Volume 185 — Federal Reporter

<p>In Error to the District Court of the United States for the Western District of Arkansas.</p> <p>Eon Ammerman'was convicted of perjury, and brings error.</p>

■ Action by William H. Sage and, others, as executors, etc., against John G. Ward, as Collector of Internal Revenue, to recover $69,940.88, paid to him under protest as direct taxes on certain legacies bequeathed by the will of Dean Sage under War Revenue Act 1898, §■§ 29, 30 (Act June 13,1898, c. 448, 30 Stat. 464, 465 [Ur S. Comp. St. 1901, pp. 2307, 2308]).

In the matter of bankruptcy proceedings of the McMillan Dumber Company. From a decree allowing the claim of Gilmore S. Hamill out of the proceeds of certain assets claimed to have been sold free from liens, W. L. McKay, the bankrupt’s trustee, appeals.

<p>1. Nuisance (§ 15*) — Prescription—Duration of Use.</p> <p>The period of time which will give a prescriptive right upon or over the lands of another cannot begin to run • until the exercise of such right becomes adverse to the owner of the land, and the fact that a defendant had for many years discharged stone dust and waste from its soapstone manufactory into the waters of a stream did not give it a right by prescription to do so which precluded an owner of bottom land on the stream several miles below from recovering damages for injury to his land by the deposit of such waste thereon in times of high water, where such injury did not commence until a short time before action brought, and apparently not until tbe stream had become so filled with tbe dust and waste that it was stirred up by the flood waters and carried over the land in times of overflow in injurious quantities.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 46; Dee. Dig. § 15.*]</p> <p>2. Limitation of Actions (§ 55*) — Accrual of Right of Action — Injury to Property.</p> <p>An action by a riparian owner on a stream to recover damages for injury to his land by the deposit thereon in times of high water of stone dust and waste discharged into the stream from defendant’s soapstone manufactory several miles up the stream is not barred by a five-year statute of limitation because the manufactory was permanent in character and had been built and in operation for more than five years, during which time it had discharged its waste into the stream in the same manner and to the same extent, where the injury to plaintiff’s land was not an obvious and necessary result of such operations, and did not commence until within five years'before suit, and not until the waste had so accumulated in the stream that it was raised and carried over, and deposited upon, the land in injurious quantity in times of overflow.</p> <p>[Ed. Note. — For other eases, see Limitation of Actions, Cent.' Dig. § 305; Dec. Dig. § 55>]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by August Deninger and another against the American Locomotive Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Appeal and Error (§ 324*)' — Necessary Parties — Summons and Severance.</p> <p>In the federal courts, where there is a joint judgment or decree against several defendants, in a writ of error or an appeal from such judgment or decree all the defendants must join, unless it be shown that against those not joining some proceeding in the nature of a summons in severance has been taken, or that due notice has been served upon them by the defendant taking the appeal, and that such defendants have refused to join therein.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1806-1809; Dec. Dig. § 324.*</p> <p>When summons and severance of parties on appeal or writ of error is authorized or required, see note to City of Detroit v. Guaranty Trust Co. of New York, 93 C. O. A. 608.]</p> <p>2. Appeal and Error (§ 324*) — Necessary Parties — Joint Decree.</p> <p>In a suit in equity against a number of defendants to .determine tbeir several interests, if any, in a judgment, and to obtain its satisfaction, a decree granting such relief is joint in substance, and unless there is a summons and severance, or notice and refusal, all the defendants must join in an appeal therefrom.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1806-1809; Dee. Dig. § 324.*]</p>

