register, loaded with 11,000 bushels of oyster shells and bound from Baltimore to Salisbury, Md. She had a crew consisting of a captain and mate, who were white, and two colored men. She was sunk in a collision with the steamer Everett in the Chesapeake Bay off Sandy Point Light about 3:50 a. m. on the morning of June 15, 1910. At that time, and for some half an hour previously, she had been sailing on the starboard tack. There was very little wind, barely enough to give the schooner steerageway. It was ebb tide.</p> <p>The Everett was a steam collier of some 8,000 tons register, bound light from Boston to Baltimore. She had her master on the bridge, her second officer and a quartermaster in the pilot house, and a lookout in the crow’s nest. There was no lookout at the bow. According to her testimony, she saw nothing of the schooner until its sails loomed up across her bow too late to do anything successfully to prevent a collision. Both vessels were displaying proper lights.</p> <p>Those on the schooner say that the colored cook was steering while the mate was on the lookout. He claims to have seen the steamer when she was more than half a mile away; that he answered the signals from her fog horn with a tin horn blowing single blasts in reply to single blasts from the steamer; that, as the steamer approached nearer without changing its course, he called the captain, who was his brother. The latter at once came on deck. Those on the schooner testified that when her captain came on deck the steamer was bearing directly down on the schooner and was in plain sight, and the captain says he then blew what he calls the danger signal; that is, a number of blasts on the tin horn. The collision followed very shortly thereafter.</p>

<p>Action by Gabriel Astruc against the Star Company.</p>

<p>1. Courts (§ 508*) — Injunction by Federal Court Against Action in State Court — Priority oe Jurisdiction.</p> <p>The removal into a federal court of an action for malicious prosecution on a charge of larceny after trust does not warrant the federal court in granting an injunction to restrain plaintiff from prosecuting a second action in the state court for malicious prosecution on a charge of forgery, the two causes of action being separate and distinct, where under the state statutes the two prosecutions could not have been consolidated, and on conviction would have subjected plaintiff to separate and different punishments.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 508.*</p> <p>Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 O. C. A. 437.]</p> <p>2. Courts (§ 508*) — Injunction by Federal Court Against Action in State Court — Priority oe Jurisdiction.</p> <p>In such case, however, plaintiff will be enjoined from pleading and proving as an element of damages in the second suit the same expenses of defending the prosecutions that are set up in the first action.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 508.*]</p>

Action by Frank Ewers against H. O. Weaver, as Collector for the Internal Revenue Department, to recover $100 paid under protest by plaintiff for a wholesale oleomargarine dealer’s license.

In the matter of Hyrñan J. Herr, bankrupt. On certificate of the referee to review an order entered on a rule committing the bankrupt for contempt, in failing to deliver to the trustee certain checks, checkbook stubs, canceled notes, etc., belonging to the bankrupt. Order affirmed.

<p>1. Bankruptcy (§ 143*) — Assets—Insurance Policy — Wife as Contingent Beneficiary — Change of Beneficiary — Right of Trustee to Surrender Value.</p> <p>A bankrupt had an endowment policy on his own life payable to him if he should survive the endowment period, otherwise to his daughter should she survive him, otherwise to his executors, administrators, or assigns, or such other beneficiaries as he might designate, provided that if the policy had not been assigned there might be a new designation by the bankrupt at any time, and from time to time during the continuance of the policy on filing with the company a written request to that effect, duly acknowledged and accompanied by the policy, to take effect on being indorsed thereon. The bankrupt had twice changed his beneficiary; once so as to make the policy payable to his executors, administrators, and assigns, eliminating his daughter, and again by making it payable to himself and in the event of his prior death, to his widow, and if she should not survive him to his executors, administrators, and assigns; and so the policy stood at the date of bankruptcy. Held, that the wife’s interest in the policy was negligible, and that the surrender value of the policy constituted assets belonging to the bankrupt’s trustee.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 143.*]</p> <p>2. Bankruptcy (§ 143*) — Assets—Insurance Policy.</p> <p>It is not necessary, that an insurance policy on the life of a bankrupt shail be assets for the benefit of creditors, that an actual cash surrender value shall be stipulated for in the policy; it being sufficient if it is conceded by the practice of the insurance company.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 143.*]</p> <p>3. Bankruptcy (§ 143*) — Assets—Insurance Policy Payable Contingently to Wife — State Law.</p> <p>Where a bankrupt had a life insurance policy payable to his wife if she survived him, and authorizing a change of beneficiary at any time at the bankrupt’s election, the policy was not saved to the wife as against the bankrupt’s trustee by Act Pa. April 15; 1868 (P. L. 103), and Act May 1, 1876 (P. L. 60) § 25, providing that policies of life insurance secured by a husband for the benefit of his wife and children shall confer on them a vested interest free from the husband’s creditors, etc.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 143.*]</p>

In Admiralty. Suit by William Cooper, as master, for himself and others as owners, of the barge Diamond State, against the steamship Aker. Charles Gring, owner of the Prudence, was impleaded.. The barge, Diamond State, on the morning of March 12, 1910, was damaged in a collision between it and the Norwegian steamer Aker in what is known as the cut off channel in the Chesapeake Bay. She was at the time in the tow of the tug Prudence. The barge libeled the Aker.

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>Frank H. Horn and others were convicted! of devising a scheme to defraud, to be effected by means of the post office establishment, and they bring error.</p>

<p>Appeal and Cross-Appeal from the District Court of the United States for the Northern District of California.</p> <p>In Admiralty. Ribels by Maldonado & Co., Incorporated, against the British & Foreign Marine Insurance Company to determine the liability of the insurance company as an underwriter for general average contribution on valued marine policies covering the usual perils. From a decree fixing the insurance company’s liability, both parties' appeal. .Reversed, with instructions.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>Suit in equity by Antonio Maria Peralta and others against the State of California and others. Decree for defendants, and complainants appeal.</p>

Suit in equity by John W. Harrison, executor of the estate of T. W. Harrison, deceased, against A. D. Clarke and Mrs. A. D. Clarke. From an order sustaining a demurrer to a supplemental bill, complainant appeals.

