Volume 183 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Suit in equity by A. J. Preston against the Sturgis Milling Company. Decree for defendant, and complainant appeals.</p>

<p>Courts (§ 264*) — Jurisdiction of Federal Courts — Ancillary Suit.</p> <p>A suit in equity in a federal court to enforce payment of a tax in order to obtain satisfaction, to that extent of a judgment rendered by such court, although original in form, is ancillary to the original action and within the jurisdiction of the court irrespective of the amount in controversy.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § SOI; Dec. Dig. § 264.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Suit in equity by A. J. Preston against the Chicago, St. Rouis & New Orleans Railroad Company. Decree (175 Fed. 487) for defendant, and complainant appeals.</p>

<p>1. Trade-Marks and Trade-Names (§ 86*) — Suit for Infringement — Laches.</p> <p>Delay in bringing suit for infringement of a trade-marli. which would bar the right to recover damages for prior infringement, will not necessarily constitute such laches as to preclude relief in equity against further infringement; the matter being within the discretion of the court, to be exercised in view of the circumstances of the particular case.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. § 86.*</p> <p>Laches as a defense in suits for infringement, see notes to Taylor v. Sawyer, Spindle Co., 22 C. O. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>2. Trade-Marks and Trade-Names (§ 86*) — Infringement—Right to Injunction-Laches.</p> <p>Complainant and its predecessors in Baltimore and defendant and its predecessors in New York City, each for more than 36 years, produced and sold a rye whisky under the name of “Baltimore Club.” Very little of complainant’s whisky was sold in New York until a short time before the suit, and the reputation and market for the brand there was created by defendant. In 1882 complainant’s predecessor learned of the use of the name by defendant’s predecessor, and called on him in reference thereto; but such use was continued for more than 20 years thereafter without objection from complainant. The labels in general use by the respective parties were quite distinctive and dissimilar; but a short time before the bringing of suit “Baltimore Club”' whisky appeared in the New York market bearing complainant’s name as maker and with labels on the bottles closely simulating those of defendant. Hold, that complainant’s laches, conceding priority of its use of the name, was such as under the circumstances disentitled it to an injunction restraining defendant from using it in the territory where it had established its business and the reputation of its goods.during the intervening years.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. § 86.*J</p>

Petition to Review an Order of the District Court of the United States for the Southern District of New York. In the matter of Bouis Frazin and Abraham M. Oppenheim, individually and as partners, as Frazin & Oppenheim, bankrupts. On petition of the United Cigar Stores Company to revise an order (174 Fed. 713) granting an injunction.

Action by the United States and others against Ah Eook and others on a bail bond. From an order declaring the bond void ab initio and releasing the sureties, the United States brings error and appeals.

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>Action by the Farmers’ & Merchants’ Bank of Vandalia, 111., against Harrison W. Maines. Judgment for defendant, and plaintiff brings error.</p>

Action by the St. Louis Mining &„Milling Company of Montana against the Montana Mining Company, Limited. Judgment for plaintiff, and defendant brings error. This controversy has been before the courts in one form or another for a. number of years. As the litigation has proceeded, the facts have been stated by the courts and will be found in the reported cases to which reference will be made.

.Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi, in Bankruptcy. In the matter of bankruptcy proceedings against E. Brown Shaffer. From an order denying bankrupt’s discharge (16'9 Fed. 724), on objections filed by the Koblegard Company, the bankrupt appeals.

Action by the Glady Pork Dumber Company against John W. McClure, W. H. Tyson, and Charles H. Irvin. Judgment for plaintiff, and defendants bring error. Reversed.

<p>Appeal from the Circuit Court of the United States for the Western District of Oklahoma.</p> <p>Suit in equity by the Atchison, Topeka & Santa Fe Railway Company against the City of Shawnee and others. Decree for defendants, and complainant appeals. Reversed.</p>

the Northern District of California. Habeas corpus on petition of Haw Moy to obtain his release from the custody of Hart H. North, Commissioner of Immigration at the Port of San Francisco. From a judgment denying the application and dismissing the petition, j^etitioner appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>Habeas corpus on petition of Wong Dune to obtain the discharge of Hoo Choy, a female Chinese person from the custody of Hart H. North, Commissioner of Immigration at the port of San Francisco, under a deportation warrant. From an order dismissing the writ, Hoo Choy appeals.</p>

Action by the George B. Douglas Trading Company against George R. Bidwell. Judgment for plaintiff, and defendant brings error. On writ of error to review a judgment entered upon a verdict directed by the court in favor of the plaintiff for the sum of $127.86, being a sum ecpml to the amount of interest due upon $1,266.36 which was unlawfully exacted by the defendant, acting as collector of customs, as duties upon sugar imported from Porto Rico by the plaintiff.

Appeals from the Circuit Court of the United States for -the Western District of New York. Suit in equity by the American Can Company and Paul Voorhees against the Erie Preserving Company.

Suit in equity by William Wrigley, Jr., & Co. against the Grove Company, Samuel Grove, J r., Charles E. Blauvelt,. and Simon S. Schiener. Decree for complainant, and defendants appeal. The decree of the Circuit Court granted an injunction and an accounting. The decree restrains the use of the word “Spearmint,” holding it to be a valid trade-mark for chewing gum.

<p>1. Criminal Law (§ 901*) — Waiver of Error — Ruling on Motion for Directed Verdict.</p> <p>An exception to a refusal to direct a verdict at the close of plaintiff’s case is waived, if defendant thereafter proceeds to put in proof; and the strength of plaintiff’s case must then be tested upon a new motion to direct a verdict after both sides have rested on an examination of the entire record made; and such rule applies in criminal as well as in civil cases.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2124; Dec. Dig. § 901.*]</p> <p>2. Feiwury (§ HO*) — -EvriiE,\ci:—QrEK'rrox tor Jury.</p> <p>Evidence considered in a prosecution for perjury, find held sufficient to warrant the submission of the case to the jury.</p> <p>I Ed. Note. — For other cases, see I’erjury, Cent. Dig. § 133; Dec. Dig. § .’>(>.*]</p> <p>3. Perjury (§ 37*) — Instructions—Sutbtcxenoy.</p> <p>instructions in a prosecution for perjury considered, and held without error.</p> <p>fEd. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.*]</p>

<p>1. Admiralty (§ 118*) — Apptcal—Review—Questions or Fact.</p> <p>The rule is well settled in courts ol admiralty that the decision of the trial court, which heard the witnesses, on questions of fact, will not be disturbed by an appellate court, unless clearly against the weight of evidence.</p> <p>fEd. Note, — For other eases, see Admiraltv, Cent. Dig. §§ 770-772; Dec. Dig. § 118.*]</p> <p>2. Collision (§ 94*) — Steam Vessels Meeting — Evidence as to Fault.</p> <p>When the steamer Simla, bound down the St. Clair river, was being passed on her starboard side by the overtaking steamer Gilchrist in accordance with a signal agreement, at a distance of 100 feet or more and at a moderate speed, the Simla sheered and struck the Gilchrist, and then took a violent sheer to port, coming into collision with the steamer Smith, which was passing up on a course 000 or 800 feet distant. Held, on the evidence that the Gilchrist was passing in a proper manner and in a proper place, and that the fault for the collision was wholly that of the Simla, which, although navigating a crowded river, had only the mate on deck, who failed to keep her on her course and allowed her to approach until she came within reach of the suction of the Gilchrist.</p> <p>[Ed. Note. — For other cases, see Collision. Cent. Dig. §§ 197-199; Dee. Dig. § 94.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Silvio Hein and Marie Cahill against Charles K. Harris. From an order granting a preliminary injunction (175 Fed. 875), defendant appeals.</p>

Suit in admiralty by the River & Harbor Improvement Company as owner of dump scow,No. 21 against the Philadelphia & Reading Railway Company, owner of the tug Penllyn. Decree for libelant (180 Fed. 951), and respondent appeals.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by John Hugel against the Fried & Reineman Packing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Master and Servant (§ 13*) — Eight-Hour Law — Construction—“Laborers” or “Mechanics.”</p> <p>Defendant was a contractor engaged in constructing for the United States jetties near Cape May harbor, extending from the shore into the open sea. The jetties were built up with stone, thrown overboard from barges, which were towed across Delaware Bay, anchored, and as needed towed to the jetties and warped along while being discharged. As crews of such barges defendant employed engineers, boatmen, and bookmen, selected for their seafaring experience, who operated the barges and also discharged their cargoes. The work done and the time required to do it depended on tide, wind, and weather, which ordinarily required variable hours of service on the part of the men. Held, that such men were seamen, with the rights of such, including the right to a lien on the vessel for their wages, and could not be classed as laborers or mechanics, within the meaning of Act Aug. 1, 1892, c. 352, § 1, 27 Stat. 340 (U. S. Comp. St. 1901, p. 2521), which makes it unlawful for any contractor for government work to require or permit any laborer or mechanic employed by him thereon to work more than eight hours in any calendar day, except in case of extraordinary emergency.</p> <p>FEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3952-3968; vol. 8, p. 7700; vol. 5, pp. 4457-4461.]</p>

<p>In Error to the Circuit Court of the United States for the Middle District of Pennsylvania.</p> <p>Action by Oscar S. Thornton against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the' Eastern District of New York. . Suit in admiralty by the New York & New Jersey Transportation Company against the tug Reliable, the F. A. Verdón Company, claimant, and the tug W. E. Gladwish, Elmer A. Keeler, claimant. Decree for libelant against both tugs (167 Fed. 571), and claimants appeal. Reversed as to the Reliable, and affirmed as to the W. E. Gladwish.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the U. E. Waterman Company against the Modern Pen Company. Defendant appeals from an order granting a preliminary injunction.</p> <p>The injunctive provisions of the order are printed in the footrnote.i</p> <p>The complainant, a New York corporation, has been engaged for many years in the manufacture and sale of fountain pens under the name of the L. E. Watérman Company and hag built up a large business therein. It has also registered the following trade-marks as applied to such pens: “Ideal”; “AVaterman's Ideal Fountain Pen, N. Y.”; and “Waterman’s.”</p> <p>The defendant, a West Arirginia corporation, is selling agent of a firm called A. A. AVaterman & Co. which manufactures fountain pens and marks them with such name.</p> <p>Arthur A. Waterman had been employed by tlie complainant; but in 1838 he formed a partnership for the manufacture of fountain pens under the name of the A. A. AVaterman Pen Company. The present complainant brought suit ¡jgainst said firm for the infringement of trade-mark and unfair competition</p> <p>5 "1. Directly or indireci.lv making or causing to be made, selling or causing to be sold, or offering £or sale, or advertising any fountain pen of other manufacture than that of the plaintiff under the name of Waterman or Waterman’s or Waterman Pens, or Waterman’s Pens or Waterman Fountain Pens or Waterman’s Fountain Pens or Ideal Pens, or any mark or name in imitation thereof or near resemblance thereto as might be calculated to deceive or be likely t.o cause confusion or mistake in the mind of t.he public or deceive purchasers, or which would indicate that, the fountain pens sold, represented or advertised are fountain pens of plaintiff’s manufacture.</p> <p>“2. Infringing the plaintiff’s trade-mark ‘Waterman’s Ideal Fountain Pen. N. Y.,’ or infringing the plaintiff’s trade-mark ‘Ideal’ and from manufacturing or selling fountain pens (other than fountain pens of plaintiff’s manufacture) having the said trade-marks or either of them, or any simulation or colorable imitation thereof, on such fountain pens, whether on the holder or on the gold pen, or on labels, boxes, signs, letter-heads, bill-heads, circulars, or advertisements accompanying or used in connection with the making or selling of such fountain pens, or in any manner whatsoever.</p> <p>“3. Using in connection with the manufacture or sale of fountain pens (other than fountain pens of plaintiff’s manufacture) the name ‘A. A. Waterman,’ or ‘A. A. Waterman & Co.’ or ‘A. A. Waterman & Company’ or ‘Arthur A. Waterman & Company,’ or any corporate, Arm or individual name containing the words Waterman, Waterman’s or Water-mans, or anv mark or name containing the word Waterman in any form whether the same be or be not coupled with other names or initials, or with the initials ‘A. A..’ or with the initial ‘A.’ or whether the same be or he not used in collocation with the word ’Pen’ or Fountain Pen, or other descriptive words.” in the Supreme Court of the state of New York, and a decree was rendered in September, 18!)8, enjoining the defendant from using a corporate name containing the word “Waterman.” but providing as follows:</p> <p>“But the defendants are not prohibited from indicating that fountain pens made by them are made or prepared or sold for or by Arthur A. Waterman & ■Co. or A. A. Waterman & Co.”</p> <p>Subsequent to this decision the name A. A. Waterman & Go. was used by successive partnerships of which said Waterman was a member. The business was not successful, and in íí)0ñ a reorganization took place, and an agreement was entered into whereby in effect said Waterman assigned to Isaac JB. and AYilliam I.-. Chapman, who had been previously interested with him in the business, the right to use in connection therewith the name “A. A. AVaterman & Co.”</p> <p>The defendant was shown to have sold a limited number of fountain pens marked “Royal Ideal Pen.” The evidence also tended to show some use of the word “Waterman” in connection with the sale of the goods of the firm of A. A. Waterman & Co. without the distinguishing initials.</p>

Suit in ’equity by the Waterbury Buckle Company against Walter F. Aston. Decree (172 Fed. 672) for complainant, and defendant appeals. The appeal is from a decree sustaining complainant’s letters patent No: 847,811 granted to Morris Peller, March 19, 1907, for an improvement in suspender buckles. The application was filed January 8, 1902. All of the six claims were upheld,1-but the third which was not in issue.

<p>1. Patents (§ 185*) — Construction—Scope.</p> <p>A patentee who has sufficiently described and distinctly claimed his invention is entitled to every use to which his device can be applied, whether he perceived or was aware of all of such uses at the time he secured his patent or not.</p> <p>LEd. Note. — Por other cases, see Patents, Cent Dig. § 263; Dec. Dig. § 185.*] <.</p> <p>2. Patents (§ 240'*) — Infringement—Patents for Combination.</p> <p>A device does not infringe a patent for a combination if any essential element of the combination is omitted without substituting therefor its clear mechanical equivalent.</p> <p>[‘Eel. Note. — For other eases, see Patents, Cent. Dig. § 387; Dec. Dig. § 240.*]</p> <p>3. Patents (§ 328*) — Infringement—'Vehicle Spring.</p> <p>The Meredith patent, No. 878,081, for a vehicle spring, construed, and held not infringed.</p>

<p>Patents (§ 328*') — Anticipation—Roof foe Mausoleums.</p> <p>The Tayntor patent, No. 722,392, for a roof for mausoleums, vaults, and other similar structures, claim 2, which covers merely a roof having a raised joint in the center, where the side-stones meet, with a central cap having lips to fit over the ribs on the edges of the side-stones, is void for anticipation.</p>

<p>Courts (§ 348*) — Rules or 'Evidence in Federal Courts.</p> <p>Under tlxe rule of Blease v. Garlington, 92 U. S. 1, 23 L. Ed. 521, tlie parties to a suit in equity in a federal court are entitled to great latitude in the examination of witnesses, to the end that the court of last resort may have a complete record on which it may finally dispose of the canse, and objections for irrelevancy and immateriality are not to be considered.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 348.*]</p>

In Equity. Suit by Howard D. Mannington, Fred H. Schoedinger, and Ralph E. Westfall, against the Hocking Valley Railway Company and the Chesapeake & Ohio Railway Company. On motion by defendants to dissolve temporary restraining order and by complainants for preliminary injunction. Order modified, and injunction granted in modified form. This case is hero on removal.

In the matter of the Charles Town Tight & Power Company, alleged bankrupt. On petition in involuntary bankruptcy. Order of adjudication.

<p>1. Indemnity (§ 14*) — Conclusiveness as Against Indemnitor op Former Adjudication Against Indemnitee.</p> <p>Where a person is responsible over to another for whatever may be justly recovered in a suit against such other and he is duly notified of the pendency of the suit, requested to defend, and given an opportunity to do so, the judgment therein, in the absence of fraud or collusion, will be conclusive in a subsequent suit against him for indemnity.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 41; Dec. Dig. 14.*]</p> <p>2. Pilots (§ 16*) — Harbor Pilots — Degree op Care and Skill Required.</p> <p>A harbor pilot is selected largely for his knowledge of local conditions affecting the safety of the vessel. He must he familiar with all such conditions, and must not only remember and avoid all the dangers of a physical nature, but must also know and observe all the lawful regulations of the local authorities affecting the conduct of the ship. If, through his negligence the ship suffer loss, either directly or because it commits injury to others, he is liable for indemnity.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. § 19; Dec. Dig. §16.*]</p> <p>3. Towage (§ 11*) — Negligent Anchorage op Tow — Recovery op Damages Against Tow por Collision — Liability op Tug por Indemnity.</p> <p>A French bark having taken on her cargo-at Tacoma, with which port her officers were unacquainted, employed respondents who were engaged in the towage and pilotage business to tow her to an anchorage iu the harbor. A fog settled down after they started and respondents’ tug anchored the bark in a part of the harbor where such anchorage was prohibited by the local regulations without a permit from the harbor master which was not obtained. The officers of the bark had no knowledge of such regulation, and she remained there until the evening of the following day when a steamer leaving the port, the weather being then foggy, came into collision with her and was injured. The owners of the steamer brought suit and recovered half damages, the bark being held in fault and liable for anchoring in the. fairway in violation of the regulations. Respondents were notified of the suit and requested to defend, but did not, and the owners of the bark paid the damages adjudged against her, and brought suit against respondents, for indemnity. Held, that it was the duty of respondents to anchor the bark in a lawful place, and their negligence in failing to do so having been tbe ground of the recovery against her they were liable over for the amount of the damages paid by her, the disbursements and proctors fees paid,- and also for demurrage for the time she was necessarily delayed by the suit, to be computed at the rate stipulated for in the charter under which she was operating in the absence of other evidence.</p> <p>LEd. Note — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11*]</p>

In the matter of John Q. Allen, bankrupt. On review of order of referee sustaining the petition of the Heim Brewery Company to reclaim property. The Heim Brewery Company filed its intervention for a number of casks and cases containing empty beer bottles in the possession of the trustee of the estate of the bankrupt, claiming to be the owner thereof and entitled to the immediate possession.

<p>At Law. Action by the City Realty Company against the S. R. H. Robinson Contracting Company. On demurrer to amendment to answer.</p>