<p>1. Master and Servant (§§ 150, 153, 155*) — Master’s Liability for Injury to Servant — Dangerous Machinery — Duty of Instructing Servant.</p> <p>Where a machine which an employé is set to operate is dangerous, or a latent defect exists, it is the duty of the master to notify the servant, instruct him in the use of the machine, and warn him as to the particular dangers to be apprehended; and such duty is the more imperative where the servant is inexperienced and without knowledge of machinery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307, 310; Dec. Dig. §§ 150, 153, 155.*]</p> <p>2. Master and Servant (§ 286*) — Action for Injury to Servant — Questions for Jury.</p> <p>Plaintiff lost his arm by having it caught in a machine used to wind cotton bagging into rolls, whieh he was operating in defendant’s factory.. When a roll was completed, the machine was stopped while it was removed and the material adjusted for a new one; and it was in making such adjustment that the accident happened, as plaintiff testified, through the sudden starting of the machine. Plaintiff was a Russian Pole, with a very limited knowledge of English, who had been a common laborer, and had no knowledge of machinery. He had operated the machine but four days, and all the instruction he received was given him by a boy in English. The machine was stopped by shifting a belt from a tight to a loose pulley by means of a lever, which, when the belt was entirely on the loose pulley, was held In a notch until released; but it did not appear that plaintiff was instructed of the necessity of so securing it, and there was testimony tending to show that, unless this was done, the belt might work back and start the machine. Unless the accident occurred by the starting of the machine, as plaintiff testified, it appeared that he must have been trying to adjust the bagging while the machine was in motion, which would be obviously dangerous. Reid, that •the case was one for the jury, and that their finding in favor of plaintiff would not be disturbed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §S) 1044-1050; Dee. Dig. § 280.*]</p>

<p>1. Criminal Law (§ 1192*) — Appeal and Error — Reversal—Mandate and Proceedings in Lowi?r Court-New Trial.</p> <p>It does not necessarily result, from the fact that on reversal of a judgment by an appellate court the mandate does not specifically direct a venire do novo, that the judgment of reversal finally disposes of the case, so that a new trial cannot he had; but the grounds of reversal, as disclosed in the opinion of the appellate court, may be considered in determining the propriety of a second trial, especially where the mandate requires of the lower court that further proceedings he had “in conformity with the opinion and judgment of this court.” fEd. Note. — For other eases, see Criminal Law, Dec. Dig. § 1192.*]</p> <p>2. Criminal Law (§ 193*) — Former Jeopardy — New Trial After Reversal of Judgment.</p> <p>The plea of former jeopardy cannot be interposed to a second trial of a criminal ease, made necessary by the reversal of a former judgment of conviction on a writ of error sued out by the defendant.</p> <p>fid. Note. — For other eases, see Criminal Law. Cent. Dig. § 378; Dec. Dig. § 193.*]</p>

<p>1. Chattel Mortgages (§ 43*) — Construction — Inclusion of Personal Property.</p> <p>The habendum clause in a mortgage is subordinate to, and controlled by, the premises, and only describes the tenure by which tee property therein granted and conveyed is to be held; and if no personal property has been conveyed by the premises, the habendum clause will not suffice to supply the omission and render the instrument a chattel mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 83; Dec. Dig. § 43.*]</p> <p>2. Insurance (§ 330*) — Avoidance of Policy — Incumbrance of Property— “Chattel Mortgage.”</p> <p>A mortgage was given by a silk manufacturing company to secure an issue of bonds, by virtue of a resolution of its board of directors authorizing a mortgage upon “the mill property, * * * its boilers, engines, buildings, stacks, silk winding, spinning, reeling, and quilling machinery, dynamos and electric light plant.” The mortgage described the real estate and property above enumerated, and also “fixtures, materials, and all other property on the said above-described premises situate, * * * to have and to hold all and singular the above-described real and personal properties,” etc. The boilers, engines, and machinery described were a part of the silk manufacturing plant, and were all attached to the real estate by being set in concrete or brick, or by lag screws attaching them to the floor. The mortgage was not recorded as a chattel mortgage, as required by thé law of New Jersey, where the property was situated. Held, that under the law of New Jersey it was not a “chattel mortgage,” within the meaning of a provision of an insurance policy covering the machinery and personal property in the mill making it void in case the personal property insured should be incumbered by a chattel mortgage.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 829-839; Dee. Dig. § 330.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1098-1106.)</p> <p>3. Insurance (§ 343*) — Avoidance of Policy — “Assignment of Policy” by Insured.</p> <p>A provision in a mortgage given by a corporation to secure bonds requiring the mortgagor to keep the property insured for the benefit of the mortgagee, and that “this section shall be construed and taken to be an assignment of the said first party’s interest in and to any and all insurance policies thereon for the use and benefit of the holders of said bonds in ease-of loss,” is not an assignment of a policy of insurance on the property, in contravention of a provision therein that any assignment thereof before a loss shall work a forfeiture.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 883; Dee. Dig. § 343.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 566-571; vol. 8, p. 7584.]</p> <p>4. Insurance (§ 665*) — Action on Policy — Evidence.</p> <p>An insurance policy provided that the company should not be liable for a greater proportion of any loss than the amount insured thereby should bear to the whole insurance on the property, and also required that in case of loss the proof of loss should contain a sworn statement showing, among other things, all other insurance on the property. In an action on such policy, defendant produced, on demand of plaintiff, such proof of loss made by plaintiff, containing a schedule of all other insuranee, which was admitted in evidence without objection. Held, that, it was sufficient proof, prima facie, of the other insurance on the property.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 665.*]</p> <p>5. Insubanck (§ 92*) — Action on Policy — Evidence.</p> <p>Where, in an action on an insurance policy, the evidence showed that proof of loss was delivered to the agent who issued the policy, and was by him sent to and received by defendant, it was not incumbent on the plaintiff to prove that such agent was authorized to receive the proof on behalf of defendant.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 92.*]</p>

