Volume 184 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit by Jeremiah Smith, Jr., as trustee in bankruptcy of one Dunning, against the Mutual Life Insurance Company of New York and others, to recover, as assets disposed of in fraud of creditors, premiums paid by the bankrupt for deferred annuity contracts. P'rom a decree for complainant (178 Red. 510), the insurance company appeals.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts.</p> <p>In the matter of William H. Goodrich, bankrupt. On petition by the bankrupt to revise an order of the District Court.</p>

<p>1. Appeal AND Error (p 248*) — Record—Necessity op Exceptions.</p> <p>Iii the federal courts an exception, taken immediately on a ruling being made, is indispensable to a review of the ruling by an appellate court.</p> <p>TEd. Note. — For oilier cases, see Appeal and Error, Cent. Di’g.§§ 1432, 1435 ; Doe. Dig. P 248.*J</p> <p>2. Carriers (§ 22-'!*) — Contract tor Carriage op Dive Stock — Action tor BREAOII — 1) EFENSES.</p> <p>Where a railroad company contracted to carry cattle, to be shipped from a quarantined district in Texas, from Kansas City io Seattle, at a stated rate per car, it cannot avoid liability for the damages caused by its breach of the contract, by its refusal to receive the cattle at Kansas City, on the ground that it was without facilities for transporting them under the conditions required by law with respect io cattla from a quarantined district.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 223.*]</p> <p>8. Commerce (§ 52*) — Interstate Commerce — Power op Congress to Regulate — Shipment op Cattle prom Quarantine District.</p> <p>The provisions of Orders Nos. 3()(> and 107 of the Secretary of Agriculture, promulgated March 10 and 13, 1903, respectively, under authority of Act Fob. 2, 1903, c. 349, 3, 2, 32 Stat. 791, 792 (XT. S. Comp. St.. Supp. 3909, pp. 1183, 1384), establishing quarantine districts for cattle and regulations to be observed by carriers in the shipment of cattle from such districts, and which provide (Order No. 107, § 4) that “cattle from said area may he transported by boat or rail for immediate slaughter” subject to such regulations, have the force of law and are paramount with respect to interstate shipments; and Code Wash. 1890, §§ 3210, 0431, which prohibit the introduction of Texas cattle into the state, so far as they conflict with such federal regulations, are void.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 48-52; Dec. Dig. § 52.* |</p> <p>4. Appeal and Error (§ 1008*) — Matters Review able — Action Tried to Court.</p> <p>Where a. jury is waived in an action at law in a federal court, the findings of fact made by the trial court are not reviewable on error by tho Circuit Court of Appeals.</p> <p>IKd. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3955-3909; Dec. Dig. § 3008.*]</p>

<p>1. APPEAL AND ERRoR (~ l7i*)-~PflEsENTATToN IN Lowra Oouar OF GROUNDS or REVIEw--IssUEs ANI) rrnEoJ~y OF CAUSE.</p> <p>In the federal courts, iii actions at law, only questions presented to and determined by the trial court will be reviewed by an appellate court; and when a cause is tried upon an issue or theory presented by one of the parties in the trial eourt, that party will not be perniitted in the appellate court to present a different issue or theory for its consideration.</p> <p>rEd. Note-For other cases, see Appeal and Error, Cent. Dig. §~ 1053--1055; Dec. Dig. § 171.*]</p> <p>2. Appeal and Error (§ 270*) — Exceptions—Necessity—Ruling Sustaining Motion for Judgment Notwithstanding Verdict.</p> <p>Where no exception was taken to the ruling of a federal court sustaining a motion for judgment notwithstanding the verdict, the grounds of such ruling are not reviewable in an appellate court.</p> <p>• [Ed. Note.- — Eor other cases, see Appeal and Error, Cent. Dig. § 1609; Dee. Dig. § 270.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Texas.</p> <p>Action by the United States against the St. Uouis Southwestern Railway Company of Texas. From the judgment, the United States bring error.</p>

<p>In Error to the Circuit Court of the United States for the District of South Carolina,' at Columbia.</p> <p>Action by George W. Einstedt, an infant, by A. C. Linstedt, guardian ad litem, against the Atlantic Coast Line Railroad 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 Percy E. Kyner against the Portland Gold Mining Company. Judgment for defendant, and plaintiff brings error.</p>

In the matter of bankruptcy proceedings of Alfred Kessler and others, composing the firm of Kessler & Co. From an order of the District Court (176 Fed. 647), affirming an order of the referee declining to allow Heine & Co., Paris creditors, to amend their proof of claim, and disallowing their claim against the estate, they appeal.

<p>Injunction (§ 244*) — Action Against Surety on Bond — Condition Precedent — Award oe Damages Against Principal — Colorado Statute.</p> <p>Under tbe law of Colorado, where an injunction bond is conditioned, as provided by Code Oiv. Proe. Colo. § 147, “to pay all such costs and damages as shall be awarded against the complainant or complainants in case the injunction shall be modified or dissolved, in whole or in part,” no action can be maintained against the surety thereon prior to an award or assessment of damages against the principal, unless they are-joined as defendants as permitted by section 1G1 of such Code.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 560-5G3; Dec. Dig. § 244.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action at law by Elof A. Hanson and August L. Anderson against the Empire State Surety Company. Judgment for plaintiffs, and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of Texas, in Bankruptcy. In the matter of .Hart Mussey, bankrupt. Petition by D. Sullivan and others to review an order of the District Court.

Suit in equity by Nina Kittle Hancock, Administratrix, against George H. Torrey and others. Decree for complainant (170 Fed. 600), and defendants appeál. This was a suit to restrain infringement of United States patent Ño. 556,-972, issued March 24, 1896, upon the application of Clement A. Hardy, filed July 31, 1895, to his assignee C. A. Keating for alleged new and useful improvements in rotary disk plows.

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>Suit in equity by the Foster Hose Supporter Company against Thomas P. Taylor. Decree for defendant (180 Fed. 994), and complainant appeals.</p>

<p>In Rquity. Suits by the National Phonograph Company against the American Grapliophone Company, two cases, and by the New Jersey Patent Company against the same.</p>

<p>In Equity. Suit by the Sirocco Engineering Company and the American Blower Company against the Monarch Ventilator Company for infringement of patents Nos. 12,796, 12,797, and 12,798. On demurrer to bill.</p> <p>The bill alleged the grant of the original patent, and that thereafter the patentee granted to complainant Sirocco Engineering Company “the sole and exclusive license to manufacture, sell, and use” the patented invention, “except for certain reservations.” Proferí was made of the license agreement, from which it appeared that other patents were included in the license, and that the exclusive license granted contained the following reservations: “Provided, however, that the license hereby granted does not include apparatus for generating power (such, for example, as elastic fluid turbines or electric generators), it being understood that, if said inventions are applicable to such use, said patentee reserves to himself, his heirs and assigns, the sole and exclusive right to manufacture, use, and sell the same as part of such power generating apparatus only; and provided that this license shall not include the manufacture, sale, and use of tea machinery (being apparatus designated especially for, and used exclusively for, the preparation of tea), it being understood that said patentee reserves to himself, his heirs and assigns, the sole and exclusive right to manufacture said patented fans and other appliances in so far only as the same are built in as an integral part of such tea machinery.”</p> <p>The reissued patents were granted to the Sirocco Engineering Company as assignee of Davidson. Defendant demurred upon the grounds that the above instrument was a mere license, and not an assignment, and that hence the Sirocco Engineering Company did not have title prior to the granting of the reissued patents, and that said patents were improperly granted to said company as assignee, and are therefore void.</p>

In the matter of Amos L. Forse and George W. Roseboom, individually, and as members of the firm of Forse & Roseboom, bankrupts.

<p>Railroads (§ 229*) — Safety Appliance Act — Construction—Handholds on tiie Rear of Yard Engine.</p> <p>Safety Appliance Act (Act March 2, 1898, c. 19G, 27 Stat. 681 [U. S. Comp. St. 1901, p. 3174]) ¡5 4, provides that it shall be unlawful for any railroad company to use any car in interstate commerce that is not j»ro-vided with secure grabirons or handholds in the ends and sides of each .car for greater security to men in coupling and uncoupling cars. Held that, while the act was indefinite as to the number of handholds and as to the intended location thereof on the ends and sides of cars, it was not indefinite so far as it required handholds to be lirovided both in the ends and sides of cars, and that a yard engine used in interstate commerce was not equipped as required where no handholds were provided in the sides near the rear end of the tender though the tender was equipped with a running board, and an uncoupling lever bar which ran nearly across the entire back of the tender, and was so located and of such a character that it might serve as a handhold; it not axipearing that the presence of a handhold as required would not tend to greater security.</p> <p>IKd. Note. — Eor other cases, see Railroads, Cent. Dig. § 748; Dec. Dig. § 229.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p>

<p>Raidroads (§ 229*) — Safety Aiwi.tance Act--Construction-"Grahirons— “Car.”</p> <p>The requirement of the safety appliance act of March 2, 1893, c. 196. § 4, 27 Stat. 531 (TI. S Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, § 1, 32 Stat. 943 (TJ. S. Comp. St. Supp. 1909, i>. 1143), that it shall be unlawful for any railroad company to use “any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car, for greater security to men in coupling and uncoupling cars” applies to passenger cars, and a failure to comply therewith is not excused by the fact that the cars in question were equipped with air hose, steam hose or other appliances affording some measure of protection to employes.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*</p> <p>For other definitions, see Words and Phrases, rol. 1, pp. 969, 970; vol. 8, p. 7596.</p> <p>Duty of railroad companies Lo furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. O. A. 8.]</p>

At Raw. Action by Henry M. Susswein against the Pennsylvania.’ Steel Company. Plaintiff sued at law to recover damages for breach of defendant’s covenant contained in a lease to grade certain property.

In tlie matter of bankruptcy proceedings of the Morgantown Tin Plate Company. On petition to review a referee’s order allowing claims of George C. Sturgiss and Morgantown & Kingwood Railroad Company and by Sturgiss as assignee of George j. Humbird.

Petitions for writs of habeas corpus by Anders Herman Anderson and Olaf Rynning. In several petitions. Anders Herman Anderson and Olaf Ityiming pray for release from the custody of one John \V. Morrill, a deputy sheriff. Tile facts on which their applications rest are alleged to be substantially as follows: First. Petitioners are citizens of the kingdom of Norway.

<p>In Equity. Suit by the Louisville & Nashville Railroad Company against the Interstate Commerce Commission.</p>

<p>1. Public Lands (§ 114*) — Patents—Presumption of Verity.</p> <p>Patents for lands issued by the United States carry the presumption of verity, and can only be set aside on the most clear and convincing proof; and the rule applies, although they are attacked by the United States in 'defense of a suit to restrain their cancellation by the department.</p> <p>[Ed. Note.. — For other cases, see Public Lands, Cent. Dig. §§ 314-322; Dec. Dig. § 114.*]</p> <p>2. Indians (§ 13*) — Bight to Allotments of Land — Adoption into Tribe.</p> <p>Plaintiffs, who were formerly members of the Puyallup Tribe of Indians, but were of Yakima half blood, were invited by the Yakimas 1 > become members of that tribe for the purpose of sharing in the allot • ment of the lands of their reservation in severalty, which they did, having been formally adopted by the tribe in accordance with its customs. The Indian agent and the allotting agent were fully advised of such action which was taken- with their approval and with full knowledge of the facts recommended plaintiffs for allotments, and their recommendation was approved by the Secretary of the Interior, and patents were issued to plaintiffs, which recited that they were Indians “residing on the Yakima Indian reservation,” who had been allotted land therein. None of plaintiffs had received allotments elsewhere. The lands have since been for the most part resided upon and improved by the allottees, and have become valuable. Held, that the things done were all that were required to make plaintiffs members of the Yakima Tribes, and that, even if official ratification of the adoption was required, the action of the department amounted to such ratification.</p> <p>[Ed. Note. — for other cases, see Indians, Dec. Dig. § 13.*]</p> <p>3. Indians (§ 13*) — Right to Allotment of Lands.</p> <p>Plaintiffs were not debarred from the right to receive allotments on the Yakima reservation by the fact that their parents had received allotments on the Puyallup reservation as heads of families, and that plaintiffs were named in the patents as members of such families.</p> <p>[Ed. Note. — for other cases, see Indians, Dec. Dig, § 13.*]</p> <p>4. Equity (§ 85*) — Limitation of Actions (§ 11*) — Actions by — Defenses— Laches and Limitation.</p> <p>The rule that laches or limitation cannot be invoked against the United States does not apply where the government is not the real party in interest, but, if successful, the litigation must inure to the benefit of private individuals.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 221; Dec. Dig. § 85;* Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. § ll.*J</p> <p>5. Indians (§ 13*) — -Suits by United States to Cancel Patents to Allot-tees — Limitation.</p> <p>Act April 23, 1904, c. 1489, 33 Stat. 297, which authorizes the Secretary of the Interior to rectify mistakes and cancel patents to Indian allottees during the whole of the trust period for defects therein expressly mentioned, was not intended to render the general statute of limitations inapplicable by retaining jurisdiction over the lands during the whole of the trust period, except in the cases specified, and a suit by the United States to cancel such patents on other grounds is subject to the limitation of six years from the date of their issuance imposed by Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (U. S. Comp. St. 1901, p. 1521), on suits generally to cancel patents.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 13.*]</p> <p>6. Indians (§ 13*) — Patents to Allottees of Land — Cancellation—Authority of Interior Department.</p> <p>Where the Interior Department by its officers and agents has recognized the right of Indians to allotments of land as members of a tribe, after full investigation, with full knowledge of the facts and without fraud, and allotments have been made and patents issued to the allottees, the department is without authority to subsequently cancel such patents because of a change in its interpretation of the law; nor is there any equity which warrants a court in canceling the patents at suit of the government, the allotments being satisfactory to the tribe from whosa lands they were made.</p> <p>[Ed. Note. — for other cases, see Indians, Dec. Dig. § 13.*]</p>

In Equity. Suit by E. W. Bernitt and another against the Smith-Powers Logging Company and others for an accounting growing out of an alleged joint adventure. On demurrer to the bill, and on complainants’ application for a receiver.

In Bankruptcy. In the matter of bankruptcy proceedings of Ney-land & McKeithen. On objections to discharge. Held: however, that O. II. Neyland was individually .discharged in the former proceeding, certainly he could not be individually discharged in the'present proceeding, because of discharge in the former proceeding, being within six years; but it should be noted that the individual discharges, the firm only praying such relief, though the…

<p>3. Post Office (§ 49*) — Offenses —Obscene ' Letters — Evidence—Motive.</p> <p>Accused being on trial for sending an obscene letter through the mails, directed to G., the government offered in evidence an alleged reply to a letter written to accused by a postal inspector, written on the back of the inspector's letter, which the government claimed was in the handwriting of accused, stating that accused had received a dental certificate, and was glad to get it, because it saved him accepting free board and lodging for six months, and that, while he liked big dinners, he did not like to impose on good nature; the government claiming that this had reference to accused's conviction and incarceration before G., as a justice of tlie peace, on a charge of practicing dentistry without a license. It did not appear that the inspector had any knowledge of accused’s incarceration as claimed. Held, that the letter was not admissible as showing motive for sending the alleged obscene letter to G.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 49.*]</p> <p>2. Crcminai, Law (§ 401*) — Evidence—Handwriting-Standard of Compar - ison.</p> <p>Where a letter used as a standard for comparison of handwriting was not admitted by accused to be genuine, and liad not been treated by accused as genuine, it' was not admissible for tliat purpose, under B. & C. Comp. § 777, providing that evidence respecting handwriting may bp given by comparison with writings admitted or treated as genuine by the party against whom the evidence is offered.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. I>ig. § 892; Dec. Dig. § 404.*]</p> <p>3. Criminal Law (§ 404*) — Evidence—Handwriting—Standard op Comparison.</p> <p>A writing cannot be introduced in evidence for the sole purpose of using it as a standard to enable the jury to institute a comparison of handwriting to prove that accused wrote the writing in question, since only writings admitted or proved to be genuine and properly in evidence for other purposes may be used for that purpose.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § S92; Dec. Dig. § 404.*]</p>

In the matter of bankruptcy proceedings of the Standard Cordage Company. Motion to vacate an ex parte order appointing a receiver, and to dismiss a petition in involuntary bankruptcy.

In Fquity. Bill by Samuel V. Woods and others against Harriett L. Woods and others for partition of certain real estate and for an accounting. On final hearing. Decree ordered for complainant as against certain defendants for failing to appear and answer, and continued as to others for the trial of legal issues to a jury.

Action by one Higson against the North River Insurance Company. On defendant’s application for an injunction to restrain plaintiff’s in the state and on plaintiff’s motion to retire the case from the docket.

<p>In Admiralty. Suit by Henry Gelbtuch against the Steamship Koe-nigin Luise. On motion to strike out claimant’s plea.</p>

In Admiralty. Suit by the British & Foreign Marine Insurance Company and others against the Kilgour Steamship Company, limited, and the Munson Steamship Cine. Final hearing in Admiralty.

Action by Henry A. Hannum against Ella B. Jerome, as executrix of the last will and testament of Frank Jerome, deceased. On plaintiff’s motion for leave to amend, so as to make the action one against Ella B. Jerome, both individually and in her representative capacity, or one against her individually, and not in her representative capacity.