<p>In the matter of Cotton & Preston, bankrupts. On exceptions byRagan, Malone & Co. to report of referee as special master recommending discharge.</p> <p>The following is the report of Max Isaac, Special Master:</p> <p>Ragan, Malone & Co. filed their appearance in opposition to the discharge applied for in this case by Cotton & Preston as a firm, and E. S. Cotton and F. F. Preston as individuals, and presented their objections thereto, as follows, to wit:</p> <p>“(1) Because said bankrupts obtained property on credit from them upon a materially false statement in writing, made to them for the purpose of obtaining such property on credit; such statement being made to them August 5, 1907, and being, as therein shown, made for the purpose of obtaining credit and to be binding for such purchases ‘now or "hereafter made, unless changed by written authority from the undersigned.’ A copy of such statement is hereto attached and made a part thereof, marked ‘Exhibit A.’ On such statements these debtors extended credit and 'sold said bankrupts goods from time to time, and at the time the petition in bankruptcy was filed said bankrupts were, and are, indebtecl to these debtors on account of such purchases as show» by statement of account hereto attached and made a part hereof, marked ‘Exhibit B,’ to which reference is prayed as often as may be. necessary. Said statement was materially false, in that said bankrupts begun business with a capital only of $450. In said statement they say they begun business with a capital of $3,000.</p> <p>“(2) On August 5, 1907, notes and accounts belonging to said bankrupts were about $300 or $400 in amount. In said statement they claim to be $1,000 in amount.</p> <p>“(3) On August 5, 1907, E. S. Cotton, one of said bankrupts, owed his wife some $3,000. In said statement the claim is made that said bankrupts owed no money whatever to wives or relatives.”</p> <p>“(4) Said statement is in other particulars incorrect.”</p> <p>To these objections the bankrupts filed their general and special demurrers, in which they contend that no legal or statutory allegations are set forth In said specifications that would bar the discharge applied for; that said specifications do not allege that said false statement in writing, upon which the property was alleged to have been procured, was knowingly and falsely made by said bankrupts at the time it was so made; that said specifications do not allege that said statement was made for the purpose of procuring the specific-property or credit for which debtors now contend that said bankrupts are indebted to them; that said specifications show that the copy written statement attached thereto as an exhibit and referred to therein and the copy account attached thereto and referred to therein, with the alleged statement, was executed on the 5th day of August, 1907, that the first line of credit extended or goods sold to said bankrupts was from August G, 1907, to August 30, 1907, and that said bankrupts paid for all of said goods, property, or line of credit, and that the alleged written statement could not be the basis of the credit for the particular goods for which bankrupts are now indebted to objectors as shown by said account attached; that neither said bankrupts, nor either of them, ever subsequent to August 5, 1907, made to objectors any other written statement, and that no new arrangements or no new statement was made upon which a future line of credit or future bill of goods was so procured from objectors: that said written statement recites no consideration or new promises o-f statements which could be the basis of credit for subsequent bills of goods, after the shipment and payment therefor of the original bill of goods shipped out to said bankrupts, made after the execution of said written statement: that the words “now or hereafter made, unless changed by written authority from the undersigned,” incorporated in said written statement, are not binding upon bankrupts, for the reason that there was no consideration, nor new statement, nor new promise flowing to these bankrupts, or injury occurring to these objectors, moving the execution of such words or sentence contained therein, and that, after these bankrupts had paid for the original bill of goods shipped out immediately aftdr said written statement was executed, said language seeking to bind these bankrupts for future purchases from objectors became nudum pactum and cannot be enforced ; that said specifications did not allege that the goods or property for which objectors now claim these bankrupts are indebted to objectors were sold, or tiie credit extended, on the faiili of said written statement; that is, that the said written statement was made prior to and for the purpose of procuring the identical credit for which objectors now claim these bankrupts are indebted to them. There are numerous other grounds of special demurrer, directed to the insufficiency of the objections referred to, which grounds of demurrer are mere amplifications of those already stilted and need not be repeated here.</p> <p>By agreement of counsel, the special master reserved his ruling on the demurrers, for the reason that his decision thereon would not finally end the mailer in the event the District Judge differed with him, should he sustain the demurrer, and it was thought advisable to fake the testimony and pass on the entire case. If the demurrer ought to be sustained, the special master would make his ruling on the demurrer alone. If he concluded to overrule the demurrer, he would then pass on the merits of the case.</p> <p>Statement of Facts.</p> <p>Evidence was heard in support of and in opposition to the said objections, a transcript of which is hereto attached, and respectfully referred to, and made a par It of tltis report. From this evidence the special master finds as follows: Ragan, Malone & Co. are a firm of wholesale merchants doing business in Atlanta. Ga. Their salesman hart called on Cotton & Preston, a firm then engaged in the mercantile business at Broxton, in Coffee county. Ga. He had endeavored to obtain their orders for goods; but, ■ failing in this, his house made direct efforts to sell goods to Cotton & Preston, and on their own motion invited Cotton & Preston to come to Atlanta aiut call on them and purchase goods. To further carry out this effort to sell them goods, Hagan, Malone & Co. sent a check to Cotton & Preston to cover traveling expenses of one member of the firm to Atlanta and return, and F. F. Preston, a member of the firm of Cotton & 'Preston, proceeded to Atlanta to call on Hagan, Malone & Co. to look over their stock of goods with a. view of making purchases.</p> <p>Having selected goods aggregating $821.68. Preston was invited into the office of this concern, and Mr. Eagan, the senior member of the firm and the credit man, asked Preston for a financia) statement of Cotton & Preston. Preston, without having his hooks before him. merely from his recollection, then and there proceeded to furnish Eagan the figures which he (Eagan) filled in the blanks in the stereotyped printed form used by the firm for the purpose, which statement contains the following language: “Statement of Cotton & Preston, made to Ragan, Malone & Co., for (he purpose of obtaining credit, and this statement shall he binding for each purcha.se now or hereafter made, unless changed by written authority from the undersigned.” And again: “The above property in my [or our] name, and titles perfect, paid for, and no mortgages or liens in any shape upon it. In consideration of credit extended or to be extended on the faith of my [or our] solvency as shown by this statement, I [or we] hereby waive arid renounce for bimself [or ourselves] and family any and all homestead exemption rights under the laws of the United States or of any state as against the payment of any indebtedness now owing or hereafter existing in favor of said Ragan, Malone & Co., and this waiver shall apply for all property now owned or hereafter acquired by the undersigned.”</p> <p>The evidence touching the circumstances under which the statement aforesaid was made is not altogether in harmony. Mr. Ragan testified that Preston came to Atlanta to buy goods, and Ragan asked him if he wanted to buy for cash or on credit, and he said, “On time,” and Ragan told him it was necessary for Ragan, Malone & Co. to have a statement of the financial condition of Cotton & Preston, and he said he would give him the statement. They went into Ragan’s office,- and the written statement was made as a basis of credit for what goods Preston might buy. Ragan also claims that he told him (Preston) that he could order goods at any time on this statement if satisfactory, could also buy from their traveling salesman, and that he called Preston’s attention to the fact that this statement held good for future purchases.</p> <p>On the other hand, Preston’s version of this incident is that nothing was said to him about the “statement being binding for each purchase thereafter made, unless changed by written authority from the undersigned.” After he went through the stock of goods, he went into the office of Mr. Ragan, and Mr. Ragan said that he (Preston) might make a statement of the financial condition of the firm, and Preston told him he was not prepared, and he said that he wanted some idea of the condition of the firm. 1-Ie got the blank, and asked Preston the questions, and Preston answered them. Preston insists that the statement insisted upon is not the identical statement made by him while in Atlanta. lie claims that the questions asked him by Ragan did not embody one to this effect. “Amount indebted to your wife or relatives.” In this connection Mr. Rogers, a member of the firm of Rogers & Heath, representing the bankrupts, testified that he had examined the statement submitted here as a correct copy of the original, and another copy attached to certain criminal proceedings pending against F. ,E. Preston in Atlanta, which is said to be a correct copy of the original, and the copy in Atlanta does not contain the statement about the amount indebted to wife and relatives, and to whom indebted, and when due. Mr. Rogers testified that he had carefully examined the statement in Atlanta.</p> <p>The specific grounds alleged by the objectors, wherein it is claimed that said statement was materially false, are as follows: On August 5, 1907, Preston stated to Ragan, Malone & Co. that Cotton & Preston began business with a capital of $3.000. The facts are as follows: Cotton & Preston embarked in business September 1, 1905, at Broxton, G-a. Their capital stock and assets consisted of a bankrupt stock of goods, which they bought at private sale from one Mark T-ott for $1,294 in cash, q’his money was furnished by E. S. Cotton, the senior member of the firm, who had borrowed it from his wife in 1901, to whom he gave his note on September 14, 1905. Cotton testified at a previous examination that when the firm of Cottdn & Preston was formed he had $500 in the business of Cotton Bros., and that Preston had $150; that neither of these amounts were applied to the purchase price of the bankrupt stock, or otherwise put into the business of Cotton & Preston, as Preston owed Cotton $150, and it was applied accordingly. Neither of them had any other money. Preston testified that, when the firm of Cotton & Preston was founded in 1905, he put in as capital $150 and Cotton put in $1,250. He contends that the bankrupt stock, which was bought for $1,295 át private sale, really amounted to $2,500 or $2,600.</p> <p>The next charge made in the objections is that on August 5, 1907, Preston stated to Ragan, Malone & Co. that Cotton & Preston had notes and accounts amounting to $1,000. whereas the evidence itself shows that the notes and accounts amounted to about $300 or $400. At the hearing of the objections to the discharge, Preston testified that the amount of solvent debts on April 5. 1007. amounted to $1,000, as claimed by him. and since that time he has examined the hooks of the firm of Cotton & Preston, and that there were $1,000 or more due them on that date.</p> <p>The third charge made in the objections to the discharge is that on August 5, 3907. E. S. Cotton owed his wife some $3,000. It is claimed that in the statement it is stated that said bankrupts owe no money whatever to wives or relatives. Inasmuch as the evidence positively shows that no such item appears in the copy of the original statement attached to the criminal proceedings in the criminal court of the city of Atlanta, as testified to- by Mr. Rogers, and which is supported by the evidence of Preston to the effect that no such question was asked him, the special master feels that, in the absence of the original statement, these charges cannot be sustained.</p> <p>Findings of Law.</p> <p>The bankrupts in their demurrer raised an interesting question involving the construction of the amendatory act of 1903, now embodied in section 14b (3) of the bankruptcy law. The point arises: First. Because of the appearance in the alleged false statement of the following language: “This statement shall be binding for each purchase now or hereafter made, unless changed by written authority from the undersigned.'’ Second. Because the account attached to the specifications of objections to the discharge shows that the purchases made by the bankrupts were all more than five months, and in some instances even longer than this, prior to the filing of the petition. and more than a year after the makiñg of the alleged statement, and for these reasons that the objectors could not seriously contend that the said goods were sold upon the faith of the statement made more than a year prior to said purchases, and nearly six months before the filing of the petition in bankruptcy.</p> <p>“The judge shall hear the application for a discharge and such proofs and pleas as may be made in opposition thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard and investigate the merits of the application and discharge the applicant unless he has * * * (3) obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit.” Bankruptcy Act, § 14b.</p> <p>“The effect of this new objection will he that every tradesman whose credit is not unquestioned will be asked to give a mercantile statement as a. condition precedent to dealing, and, it may be suggested, a new statement with every transaction.” Collier on Bankruptcy (7th Ed.) p. 284.</p> <p>In construing the phrase “for the purpose of obtaining such property from the creditor.” Mr. Collier says: “This element will presumably always exist where a sale results from the statement. At the same time there must be some proof of intention, though it need not amount to intent to defraud. This interesting question, as to how far a false statement once made may be availed of by a creditor, who subsequently sells a second or other bill of goods without asking a new statement or for a. correction of the old, is not important, since the Senate’s amendments to the Ray bill. The crucial words are ‘such property.’ They limit this objection in a way that will prove troublesome in praetico. Statements made 1o mercantile agencies, unless, perhaps, in the form of special reports, the giving of which by ihe purchaser can be proven to have been ‘for the purpose’ of the identical creditor in question, will, it is thought, be of no value as objections to discharges, although it has been suggested that the statement need not he made directly to the person defrauded. The striking out from the Ray bill by the Senate of the words ‘or of being comimmicated to the trade’ is significant.” Collier on Bankruptcy (7th Ed.) pi>. 286, 287. See, also, as to the suggestions that a new statement must accompany each transaction, In re Dresser & Co., 13 Am. Bankr. Rep. 620. 144 Eed. 318.</p> <p>I have been unable to find any decisions directly in point as to the binding effect of tbie clause in the statement that it should cover future purchases. The bankruptcy act itself, as contained in the amendment, seem»s to negative such right. In Re Shaffer, 22 Am. Bankr. Rep. 350, 169 Fed. 726, Judge Dayton says: “Creditor must rely upon it (the statement) when parting with his property, and if he did so rely upon it. and it was materially false in fact, it is sufficient to defeat a discharge. If the creditor did not rely ou it, or if the debtor did not make the statement for obtaining the property on credit, it will not bar a discharge, no matter how false the statement may be”— citing Loveland on Bankruptcy (3d Ed.) 809; In re Scott, 11 Am. Bankr. Hep. 327, 126 Fed. 981; In re Harr, 16 Am. Bankr. Rep. 213, 143 Fed. 421; In re Peterson, 10 Am. Bankr. Rep. 355; In re Goodhile, 12 Am. Bankr. Rep. 380, 130 Fed. 782; In re Dresser, 13 Am. Bankr. Rop. 616, 144 Fed. 318; In re Pineus, 17 Am. Bankr. Rep. 331, 147 Fed.' 621. In Re Terens, 22 Am. Bankr. Rep. 897, 172 Fed. 939, Judge Quarles says: “It is matter of common knowledge that such statements are frequently intended as a continuing representation for indefinite periods of time. I am of opinion that the date of the statement is immaterial, if property has in fact been obtained upon the strength of it within the four-months period, as is the case here. We are not called upon to decide whether under any circumstances the four-months limitation can be read into the third subdivision of section 14b, and merely hold that, where goods have been furnished and credit has been extended on the faith of such statement within four months of the bankruptcy, the date of the property statement should be held immaterial.”</p> <p>In the case just cited, the bankrupt, in behalf of his firm, made a property statement to the International Harvester Company in writing, and signed the firm’s name thereto and his own name as a member of the firm, representing certain facts as to the fimincial standing of the partnership, “for the purpose of obtaining credit from you, or as a basis for credit for future business or extending past-due indebtedness.” This statement was made upon a printed blank furnished by the Harvester Company. Opposite the printed interrogatory, “Owe bank (loan or overdraft),” there was written in pencil the word “None.” This blank was filled up by the agent of the Harvester Company from information given him by the bankrupt as the several questions were read and propounded to him. Evidence was then offered showing that this statement was relied upon in shipping the goods and extending the credit to the firm. Within four months of the bankruptcy goods were shipped by the Harvester Company to the firm, as it alleges, upon the strength of this continuing representation. At the time this statement was made the firm did owe a certain bank $5,000. The trial judge held that, inasmuch as this statement was made within four months of the filing of the petition in bankruptcy, the date of the property statement should be held immaterial. In the case at bar, however, the statement was made fully a year and six months before the filing of the petition in bankruptcy, and more than a year before the last items of credit extended thereon; the last item of credit being extended nearly six months before the filing of the petition in bankruptcy.</p> <p>The case most directly in point is In re Allendorf, 12 Am. Bankr. Rep. 321, 129 Fed. 981, in which it appears that some time prior to September 9, 1902, the bankrupt wrote one of the objecting creditors, requesting it to send him a bill of goods on credit. Before sending the goods the creditor requested a statement from the bankrupt of his financial coridition. In response to this request the bankrupt, on September 9, 1902, sent the creditor a statement, from which it appears that he omitted to state that he was owing his wife’s mother and another lady some $800 or $900, and this amount and about $375 to another creditor are not stated in the list of his liabilities. Upon receipt of this letter and statement, the creditor shipped the goods. The testimony of the bankrupt shows that the credit so obtained was afterwards settled and paid by him in January and February following. Afterwards, and on May 15, 1903, the bankrupt ordered by letter from this creditor another bill of goods amounting to $63, and on May 20th another order amounting to $250, both of which were filled and the goods shipped to the bankrupt. The credit man of the objecting creditor testified that the order of May 15, 1903, was the first the firm had received from the bankrupt for several months, and before approving it he looked up their information on Allendorf, and read his státement of September 9, 1902, and on the strength of that statement approved the order and shipped the goods, and that the order of May 20th was also approved and the goods shipped oil the strength of such statement. On these facts Judge Reed says: ‘’Conceding, without so deciding, that a materially false statement made prior 1o the amendment of February 5, 1903, to the bankruptcy law, may be shown to defeat a discharge in proceedings commenced since that amendment, do tlie facts shown sustain this specification? That the omission by the bankrupt from this statement of the amount owing by him to ins relatives and to the other creditor, if knowingly or purposely done, would be a material false statement, may be conceded. Does it, however, fairly appear that sucli statement was made for the purpose of obtaining goods ordered May 35th and 20tli, respectively? The statement was made at the request of tlie creditor, when it received the order for goods some time prior to September 9, 1902, and to induce it to fill that order. There is nothing in the statement, nor in the letter of the bankrupt inclosing it to the creditor, to show that it was to be a continuing statement or representation of the bankrupt’s financial standing. In fact, the statement is expressly limited to his condition on September 9, 1902; and the testimony of the credit man of this creditor and the letter of the bankrupt conclusively show that it was made to secure the bill of goods prior to September 9th only. Between that date and May 15th following (more than eight months) there was no dealing between these parties, and there is no evidence from which it can be fairly inferred that tlie statement was made for the purpose of obtaining the goods shipped upon the orders of May 35th and May 20th. To defeat a discharge, the bankrupt must have obtained property upon a materially false statement made in writing for tlie purpose of obtaining such property. The statement in question was not made for the purpose of obtaining the goods shipped by the bankrupt to this creditor on May 15th and 20th, respectively, nor any other property for which he is now owing. It follows that the specifications of objection in opposition to the discharge are not sustained by the evidence, and the discharge must be granted; and it is so ordered.”</p> <p>It will be observed that in tlie Allendorf Case there was no clause in the statement making it a continuing one, while the statement involved in this proceeding does contain such a clause. The case is interesting from its bearing upon the time which elapsed from the date of the making of the statement to the time of the making of tlie last purchases, and its importance will become more apparent when considered in connection with the decisions hereinafter referred to.</p> <p>Even if the clause in the statement that it should be regarded as continuing is binding upon the bankrupts, when offered in opposition to tlieir discharge, the next question which arises is: How far can this statement be regarded as continuing? It must be borne in mind that the statement was made on August 5, 3907, and the bulk of the purchases were made about that time. The petition in bankruptcy was filed one year and six months after the making of tlie statement, and the last purchases were made nearly' six months before the petition in bankruptcy was filed.</p> <p>In discussing the question, in the case of Mashburn v. Dannenberg, 117 Ga. 573, 44 S. E. 100 Gie Supreme Court of Georgia says: “Tlie only statement made prior to tile sale of the goods contained in the invoice of May 1, 1897, was the one dated July 34, 1896, which was more than nine months before tlie date of the invoice. As to the sale of goods in this invoice, the right of the plaintiff to rescind depended upon whether the credit was actually given upon the faith of the statement made in the preceding year, and whether, under all the circumstances, the plaintiff had a right to act upon the faith of a statement made to a mercantile agency at such a distant day in tlie past, and whether a merchant making statements to such agencies intends for them to be relied upon after tlie lapse of such a time. No .arbitrary time can he fixed when a statement to a mercantile agency will become ‘stale’ and persons should no longer act upon it; ’ hut whether such a time has elapsed must be determined by the jury according to the circumstances of each case.” See, in tills connection, Waldrop v. Wolff, 114 Ga. 613 (4), 40 S. E. 830; Newman v. Claffin, 107 Ga. 89, 32 S. E. 943; In re Russell & Birkett, 5 Am. Bankr. Rep. 608.</p> <p>Of course, the longer the interval the weaker the cause that makes such representation the foundation for a rescission. Newman v. Claflin, supra. While there may have been a moral obligation upon Preston to advise Ragan, Malone & Co. of each and évery change in the financial condition of the firm of Cotton & Preston, if it is accepted as true that he understood this clause in the contract, no legal obligation arose whereby he was compelled or required to keep Ragan, Malone & Oo. posted as to every material or immaterial change in the condition of the mercantile life of his firm. And it is probably this very idea which actuated the Senate in striking so much of the proposed amendment of 1903 as would by implication justify these continuing statements. In fact, it appears to me that this blank or statement prepared by Ragan, Malone & Co. is a contrivance arranged to protect them in all cases against loss by reason of persons going into bankruptcy who may be indebted to them in any amount for goods sold by them, regardless of the length of time which may elapse from the' time of such sale to the time of bankruptcy, by filing objections to discharge and urging this statement as the grounds therefor.</p> <p>While creditors are always a favored class in courts of equity, they are not'to be encouraged in the embarrassment and harassment of debtors who have been so unfortunate as to he forced to take advantage of the bankruptcy act. “The release of the honest, unfortunate, and insolvent debtor from the burden of his debts and his restoration to business activity, in the interest of his family and the general public, are the main, if not the most important, objects of the bankruptcy aet; and the burden of proof is upon creditors opposing the granting of a discharge to bring the inculpatory facts alleged by them strictly within the meaning of the exceptions enumerated within said statute.” Hardie v. Swafford Bros. Co., 21 Am. Bankr. Rep. 437, 165 Fed. 588, 91 C. C. A. 426, 20 L. R. A. (N. S.) 785.</p> <p>While the testimony of Mr. Ragan, of Ragan, Malone & Oo., is positive that his firm extended credit in each instance upon the faith of the financial statement made to him by Preston, who can say that they did not act largely upon their past experience with Cotton & Preston, and not entirely upon the financial statement alone? This idea is very much supported by the fact, which appears in the exhibit attached to the objections, that the bankrupts made large payments, at times as much as $500 in cash, and at other times $300, $200, and $100 to Ragan. Malone & Co. on account of the purchases made by them. Indeed, their gross purchases from August, 1907, to August, 1908, amounted to $2,969.24, and their credits for cash payments made and merchandise returned aggregate^ $2,186.89. The purchases which remain unpaid'for amount to less than $800. These items were purchased between May 12, 1908, and August 25, 190S, at a time when it cannot be presumed, without doing violence to one’s conscience, that these bankrupts had formed the intention to file a petition in bankruptcy.</p> <p>Finally, the making of the false statement by F. F. Preston, one of the partners, even in the regular course of the partnership business, cannot be interposed as a bar to the discharge of the firm, or of a partner who did not participate in the wrongful act and had no knowledge thereof. The testimony in this ease shows that COtton, one of the bankrupts, knew nothing of the statement, and, regardless of what conclusions may be reached as to Preston, Cotton cannot be denied his discharge. The Circuit Court of Appeals of the Fifth Circuit has held that there is no reason in law, and certainly none in business or morals, why an honest bankrupt should not be discharged, and that, when a partner who has no knowledge of the making of the false statement applies for his discharge, the same should be granted. Hardie v. Swafford Bros. Co., 21 Am. Bankr. Rep. 457, 165 Fed. 588, 91 C. C. A. 426, 20 L. R. A. (N. S.) 785.</p> <p>Conclusions of the Master.</p> <p>I conclude that the third ground of the bankrupt’s special demurrer, which raised the point that this statement could not be the basis of the credit for the particular goods for which the bankrupts are now indebted to objectors, should be sustained. The uncontradicted evidence showing that the goods were obtained from six to nine months prior to the filing of the petition in bankruptcy, on a statement made a year and six months before the filing of the petition in bankruptcy, I conclude that these are not such goods as were obtained on a false statement in writing, such as is contemplated by section 14b (3) of the bankruptcy act. The only remaining charge against the bankrupts being founded purely on a difference of opinion as to tbe value of the merchandise comprising the capital with which this firm began business, I do not think that this is such a material discrepancy as would justify this court in declining to grant a discharge to these bankrupts.</p> <p>Tbe special master ascertains from the record before him that these bankrupts were allowed an exemption by the trustee, to -which Ragan, Malone & Co. filed their exceptions, which were overruled, and the exemption allowed. An appeal was taken to this decision of the referee, and the District Judge has affirmed the decision of the homestead matters. Ragan, Malone & Co. then filed tlieii' intervening petition to recover certain goods found in the possession of the bankrupts, alleging that they were obtained by fraud; the identical statement herein involved being used ás a basis for the claim of fraud. This intervening petition was denied by the referee, to which decision an appeal -was entered to the District Judge, and the decision of the referee has also been sustained. Criminal proceedings have also been brought in the criminal court of the city of Atlanta against F. F. Preston, and charges are now pending against him there, and it appears on the very statement involved here. The bankrupts have filed their applications for discharge, and Ragan, Malone & Co. are found opposing their applications. While every legal advantage should be taken by the creditor to bring his guilty debtor to justice, the special master cannot refrain from expressing the opinion that this case has assumed more the attitude of an oppression than of a just prosecution. I therefore recommend that the objections filed by Ragan, Malone & Co. to the application of these bankrupts for their discharge should be overruled and dismissed.</p> <p>Tbe special master further reports that in and about this reference he has incurred an expense of 821 for stenographic services in reporting and transcribing the evidence and this report, and he prays that this amount may be allowed him, in addition to such allowance as may be made to him for his services in this reference, and that the amounts thereof be taxed by the court against the party cast in the suit.</p>