<p>1. Pledges (§ 29*) — Disposition oe Collateral by Pledgee-Liability to Pledgor.</p> <p>Under some circumstances a pledgee of collateral may- be required to produce it as a condition to enforcing the obligation for which it is security, but not where it has been disposed of in good faith and in a lawful manner in the effort to realize all that was possible out of it, in which case the pledgee is liable only to account for the amount received. If the disposition was unauthorized or improvident, his liability is only for the value of the collateral, and does not affect his right to recover on the obligation of the pledgor to the extent that it exceeds such value.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 74; Dec. Dig. § 29.*]</p> <p>2. Pledges (§ 29*) — Rtgiits oe Pledgee oe Securities as Collateeaj>-Mode oe Disposing oe Pledge.</p> <p>A provision in an agreement for the pledge of securities as collateral that “it shall be lawful” in case of default for the pledgee to advertise and sell the securities at auction does not limit him to such method of disposition, where another would clearly be to the best interest of both parties.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 74; Dec. Dig. § 29.*]</p> <p>3. Pledges (§ 30*) — Corporate Bonds as Collatebai>-Bankruptcy oe Corporation-Duty oe Pledgee.</p> <p>Complainant was a party to an agreement for underwriting an issue of bonds of a corporation, by which he bound himself to take and pay for on demand at any time after one year $15,000 of such bonds, receiving also a bonus in the stock of the corporation. In consideration of such agreement by complainant and others covering the entire issue, defendant, which was trustee under the mortgage, agreed to advance to the corporation as required in its business the full amount of the bonds-, and to hold the bonds and bonus stock as collateral security for the several obligations of the underwriters. It was further agreed that defendant should have the right, on default by any underwriter, to enforce his personal liability without recourse to the collateral, or to first sell his collateral and apply the proceeds thereon. The corporation shortly afterward became wholly insolvent and bankrupt, and the general creditors having denied the validity of the mortgage, in order that the property might be sold and to avoid expensive litigation, defendant, which still held the bonds, consented to come in and share with the general creditors, which it did, proving the bonds and receiving a dividend of about 6 per cent, thereon. If the entire " proceeds of the property had been applied on the bonds, the dividend would not have exceeded 8 per cent. Having credited complainant with, his share of the dividend, defendant brought suit after the expiration of . the year, and recovered judgment for the balance due from him on the underwriting agreement. Held, that defendant was warranted in handling the bonds as it did, and that such fact did not afford any ground in equity for enjoining the' enforcement of the judgment.</p> <p>[Ed. Note. — For other cases, see Pledges, Dec. Dig. § 30.*]-</p> <p>4. Judgment (§ 713*) — Defenses Concluded — Waiver--Acceptance qf Credit from Proceeds of Pledged Collateral.</p> <p>Where, in an action on an obligation secured by a pledge of collateral, plaintiff’s pleading disclosed that it had disposed of the collateral, but no defense was made on that ground, and the proceeds were allowed to defendant and accepted as a credit on his obligation, his right to contest the legality of the disposition made of the collateral by plaintiff was concluded by the judgment, and he cannot maintain a subsequent suit in equity to enjoin enforcement of the judgment, on the ground that such disposition was in violation of the contract of pledge or that it was a conversion ; nor can such right be revived by a subsequent tender of payment of the judgment, coupled with a demand for the collateral.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1241; Dec. Dig. § 713.*]</p>

<p>1. Contracts (§ 284*) — Performance—Determination bt Third Person— Conclusiveness.</p> <p>Where determination of the question of due performance of a contract is committed to a third person, with the provision that his decision shall be final, his acts within the scope of his authority are conclusive on both contracting parties, in the absence of fraud, or such gross mistake as would’imply fraud, or a failure to exercise an honest judgment.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 284.*]</p> <p>2. United States (§ 73*) — Contracts—Authority oe Supervising Officer— Conclusiveness of Acts.</p> <p>The provisions of a contract for government work stated, and held to be equivalent to a provision that the certificate of the officer in charge as 'to due performance shall be conclusive.</p> <p>[Ed. Note. — For other-cases, see United States, Cent. Dig. § 56; Dec. Dig. § 73.*]</p>

In the matter of the Conecuh Pine Lumber & Manufacturing Company, bankrupt. Appeal by the Parsons-Willis Lumber Company from an order of the District Court disallowing its claim.

In.Error to the Circuit Court of the United States, for the Middle District of Tennessee. Action by Rouisa Nelson against the Continental Insurance Company. Judgment for plaintiff fpr less than the amount demanded, and .she brings -error.

<p>Death (§ 77*) — Action for Wrongful Death — Sufficiency of Evidence— Georgia Statute.</p> <p>Evidence, in an action by a mother under Civ. Code Ga. 1895, § 3828, which, as construed by the Supreme Court of the state, authorizes a recovery of damages by a mother for the homicide of a child upon whom she is dependent and who contributes to her support, held to justify the direction of a verdict for defendant on the ground that it failed to show that plaintiff was dependent on the deceased.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. § 77.*]</p> <p>Shelby, Circuit Judge, dissenting.</p>

<p>Petition to Revise in Matter of Law an Order of the District Court jf the United States for the District of North Dakota, in Bankruptcy.</p> <p>In the matter of Barney Frank, bankrupt.</p>

<p>Petition to Revise in Matter of Raw an Order of the District Court of the United States for the Eastern District of Missouri, in Bankruptcy.</p> <p>In the matter of the Meier China & Glass Company, bankrupt. On petition of Alexander R. Meier to revise an order requiring him to turn over money of the bankrupt.</p>

Action by the United States against the Wabash Railroad Company to recover a penalty for a violation of the 28-hour law. Judgment for defendant, and the United States brings error.

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Alabama. In the matter of Clifton Martin, bankrupt. Petition by H. J. Copeland to revise an order of the District Court.

Petition for Revision of Proceeding of the District Court of the United States for the Southern District of Georgia, in Bankruptcy. In the matter of Jesse McCormack, bankrupt. Petition by W. D. McNeil, trustee, to revise order of the District Court. On the 31st of December, 1906, Jesse McCormick was adjudged a bankrupt by the United States District Court for the Western Division of the Southern District of Georgia on his voluntary petition.