<p>1. Bankruptcy (§ 293*) — Suit by Trustee — Bankruptcy Coury — Jurisdiction.</p> <p>Bankr. Act July 1, 189S, e. 541, § 23b, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3431), as amended by Act Eeb. 5, 1903, c. 487, § 8, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1312), vesting tbe bankruptcy court with jurisdiction of suits by a trustee for tbe recovery of property under certain provisions of tbe act only unless by consent of tbe defendant, did not confer jurisdiction on tbe bankruptcy court of a suit by a trustee, under section 70e, authorizing a trustee to sue to set aside fraudulent conveyances of the bankrupt’s property under tbe state law, except by the defendant’s consent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 293.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Appearance (§ 19*) — Objections to Jurisdiction — Waiver.</p> <p>A general appearance of a defendant, and tbe filing of a demurrer on grounds going to tbe merits, as well as to the jurisdiction of tbe court, waives the objection that the court was without jurisdiction of defendant’s person.</p> <p>[Ed. Note. — For other eases,'see Appearance, Cent. Dig. §§ 79-90; Dec. Dig. § 19.*]</p> <p>3. Bankruptcy (§ 293*) — Action by Trustee — Bankruptcy Court — Objection to Jurisdiction — Waiver.</p> <p>Where a bankrupt’s trustee brought suit in the bankruptcy court to set aside an alleged fraudulent conveyance, as authorized by Bankr. Act July 1, 1898, c. 541, § 70e, 30 Stat. 566 (U. S. Comp. St. 1901, p. 3452), without' obtaining defendant’s consent, which was essential to the jurisdiction of such court, but the defendant appeared generally and demurred on a ground going to the merits, and also because of alleged want of jurisdiction, he thereby consented to the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 293.*]</p>

Amos W. Long was indicted for furnishing information and rendering services to one Gray, for hire, to assist him in the entry of certain land belonging to the government. On demurrer to indictment.

<p>Action by the United States against the Bonners Ferry Lumber Company, Limited. On demurrer to defendant’s answer.</p>

In the matter of William H. Kearney and others, comprising the firm of Kearney Bros., bankrupts. Review of order of C. L. Stone, referee, refusing to. direct the trustee to defend an action in replev-in broug'ht prior to the institution of .proceedings in bankruptcy, and permitting a compromise whereb3r the plaintiff in such action is to retain the goods replevied and which were not reclaimed, and discontinue the action without costs.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Action at law by D. A. Campbell against C. J. Adair and others. Judgment for defendants, and plaintiff brings error.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mechanics’ Riens (§ 245*) — Enforcement—Nature of Action.</p> <p>A suit to enforce and foreclose a mechanic’s lien is a suit in equity, an<l not an action at law in the national courts.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Riens, Cent. Dig. § 428; Dec. Dig. § 245.*]</p> <p>2. Actions (§ 30*) — Distinction Between Actions at Raw and in Equity— National Courts.</p> <p>The difference between causes of action at law and in equity inheres in the natures of the causes, is of substance, and not of form, cannot lie eradicated by declarations or names, and is sedulously preserved in the national courts.</p> <p>IKd. Note. — For other cases, see Action, Cent. Dig. § 21.6; Dec» Dig § 30.*]</p> <p>3. Courts (§ 414*) — Actions (§ 30*) — Dual Jurisdiction of Circuit Courts— Suit at Daw or in Equity.</p> <p>The Circuit Courts of the United States have a dual jurisdiction, a jurisdiction at law and a jurisdiction in equity, vested in the same judges and officers.'</p> <p>The facts stated, and the relief sought in a first pleading, and not its form or name, determine whether it invokes the jurisdiction and commences a suit at law or in equity.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 414 ;* Actions, Dec. Dig. § 30.*]</p> <p>4. Equity (§ 275*) — Pleadings—Amendment.</p> <p>An amendment to a pleading which sets forth no new cause of action relates back to the filing of the ¿leading amended, and the case stands as though the amendment had been then filed.</p> <p>TIM. Note. — For other' cases, see Equity, Cent. Dig. § 567; Dec. Dig. § 275.*]</p> <p>5. Equity (§ 330*) — Defects—Waiver.</p> <p>Defendants whose names are stated in the caption or the body of the bill, who have been subpoenaed, have appeared generally, and have defended on other grounds, but have not demurred on the specific ground that the bill contains no prayer for process, are estopped from defeating , the pleading of the suit, on that ground, for such a defect is of form, and not of substance.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. §§ 661, 662; Dec. Dig. § 330.*]</p> <p>6. Limitation of Actions (§ 118*) — Dis Pendens (§ 22*) — Süit Commenced by Filing of Bill.</p> <p>A suit in equity is commenced in a national court by the filing of the bill with the honest intention to prosecute the suit diligently, provided there is no detrimental or unreasonable delay in the subsequent issue or service of the subpoenas.</p> <p>However, notice of lis pendens is not given by the filing to a bona fide purchaser until the subpoenas are served on the material defendants.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 528; Dec. Dig. § 118;* Lis Pendens, Cent. Dig. § 35; Dec. Dig. § 22.*]</p> <p>7. Courts (§ 366*) — Federal Courts — Effect of Decisions of State Courts ■^-Limitation.</p> <p>The courts of the state of Missouri hold that where a petition to enforce a mechanic’s lien that was created and limited by a statute of that state is filed within the time limited, but the process is not issued until after the expiration'of that time, the suit is not barred.</p> <p>Held: Applying the doctrine of laches in analogy to this statute, as interpreted by the courts of the state, a complainant in a federal court who pursues a similar course is not guilty of fatal laches.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. 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>Limitation of Actions (§ 127*) — Commencement of Suit — Amendments.</p> <p>A complainant on the last day for commencing such a suit filed, in a Circuit Court of the United States in a state in which a suit to enforce a mechanic’s lien may be tried and treated in the state courts as an action at law, a petition to enforce a mechanic’s lien which was in the form used in such courts, and not in the form of'a bill in equity in the federal courts, but which stated facts and prayed relief sufficient to constitute a good cause of action in equity. Three days later the complainant caused subpoenas to be issued and served. Six days after the filing of the bill, and before any copy had been taken out of the clerk’s office, the complainant filed an amended bill in the form of a bill in equity which stated no new cause of action.</p> <p>Held: The filing of the original pleading was the commencement of a suit in equity, the amended bill related bach to that time, and the suit was not barred by laches, although the subpoenas were not issued until three days after the time to commence the suit prescribed by the statute had expired.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 456-468; Dec. Dig. § 260.*]</p> <p>& Mechanics’ Liens (§ 23*) — Eight to Lien — Improvement Remaining Property of Lessee.</p> <p>A. made a lease to B. of a ^wa rehouse he was to rent, and therein gave B. .permission to insulate it to enable him to use it as a cold storage warehouse, by placing within it material which could not be removed without destroying the value of the material and seriously injuring the building, but they stipulated in the lease that this material should not be a part of the realty, but should remain the property of the lessee, and the latter, by a provision of the lease, pledged this material to secure payment of the rent. The lease was recorded, A. constructed the building, thereafter the complainant made a contract with B. to insulate the building and performed the contract.</p> <p>Held: The reversion of the lessor was not liable to a mechanic’s lien for the value or the price of the insulation.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 24; Dec. Dig. § 23.*]</p> <p>10. Mechanics’ Liens (§ 10*> — Property Subject.</p> <p>Personal property is not liable to a mechanic’s lien.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 12; Dec. Dig. § 10.*]</p> <p>11. Fixtures (§ 4*) — Intent of Owner.</p> <p>The true test of the character of an improvement is the intent of the owner of the real estate to incorporate, or not to incorporate, it permanently in his realty as a part thereof.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 3; Dec. Dig. § 4.*]</p> <p>12. Fixtures (§ 14*) — Personalty and Realty Between Lessor and Lessee, Vendor and Vendee and Mortgagor and Mortgagee.</p> <p>The line of demarcation between realty and personalty in cases of landlord and tenant differs from that in cases of vendor and vendee, or mortgagor and mortgagee, because the occupancy of the premises is more transitory in cases of landlord and tenant.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 22; Dec. Dig. § 14*]</p> <p>13. Mechanics’ Liens (§ 78*) — Improvement by Lessee — Record of Lease-Notice to Contractor.</p> <p>The record of a lease is notice to a subsequent contractor with the lessee of the terms of the lease pertinent to the questions of a mechanic’s lien upon the reversion of the lessor.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 111; Dec. Dig. § 78.*]</p>

Actions at law by Warren G. Partridge, administrator, and by Alice B. Minard, against the Boston & Maine Railroad Company. Judgment for defendant in the first action, and plaintiff brings error. Affirmed. Judgment for plaintiff in the second action, and both parties bring error.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western District of Michigan.</p> <p>In the matter of Union Bank, Whitney, Gilkey & Co., a copartnership, Wallace W. Dewey, Elias W. Bowman, Patrick H. Gilkey, Asa Stratton, Rell S. Wilson, and Richard D1. Whitney, individually and as members of said copartnership, bankrupts. On petition of Robert R. Telfer, trustee* to review an order of the District Court.</p> <p>Robert R. Telfer, as trustee in bankruptcy, has brought two cases into this court upon petitions to review in matter of law an order made by the court below in each case reversing the order of the referee.</p> <p>Patrick II. Gilkey, Wallace W. Dewey, Elias W. Bowman, Rell S. Wilson, Richard D. Whitney, and Asa Stratton, as copartners, conducted a banking business in Michigan under the name of Union Bank, Whitney, Gilkey & Co. In November, 1907, the copartnership and all the partners were adjudicated bankrupts. The Kalamazoo Trust Company was later selected as trustee of the several bankrupt estates. Telfer, present trustee, is its successor.</p> <p>A claim of the Central National Bank against the estate of Gilkey was proved and allowed in the sum of $5,000. David L. Merrill also presented a claim against the estate of Gilkey winch was finally allowed for $10,482.91.</p> <p>On September 9, 1908, the trustee on behalf of the copartnership filed proof of a claim against the estate of Gilkey for a loan of money repre-sentecl by certain promissory notes signed by bim with others to the amount of §95,502.13, which ciaim was allowed on the following day. It is agreed that: “No personal notice was given to either of the petitioners of the proof and allowance of this claim.” The claims allowed against Gilkey’s estate, excepting that of the copartnership, amounted to §33,002.61, and claims to the amount of §127,520.29 were allowed against the copartnership. Two dividends, one of 20 per cent, and another of 5 per cent., were declared on certain of the partnership claims; and also one of 14 per cent, on the separate claims against Gilkey, excepting those of the Central Bank and Merrill. The first dividend paid on claims against Gilkey’s estate amounted to $15,117.62, of which §13,370.30 was paid to the estate of the bankrupt copartnership. Merrill filed a petition with the referee asking that his claim against Gilkey’s estate be paid in full before the copartnership estate be paid any dividend on its claim against the Gilkey estate, and that the trustee of the copartnership be required to return to Gilkey’s estate a sufficient amount of the dividends taken from it to pay this claim. The Central National Bank filed with the referee a similar petition respecting its claim. The referee entered orders denying the petitions, which orders as stated were reversed by the court below.</p> <p>By the orders of the court below the petitioners were given priority in payment of ilieir claims out of the estate of Gilkey as against the trustee of the copartnership on its claim against such estate, and the trustee was directed to pay to the petitioners their respective claims in full out of the assets of such estate or so much thereof as the property might be able to pay (taking into consideration other individual creditors whose claims had been allowed), and was further directed, if sufficient funds were not realized from the estate to pay the claims in full, to “turn back and pay over into the hands of the trustee” of Gilkey “all moneys (or other moneys instead thereof) which may have heretofore been paid by said trustee of the estate of Patrick H. Gilkey out of his individual property” either to the copartnership or to its creditors; “or so much of said money which has been paid as shall be necessary to pay in full” the claims of the petitioners, and that the assets of the bankrupt estates shall bo marshaled accordingly.</p>

Suit in equity by William Dove against the Louisville & Eastern Railroadi company. On petition by Henry Glover, receiver, against the City of Shelbyville, Ky. From an order granting a preliminary injunction, the city appeals.

W. J. Hogue was convicted of a criminal offense, and brings error.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts. ></p> <p>Action at law by Michael J. Houlihan against the Corporation of St. Anthony in New Bedford. From an order (173 Fed. 496) relating to costs, defendant brings error.</p>

<p>1. Appeal and Error (§ 263*) — Assignments op Error — Necessity op Exceptions.</p> <p>Assignments of error, based on a charge of the court to which no exceptions were taken, are not reviewable. ■</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dee. Dig. § 263.*]</p> <p>2. Appeal and Error (§ 1056*) — Exclusion op Evidence — Prejudice.</p> <p>Where, in an action for injuries to and death of a servant, defendant was allowed wide latitude in the cross-examination of plaintiff’s physicians on the issue whether decedent’s death was the result of the accident, he was not prejudiced by the court’s refusal to permit a question as to whether syphilis in a patient advanced to the stage of gumma in the brain would produce headache and thrombosis, in the absence of any offer of proof that deceased was afflicted with that disease.</p> <p>[Edk Note. — For other cases, see Appeal and Error, Dec. Dig. § 1056.*]</p> <p>3. Trial (§ 296*) — Instructions—Prejudice—Cure by Other Instructions.</p> <p>Where, in an action for injuries to and death of a servant as the alleged result of the fail of a weight on his head, the court charged at defendant’s request that, if the jury believed from the evidence that deceased died from a tumor caused by tuberculosis, syphilis, or other cause, it must find for the defendant, and that the burden of proof was on plaintiff to show that the death was caused by the blow, defendant was not prejudiced by a prior instruction, in which the court stated that he did not recall testimony tending to show that deceased ever had tuberculosis or syphilis.</p> <p>[Ed. Note — For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296.*]</p>

Claim by Joseph D. Lowe for an alleged balance due him on the purchase and sale of stock of a bankrupt who prior to bankruptcy conducted the business of a stock trader. The claim was disputed by the trustee on the ground that the transactions were wagering contracts, and therefore invalid. This contention was overruled, and the claim allowed by the referee, who held that the evidence showed that the transactions were valid and real.

Jerome E. Hardesty and another, each having been convicted of violating the federal oleomargarine act and each sentenced to a term of imprisonment and to pay a fine of $1,000 and the conviction having been affirmed, the United States applied for judgment in that proceeding on defendants’ supersedeas bond against the Fidelity & Guaranty Company, defendants’ surety. From a judgment in favor of the United States on the bond, defendants and the surety company bring error.

Appeals from tlie District Court of the United States for the District of Maryland, at Baltimore. Suits in admiralty by Sarah J. Egan, administratrix of the estates' of John J. Egan and John Egan, respectively, against the Southern Towing Company. Decrees for libelant, and respondent appeals.

Suit in admiralty by Edward G. Murray as owner of the canal boat George Emsley against the Shepard & Morse Lumber Company and the steam tug Willie, Charles W. Bridgins and others, claimants. Decree for respondents, and libelant appeals.

<p>Í. Collision (§ 17*) — Fault-Obedience to Rules.</p> <p>Obedience to the rules of navigation is not a fault, even if a different course would have prevented a collision, and the necessity must be clear and the emergency sudden and alarming before an act of disobedience can be excused.</p> <p>rild. Note. — For other cases, see Collision, Cent. Dig. § 16; Dee. Dig. § 17.*]</p> <p>2. Collision (§ 45*) — Steam and Sailing- Vessels Meeting — Failure or Steam Vessel to Keei> Out oe the Way.</p> <p>A collision occurred in the daytime in calm weather between a small sailing vessel known as a “bugeye” sailing down the Patapsco river in a southeasterly direction, with a 14-mile northeast wind, and an empty scow in tow of a tug on a 300-foot hawser passing up. At the time of collision the tug was to the eastward of the bugeye, and there were no other vessels in the vicinity, which left ample room for safe navigation. Held, that the case was governed by articles 20 and 21 of the inland rules (Act June 7,1897, c. 4. 30 Stat. 101 [U. S. Comp. St. 1901, p. .2883]), which required the tug to keep out of the way and the sailing vessel to keep her course and speed; that, under the evidence, the latter complied with such rules and that the fault was solely that of the tug which, if she did not cross the course of the other vessel as claimed, failed to give sufficient room to allow for the tailing of the scow to leeward.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 61; Dec. Dig. § 45.*</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>3. Shipping’(§ 63*) — Intoxication op Master.</p> <p>Intoxication of master. Such charge presents a grave question. Only sober persons should be placed in charge of, or allowed to navigate or take part in the navigation of, vessels plying the seas or other navigable waters; and too much care cannot well be adopted in prescribing and enforcing rules intending to bring about such result, or make such condition impossible, or at least exceedingly improbable.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 63.*]</p>

Action at law by the Buffalo Forge Company against the N. P. Pratt Eaboratory. Judgment for plaintiff, and defendant brings error. The action is upon a contract dated October 4, 1906, whereby the plaintiff for the s'um of $4,050 agreed to install for the defendant at Atlanta, Ga., a heating apparatus for its plant, consisting of two large buildings and three small ones.

Suit in admiralty by the Northern Elevator Company against the steamer Rappahannock; the Davidson Steamship Company, claimant.' The suit was brought to recover damages sustained by a cargo of grain shipped by the steamship Rappahannock, in October, 1905. The voyage was from ports in Lake Superior to Buffalo. Decree for respondent (173 Fed. 829), and libelant appeals.