<p>In the matter of Cotton & Preston, bankrupts. On petition for review of order of referee setting apart homestead exemptions. Affirmed.</p> <p>The following is the report of Isaac, Referee:</p> <p>The trustee set apart to the bankrupt E. S. Cotton wearing apparel valued at $30, cash derived from the sale of the property of the bankrupts, after deducting the costs and expenses of the proceeding, $784.55, or a total exemption of $814.55. He likewise set apart to the bankrupt F. F. Preston wearing apparel and other personal property amounting to $50, and cash derived from the sale of the assets of said bankrupts, after the payment of the costs 'and expenses of the proceeding, $784.55, or a total exemption of $834.55.</p> <p>Certain creditors have filed exceptions to the trustee’s report, those of Ragan, Malone & Co. presenting substantially the following grounds, viz.: That the bankrupts had not made a full and fair disclosure of their property; had drawn out of bank several sums of money before and after the filing of their petition in bankruptcy, which had not been accounted for; had made false statements of their indebtedness for tbe purpose of obtaining credit; had conveyed to their wives all of their real estate for the purpose of defrauding their creditors; and are withholding large sums of money received from their business which should have been delivered to the trustee in bankruptcy. The objections of the Pannenberg Company were withdrawn before this opinion was rendered, and their objections will be omitted. Tbe objections of Thomas G. Plant Company were that tbe bankrupts had concealed a part of their property, and had made false statements of their financial condition, and so much of the homestead set apart to said bankrupts as consisted of cash was illegal.</p> <p>At the hearing of these objections tbe bankrupts moved to amend their schedules, so as to avoid the objections that tbe claim to homestead was for cash, and to show that the funds set apart were the proceeds of the sale of the goods and property of Cotton & Preston made without objection on the part of creditors of said bankrupts, etc.; but tbe court held that the claim to exemptions in the original schedules was sufficiently clear and specific, and amendments were unnecessary, and declined to allow the same. See Dunlap v. Huddleston, 21 Am. Bankr. Rep. 731, 167 Fed. 433, 93 C. C. A. 69. Motion was likewise made by the bankrupts to dismiss the objections of Thomas G. Plant Company because the same were not filed within 20 days from the date of the filing of the trustee’s report setting apart said exemptions. An amendment was also offered by the objector, Ragan, Malone & Co., adding several grounds of objection, not amplifications of the original grounds of objection, but setting forth new matter.</p> <p>It appearing on the face of the record that the trustee’s report setting apart the exemptions was filed on July 26. 1909. and that the exceptions of the Plant Company were not filed until August 20. 1909, more than 20 days after the filing of said report., said motion to dismiss was granted. General Order in Bankruptcy 17 (89 Fed. viii. 32 C. C. A. xlx): In re Amos. 19 Am. Bankr. Rep. 804. The amendment of Ragan, Malone & Co., setting forth new grounds of objection, having been presented more than 20 days after the filing of the trustee’s report: setting apart the bankrupt's exemptions, said amendment was disallowed. A creditor, desiring to object to the trustee’s report setting apart the bankrupt's exemption, should file all of his objections within the time fixed by law, and cannot come in after the expiration of that time, and add new and additional grounds to his objections already of file. It is otherwise as to the enlargement or amplification of grounds originally taken.</p> <p>This leaves the case to he decided on the objections of Ragan, Malone & Co. alone. Demurrers were presented by the bankrupts to the grounds of these objections, having to do with the making of false statements in writing and the transfer of certain real estate by the bankrupts to their wives more than four months prior to the filing of the petition in bankruptcy by them. These demurrers were and are sustained, and these grounds have not been considered as valid objections to the homestead. It has been repeatedly held in Georgia that the fraudulent omission of real estate from the schedules claiming exemption will not operate to deprive the applicant of his exemption: “the full and fair disclosure” section of the Georgia Code referring only to personal property. See Civ. Code Ga. 1895, § 2830: Torrance v. Boyd, 63 Ga. 23 (3): In re Castleberry, 16 Am. Bankr. Rep. 159, 143 Fed. 1018. And, even if this were not true, the transfer of the real estate by the bankrupts to their wives more than four months prior to the filing of the petition in bankruptcy would not deprive them either of their exemptions or their discharges. Fields v. Karter. 8 Am. Bankr. Rep. 351. 115 Fed. 950. 53 C. C. A. 432. This decision is by the United States Circuit Court of Appeals of the Fifth Circuit.</p> <p>The making of false statements in writing to their creditors to obtain credit, if true, would deprive the bankrupts of their discharges, but at no time has it 'been held a valid objection to the allowance of the homestead. Such statements may he material evidence showing the condition of the bankrupt’s business at a given time (In re Stephens. 8 Am. Bankr. Rep. 53, 114 Fed. 192), and may without satisfactory explanation prove fraudulent concealment of assets, but it is not a ground of objection.</p> <p>The evidence taken at the first meeting of creditors held at Brunswick, and at an adjourned meeting of creditors held at Douglas, containing, respectively, 14 and 25 pages of typewritten matter, was offered in evidence by the objectors, and as well a batch of 205 checks given by the bankrupts from time to time in the usual course of their business, to prove the concealment of large sums of money alleged to have been retained by the bankrupts. A careful consideration of this evidence, so far as the same is possible from the character of the proof, fails to satisfy the court that there has been a withholding of assets on the part of these applicants. The only transaction which, needed explanation, and which the bankrupts satisfactorily explained, was the withdrawal of $30 in cash on February 18, 1909, three days after the filing of the petition in bankruptcy, which the bankrupts testified was used by them to meet living expenses during the time their place of business was closed and they were forced to keep their families provided with the necessaries of life. More especially is this small item to be overlooked, when it is considered that these bankrupts delivered in cash to the trustee in bankruptcy, as soon as he qualified, $246.81, which was deposited to the credit of the firm in a Broxton bank, and which could have been easily withdrawn or withheld by them until discovered by the trustee. The voluntary surrender of so much cash by a bankrupt to his trustee is so unusual as not to escape notice and consideration.</p> <p>Fraud is not presumed or imputed to any one, but must be proved, and it was incumbent upon the objectors in this case-to make out their proof of concealment, not by the wholesale introduction of records, checks, and papers, leaving it to the court to decipher and analyze them, but by proof of some act of concealment. The introduction of the checks shows the disbursement of $8,503.87 in cash. Having been offered by the objectors, they are to be taken as prima facie proof of their correctness in favor of the bankrupts until shown to be irregular. The court has had the opportunity of seeing the witnesses and hearing their testimony, and of making deductions therefrom as to the truthfulness of their testimony. They have left the impression that they were telling the truth. If fraud exists in the case, it has not been proven to a reasonable certainty, and the bankrupts are entitled to the benefit of the doubt.</p> <p>A liberal policy has always existed in this state in favor of the granting of exemptions, and in the absence of some direct evidence of fraud the wives and children of these bankrupts, and the bankrupts themselves, ought not to be stripped of all they possess, made destitute and penniless, and hopelessly “turned out in the big road.” In re Hargraves, 20 Am. Bankr. Rep. 188, 100 Fed. 760.</p> <p>For the reasons stated in this opinion, an order will be entered overruling the objections filed by Ragan, Malone & Co., and dismissing the objections of Thomas G. Plant Company; and, the objections of the Dannenberg Company having been voluntarily withdrawn, no further action will be taken on said objections. An order will be entered accordingly.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Equity. Suit by the American Ice Company against the Pocono Spring Water Ice Company and others. . Decree (179 Fed. 868) for complainant, and defendants appeal.</p>

<p>1. Criminal Xaw (§ 1149*) — -Appeal and Error — Review--Ruling on Mo tion to Quash.</p> <p>The general rule that a motion to quash an indictment is addressed to the discretion of the court and a refusal to grant it cannot he assigned as error, while subject to exception in some cases in the federal courts, will be followed where the motion is founded only on alleged defects aplica ring on the face ol' the indictment, since in such case the ruling could not finally determine any right of the defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 3039; Dee. Dig. § 1149.*]</p> <p>2. Indictment and Information (§ 197*) — Ruling on Demurrer.</p> <p>In the federal courts, tlie overruling of a demurrer to an indictment, where the defendant is allowed to plead over, is not properly assignable as error.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 636; Dec. Dig. § 197.*]</p> <p>3. Banks and Banking (§ 257*) — National Banks — Aiding Officer in Misapplication of Funds — Indictment.</p> <p>An indictment for-aiding and abetting an officer of a national bank in the misapplication of its funds, in violation of Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), considered, and hold sufficient.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 973; Dee. Dig. §. 257.*]</p> <p>4. Banks and Banking (§ 257*) — National Banks — Trial of Offenses— Evidence.</p> <p>Rulings of the trial court in admitting and excluding evidence in a prosecution for aiding and abetting an officer of a national bank in the misapplication of its funds considered, and held to contain no error.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>5. Banks and Banking (§ 257*) — National Banks — Trial of Offenses— Instructions.</p> <p>Instructions considered given on the trial of a prosecution for aiding and abetting an officer of a national bank in the misapplication of its funds, and held without error.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Suit in equity by the National Distilling Company against the Century Liquor & Cigar Company, Abe L. Livingston, W. 'I'homas Magee,</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by the Morris & Cumings Dredging Company against the steamtug George Hughes, Decree for respondent, and libelant appeals.</p>

Action by the Woodbine Timber Company against the Empire Timber Company. Judgment for plaintiff, and defendant brings error. In the opinion following the parties are designated as in the court below. On January 1, 1900, the parties to this action entered into a written agreement by which the plaintiff agreed to furnish to the defendant upon vessels in Georgia or Florida during the year following certain quantities of yellow pine piles of various sizes.

<p>In Frror to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action by Mary S. Clegg, administratrix of Charles A. Clegg, deceased, against the Atlantic City Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of Max and Hugo Schoenfeld, bankrupts. From ah order surcharging his accounts and denying him commissions, Robert G. Gamble, receiver and trustee, appeals.

<p>Appeal from Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Phoenix Knitting Works against Samuel Grushlaw, individually and trading under the name and style of the Pennsylvania Knitting Mills, and also under the style of Penn Muffler Company. From an order granting a preliminary injunction (181 Fed. 166), defendant appeals.</p>

<p>Carriers (§ 38*) — Interstate Commerce Act — Oe penses by Shippers — Accepting Concessions.</p> <p>An indictment under the Elkins act (Act Feb. 39, 3903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp: 3909, j>. 3138]) charging that defendant received concessions from the established through rate on shipments from Evansville, Ind., to Birmingham, Ala., via Grand Junction, Tenn., is not sustained by proof that shipments were made by defendant from Whiting, Ind., via Evansville to Grand Junction, for beyond, at the lawfully filed and published rate which was prepaid, and were forwarded from there to Birmingham on orders from the consignee, which paid the freight, although the cost of ‘the transportation from Evansville to Birmingham was less than the established through rate between such points.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec; Dig. § 38.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Bankruptcy (§ 54*) — “Fair Valuation.”</p> <p>“Fair valuation,” in subdivision 15, § 1, of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3419]), means such a price as a capable and diligent business man could presently obtain for the property after conferring with, those accustomed to buy such property. [Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 54.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2650, 2651.]</p> <p>2. Bankruptcy (§ 166*) — Purchase oe Bankrupt’s Property — “Reasonable Cause to Believe.”</p> <p>“Reasonable cause to believe,” in section 60b of the bankruptcy act (Act July 1, 1898, e. 541, 30 Stat. 562 [ü. S. Comp. St. 1901, p. 3445]), covers substantially the same field as “notice,” in determining whether a person is a bona fide purchaser of property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5956, 5957.]</p> <p>3. Bankruptcy (§ 160*) — “Reasonable Cause to Believe.”</p> <p>Facts which would put an intelligent business man upon inquiry constitute “reasonable cause to believe,” under section 60b of the bankruptcy act (Art July 1, 1898, c. 541, 30 Stat. 562 [XI. S.. Comp. St. 1901, p. 3445]), if intent to prefer would be discovered by following up the inquiry.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*]</p> <p>4. Bankruptcy (§ 166*) — “Reasonable Cause to Believe.”</p> <p>“Fear” or “suspicion” of a preference constitute “reasonable cause to believe,” under section 60!) of the bankruptcy act (Act July 1, 1808, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]), if they would incite an intelligent. business man to an inquiry which would disclose a preferential intent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5. Bankruptcy (§ 159*) — “Creditor.”</p> <p>A guarantor is a “creditor” within the meaning of section 60b of the bankruptcy act (Act July 3, 3898, c. 541. 30 Stat. 562 LU. S. Comp. St. 1901, p. 3445]), relating to the giving of preferences to creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 359.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7622, 7623.]</p>

In Equity. Suits by the S. F. Myers Company, complainant, against Arthur W. Tuttle, defendant, and by Arthur W. Tuttle, cross-complainant, against the S. F. Myers Company, cross-defendant, and S. F. Myers Sons Company, defendant. Decree for Arthur W. Tuttle, defendant and cross-complainant.

<p>1. Insurance (§ 141*) — The Contract — Effect of Acceptance and Retention of Policy.</p> <p>An assured who accepts and. retains a policy without objection, in the absence of fraud or misrepresentation, is bound by its terms, and cannot plead ignorance of them, nor avoid them because not in accordance with the application or the agreement made in the preliminary negotiations.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2G2; Dec. Dig. § 141.*]</p> <p>2. Insurance (§ 141*) — The . Contract — Estoppel by Acceptance and Retention of Policies.</p> <p>Defendant during a number of years carried policies of insurance, known as employer's liability policies, issued by complainant, the premiums on which were based on the amount of the pay roll of the employes covered by the policies, estimated- in the first instance and to be adjusted at the end of the terms on reports by defendant showing the actual amount paid. The negotiations were between defendant and an agent 'of complainant who took the applications and delivered the policies, and with whom settlements of the premiums were made. Twenty-eight of the 30 policies issued covered all of the employes of defendant, including the executive officers and office men. Held, that defendant, having accepted and retained such policies during their terms and having had the benefit of the insurance covering such employes, could not avoid payment of the premiums thereon on the ground that the applications provided that they' should be excluded and that it did not read the policies.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2G2; Dec. Dig. § 141.*]</p> <p>3..Insurance (§ 188*) — Actions for Premiums — Employer’s Liability Policies — Premiums Based on Pay Rolls — Right to Audit of Books.</p> <p>In order to determine the amount of premiums to which complainant was entitled under the provisions of such policies, it had the right to an audit of defendant’s books, pay rolls, and like documents.</p> <p>[Ed. Note. — For other eases, see Insurance, Dec. Dig. § 188.*]</p> <p>4. Insurance (§ 181*) — Premiums—Waiver by Acceptance of Less Than Amount Due.</p> <p>Complainant, having had no knowledge at the time the several settlements were ntade that the reports made by defendant did not include tbe salaries paid to such classes of employes, did not by accepting the premituns based on such reports waive its right to recover the remainder of premiums to which it was entitled.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 181.*</p> <p>Waiver by acceptance of premiums, see note to Life Ins. Clearing Co. v. Bullock, 33 C. C. A. 369</p> <p>5. Insurance (§ 188*) — Action fob Premiums — Laches.</p> <p>By tlie terms of employer’s liability insurance policies issued by complainant to the defendant, the premiums were to be computed on the actual pay rolls of defendant during the terms of the policies, including thereon all employe's covered by the policies, and it was made the duty of defendant at the end of each term to make a report showing the amount of such pay rolls. The reports so made did not include the salaries paid to certain classes of employfis covered by the policies, but complainant was ignorant of such fact, and. accepting the reports as correct, made settlements thereon. After the policies had all expired, it accidentally discovered such omissions, and within a reasonable time thereafter brought suit to recover the additional amount of premiums to which it was entitled. Held, that complainant was not barred by laches from maintaining the suit on the ground that in the meantime defendant had destroyed its original pay rolls, since it was its duty to make correct and complete reports, and. not having done so, to preserve the evidence the destruction of which was at its peril, and especially as it further appeared that it had summaries showing the totals of each week’s pay rolls.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 188.*)</p>

In Equity. Suits by the Berwind-White Coal Mining Company against the M etropolitan Steamship Company, and the American Trust Company against the Metropolitan Steamship Company and others. Consolidated cause. On question of payment of receiver’s certificates.

<p>In Equity. Suits by the Berwind-White Coal Mining Company and the American Trust' Company against the Metropolitan Steamship Company. On intervening petition of Brown & Adams.</p>

Proceeding by tlie United States against Yuen Pak Sune, alias Yuen Pak Suen, alias Pak Thune, Ng Sin, Ng Pen Koon, Ng Dick, and Ng Yee King. On the complaint of George W. Ketcham, one of the Chinese Inspectors of the United States, and a warrant duly issued, these five Chinese persons are before me as United States District Judge for the Northern District of New York, under the provisions of the Chinese exclusion laws (Act May 5, 1892. c. 60, 27 Stat. 25 [U. S. Comp.

<p>1. Corporations (§§ 222, 335*) — Liability of Officers and Stockholders— Misrepresentations in Mortgage.</p> <p>A corporation executed a trust mortgage to secure an issue of bonds, covering its property described therein as 47,000 acres of “lands,” and the bonds were sold in the market; purchasers being induced to buy by circulars containing a copy of the mortgage. In fact, except as to 700 acres, the company did not own the lands in fee, but merely the coal underlying them. The preparation of the mortgage and the description of the property therein were left by the directors to competent and experienced counsel, who knew the facts. Held that, conceding that the description of the company’s interest as lands was erroneous and misleading, neither the president of the company, who signed the mortgage in its behalf, with knowledge of the facts, nor stockholders, who authorized its execution, were personally liable for deceit to a bondholder, who was misled by such description and suffered loss by reason thereof.</p> <p>[Ed. Note. — Eor other cases, see Corporations-, Dec. Dig. §§ 222, 335.*]</p> <p>2. Corporations (§§ 222, 335*) — Officers and Stockholders — Liability in Equity.</p> <p>Officers and stockholders of a corporation cannot he held to have personally warranted the truthfulness of representations made in a mortgage executed by the corporation, so as to authorize a court of equity to require them to make such representations good at the suit of a bondholder who bought in reliance thereon, where they are not chargeable with acts which would render them liable at law for deceit; nor can relief in equity be granted against them by way of rescission on the ground of mutual mistake, since they were not parties to the transaction as individuals, and did not receive the consideration paid for the bonds.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Dec. Dig. §§ 222, 335.*</p> <p>Stockholders’ liability to creditors in equity, see notes to Rickerson Roller Mill Co. v. Earrell Foundry & M. Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.]</p>

<p>In Equity. Suit by Eouis F. Bell against the New York Safety Steam Power Company. On petition of receiver.</p> <p>This is an interlocutory proceeding in-a suit brought to sequestrate and distribute the assets of the defendant company. The receiver appointed in sequestration files a petition asking for instructions as to the disposition of 25 electric generating machines, manufactured by the defendant company and sold to the United States government, but subsequently rejected by it. The respondents, Knauth, Nachod & Kuhne, who have been made parties, claim the machines by virtue of a contract entered into on May 11, 1908, between themselves and the company, before the machines came into existence, by which they lent $25,000 to the company, and, among others, upon condition that they should be secured by the machines when built, and by the purchase price when paid. The third paragraph of that contract is as follows:</p> <p>“As further security for the repayment of said loan, the parties of the first and third parts covenant and agree that the parties of the second part shall have a lien upon, and the right to take possession of, all machinery and parts of machinery, and all finished machines belonging to said parties of the first and third parts, or either of them, and suitable for the performance of the said contract with said Major Taylor, and that they will execute and cause to be executed any further assurance, bill of sale, chattel mortgage, or other instrument demanded by the parties of the second part, and necessary or reasonably adapted to the purpose of making such lien effective and readily enforceable.”</p> <p>The contract was never filed as a chattel mortgage under the laws of the state of New York, and the question arises as to the ownership of the machines which have been returned.</p>

<p>Aliens (§ 72*) — Naturalization — Offenses — False Swearing — “Knowingly.”</p> <p>A state court granted naturalization to a woman who had been dead over four years, and the certificate was issued by the clerk. No hearing was had nor evidence taken in open court, as required by Naturalization Act June 29, 1908, c. 3592, § 9, 34 Stat. 599 (U. S. Comp. St. Supp. 1909, p. 482); but affidavits in support of the petition were made out by the clerk, and subscribed and sworn to by defendants, the material statements in which were false. Defendants, however, did not understand the English language, and were not informed of the contents of the affidavits, but signed the same as directed by the clerk. Held, that they were not guilty of “knowingly” giving false testimony, made a crime by section 23 of the act.</p> <p>['Ed. Note. — For other cases, see Aliens, Cent. Dig. g 161; Dec. Dig. I 72.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3937-3939.]</p>

<p>Conversion (§ 4*) — Condemnation of Lands of Infant — Law of New York.</p> <p>In New York by operation of law there is an absolute out and out conversion of the real property of an infant, taken in condemnation proceedings to personal property, the conversion- being absolute and perfect when the award is confirmed and the money deposited; and in the absence of a statute to the contrary the award is to be treated by the court as personal property, and paid over to the general guardian of the infant, notwithstanding the fact that Code Civ. Broc. N. Y. § 2345 et seq., provide in effect that the proceeds of an infant’s lands, when sold by order of court, shall be treated as real estate, and paid over to a special guardian for investment, unless the general guardian shall give security therefor on improved and unincumbered real estate.</p> <p>[Ed. Note. — Eor other cases, see Conversion, Cent. Dig. § 2; Dec. Dig. § 4.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p> <p>Claim of the Tredegar Company against the Seaboard Air Tine Railway and its receivers. From a decree disallowing interest, claimant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States against James B. Regan. Judgment for plaintiff, and defendant brings error.</p> <p>This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, plaintiff below. The action was to recover the sum of $1,000 by way of penalty for an alleged violation of sections 4, 5, Act Feb. 20,1907, c. 1134, 34 Stat. 900 (U. S. Comp. St. Supp. 1909, pp. 450, 451), such violation consisting, as it is charged, in soliciting, assisting, and encouraging the importation of a contract laborer into this country. The alien, one Foreau, was a pastry cook who had been employed in the Carleton Hotel, London, and who presented himself with, as he says a letter of introduction from one Neumann, the manager of that hotel to the defendant Regan, proprietor of the Knickerbocker Hotel in New York, who thereupon gave him employment. At the end of 50 days he was discharged. Foreau had never met Regan before the interview at which he presented the letter, and it is the theory of the government that Neumann was the agent of Regan to secure the pastry cook, and that in suggesting his going to the Knickerbocker, in writing the letter of introduction, and in paying bis passage — all wbich Foreau testified that Neumann did — Neumann was acting for Regan or on his procurement.</p>

<p>Petition to Review Orders of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the Banzai Manufacturing Company, bankrupt. On petition by Oscar B. Bergstrom to revise orders of District Court. Petition dismissed as to two orders.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>John Stirlen was convicted of a criminal offense, and brings error.</p> <p>The case is stated in the opinion</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. In the matter of the Charles W. Aschenbach Company, alleged bankrupt. On petition by David G. Way'to revise order of District Court.