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>Action by Charles J. Allison, for the use, etc., against the American Bonding Company. Judgment for plaintiff, and defendant brings error,</p>

<p>1. Patents (§ 168*) — Construction—Proceedings in Patent Office.</p> <p>When an inventor seeking a patent for a broad claim acquiesces in the rejection of the same by the Patent Office and substitutes therefor a narrower one which is allowed, such claim must be construed with reference to the rejected claim and the prior state of the art, and will not be so interpreted as to cover either what was rejected by the Patent Office or disclosed by prior devices.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243½, 244; Dec. Dig. § 168.*]</p> <p>2. Patents (§ 22*) — Invention—Substitution oe Equivalents.</p> <p>The use in a patented device of a screw to fasten together two parts instead of a rivet used in prior devices, for the purpose of making them more readily detachable, is but the substitution of a well-known mechanical equivalent and does not amount to invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 24; Dec. Dig. § 22.*]</p> <p>3. Patents (§ 35*) — Evidence of Invention — Utility and Extent of Use.</p> <p>Tlie fact that a patented article has gone into extensive or general use is evidence of its utility, and in doubtful cases may be considered as evidence of invention, but is not conclusive, and, where there is no invention, the extent of the use is immaterial.</p> <p>[Ed. Note. — For other eases, see Patents, Cent Dig. § 39; Dec. Dig. § 35.*</p> <p>Utility, extent of use, and commercial success as evidence of invention, see note to Doig v. Morgan Mach. Co., 59 C. O. A. 620.]</p> <p>4. Patents (§ 328*) — Novelty—Ooen-Husker.</p> <p>The Walter patent, No. 634,923, for a corn-husker, is void for lack of patentable novelty.</p> <p>5. Patents (§ 328*) — Anticipation—Corn-Huskek.</p> <p>The Walter patent, No. 810,098, for a corn-husker, claim 9, is void for anticipation.</p>

Suit in equity by the Leather Grille & Drapery Company against Louis B. Christopherson and Oscar M. Walton, individually and as copartners under the name of Christopherson & Walton Company. Decree for defendants, and complainant appeals.

Suit in equity by the Victor Talking Machine Company against the Duplex Phonograph Company. Decree for defendant, and complainant appeals. The following is the opinion of Knappen, District Judge, in the trial court. This suit is for the infringement of United States patent to Conn, No. 624,-301, May 2, 1889, which has been assigned to complainant The only claims sued upon are numbers 7 and 8, which are as follows: “7.

<p>1. Patents (§ 141*) — Reissues—Identity of Invention.</p> <p>A reissue patent cannot be issued for an invention other than the one actually described in the original patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dec. Dig. § 141.*]</p> <p>2. Patents (§ 328*) — Reissues — Identity of Invention — Chain Driving Gear.</p> <p>The Morse reissue patent, No. 12,844 (original No. 757,762), for a chain-driving gear for transmission of power, is void as not being for the same invention as the original patent, which was clearly limited to a two-part pintle.</p>

<p>In Admiralty. Suit by John H. McNally, master of the barge McNally, against the steamer Maryland.</p>

<p>In Equity. Suit by the Onondaga Indian Wigwam Company against the Ka-Noo-No Indian Manufacturing Company and John B. Welch. On motion for preliminary injunction and demurrer to bill by defendants.</p>

<p>Patents (§ 328*) — Infringement—Sheet Piling.</p> <p>The Friestedt patent, No. 707,837, for a sheet piling, construed narrowly, as it must be in view of the prior art, held, not infringed.</p>

<p>Patent (§ 328*) — Validity and Infringement — Poultry Car.</p> <p>The Mudd patént, No. 539,229, for an improvement in poultry cars, while of narrow scope, discloses invention and is valid; also, held infringed by the device of the Ryan & Candlin patent, No. 910,865.</p>

<p>In Equity. Suit by the Kestner Evaporator Company against the American Evaporator Company.</p>

<p>In Equity. Suit by the Detroit Heating & Righting Company against Clarence M. Kemp. On motion to retax costs.</p>

<p>In Equity. ‘ Suit by the Hardinge Conical Mill Company against the Abbe Engineering Company andl others. On motion by defendants to require complainant to take further proofs on its prima facie case, or that thq bill be dismissed.</p> <p>Suit in equity for infringement of H. W. Hardinge patent, No. 908,861. At the end of complainant’s prima facie case, and before taking defense proofs, defendants move “for an order requiring the complainant, as part of the prima facie case herein, to produce proof, if complainant can produce such proof, 'that the defendants’ mill constitutes an infringement of the Hardinge patent in suit, or, in lieu thereof, that the bill of complaint herein be dismissed, with costs to defendants, or for such .other relief to these defendants as may to the court seem meet.”</p>

In the matter of bankruptcy proceedings against Charles Kranich, On certificate of referee rejecting a claim against the bankrupt’s ¡trustee as garnishee of the Bringhurst Baking Company.