<p>Principal and Agent (§ 89*) — 'Action foe Compensation — Request to ChrAKGB - Refusal — Evidence.</p> <p>In an action to recover commissions on coal sales, evidence hold to require the granting of a request to charge that if the jury from the evidence believed, at the time a certain contract for the sale of coal was made, plaintiffs employment contract covering the territory in question had been terminated, they should find for defendant.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 80.*]</p>

<p>Appeabance (§ 9*) — Judgment (§ 419*> — General Appeabance.</p> <p>The filing of a demurrer to the declaration on the merits by attorneys authorized to represent a defendant constituted a general appearance, and gave .the court jurisdiction over the defendant, which was not affected by the subsequent striking of the demurrer from the files and the entering of a default by the court, so as to afford ground for enjoining the enforcement of the judgment for want of jurisdiction.</p> <p>[Ed. Note.. — For other cases, see Appearance, Dee. Dig. § 9;* Judgment, Cent. Dig. § 794; Dec. Dig. § 419.*]</p>

<p>Patents (§ 311*) — Suit for Infrincement — Right to Recoves Profits and Damages — Variance Between Allegations and Proof as to Notice.</p> <p>The owner'of a patent who alleges in a bill for its infringement that he has put his patented improvement to practical use, and has always been ready to supply it to the public, and that except for the infringement complained of he would be in the receipt of the profits therefrom, and, further, that defendant continued infringement after notice, cannot be allowed, after his patent has been sustained and an injunction to restrain further infringement awarded, to shift his ground of complaint on the accounting before the master by claiming that he had never made nor sold the patented article, and therefore it had never been marked as required by Rev. St. § 4900 (U. S. Comp. St. 1901, p. 3388), and to recover profits and damages notwithstanding the want of such notice.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 311.*]</p>

<p>1. Shipping (§ 166*> — Liability fob Injury of Passengek — Cake as to Condition of Deck op Steamship.</p> <p>Tlie degree of care appropriate to boilers or to the sufficiency of the hull of a steamship is very different from the degree of care required with reference to the washing of the decks, and where a passenger on a steamship was injured by slipping a.nd falling while walking on tin-wet deck, which she claimed was not kept in proper condition, the court, in an action to recover for the injury, properly refused to charge that defendant owed the plaintiff “very great care,” and charged that it was hound to exercise reasonable care under the circumstances.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 538-552; Dec-Dig. § 168;* Carriers, Cent. Dig. § 1186.]</p> <p>2. Trial (§ 45*) — Offer of Proof — Sufficiency of Offer.</p> <p>In an action by a steamship passenger to recover for an injury re ceived by slipping and falling on the deck which it was alleged was not kept in proper condition, where plaintiff testified to having made other voyages, the exclusion of a general offer to show “what she noticed as to the decks of the vessels of these lines” was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 110-114; Dec. Dig. | 45.*]</p> <p>8. Apbeal and Error (§ 1056*) — Rejection of Evidence — Discretion or Court.</p> <p>Rulings of a trial court in excluding evidence held within its discretion and without prejudicial error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Doc. Dig. § 1056.*]</p>

Suit in admiralty by Nelson Olsen and others against the steam tug John T. Pratt and the Keystone Coal & Coke Company against the same. Consolidated causes. From a decree in favor of libelants, Hector M. Hitchings, claimant, appeals.

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty by the Baker Transportation Company, as owner of the barge Powell, against the steam tug John A. Hughes, Janies E. Hughes, claimant, and the steam tug Scranton, the Delaware, Lackawanna & Western Railroad Company, claimant. Decree for li-belant (156 Fed. 879), and claimants appeal. Reversed.

of the United States for the Northern District of West Virginia, at Philippi. Suit in equity by Isaac McDaniels against Charles D. Gillaspie, Isaac C. Woodford, and others. Decree for complainant, and defendants Woodford and Claude W. Maxwell, trustee in bankruptcy for defendant Gillaspie appeal.

Libel by the United States against one trunk and contents, Anna McNally, claimant. Judgment for claimant (171 Fed. 773), and libel-ant brings error. This cause comes here upon a writ of error to review a judgment of the District Court, Southern District of New York, in favor of defendant in error, who was defendant below.

Suit in admiralty by the New York & New Jersey Transportation Company against the Pennsylvania Railroad Company. Decree for libelant, anti respondent appeals. The action is in personam, the libelant being unable to name the respondent’s tug which did the injury.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Habeas corpus proceedings by Thakla Nicola, by Bertha Gendering; and by Paris Der Plohanessian, respectively, against William-Williams, Commissioner of Immigration. From an order granting the writ in each case, respondent appeals.</p>

<p>Action by Theodore R. Converse, as receiver, against Edward C. Spargo, as. executor. On demurrer to a defense.</p>

<p>In Error to the Circuit Court of tlie United States for the Western District of Pennsylvania.</p> <p>Action at law by Erank H. Moss and others against the City of Pittsburg. Judgment for defendant (178 Eed. 605), and plaintiffs bring error.</p>

<p>Patents (§ 328*) — 'Validity and Infringement — Railway Switch Structure.</p> <p>Tile Moxham patent. No. 536,734, for a railway switch structure, claim 1, is void for lack of invention. Claim 6, conceding it valid as showing invention, must he limited to the precise structure described. As so limited, held, not infringed.</p>

Suit in equity by tlie Underwood Typewriter Company against the Typewriter Inspection Company. Decree for defendant, and complainant appeals. The patents are numbered 559,345 and 633,672, and are referred to respectively as senior and junior. The opinion at circuit is found in 177 Fed. 230. The dismissal was upon a finding of noninfringement.

Suit in equity by the Winchester Repeating Arms Company against the Peters Cartridge Company. Decree for defendant (173 Fed. 86), and complainant appeals. The bill alleged infringement by the defendant of claims of letters patent No. 563,157 granted to John Gardner, June 30, 1896, for an improvement in paper-shell cartridges.

Action by the United States of America against the Western & Atlantic Railroad Company to recover a penalty for a violation of the safety appliance act. Demurrer to the declaration.

<p>1. Bankruptcy (§ 314*) — Sale of Business — Noncompletion oe Contract-Damages.</p> <p>Where, after a sale of a bankrupt's saloon business for $1,400 as a going business, the trustee delivered the keys to the attorney for the landlords, who refused to give possession to the purchaser pursuant to a notice given at the sale that they would not lease the premises to any purchaser except L., and, after the purchaser had failed to get possession, he sold the property so purchased to L. for $2,000, he was not entitled to the allowance of a claim against the bankrupt’s estate for a cash disbursement made in his endeavor to secure possession of the property purchased.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p> <p>2. Bankruptcy (§ 272*) — Disbursement by Trustee — Removal oe Goods.</p> <p>Where, after a sale of a bankrupt’s business, the trustee turned over the keys to the attorney for the landlords, who were hostile to the purchaser, and refused to give the purchaser possession, and the landlords then notified the trustee to remove the property from the building within 48 hours, which he proceeded to do, while the purchaser was endeavoring to get possession, the trustee was not entitled to an allowance for the cost of removing the property and in storing it in another place.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 272.*]</p> <p>3. BANKRUPTCY (§ 314*)-CLAIM-PAYMENT FOR WATER BY LANDLORD.</p> <p>Where 1he landlords’ payment of a wafer bill for 1ho premises which a bankrupt had occupied was made after they were in undisputed possession to avoid having the water shut off from the premises, and such payment: was of benefit to themselves and their succeeding tenant, they were not entitled to an allowance t hereof as a claim against the bankrupt’s estate.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*)</p> <p>4. Bankruptcy (§ 318*)- -Or,atm — Landlords’ IDgut to Bent.</p> <p>Where a bankrupt’s trustee gave up the keys to the bankrupt's place of business almost immediately after he received them to the attorney for the landlords, the trustee incurred no liability for rent which accrued before he took possession.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Dee. Dig. § 318.*]</p>

<p>Courts (§ 346*) — Federal Courts — Jurisdiction—Adoption- of State PRACTICE — ATTAOmnsiNT.</p> <p>Since common-law actions can only be brought in a federal court in the district in which the defendant is an inhabitant, or in which he is found at the time of the serving of the process, unless he voluntarily appears, an action cannot be maintained by the United States against a nonresident in a federal court by attaching defendant’s property within the jurisdiction, without personal service of summons, notwithstanding Rev. St. § 914 (TJ. S. Comp. St. 1901, p. 684), providing for conformity to state practice in actions at law, and section 915 providing that such remedies by attachment are authorized in the federal court as are provided by the laws of the state in which the court is held, since an attachment cannot take the place of initial process, but is merely an incident of the suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 918; Dec. Dig. § 346. *</p> <p>Conformity of practice in common-law actions to that of state courts, see notes to O’Connell v. Reed, 5 C. G. A. 594; Nederland Life Ins. Co. v. Hall, 27 O. C. A. 892.]</p>

<p>In Equity. Bill by Joseph M. Bettes again-st J. M. Brower.</p>

In Admiralty. Suit by the Erie & Western Transportation Company against the Great Lakes Towing Company. On exceptions by libelant to interrogatories annexed to respondent’s answer.

<p>3. Injunction (§ MS*) — Grounds for Denial op Preliminary Injunction— Eppect op Answer.</p> <p>Where the equities of a bill are fully and specifically denied by a sufficient answer under oath, the court usually denies an injunction pendente lite for the reason that such an answer is deemed to overcome the equities of the bill.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 319; Dec. Dig. § 146.*]</p> <p>2. Carriers (§ 33*) — Regulation op Rates by State — Validity.</p> <p>A rate fixed by a state railroad commission for intrastate traffic, if just and reasonable in and of itself, cannot he held to he unlawful and discriminatory because it may conflict with some rate fixed by the railroad company for interstate traffic.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 21-24; Dec. Dig. § 13.*]</p> <p>3. Carriers (§ IS*) — Regulation op Rates by State — Validity op Rates</p> <p>Fixed — Suit por Injunction.</p> <p>The showing made by complainants in suits on behalf of railroad companies to enjoin the enforcement of rates for the transportation of timber products between certain points in Nevada, fixed by the railroad commission of- the state after a hearing, held not sufficient to support the claim that such rates are unjust and unreasonable and would not be remunerative, or to warrant the granting of a preliminary injunction.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 20, 24; Dec. Dig. § 18.*]</p>

In Admiralty. Suit by the P. Dougherty Company, as owner of the barge Norfolk, against the Palace Shipping Company, Limited, as owner of the steamer Franldyn; the steamtug Albatross, impleaded.

<p>1. Shipping (§ 132*) — Damage to Cargo from Sea Water — Liability oe Vessel — Burden of Proof.</p> <p>A vessel lias the burden of proof to show that damage to her cargo from sea water was caused by perils of tlie sea and within the exceptions in the bills of lading, and testimony that on the voyage she encountered gales which caused her to roll, and that rivets in her side were found loose on her arrival in port, is not alone sufficient, without showing that reasonable precautions had been taken to prevent the wetting of the cargo, and that the rivets were in place at the beginning of the voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 482; Dec. Dig. § 132.*</p> <p>Losses by perils of the sea, see notes to The Dunbritton, IP C; C. A 465; Southerland-Innes Co. v. Thynas, 64 C. C. A. IIS.]</p> <p>2. Shipping (§ 126*) — Responsibility for Goods After Unloading.</p> <p>A consignee of cargo has a reasonable time within which to remove the merchandise from the wharf on which it is unloaded, and during the interim the carrier is bound to exercise reasonable care to protect it from injury from exposure to rain or water; the degree of care depending on the character of the goods.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 401-464; Dec. Dig. § 126.*]</p>

Libel in admiralty by the Stockton Milling Company and another against the California Navigation & Improvement Company to recover for injuries to a cargo of flour. From a decree awarding damages (165 Fed. 356), respondent appeals. Affirmed.

Suit by A. B. Robertson and others against Sidney P. Allen to cancel a contract for the sale of land. Judgment for defendant, and plaintiffs appeal. This suit was instituted by the appellants, complainants below, to cancel an alleged contract of sale of lands executed by Trammell & McCauley, purporting to act as agents of complainants, with the defendant.

Deportation proceedings by the United States against Gee Cue Beng. From an’ order of deportation, affirmed by the District Court, defendant appeals. On April 2, 1910, an affidavit was made by Alfred W. Brough, Chinese inspector, before the United States commissioner, charging the appellant, Gee Cue Beng. to be a Chinese person unlawfully in the United States without a legal certificate, in violation of the Chinese exclusion laws.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action at law by Pauline A. Smith against the Boston Elevated Railway Company. Judgment for defendant, and plaintiff britigs error.</p>

Suit in admiralty by the Toledo Steamship Company against the Zenith Transportation Company. Decree for respondent, and libel-ant appeals.

In Bankruptcy. In the matter of the New England Breeders’ Club, bankrupt. From an order denying the petition of Nathaniel W. Hobbs, trustee, to disallow an alleged mechanic’s lien claim, reduced to judgment of foreclosure in the state court in favor of Head & Dowst Company, petitioner appeals, and also brings a petition to revise.

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>Action at law by Edward A. Torbert against George W. Van Boskerck and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Tn Rrror to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action at law by Richard Stockton, administrator of William R. Stockton, deceased, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</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 Travelers’ Insurance Company against the Great Rakes Engineering Works Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by the United States against Benjamin D. Greene, Luther Lofflin Kellogg, and the Norfolk & Western Railway Company. From an order (United States v. Greene, 163 Fed. 4A2) denying the application of Mary C. Leary, administratrix of James D. Leary, deceased, lor leave to file a petition of intervention, she brings error.

<p>In Error to the Circuit Court of the United States for the District of Connecticut.</p> <p>Action on the case to recover damages from Central Vermont Railway Company, for partial loss by fire of six icehouses and contents belonging to Robbins & Pattison. Fire caused by flying sparks from an engine of the railway company. Verdict and judgment for plaintiff, $31,866.22. Defendant took this writ.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by the Car Trust Investment Company against the Metropolitan Trust Company of the City of New York. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Internal Revenue (§ 8*) — Legacy Taxes — Construction or Repealing Act — ‘ T .mposkd. ’ ’</p> <p>Within the meaning of Act April 12, 1902, c. f>00, § 7, 32 Stat. 97 (U. S. Comp. St. Supp. 1909, p. 870), repealing War Revenue Act June 13, 1898, e. 418, § 29. 30 Stat. 401 (U. S. Comp. St'. 1901, p. 2307), which provided for legacy taxes “to become due and payable in one year after the death of the testator,” but excepting from its operation all taxes “imposed” by said section 29 prior to the taking effect of the repealing act, on July 1, '1902, a tax was “imposed” one year after the death of a testator and where such year expired prior to July 1, 1898. the tax was collectible although not assessed until after such date.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 8.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3440.]</p> <p>2. Internal Revenue (§ 8*) — Legacy Taxes — 'Vested Legacy.</p> <p>Where a testator who died Ain rah 31, 1901, devised and bequeathed his residuary estate to trustees, with directions to set: aside sufficient prop--erty to produce a certain income to bo paid to his widow during her life, and to pay over one-fourth of the remaining income, after reserving a part to pay certain incumbrances, to each of his four children, or in the event of the death of either to his or her heirs or devisees, the corpus of the estate after the deatli of the widow, and the .termination of the trust to be divided between such children or their heirs or devisees, each child took a vested estate at once in possession or enjoyment in one-fourth part of the residuary estate except the portion to be set apart for the benefit of the widow, and in such portion on her death, and where that event occurred prior to July 1, 1902, their entire interests 'were subject to the legacy taxes imposed by War Revenue Act June 13, 1898, c. 448, § 29, 30 Stat. 404 (IT. S. Comp. St. 1901, p. 2307).</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 8.*]</p>

Action at law by John L. High, trustee in bankruptcy of the Frank B. Mirick Company, against the Opalite Tile Company. Judgment for defendant, and plaintiff brings error.