Petition to Review Order of the District Court of the United States for the Southern District of New York. In the matter of Pasquale Caponigri, bankrupt. On petition by Isaac S. Voorhis to review an order of the District Court. This cause comes here upon a petition to review in matter of law, as provided in Act July 1, 1898, c. 541, § 24b, 1(1 Stat. 559 (U. S. Comp.

<p>Appeal from the Circuit Court of the United States for the Southern District of Texas.</p> <p>Suit in equity by James E. Dougherty and others against D. B. Chapin and others. Decree for complainants, and defendants appeal.</p>

In the matter of George E. White and James D. Kline, individually and °as copartners under the firm name of George E. White & Co., bankrupts. From an order disallowing a claim against the individual estate of George E. White, Edmund S. Cummings appeals.

<p>In Error to the District Court of the United States for the Northern District of Illinois.</p> <p>Leo Wroclawsky, alias Leo Klemens, was convicted of a criminal offense, and brings error.</p>

Suits in equity by the Dowagiac Manufacturing Company against the Minnesota Moline Plow Company and Thomas H. Martin, and by the same complainant against Ernest E. Smith and Euppo Zimmer. Decrees awarding complainant nominal damages only in each case, and it appeals.

Appeals from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. Suits in equity by the Comptograph Company against the Burroughs Adding Machine Company. From a decree (175 Fed. 787, 792) in each case dismissing the bill, complainant appeals.

<p>Patents (§ 328*) — Infringement-Bracket fob Cab Doors.</p> <p>The Hill patent, No. 527,792, for a bracket for car doors, fastened to the car body by a lag screw having its head countersunk in the bracket, so that it cannot be unscrewed except by rotating the bracket, which is prevented by the car door when in closed position, is not for a generic invention, in view of the prior art, but is limited to the specific method in which a previous concept is embodied. As so construed, held not infringed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the International Harvester Company against the Richardson Manufacturing Company. Decree for defendant (172 Fed. 436), and complainant appeals.</p>

<p>In the matter of Benjamin Sussman, bankrupt. On review of or-, der of referee disallowing exemption.</p>

<p>Aliens (§ 32*) — Proceedings for Deportation of Chinese — Burden of Proof.</p> <p>On proof that a defendant, arrested for deportation as a Chinese laborer unlawfully in the United States, is a Chinese person and a laborer, the burden rests on him to show his right to remain in the United States, and he gains no rights by standing mute, but, on the contrary, such conduct justifies his being held strictly to his technical rights.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 32.*]</p>

<p>In Admiralty. Libel in rem by the United States against the schooner Margaret Thomas. Decree for respondent.</p> <p>The schooner Margaret Thomas, loaded with phosphate rock, on a voyage from Tampa to Baltimore, was being towed by the tug-De Witt C. Ivins on a 120-fathom hawser down-' the dredged channel. The schooner came in contact with the south cut Lower No. 6 Beacon in Old Tampa Bay, belonging to the United States, and destroyed it. The United States libeled the schooner for the damages.</p>

<p>In the matter of A. A. Lineberry, bankrupt. On review of order of referee.</p>

<p>In Admiralty. Cross-suits for collision by the Pacific Coast Company against the steam schooner Aurelia, and by the Russell- & Rogers Company against the American steamer Umatilla. Decree against both vessels dividing damages.</p>

<p>1. Indians (§ 15*) — Dan ns — Restriction on Alienation by Allottees — Right of United States to Enforce by Suits.</p> <p>The United States may maintain a suit to set aside a conveyance of lands allotted to an Indian of the Osage Tribe in Oklahoma, in violation of the restrictions imposed by Congress on their alienation.</p> <p>[Ed. Nota. — For other cases, see Indians, Cent. Dig. §§ 17, 37; Dec. Dig. § IS.*]</p> <p>2. Indians (§ 15*) — Lands—Restrictions on Alienation — -Power of Congress.</p> <p>While the title of the Osage Indians to their lands in Oklahoma, acquired from the Cherokee Nation, pursuant to the treaty with such nation, of July 19, 1860 (14 Stat. 894), was in fee simple, such title was in the tribe, and did not vest in the individual members, and it was within the power of Congress to provide for their allotment in severalty, to prescribe the manner of their conveyance to the allottees, and to- impose restrictions upon their alienation by the allottees, as it did in Act June 28, 19QB, c. 3572, 34 Htat. 539.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.*]</p> <p>3. Indians (§ 13*) — Lands—Allotment in Severalty — Validity of Conveyance to Allottee.</p> <p>Under Act June 28, 1906, c. 3572, 34 Stat. 539, providing for the allotment in severalty of the lands of the Osage Indians in Oklahoma, which requires the deeds to the allottees to be executed by the principal chief of the tribe and to be approved by the Secretary of the Interior, such approval is essential to the validity of the deed, and without it the grantee acquires no title.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>4. Indians (§ 35*) — Lands—Allotments of Osage Lands — Conveyance by Heirs.</p> <p>Act March 3, 1909, c. 256, 35 Stat. 778, which authorizes the Secretary of the Interior, pursuant to rules and regulations prescribed by him, to sell the “surplus lands” of any member of the Osage Tribe of Indians, and requires his approval before any such sale lias validity, is applicable to the lands of deceased allottees.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.*]</p> <p>5. Indians (§ 15*) — Lands — Restrictions on Alienation of Allotted Lands.</p> <p>In Act June 28, 1996, c. 3572, 34 Stat. 539, pro\ iding for the allotment in severalty of the lands of the Osage Tribe of Indians, the provision of section 2, subd. 4, that the land allotted as a homestead “shall be inalienable and nontaxable until otherwise provided by act of Congress,” is impersonal to the allottee, and runs with the land, and is effective against alienation after the land has descended to the heirs of the allottee.</p> <p>|Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.*]</p>

Action at law by Janies B. Clow & Sons, a corporation, against the Quinn Construction Company and the Quinn Supply Company. Judgment for plaintiff, and defendants bring error.

<p>1. Contracts (§ 170*) — Construction—Practical Construction by Parties.</p> <p>Where a written contract is fairly susceptible of the interpretation placed on it by the jiarties during performance, such construction should be given it by the courts.</p> <p>fEd. Note. — For other cases, see Contracts, Cent. Dig. § 758; Dee. Dig. § 170.*</p> <p>Practical construction of contracts by parties, see note to Davis v. Alpha Portland Cement Co., 73 C. C. A. 302,]</p> <p>2. Contracts (S 252*) — Building Contracts — Performance—Approval by Owner’s Representative.</p> <p>Where a contract for a building or other structure gives the owner the right to supervise and inspect the work as it progresses by his representative, with power to approve or reject material or workmanship, after the building or structure has been completed and the owner has the use of it, he cannot rescind the contract and refuse to pay the contract price on the ground of defects in material or workmanship which was approved by his representative. a</p> <p>TEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 1181-1183; Dec. Dig. § 262.*]</p> <p>3. Bridges (§ 20*) — Contract for Construction — Performance—Approval by SuPERINTlOXDENT.</p> <p>A contract with a township for the construction of a bridge did not expressly provide that the town should have an inspector on the work, nor that material or work should be accepted or rejected in the course of construction, but; was susceptible of such construction, and was evidently so understood by the parties; the town board, as authorized by statute, appointing a person to superintend the work, who exercised the right to approve or reject material and workmanship as the work progressed. The contractor sublet the construction of the substructure, and accepted and paid for the same only after the material and workmanship had been approved by the town’s representative. Held that, after the bridge had been completed and opened to public travel the town could not refuse to accept and pay for it on the ground of alleged defects in the substructure which, if they existed, were obvious to its superintendent when the work was being done; its remedy, if any, being the recovery of damages for breach of the contract.</p> <p>[Ed. Note. — Por other cases, see Bridges, Cent. Dig. §§ 37-47; Dec. Dig. § 20.*]</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Michigan.</p> <p>John Hart ivas convicted of criminal offenses, and brings error.</p>

<p>1. Master and Servant (§§ 101, 102*) — Care Required of Master — Machinery and Appliances.</p> <p>A railroad company does not insure the absolute safety of the machinery or appliances it furnishes for the use of its employes, but is bound only to exercise all reasonable caro to furnish reasonably suitable and safe machinery and appliances.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 180-184; Dec. Dig. §§ 101, 102.*]</p> <p>2. Master and Servant (§ 112*) — Master’s Liability for Injury to Servant — Railroad Switches.</p> <p>Plaintiff’s husband, while working as a fireman on an engine on defendant’s railroad, was killed in a collision between his engine, which was drawing a train, and some freight cars which had escaped from a siding onto the main track. The ears had been placed on the siding the day before, and left with the brakes set and the wheels securely blocked. They had remained stationary for 24 hours, and conoededly could not have moved without the releasing of the brakes and the removal of the blocks. By whom this was done was unknown. Held, that defendant was not chargeable with negligence because it had not equipped the siding with a derailing switch as an additional safeguard, and under the evidence was not negligent nor liable for the death.</p> <p>[Ed. Note.' — For other cases, see Master and Servant, Cent. Dig. §§ 218-223; Dec. Dig. § 112.*]</p>

Suit in admiralty b3r Luther P. Graves, as owner of the schooner barge Annabell Wilson, against the steam tug S. M. Fisher and Car Ferry No. 1, the Lake Michigan Car Ferry Transportation Company, claimant, and cross-libel against The Wilson. Decree against The Wilson alone, and libelant appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by Willis U. Watkins, administrator with the will annexed of Elizabeth S. Eaton, deceased, against Hervey E. Eaton, as executor of the last will and testament and of the codicil and memorandum thereto attached of Elizabeth S. Eaton, deceased. Decree (173 Fed. 133) for defendant, and complainant appeals.</p>

<p>1. Courts (§ 311*) — Jurisdiction of Federal Courts — Matters of Probate.</p> <p>A federal court has jurisdiction of a suit by a legatee, who is a citizen of another state, against an executor to establish and enforce rights under the will.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. § 858; Dec. Dig. § 311.*</p> <p>Probate jurisdiction, see note to Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 276.]</p> <p>2. Wills (§ 2*) — Testamentary Capacity — What Law Governs — Federal Courts.</p> <p>Under the settled rule that the status of capacity of a testator to dispose of his personal property is to be determined by the law of his domicile, where the probate court having jurisdiction at the place of domicile of a testatrix in Michigan admitted her will to probate but rejected a codicil on the ground of want of testamentary capacity when it was executed, such decision, unappealed from, governs in a suit in a federal court in New York, brought by a legatee against an executor appointed in that state, where most of the property was situated, to establish rights under the will, notwithstanding a contrary decision by the probate court in New York, which admitted the codicil to probate.</p> <p>[Ed. Note. — Eor other eases, see Wills, Cent. Dig. § 2; Dec. Dig. § 2.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Action at law by the Pan-American Bridge Company against the Second National Bank of Cincinnati, Ohio. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action at law by Henry Fullmer and Susan Fullmer against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. "Deeds ,(§.-J23*) — Construction—“Interest in Lands.”</p> <p>The natural, and ordinary meaning of the phrase “interest in lands” includes the entire right held in them, and, .as used in an instrument conveying the. grantor’s interest without qualification, it operates to convey all the fights 0"f the grantor. ■</p> <p>[Ed. Note. — For other eases, see Deeds, Dec. Dig. § 123.’i</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3692-3709; vol. 8, p. 7691.]</p> <p>2. Deeds (§ 97*) — Construction — Interest Conveyed — Conflicting Provi'..'.-SIONS.-</p> <p>The settled rule of construction in Alabama, as in many other jurisdictions, is that, in case of repugnancy between the granting clause and other parts of a deed, the former will prevail and determine the interest conveyed.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 270; Dec. Dig. § 97.*] " - ...</p> <p>3. Courts (§ 367*) — Federal Courts — State Laws as Hules of Decision— Constructions of Deeds.</p> <p>In construing a deed to real estate, a federal court will follow the settled law of tlie state in which the property is situated.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § !)5i); Dec. Dig. § 367.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, in 11 C. C. A. 71 ; Hill v. Hite, in 2!) O. C. A. 553.1</p> <p>4. Deeds (§ 124*) — Construction — Interest Conveyed — “Iafe Estate and Interest.”</p> <p>A deed recited that the grantor as survivor of Ms deceased wife had a life estate in certain described real estate which was a part of her statutory separate estate, and that he had agreed to sell the grantee his “life estate and interest” therein. By the granting clause he conveyed to the grantee “and to Ms heirs and assigns forever, all the right, title, interest, estate, possession, claim and demand whatsoever, as well in law as in equity” which he had.in-the property, and the habendum was to have and to hold his “life .estate and interest . * * *, and no more, unto said party of the second part Ms heirs and assigns forever.” In fact, the property was part of the equitable separate estate of Ms wife, and, under the law of the state, a prior conveyance from her to him was effective to convey to Mm the title in fee simple. Held, that, under the rule of decision in Alabama that the granting clause prevails over the recitals or habendum clause of a deed in case of conflict as to the estate conveyed, such deed conveyed the title in fee simple. .</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 344-355, 416-428, 434, 435; Dec. Dig. § 124.*]</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>Chattel Mortgages (§ 194*) — 'Withholding Chattel Mortgage from Record.</p> <p>A chattel mortgage given by a bankrupt on his stock of merchandise and withheld from record for several months by the mortgagee under a tacit agreement to do so because of the effect which the record would have on the mortgagor’s credit is fraudulent and void both as to prior and subsequent creditors.</p> <p>Did. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 426, 427: Dec. Dig. § 394.*]</p>

<p>Bankruptcy (§ 318*) — Provable Debts — Covenant for Indemnity Against Loss of Kent — “Fixed Liability.”</p> <p>A provision in a lease that, in case the lessee shall be petitioned into bankruptcy or declared a bankrupt, the lessor may re-enter and terminate the lease, and that in "such case the lessee shall pay to the lessor “as damages a sum which at the time of such termination * * * represents the difference between the rental value of the premises and the rent * * * herein named for the residue of the term,” does not create a liability which can be proved as a claim against the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig) § 318.*] ' •</p>

<p>Collision (§ 154*) — Suits tor Damages — Costs.</p> <p>Where a libelant in a suit for collision against a vessel recovered, and the charterer, brought in by the ship, ivas also dismissed as not liable, both libelant and charterer are entitled to costs and disbursements against the ship.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 308; Dec. Dig. I 154.*]</p>

<p>Master and Servant (§ 100*) — Master’s Liability for Injury to Servant —Negligence.</p> <p>An employe in the engineering department of the city of Philadelphia, while standing on the elevated track of a railroad sketching a semaphore, saw a train approaching, and instead of going upon a platform, which was beside the track, stepped from the track alongside a picket fence between the two tracks, and was struck and killed by the train. There was a platform on each side of the tracks, beside one of which the semaphore stood. It did not appear that the sketch could not have been made from either platform. Held, that there was no evidence to charge the city with negligence which would render it liable for his death.</p> <p>[Ed. Note. — For other cases, see Blaster and Servant, Dec. Dig. § 100.*]</p>

Suit in equity by the General Electric Company against the Duncan Electric Manufacturing Company. Decree for defendant, and complainant appeals. The appellant, General Electric Company, as owner of loiters parent No. 789,433, sties the appellee for alleged infringement thereof, and this appeal is from a decree dismissing its bill for want of equity.

Suit in equity by the General Electric Company against the Winona Interurban Railway Company and the Allis-Chalmers Company. Decree for defendants, and complainant appeals. The General Electric Company appeals from a decree dismissing for want of equity its bill charging the appellees with infringement of letters patent No. 600,228. owned by the appellant-complainant.

Suit in equity by the General Electric Company against the Duncan Electric Manufacturing Company, M. E. Holmes, and Thomas Duncan. Decree for defendants, and' complainant appeals. The appeal is from a Anal decree in the court below, dismissing appellant's hill for the infringement of letters patent No. 561,711, issued June 9th, 1896, to Ralph O. Hood, Cor an Electric Metes', and assigned to appellant September. 11, 1897.

<p>Patents (§ 328*) — Invention—Corrugated Sheet Metal Culvert.</p> <p>The Watson patent, No. 559,642, for a corrugated sheet metal culvert, is not so clearly void on its face for lack of invention as to warrant its being so declared on demurrer to a bill for its infringement.</p>

In Equity. Suit by the United States against the Reading Company and others. Decree granting the relief prayed for in part, and for defendants in part.

<p>In the matter of the Southern Steel Company, bankrupt. On motion for leave to liquidate claim.</p>

In the matter of bankruptcy proceedings of J. A. Richards. On motion to show cause why the bankrupt should not be committed for contempt in refusing to turn over to a trustee money alleged to have been withheld. Order allowed, and bankrupt committed. On June 13, 1910, J. A. Richards was adjudged a bankrupt in this court. On July 6, 1910, and on subsequent dates up to and including August 17, 1910. an examination of the bankrupt was had; ho being represented by counsel.

<p>In Admiralty. Action by the United States against the power boat Stella B.</p>

At Law. Action by the Stiff el & Freeman Company against the American Ferrofix Brazing Company. On motions by defendant for new trial and for judgment notwithstanding the verdict.

<p>Shipping (§ 1S4*) — Demurrage—■.Liability op Charterer — Evidence.</p> <p>A charterer held on the evidence not liable for demurrage because of delay in discharging beyond the lay days fixed by the charter, where it was the duty of the ship to discharge, and it appeared that the charterer supplied facilities for receiving cargo from botli hatches, hut that the stevedore employed by the master refused to discharge from both because he was paid by the ton and could discharge from one hatch only with less expense to himself.</p> <p>[Eel. Note. — For other cases, see Shipping, Cent. Dig. § 590; Dec. Dig. § ISA*]</p>

<p>1. Bankruptcy (§ 159*) — “Preference” — General Nature — “Creditor” — “Debt.”</p> <p>Nothing is within the purview of the provisions of Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 (TJ. S. Comp. St. 1901, p. 3418), relating to preferences except with reference to debts which may be proved for a dividend, but, on tbe other hand, anything which may be proved is within the' purview of such provisions.</p> <p>[Ed. Note.' — For other cases, see Bankruptcy, Dec. Dig. § 159.*</p> <p>For other definitions, see Words and Phrases, vol. G. pp. 5498-5499 ; vol. 8, p. 7709; vol. 2, pp. 1SG4-18SG; vol. 8, p. 7028; vol. 2, pp. 1713-1727; vol. 8, pp. 7622-7G23J</p> <p>2 Bankruptcy (§ 318*) — Provable Claims — Implied Contracts.</p> <p>Independently of his bond, there is an obligation resting on a defaulting testamentary trustee to restore the value of the assets embezzled, which is of a contractual character, and affords a basis for proof of a claim against his estate in bankruptcy therefor by his successor in the trust; the court not following the English practice in this particular.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 318.*)</p> <p>3. Bankruptcy (§ 163*} — “Preference”—Restoration of Embezzled Trust Fund.</p> <p>A bankrupt was testamentary trustee of a number of estates from all of which he had embezzled funds. While insolvent, at the instance of the surety on one of his bonds, he deposited the remaining securities in his hands belonging to the estate with others to make up his shortage, and the same passed into the hands of his successor in the trust after his bankruptcy. Helds 1liat in equity the trustee occupies always a double capacity, so that as an individual he might theoretically be a debtor to himself as a trustee.- and prefer himself as such; that, while there is no contract liability so long as there is no default, a contract liability arises on the default; and that consequently the transfer of such substituted securities constituted a preference, and they were recoverable by his trustee under Bankr. Act July 1, 1898, e. 541, § (job, 30 .Stat. 502 (IT. S. Comp. St. 1901, p. 3445).</p> <p>[Ed. Note. — .For other cases, see Bankruptcy, Dec. Dig. § 103.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action at law by John J. Donovan, administrator, against the Greenfield & Turner’s Falls Street Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Suit in equity by the St. Louis & San Francisco Railroad Company against the City of Memphis and George T. O’Haver, its Chief of Police. Decree for complainant, and defendants appeal.</p>

Action at law by Michael Hudak, in his. own right and as father and next friend of John Hudak, a minor, against the Pittsburgh & Baltimore Coal Company. Judgment for plaintiff, and defendant brings error.