<p>1. Appeal and Error (§ 709*) — Record—Contents.</p> <p>Where an appeal was taken from an order with reference to costs in a suit in equity, entered at the foot of the decree after hearing, but the transcript did not contain the proceedings on the hearing, either in a certificate of evidence or any other form, and the decree was not included, but only memorandum opinions filed by the trial judge at various stages of the hearing, it was insufficient to authorize a reversal, unless reversible error was manifest in the terms or subject-matter of the order.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2949; Dec. Dig. § 709.*]</p> <p>2. Appeal and Error (§ OfiCu) — Order with Reference to Costs — Presumí*-, TIONS.</p> <p>An order with reference to costs in equity recited three several allowances, one in favor of appellant and two stated to be allowed in favor of appellee as complainant, submitted for apportionment under the decree as reserved; one of the last-mentioned items being referred to as “costs in the Circuit Court of Appeals, as appears in its mandate,” and “due to complainant for the benefit of the appellants named in the appeal.” Held that, in the absence of a showing to the contrary, the matter was subject to the controlling presumptions that the parties affected were before the court, that support appeared for the finding in reference to the costs of appeal, in the mandate, that they were “due to the complainant for the benefit of the appellants,” and that the apportionment so made was equitable as between the parties.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3782-3787; Dec. Dig. § 936.*]</p> <p>8. Costs (§ 241*) — Right to Costs — Award.</p> <p>Costs awarded to individuals, as appellants on an appeal from an order enjoining them as representatives of a corporation from further prosecuting a pending suit of the corporation against another, could not be diverted and apportioned in favor of the corporation, not joined in the appeal, without their consent or submission on the hearing, but could properly be so diverted and apportioned, where it appeared that such individuals of their own motion applied for the apportionment, which was made for the equitable purpose of uniting the costs on one side in an offset allowed against costs awarded on the other side.</p> <p>[Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 927-935; Dee. Dig. § 241.*]</p> <p>4. Appeal and Error (§ 1189*) — Costs—Mandate—Execution from Circuit Court.</p> <p>Rev. St. § 701. provides that the Supreme Court may affirm, modify, or reverse any judgment, decree, or order of the Circuit Court or District Court acting as a Circuit Court, etc., but that the Supreme Court shall not issue execution in a case removed before it from such courts, but shall send a special mándale to the inferior court to award execution thereon. Held, that where, on appeal to the Circuit Court of Appeals, the bill of costs was taxed by the clerk and annexed to the mandate as required by Circuit Court of Appeals rule 29 C5), 150 Fed. cviii, 79 G. O. A. cviii, the mandate was sufficient, both for incorporation of the costs in the order with reference to costs in the Circuit Court and for the issuance of execution out of the Circuit Court for the collection of the residue after a set-off.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4644; Dec. Dig. § 1189.*]</p>