<p>CoJULisrox (1 39*) — Steam Vesski.s Cbossing — Fault.</p> <p>A collision at night in New York Bay between a ferryboat and tug on crossing courses held on the evidence to have been due to the fault of the ferryboat in changing her course.</p> <p>FEd. Note. — For other eases, see Collision, Cent. Dig. § 39; Dee. Dig. § 39.*]</p>

<p>On petition for rehearing.</p>

In the matter of A. O. Brown and others, bankrupts. From an order of the District Court, James E. Gorman appeals. This is an appeal from an order setting aside the report of the referee and special master, and dismissing petitioner’s application to have 250 shares of Greene Cananea Copper Company stock delivered to him. The bankrupt bought 250 shares of such stock for him, on April 14, 1008. in odd lots from various sellers and received certificates therefor.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by Francis X. Byerley against the Sun Company. Decree for complainant (181 Fed. 138), and defendant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by the Central Oil & Gas Stove Company against Silver & Co. and John H. Ernst. Decree for defendants (168 Eed. 712), and complainant appeals.</p>

<p>In Equity. Suit by Walter S. Ely and Benjamin G. Hitchings, incorporated, against the Van Kannel Revolving Door Company.</p>

<p>Patents (§ 211*) — Licenses--Construction of Contract.</p> <p>Plaintiff and defendant entered into a contract, reciting that plaintiff was the owner of patents for a process and machinery for producing commercially refined (nitro) glycerine from waste soap lyes and that defendant was a producer of such waste Soap lyes. The contract granted to defendant the right to use such machinery and process during the life of the patents, on payment of royalties, and further provided that if defendant should, before the expiration of the patents, “discontinue the use of the said first: party’s within-named process for any other,” it should pay to plaintiff a stipulated sum in lieu of future royalties. I)e-fendant discontinued the use of plaintiff’s process, and adopted a new process for extracting the glycerine from the original fats before saponifi-cation, and in consequence did not produce any waste soap lyes. Held, that the subject-matter of the contract was the treatment of Avaste soap lyes, and that, as it contained no provision requiring defendant to continue the production of such lyes, it did not by the substitution of the process, which did away with such production, discontinue the use of plaintiff’s process for treatment of such lyes for any other, within the meaning of the contract, and was not liable under such proAusion.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 804-311; Dec. Dig. § 211.*]</p>

<p>1. Corporations (§ 265*) — Joinder op Plaintiffs — Action to Enforce Liability op Stockholder.</p> <p>Owners of separate judgments against an insolvent Missouri corporation, each entitled under the statutes of that state to maintain an action against any stockholder of such corporation whose stock is not fully paid for to recover the amount due thereon to the extent of his judgment, cannot join in such an action against a stockholder; their causes of action being personal and several.</p> <p>[Ed. Note. — For other eases, see Corporations, Dec. Dig. § 265.*]</p> <p>2. Titusi's (§ 160*) — Jurisdiction to Appoint Testamentary Trustees— PENNSYLVANIA STATUTE.</p> <p>Under the statutes of Pennsylvania (Ad, June 14. .1836 [P. IV. 6321 § 1.1, and Ad April 22, 1846 [P. L, 4S'!i § J). a register of wills luid no authority to appoint testamentary trustees for the estate of minors, and trustees so appointed had no power to hind the estat* by any contract.</p> <p>[Ed. Note. — For other eases, see Trusts, Dec. Dig. § ICO.*]</p> <p>3. Trusts (§ 239*) — Joint Trustees— Contracts — Necessity of Joint Action.</p> <p>Where two joint trustees were appointed for the estate of minors, one acting alone liad no authority to purchase stock in a corporation so as to bind the estate as a stockholder.</p> <p>¡Ed. Note. — For other cases, see Trusts, Cent. Dig. § 346; Dec. Dig. % 239.*]</p> <p>4. Trusts (§ 217*) — Investment of Trust Funds — -Txxegal Purchase of Corporate [Stock.</p> <p>Under Const. Pa. art. 3, § 22, which prohibits any law authorizing trustees to invest the trust funds in the stocks of any private corporation, the act of a trustee for the (‘State of minors in purchasing stock of such a corporation of another state for the estate, or accepting it in payment of a debt, was illegal and did not hind the estate as a stockholder.</p> <p>[Ed. Note.--For other cases, see Trusts, Cent. Dig. §§ 301-309; Dee. Dig. § 217.*]</p> <p>6. Corporations (§ 243*) — Stockholders—Liability for Unpaid Subscription — Illegal Purchase by Trustee.</p> <p>The fact that a trustee who was prohibited by law from investing the trust funds in the stock of a corporation took such stock in payment of a debt did not vest the estate with such ownership as makes it liable for what may be due thereon for the benefit of the corporation’s creditors; it subsequently appearing that the stock was not paid for.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 243.*]</p>

<p>Shipping (§ 84*) — ‘Liability op Vessel — Injury to Stevedore’s Ehployé— Negligence op Winchhan.</p> <p>Under a time charter which required the vessel to furnish to the charterer the use of her steam winches for loading and discharging and to provide men to work the same, a seaman furnished by the vessel to operate a winch for stevedores employed by the charterer to load the vessel remained a servant of the vessel, which was liable for an act of negligence on his part by which an employe of the stevedores was injured.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84;* Master and Servant, Cent. Dig. § 492.1</p>

In Admiralty. Suit for salvage by Patrick Howe, master, in behalf of the owners and crews of two tugs, against the City of New York, as oWner of the ferryboat Bay Ridge.

<p>Equity (§ 430*) — Opkning op Decree — Nonaitearance op Compiainant at Hearing — Discretion' op Court.</p> <p>Where the complainant and his counsel failed to appear at the final hearing of an equity cause, from whatever cause, the opening of the decree to permit him to have another hearing is a matter of discretion, and should only he granted upon tenas.</p> <p>FEd. Note. — Dor other eases, see Equity, Cent. Dig. §§ 103ir-1047; Dee. Dig. S 430.*]</p>

<p>1. Trusts (§ 219*) — Constructive Trust — Interest.</p> <p>Where defendant to whom complainant gave money to be invested converted tbe money to Ms own use, and the circumstances of the conversion indicated wantonness, the fact that defendant got no return from his investment and use of the money did not relieve him from liability for simple interest in an action for an accounting.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 314; Dec. Dig. § 219.*]</p> <p>2. Trusts (§ 350*) — Investment of Trust Funds — Remedies of Beneficiary —Election.</p> <p>When a trustee makes a separate investment of trust funds though wrongfully, the beneficiary may follow the money into the res, or may elect to pursue the money as a lien or charge thereon.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 515-519; Dec. Dig. § 350.*]</p> <p>3. Trusts (§ 350*) — Constructive Trusts — Mixing Funds — Election of Remedy.</p> <p>Where a trustee wrongfully mixes his own money with that of his cestui que trust and invests the same, the beneficiary does not thereby lose the right to follow his money into the res as property and claim an interest therein, nor is his claim limited to a charge on the property to the extent of Ms investment, but he is entitled either to enforce his right to a proportionate interest in the property in which the money has been invested, and recover proportionate profits, or to enforce a charge or lien at his election.</p> <p>[Ed. Note. — For other cases, see Trusts, Gent. Dig. §§ 515-519; Dec. Dig.. § 350.*]</p> <p>4. Trusts (§ 354*) — Trust Funds — Mingling—Interest of Beneficiary.</p> <p>Where a trustee wrongfully invested certain of the trust funds in a mining lease, and thereafter sold a one-eighth interest in the lease for $3,000, the beneficiary’s interest in that sum was not a sum proportionate to the respective contributions of money by the beneficiary and the trustee up to that time, which had entered into the mine, but was the proportion to which, in equity, the beneficiary was entitled in the whole mine; which was so much as he had contributed to the trustee’s total payment, royalty, etc., which made up the consideration for the lease, and this though at the time of the sale, the beneficiary’s proportion could not be ascertained, but must remain indefinite until all the expenditures were completed.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 527; Dec. Dig. § 354.*]</p> <p>5. Mortgages (§ 199*) — Interest of Mortgagee — Promts.</p> <p>A mortgagee has no interest in the property except to have it sold for his debts, and it is of no consequence to him what profits are made from it or in what form they may be so long as the property remains adequate security.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 513; Dec. Dig. § 199.*]</p> <p>6. Trusts (§ 354*) — Following Funds.</p> <p>A trustee used certain funds of his cestui qne trust to pay a mortgage on the trustee’s house, and thereafter put on another mortgage and used the proceeds for the development of a mine. Held, that, though the beneficiary was subrogated pro tanto as between himself and the trustee to the equity of the first mortgage which his money was used to pay, and was also entitled to a lien on the proceeds derived from the second mortgage, as well as on the trustee’s equity in the house, his rights were limited to those of a lienor, and hence he could never become a co-owner with the trustee of any property in which the money derived from the second mortgage had been invested.</p> <p>I Ed. Note. — For other cases, see Trusts, Cent. Dig. § 527; Dec. Dig. § 354.*]</p> <p>7. Trusts (§ 354*)— Trustees — Wrongful Investment of Trust Fund - Bights of Beneficiary.</p> <p>A trustee obtained the lease of a mining claim for a term of years with the right to take therefrom all the ore that he chose, agreeing, in return, to work the mine continually with 50 shifts of men per month during the whole term of his possession, and to pay a rent in the form of royalty of 20 per cent, on all of the smelter returns of the ore which he should take out. In developing the mine and performing his agreements under the lease, he wrongfully used certain of his beneficiary’s funds. Held, that the rent and royalty as used in such lease meant payment for the use of the ground in money, and that the beneficiary in an action against the trustee for an accounting would be entitled to that proportion of the value of the ore as it lay in the ground, as was represented by his contribution to the total expenses of working the mine plus the total rentals or royalties paid to the lessor, together with interest on such sums from the date of their receipt by the trustee.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 527, 528; Dec. Dig. § 354.*]</p>

<p>At Law. Action by William Blackwell against the Southern Pacific Company.</p>

■Action by J. B. Murphy and another, doing business under the name of Murphy-Balliet Company, against the Herring-Hall-Marvin Safe Company. On motion to quash service of summons.

Actions by the United States of America against David Calhoun and against the Bornn Hat Company to recover penalties for failure to answer and produce books and papers before a collector of internal revenue. Verdict for plaintiff in the first case, and for the United States in the second. These are two actions brought under subsection 16 of section 28 of the Aldrich tariff act passed August 5, 1909 (Act Aug. 5, 1909, c. 6, 36 Stat. 100 [U. S. Comp.

<p>In the matter of the presentment against the Bornn Hat Company. Application for subpoena duces tecum to compel the corporation to bring its books and papers before a grand jury.</p> <p>The grand jury is engaged in an inquiry into certain alleged violations of the customs laws of the United States by the Bornn Hat Company. The Bornn Hat Company is a New York corporation. A subpoena duces tecum has t>een duly issued, out of this court, addressed to the Bornn Hat Company, and has been duly served upon the corporation. This subpoena is as follows: “The President of the United States of America to Bornn Hat Company, 22 West 4th Street, Now York City- — Greeting:</p> <p>“We command you, that all business and excuses being laid aside, you appear and attend before the grand inquest of the body of the people of the United States of America for the Southern District of New York at a Circuit Court to be held at the United States Court House and Post Office Building, Room 119, fourth floor, in the borough of Manhattan, city of New York, in •md for the said Southern District of New York, on the 5th day of January, 1911. at 11 o’clock in the forenoon of that day in a certain inquiry pending before the said grand inquest into alleged violations of the act of Congress of the United States approved August 5, 1909, entitled ‘An act to provide revenue.’ etc., by the Bornn Hat Company,, and that you produce at the time and place aforesaid: The books of account, records and writings of every kind whatsoever, containing entries of all transactions had between Bornn Hat Company and F. E. Helguero, and all letters, invoices, bills, accounts and writings of every kind whatsoever relating to transactions had between Bornn. Hat Company and F. E. Helguero and between Bornn Hat Company and Frederick Probst & Company now in your custody, and for a failure to obey you will be deemed guilty of a contempt of court and also liable to pay all loss and damages sustained thereby to the party aggrieved.</p> <p>“Witness the Hon. Edward D. White, Chief Justice of the United States at the Borough of Manhattan in the City of New York, in the Southern District of New York, on the 3d day of January, 1911.</p> <p>“[Signed] John A. Shields, Clerk.</p> <p>“[Signed] Henry A. Wise, United States Attorney.”</p> <p>Upon the return day of this subpoena — which contains no ad testificandum ■ — the corporation, in response to the call of the subpoena by the marshal In attendance upon the grand jury, appeared by its president, who presented himself before the grand jury and stated that he had with him the books and papers called for by the subpoena. He personally demanded to be sworn, and thereupon was informed that no subpoena commanding his appearance had been issued, and that his evidence was not wanted, and his demand to be sworn was not complied with. Thereupon he filed with the grand jury a written statement addressed to the grand jury and signed “Bomn Hat Company.” This statement raises the following points: (1) That no validly instituted proceeding was pending. (2) That to compel the Bornn Hat Company to produce writings in a criminal proceeding against itself was in violation of the fourth and fifth amendments to the Constitution of the United States, in that the proceeding amounted to an unreasonable search and seizure and compelled the corporation to bear witness against itself. (3) That there is no authority for directing a subpoena to a corporation. At the same time the president of the corporation filed with the grand jury a further paper on his own behalf, in which he refused to permit the books,and papers calléd for “to be used in evidence or to be inspected,” stating as his reasons for such refusal “that the introduction of the said books in evidence before the grand jury might tend to incriminate me, and that it would violate my rights under the fourth and fifth amendment to the Constitution of the United States. * * * ” Thereupon the grand jury came into court and presented the Bornn Sat Company, as for contempt of court in failing to deliver up the books and papers called for by the subpoena. The presentment was traversed by the Bornn Hat Company.</p>

In Equity. Suit by George N. Davis against Samuel Dixon, the Stuart Collieries Company, and others. On plea in abatement chai--lenging the jurisdiction of the court.

<p>In Equity. Suit by the Healey Ice Machine Company against Robert Green, Bouisa A. Green, and others. On application by complainant for leave to file supplemental bill.</p>

In the matter of bankruptcy proceedings of Carl F. Beeg. On certificate of referee to review an order directing the delivery of certain of the bankrupt’s property sold at a receiver’s sale to the purchaser and discharged of the lien of a judgment creditor.

At Law. Action by the United States against the S. Twitchell Company. Verdict for plaintiff, and defendant moves for judgment non obstante veredicto.

At Law. Action by the United States against Edward H. Hance and another, trading as Hance Bros. & White. Verdict for plaintiff. On motion for judgment non obstante veredicto.

Action by the United States' against the Smith, Kline & French Company to recover special taxes and penalties imposed on persons engaged in the business of rectifying, purifying, and refining distilled spirits. Verdict for plaintiff. On motion by defendant for judgment non obstante veredicto.

In the matter of bankruptcy proceeding’s of Eathrop, Haskins & Co. On petition to review a referee’s order directing one Popper to answer certain questions propounded to him at a meeting of creditors.

<p>Pilots (§ 3*) — State Pit.otaue Laws — Exemption by Fedkbai, Statute— “Coastwise Steam Vessel.”</p> <p>A duly registered American steamer engaged in making voyages between United States ports on Puget Sound and San Francisco,'although, in making such voyages she touched at the foreign way port of Victoria, taking on freight and passengers for San Francisco, was a “coastwise steam vessel,” within the meaning of Rev. St. § 4444 (U. S. Comp. St. 1901, p. 3087), which exempts such vessels from the operation of state pilotage laws, and a state pilot whose services were refused on her entry into the port of San Francisco, her master and mate being licensed pilote under the laws of the United States, cannot subject her to pilotage fees under Pol. Code Cal. §§ 2460, 2468.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. § 2; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1239.]</p>

<p>Bankbuptcy (§ 136*) — Pboceedtngs Against Bankbuft fob Contempt — Es-toppel by Order of Befekee.</p> <p>Tn a proceeding for contempt in a District Court against a bankrupt for failure to comply with an order of the referee to turn over money or property to the trastee, such order, not appealed from, is conclusive of Hie fact that at the date of its entry the bankrupt had the money or property in Ms possession or under his control.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. $ 235 Dig. § 136.*] Dec.</p>

<p>Criminal prosecution against the Philadelphia & Reading Railway Company. On motion and reasons for new trial.</p>

<p>Criminal prosecution against tlie Bethlehem Steel Company. On motion and reasons for new trial.</p>

<p>Criminal, prosecution against the Lehigh Valley Railroad Company. On, motion and reasons for new trial.</p>

<p>IvEOKTVEliS (§ 58*) — PABTNISBSnn*—GKOUNnS J’OB VACATION OE llECEIVKItRIIIP.</p> <p>Where receivers hayo been appointed tu a suit between partners, to wind up a partnership formed to carry out a contract for the construction of a public work, on a hill alleging .insolvency and that the completion of the contract by receivers will be for the benefit of creditors, to which the majority of tile creditors have given their assent, an affidavit of the attorney for a single judgment creditor, stating his belief merely that the firm is solvent, and Unit the receivership was obtained for the purpose of hindering and delaying the creditors, and for the benefit of the partners, is insufficient to justify the vacation of the receivership, or the granting of leave to such creditor to issue an execution and levy the same on property in the hands of the receivers.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 97-102; Dec. Dig. S 58.*]</p>

<p>In Equity. Suit by the R. Guastavino Company against John Co-rnerina and another. On settlement of order for preliminary injunction.</p>

In the matter of the bankruptcy proceedings of Morris A. Rippman. Proceedings to compel bankrupt' to turn over assets alleged to have been withheld to his trustee.

In the matter of Julius Chamelin, bankrupt. On rule to compel the bankrupt to turn over certain property to his trustee. Referee’s order denying the motion certified.