Action at law by Henry E. Meeker, as surviving partner, etc., against the Ueliigh Valley Railroad Company. Judgment (175 Fed. 820) for defendant, and plaintiff brings error. Writ of error 1o review a final judgment of the Circuit Court, Southern District of New York, sustaining a demurrer to, and dismissing, an amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

<p>1. Gas (§ 18*) — Injuries prom Escape or Explosion op Gas — Care Required op Gas Company.</p> <p>A gas company, which through its pipes supplies gas to a house and has control of the apparatus for cutting it off, when notified that gas is escaping in the house and informed of injury and danger to the inmates therefrom, owes a duty to the occupants of the house to exercise reasonable diligence in shutting off the gas therefrom, and it is immaterial that the pipes where the leak occurred were owned by the owner of the house.</p> <p>[Ed. Note. — For other cases, see Gas, Dec. Dig. § 18.*]</p> <p>2. Negligence (§ 61*)- — Proximate Cause op Injury — Concurrent Causes.</p> <p>Where the negligence of two persons co-operates to produce an injury, both are liable, and inquiry as to the proximate cause is not pertinent.</p> <p>[Ed. Note. — For other eases, see Negligence, ’Cent. Dig. §§ 74, 75; Dec. Dig. § 61.*]</p> <p>3. Gas (§ 18*) — Gas Companies — Liability por Negligence.</p> <p>Plaintiff was injured by an explosion of gas in the house where she occupied a room. Early in the morning it was discovered that gas was escaping, and one occupant of the house became asphyxiated and was sent to a hospital. The owner of the house, being unable to shut off the gas from th'e building, between 8 and 9 o’clock, telephoned defendant gas company, which supplied the gas, stating the facts and asking that some one be sent at once, which was promised, but no one came until 2 o’clock in the afternoon. In the meantime, about noon, the owner, in attempting to find the leak, lighted a match, which caused the explosion of gas accumulated inside of a partition where there was a defect in a pipe which caused the leak. Held that, whether or not the owner was negligent, the negligence of defendant in failing to act with reasonable promptness, when notified of the dangerous condition of the premises, tvas one of the causes of plaintiff’s injury, and that it was liable therefor.</p> <p>[Ed. Note. — For other cases, see Gas, Dec. Dig. § 18.*]</p> <p>4. Negligence (§ 59*) — Efficient Cause of Injury — Liability for Unforeseen Results.</p> <p>If a tiring done produces immediate danger of injury to others, it is not necessary that the author of it should have in mind all the particular resuhs which might happen from the presence of the danger to render him liable for such result.</p> <p>! Ed. Note. — For other cases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.*]</p>

Petition for Revision of Proceedings of the District Court of the Fourth Judicial District of the Territory of Arizona. In the matter of the American Copper Company, bankrupt. Petition to revise an order of the District Court. On June 7, 1909, the petitioners presented in this court their petition to revise in matter of law proceedings of the territorial district court of Arizona in bankruptcy.

<p>Railroads (§ 327*) — Injury to Person on Track — Contributory Negligence.</p> <p>Where a plaintiff, who was struck and injured by a railway train while walking diagonally across the track in the daytime át a place with which he was fully acquainted, by his own statement did not look for a train after he reached a point 15 feet from the track, he was chargeable with negligence which precludes his recovery from the company.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent Dig. §§ 1043-1056; Dec. Dig. § 327.*]</p>

Suit in admiralty by John Kramer and Lewis Kramer, copartners as John Kramer & Sons, against the steam barge O. H. Vessels. Decree (177 Fed. 589) for libelants, and respondent appeals.

<p>Bankruptcy (§ 166*) — Voidable Preference — Knowledge of Intention by Creditor.</p> <p>A preferential payment of notes by bankrupts cannot be recovered from an accommodation indorser of such notes under Bankruptcy Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), where there is no evidence to show that such indorser advised, or procured the payment, or even that he had knowledge of it until after it had been made.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 166.*]</p>

Proceeding by the United States for the condemnation of food products as adulterated; R. G. Charles, claimant. Decree of condemnation, and claimant brings error.

Suit in equity by the.Expanded Metal Company and others against Eugene S. llradford and others. Appeal by the Fidelity & Deposit Company of Maryland from a judment (177 Fed. 604) against it for costs.

Suit in admiralty by W. S. Brainard, as owner of the schooner barge Chippewa, against the steamer George W. Peavey. Decree for respondent (173 Fed. 715), and libelant appeals.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Action at law by C. C. Prater against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>At Daw. Action by Mrs. Dora E. Mayer and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Action at law by J. S. Williams against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Action at law by B. F. Childress against J; N. Winters and another. Judgment for plaintiff, and defendants bring error.</p> <p>Affirmed.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action at law by George Miller, by his father and next friend, Adam Miller, and Adam Miller, against the Imperial Woolen Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Action at law by Samuel Crowley against the First National Bank of Canyon, Tex. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Texas.</p> <p>Action by the United States against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for the United States, and defendant-brings error.</p>

Suit in equity by the Victor Talking Machine Company and the United States Gramaphone Company against the American Graphophone Company. From an order (178 Fed. 577) imposing a fine for contempt, defendant appeals.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by Greenwald Bros., Incorporated, against William S. Enochs and Lawrence W. Marks, trading as .Paul, Enochs & Co. Decree (180 Fed. 478) for defendants, and complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by McClellan Stillwell, doing business as the Economy Culvert Company, against Frank McPherson, as Highway Commissioner, etc. Decree (172 Fed. 151) for defendant, and complainant appeals.</p>

<p>Action by the Jefferson Fire Insurance Company against Bierce & Sage, Incorporated.</p>

In Equity. Suit by Emil Tyden against Sam Rosenbaum and David Birkenstein, copartners as S. Rosenbaum & Co., and John L. Arnold, doing business under the name and style of the Arnold Specialty Company. On final hearing.

<p>In Equity. Suit by the Standard Typewriter Company against the Standard Folding Typewriter Sales Company and others. On motion to punish defendants for contempt.</p>

<p>Trade-Marks and Trade-Names (§ 39*) — Use to Designate Patented Artioms — Assignment as Incident to License Under Patent — Reversion,</p> <p>A patentee, who has adopted and registered a trade-mark, which he uses to designate the patented article, may assign the right to nse such trade-mark as an incident to a license to make and sell the patented article, without losing his rights therein, and, on termination of the license, is reinvested with full title to the trade-mark, with the right to protection against its continued use by the licensee.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 44; Dee. Dig. § 39.*]</p>

<p>1. Navigable Waters (§ 2*)- — Waters Subject to Jurisdiction op United States — Removal of Obstructions.</p> <p>The constitutional jurisdiction of the United States to legislate over navigable waters applies to the entire body of water where the tide ebbs and flows, over which water, or through the channels of which, interstate or foreign commerce might ordinarily or reasonably be transacted, or which is subject to the admiralty jurisdiction; and the power oí the War Department over obstructions to such waters, conferred by Act March 3, 1899, c. 425, 30 Stat. 1151 (U. S. Comp. St. 1901, p. 3540), is coextensive with such general jurisdiction.</p> <p>[Ed. Note — For other cases, see Navigable Waters, Cent Dig. §§ 2, 03; Dec. Dig. § 2.*</p> <p>Obstruction — jurisdiction of federal courts, see note to 11 C. C. A. 318.]</p> <p>2. Navigable Waters (§ 1*) — “Navigable Water” of United States Defined.</p> <p>A stream running into the sea, and in which the tide ébbs and flows, is “navigable water,” and subject to the jurisdiction of the United States as far up as it is actually navigable for the purposes of interstate and foreign commerce.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 5-10; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4684.]</p> <p>3. Canals (§ 23*) — Waters Subject to Jurisdiction of United States.</p> <p>A canal built and operated by private persons for commercial purposes, or used for the passage of boats, for which a fee is charged, is subject to the admiralty jurisdiction of the United States so long as its navigable character is maintained, and, under the statute, cannot be obstructed except by consent of the United States.</p> <p>LEd. Note. — For other cases, see Canals, Dec. Dig. § 23.*]</p> <p>4. Navigable Waters (§ 20*) — Obstruction bt Bridge — Suit for Injunction.</p> <p>Where a private canal constructed and used as a cut-off to take the place commercially of the tortuous channel of a navigable stream has been abandoned, and its uses for such purpose entirely destroyed by the owner of the rights therein, the rights of the public revert to the original channel of the stream, and under Act March 3, 1S99, c. 425, 30 Stat. 3351 (IT. S. Comp. St 1901, p. 3540), the United States may maintain a suit to enjoin the obstruction of such channel by a bridge.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dec. Dig. § 20.*]</p>

<p>In the matter of the Times Publishing Company, bankrupt. On review of decision of referee.</p>

<p>1. Bailment (§ 18*) — Artisan’s Lien — Extent.</p> <p>Where an artisan received skins from a bankrupt to be worked up into garments, he was entitled to hold the residue of any given lot of skins for the whole sum due for work on all of that particular lot, but had no general' lien.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 77-84; Dee. Dig. § 18.*]</p> <p>2. Payment (§ 39*) — Application of Payments — Deduction.</p> <p>The rule for applying payments to earliest debts is merely one of presumption; and, in the absence of agreement to the contrary, the credit- or may apply the payment as he desires.</p> <p>[Ed. Note. — For other eases, see Payment, Cent. Dig. §§ 104r-114; Dec. Dig. § 39.*]</p> <p>3. Bailment (§ 18*) — Artisan’s Liens — Scope.</p> <p>Petitioner had received several allotments of skins from a bankrupt at different times to work into garments. The custom was to pay him on Tuesday for all work done the preceding week, and he to make delivery of finished garments. On bankruptcy there was owing him on general account less than $1,000, which sum was also less than the value of the work done on the last lot of skins sent him 9 days before the petition was filed. On that day he held garments made of 105 skins, of which not half were from the last lot delivered him, and the rest he had withheld from former lots. Held that, since the balance due did not in any case extend beyond the balance due on the lot retained, the lien was good to the extent of the whole balance.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 77-84; Dec. Dig. § 18.*]</p>

At Law. Action by James W. Boaler, by his next friend and father, James M. Boaler, and by James M. Boaler, against Charles Henry Jones and another, as receivers of the Southwestern Street Railway Company. Verdict for defendants, and plaintiffs move for a new trial.

<p>At Raw. Action by William C. White against the Pennsylvania Railroad Company. On motion by plaintiff for new trial.</p>

In Equity. Suit by Edwin Gearlds and others against W. E. Johnson and others to .restrain the enforcement, of Chippewa Indian Treaty Feb. 22, 1855, art. 7,10 Stat. 1165, prohibiting the introduction of intoxicating liquors into the Indian country within the entire boundaries of the country ceded by the treaty to the United States until otherwise provided by Congress. On demurrer to the bill.

<p>Criminal Law (§ 762*) — Instructions — Expression of Opinion on the Facts.</p> <p>It is the settled law that it is witbin the right of á federal judge to state his opinion on the facts to the jury in a criminal or civil case, with proper explanation that it has no binding effect; and it is proper for him to do so, giving his reasons therefor, where he has a decided opinion, and in his judgment the case is such that it will be helpful to the jury. Where he does so, it is the preferable practice to give his opinion after the case has been argued by counsel, rather than with the instructions on the law preceding the argument, and it is not objectionable, and sometimes preferable, to defer such statement until after the jury have considered the case, and give it only in case of their inability to agree.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1750, 1754, 1758, 1759, 1769; Dee. Dig. § 762.*]</p>

<p>In Equity. Suit by the Interurban Land Company against Cora W. Crawford. Decree determining the respective interests of the parties in certain land.</p>

<p>In Equity. Suit by the American Surety Company of New York against Ashton C. Shallenberger, Governor, William T. Thompson,</p>

<p>1. Food (§ 16*) — Adulterating and Misbranding — Statutes—Construction —Seized in Transportation.</p> <p>Where sugar alleged to have been adulterated and misbranded was not seized while in transportation, it was not subject to forfeiture under the clause of Pure Food and Drugs Act (Act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 1909, p. 1193]) § 10, declaring that any article of food adulterated or misbranded, which is being transported from one state, territory, district, or insular possession to another for sale, shall be liable to seizure, condemnation, etc.</p> <p>[Ed. Note. — For other cases, see Food, Dee. Dig. § 16.*]</p> <p>2. Food (§ 16*) — Adulteration—Seizure—Statutes—Construction—“Transported.”</p> <p>Pure Food and Drugs Act (Act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 3909, p. 1193J) § 10, provides, in the alternative, that any article of food adulterated or misbranded within the meaning of the act which, having been transported, remains unloaded, unsold, or in original packages, shall be liable to be proceeded against by libel for condemnation, field, that the words “having been transported” contemplate a transportation in interstate commerce, and not from one point in'a given state, territory, district, or insular possession to anoth- • er point in the same state, territory, district or possession.</p> <p>[Ed. Note. — For other cases, see Food, Dee. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7075-7076.]</p> <p>3. Food (§ 16*) — Adulterated Foods — Condemnation—Dibel—Sale.</p> <p>Pure Food and Drugs Act (Act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 1909, p. 1193]) § 10, provides that any article of food that is adulterated or misbranded within the meaning of the act, and is being transported from one state, territory, district, or insular possession to another “for sale,” shall be subject to forfeiture, and that any article of food that is adulterated or misbranded, having been transported and remaining unloaded, unsold, or in the original unbroken packages, shall be liable to be proceeded against in like manner. Held, that a libel for forfeiture of certain bags of sugar under the latter subdivision of such section, failing to charge that the sugar seized had been transported “for sale,” was fatally defective.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 16.*]</p> <p>4. Food (§ 16*) — Forfeiture—Action to Enforce — Party in Interest — Intervention— Objection — Time.</p> <p>Where on a libel by the government to enforce a forfeiture of certain sugar, for violation of the pure food and drugs act (Act June 30, 1906, c. 3915, 34 Stat. 768 [IJ. S. Comp. St. Supp. 3909, p. 1187]), the court permitted the G. Company to interplead or file a brief, and thereafter permitted the withdrawal of the answer and filing of exceptions, to which the district attorney assented, he could not thereafter object to the G.</p> <p>Company’s right to interplead and file a brief in the case, unless further evidence was offered that it was a party in interest, or the bona fide owner of the sugar seized.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 16.*]</p>

<p>1. Coupon\tions (| (5(51*) — Foreign Corporations--Contracts — Enforcement.</p> <p>In an action by a foreign corporation in Pennsylvania on a contract made and ro be performed in Alabama, it was not material that plaintiff was not ¡mHioi-i/ed to do business in Pennsylvania, because of a failure to comply with Pennsylvania foreign corporations act (Act April 22, 1874 [P. L. 1081).</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2.1:!!)-2546; Doe. Dig. § 601.*]</p> <p>2. Interest (§ 28*) — Rate Recoverable--AViiat Law Governs.</p> <p>Where interest is given for breach of contract, the rate recoverable in general depends on the law of the place of performance, irrespective of '¡he laV of’the place where the contract was made, or the jurisdiction in which suit is brought.</p> <p>¡Ed. Note. — For oilier cases, see interest, Cent. Dig. §§ 55-39; Dec. Dig. S 28.*]</p> <p>g. Sales (§ .178*)— Contracts — Breach—Pi.eading—Affidavit op Defense. '</p> <p>Where, in an action for breach of a contract for the sale of iron, an affidavit of defense alleged that plaintiff, after a partial delivery had boon made under the contract., stated it would not deliver any more iron under the contract, such statement was a sufficient allegation to support a conclusion that the contract had been rescinded.</p> <p>I Ed. Note. -For other cases, see Sales, Dec. Dig. § 378.*]</p>

In the matter of bankruptcy proceedings of Fred. A. Lausman. On petition for review of a referee’s order denying the application of the Computing Scale Company for a lien under a conditional sale.

In Equity. Bill by William Binney, Jr., and others, against the Cumberland Ely Copper Company and another, to set aside a sale of certain mining properties of the Ely Company to the Nevada Company. On demurrer to bill. Sustained, and bill dismissed, with costs, unless complainants amend within a specified time and simultaneously pay costs to the time of amendment.

<p>■ In the matter of bankruptcy proceedings of Julius Kronrot. On petition of Samuel Palley to set aside a sale of certain real estate belong-r ing to the bankrupt.</p>

<p>1. Bankruptcy (§ 11*) — Equity Jurisdiction of Courts of Bankruptcy— Tesis of Jurisdiction.</p> <p>Whatever equitable jurisdiction is conferred upon the District Court by Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 (XJ. S. Comp. St. 1901, p. 3418) and amendment (Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1909, p. 1308]), is confined to controversies relating to a bankrupt estate, and within this limited area whether or not a bill in equity may be maintained must be tested by the ordinary rules that govern bills before any other tribunal, and perhaps the most familiar test is to inquire whether the complainant has an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 11.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. O. A. 313.]</p> <p>2. Bankruptcy (§ 287*) — Remedy of Trustee —Jurisdiction—Adequate Remedy at Law.</p> <p>A bill in equity by a trustee in bankruptcy setting up three causes of action: One based on the alleged conversion by defendant to his own use of money intrusted to him by the bankrupt to pay notes of the bankrupt; another on the alleged theft or unlawful conversion of property of the bankrupt; and the third on the alleged sale of goods by the bankrupt to defendant with intent to defraud creditors and payment of the price to the bankrupt after his bankruptcy, but which does not allege that any of the money or property remained in defendant’s possession, does not state a cause cognizable in equity, complainant having an adeguate remedy by an action at law for a money judgment, embracing all of bis claims.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. §£ 444-447; Dec. Dig. § 287.*]</p>

At Law. Action by William P. Stock! .and Elizabeth M. Stock! against the City of Philadelphia. On motions by defendant for judgment non obstante veredicto and for a new trial.

<p>1. Reference (§ 99*) — Fin'bings—Review by Trial Court.</p> <p>Tbe rule that weight should be given to a referee’s findings by the trial court applies more particularly to cases where the findings are deduced from conflicting evidence, and depend on the credibility of witnesses, than to cases in which different inferences are to be drawn from the established facts.</p> <p>[Ed. Rote. — For other cases, see Reference, Cent. Dig. § 153; Dec. Dig. § 99.*]</p> <p>2. Bankruptcy (§ 340*) — Claims—Findings—Review.</p> <p>'Evidence held to require a finding that payments made by a claimant of a bankrupt corporation to the extent of $2,700, for advances made for its.benefit in the nature .of a loan was not a contribution to the corporation’s capital.</p> <p>[E“d. Note. — For other cases,' see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>3. Money Lent (§ 1*) — Time—Repayment.</p> <p>Where a claimant advanced money to a corporation to enable it to continue its business on agreement that it was not to be repaid until the company was on a working basis, such agreement only affected the time of maturity, and did not authorize the expunging of a claim for the amount advanced against the corporation’s estate in bankruptcy.</p> <p>[Ed. Note. — For other eases, see Money Lent, Cent. Dig. §§ 1-4; Dec. Dig. § 1.*] . •</p>

<p>Ill the matter of Charles E. Kinmiel, bankrupt. On petition by trustee for continuance of restraining order.</p>

At Law. Action by the Lautz Company against George A. Glenn, trading as George A. Glenn & Co. A verdict was returned for plaintiff, and defendant moved for a new trial.

<p>1. Bankruptcy (§ 400*) — Jurisdiction or Court — Exempt Property.</p> <p>While a court of bankruptcy is without power to administer the exempt property of a bankrupt, the exemption must be claimed and allowed, and under the law of Pennsylvania the specific property selected, before it is withdrawn from the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 671, 672; Dec. Dig. § 400.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 O. C. A. 313.]</p> <p>2. Bankruptcy (§ 399*) — Property Passing to Trustee — Abandonment op</p> <p>Claim to Exemption — Waivers in E'avor op Execution Creditor.</p> <p>At the time of the filing of a petition in bankruptcy, all of the property of the bankrupt, which was less in value than the amount of his exemption, was under levy by the sheriff on a debt in which he had waived his right to exemption. In his schedules he made an insufficient claim to his exemption' which he afterwards withdrew. Meld, that it was competent for him to abandon his claim to exemption, and the effect was to render the levy void and leave the property subject to administration in the bankruptcy proceeding for the benefit of all creditors.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 669; Dec. Dig. § 399.*]</p>

In Equity. Suit b)'- Oscar Hammerstein against Luisa Tetrazzini. On motion for preliminary injunction. Application for a preliminary injunction to restrain defendant, pending the determination of the suit, from appearing or singing, or advertising her performance as a performer or singer, in any opera, concert, or theatrical performance at any place within the United States for any person other than complainant during the operatic season of 1910-1911.