<p>1. INSURANCE (§ 72*) — INSURANCE COMPANIES — DISTRIBUTION OP ASSETS IN IN- " SOLVENCY — EPPECT OP FOREIGN LAWS IMPOUNDING FUNDS.</p> <p>The French and Spanish statutes relating to the creation of a fund by foreign life insurance companies for the protection of local policy holders construed with respect to the rights in such funds of members and death claimants of an insolvent American mutual association, and, in the absence of a construction by those countries, such funds held applicable in the first instance to the payment of claims for death losses, and, it appear- ■ i -ing that the funds were sufficient to pay the death claims under French and Spanish policies in full, the claimants held not entitled to share in the distribution of the general assets in this country, with creditors who could not resort to such funds.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>2. Corporations (§ 691*) — Foreign Corporations — Effect op Dissolution— Jurisdiction op Courts.</p> <p>The statutes of a state cannot give its courts jurisdiction of actions in personam against a foreign corporation after it has been dissolved.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2674; Dec. Dig. § 691.*]</p> <p>3. Insurance (§ 611*) — 'Breach op Contract by Insurer — Remedy op Insured.</p> <p>By the law of New York, damages are not recoverable against an insurance company for its refusal to continue its contracts of insurance, and such law governs in an action brought in that state unless a different law is incorporated into the contract.</p> <p>LEd. Note. — For other cases, see Insurance, Cent. Dig. § 1518; Dec. Dig. § 611.*]</p> <p>4. Receivers (§ 82*) — Administration op Estate — Authority to Enter Into Stipulation.</p> <p>Receivers appointed for an insolvent corporation in the first instance represent the company and all creditors, and a stipulation made by them with particular creditors binds all, in the absence of seasonable and proper objection.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 151; Dec. Dig. § 82.*]</p> <p>5. Insurance (§ 362*) — Nonpayment op Assessments — Excuses por Nonpayment.</p> <p>There is no obligation on the part of an insured in an assessment life company, after his policy has been declared lapsed by the company because of his refusal to pay an invalid assessment, to tender subsequent dues or assessments, and his failure to do so does not defeat the claims of the beneficiaries under the policy against the company or its assets in insolvency.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 925, 930; Dec. Dig. § 362.*]</p> <p>6. Insurance (§ 72*) — Insurance Companies — Distribution op Assets in Insolvency.</p> <p>In the distribution of the assets of an insolvent life insurance association which had issued policies in violation of the laws of the state where the contracts were made, and which were therefore void and were disaf-firmed by the holders, who sued to recover the premiums paid before the insolvency proceedings were instituted, such policy holders are to be included in the class of general creditors for the amount of such premiums.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>7. Insurance (§ 392*) — Nonpayment op Assessments — Waiver.</p> <p>Where an insured under an assessment policy paid an assessment after the time limited, its acceptance and retention by the company was a waiver of the delay which did not debar the beneficiary after the death of the insured from proving her claim against the estate of the company in insolvency.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1041; Dec. Dig. § 392.*</p> <p>Waiver by acceptance of premiums, see note to Life Ins. Clearing CO. v. Bullock, 33 G. O. A. 369.]</p> <p>8. Insurance (§ 248*) — Right of Insured to Rescind Contract — Fraudulent Representations.</p> <p>A policy holder in a life insurance company wlio was induced to insure by false and fraudulent representations imputable to tbe company has the right both by the English and American law to rescind the contract and recover the premiums paid.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 534; Dec. Dig. § 248.*]</p> <p>9. Insurance (§ 72*) — Insurance Companies — Distribution op Assets in Insolvency — Claims on Policies Transferred.</p> <p>In proceedings for winding up the affairs of an insolvent life insurance company, claims of policy holders in another company whose risks were transferred, to the insolvent under the law of Illinois considered, and held governed by the terms of their policies which had not been surrendered or exchanged.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>10. Insurance (§ 245*) — Assessment Companies — Effect of Nonpayment os Excessive Assessments.</p> <p>Where an insured in an assessment life company failed to pay an excessive assessment made, and nothing further appears, the inference is that he intended to abandon the contract, if a considerable time elapsed after the default and before his death and he did nothing by way of protest or tender; but the presumption is not conclusive and may be rebutted.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 523; Dec. Dig. § 245.*]</p> <p>11. Insurance (§ 72*) — Distribution of Assets of Insolvent Company — •Costs in Suits on Polici'es.</p> <p>In the distribution of the assets of an insolvent life insurance company the costs in actions brought on policies before tbe insolvency proceedings in which claims were established which are allowed are costs of the cause, and not properly a part of the claims on the policies.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>12. Insurance (§ 72*) — Distribution of Assets of Insolvent Company — Allowances.</p> <p>In a suit to wind up the affairs of an insolvent life insurance company, where, after the fund has been brought into court and nothing remains but to make distribution between the creditors, representatives of different classes of creditors are permitted to intervene, they are not entitled to allowances from the fund on account of their expenses incurred in their interventions nor from the money awarded to creditors of the same classes as the interveners, who did not join in the interventions.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec, Dig. § 72.*]</p> <p>13. Insurance (§ 72*) — Distribution of Assets of Insolvent Company — Allowances.</p> <p>In a suit by creditors to wind up the affairs of an insolvent life insurance'eompany, counsel for complainants are entitled to an allowance from the fund brought into court for distribution for services rendered, even after the appointment of receivers in the general conduct of the cause, which were beneficial to the creditors generally.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 98; Dec. Dig. § 72.*]</p> <p>14. Insurance (§ 21*) — “Privilege.”</p> <p>The word “privilege” in the French statute, relating to the creation of a fund by foreign life insurance companies for the protection of local policy •holders, means a preference to holders of insurance obligations over other debts in the distribution of the fund.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §. 23; Dec. Dig. § 21.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5583-5589; vol. 8, p. 7764.]</p>