<p>Action by Ethel Thompson against the Wabash Railroad Company. On motion to remand the case to the state court.</p>

<p>At Law. Action by Jacob Polonsky against the Pennsylvania Railroad Company and the Pullman Company. On motion by plaintiff for new trial.</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 Jacob Polonsky against the Pennsylvania Railroad Company and the Pullman Company. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Petition for writ of habeas corpus by Marie Gallo against Ellis De Bruler, Commissioner of Immigration at Seattle. From an order granting a writ and discharging petitioner, the Commissioner, appeals.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action by the California Fruit Canners’ Association against ,C. II. Lilly, doing business as C. If. Tilly & Co. Judgment for defendant, and plaintiff brings error.</p> <p>The plaintiff in error brought an aciion against the defendant in error upon a stated account, and in its original comida hit alleged in addition to that cause of action a count for an unpaid balance for goods, wares, and merchandise sold and delivered under contracts upon which a balance was alleged to be due in the samo amount as stated in the first count. On motion of the defendant, the court required the plaintiff to elect upon which cause of action it would stand, whereupon it filed an amended complaint alleging an account stated. The defendant answered, denying the account stated, and denying an indebtedness or a promise 1o pay. and sot up as an affirmative defense that he had been induced by the fraud of the plaintiff to agree 1o pay for certain goods which the plaintiff represented it had stored in warehouse subject to defendant's order, and the further defense that the defendant liad been ■induced by the fraud of the plaintiff to agree to pay for certain goods which the Jatfer hod represented he had stored in warehouse, subject to defendant's order: that the plaintiff had confessed that the goods were not of the grade or quality represented to the defendant, and had agreed to remedy the defect. and reimburse the defendant for damages thereby caused, and that defendant, before discovery that the goods were not of the quality represented, had received and paid for a large quantity thereof, and had sold and distributed the same to his customers, representing them to be of the grade and quality as represented by the plaintiff, which goods had been repudiated by the defendant’s customers and in many instances returned to him. And the defendant alleged that he. had been damaged and demanded judgment, against the plaintiff. The plaintiff’s reply put in issue the affirmative matter of the answer. After issue was joined, and before the trial, the deposition of 8 L. Goldstein was taken In support of the allegations of the amended complaint. He produced a copy of the account which he testified was sent by the plaintiff to the defendant on April 2!). 1908. The paper was labeled “statement,” and it contained charges for merchandise, storage, and interest running from November 1, 1D07, to April 29, 1908. and aggregating .$19,180.87. The witness produced anil gave in evidence the letter of the defendant of date May 7, 1908, stating: “We have your favor of April 29, and in reply beg to say we will endeavor to send you a substantial remittance on this account during the ensuing month. We are badly overloaded on canned goods, as you doubtless know, and have been endeavoring to make some terms on the goods which you are holding in the warehouse for us. but without success to date.” On cross-examination, the witness was asked to explain the item of the account, "Mdse W. H. ac.,” and he answered that it was “warehouse aceóunt.” Thereupon, over the objection of 1ho plaintiff that the testimony was not-proper cross-examination, the defendant was permitted to show by the witness that the goods mentioned in the statement, of account belonged to the plaintiff, “and are stored in the warehouse until payments are made by Lilly & Co.”; that the goods were charged to Lilly & ®>., and were not their property until they were paid for; that they were stored in one or more of the plaintiffs 10 warehouses in California ; that ho did not know-in which particular warehouse they were stored; that: when goods are billed to a customer they are reserved and stored at one or more of the plaintiffs warehouses.; i that the plaintiff’s goods are stacked in large stacks in the .warehouses, a good many thousand cans, and as orders come in. for shipment they are Labeled' cased, and shipped, and in the meantime they are in stacks; that the goods referred: to in the statement were never segregated or stored separately and distinctly from other goods, were the property of the plaintiff, and were stored in stacks with other goods. At the trial the depositions and the exhibits were offered in evidence, and the cross-examination of Goldstein was received in evidence over the objection of the plainriff. The plaintiff rested. Thereupon the defendant moved for a nonsuit, which was granted, and a judgment was entered dismissing the action.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action by the First National Bank of Central City against the City of Port Townsend, Wash. From a judgment in .favor of defendant, plaintiff brings error.</p> <p>The plaintiff in error brought an action in the court below to recover judgment against the defendant in error for the aggregate amount of ¡50 warrants issued by the latter, of date February 18, 1898. together with interest thereon at 6 per cent, per annum from February 19, 1898. The complaint alleges that ail the warrants were made payable out of the indebtedness fund of the city, that 16 of them were issued to the Bank of British* Columbia in part satisfaction of a judgment of that hank against the city, that 14 were issued to the Manchester Savings Bank in part satisfaction of a judgment of that bank against the city, and each of the 30 warrants is made the subject of a separate cause of action. The form of the warrants is as-follows:</p> <p>“Port Townsend, Wash., Feb. 18, 1898.</p> <p>“By order of city council, Feb. 17. A. D. 1898, of the city of Port Townsend, Wash., the treasurer of said city will pay Bank of British Columbia or order $500.00 for part satisfaction of judgment of Bank of British Columbia v. City, with int. at 6r/o per a. Indebtedness Fund.</p> <p>“[Seal.] * August Jludenhauseu, City Clerk.</p> <p>“D. II. Hill, Mayor of the City of Port Townsend.”</p> <p>The complaint alleged that on February 19, 1898, the warrants were duly presented to the treasurer of said city of Port Townsend, and payment demanded, and that payment, was refused for the want of funds, and the warrants were so indorsed. The complaint, further alleges the assignment of said warrants to the plaintiff in error,'and that on May 11, 1910, the warrants were presented to the treasurer of the city at his office, and payment was demanded and refused. The complaint further alleged that other warrants of the same date, numbered consecutively from No. 2 to 159. inclusive, of the face value of $65,983.47, were issued: that at the time when they were Issued the city was authorized to levy and collect an annual tax, within the maximum of six mills on the dollar upon the taxable property of the city, for the payment of the same; that the city has failed and neglected to levy in any year since the plaintiff's warrant was issued more than a small fraction of tile tax which it; was authorized to levy and collect to supply the indebtedness fund of said city with money for the payment of the warrants which were payable out of such fund, and failed and neglected to levy any tax whatever for said fund in the year 1909, and has failed and neglected to pay any of the said warrants.</p> <p>To the complaint the defendant in error demurred on two grounds: First, for failure to state facts sufficient to constitute a cause of action: and, second, for failure to commence the action within the time required by law. The demurrer was sustained on the ground that the warrants were issued to satisfy judgments against the defendant in error. Thereupon a judgment was entered dismissing the action.</p>

<p>1. Insurance (§ 623*) — Policy Limitations — Waiver.</p> <p>A policy provision imposing a short limitation on the right to sue thereon is intended for the benefit of the insurers, and, being a harsh condition in derogation of limitations fixed by law, will be regarded as waived, if there is any reasonably sufficient evidence on which to base such finding.</p> <p>LF.d. Note. — For other cases, see Insurance, Cent. Dig. § 1551; Dec. Dig. § 623.*]</p> <p>2. Insurance (§ 623*) — Action on Award — Limitations—“Action on Policy.”</p> <p>Where a fire insurance policy provided a short limitation within which an action on the policy might be brought, and the insurer, having admitted liability on an award after loss, tendered the amount fixed by the award which was not accepted, such contract limitation did not apply to or affect a subsequent action by insured on the award.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1501; Dec. Dig. § 623.*</p> <p>Conditions in policy as to time for bringing suit, see notes to Steel v. Phoenix Ins. Co., 2 C. C. A. 473; Rogers v. Home Ins. Co., 35 C. C. A. 404.]</p> <p>3. Appeal and Erkob (§ 1175*) — Reversal—Disposition of Cause — Judgment Absolute.</p> <p>Where, in an action on an award pursuant to a fire policy, a reversal was required because of an error of the trial court in disposing of a question of law and there was no disputed question of fact in the case, the Court of Appeals would render final judgment, instead of remanding the cause for a new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p> <p>Shelby, Circuit Judge, dissenting.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by Frederick M. Steele against the Bluefields Steamship Company, limited. From an order appointing an ancillary receiver, defendant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Florida.</p> <p>Action at law by the United States against W. L. Parish and the Consolidated Naval Stores Company. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Southern District of California.</p> <p>Action at law by the United States against Frank Grosjean, J. D. Westfall, and J. C. Grosjean. Judgment for defendants, and plaintiff brings error.</p>

Suit in admiralty by Basilios Hanos against the Maritime Investment Company, as owner of the steam schooner F. A. Kilburn. Decree for libelant, and respondent appeals.

<p>1. Eminent Domain (§ 106*) — Taking- Property for Public Use — “Damage.”</p> <p>A railroad’s interference witli a property owner’s right to ingress and egress by means of a street on which his property abuts is “damage” within Const. Wash. art. 1, § 16, providing that no private property shall be taken or damaged for public or private use without just compensation.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 282-289; Dee. Dig. § 106.*</p> <p>For other definitions, see Words and Phrases,' vol. 2, pp. 1812-1820: vol. 8, pp. 7620, 7626.]</p> <p>2. Eminent Domain (§ 104*) — Taking Property for Public Use — “Damage.”</p> <p>Where the line of a commercial railroad is constructed along a street near plaintiff’s residence block in a city, the jarring of the earth of respondent’s lots, the casting of soot and cinders thereon, the emission of smoke physically injuring property, constitute “damage” within Const. Wash. art. 1, § 16, providing that property shall not be taken or damaged for public use without just compensation.</p> <p>LEd. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 27S-281; Dec. Dig. § 104.*</p> <p>Consequential and indirect damages, see note to High Bridge Lumber Co. v. United States, 16 C. C. A. 468.]</p> <p>3. Eminent Domain (§ 91*) — Operation of Railroad Train — General and Special Injury.</p> <p>An adjoining property owner cannot recover damages to his property caused by the operation of a railroad train on an adjoining right of way without proof of special injury substantially different in kind from that suffered hv the public at large.</p> <p>fEd. Note - -For other eases, see Eminent Domain, Gent. Dig. §§ 234, 235; Dee. Dig. § 91.*]</p>

<p>. In Error to the Circuit Court of the United States for the Southern Division, of the ¡Eastern District of Washington.</p> <p>• Actions at iaw. by Hans Nielsen against the Northern Pacific Railroad Company; 'and by Peter Nielsen and Sophia Nielsen, his wife, against thé samé.' Judgments for defendant, and plaintiffs bring error.</p>

<p>Carriers (§ 38*) — Carriers or Live Siock — Violation or Twentt-High® Hour Law.</p> <p>Defendant, a terminal railroad company, received a car load of horses from a connecting railroad company, which had transported them in interstate commerce. Such carrier had kept them confined in the ear for more than 28 hours without unloading for rest, water, and feeding, in violation of the 28-hour law (Act June 29. 1906, e. 8594, § 1. 34 Stafe 607 [TI. S. Comp. St. Supp. 1909, p. 1178]), and was indicted and fined therefor. Defendant received them for transportation over its line for soma 1,300 feet to stockyards, and moved them to such yards with all speed possible, and there unloaded them for rest, water, and feed. Held, that defendant was not chargeable with violation of the statute, but that, on the contrary, its action aided in giving effect to its object and purpose.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Western District of Washington.</p> <p>Bill by Cliolett Cady against Lewis W. Center. Complainant having dismissed his bill without prejudice, and a demurrer having been sustained to defendant’s cross-bill for want of equity, and the bill dismissed, defendant appeals.</p> <p>In December, 1909, the appellee filed his bill to quiet title to a 23-acre tract of land, alleging that he owned the land and had paid taxes thereon for the last seven years; that in 1901 he had brought an action of ejectment against the appellant to recover the property, and upon the issues framed he was adjudged to be the owner of the property and entitled to the possession; that a writ of possession was issued and delivered to the marshal, who executed the same by putting the appellee into' possession ; that the appellant, notwithstanding such judgment and execution, has maintained possession, asserted ownership, and has converted wood cut upon the premisos. The appellee prayed for an injunction and that his title be quieted. The appellant answered the bill, denied that the marshal had ex-ccutecl the writ of possession, denied tlie title of tlie appellee, and asserted title in himself. With his answer the appellant filed a cross-bill, in which he alleged possession since 1899 of the land in controversy and also of a 20-acre tract lying south thereof and adjoining the same. He alleged that the marshal, in executing the writ of possession, being unacquainted with the boundaries of the land described therein, removed the appellant from said south 20 acres, took from his tenant the keys of the buildings standing thereon, and placed the appellee’s agent in possession of said 20-acre tract and the buildings; that the marshal thereupon made and filed his return of the service of the writ, and stated therein that he had executed the same by placing the appellee’s agent in possession of the north 23-acre tract. The appellant alleged ownership by reason of uninterrupted possession for 10 years, and prayed that the return of the marshal be adjudged a cloud upon his title, and that it be removed. The appellee demurred to the answer. The demurrer was overruled; the court ruling that issues were framed which •should be tried by a jury. Thereupon the suit of the appellee was dismissed without prejudice. A demurrer was interposed to the cross-bill for want of equity, and was' sustained, and the cross-bill was dismissed. From that order the appeal is taken.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the New York Central & Hudson River Railroad Company against the steamship Colorado, and cross-suit by the Mallory Steamship Company against the New York Central Steam Lighter No. 24. Libel against the Colorado dismissed, and decree against the lighter (178 Fed. 649), and libelant appeals. On motion to dismiss appeal.</p>

Suit in equity by Joseph A. Glauber against the H. Mueller Manufacturing Company. Decree for complainant, and defendant appeals. Appellee instituted this suit to restrain infringement of the four claims of patent No. 782,552, granted to him on February 14, 1905. upon application filed May 21, 1904, for improvements in coupling-pipes. Claim 1 calls for a coupling-joint per se, as a new article of manufacture.

<p>In Equity. Suit by the Asbestos Shingle, Slate & Sheathing Company and Éudwig Hatsehek against the H. W. Johns-Manville Company.</p>

<p>Insolvency proceedings by Eben H. Gay and another against the Hudson River Electric Power Company and others, and by the Knickerbocker Trust Company, as trustee and cross-complainant, against Gay and others, in which the National Contracting Company and others intervened for the collection of a judgment against the Hudson River Company. Certain bondholders having induced the receivers to pérfect an appeal, the National Contracting Company applied for an order directing the receivers to withdraw the appeal, or in case such relief was denied that'they be required to give security for the payment of any judgment that might be finally rendered, or for costs and expenses of the appeal. Order for security from the bondholders allowed, and, in default thereof, that the appeal be withdrawn..</p> <p>Motion by cross-complainants, the National Contracting Company et al., in the above-entitled actions for an order directing that the Hudson River Water Power Company or its receivers. George W. Dunn. Charles W. Andrews, and Milton. De Laño, as receivers of the said company, withdraw the' appeal of the Hudson River Water Power' Company from the judgment entered against it December 23, 1909, in favor of the National Contracting Company for the sum of $323,387.55, or that there be deposited with some trust company or with this court the sum of $385,023.32. the amount paid over by the special trustee and Standard Trust Company July 30, 1907, pursuant to an order of court filed July 29, 1907, or such portion thereof as will satisfy .the above-named judgment, or that a bond be given sufficient to secure the National Contracting Company in the collection of the said judgment, and ■for such further order and relief as may be just and proper.</p>

<p>1. Judgment (§ 270*) — Necessity op Entry.</p> <p>Where, in proceedings in a state court by a bankrupt’s trustee against the bankrupt and his wife to declare and enforce an alleged secret trust concerning property conveyed by the bankrupt to his wife, findings of fact were made in favor of the bankrupt, and Judgment was ordered, but no judgment was ever entered, and, in proceedings in bankruptcy before the referee in resistance of the bankrupt’s discharge, the evidence on which the state court’s findings were based was not presented, the proceedings had in the state court were inadmissible.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 501-503; Dee. Dig. § 270.*]</p> <p>2. Mortgages (§ 32*) — Conveyance to Wife — Absolute Deed as Mortgage.</p> <p>Where'a bankrupt prior, to bankruptcy conveyed certain real estate to his wife, not as a gift, but to secure her for money alleged to have been contributed to the construction of buildings thereon, as against the bankrupt’s subsequent creditors, the conveyance, though * absolute in form, was at most a mortgage, and the omission of such real estate from the schedules is ground for refusing a discharge.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60-66; Dee. Dig. § 32.*]</p>