<p>1. Railroads (§ 830*) — Accidents at Crossings — Contributory Negligence —Effect of Maintaining Cates.</p> <p>A man driving a loaded wagon about to cross several parallel railroad tracks at a crossing where safety gates are located and in operation, and who has waited before a closed gate until a passing train has gone by. and for whom the gate has been lifted so that he may cross, does not still continue under the same absolute duty to look and listen as soon and as far as physical obstacles permit, which he would have borne if the crossing had been unguarded; but he discharges his legal duty if, under those circumstances, he uses his senses of sight and hearing for his protection as soon as, and as far as, a man of ordinary prudence would do under similar circumstances.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1071-1074: Dee. Dig. § 330.*]</p> <p>2. Railroads (§ 350*)--Action for Injury at Crossing — Contributory Negligence — Question for Jury.</p> <p>Evidence considered in an action against a railroad company to recover for an injury to plaintiff by being struck by an engine while driving a heavily loaded wagon over a crossing on defendant’s road after the gates had been lifted for him to pass, and held not to establish his contributory negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dee. Dig. § 350.*]</p> <p>3. Railroads (§'850*) — Accident at Crossing — Contributory Negligence.</p> <p>Where the plaintiff is urging a heavily loaded team across a railroad track, and in the presence of clear negligence by the railroad company, a conclusive legal presumption of contributory negligence should not he based on a safety margin of ten feet of distance or two seconds of time between the heads of his horses and the train, when plaintiff could first see the train.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 350.*]</p> <p>4. Trial (§ 207*) — Instructions—Furdose and Effect of Evidence.</p> <p>Where, on cross-examination of a witness for plaintiff, defendant’s counsel had him identify and admit his signature to a written statement previously signed by him, and it was then agreed between counsel for both parties and the court that the entire statement should go in as evidence, defendant was not thereafter entitled to an instruction that the jury should consider'the statement only as affecting the credibility of the witness.</p> <p>[Ed. Note. — For other eases, see Trial, Dee. Dig. § 207.*]</p>

<p>1. Divorce (§ 231*) — Alimony—Consent—Death op Husband.</p> <p>Since a wife’s right to support by her husband terminates with the husband’s death, the court, in divorce proceedings under the New York law, has no jurisdiction, in the absence of consent of parties, to impose a charge on the husband’s estate for his wife’s support after the husband’s death.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 65S; Dec. Dig. § 231.*] •</p> <p>2. Evidence (§ 43*)' — Judicial Notice — Divorce Proceedings.</p> <p>Courts will take judicial notice of the fact that it is not infrequent in divorce proceedings for the parties to agree on details of alimony to be allowed.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 62; Dec. Dig. § 4B.*]</p> <p>3. Divorce (§ 236*) — Alimony—Consent op Parties — Continuing Provisions op Separation Agreemen^Mortgage.</p> <p>A separation agreement between husband and wife entitled her to receive from him $250 a month during her life, if she should not marry until after her husband’s death. She sued for divorce, and obtained a decree, which continued the prior agreement, except for the substitution of a mortgage on different property for that previously executed to secure payment of the agreed amount, allowing the wife $3,000 per year during her natural life, irrespective of whether the husband lived or died. Held, that the decree would be regarded as having been made by consent of parties .ts far as Use alimony was concerned. and henee the wife was nor limited to support thereunder during the period of the husband’s life.</p> <p>[Ed. Xote. — For other cases, see Divorce, Cent. Dig. §§ 0(5(1. (KÍ7; Dec. Dig. § 230.*</p> <p>Separation agreements, see note to Daniels v. Benedict, 38 C. C. A. 608.]</p> <p>4. Vendor and Purchaser (§ 231*) — Bona Fide Purchasers — Notice from Record.</p> <p>Where a real estate mortgage, executed pursuant to a divorce decree to secure support for the wife, and expressly referring to the decree, was properly recorded, a purchaser of the properly was chargeable with whatever notice an inspection of the decree would have given, and was not a purchaser without notice.</p> <p>[Ed. Xote. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 573, 515; Doc. Dig. § 231.*]'</p>

In the matter of Dunn Brothers, E. J. Dunn and C. M. Dunn, bankrupts. Appeal by Oliver Orr, trustee, from an order of the District Court allowing the claim and sustaining a mortgage in favor of W. C. Park. Upon petition filed January 4, 1909, by certain of their creditors, Dunn Bros., a firm composed of E. J. and O. M. Dunn, engaged then in the business of general merchandise at Moleña, Ga., were adjudicated involuntary bankrupts on January 23, 1909.

<p>1. Courts (§ 325*) — Federal Courts — Jurisdiction—Waiver.</p> <p>An objection tcf federal jurisdiction on tbe ground that plaintiff, a subject of the emperor of Austria, could not maintain the action in the district where the suit was brought against defendant, a corporation of another state, involved a matter of personal privilege, which defendant -waived by appearing and answering to the merits.</p> <p>[Ed. Note. — F‘or other eases, see Courts, Cent. Dig. § 884; Dec. Dig. § 325.*]</p> <p>2. Master and Servant (§ 286*) — Death of Servant — Mine—Negligence-Question for Jury.</p> <p>In an action for death of a miner by the fall of material from the roof, owing to the alleged negligent taking out of certain props prepara- ' tory to removing a tramway, whether the props were taken out in accordance with the express directions of defendant’s mine foreman held for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 286.*]</p> <p>3. Master and Servant (§ 293*) — Death of Servant — Action—Instructions.</p> <p>■ In an action for death of a miner by the fall of a portion of the roof, due to the alleged negligent removal of certain props, there was evidence that the props were removed in the manner prescribed by defendant’s foreman, while he denied having directed that the props be so removed. The court in charging the jury reminded them that there was a sharp conflict of testimony on such issue, and that, unless they found by a fair preponderance of the evidence that the foreman was negligent, plaintiff could not recover, and that, if the action should be determined in plaintiff’s favor, it must be so determined because the foreman was negligent, either in failing to give proper instructions as to how the work should be done or in giving' faulty instructions. The court also reminded the jury that plaintiff’s witness had received injuries from the falling rock at the same time, and had brought suit against defendant therefor, and that the same person was still defendant’s foreman. He Id, that such instructions sufficiently presented to the jury the controverted issue as to the foreman’s instructions.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 293.*]</p> <p>4. Courts (§ 366*) — Federal Courts — Following State’s Decision.</p> <p>Since the sufficiency of a notice of injury to or death of an employe to a master preliminary to a suit required by the New York employer’s liability act (Consol. Laws, c. 81, art 14) depends on the construction to be given to that statute, the federal courts in determining such question will follow the construction of the statute .approved by the state court of last resort.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 957; Dec. Dig. | 366.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>6. Master and Servant (§ 252*) — death ot Servant — Employee's Liability Act — Notice.</p> <p>The New York employer’s liability act (Consol. Taws, c. 31, art. 14), provides that no action shall be maintained under the act for injuries to, or death of, a servant unless notice of the time, place, and cause of the injury is given to the employer. Held, that a notice under such act alleging a servant’s death, and that it occurred on the morning of August 13, 1909, in a chamber of defendant's mine, known as the “Big John room,” that while decedent in the discharge of his duties as a laborer in the mine was taking down props which supported the roof it suddenly caved in and buried him, and that the cause of the accident was the negligence of defendant’s superintendent in directing deceased to knock down props to enable another workman to shift the tramway or track, instead of directing the latter workman to remove the track in sections, was not defective because it also stated several additional alternative causes of the accident, to wit, that the roof was not properly supported and timbered; that there had not been the proper inspection; that the place was unsafe; that proper rules had not been promulgated; and that the superintendent and workmen were not competent, none of which additional causes plaintiff was successful in proving.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 252.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>Action by John E. Williams against the Proctor & Gamble Company. Judgment for plaintiff, and defendant brings error.</p>

<p>BASKRcncr (§ 72*) — Corporations Subject to Act — Public Service Corporations.</p> <p>Bankr. Act July 1, 1898, c. 541, § 4, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), as amended by Act Feb. 5, 1908, c. 487, § 3, 32 Stat. 797 (U. S. Comp. St. Supp. 1009, p. 1809), does not include in the classes of corporations thereby made subject to the act public utility corporations, such as gas and electric companies principally engaged in supplying means for lighting in cities and other communities.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 72.*</p> <p>What persons are subject to bankruptcy Jaw, seo note to Mattoon Nat. Bank v. First Nat. Bank of Mattoon; 42 C. C. A. 4.]</p>

<p>1. Monopolies (§ 28*) — Federal Anti-Trust Act — Action fob Damages— Injury to Corporation — Bight of Stockholder to Sue.</p> <p>Sherman Anti-Trust Act July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), which provides that “any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any Circuit Court of the United States * * * and shall recover threefold the damages by him sustained,” does not give a right of action to a stockholder or creditor of a corporation by reason of a combination or conspiracy alleged to have been in violation of the act and to have caused the bankruptcy of the corporation resulting in the loss of plaintiff’s stock or debt; the right of action in such case being in tbe corporation or its trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dee. Dig. § 28.*]</p> <p>2. Pleading (§ 889*) — Withdrawal of Plea to File Demurrer — Discretion of Court.</p> <p>It is within the discretion of a federal court to permit a defendant to withdraw a plea and file a demurrer on such terms as to costs as it deems just.</p> <p>[I®. Note. — For other cases, see Pleading, Cent. Dig. § 1088; Dec. Dig. § 889.*]</p> <p>3. Pleading (§ 236*) — Amended Pleadings — Discretion of Court.</p> <p>Granting or refusing leave to a plaintiff to file an amended statement of claim rests in the sound discretion of the court, and, where the application is to file an amended statement containing different counts as an entirety, the court may properly pass on it as an entirety.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 236.*}</p>

<p>1. Appeal and Error (S 846*) — Presentation or Reservation op Grounds op Review — Action Tried to Court.</p> <p>In an action at law in a federal court, tried to the court without a jury by stipulation, where the court made a finding of facts, but omitted to state its conclusions of law thereon, a motion by plaintiff that the court instruct itself as a jury to find the issues for plaintiff, and exceptions to the overruling of such motion, and to a finding of the issues for defendant. while irregular, was sufficient, to present the issues of law arising on the facts found for review by the appellate court.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 3347-3362; Dec. Dig.. § 846.*]</p> <p>2. Internal Revenue (§ 8*) — War Revenue Act — Legacy Taxes.</p> <p>Where on the death of the owner, title to his personal property passed to others under a prior instrument creating a joint tenancy therein, such tille was not limited by a recital in tbe instrument of a purpose to devote the property to charitable uses, not made binding on the transferee, so as to bring the transfer within the proviso to section 29 of the War Revenue Act of June 13, 1898, e. 448, 30 Stat. 404 (U. S. Comp. St. 1901, p. 2307), which excepts from the property thereby taxed “bequests or legacies for uses of a * * * charitable * * * character.”</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 11, 12; Dec. Dig. § 8.*]</p> <p>3. Internal Revenue (§ 8*) — War Revenue Act — Legacy Taxes.</p> <p>Under a written instrument creating a joint tenancy in personal property to be held share and share alike, the share of one dying to vest in the survivors, each held title to his own proportionate share until his death, and on that event the title to such share vested in his cotenants, and where such a death occurred while section 29, of the War Revenue Act of June 13, 1898, c. 448, 30 Stat. 464 (U. S. Comp. St. 1901, p. 2307), was in force, the property transferred became subject to the legacy tax thereby imposed.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 11, 12; Dec. Dig. § 8.*]</p>

Petition to Superintend and Revise, in Matter of Law, Proceedings in the District Court of the United States for the Northern District of West Virginia, at Parkersburg, in Bankruptcy. . In the matter of the Klletson Company, bankrupt. Proceedings by the Ritchie County Bank and others against R. L. McFarland, trustee in bankruptcy of the Elletson Company, and another, to establish priority under a certain deed of trust.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg, in Bankruptcy.</p> <p>In the matter of the Elletson Company, bankrupt. Proceedings by the Ritchie County Bank and others against R. D. McFarland, trustee in bankruptcy of the Elletson Company, and others. From a decree in favor of defendants (174 Fed. 859), the bank and others appeal.</p>

<p>1. Post Office (§ 1*) — Use of Mail — Constitutional Dibekty.</p> <p>The unrestricted use of the mails is not one of the fundamental rights guaranteed by the Constitution.</p> <p>LEd. Note. — For other cases, see Post Office, Dee. Dig. § 1.*]</p> <p>2. Post Office (§ 1*) — Postal System — Regulation.</p> <p>Under the power of Congress to regulate the entire postal system of the country, it may prescribe what shall be carried in the mails and what shall be excluded. It may also prescribe the size, weight, shape, and character of the contents of every mailable package, limit the superscription, and declare a violation of its regulations a public offense, and fix punishment therefor.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 1; Dec. Dig. § l.*J</p> <p>3. Constitutional Law (§ 90*) — Freedom of Speech — Use of Mails.</p> <p>Act Cong. Sept. 26, 1888, c. 1039. 25 Stat. 496 (U. S. Comp. St. 1901, p. 2661), forbidding deposit in the mails of anything upon the exposed surface of which appears language scurrilous, defamatory, threatening, or calculated and obviously intended to reflect injuriously on the character or conduct of others, is not objectionable as denying or abridging freedom of speech.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Dec. Dig. § 90.*]</p> <p>4. Constitutional Law (§ 90*) — ■“Freedom of Speech” — “Liberty of Speech.”</p> <p>Liberty and freedom of speech guaranteed by the Constitution does not mean the unrestricted right to do and say what one pleases at all times and under all circumstances.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Dec. Dig. § 90.* For other definitions, see Words and Phrases, vol. 5, pp. 4131-4133.]</p> <p>5. Post Office (§ 33*) — Nonmailable Matters — Imputation Against Character.</p> <p>Where accused deposited in the post office a stamped envelope, on the face of W’hich was printed in large red letters, “$1,000 Reward will be paid to any person w'ho kidnaps Ex. Gov. Taylor and returns him to Kentucky authorities,” such deposit constituted a violation of Act Cong. Sept. 26, 1888, c. 1039. 25 Stat. 496 (U. S. Comp. St. Supp. 3901, p. 2663), making it an offense for any person to mail an envelope on the outside of which is printed any scurrilous, defamatory, or threatening language calculated and obviously intended to reflect injuriously on the character or conduct of another.</p> <p>[Ed. Note. — For other cases, see Post Office. Cent. Dig. § 53; Dec. Dig. § 33.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79.]</p> <p>6. Exceptions, Bill of (§ 56*) — Settlement—Certificate.</p> <p>Where a purported bill of exceptions in the record is not authenticated by the certificate of the trial judge, the proceedings at the trial are not, open to review.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 94-96; Dec. Dig. § 56.*]</p> <p>7. Post Office (§ 33*) — Regulations—Violation—Nonmailable Matters— Intent.</p> <p>In a prosecution for sending nonmailable matter through the mail, in violation of Act, Cong. Sept. 26, 1888, c. 1039, 25 Stat. 496 (U. S. Comp. St. 1901, p. 2661), it is not, matei'ial whether the objectionable language is true or false, or whether accused was actuated by public spirit or private malice.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 53; Dec. Dig. § 33.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action at law by Blanche Russell, administratrix of the estate of Harry Russell, deceased, against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>Writ of error to review a judgment in favor of the plaintiff in an action to recover damages for injuries resulting in the death of the plaintiff’s intestate, Harry Bussell, while employed by the defendant railroad company. There was evidence in the case sufficient to warrant the jury in finding the following facts which are especially relevant to the questions considered In the opinion:</p> <p>The defendant railroad company is engaged in interstate commerce and owns a railroad extending from Port Jervis, N. Y., to Newburgh, N. Y., and also running into other states. Port Jervis is two or three miles east of the state line between New York and Pennsylvania. The defendant operates a local freight train between Newburgh and Port Jervis which, when running westerly, carries freight to stations on the road and picks up freight going to all points west, including points in other states. On the easterly trip western freight is carried to local points, and local freight is picked up for eastern points. On the afternoon of June 21, 1.907. the car in question in this case was brought into Port Jervis in this train billed to the repair shops there. It had a defective coupler, the knuckle being gone. It was empty, and had been picked up at Grey court, a station between Port Jervis and Newburgh. This train on said day carried freight going west of Port Jervis and to different states, and one of the ears bore the initials of the Boston & Maine Railroad. There was another car in the train which was also in a crippled condition. The train, including the crippled ears, was left standing on a switch.in the Port Jervis freight yard. Bussell, the plaintiff’s intestate, was one of the night switching crew in the yard. On this afternoon this crew had begun work drilling out and switching the cars from the different trains which had come into the yard from east and west. Before supper three cars had been placed on the No. 6 switch in the yard and left standing there. This switch had a slight grade. After supper the switching crew continued work and after some time ran the ear in question attached to other ears upon said No. 6 switch. The intention of the switching crew was to repair the defective coupler and after repairing it to couple the train containing this car to the three cars aforesaid which had previously been left upon the switch. In backing up the train this car came in contact with the other three cars but was subsequently pulled away from them some five or six feet. The switching crew then started to look for a knuckle with which to repair the defective coupler. Knuckles were kept in various places in the yard, and the switch-men were accustomed to replace those found missing. Bussell, the plaintiff’s intestate, was the first to find one, and he went in between the cars and attempted to adjust it in the coupling apparatus, but the pin would not fit and one of the other men went to look for another pin. Bussell was holding the knuckle in place with his back to said three standing cars when, without any apparent cause, they moved silently down and caught and crushed him, inflicting the injuries from which he died. The car in question was taken the next day on the easterly trip of said local freight train and hauled to Goshen, N. Y.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action at law by the United States, for the use of the Gibson Lumber Company, against L- E. Boomer and others. Judgment for defendants, and plaintiff brings error.</p>

Action at law by tbe United States, for tbe- use of tbe Tom J. Gardner Dumber Company, against D. E. Boomer and others. Judgment for defendants, and plaintiff briugs error.

<p>1. Towage (§ 4*) — Relation of Tug and Tow — Right of Tug to Direct Movements.</p> <p>In the absence of an agreement to the contrary, a tug which supplies the motive power to her tow is the dominant mind, and the tow is required to follow directions from the tug.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>2. Collision (§ 71*) — Navigation of Riveb — Tow and Anchored Dredge— Fault of Tug.</p> <p>The barque Fort George, in tow of the tug Smith, passing down the Delaware river in the daytime at the last of the ebb tide, came into collision with one of three dredges anchored in a line up and down the river, near the middle, and engaged in deepening the channel. In the condition of the tide the barque had only six inches of water under her, and for that reason would not answer her helm, and sheered against the dredge. Held, that the fault was solely that of the tug, which was bound to know of the danger, and should have waited for the rising of the tide; that the tow had the right to assume that the tug was able to perform safely the duty she had undertaken, and was not in fault for allowing her to proceed.</p> <p>TEd. Note. — For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71 *</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

<p>Bankruptcy (§ 140*) — Property Purchased by Bankrupt — Transfer of Bills of Lading as Security foe Advances — Trust Receipts.</p> <p>A bankrupt, desiring to import goods, obtained credit from a foreign bank against wbicb be drew for tbe price to the order of the seller. The draft with bill of lading indorsed in blank or to the order of the bank was forwarded by the seller and accepted payable a certain time after sight. The bank then forwarded the bill of lading indorsed in blank to its agent in New York, who delivered the same to the importer, who signed trust receipts, agreeing to sell the goods for the account of the hank and pay it the proceeds to put it in funds to take up the acceptance at maturity; the receipts reciting that the bankrupt had received from the bank described merchandise which he agreed to hold in trust for the hank as its property with liberty to sell the same, and to pay over the proceeds as soon as received as security for any and all indebtedness of the bankrupt, and, in case- the goods were not sold, to insure for the bank’s benefit, authorizing it at any time to terminate the trust and recover possession of the goods or the proceeds, and that in case of insolvency all obligations should mature without demand. Held, that such trust receipts were effective except as against bona fide purchasers for value, or creditors protected by statute, to retain title to the goods in the bank enforceable against the bankrupt’s trustee for the amount of the purchase price.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dee. Dig. § 140.*]</p>

Simone Tresca was convicted of passing and uttering a counterfeit $o note with intent to defraud, knowing the same to be counterfeit, and of keeping and concealing 10 counterfeit $5 notes with intent to utter the same, knowing the same to be counterfeit, and he brings error.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Dennis O’Hara, administrator, etc., of the estate of Rose O’Hara, deceased, against the Central Railroad Company of New Jersey, for wrongful death. From a judgment for defendant, plaintiff brings error.</p>

Caimana Lobosco was convicted of knowingly purchasing and receiving certain uniform clothing of persons engaged in the marine service of the United States, and he brings error.