<p>1. Courts ' (§ 311*) — Jurisdiction of Federal Courts — Diversity of Citizenship — Suit by Mortgagee.</p> <p>A mortgagee of all of the. property of a street railroad company as trustee for bondholders has a right of action in equity in its own right to enjoin a city from unlawfully depriving the company of its franchise, and to compel the company to comply with all lawful ordinances and regulations of the city essential to preserve the franchise, and, where it is a citizen of another state, may maintain a suit therefor in a federal court against both the city and company which are citizens of the state in which the suit is brought, its interest, while in some respects the same as that of the company, being separate and distinct therefrom, and such as it has the right to protect independently.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 331.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 O. C. A. 249, Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Injunction (§ 65*) — Right of Action Against City — Threatened Forfeiture of Franchise.</p> <p>A suit may be maintained to enjoin a city from forfeiting the franchise of a street railroad company which would result in irreparable injury to complainant, although the only action taken has been by the city council in citing the company to show canso why the forfeiture should not be made where the bill alleges, and the answer does not deny, the fixed intention of the city to declare the forfeiture, and the real issue made by the pleadings is as to its lawful right to do so.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 134; Dec. Dig. § 65.*]</p> <p>3. Strf-et Railroads (§ 61*) — Rights Acquired by Franchise — Power of City to Revoke.</p> <p>Under a franchise granted by a city to a street railroad company which provided that, on default by the company, its rights should cease and be forfeited and the city might take possession of the streets, and also of the tracks and cars of the company as security for the leaving of the streets in good condition, a forfeiture could not be declared ex parte by the city, but only judicially.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 50-54; Dec. Dig. § 61.*]</p> <p>4. Interpleader (§ I*) — Bill in the Nature of — Grounds of Jurisdiction —Suit in Nature of Interpleader.</p> <p>While a bill of interpleader, strictly so called, will not lie where complainant claims any interest in the subject-matter, yet equitable relief analogous to interpleader will often be granted in aid of complainant’s interest, when there are other intereonflicting interests.</p> <p>[Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*]</p> <p>5. Street Railroads (§ 57*) — Controversy Between Company and City-Rights of Mortgagee.</p> <p>Where a city was threatening to forfeit the franchise of a street railroad company for default of the latter which had been in controversy between them for years, a mortgagee of the company having a property right affected held entitled to maintain a suit in equity analogous to a bill of interpleader against the city and company to require them to submit their controversy to the determination of the court.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dee. Dig. § 57.*]</p> <p>6. Trial (§ 5*) — Time—Expedition by Court — Cases op Public Interest.</p> <p>In all cases where the court has taken some degree of control of public utilities or interferes with municipal regulation, the public interest requires that it take the burden of insisting that the controversy be ended with the utmost attainable speed. ,</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 5.*]</p> <p>7. Injunction (§ 148*) — Bond.</p> <p>Where the mortgagee of a street railway company seeks injunetional relief to prevent carrying out a proposed franchise forfeiture by the city for alleged defaults by the street railway company in franchise conditions, the mortgagee complainant should be required to give security that, if the street railway , is found to be in default, the defaulted conditions will be performed. As to money defaults, such security may be by ordinary bond; as to defaults in quality of service, performance of which would require new equipment and the like, security should be by the mortgagee’s agreement that it will either furnish the necessary funds or consent that receivers’ certificates be issued.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 148.*]</p>

<p>At Raw. Action by N. A. Vandevort against Thompson-Starrett Company.- On defendant’s motion for judgment non obstante vere-dicto.</p>

<p>1. Clerks op Courts (§ 48*) — Fees—Making and Certifying Record por Appellate Court — “Making a Record.”</p> <p>Where a clerk of a Circuit Court makes and certifies a record in response to a writ of error or appeal, he is not merely making a transcript or copy, but is “making a record,” within Rev. St. § 828 (U. S. Comp. St. 1901, p. 635), providing that a clerk of the Circuit Cburt shall be entitled for making a record to 15 cents a folio.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 76; Dec. Dig. § 48.*]</p> <p>2. Clerks.op Courts (§-60*) — Fees—Demand in Advance.</p> <p>The clerk of the Circuit Court is entitled to demand his fees in advance, being required to account therefor to the government whether collected or not, having once been earned.</p> <p>[Ed. Note; — For other cases, see Clerks of Courts, Cent. Dig. § 66 : Dec. Dig. § 60.*]</p> <p>3. Costs (§ "238*) — 'Costs on Appeal — jClerk's Fees — Mistake—Dependant’s Liability — Retaxation.</p> <p>Defendant, having been cast in an action at law, sued out a writ of error and paid the clerk for certifying the record $815.50, which was at the rate of 10 cents a folio. Judgment having been reversed, the clerk certified such" amount in a statement of costs to the defendant on which settlement was made between the parties-; plaintiffs paying the amount and defendants giving a receipt in full. It being subsequently determined thqt.the clerk.was entitled to 15 cents a folio-, they were retaxed • for the ^difference demanded. Held, that defendants, having been success- ■ ful on appeal, were not" bound to pay such difference on retaxation, even though the clerk might have exacted the same from them in the beginning, or might sue for them as for unpaid services.</p> <p>[Ed. Note. — For .other cases, see Costs, Dec. Dig. § 238.*]</p> <p>4. Costs' (§ 238*) — Fees—Mistake op Clerk — Settlement by Parties — Liability op Losing Party;</p> <p>Where,a clerk of the Circuit Court charged 10 instead of 15 cents per folio, for making and certifying a record on a writ of error for defendant, and after reversal of the judgment the parties settled on the basis of a statement of the. costs made by the clerk containing the same mistake, such settlement did not relieve plaintiff, who lost the suit and was cast for the costs, from the obligation to. respond to the clerk for the difference.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 238.*]</p> <p>5. Costs (§ 279*} — Fees—Collection.</p> <p>Where a -Circuit Court clerk erred in the rate of fees charged defendant for certifying a record on appeal to the Circuit Court of Appeals, and after reversal the parties settled on the basis of a statement of the costs given by the clerk containing the same mistake, the clerk under the Pennsylvania practice was nevertheless entitled to enforce collection of the difference as against plaintiff by a judgment and execution in the name of defendant as the successful party.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 279.*]</p> <p>6. Costs (§ 279*) — Officers’ Fees — Collection.</p> <p>Though the legal title to costs, including officers’ fees, is in the successful party, he holds the same as trustee, and the officers may therefore recover them in his name.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 279.*]</p> <p>7. Costs (5 279*) — Retaxation—Officers’ Fees Paid — Notation of Record.</p> <p>Though a taxation or retaxation of costs can only be made at the instance of a party, and must be confined to the compensation of the parties for the expenses of litigation, as distinguished from officers’ fees, it is unnecessary that unpaid fees of officers shall be formally taxed as costs in order to support an execution therefor; it being sufficient that they are noted of record or are entered on the writ.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 279.*]</p> <p>8. Costs (§ 279*) — Officers’ Fees — Collection.</p> <p>Fees due officers of the court are usually ascertained and entered of record by the clerk subject to review on appeal, and as so ascertained and taxed they become costs in favor of the successful party, according to the Pennsylvania practice, and attach to the judgment which is finally entered for the benefit of those to whom they belong.</p> <p>• [Ed. Note. — For other- cases, see Costs, Dec. Dig. § 279.*]</p> <p>9. Costs (§-238*) — Fees—Mistake.</p> <p>Where a Circuit Court clerk erroneously taxed 10 instead of 16 cents a folio for certifying a record in response to a writ of error at defendant’s instance, and on reversal certified a statement of the costs containing the same mistake on which a settlement was had, between the parties, the clerk on discovering the mistake properly called the parties before him and explained the difference and charged the same against plaintiff as the unsuccessful party on the writ of error.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 238.*]</p>