<p>1. Aliens (§ 71%,* New, vol. 7, Key No. Series) — Naturalization—Certificate — Forfeiture —Statutes—Construction.</p> <p>Act Cong. June 2!), 1906, c. 3592. § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1909, p. 485), providing for the cancellation of a certificate of naturalization, does not forfeit the naturalized alien’s right to citizenship, but merely confers jurisdiction ón the courts of naturalization to cancel a previous certificate for fraud or illegal procurement in its inception.</p> <p>2. Aliens (§ 71%,* New, vol. 7, Key No. Series) — Naturalization—Cancellation — ‘ Tllec ally Procured. ’’</p> <p>The words “illegally procured,” as used in Act Cong. June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1909, p. 485), authorizing the cancellation of a certificate of naturalization illegally procured, means procured by subornation or some other illegal means used to impose on the court, and not that the certificate was issued through error of law.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, vol. 4, p. 3388.]</p> <p>3. Aliens (§ 71%,* New, vol. 7, Key No. Señes) —Naturalization — Vacation — Praud—Statutes—Jurisdiction.</p> <p>Since jurisdiction to naturalize aliens was originally bestowed by Congress on state, courts. Act Cong. June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1909, p. 485), providing for the vacation of a naturalization certificate obtained by fraud or illegal procurement in its inception, is not unconstitutional because it gives one court power to pass on and annul the proceedings of another.</p> <p>4. Constitutional Law (§ 55*)— Legislative Powers — Encroachment ■ on ■ Judiciary — Presumptions.</p> <p>Act Cong. .Tune 29, 1906, c. 3592, § 15,. 34 Stat. 601 (U. S. Comp. St. Supp. 1909, p. 485), authorizing, the cancellation of a naturalization certificate, obtained by fraud or illegal procurement in its inception, is not unconstitutional because it declares that in such a proceeding evidence of the acquisition of a new domicile by the naturalized citizen within five years shall be prima facie evidence of fraud; such presumption being within the power of Congress to create as a rule of procedure.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 55.</p> <p>5. Constitutional Law (§ 311*) — Due Process op Law — Presumptions. ■</p> <p>In a particular case a statutory presumption applied to the trial of an issue determined by the facts which occurred' before the presumption existed was nevertheless due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 932; Dec. Dig. § 311.*]</p> <p>6. Aliens (§ 71%,* New, vol. 7, Key No. Series) — Naturalization—Cancellation of Certificate — Fraud—Complaint.</p> <p>A complaint by the United States to cancel an alien's naturalization certificate for fraud was insufficient, where it failed to tender the material issue of fraud, alleging, merely a change of residence, which by, statute is only prima facie evidence on that issue.</p> <p>7. Aliens (§ 71%,* New, vol. 7, Key No. Series) — Naturalization—Cancellation op Certificate — Evidence.</p> <p>Defendant’s expressions of a definite desire to retain his citizenship in the United States during his continued residence in a foreign country was not determinative of his residence.</p> <p>8. Aliens (§ 71%,* New, vol. 7. Key No. Series) — Naturalization Certificate — Cancellation—Evidence—Statement of Consular Agent.</p> <p>In proceedings to cancel a naturalization certificate for fraud, statements of consular agents abroad that defendant had established a permanent residence abroad, etc., were admissible under Act Cong. June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1909, p. 485).</p> <p>9. Domicile (§ 4*) — Residence—Intention.</p> <p>Where a person’s intention to reside abroad is limited to a period itself determined by some definite event, even though the occurrence of that event may be uncertain, it is insufficient to establish a new domicile, particularly where a person goes abroad to stay until his health is restored, in which case he has no intention of indefinite residence; but, if he does not expect to return at all, he loses his original domicile regardless of the fact that he cannot live in the country from which he came.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. §§ 5-23; Dec. Dig. § 4.*]</p> <p>10. Aliens (§ 71%,* New, vol. 7, Key No. Series) — Naturalization—Fraud-Domicile — Change.</p> <p>In a proceeding by the United States to cancel an alien’s certificate of naturalization for fraud, evidence held to justify a finding that the alien within five years after being admitted to eitizenshiii left the country and had taken up his permanent residence in South. Africa, and that the government, was therefore entitled to decree of cancellation.</p> <p>11. Jury (§ 14*) — Right to Just Tkial — Naturalization Ckbtifioate —'Vac atio n — Fraud .</p> <p>A proceeding by the United States to vacate a naturalization certificate for fraud is a proceeding in equity as to which the defendant is not entitled to a jury trial.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 14.*]</p>

<p>1. Aliens (§ 32*) — Chinese Deportation Proceedings — Appeal—Effect.</p> <p>An appeal from an order of deportation suspends execution until after determination of tlie appeal.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 95; Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*) — Chinese Deportation Proceedings — Appeal—Trial on Appeal — Hearing De Novo.</p> <p>On appeal from a United States commissioner’s deportation order in exclusion proceedings, the case is to be heard de novo.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 32*) — Chinese Deportation Proceedings — Nationality or De-pendant — Proof—Affidavit.</p> <p>An affidavit made by a United States Chinese inspector charging defendant with being a Chinese laborer unlawfully within the United States without a certificate of registration, on which a warrant was issued for defendant’s arrest, was not evidence at the hearing to prove that defendant was a Chinese person.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 32.*]</p> <p>4. Aliens (§ 32*) — Exclusion—Chinese Persons — Proof.</p> <p>Aet May 5, 1892, c. 60, § 3, 2T Stat. 25 (U. S. Comp. St. 1901, p. 1320), provides that any Chinese person, or person of Chinese descent, arrested under tbe act, or acts extended, shall be adjudged to be unlawfully within the United States unless he shall establish by affirmative proof his lawful right to remain in the United States, and section 6, as amended by Act Nov. 3, 1898, e. 14, § 1, 28 Stat. 7 (U. S. Comp. St. 1901, p. 1320), required all Chinese laborers within the United States, who were entitled to remain before the passage of the act, to obtain a certificate of residence. Hold,, that the burden was on the United States, in proceedings to deport a Chinese person as unlawfully within the United States, to show by affirmative proof that defendant was a Chinese person.</p> <p>[Ed. Note. — For other eases, see Aliens, Dee. Dig. .§ 32.*]</p> <p>5. Aliens (§ 32*) — Chinese Peesons — Deportation—Peoof of Nationality.</p> <p>Where a person named Louie Lee was arrested on complaint of a United States Chinese inspector in deportation proceedings, and on appearing in court was attired in the ordinary street apparel of an American gentleman, with his hair worn as an American and with nothing to indicate that he was a Chinese except his color and features, which were more or less common to all Mongolians, his name not being distinctively Chinese, his appearance was insufficient to establish that he was a Chinese person within the exclusion acts.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. § 32.*]</p> <p>6. Aliens (§ 32*) — Chinese—Exclusion Proceedings — Motion to .Dismiss.</p> <p>Where the government rested in Chinese deportation proceedings without introducing any evidence that defendant was a Chinese person, whereupon defendant moyed to dismiss the proceedings and for his dischárge, he was entitled to have the motion determined on the record as it stood when the motion was made, and hence the government’s application for permission then to introduce evidence to prove the fact was denied.</p> <p>[Ed. Note. — For other cases, -see Aliens, Dec. Dig. § 32.*]</p>

Tn Error to the Circuit Court of the United States for the Western District of Pennsylvania. Action by the American Trust Company against Regis Canevin. Judgment for defendant, and plaintiff brings error.

<p>1. Carriers (§ 280*) — Injuries to Passengers — Care Required.</p> <p>While a carrier of passengers is not an insurer of tlieir safety, it is bound to use the utmost care to guard against the possibility of accident arising from the condition of its road, machinery, and appliances used in transportation, or from the conduct and control or any defect in such conduct or control of its transportation business.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1117; Dee. Dig. § 280.*]</p> <p>2. Carriers (§ 316*) — Injuries to Passengers — Burden of Proof.</p> <p>1 In an action against a carrier for injuries to a passenger, the burden of proof in the first instance rests on the plaintiff; but, under certain circumstances, it may shift to the defendant to rebut a presumption of negligence arising from such circumstances.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1201-1294; Dec. Dig. § 310.*]</p> <p>3. Carriers (§ 321*)- — Injuries to Passengers — Res Ipsa Loquitur.</p> <p>Where, in an action for injuries to a passenger while attempting to board a train, the sole issue raised by the evidence was whether there had been any such sudden movement or jerk of the train as alleged, the court properly refused to charge that, if plaintiff was a passenger and was injured while she was in the exercise of ordinary care, such facts were prima facie evidence of defendant’s negligence and liability; the rule of res ipsa loquitur being unavailable to create a liability not within the issues as made.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1320-1343; Dec. Dig. § 321.*]</p> <p>4. Carriers (§ 321*) — Injuries to Passengers.</p> <p>Where, in an action for injuries to a passenger by an alleged premature start of the train throwing her to the ground, the jerk of the train was denied, and the court charged that, if there was no jerk, there was no negligence, in which event defendant was not bound to show how plaintiff’s hip was broken, whether she fell from the platform or caught her skirt, etc., there was no error in granting defendant’s further request to charge that if plaintiff accidentally slipped from the steps of the car to the ground, or stumbled and fell before reaching the steps, she could not recover.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1326-1343; Dec. Dig. § 321.*]</p>

Action by Melissa Wall and others against the Idaho & Washington Northern Railroad. Judgment for plaintiffs, and defendant brings error. Action by Melissa Wall for and on behalf of herself as surviving widow and as guardian ad litem for the three minor children of James Wall, deceased, to recover damages for the death of the said James Wall caused by the allege;^ negligence of the defendant.

'Appeal from the District Court of the United States for the Northern District of California. Deportation proceedings by the United States of America against Dew Quen Wo. From an order for judgment of deportation, affirmed by the District Court, defendant appeals.

<p>1. Appeal and Eeror (§ 101*) — Appealable Orders —Order in Receivership Proceedings.</p> <p>Ad order of a federal court of equity having possession of the property of a corporation through its receivers, denying to a mortgagee the right to have the property sold, given by the terms of the mortgage in case of default, is appealable.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 681-687; Dec. Dig. § 101.*]</p> <p>2. Corporations (§ 481*) — Mortgages—Rights and Duties op Trustees.</p> <p>The trustee in a corporation mortgage required by the terms of the mortgage to foreclose in case of default in payment of interest on the request of the holders of two-iifths in interest of the bonds secured is not relieved from such duty nor deprived of the right by the fact that a majority of the bondholders do not favor the proceeding, nor is it chargeable with laches which deprives it of the right because it waited until after several defaults in the hope of a reorganization of the corporation which would obviate the necessity of foreclosure.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 481.*]</p> <p>S. Corporations (§ 481*) — Mortgages—Rights op Trustees.</p> <p>A court of equity has no power to deny to the trustee under a corporation mortgage the right to foreclose on default, expressly given by the contract, on the ground that a sale of the mortgaged property at the time and under the particular circumstances will work a hardship to other creditors of the mortgagor and other affiliated corporations."</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 481.*]</p>

Petition' to Review an Order of the District Court of the United States for the Southern District of Ohio. In the matter of the American Architects Tube Company, bankrupt. On petition of the E. A. Kinsey Company to review an order of the District Court.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Sarah E. Bowman against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Proceedings by the United States of America to condemn certain lands in Greeley, Colo., for a site for a post office building, to which Henry F. Currier and others filed objections. From a decree in favor of the government, objectors bring error.

W. S. Piarían was convicted of peonage, and brings error. Application for writ of habeas corpus was denied, and denial affirmed by the Supreme Court (218 U. S. 442, 31 Sup. Ct. 44, 54 E-Ed. 1101), and thereafter application was made for pardon, and the following is a copy of the memorandum of the President in passing on such application: W. S. Harlan is the manager of a great lumber and turpentine company doing business in Florida and Alabama.

<p>In Error to the Circuit Court for the Eastern Division of Pennsylvania.</p> <p>Action at law by Norman S. Huxley against the Pennsylvania Warehousing & Safe Deposit Company. From an order of inter-pleader, plaintiff brings error.</p>

<p>1. Railroads (§ 350*} — Accident at Crossing — Action for Injury — Questions for Jury.</p> <p>Evidence considered in an action against a railroad company to recover for an injury to plaintiff, received while she was crossing defendant’s tracks at a street, crossing in an automobile, which was struck by cars being switched, and held to warrant the submission of the ease to the jury.</p> <p>¡Ed. Note. — For other eases, see Railroads, Cent. Dig. § 1152; Dec. Dig. § 350.*]</p> <p>2. Railroads (§ 345*) — Action por Injury at Crossing — Contributory Negligence.</p> <p>Where plaintiff, in an action to recover for an injury received when she jumped or was thrown from an automobile, which was struck by a car on a railroad crossing, did not allege whether she jumped or was thrown out, she was not confined to proof that she was thrown, but was entitled to recover in either case, on proof of defendant’s negligence, provided she acted as a reasonable and prudent person would under the circumstances.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. § 345.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>, Action at law by Philip A. Eschallier against Hannah Bauman. Judgment for plaintiff, and defendant brings error.</p>

Petition to Revise Order of the District Court of the United Sfates for the Western District of Pennsylvania. , In the matter of bankruptcy proceedings of Salvatore Sunseri. On petition to revise an order requiring C. P. O’Conor, as the bankrupt’s trustee, to file his final account in the office of the referee on or before November 15, 1910, at 10 o’clock a. m., on pain of being committed to jail for contempt.

Carl Adamson was convicted of a criminal offense. The judgment was affirmed on appeal by the Supreme Court of New Mexico (106 Pac. 653), and defendant brings error.

Francis E. Searway was convicted of passing counterfeit coin and having other like coin in his possession with intent to defraud, and he brings error.

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>In the matter of John E. Cummings, bankrupt. On petition to revise an order requiring- the bankrupt to pay over a sum of money to his trustee, Clayton E. Synnott.</p>

Action at law' by James Stewart & Co. against John H. Fulton and others, liquidators, etc. Judgment for defendants, and plaintiffs bring error.

<p>Patents (§ 328*) — Validity—Gkab-Hooks.</p> <p>The Langan patent, No. 595,181, which, as stated in the claim, Is for a combination of grab-hooks of a peculiar form and a draft device, is void, as not for the invention described in the specification, which, is an improved form of grab-hook alone, to which the claim as it reads cannot be limited, and also because there is no novelty in the combination itself, whieh was old.</p>

<p>Patents (§ 328*) — Validity and Infringement — Electric Railway Motor.</p> <p>Tlie Schmid patent, No. 609,977, for an electric railway motor, while not of a fundamental character, covers an improvement of utility in the art, and discloses patentable invention; also held infringed.</p>

<p>In the matter of Charles H. Effinger and George B. Aiken, copart-ners as Effinger & Aiken-and individually, bánkrupts. On exceptions to referee’s report on claims of Charles H. Effinger against the partnership estate.</p>

In Bankruptcy. In the matter of Charles H. Effinger and another, copartners trading as Effinger & Aitlcen. On exceptions of partnership creditors to the allowance of dividends on certain claims preferred by the bankrupt Effinger, on behalf of his individual estate as against the partnership creditors.

At Law. Action by Martin Pedersen against the Delaware, Lack-awanna & Western Railroad to recover for injuries to plaintiff while in defendant’s employ under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp.1909, p. 1171). On motion by defendant for judgment notwithstanding a verdict for plaintiff.

<p>In the matter of bankruptcy proceeding's of Henry Mahland, Jr. On petition to review a Referee’s determination as to the validity of a chattel mortgage executed by the bankrupt.</p>

<p>T. Money Received (§ 1*) — Nature of Obligation.</p> <p>To render defendant liable in a suit for money liad and received, plaintiff must show that defendant holds money which in equity and good conscience belongs to plaintiff.</p> <p>[Ed. Note. — For other eases, see Money Received, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>2. Shipping (§ 177*) — Demurrage—Protection of Cargo.</p> <p>On the arrival of a vessel, neither the consignee nor any person in his behalf or in that of the shippers appeared to accept delivery, whereupon the master, after waiting the expiration of the lay days provided in the contract, discharged the cargo on the customhouse wharf at the port of discharge, and, being unable to obtain a proper person to hold .and protect the cargo for whom it might concern, the master remained •■ashore with his vessel 12 or more miles distant to perform that service. HelO,, that such service of the master did not entitle him to charge de-murrage after the cargo had been unloaded nor sustain a charge for demurrage as compensation for a watchman, but at most only authorized a division between the owner of the cargo and the ship of the master’s board bill while ashore together with the cost of cablegrams and protest -fees.</p> <p>[Ed. Note. — For other cases, see Shipxmig, Cent. Dig. § 576; Dec. Dig. § 177.*</p> <p>Demurrage,, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. 0. A. 387; Ilagerman v. Norton, 46 C. C. A. 4.)</p> <p>3. Payment (§ 82*) — Recovery—Voluntary Payment.</p> <p>The rule that money paid on account of an unlawful demand voluntarily and with knowledge of all the facts may not be recovered, unless paid under protest or. to emancipate the property from an actual and existing duress imposed by the person to whom the money is paid, does not prevent a recovery of money paid on an illegal demand reluctantly by one without ability to regain possession of his property except by mak-'irig such payment.</p> <p>’ [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 254-266; Dec. Dig. § 83.*]</p> <p>4.- Shipping (§ 194*) — Interpreter’s Compensation.</p> <p>Where the services of an interpreter at the port of a vessel’s discharge were necessary ■ to aid a master in effecting a delivery of his cargo because the people with whom he had to deal could not speak or understand his language nor he theirs, the interpreter’s compensation should be divided equally between the vessel and cargo.</p> <p>■ [Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 613-617; Dec. Dig, § 194.*.]</p>

<p>In Equity. Suit by the West Publishing - Company, of St. Paul Minn., against the Edward Thompson Company, of Northport, Long Island, N. Y., for infringement of the copyrights covering the National Reporter System and the American Digest System, by the printing and publication of the American and English Encyclopaedia of Law (first and second editions) and the Encyclopaedia of Pleading and Practice.</p>