<p>JL Bailment (§ 7*) — Ownership op Goods — Trust Receipt.</p> <p>Where a banker advances the purchase price of goods, the buyer taking possession under a trust receipt, agreeing to sell the property for the account of the bank, collect the proceeds of the sale, and deposit the same to the bank’s credit, with authority to the bank to cancel the trust receipt and reclaim the unsold goods on demand, the bank is the owner of the goods, as against the buyer and bis creditors.</p> <p>[Ed. Note. — For other cases, see Bailment, Dec. Dig. § 7.*]</p> <p>2l Bankruptcy (§ 387*) — Partnership—Rights op Creditors Against Individual Partners.</p> <p>Bankrupts as a firm purchased ostrich feathers in South Africa under an arrangement by which claimant bank loaned its credit for the price, taking receipts of the bankrupts by which they agreed to sell the feathers for the bank’s account, collect the proceeds, and deposit the same to the credit of the bank or its representatives. Instead of doing so, however, the bankrupts deposited the proceeds to their general account, and both the firm and the individual partners were declared bankrupts in involuntary proceedings before the proceeds were paid over. The bank filed proof of claim against the firm, and accepted a composition of 20 per cent, offered by one of the members to the creditors of the firm, and to his individual creditors for a release from individual liability. Held, that since the hank’s claim arose out of the firm’s conversion of the proceeds of the goods, for which the partners were liable jointly and severally as tort-feasors, acceptance of such composition did not bar the bank’s right to file a claim for the balance against the individual estate of the other partner.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 387.*]</p> <p>8, Partnership (§ 172*) — Inability to Third Persons — Property Converted.</p> <p>Where a firm converted certain property belonging to a bank and the firm and the individual partners were then adjudged involuntary bankrupts, the bank could prove a claim against the partners jointly on their acceptances for the price of the goods and another against the partners Jointly and severally on an implied contract to repay moneys, to wit, the proceeds of the goods wrongfully converted by them: the doctrine of election between inconsistent remedies on the same claim being without application.</p> <p>[Ed. Note. — Eor other cases, see Partnership, Dec. Dig. § 172.*]</p>

<p>Contracts (§ 150*) — Construction—Kjusdem Generis — “Other Cause.”</p> <p>Defendant contracted to use natural gas from plaintiffs’ wells for a specified time at specified prices, the contract providing that, if by reason of fire, explosion, or other cause defendant’s factory should be closed down, plaintiffs might during the time dispose of gas elsewhere, and, if the nonuse extended over a month, plaintiffs should have the right to caucel the contract. If chi, that the words “other cause,” following “fire and explosion.” should be construed to mean other cause similar to fire or explosion under the rule of ejusdem generis, and did not therefore entitle defendant to shut down his factory for any cause whatsoever without a liability for breach of such contract.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. § 737; Dee. Dig. § 156*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5070-5102; vol. 8, pp. 7741-7743.]</p>

<p>Iu Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action at law by Douglas J. Parks against the Grand Trunk Railway Company and the Eehigli Valley Railroad Company. Judgment for plaintiff, and defendants bring error.</p> <p>This cause comes here upon appeal from a judgment in favor of defendant in error, who Avas plaintiff below. The action was brought to recover damages for personal injuries sustained by plaintiff, while engaged in his duties as United States customs inspector on board a train of the Grand Trunk Kailway Company between Niagara Falls, Ontario, and Suspension Bridge. N. Y. He slipped upon a banana peel in the aisle of the car, claimed to have been deposited there with other svroepings «>y a car cleaner, avIio was engaged in cleaning the car preparatory to the surrender of tlie train to the Lehigh Valley Railroad Company at Suspension Bridge. It Avas a through train from Chicago to New York, operated to Suspension Bridge by the Grand Trunk, and from that point on by the Lehigh. The jury found a verdict against both defendants, as joint tort-feasors.</p>

On Petition to Superintend and Revise, in-Matter of Raw, proceedings of the District Court of the United States for the Northern District of West Virginia, at Philippi. In Bankruptcy. In the matter of involuntary bankruptcy proceedings against A. F. Millan. An order was entered for an adjudication which the alleged bankrupt sought to have reviewed on a petition to superintend and revise in matter of law.

<p>1. Courts (§ 274*) — Federal Courts — Jurisdiction—Suit bt Assignee.</p> <p>Act Cong. March 3, 1875, e. 137, 18 Stat. 470, as amended by Act March 3, 1887, c. 373, 24 Stat 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), provides that the federal Circuit Court shall have jurisdiction of civil suits, where the amount in controversy exceeds $2,000 exclusive of interest and costs, between citizens of states and citizens of foreign states and between citizens of different states, but that no such court shall take cognizance of any suit to recover the contents of any chose in action in favor of any assignee, unless such suit might have been prosecuted in such court to recover such contents if no assignment or transfer had been made. It also declares that no civil suit shall be brought before either of such courts against any person, or by any original process or proceeding in any other district than that whereof he is an inhabitant, but that when jurisdiction is founded only on the fact of diversity of citizenship and that the action is between citizens of different states, the suit shall be brought only in the district of the residence of the plaintiff or the defendant. Held that, where plaintiff, a citizen of New York, brought an action in the Circuit Court of the Southern district of New York, as assignee of a British corporation against defendant corporation, a citizen of New Jersey, the court had no jurisdiction to entertain the suit over defendant’s protest.'</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Big. § 814; Dee. Dig. $ 274.*]</p> <p>2. Courts (§ 96*) — Decisions—Effect.</p> <p>That the Supreme Court denied a writ of prohibition to restrain the federal Circuit Court from taking jurisdiction of a suit by one as assignee of a foreign corporation in the Southern district of New York against a New Jersey corporation did not. constitute a determination that the court had jurisdiction to entertain the suit over defendant’s protest; the inference being that the writ was denied on the theory that since the question of jurisdiction should be determined on a writ of error to final judgment, extraordinary relief was unnecessary.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 96.*]</p> <p>8. Courts (§ 324*) — Federal Courts — Jurisdiction—Assignment of Cause oe Action.</p> <p>Where it appears that a cause of action has been assigned in order to confer jurisdiction on a federal court, it is the court’s duty to dismiss or remand a suit sua sponte.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 882, 884; Dec. Dig. § 324.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina at Greensboro.</p> <p>Action by the United States of America against the Bank of North Wilkesboro. Judgment for defendant, and plaintiff brings error.</p>

Action at law by Raifaelo Spinello, administratrix, against the New York, New Haven & Hartford Railroad Company. Judgment for defendant, and plaintiff brings error.

<p>Account (§ 17*) — Jurisdiction—Bill.</p> <p>Where a bill for an accounting alleged that for more than two years defendant had been complainant’s confidential agent and broker for the sale of packing house products, under an arrangement whereby defendant was to add profits to minimum prices fixed by complainant, which profits were to be divided equally between complainant and defendant, that defendant had made sales, the amount of which was not known to complainant, and could not be known, as the buyers were unknown, and defendant refused to divulge the same, and that the amount in controversy was more than sufficient to give the court jurisdiction, and praying an account and settlement, it sufficiently alleged a fiduciary or trust relation between the parties, and was not demurrable on the ground that complainant had an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Account, Cent. Dig. §§ 77-88; Dec. Dig. | 17.*]</p>

Action at law by F. W. Balcomb, trustee in bankruptcy of the Lawrence Manufacturing Company, bankrupt, against Albert Campbell and Harry A. Dubia, doing business as the Industrial Savings Bank. Judgment for plaintiff, and defendants bring error.

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>Action at law by Ernest L. Walton against the City of Minot and David Dinnie. Judgment for plaintiff, and defendants bring error.</p>

<p>Bankruptcy (§ 317*) — Claims—Creditors’ Committee — Claims op Attorney.</p> <p>Where an agreement between the bankrupt and a committee of its creditors, more than four months before the filing of a bankruptcy petition, provided that the committee should take charge of the bankrupt’s business, and made its expenses a first lien on the assets of the company, an attorney employed by the committee to advise and act for it, in the absence of a showing that the members of the committee were insolvent, had no claim or lien against the bankrupt’s assets for the value of his services, but his rights should be worked out through the committee which employed him.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 317.*]</p>

<p>1. Railroads (§ 254*) — Safety Appliance Act — Several Violations.</p> <p>Where several ears, ■ each without the requisite appliances required by Safety Appliance Act March 2, 1893, c. 190, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), are hauled by a carrier in interstate commerce at one and the same time, there are as many distinct violations of the act as there are cars hauled not properly equipped, for every one of which the statutory penalty is recoverable.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 254.*]</p> <p>2. Railroads (§ 254*)— Safety Appliance Act — Violations — Nature op Proceedings.</p> <p>Since proceedings against a railroad company to recover penalties for violations of Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531_(U. S. Comp. St. 1901, p. 3174), are civil in their nature, the government is only required to establish its case by a preponderance of the evidence. [Ed. Note. — For other cases, see Railroads, Dec. Dig. § 254.*]</p> <p>G</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Eagle Wagon Works against the Columbia Wagon Company. Decree for complainant (181 Fed. 148), and defendant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Bill by John D. Tompkins against the International Paper Company. Prom a decree sustaining a demurrer to the bill, and dismissing it, plaintiff appeals.</p>

<p>In Equity. Suit by the Automatic Switch Company and the Otis Elevator Company against the J. E. Schureman Company. On final hearing.</p>

<p>In Equity. Suit by John T. H. Mitchell against Roderick G. Stevens. On final hearing.</p>

<p>Equity (§ 419*) — Decree Pro Coneesso — Default—Right to Answer.</p> <p>Complainant filed a bill for patent infringement against the T. Co., which was only the seller of the article complained of, and, it having appeared, a pro eonfesso was taken against it for failure to plead. The S. Co., by which the article was manufactured, was permitted to intervene ‘and defend, by a stipulation that proceedings against the T. Co. would be stayed pending a determination of the S. Co.’s defense. The T. Co. was not a party to this agreement, and, the S. Co. becoming a bankrupt, a decree was assented to in favor of complainants against it, whereupon complainant applied for final decree against tlie T. Co. Held, that the T. Co., having relied on the S. Co.’s defending the suit, would not be deprived of any defense it might have by the S. Co.’s failure to do so, and was therefore entitled to leave to answer on terms.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 972 985; Dec. Dig. § 419.*]</p>

<p>Witnesses (§ 16*) — Subpcena Duces Tecum — Setting Aside.</p> <p>A subpoena duces tecum, issued at the instance of complainant in an infringement suit, to require the production of books and records of defendant, set aside as too broad in its requirements.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 20, 26; Dec. Dig. § 16.*]</p>

In the matter of bankruptcy proceedings of the Heim Milk Product Company, an alleged bankrupt. On petition of Crandall Pettee-Company for leave to sue the alleged bankrupt and the receivers appointed prior to adjudication on a claim provable in bankruptcy.

<p>1. Aliens (§ 70*) — Naturalization"—Decree—Vacation—Finding.</p> <p>Where a decree of naturalization issued by an Ohio court of original jurisdiction recited that the alien naturalized was then 25 years of age, and that it appeared to the court that he had made his declaration of intention to become a citizen of the United States according to law. it should be construed as finding that all other requirements necessary to sustain his application were found to exist; and hence the order could not be attacked on the ground that he had not declared his intention at least, two years prior to his admission to citizenship, under the rule that a judgment may not be impeached for any facts, whether involving fraud, collusion, or perjury, which were necessarily before the court entering the judgment and passed upon.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 154 ICO; Dec. Dig. § 70.*]</p> <p>2. Aliens (§ 67*) — Naturalization—Coubts—Jurisdiction.</p> <p>Where a court admitting an alien to citizenship was vested with some common-law jurisdiction, and had a clerk and a seal, it was empowered by Rev. St. § 2165 fü. S. Comp. St. 1901, p. 1329), to naturalize aliens; it not being essential that the court shall have been invested with general common-law jurisdiction.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 131-137; Dee. Dig. § 67.*]</p>

<p>1. Bankruptcy (§ 123*) — Election op Trustee — Claims—Validity.</p> <p>Where certain claims against a bankrupt were unquestionably valid, it was no reason for excluding the holders thereof from their rigid, to vote at an election of a trustee that the claims were due to the bankrupt’s counsel and clerk, and that, by reason of that fact, they were likely to be voted in the interest of the bankrupt</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 123.*)</p> <p>2. Bankruptcy (§ 126*) — Trustees—Election—Activity oe Bankrupt.</p> <p>Evidence held to require a finding that a bankrupt was unduly active in an election of a trustee, and that such election should be set aside at the instance of objecting creditors as violating public policy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 126.*)</p>

In Equity. Suits by William M. Barrett, as president of the Adams Express Company, and by Edward T. Platt, as treasurer of the United States Express Company, and by Wells Fargo & Co. against the City of New York and others. On motion for preliminary injunction.

In Equity. Bill by the Trust Company of America against the Norfolk & Southern Railway Company. Bill by the Norfolk-Southern Railroad Company to enjoin the sale of property purchased by it under foreclosure decree against a railway company for the payment of a judgment recovered by one J. E. Talbott for an alleged assault and battery on him by a train conductor prior to the filing of the bill to foreclose.

In Equity. Suit by Fester W. David against A. D. McRae and others for specific performance of an executory contract for the purchase of certain corporate stock pursuant to which the stock was delivered in escrow by complainant in fulfillment of the contract. Decree for complainant.

In the matter of bankruptcy proceedings of R. E. Bendall.^ On petition of the Courtney Shoe Company and the Baltimore Bargain House to reclaim property sold the bankrupt under alleged fraudulent misrepresentations. Petition to review referee’s order denying the application.

<p>In the matter of bankruptcy proceedings of Joseph T£. Spann. On petition to review a referee's order denying a petition of Smart Brothers & Company for the proceeds of certain shoes delivered to ihe bankrupt at an alleged fraudulent sale. Petition granted, and determination of referee set aside.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of J. E. Maynard & Company. On petition to review a referee’s order declining to approve the acts of trustees setting apart $1,600 out of the bankrupt’s assets as a homestead exemption under the state law.

<p>In the matter of bankruptcy proceedings of Buzzini & Co., Incorporated. On petition of L,. Barth & Son for the allowance of a claim. Referee’s ordler refusing to allow the claim reversed, and claim allowed.</p>

In Equity. Bills by the Finance Company of Pennsylvania against the New Jersey Short Line Railroad Company and others, and against the Trenton & New Brunswick Railroad Company and others, to foreclose certain mortgages. Application for an order of distribution.

<p>Corporations (§ 480*) — Liens—Attachment—Bondholders—Priority.</p> <p>Where a bankrupt corporation has executed and recorded a mortgage on its property to secure bonds to be issued, and thereafter, but before the bonds were issued, petitioner secured a lien on tbe company’s prop- ' erty by a writ of foreign attachment, after which bonds were issued under tbe mortgage as collateral security for bona fide loans made after levy of the áttachmént, such bondholders were not bound to search the public records for liens on the company’s property subsequent to the mortgage, and hence their liens were prior in right to that of the attaching creditor.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 480;* Mortgages, Cent. Dig. § 201.]</p>

At Law. Action by Ella S. Dent against the Railway Mail Association. Judgment for plaintiff on directed verdict. ’ This was an action brought by the widow of James Dent, who came to his death from the effects of poison ivy.

<p>1. Process (§ 141*) — Service—Return—Conclusiveness.</p> <p>While a sheriff’s return of service may be conclnsive on the parties so far as it concerns the sheriff’s physical acts, and as to his recitals-respecting the person on whom the service was made and the date thereof, it is not conclusive as to his conclusion of law that the person on whom service was made represented the defendant in such capaciti as to authorize service on him.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 189-192; Dor Dig. § 141.*]</p> <p>2. Process (§ 158*) — Sufficiency of Service — Determination—Remedy.</p> <p>The proper practice in the federal court to try the question of the suf ficieney of service of summons is by motion to quash the return sup ported by aflidavit.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 218-220; Dec-Dig. § 158.*]</p> <p>3. Courts (§ 344*) — E’ederal Courts — State Practice.</p> <p>In the absence of statute, the federal court is not required by the con forinity act to follow the state practice of determining the sufficiency o! the service of process.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. § 344.*]</p> <p>4. Insurance (§ 627*) — -Foreign Corporations — Service—Persons on Whom Service may be Made.</p> <p>Rev. St. Mo. 1899, § 7992 (Ann. St. 190S, p. 3801), provides that service may be made on a foreign accident insurance company by delivering a copy of the summons and complaint to any person within the state who shall solicit insurance on behalf of any such corporation, or may make any contract of insurance, or who receives any premium for insurance, or who adjusts or settles a loss, or pays the same for such insurance corporation, or in any manner aids or assists in doing either. Held, that since, to authorize service, the agent must be one who represents the defendant in an actual, present, official, or representative status, service could not be made on a foreign accident insurance company by leaving a copy of the summons and complaint with a physician whose only connection with the company was that he was from time to time employed in isolated eases to report on the physical condition of injured policy holders within a specified district for which he was paid a physician’s fee, being without any authority or duty to make any contract or pay losses or indemnities allowed.</p> <p>[Ed. Note. — For other eases, see Insurance, Dec. Dig. § 627.*</p> <p>Service of process on foreign corporations, see notes to Eldred v. American Palace Car Co., 45 C. C. A. 3; Cella Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p>

<p>In Equity. Suit by the Victor Talking Machine Company and United States Gramophone Company against the Sonora Phonograph Company. On final hearing.</p>

<p>L Telegraphs and Telephones (§ 10*) — State Law — Construction.</p> <p>Gen. St. Minn. 1866, c. 34, § 13, as amended by Laws 1899, c. 51, gave to corporations organized under Minnesota laws tbe right “to acquire” by the exercise of the power of eminent domain the necessary property for the transaction of their business, and provided that nothing therein contained should be construed to grant to any person, persons, associations, or corporations any right for the maintenance of a telephone system within the corporate limits of any city or village until the right to maintain a telephone system in such village or city shall have been obtained or for a period beyond that for which the right to operate such telephone system is granted by such village or city. Held, that the law of 1899, of itself, gave no right even to a corporation, hut merely imposed a limitation on rights already supposed to exist; and hence, after the passage of such act, neither telephone companies nor private persons could obtain any right to use the streets of a city without action by the city.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 10.*]</p> <p>2. Telegraphs and Telephones (§ 10*) — Franchises—Glasses—Compliance with City Charter Provision — Advertising—Competition.</p> <p>Laws Minn. 1895, c. 8, provides for the incorporation of cities, and section 133, par. 6, gives to a city pbwer to regulate, control, and prohibit the placing of poles and the suspension of wires along and across streets and alleys. Section 142 declares that the council shall not grant a public franchise except on advertisement for proposals therefor as provided by law, and section 145 provides that every advertisement for proposals shall be made by publishing a notice containing a general description of the franchise to be granted. Held, that advertisements for proposals so as to create competition in the granting of a franchise to maintain and operate a telephone system in a city would not be regarded as a mere directory requirement, omission of which would constitute a mere irregularity, but that the city had no power to grant a franchise to an individual or a telephone company to maintain and operate a telephone system in the streets of a city without advertisement or competition.</p> <p>[Ed. Note. — For other eases, see Telegraphs and Telephones, Dec. Dig. § 10.*]</p> <p>3. Telegraphs and Telephones (§ 10*) — Franchises—Illegal Grant by City — Estoppel.</p> <p>Where a city without authority granted a telephone franchise for the maintenance and operation of a telephone system along its streets, without advertising for proposals, or competition, as required by its charter, and the grantee of the franchise immediately carried the same into operation by expending money in equipping a plant, the city was not by that fact estopped from later questioning the validity of the franchise.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 10.*]</p>

<p>1. Bankruptcy (§ 386*) — Composition—Vacation—Time.</p> <p>Where the six months provided for a vacation of a composition by Bankr. Act July 1, 1898, c. 541, § 13, 30 Stat. 550 (U. S. Comp. St. 1901, p. 8427), have expired, the composition may not be set aside at the instance of a nonconsenting creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § (506; Dec. Dig. § 386.*1</p> <p>2. Bankruptcy (§ 386*) — Order—Motion to Vacate.</p> <p>A motion to vacate must be made before the judge who granted it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 606; Dec. Dig. § 386.*]</p> <p>3. Bankruptcy (§ 385*) — Composition — Confirmation — Rights of NonSCHEDULED CREDITOR.</p> <p>Bankrupts prior to January, 1910, had made an offer of compromise, obtained the necessary consents, deposited the sum required, and filed their petition to confirm with the referee. The referee then sent out notices and made a rule nisi to all creditors who were scheduled, or who, though unscheduled, had filed claims up to the date the papers were mailed, and an order of confirmation was subsequently entered. Held, that the owner of an unscheduled claim who did not file the same until after the making of the rule nisi, but did file it before entry of the order of composition was not entitled to share in the deposit made by the bankrupts, being only entitled to any surplus remaining after paying-expenses and dividends on the scheduled claims and those filed prior to the rule.</p> <p>[Ed. Note. — S’or other cases, see Bankruptcy, Cent. Dig. §§ 595, 596; Dee. Dig. § 385.*]</p>

<p>1. Brokers (§ 35*) — Securities op Customers — Sabe—Conversion.</p> <p>It is not a conversion for a stockbroker to sell the stock certificate of a customer, if the broker has that amount in similar stock on hand free and clear.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 27; Dec. Día. §</p> <p>2. Bankruptcy (§ 155*) — Collaterals—Salk—Rights of Owner.</p> <p>Wliere stock was deposited with a broker, on condition that it was not to be nsed unless the customer’s account needed further security, and the. broker pledged the stock and became a bankrupt, the owner, in order to obtain a preference, was not only bound to prove a conversion, but was also required to trace his property to the specific proceeds from which ho claimed a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, I)ee. Dig. § 155.*]</p> <p>3. Bankruptcy (§ 155*) — Brokers—Conversion—Pledging Securities.</p> <p>Petitioner pledged certain stock, represented by a certificate, to a stockbroker, on condition that it should not be used unless his account needed further security, which event did not happen; but the broker, before bankruptcy, pledged the petitioner’s certificate as security for loans at a bank, and it was shown that nine months thereafter the hank held a similar certificate, and only one, as security for the broker’s account, though it could not be shown that the certificate deposited wras the one found in the possession of the bank. Held, that such evidence was sulii.cient to establish a prima facie case, entitling plaintiff petitioner to a preference thereon at the sale of such stock, in the absence of any proof that there had been in fact a change in the securities of the bank, so far as the certificates in question were concerned.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 155.*]</p>