<p>.1. Shipping (§ 86*) — Injury ok Moored Vessel by Swell — Presumption of Fault.</p> <p>Where a moored vessel is injured by the swell from a moving vessel, there is not the same presumption of fault against the latter as in case of collision.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 86.*</p> <p>Liability of vessel for injuries caused by creation of swell, see note to The Asbury Park, 78 O. C. A. 3.]</p> <p>■_2. Shipping (§ 81*) — Injury of Vessel by Sweli>-Negligent Mooring.</p> <p>One of libelant’s scows, employed in the dredging of the Elizabeth river in Norfolk Harbor, which had been loaded and moored at one side of the river, where it was lashed alongside 'another preparatory to their being towed to the dumping grounds, was caused to override the other by the swell from passing steamers and was injured and sunk. Reid, on the evidence, that the injury was due to the improper mooring of the scows, and the steamers were not liable therefor, although moving at somewhat excessive speed, and near together on their regular outgoing trip; it not appearing that they were creating any greater swell than should have been anticipated in a busy harbor and provided against.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 345; Dec. Dig. §81.*]</p> <p>"3. Shipping (§ 81*) — Mooring in Harbor.</p> <p>Vessels mooring, or anchoring, especially in a busy harbor, should do so having regard to the fact that others have the right to navigate the waters; and this obligation should be measured by the increased risk arising from the circumstances of the particular case.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 81.*]</p>

In Admiralty. Suit for collision by The New York, Philadelphia & Norfolk Railroad Company, as owner of Barge No. 2, against the steam tug Edna V. Crew and schooner Baker Palmer, and cross-libel-by Edward H. Smeed, master of the Palmer, against the steam tug Portsmouth and Barge No. 2. Decree against the Edna V. Crew.

<p>Petition by Marttia Brion for a writ of habeas corpus' directed to P. I/. Prentis, United States Immigrant Inspector in charge'at Chicago.</p>

In the matter of bankruptcy proceedings of Taff & Conyers, composed of J. C. Taff and J. M. Conyers. Objections having been filed to the bankrupts’ application for a discharge, the same was denied by the referee, and the case was submitted to a special master, who reported in favor of a denial of the discharge, and the report was confirmed. The following is the report of the master: Statement of Facts.

Insolvency proceedings by Eben H. Gay and others against the Hudson River Electric Power Company and others, and by the Knickerbocker Trust Company, as trustee, cross-complainant, against Gay and others, in which the National Surety Company applied to intervene as a party defendant to the cross-bill to have its claim established and to be reimbursed the amount paid by it as surety on an appeal bond given by the power company to stay execution in a suit wherein Claude W.…

In the matter of bankruptcy proceedings of Charles Nisenson. On petition to review an order- directing the bankrupt to pay over to the trustee the sum of $1,200 and to deliver to him a diamond ring, a diamond locket, a gold watch, and diamond stud of the aggregate value of $500.

<p>In the matter of bankruptcy proceedings of Ernest J. Sitting. On certificate to review a referee’s order disproving the appointment of A. S. Malsan, as trustee, made by a majority in number and amount of the creditors of the bankrupt on an order to show cause.</p>

<p>In Equity. Suit by Emil Alfred Nelson against William A. Husted] George F. Barlow, and Edward E.. Barlow. On demurrer to amended bill.</p>

In Equity. Suit by the Lincoln Gas & Electric Light Company against the City of .Lincoln and others. Decree for complainant on one cause of action and for defendants on the other.

In Admiralty. Süitsjby the Merchants’ & Miners’ Transportation Company, owner of thé steamship- Powhatan, against the tug H. A. Baxter and barges Ira A. Allen and Elheurah, and cross-libel by the Robinson, Baxter &-Dissoway Towing & Transportation Company, by the General Chemical Company against the Baxter and the Powhatan, and by Louis Gildersleeve and Moses B. Brodhead against the Baxter and Powhatan.

<p>Street Railroads (§ 58*) — Insolvency and Receivers — Accounting Between Receivers.</p> <p>Application for instructions to special master, with reference to accounting between receivers for insolvent street railroad companies occupying the relation of lessor and lessee, in respect to the operation of the lines by receivers then representing both companies, referred for special report.</p> <p>[Ed. Note. — Eor other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>In Equity.' Suit by Joseph A- Coram against Andrew J. B?ivis and others. Petition to remand.</p>

<p>Removal or Causes (§ 48*) — Separable Controversy — J ürismction.</p> <p>Complainants sued to recover payment of a certain amount alleged to be due them from a trust fund in the hands of two of defendants as trustees; the bill alleging that defendant C. asserted a claim to a very large amount from the same fund. Certain of the defendants removed the cause, claiming that C.’s demand against the fund was invalid, and that there were other claimants not named in the bill who alleged other claims against the fund which might or might not be valid. Held, that, there being no diversity of citizenship as between complainants and certain of the defendants, there was no separable controversy justifying a removal to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 94; Dec. Dig. § 48.*</p> <p>Separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Meche v. Valleytown Mineral Co., 35 O. C. A. 155; Pollitz v. Wabash R. CO., 100 C. O. A. 4.]</p>

Philip Lavoie was indicted for maintaining- an immoral female alien for purposes of prostitution, pursuant to .the illegal importation, and at the conclusion of the government case demurred to the evidence.

At Law. Action by I-ver Rones against the Katalla Company. On motion by defendant to vacate the judgment and remand the cause to the state court.

<p>In the matter of Catharine A. Dolan, bankrupt. On certificate of referee.</p>

<p>In the matter of bankruptcy proceedings against W. Jones Yeager. On certificate to review a referee’s order of distribution.</p>

<p>In Equity. Suit by James W. Patterson, Jr., against John W. Patterson. On motion by John M. Murphy to vacate order appointing receivers, or to require receivers to pay his judgment against the firm of Patterson & Co.</p>

<p>. At Law.' Action by David Burbank Newcomb and others -against Caleb Burbank and others.</p>

In the matter of the application of Pasquale Saraceno for a writ of habeas corpus to obtain his discharge from custody under the deportation law.