<p>In Equity. Bill by George Wykes, successor to the Holland Trust Company of New York, as trustee, against the City Water Company of Santa Cruz and the City of Santa Cruz to foreclose a mortgage given by the water company to secure the payment of bonds issued by it.</p> <p>This is a bill in equity to foreclose a mortgage or deed of trust given by the defendant the City Water Company of Santa Cruz, hereinafter referred to as the “water company,” to the Holland Trust Company of New York, the predecessor in interest of the complainant, whereby the water company conveyed to said trust company certain property, hereinafter more particularly referred to, as security for the payment of bonds of the water company issued thereunder and now outstanding.</p> <p>Picked out of a mass of somewhat tangled detail unnecessary to recite, the material facts, as to which there is no conflict, are these: The defendant the city of Santa Cruz, for convenience hereafter designated the “city,” a municipal corporation of the fifth class, having full power for the purpose, determined by proper action of its common council to acquire and construct a permanent system of waterworks, to be used by the municipality for supplying its inhabitants with water. A special election was duly held, whereat a proposition was voted by the electors creating a bonded indebtedness for the purpose of 8300,000; that being the limit of indebtedness which the city was, under the law as it then stood, entitled to create upon the assessed valuation of property within the municipality. These bonds were duly issued, and a portion of them sold, with the proceeds of which the city acquired certain water rights, reservoir sites, and rights of way as a nucleus for the proposed plant. Difficulties then arose in disposing of the remainder of the bonds, and it was found that the fund was insufficient to carry out the proposed work. To avoid these difficulties, and particularly to evade the then limitation against incurring a greater indebtedness, the city authorities enlisted the aid of Coffin & Stanton, a Now York firm of financiers, as a result of which that firm took over the unsold bonds and entered into certain agreements with the city, whereby (ignoring unnecessary details) the city granted to it the right and franchise for the construction of a system of waterworks therein, for which, when completed and turned over to it, the city was to pay the sum of 8320,000. The construction of the works was to be had through the agency of a corporation to be organized for the purpose and styled the “City Water Company of Santa Cruz,” to which agency was to be assigned the franchise for constructing the works, and to which the city was to transfer its title to the water rights, reservoir sites, rights of way, and other rights theretofore acquired by it, and it was provided that the water company should, upon its organization, cause to be executed a trust deed or mortgage upon all the property so to be conveyed to it by the city in an amount not to exceed $400,000, and issue bonds thereunder bearing interest at a rate not to exceed G per cent. These bonds the water company was to issue and deliver to Coffin & Stanton, as necessity required during the progress of the work in sufficient amount to protect that firm, who were to furnish the funds for payment of construction, but not to exceed in all $320,000 of the bonds except upon contingency of alteration or extension of plan as provided for therein. It was then provided that, when Coffin & Stanton should have received the stipulated amount of bonds, and the waterworks were completed, that firm should deposit with a trust company, to be agreed upon, 8270,000 of such bonds to be held in* trust or escrow for ■the securing of the city against a like amount of the water bonds therefore issued by it and sold to or taken over by Coffin & Stanton as heretofore stated; ■and finally it was provided that, when said system of works should be fully completed, the water company should convey the same, with all its property and rights of every kind pertaining thereto, to the city in absolute perpetuity, but subject, however, to the mortgage or deed of trust so to be executed by the water company, which obligation and the debt secured thereby the city was to assume and pay.</p> <p>These agreements were fully and in good faith carried out in all their" details ; the grant of the franchise to build the works was had; the defendant water company was organized with all legal formality; a deed from the city of its water rights and property was executed to the water company; the mortgage of the latter to the Holland Trust Company was duly and regularly made, and its bonds issued thereunder and delivered as required; the waterworks constructed and installed strictly in accord with the specifications therefor and accepted by the city; and in due course the water company executed to the city, and tile latter accepted, a deed conveying the completed works with all property and rights of every kind included in the system and then held by the water company. This' deed was made on March 29, 1892, and formal acceptance thereof had on that date, and the deed was subsequently recorded in the records of the county of Santa Oruz at the request of the then city clerk; and since said date and the taking over of the property thereunder the city has operated, used, and enjoyed the waterworks system thereby conveyed and its revenues for its own exclusive benefit and that of its inhabitants. The deed expressed no consideration passing from the city to the water company, but it recited the existence of the mortgage or deed of trust given by the latter, and the habendum of the deed reads: “To have and to hold the same and every part thereof unto the said party of the second part, its successors and assigns, subject, however, to said mortgage or deed of trust, and all the obligations thereby imposed, which bonds, mortgage or deed of trust, and obligations, the party of the second part agrees to pay and perform.”</p> <p>Subsequently, on March 13, 1894, the act of the city authorities in accepting this deed with such assumption of the obligation therein recited was by the council referred to the voters of the city for their ratification or rejection in a refunding proposition which when submitted specifically described such obligation and the manner in which it had been incurred and recited: “Which bonds outstanding, were at the time of the conveyance by -.the City Water Company of Santa Cruz to the city of Santa Cruz, of the property known as the City Waterworks, and now are, a valid lien and charge upon said property known as the City Waterworks and became thereby a part of the bonded indebtedness of the city of Santa Cruz.” At such ’election the action of the city authorities was ratified by a vote of more than two-thirds of 'the electors.</p> <p>Prior to the date of the acceptance of this deed and the assuming of the obligation imposed thereby, the law fixing the limit of indebtedness authorized to municipalities of the fifth class had been amended so as to increase the maximum allowed on its taxable property from 5 per cent, to 15 per cent.; and there is nothing appearing in the record to indicate that the obligation thus assumed, together with those already existing, was in excess of the total indebtedness the' city was then privileged to create.</p> <p>The bonds involved are what remain unliquidated of those issued by the water company under the circumstances above set forth. Upon those bonds the city from the date of taking over the waterworks down to November 1, 1893, paid the interest as it accrued, but has defaulted therein since that 'date. Prior to that date the bonds had passed from the ownership of Coffin & Stanton into the hands of the present holders for value, and it is in pursuance of proper demand from the latter that the trustee brings this suit.</p> <p>The defendant water company is the corporation organized in pursuance of the agreements above referred to and whose bonds are the subject of the litigation. That defendant has failed to answer the bill, and is in default.</p> <p>.The'defendant city has answered and interposes the defense of ultra vires as to the various acts of its officers involved in the controversy. It has not taken or presented any affirmative evidence on its belialf, but rests Its defense upon the facts established by the evidence taken in behalf of complainant.</p>

’Action by Henry Hensch, continued in the name of Frank Hastings, trustee in bankruptcy of Hensch, against Herman C. H. Herold, as collector of internal revenue at Jersey City, to recover special oleomargarine taxes assessed against Hensch and paid under protest.

<p>' In; Equity. Bills by one Shepard against the Northern Pacific Railway Company and others, by J. S. Kennedy and others and by H. A.James against the Great Northern Railway-Company and others, and by W. Shillaber against the Minneapolis & St. Louis Railroad Company and others.</p>

<p>1. Public Lands (§ 19*) — Unlawful Inclosure — Indictment.</p> <p>Where an indictment charged that defendant unlawfully, etc,, maintained and controlled an inelosure of the public lands of the United States situated, etc., and that such inclosure consisted of posts and wire fences, it sufficiently alleged that the lands described were surrounded by posts and wire fences, and was not demurrable for failure to charge that the fences were connected with natural barriers, so as to surround the land, etc.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 19.*]</p> <p>2. Indictment and Information (§ 121*) — Inclosing Public Lands — Bill of Particulars.</p> <p>An indictment charged defendant with unlawfully inclosing certain public lands, and alleged that the inclosure consisted of posts and wire fences, that defendant in maintaining and controlling the fences and inclosure had no claim or color of titie to any of the lands made or acquired in good faith, or any asserted right thereto by or under claim made in good faith with a view to entry thereon, etc. Held, that the court did not err in refusing to require the government to furnish a bill of particulars alleging whether the alleged posts and wire fences completely surrounded the lands described, and, if not, where and what were the particular fences to which the allegation related, and who owned the same, and also stating the acts or relations of the defendant contemplated and deemed offensive by the allegation that he maintained and controlled the alleged inclosure of public lands.</p> <p>[Ed. Note. — For other cases, see Indictment and, Information, Cent. Dig. §§ 316-320; Dee. Dig. § 121;* Criminal Law, Cent. Dig. § 1378.]</p> <p>8. Criminal Law (§ 1166%*) — Writ of Error — Prejudice.</p> <p>Where the record failed to show that any objectionable juror was selected over defendant’s challenge for cause, or that he exhausted his peremptory challenges, error, if any, in excusing two jurors on the government’s challenge for cause was not prejudicial to accused, under the federal rule that it is only when the record discloses that an impartial jury may not have been selected, either by the exhaustion of the parties’ peremptory challenges and the selection of a juror over his legal objection, or by some other equally cogent evidence that a fatal error in the selection of the jury is presented to an appellate court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3125; Dec. Dig. § 1166%.*]</p> <p>4. Criminal Law (§ 901*) — Waiver and Correction of Error — Motion fob Verdict.</p> <p>Introduction of evidence by accused in his own behalf is a waiver of previous motions for an instructed verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2124; Dec. Dig. § 901.*]</p> <p>5. Criminal Law (§ 1044*) — Sufficiency of Evidence — Review—Motion fob Directed Verdict — Necessity.</p> <p>A request for a directed verdict at the close of all the evidence is es-séntinl to authorize a review of the sufficiency of the evidence to sustain a conviction on a writ of error.</p> <p>TEd. Note. — For oilier eases, see Criminal Law, Cent. Dig. §§ 2672-2675; Dec. Dig. 1 1044.*]</p> <p>6. Public Lands (§ 19*) — Unlawful Inclosube — Offenses—Evidence.</p> <p>In a prosecution for wrongfully inclosing public lands, in violation of Act Feb. 25, 1885, c. 149. 23 Stat. 321 (U. S. Comp. St. 1901, p. 1524), evidence that it had been the custom of the Land Department, before commencing prosecution for such offense, to notify the parties to remove their inclosures, but that no notice had been given to accused before the prosecution was commenced, was properly excluded; the failure of the Land Department to give such notice constituting no defense. .</p> <p>[Ed. Note.- — For other cases, see Public Lands, Dec. Dig. § 19.*]</p> <p>7. CbiminAl Law (§ 379*) — Evidence—Character.</p> <p>Where a witness had testified that he was acquainted with the. reputation of accused as a law-abiding, law-obeying, and law-observing man, and that his reputation as such was good, a further question as to whether,' if anything derogatory had been said of defendant, the witness would likely have heard of it, was immaterial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 843, 844; Dec. Dig. § 379.*]</p> <p>8. Public Lands (§ 19*) — Unlawful Inclosube — Joinino to Lawful</p> <p>Fences.</p> <p>The maintaining of an inclosure of public lands by joining defendant’s fences with lawful fences belonging to other parties, thereby intentionally effecting an inelosure of public lands, constitutes a violation of Act Feb. 25, 1885, c. 149, 23 Stat. 321 (U. S. Comp. St. 1901, p. 1524), prohibiting the illegal inclosure of such lands.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 19.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Petition by the Canada, Atlantic & Plant Steamship Company, Limited,' for a writ of mandamus against William A. Hayes, 2d, United States Commissioner, to compel defendant to entertain an application for a certificate for the arrest of a judgment debtor on mesne process. Prom a judgment granting the writ, the defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>In- the matter- of Harry Davis, bankrupt. Appeal by Thomas Kenyon, from an-order-disallowing his claim.</p>

<p>1. Master and Servant (§ 278*) — Action for Injury to Servant — Defective Car- Coupler — Evidence.</p> <p>In an action by an employe against a railroad cpmpany to recover for an injury alleged to. have been caused by the use by defendant in interstate commerce of cars not equipped with automatic couplers, as required by the Safety Appliance Act March 2, 1893, c. 190, § 2, 27 Stat. 531 (U. ®. Comp. St. 1901, p. 3174), evidence of the use of such cars with couplers so defective that they could not be coupled without going between them, and that in doing so plaintiff was injured, is sufficient to make a prima facie case, although it does not show the precise nature of the defect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Master and Servant (§ 289*) — Injury to Servant — Contributory Negligence.</p> <p>An inexperienced brakeman doing switching work in railroad yards in weighing cars which were required to be uncoupled as they were weighed, who, when the lever on a car on the side of the train where he was working would not uncouple two cars because of a defect, went between the cars as he had seen others do, and was injured, cannot be held chargeable with contributory negligence as matter of law because he did not go around the train and try- the lover on the other side.</p> <p>[ Ed. Note. — For other cases, see Master and Servant, Cent Dig. §| 1089-1132; Dec. Dig. § 289.*]</p> <p>3. Master and Servant (§ 230*) — Injury to Servant — Contributory Negligence.</p> <p>In determining whether or not a brakeman was chargeable with contributory negligence in going between two cars to uncouple the same, whereby he was injured, his knowledge and experience in the work are proper elements to be considered.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 687-700; Dec. Dig. § 230.*]</p>

Suit in equity by tlie Merchants’ it Manufacturers’ National Bank of Sharon, Pa., against tlie Logan Brick Manufacturing Company and the Security Savings Bank & Trust Company. Held: as before indicated, in favor of. the receiver.

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Clarksburg.</p> <p>Suit in equity by the Vilter Manufacturing Company against the Tygart Valley Brewing Company. Decree for complainant (168 Fed. 1002), and defendant appeals.</p> <p>The appellee, by agreement, dated February 1, 190(1. contracted witli tbe appellant to furnish and erect, in the latter's brewery, at Grafton, Taylor county, West Virginia, two large refrigerating machines and an ice plant, at the price of $21,500. After the completion of the work, the appellee, pursuant to the laws of the state of West Virginia, on the 22d day of April, 1907, filed in the clerk’s office of said county its mechanic’s lien, namely, an account purporting to show, among other things, a just and true account of the amount due, after allowing all credits, together with a description of the property to be covered therein, the name of its owner, against the plant and premises, and the land used in connection therewith, duly described in said lien. This account was sworn to before a notary public of the state of Wisconsin, and filed within the time prescribed by the statute, that is, within 60 days from the cessation of the labor on and furnishing material in connection with such machinery and ice plant; and the appellee, within the period allowed by the same statute, namely, 6 months from the date of the filing of said lien in the clerk’s office, filed the bill in this case in the Circuit Court of the United States for the Northern District of West Virginia, for the purpose of enforcing the lien for the balance claimed to be due under the contract. The defendant in the lower court, the appellant here, appeared and demurred to the bill, assigning, among other grounds, that the account or lien, which was executed and' subscribed to before a notary public of the state of Wisconsin, was not accompanied with the certificate of the clerk, or other officer of a court of record, in said last-named state, under his official seal, verifying the genuineness of the signature of said notary, and showing his authority to administer oaths, as required by the laws of the state of West Virginia. After the filing of the demurrer, the complainant was allowed to file an amended and supplemental bill, setting up the fact, among others, that the notary before whom the account referred to had been verified and filed as a mechanic’s lien was authorized to administer oaths, and that his signature was genuine, and duly exhibited with said amended and supplemental bill a formal certificate dated the 12th day of August, 1907. from Fred. W. Cords, clerk of the circuit court of the county of Milwaukee and state of Wisconsin, under the seal of said court, showing those facts. This certificate was not annexed to and made a part of said account, nor did it purport to have been issued in relation thereto, but merely certified that the notary in question, whose name appeared at the top of the certificate, was duly commissioned and qualified, and that he was familiar with and verily believed his signature to be genuine. This certificate was not filed in the office of the clerk of the county court of Taylor county, W. Va., before or at the time of the filing of the amended and supplemental bill, or within 60 days from the completion of the work for which the lien is claimed. To this amended and supplemental bill a demurrer was also filed, assigning the insufficiency of the certificate dated 32th of August, 1907, unannexed to the claim for lien, and unrecorded therewith, to cure the defect in the claim for lien as originally filed. This demurrer was overruled, and thereupon appellant, the defendant below, answered the original and amended and supplemental bills, setting up the defects aforesaid in the complainant’s lien, denying that a legal lien had been perfected, and made claim for alleged damages caused by delay in the erection of the machinery and plant. Subsequently, upon the motion of the complainant, leave was granted it to withdraw from the files the certificate of the clerk of the circuit court of Milwaukee county aforesaid, in order that the same might be filed in the office of the clerk of the county court of Taylor county, W. Va., and the same was withdrawn and recorded in said court in its record book of mechanics’ liens; and thereupon, by leave of court, a second amended and supplemental bill was filed, setting up the withdrawal and recordation of such certificate and the contention that said lien was thereby validated, to wMeh a demurrer was interposed, again assailing the validity of the lien, and the same was overruled by the court. The defendant then answered the second amended and supplemental bill. 1’roofs were duly taken, and the cause submitted upon its merits; and the court, on the Rd day of April. 1909, filed its written opinion, reaffirmed its ruling on the demurrers, rejected the defendant’s counterclaim, and found that the complainant on such lien was entitled to recover a balance of $S.2iH.R9, for which a decree was. on the 20th day of April. 1909. duly entered, and the plant and premises ordered to be sold, from which decree this appeal was taken.</p>

<p>1. CORPORATIONS (§ 432*)-CONTRACTS — AUTHORITY OF MANAGING AGENT.</p> <p>The general manager of a corporation who on its behalf made a contract, the validity and binding effect of which is not denied, is presumed to have authority to accept performance of such contract, and the other party thereto is justified in acting on such presumption.</p> <p>I Ed. Note. — For oilier cases, see Corporations, Cent. Dig. § 1727; Dec. Dig. § 432.*]</p> <p>2. Xhíim-iPAr, and Agent (§ 81*) — Compensation of Agent.</p> <p>Plaintiff contracted witli defendant to procure contracts for the sale to it of 300,000 trees of specified kinds and dimensions at not to exceed a stat.ed price per tree, for which he was to lie paid a commission. The contract was to continue for one year after which it was terminable by either party, and provided that plaintiff should use his energy and best ability to procure the contracts at as low a price as possible, but should not be held responsible for the deficiency if he failed to procure contracts for the full number of trees, in which case he should be paid a proportionate part of the commission. Plaintiff procured a single contract from other parlies to furnish the full number of trees which was accepted by defendant with an express indorsement thereon that it was in fulfillment of plaintiff’s contract. Defendant subsequently brought an action for breach of such second contract. Held, that plaintiff’s contract was not one. for a year’s services, but was performed when he procured contracts for the required number of trees which were acceptable to defendant, and that, in the absence of fraud, be was entitled to recover the stipulated commission.</p> <p>I Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 81.* 1</p> <p>a Princip al an» Agent (§ 89*) — Action-Questions for Jury.</p> <p>In an action for compensation, the question whether plaintiff was precluded from recovery by fraud held under the evidence one for the jury.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Dec. Dig. § 8!?.* I</p>

Action at law by 'Caroline C. Middlesworth and others against the Houston Oil Company of Texas and others. Judgment for defendants, and plaintiffs bring error.