<p>1. Bankruptcy (§ 188*) — Claims—Estoppel op Claimant.</p> <p>Where rent distrained for was all due, when the landlord also became ■ bankrupt, and the claimants of the property distrained could uot have escaped from the landlord’s right by having moved earlier, any better than they could thereafter, the landlord was not estopped from prosecuting his distraint as against the claimants, because, by representation made by him at a meeting of creditors held to untangle his affairs, the claimants were induced to delay action.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 188.*]</p> <p>2. Bankruptcy (§ 188*) — Proceedings by Landlord — Stay—Appraisement.</p> <p>Where a landlord, having instituted distress proceedings against a bankrupt tenant, was stayed by the bankruptcy court, his rights in the bankruptcy proceedings pursuant to such distraint were not affected by his failure to have proceeded to an appraisement.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 188.*]</p> <p>3. Bankruptcy (§ 188*) — Right op Distress — Goods Held by Tenant Under Conditional Sale — Guaranty op Price by Landlord — Estoppel.</p> <p>Where a landlord guaranteed payment by his tenant for certain fixtures sold to the tenant under a conditional sale in the form of a lease, the landlord, though subsequently becoming a bankrupt, on the bankruptcy of his tenant could not distrain on the fixtures so held as against the conditional vendor; the vendor’s right to reclaim the property being a part of the security,</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 188.*]</p>

<p>In Admiralty. Suit by Sivert O. Sovensen, master of the Norwegian steamship Olaf Kyrre, against the steam tug Adriatic.</p>

<p>I. Municipal Corporations (§ 705*) — Streets—Injuries to Pedestrians— Automobiles — Contributory Negligence.</p> <p>Plaintiff, desiring to take an outward bound street car, in a thickly built part of Boston, stopped on the curb at a street crossing and made observations concerning the location of traffic, and, believing it safe to cross, proceeded to the rear of an inward bound ear then standing at the crossing, and while attempting to reach the further side of the outward bound track, without again stopping to look for obstructions that might be in the opposite side of the street, hurried to take his ear, when he was struck and seriously injured by one of defendant’s automobiles, tbe speed of which was not reduced to a moderate rate before reaching the place of the accident. Held, that under the decisions of the Supreme Judicial Court of Massachusetts plaintiff was not negligent in not looking again before passing the rear of the inward bound car.</p> <p>_[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § ■ 705.*]</p> <p>2. Damages (§ 131*) — Excessiveness—Personal Injuries.</p> <p>Plaintiff was seriously injured in a collision with an automobile in a city street. He had lost two years’ time, the value of which was $3,000, and his expenses to effect a cure were something over $1,500. It also appeared that there would certainly be future loss of employment for a limited time, and there was évidence that he had suffered or would suffer great pain, discomfort, and inconvenience, though his injury was not permanent. Held, that a verdict allowing plaintiff $6,926.06 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 131.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings against Thomas Hughes. On motion to confirm the report of a referee and master directing the dismissal of an involuntary petition against the alleged bankrupt.</p>

In Equity. Bill by Cumberland Telephone & Telegraph Company against the City of Memphis to restrain an enforcement of telephone rates by the city council as confiscatory. Injunction made perpetual.

<p>Debt on a bond by the United States of America against the ElginChurning Company and another. On demurrer to declaration.</p>

<p>In the matter of bankruptcy proceedings of the Ferguson Contracting Company. On petition of the Vulcan Iron Works to recover from the receiver in bankruptcy certain locomotives leased to the bankrupt under a contract of conditional sale.</p> <p>Petition of the Vulcan Iron Works in reclamation proceedings to recover from the receiver in bankruptcy of the Ferguson Contracting Company three locomotives leased to the bankrupt under conditional bills of sale and not wholly paid for at the time of the filing of the petition in bankruptcy. The receiver contends that section 61 of the personal property law of New York (Consol. Laws, e. 41) provides that all conditional bills of sale covering “railroad equipment and rolling stock,” unless recorded in the register’s office shall be void as against judgment creditors, and that he is entitled to retain the locomotives for the reason that under section 47 of the bankruptcy act (Act July 1, 1898, c. 541, 80 Stat 557 [U. S. Comp. St. 1901, p. 3438]), a trasloe in bankruptcy stands in the same position as a judgment creditor. The petitioner contends that the three locomotives in question do not come within the definition of “railroad equipment and rolling stock” as intended by the foregoing statute, for the reason that the bankrupt was not a common carrier of passengers or freight, or engaged in the railroad business, and for the further reason that the locomotives are not suitable for use upon a railroad, but only for contracting purposes.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Joseph Puschkin. On objection to bankrupt’s discharge.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Isaac Berg. On petition of the Ohio Motor Company to review a referee’s order denying its petition for reclamation of certain property from the trustee as obtained by false and fraudulent representation as to the bankrupt’s financial condition.

<p>At Law. Action by Mary Helen Brown against the City of New York. On demurrer to complaint.</p>

<p>Trade-Marks and Trade-Names (§ 93*) — Unlawful Competition — Evidence.</p> <p>Where, in a suit to restrain unlawful competition in the manufacture and sale of complainant's “Caslon Bold” type, there was no evidence that defendant had ever tried to make any fine believe that the type east on its machines was the type cast by complainant, or that any one who made type on defendant’s machines had sold same as complainant’s product, or that defendant did anything to induce customers to believe that they were buying type made by complainant, and defendant in its catalogue avoided the use of the words “Caslon Bold” in describing the various type faces that could be made on its machine, the fact that by means of an arrangement of numbers designating the various styles of defendant’s type any one could lie easily taught to find in complainant's catalogue the “Caslon Bold” type in controversy was insufficient to establish unlawful competition.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Big. § 106; Dec. Dig. .§ 93.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

At Taw. Action by T. E. Spencer against Pike County. On rule for judgment non obstante veredicto and for a new trial, in the alternative.

<p>In Equity. Suit by Colonial Trust Company against James N. Wallace and others. On motion for a preliminary injunction.</p>

<p>In Admiralty. Libel by Andrew Nodop against the tug Amelia for seaman’s wages.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Palmer Window Glass Company. On certificate of referee to review an order relating to the distribution of the proceeds of real estate constituting t part of the bankrupt’s estate. Petition to review dismissed.</p>

Habeas corpus by the United States, on the relation of Rose Dick-man and on the relation of Margaret Braun, alias Alice Braun, alias Margaret Burgers to obtain relators’ discharge from custody of William Williams, Commissioner of Immigration at the port of New York, under deportation warrants.

<p>1. Banks and Banking (§ 257*) — National Banks — Willful Misapplication of Funds — Indictment.</p> <p>An indictment against an officer of a national bank under Bey. St. § 5209 (U. S. Comp. St. 1901, p. 3497), for willful misapplication of funds of tbe bank, must allege facts showing a conversion of such funds; and an indictment which charges that defendant, as president, with intent to defraud the bank, and for tbe benefit of himself and others unnamed, caused the bank to discount single name commercial paper, and that the bank lost the amount paid on the discount, does not charge an offense.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 973; Dec. Dig. § 257.*]</p> <p>2. Banks and Banking (§ 257*) — National Banks — Willful Misapplication of Funds — Indictment.</p> <p>An indictment, under Bev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), which charges defendant, as president of a national bank, with willful misapplication of its funds, with intent to defraud the bank, and for the benefit of himself and others, by causing the bank to discount a note signed only by a person known to him to be insolvent, and that the bank lost the amount paid on such discount, sufficiently charges a fraudulent conversion, and is good.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. § 973; Dec. Dig. § 257.*]</p>

<p>Action by the Mitchell Coal & Coke Company against the Pennsylvania Railroad Company. On motion to dismiss for want of jurisdiction.</p>

Application by the United States to review the decision of the Board of General Appraisers holding that certain olives imported into the United States by G. P. Calogera were not’subject to duty.

<p>1. Bankruptcy (§ 166*) — Corporations—Transfer op Assets — Fraud.</p> <p>Where an insolvent corporation more than four months before bankruptcy transferred to director creditors certain mortgages and liquor'tax certificates in order to give such directors a preference over other creditors, ¿he transfer was invalid under New York Stock Corporation Law (Laws 1890, c. 504) § 48, proliibiting any stock corporation from making any transfer of its property when insolvent with intent to give a preference over any creditor, and under the general law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*]</p> <p>2. Corporations (§ 542*) — Director Creditors — Protection.</p> <p>Though directors of a corporation may loan money or credit to it and take security therefor when the corporation is temporarily embarrassed, if they act in good faith they cannot at a time when insolvency is impending transfer the corporation’s property to themselves as security for loans previously made.</p> <p>(Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2154-2160; Dec. Dig. § 542.*]</p> <p>3. Bankruptcy (§ 178*) — Insolvency—Creditor Directors — Security—Good Faith — Evidence.</p> <p>A corporation on impending insolvency renewed notes which certain of its directors had indorsed, and assigned to the directors as security certain mortgages and liquor tax certificates. The only entry of the transaction in the corporation’s books was a resolution authorizing the assignment in the directors’ minutes. No entry of the execution of the assignment was made, and the mortgages and certificates appeared as assets on the books. They were also entered as assets in the auditor’s balance sheet several months after the alleged assignment, and the mortgages and certificates remained in the company’s safe and were dealt with freely by it. Held, that the transfer was colorable merely, and not in good faith, and was therefore unsustainable as against the corporation’s other creditors in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 178.*]</p>

In the matter of the estate of William T. Harvey, bankrupt. Petition by Frederick W. Rathman, trustee, against Maud Booth, administratrix of the estate of J. S. Booth, for rule to show cause, judgment for defendant, and petitioner appeals.

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action at law by the Morrisdale Coal Company against the Pennsylvania Railroad Company. Judgment for defendant (176 Fed. 748), and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Charles Tynan and another against the American Steel & Wire Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Equity (§ 175*)- — Plea—Complainant’s Right to Take Issue.</p> <p>Where, after the filing of an alleged plea in bar, which was in the nature of a plea in abatement, complainant brought the case on for hearing on the plea, and, after a partial allowance thereof, made timely and appropriate motion for leave to take issue thereon, the court erred in denying such leave, and in dismissing the bill as to the defendant as to whom the plea was sustained.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. § 411; Dec. Dig. § 175.*]</p> <p>2. Abatement and Revival (§§ 8, 9*) — Other Action Pending — Proceedings in Equity — Identity of Parties, Cause of Action, and Relief.</p> <p>The B. Ry. Co., an Iowa corporation, commenced a suit in a state court in September, 1905, against four of the defendants joined in the present suit, to restrain them from dealing in nontransferable railroad tickets; the bill charging that defendants had been and were violating complainant’s rights, and were threatening and intending to continue to do so. A final decree of injunction was granted for complainant in that suit, but whether any of the defendants subsequently violated or threatened to violate the rights of the complainant was not determined. -Two years thereafter the B. R. Co., an Illinois corporation, filed the present suit against the four who were defendants in the former suit and certain others, making no reference to the former suit, or to any acts anterior to that decree, but charged that all of the defendants were violating complainant’s rights with reference to the sale of nontransferable tickets, and were threatening and intending to continue to do so, alleging as a particular exigency for the relief sought that several national conventions were about to be held in Denver, Colo., involving the issuance of an unprecedented number of reduced rate tickets, the sale of which by the defendants was essential to have enjoined in order to protcct complainant’s rights. If cid, that the continuance o£ the permanent injunction granted in the former suit was not ground for the abatement of the present one as to the defendants who were parties thereto, on the theory that the present suit was vexatious; neither the parties nor the subject-matter being the same, and since the court, if necessary to protect the rights of the defendants who were parties to the prior suit, could require as a condition to granting the relief sought that the injunction granted therein be withdrawn or abandoned as to them.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 39-85; Dec. Dig. §§ 8, a*</p> <p>Pendency of action in state or federal court as ground for abatement of action in the other, see notes to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205; Barnsdall v. Waltemeyer, 73 C. C. A. 521.]</p>

Appeals from the Circuit Court of the United States for the District of Colorado. Bills by the Chicago, Rock Island & Pacific Railway Company, by the Missouri Pacific Railway Company, by the Atchison, Topeka & Santa Fé Railway Company, and by the Union Pacific Railroad Company against I. C. Weil and others. From a decree sustaining an alleged plea in bar in the nature of a plea in abatement as to certain of the defendants, and denying leave to take issue thereon, they appeal.

<p>1. Master and Servant (§§ 150, 151, 28G*) — Master’s Riabtlity for Injury to Servant — Dangerous Method of Doing Work — Failure to Instruct Servant.</p> <p>Plaintiff, employed as a blacksmith in the blacksmith shop of defendant, which was a manufacturer of machines, was injured by the explosion of a piston head which he and a fellow workman were heating for the purpose of shrinking it onto a new piston rod. The heating of the head, which was hollow, was extremely dangerous, unless a vent was made therein to allow the escape of steam, which was likely to be generated in the interior. The shop was under the control and direction of a foreman, who represented defendant and was not a fellow servant of plaintiff. The foreman knew the danger, and that a hole should be made in the head before it was heated, but gave no instructions therefor, and no warning of the danger to plaintiff, who testified that he had no knowledge of it. Held that, if the foreman directed the heating to be done without giving such instructions or warning, he was negligent, and his negligence was that of defendant, and that on the evidence that question was one for the jury.</p> <p>[Ed. Note. — For othe'r .cases, see Master and Servant, Cent. Dig. §§ 297, 298, 1044; Dec. Dig. §§ 150, 151. 286.*]</p> <p>2. Appkal and Errob (§ .1046*) — Rkvikw—Hariio-ss Error — Conduct of Trial.</p> <p>Tlie examination of witnesses by the trial judge in an action at law in a federal court, and commenting on their testimony, while a practice not to be approved, is not reversible error, where the matters commented on were not vital, and the jury were correctly instructed, and told that they were the final arbiters on all questions of fact.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4134; Dec. Dig. § 1046.*]</p>

Action 1)}' J. M. Robinson, Norton & Co. against the Tuscaloosa Tí’ills. Judgment for defendant, and plaintiff brings error. This is an action for' broach of a contract of sale, brought by the buyer, J. M. Robinson, Norton & Co., a New York corporation, against the seller, the Tuscaloosa Mills, an Alabama corporation. There was verdict and judgment for defendant, and plaintiff brings error.

<p>1. Trade-Marks and Trade-Names (§ 93*) — Unfair Competition — Burden of Proof.</p> <p>To make a case of unfair competition, the burden is upon a complainant corporation to establish by clear and satisfactory proof that the use by another corporation of its own initials on its goods is with fraudulent intent to mislead purchasers.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 101-106; Dec. Dig. § 93.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Trade-Marks and Trade-Names (§ 75*) — Unfair Competition — Test.</p> <p>The test of unfair competition by the imitation of labels or marks is, not whether a difference can be recognized when the goods are placed side by side, but whether, when they are not side by side, an ordinarily prudent purchaser would be liable to purchase the one, believing that he was purchasing the other.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-iNames, Cent. Dig. § 86; Dec. Dig. § 75.*]</p> <p>3. Trade-Marks and Trade-Names (§ 16*) — Marks or Names Subjects of Ownership — Form of Article.</p> <p>One manufacturer cannot create a monopoly to be enjoyed by him by adopting a shape or form of product, and particularly when such product is one of general use; and this is emphasized when such product is made from material which is fashioned for its better use, and with economy for use, according to long-time usage.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 19; Dec. Dig. § 16.*]</p> <p>4. Trade-Marks and Trade-Names (§ 95*) — Unfair Competition — Injunction.</p> <p>A manufacturer of plumbers’ goods held chargeable with unfair competition in purposely imitating in appearance the goods of complainant, a competitor and properly enjoined; but the injunction held too broad, and so modified as to permit the defendant to use the common forms of the devices, although like complainants, provided it marked the same so as to unmistakably indicate their origin.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 95.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Gertrude C. Hartman against the Metropolitan Eife Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by John Dickey against the Hammond Packing Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity by the Goodyear Tire & Rubber Company against the Rubber Tire Wheel Company and the Consolidated Rubber Tire Company. From an interlocutory order granting a preliminary injunction, defendants appeal. This cause is here upon appeal from ¡m Interlocutory order made in the court below enjoining appellants, pendente lite, from instituting or prosecuting certain suits against customers of appellee.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Spirella Company against the Nu Bone Corset Company and others. Decree for complainant (180 Eed. 470), and defendants appeal.</p>

<p>In Equity. Suit by the Motion Picture Patents Company against the Champion Film Company. On motion for preliminary injunction.</p>

<p>In Equity. Suits by the Motion Picture Patents Company against the Yankee Film Company and against William Steiner and others. On motions for preliminary injunction.</p>

<p>Costs (§ 251*) — Premium Paid Surety Company fob Supersedeas Bond.</p> <p>The premium paid by a plaintiff in error to a surety company for a supersedeas bond on a writ of error to a Circuit Court, required by a rule of the Circuit Court of Appeals, is properly taxable as costs.</p> <p>[Ed. Note.- — For other eases, see Costs, Cent. Dig. § 959; Dee. Dig. § 251.*J</p>

<p>Bankruptcy (§ 114*) — Receivers—Attorney’s Agreement — Unprofessional Conduct.</p> <p>Where, after the appointment of a receiver in bankruptcy proceedings, it was claimed that the receiver had agreed to appoint the attorney for the petitioning creditors as his attorney and various negotiations wore with a view to an arrangement for a division of fees, and the receiver proposed that all the fees of the receiver and the attorneys should be divided into three equal parts to be shared equally between the attorney for the petitioning creditors, tlie receiver, and the attorney he desired to appoint, and each of the representatives of the two attorneys who conducted the negotiations offered to divide the fees on certain conditions, such propositions were illegal and unprofessional, and required the appointment of a new receiver without any allowance either to the old receiver or to his attorneys for their services except for disbursements.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Doc. Dig. § 114.*]</p>

<p>1. Bankruptcy (§ 114*) — Receivers.</p> <p>Receivers in bankruptcy are necessary, and should be appointed only when the preservation of the estate demands their intervention.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 165; Dec. Dig. § 114.*]</p> <p>2. Bankruptcy (| 117*) — Receivers—Sale.</p> <p>Sales by receivers are justified only when the property is perishable, or is rapidly depreciating in value.</p> <p>]Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 167; Dec. Dig. § 317.*]</p> <p>3. Bankruptcy (§ 469*) — Receivers—Appraisement of Assets — Necessary Proceeding.</p> <p>Where immediately on the filing of a bankruptcy petition by a dry goods merchant certain lawyers by purchasing a claim and having the same assigned to a clerk in the office of one of them obtained the appointment of one of them as receiver on false representations to the judge, and further secured other associated' lawyers to be appointed as appraisers who made no proper appraisement, and then sought, but failed, to obtain an order for the immediate sale of the assets which was unnecessary, on false representations that it was necessary, to save rent and because insurance could not be obtained, such receivership and the proceedings thereunder were irregular and improper and of no value to the estate, and hence an allowance would not be made for the s»Tvices of a receiver or his attorney or those of the appraisers.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 469.*]</p>

<p>Commebce (§ 34*) — Interstate Commebce — Rates—Ch.vbacteb oe Shipment— Interstate ob Inthastate Shipment.</p> <p>Complainant railroad companies filed with the Interstate Commerce Commission a schedule of rates from points in Louisiana to New Orleans for export shipments. The Railroad Commission of Louisiana had also fixed a schedule of different and lower rates on local shipments between the same points. It also by an order allowed 4. days free storage on local shipments and 20 days on shipments intended for export, in. which order the railroads acquiesced, and also delivered shipments for export at ship's side free of charge for switching. Certain shipments were delivered to complainants from points in Louisiana for carriage to New Orleans on bills of lading of substantially the local form, and on their arrival the consignees demanded and received the free storage accorded export shipments and free delivery to the vessel carrier; the shipments being delivered by complainants directly from their cars to such carrier, asi was intended by the owner when it was shipped. Held that, notwithstanding the use of the local bills of lading, the contract between the shippers and complainants was one for an export shipment, over which the Louisiana Railroad Commission had no jurisdiction, and that complainants were entitled, and even required, to charge the rates on such shipments fixed by their schedules filed with the Interstate Commerce Commission.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 34.*]</p>

In Equity. Bill by James D. Carton, trustee in bankruptcy of the New Jersey-West Virginia Bridge Company, a corporation, against the West Virginia Bridge & Construction Company and others. Held: a resolution was adopted authorizing and directing the issue of $50,000 of bonds and deed of trust to secure the same, to be executed by W. A. Wilson, its vice president.

Action by Edwin H. Wendell against Howard Willetts to recover for services rendered in assisting defendant in the preparation of proofs of loss to recover insurance on defendant’s library. A verdict having heen returned for plaintiff for $3,500, defendant moves to set the verdict aside and for a new trial on the stenographer’s minutes, exhibits, etc., on the ground that the verdict is contrary to and unsupported by the evidence, and that the damages awarded are excessive.

' -In Bankruptcy. In -the matter of bankruptcy proceedings of Bruce Roberts. On objections to the lien claim of certain trust creditors. On petition to revise a referee’s order overruling the objections and allowing the claim.

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

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

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

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Philippi.</p>

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

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

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

<p>On Motion for New Trial and Motion for Judgment Notwithstanding the Verdict.</p>