In Equity. Suits by the Pennsylvania Steel Company and others against the New York City Railway Company and others, and by the Morton Trust Company and the Guaranty Trust Company of New York against the Metropolitan St. Ry. Co. and others. On application by receivers of the Metropolitan Street Railway Company.

In the matter of the Nippon Trading Company, bankrupt. On creditor’s application for'leave to correct an inadvertent mistake in filing a petition to review order of referee.

In the matter of Ernest St. George Dough and Robert W. Burrows, individually and as partners as G. E. Lough & Co., bankrupts. From an order disallowing the claims of Helen M. Lough and others as :reditors, they appeal.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>Suit, in equity by Albert W. Brown against Frank W. Fletcher and Allan M. Fletcher, executors of the last will and testament of George N. Fletcher, deceased, and Grace Fletcher King. Decree for defendants, and complainant appeals.</p> <p>This is a suit in equity and was commenced in the court below on October 26, 1908; jurisdiction having been acquired through diversity of citizenship. It appears by the bill that complainant is the sole legatee and devisee of his deceased wife Frances M. Brown, who was the daughter and sole heir at law of William White, late of the city of Boston. White died intestate April 28, 1873, and Mrs. Brown died testate December 3,1902. The appellees Frank W. Fletcher and Allan M. Fletcher are the executors of the last will and testament of George N. Fletcher, late of Detroit Mich., who died November 5, 1899, and whose will was probated in Wayne county of that state. These executors and Grace Fletcher King (the remaining appellee) were the children of George N. Fletcher, and are the residuary devisees ¿nd legatees of his estate.</p> <p>" The bill of complaint was dismissed October 2, 1909, upon two pleas in bar filed by defendants, and the present proceeding is pending here upon appeal and certain assignments of error. Under the pleas three points of defense were urged, to wit, res adjudicata, election, and abandonment. The pleas were sustained upon facts which appear in a stipulation. The controversy so far as it need be stated grew out of certain transactions had between William White and George N. Fletcher in pine lands located in Michigan, which were begun in 1856, and continued until White’s death in 1873. White furnished certain money to purchase lands, and Fletcher was placed in control. Another person named Campbell was also interested as appears by a contract in writing entered into between him and Fletcher on March 15, 1856. • Some of the lands purchased were held in common in the names of White, Fletcher, and Campbell, and some in the name of Fletcher alone. Campbell died July 16, 1857, and his interests were ultimately acquired by White except in certain pine lands. As to these latter Interests, it was averred in a bill filed in the court below by the daughter of White as hereinafter mentioned that they also were transferred to White. At any rate, no interest of Campbell seems to be involved in the present suit.</p> <p>It appears by the agreed statement of facts that upon White’s death R. H. Spaulding was appointed administrator of his estate, and on April 24, 1874, Spaulding filed in the Supreme Judicial Court of Suffolk county, Mass., a bill in equity against George N. Fletcher, of Detroit, James Campbell and Eliza White, widow of William White, averring, in substance, that the intestate had been engaged in extensive business transactions with George N. Fletcher in the purchase and sale of lands and in lumbering operations in Michigan; that Fletcher refused to disclose the true nature of the joint transactions; that Campbell claimed to have some interest in the transactions and investments, and was in possession of the books of account, deeds, vouchers, etc.; and that he refused to allow examination to be made of the books, etc. Complainant prayed for discovery and an accounting, and that defendants be decreed severally and jointly to pay any balance found due.</p> <p>Fletcher was served with process in the cause and appeared and filed an answer. Prior to his death the parties, including Frances M. Brown, who had been made a party, entered into an agreement to refer the matter in issue to arbitration under a rule of court. The matter was thereupon referred to United States Circuit Judge, Putnam, who, according to the terms of the submission, made a partial report. He found that Fletcher should account. The matter was then sent back to Judge Phtnam, and during the pendency of the accounting Fletcher died. It was provided in the agreement to arbitrate that the suit should not abate on the death of any party, but that it should proceed against his executors or administrators. Fletcher’s executors, however, refused to enter the jurisdiction of the Massachusetts court or to become parties to the suit. Fletcher had left a small estate in Massachusetts, and an administrator with the will annexed of his estate was appointed in that state and was made a party to the suit. Notice of an order to appear and defend was served in the state of Michigan upon the executors and residuary legatees, defendants in the present suit. They declined to heed the notice and the case proceeded before Judge Putnam as arbitrator. He made an award in 1903, in favor of complainant in the present suit (who had succeeded as before stated to the interest of White and White’s daughter) for $394,372.87 and costs against Fletcher’s administrator with the will annexed, and in terms also against the present appellees. The award was affirmed by final decree of the Massachusetts court, entered April 14, 1903. Fletcher’s estate in Massachusetts was not sufficient to satisfy any part of the decree. As to the parties other than Fletcher, who were made defendants as before stated in that suit, the bill was dismissed.</p> <p>It appears both by the present bill and the agreed statement that the appellant presented to the commissioners on claims in the matter of the estate of Fletcher in Wayne county, Mich., a claim based upon the decree of the Massachusetts court, which was disallowed. An appeal was taken by Brown to the circuit court of Wayne county, where the disallowance of the claim by the commissioners was affirmed. The judgment of the Circuit Court was affirmed by the Supreme Court of Michigan, 146 Mich. 401, 109 N. W. 686, and that judgment was affirmed by the Supreme Court of the United States, 210 U« S. 82, 28 Sup. Ct. 702, 52 L. M. 966. The grounds of the decisions will be , stated later.</p> <p>It is alleged in the bill in the present case that Fletcher continued to manage and dispose of pine lands after White’s death, and never denied that he was' accountable to White’s estate for the moneys and property in his hands; that he never rendered an itemized account of the moneys and property; that the present appellees are in possession of these moneys and properties and hold them in trust. Discovery and accounting are' prayed.</p> <p>Prior to the commencement of the proceeding before the commissioners on claims in the' probate court of Wayne county on February 4, 1901, Frances M. Brown as administratrix de bonis non of the estate and sole heir at law of William White, deceased, filed a bill against the present defendants in the court below, in which she set out substantially the same facts, though not so much in detail, as those stated in the present case, so far as they relate to the merits of the action. That suit and the proceedings therein and the action of the court below are made the subject of the second plea, and all are sufficiently stated in the opinion.</p>

Appeals from the District Court of the United States for the Southern District of New York. In Admiralty. On petition of the New England Transportation Company, as owner of the steam tug Frederick E. Ives, for limitation of liability. Decree (169 Fed. 902) granting the petition and dismissing the claims for damages, and claimants appeal.