Action by Andrew Chec, a minor, by Adam Marszewski, his guardian, against the Steel Car Forge Company. Judgment for plaintiff, and defendant brings error. The defendant in error, Andrew Chec, brought an action for personal injuries, which resulted, in the trial court, in a verdict and judgment against the Steel Car Forge Company for $12,000. This writ of error is sued out to reverse that judgment.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Bill by Richard E. Selden, as executor of the will of Olive J. Cone, and others, against the Illinois Trust & Savings Bank and others. Froln a decree sustaining a general demurrer to the amended bill, and dismissing the same for want of equity, complainants appeal.</p> <p>The appeal is from a decree sustaining a general demurrer to the amended hill of complaint, and thereupon dismissing the hill for want of equity.</p> <p>The complainant Richard L. Selden is a citizen of Connecticut, Phebe R. Mason a citizen of Massachusetts, and Hura A. Champlain a citizen of New Jersey. The defendant, The Illinois Trust & Savings Bank, executor of the will of Daniel B. Shipman, is a corporation, organized and existing under the laws of Illinois, and Daniel B. Shipman, during his life time, and at the time of his death, was a citizen of Illinois. The other defendants are beneficiaries under the will of Shipman.</p> <p>.. The bill was to set aside, as null and void, the probate of the will of Ship-man/upon the ground that Shipman was not. at the time of making such will,"of sound and disposing mind, and that the will was procured by undue influence and fraud.</p> <p>.The equity jurisdiction of the federal courts is invoked upon the following facts:</p> <p>.Shipman died November 22, 1906, leaving Olive J. Cone his sole heir at law. His estate was over $1,500,000. On January 11, 1907, his will, granting nearly the whole of his estate to the Illinois Trust & Savings Bank, as trustee for the benefit of the beneficiaries therein named, was filed and duly proven by the attesting witnesses, whereupon it was probated. On February 15, 1907, Olive J. Cone filed her bill in chancery in the Circuit Court of Cook County, under the seventh section of the Illinois statute of wills, contesting the will upon the ground that Shipman was of unsound mind and that the will had been procured by fraud and undue influence. On January 8, 1908, while this bill in chancery was pending, Olive J. Cone died: whereupon complainants in the present suit filed a petition in the then pending chancery suit, -suggesting the death of Olive J. Cone on the record, and praying that her executor might be made complainant in said cause, which was so ordered. On January 13, 190S, tire Illinois Trust & Savings Bank, and the beneficiaries under the Shipman will, entered a motion to vacate said order; and thereupon Phebe R. Mason and Lurá A. Champlain, heirs at law of Olive J. Cone, applied to the Circuit Court to be joined as parties with Selden in' the then pending chancery cause. On July 18, 1908, the Circuit Court of Cook County ruled that the petitioners (the appellants here) had no right to intervene in said cause, whereupon the appellants here asked leave to ¡file á bill of revivor, which was also overruled. Upon appeal to the Supreme Court of Illinois, these orders were sustained.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action at law by Edward James Duff against the Columbia Chemical Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeals from Circuit Court of tbe United States for the Middle District of Alabama.</p> <p>Suit in equity by ti. U. Dolierty & Co. against Alex Rice and others. Defendants appeal from orders granting injunctions.</p>

In the matter of bankruptcy proceedings against Timothy C. Dwyer. An involuntary petition having been filed by W. W. Robertson and others, and a master’s report in favor of an adjudication having been disallowed, as contrary to the evidence, and the petition dismissed, petitioners appeal.

<p>Master and Servant (§ 125*) — Death of -Servant — Negligence.</p> <p>Decedent, a marker in defendant’s steel foundry, was killed by being struck by a heavy piece of steel broken from the body of a steel car body in process of manufacture.- After the ears were molded in the process of manufacture, a mass of steel called a “gate” was attached to the body of the car, which was required to be removed by cutting or breaking. It was usual to break off this “gate” by means of a drop working somewhat like a pile driver; the appliances being so adjusted that, when the gate was broken off, it dropped in the soft sand below. Decedent, at the time he was killed, was at work some 25 or 30 feet from the drop, with his hack toward the car body from which the gate was about to be broken, and while so engaged the gate, after being struck by the drop, .was whirled through the air and struck deceased at the back of the head and neck, causing injuries from which he died. No such accident had ever happened before in the course of many years, and though nine witnesses testified, who had worked in the same business for years,' none of them were able to tell how the accident occurred. Held insufficient to show actionable negligence, under the rule that there must be proved a danger, either known, or which by reasonable diligence could have been ascertained by defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]</p>

Action by Ambrose Sellers, as administrator of the estate of Edwin J. Hair, deceased, against the Toledo, St. Eouis & Western Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1. Bankruptcy (§ 430') — Review—Petition to Review and Revise.</p> <p>Denial of an application by an individual creditor of a bankrupt member of a firm for an allowance of interest out of the individual estate subsequent to the allowance of bis claim was reviewable on original petition to review and revise.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 439.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggort. 43 C. C. A. 9.1</p> <p>2. Bankruptcy (§ 351*) — Partnership — Individual Debts —Interest — “Debt.”</p> <p>Bankr. Act July 1, 1898. c. 541, § of, 30 Stat. 347 (IT. 8. Comp. St. 1901, p. .‘’,424). provides that the net proceeds of the partnership property shall 1)0 appropriated to the payment of partnership debts, and the net I>roceods of the individual estate of each partner to the payment of his individual debts; that if any surplus remains of property of any partner, it shall be added to the partnership assets and be applied to the payment of partnership debts, and vice versa; section 1, par. 11, declares that the term “debt” means any debt, demand, or claim provable in bankruptcy; section (53a (J) declares that debts of the bankrupt may be proved and allowed against his estate which are a fixed liability, as evidenced by a judgment or an instrument in willing absolutely owing at the filing of the petition against him, whether ilien payable or not, with any interest thereon which would have been recoverable at that date, or with a rebate of, interest on such as were not then payable and did not bear interest;'and section 63a (5) authorizes 1he allowance of provable debts reduced to judgment after the filing of the petition in bankruptcy, “less costs incurred and interest accrued after the filing of the petition and up to the time of the entry of such judgments.” field, that where the estate of an individual bankrupt partner was more than enough to pay his individual debts, but the individual estates of both partners and the partnership property was insufficient to pay partnership debts, the claim of an individual creditor for interest accruing after the filing of the bankruptcy petition was not a “debt” which the creditor was entitled to have paid out of the partner’s individual assets as against partnership creditors.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Dec. Dig. § 351.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1864-1886; vol. 8, p. 7628.]</p>

Suit in equity by Charles Henry Davis, trustee of Naomi Lawton Davis', against Elizabeth Willis and others. Defendants Frederick A. Hull, Mary A. Hull, W. L. Millar, and Edward Willis appeal from an order denying a motion to vacate an order of dismissal as to them. On motion to dismiss appeal.

<p>In Error to the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Action by George Cundieff against the St. Rouis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error (§ 395*) — Proceedings for Transfer of Cause — Effect of Informality in Bond.</p> <p>Where a writ of error is allowed, and citation duly issued and served, an informality in the bond, or in its approval, will not affect the appellate jurisdiction.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. § 3127; Dec. Dig. § 395.*]</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. Suits in equity by the Columbia Motor Car Company and George B, Selden against C. A. Duerr & Co. and the Ford Motor Company, against the O. J. Gude Company, against John Wanamaker and others, against Société Anonyme Des Anciens Établissements, Panhard & Levassor, and Andre Mossenat, and against Henry & A. C. Neu-bauer. Decrees for complainants, and defendants appeal..

Suit in equity by the American Bank Protection Company against the Electric Protection Company and others. Erom an interlocutory decree granting an injunction and ordering an accounting as to some of the patents involved and dismissing the bill as to others and as to the individual defendants (181 Fed. 350), defendant corporation and complainant both appeal,

<p>Patents (§ 328*) — Invention—Loose-Leaf Binders.</p> <p>The Nelson. Dawson & Trussell patent. No. $06,702. for a loose-leaf binder, discloses nothing new, except the substitution, for the lock previously in use in such binders, of a locking device adopted from the related art of automatically locking boxes, and is void for lack of patentable invention.</p>

In Equity. Bill by the Troy Bank of Troy, Indiana, and others, against G. A. Whitehead and others. On demurrer to bill. Demurrer sustained, and bill dismissed.

<p>In the matter of bankruptcy proceedings of Morgan & Williams.</p>

<p>in Equity. Suit by the Susquehanna Coal Company against the Mayor and Common Council of the City of South Amboy and another..</p>

At Law. Action by Meyer, Wilson & Co. against the Everett Pulp & Paper Company to recover the price of certain china clay delivered pursuant to an executory contract of sale by sample. Finding's for defendant for breach of an implied warranty of quality.

<p>In Admiralty. Ribel in personam by the Pacific Creosoting Company against the Thames & Mersey Marine Insurance Company, limited. On exceptions to the libel.</p>

<p>In the matter of bankruptcy proceedings against the Eagle Steam Laundry Company of Queens County. On proceedings for the allowance of fees for-the services of the trustee’s attorney, and for other disbursements in the administration of the estate.</p>

<p>1. Removal of Causes (§ 102*) — Rev and —Residence of Parties — District.</p> <p>Where a suit is brought in a state court in a federal judicial district, of which neither plaintiff.nor defendant is a resident, it will be'remanded ■ on seasonable motion, unless the plaintiff consents to the suit proceeding in the district by appearance and pleading.</p> <p>[Ed. Note. — 1'or other cases, see Removal of Causes, Cent. Dig. §3 21» 220; Dec. Dig. § 102.*]</p> <p>2. Removai, of Causes (§ 4*) — Right of Removax. — Nature of Action '-At 'XACIIME'NT.</p> <p>Act Cong. March 3, 1875, e. 137, § 8, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513), as amended by Act March 3, 1887, c. 373, 24 Stat. 532, and A.ct</p> <p>Aug. 33, 1888, c. 860, 25 Stat. 433, declares that, when any suit commenced in any Circuit Court of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance, or lion, or cloud on the title to, real or personal property within the. district where the suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the district, or shall not voluntarily appear, the court may direct the absent defendant or defendants to appear by a certain day, to be designated, etc., and be served by publication. Held, that where an action was brought in a slate court between nonresidents, and an attachment was levied on property of .the defendant within the state solely to obtain jurisdiction, the 'action was not brought to enforce a legal or equitable lien on the property within such act, and was therefore not removable to the federal 'court.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 11— 20; Dec. Dig. § 4.*]</p>

<p>Bankruptcy (§ 209*) — Claims to Property — Determination—Plenary Suit —Parties.</p> <p>Where a bankrupt, having borrowed money from A';, executed a deed to certain real estate- to him, receiving back a bond for title, and thereafter transferred the bond to his aunt, to whom he was indebted, and it was doubtful- whether such transfer was an absolute assignment or as security, the determination of that question could not be had in a sum-rnary- proceeding to compel the bankrupt to turn over the property to his trustee, in which the aunt was not a.party, but could only be determined in a plenary suit.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 318; Dec. Dig. § 209.*]</p>

<p>In Equity. Suit by T. N. Motley against the Southern Railway Company. On demurrer to bill.</p>

In Equity. Bill by the Southern Railway Company against Ephraim Simon to restrain the execution of a judgment recovered by Simon against the railway company in the state court.

<p>BANKRUPTCY (§ 188*)-RETAIL LIQUOR LICENSE — ASSIGNMENT AS SECURITY— Validity as Against Trustee.</p> <p>The Virginia Law (Laws 1910, c. 190) regulating the sale of intoxicating liquors provides that a license can only be granted to a qualified voter, and, if taken out by a corporation, the officer dispensing liquor must be a voter of the county or city where it is carried on. An application for the license must be made to the corporation court where it may be defended by any party in interest, and the court before granting it must find that the applicant is a fit person, that he will keep an orderly house and personally superintend the same, and that the place at which it is to be conducted is suitable. He is also required to give a bond to comply with the law. No licensee may hire his license or allow its use by any other person, firm, or corporation on pain of forfeiture, and any other person using such a license becomes subject to a penalty of $400. The license must be posted in the licensee’s place of business, and a general provision declares that it shall confer on the licensee a personal privilege to transact the business which shall not be exercised by the licensee except as specially authorized by law. The license is made assignable to any person to whom it might have been originally granted, and, in the event of the licensee’s death, may be assigned by his personal representative. An assignment shall not be valid without certificate of the court issuing the regular license, or without bond and oath Of assignee. Sold, that under such provisions a liquor license granted to a bankrupt could not be made the subject of a valid pledge to a brewery corporation which advanced nearly all of the license fee, taking the bankrupt’s note with an attempted assignment of the license as security.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 188.*]</p>

In the matter of bankruptcy proceedings against P. M. Loden. Application by B. D. Langford to withdraw a claim proven in bankruptcy proceedings. On petition to review an order of the referee denying such application.

<p>In the matter of bankruptcy proceedings of David Click and others. On petition to review the disallowance of a claim filed by the Bradstreet Company by the referee.</p>

<p>Maritime Liens (§ 13*) — Grounds op Lien — Insurance Premiums Paid by Broker.</p> <p>A lien does not attach to a vessel for the premiums paid by a broker on a contract of insurance obtained at the request of the owner.</p> <p>[Ed. Note. — For other eases, see Maritime Liens, Cent. Dig. § 17; Dee. Dig. § 13.*]</p>

<p>Action by Kline Bros. & Co. against the Liverpool & London & Globe Insurance Company, with, which were heard four other cases. Application to vacate or extend a notice to take depositions de bene esse.</p>

In Bankruptcy. Separate petitions in the matter of the Hudson River Electric Power Company, the Hudson River Electric Company, the Hudson River Power Transmission Company, and the Saratoga Gas, Electric Light & Power Company, alleged bankrupts.

<p>Actions by the United States against the Lehigh Valley Railroad Company (three cases), against the New York Central & Hudson River Railroad Company, against the Michigan Central Railroad Company, and against the Grand Trunk Railway Company of Canada, to recover penalties for violation of the 28-hour law.</p>

<p>In Equity. Bill by James E. Sellman and others against the German Union Eire Insurance Company of Baltimore. On motion for appointment of receiver and preliminary injunction.</p>

<p>In Equity. Bill by Jacob Edwards and others against the Bay State Gas Company. In the matter of the petitions of Charles S. Hinchman and the Arizona Blue Bell Copper Company.</p>

<p>Caebiers (§ 211*) — Carrying Animals — Twenty-Eight Hour Law — Construction.</p> <p>Act Cong. June 29, 1906, c. 8594, 84 Stat. 60T (U. S. Comp. St. Supp. 1909, p. 1178), prohibits interstate carriers from confining animals in cars for more than 28 consecutive hours without unloading for rest, water, and food, except that, when the animals are carried in ears, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to rest, they need not be unloaded. Held, that a carrier, in order to bring itself within the exception, must not only show that the animals can have the supplies specified, but that they are in fact afforded proper food, water, space, and opportunity to rest, so that where animals were in charge of the shipiier, and were retained in the cars for a longer period than 28 hours without proper food, water, and an opportunity to rest, it was no answer to the carrier’s liability that the shipper could have provided proper attention, and, on being inquired of en route as to how ho was faring, stated that he was “all right,” and that he could feed and water his stock.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 92Gt>28; Dec. Dig. § 211.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the District Court of the United States for the District of South Carolina, at Charleston, in Bankruptcy.</p>

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

<p>On Petition for Review.</p>

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

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in Bankruptcy.</p>

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

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

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

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

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond.</p>

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

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

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

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

Appeals from the Circuit Court of the United States for the District of Nevada. With this case has been consolidated in this court cases bearing titles as follows: Rickey Land & Cattle Co. v. Patrick J. Conway et al.; Same v. L. R. Ames et al.; Same v. J. IS. Gig-noux; Same v. Mickey Ditch Co. et al.; Same v. Patrick Gallagher.

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

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

<p>Appeal from the District 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 Northern District of Texas.</p>

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

United States for the Southern District of New York. Petition of Max Fok-schauer to be admitted to citizenship. The following is the opinion below of Noyes, Circuit Judge: “In my opinion this court acquired jurisdiction of this matter when the petitioner as an alien resident of this district filed his petition, and did not lose it by reason of his moving to the Eastern district.

<p>Appeals from Circuit. Court of the United* States, for the Eastern District of Oklahoma. With this case, has been consolidated in this court J.05 other cases by the United States against differ eng defendants.</p>

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

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