<p>In Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action by the City National Bank of Tiffin, Ohio, against William G. Pennypacker, Jr., and others. Judgment for defendants, and plaintiff brings error.</p> <p>Writ of error to a judgment entered on the verdict of a jury in favor of the defendant sued upon his own promissory notes.</p>

Appeals from the District Court of the United States for the Southern District of New York. Proceedings in admiralty by .the Southern Transportation Company and by John C. Redman against the proceeds of the schooner Charles-C. Dister; Samuel W. Hall, claimant. Decrees (174 Fed. 288) for libelants, and claimant appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>In Equity. Suit by the Kellogg Switchboard & Supply Company against the Dean Electric Company, William W. Dean, Samuel B. Kawson, Theodore M. Brush, and Arthur E. Barker. Decree for defendants, and complainant appeals.</p> <p>This suit was brought in the court below for alleged infringement of certain letters patent The appellant was complainant below; and the appellees, the defendants below, comprise the Dean Electric Company and certain of its oilicers. The patent in suit was applied for by William W. Dean as inventor, who subsequently assigned his invention to appellant; and thereafter letters patent No. 722,212 were issued in favor of William W. Dean, assignor of appellant, and were delivered to it on the day of their issue, March 10, 1903. The invention is called “an Improvement in subscriber’s telephone circuits.” The inventor who assigned his invention to appellant appears to be ,.the vice president and chief engineer of the appellee company. In addition to the usual averments and denials of pleadings in patent cases, the answer contains denials of both patentability and infringement of the patent in suit, and also contains allegations that more than two years prior to the date of Dean’s application for the patent in suit the same device, or substantial parts thereof, were patented, described, and shown in various letters patent therein mentioned, and, furthermore,'that the invention of Dean as claimed under letters patent No. 722,212 “was abandoned and dedicated to the public by reason of its description and publication by him or a substantial and material part or parts thereof” in certain of his prior letters patent therein referred to, or that the patent in suit “constitutes mere double patenting of the Improvements set forth in said letters patent” so referred to.</p> <p>The alleged infringing device is made according to an invention claimed under letters patent issued to Ray H. Manson, assignor of the appellee company, No. 818,897, dated April 24, 1906, and purporting to be “improvements in telephone systems.” The case was tried below upon a vast amount of evidence offered by both sides. The court found that there was no infringement and dismissed the bill, with costs. The case is pending here on appeal.</p>

<p>In Admiralty. Suit by Cornelius A. Davis and others against the Smokeless Fuel Company. On motion to confirm commissioners’ report.</p>

<p>1. Courts (§ 844*) — Practice in Federal Courts — Conformity Statute.</p> <p>The conformity requirement of Rev. St. § 914 (U. S. Comp. St. 1901, p. 684), does not necessitate altering a rule of a federal Circuit Court as to the return day for process, which when adopted was in substantial conformity with the state practice so as to conform to a change in such practice made by subsequent legislation, and, where such difference exists, the clerk of the Circuit Court is justified in following its own rules.</p> <p>l Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. § 344.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v, Hall, 27 C. C. A. 392.]</p> <p>2. Clerks of Courts (§ 75*) — Action on Bond — Sufficiency of Evidence.</p> <p>In an action on the bond of a clerk of a court to recover damages because of his refusal to enter a judgment and issue execution thereon, the burden rests on plaintiff to prove damage by showing that he could have collected on such execution if issued.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 139; Dec. Dig. § 75.*]</p>

<p>-In Equity. Suit by James M. W. Hall and others against Alfred K. Ames and others. Application for interlocutory' injunction.</p>

<p>BANKRUPTCY (§ 393*) — EXEMPTION FROM ARREST — “ÁRREST. ”</p> <p>The term “arrest,” as used in Bankr. Act July 1, 1898, c. 541, § 9, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3425), providing that a bankrupt shall be exempt from arrest on civil process, applies to the continued detention of a person in custody, and not merely to the original taking of a person into custody; so that an adjudication in bankruptcy against a debtor after his arrest on civil process entitles him to be discharged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 619-621; Dec. Dig. § 393.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 501-503.]</p>

<p>1. Commerce (§ 62*) — Interstate Commerce — Regulation—Constitutionality or “White Suave Traffic Act.”</p> <p>Act June 25,1910, c. 395, 36 Stat 825, known as the “White Slave Traffic Act,” making it a criminal offense to knowingly transport or to procure the transportation of women from one state into another for immoral purposes, is not unconstitutional as an attempted infringement of the police powers of the states, and is within the powers conferred on Congress by the commerce clause of the Constitution.</p> <p>[Ed. Note. — For other eases, see Commerce, Dec. Dig. § 62.*]</p> <p>2. Indictment and Information (§ 125*) — Duplicity—Interstate Transportation of Women for Immoral Purposes.</p> <p>A count in an indictment under Act June 25, 1910, c. 395, 36 Stat. 825, for transporting women from one state into another for immoral purposes, is not bad for duplicity, because it charges the transportation of’ two women at the same time for the same purposes.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334^-400; Dec. Dig. § 125.*]</p> <p>3. Commerce (§ 16*) — Definition.</p> <p>Commerce consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1287-1289; vol. 8, pp. 7606, 7607.]</p>

<p>In the matter of William A. Oxley and Thomas R. White, individually and copartners as Oxley & White, alleged bankrupts. On application of certain creditors for injunction.</p>

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

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

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

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