<p>In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.</p> <p>Action by William B. Williamson, as receiver, against the American Bank. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Shipping (§ 84*) — Injury to Stevedore — Vessel’s Liability — Defects.</p> <p>Libelant, a stevedore, while assisting in unloading a vessel, was precipitated into the hold as he was endeavoring to remove a portion of a hatch by the giving way of a hatch cover, on which he stood, due to the fact that the crossbeam on which the fore and after rested was sprung, increasing the distance to be reached by the fore'and after, and allowing the end to slip off. This condition had evidently been discovered, and bolts had been inserted to hold the fore and after in place. Held, that the injury was due to the fault of the vessel, and that libelant was entitled to recover.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Damages (§ 132*) — -Personal Injuries — Amount.</p> <p>Libelant, a stevedore at the time he was injured by a defect in the vessel on which he was working, was 48 years old, a powerful man, with at least 10 years’ expectancy of strength and vigor. He had been foreman of a gang and was a good workman. Vertebrae were broken, and he was disabled by his fall for life; his physician testifying that his disability would probably be of a progressive character. Held, that he was entitled to an allowance of 84,500.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 17S, 372-385; Dec. Dig. § 132.*]</p>

Johnson R. Morris was convicted of a criminal offense, and brings error, based on certain orders made by the District Court after filing of the mandate from the appellate court.

<p>1. Sales (§ 177*) — Breach oir Buyer.</p> <p>Defendant, having ratified a contract to buy made by its agent, broke the agreement by refusing to receive final delivery, unless released from obligation under other contracts claimed by plaintiff!.</p> <p>[Ed. Note. — For other eases, see Sales, Dec. Dig. § 177.*]</p> <p>2. Principal and Agent (§ 123*) — Authority to Buy — Evidence—Sotitciency.</p> <p>Evidence held insuificient to show that tiie superintendent oí a branch paper mill was authorized to contract to buy pulp for another mill.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Dec. Dig. § 123.®]</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by Thomas W. Brown against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by Thomas E. Ireton against the Pennsylvania Company and others. From a judgment for defendant Pennsylvania Company, plaintiff and defendant Allemania Eire Insurance Company bring error.</p>

<p>Appeal from the 'Circuit Court of the United States for the Westera District of Louisiana.</p> <p>Suit by the Vincent Oil Company against the Gulf Refining Company of Louisiana and others. From an interlocutory decree, defendants appeal.</p>

<p>In Error to the Circuit Court of the United States for the District of South Dakota.</p> <p>Action by the United States against William Moses, as Sheriff of Butte County, S. D. From a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Frank McCann against Henry O. Evans, trustee in bankruptcy of the Boston Store. Judgment for defendant, and plaintiff appeals.</p>

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of T. A. McIntyre & Co., bankrupts. Petition by Mary D. Grace to revise an order dismissing her claim to follow proceeds of converted securities.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by Robert J. Miller, trustee in bankruptcy of Olive De Lisle, against the Equitable Life Assurance Society of the United States, i From a judgment for plaintiff, defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Philippi.</p> <p>Dloyd Duff was convicted of refilling a bottle of distilled spirits without destroying the stamp previously affixed thereto, and he brings error.</p>

Action at law by O.' A. Gilbert, administrator of the estate of Jason A. Powell, deceased, and Barbara Powell against the Missouri, Kansas & Texas Railway Company and J. B. Showalter. • Judgment for defendants, and plaintiffs bring error.

<p>Carriers (§ 211*) — Interstate Commerce — ’Twenty-Eight Hour Law — Construction.</p> <p>Under the 28-hour law (Act .Tune 29, 1906, c. 3594, § 1, 34 Stat. 607 [U. S. Comp. St. Supp. 1909, p. 1178]), prohibiting the confinement of live stock in interstate shipment for more than 28 consecutive hours without unloading for rest, water, and feeding, subject to the extension of such time to 36 hours on written request of the shipper, “provided that it shall not be required that sheep be unloaded in the nighttime, but where the time expires in the nighttime in case of sheep the same may continue in transit to a suitable place for unloading, subject to the aforesaid limitation of thirty-six hours.” the proviso does not authorize the confinement of sheep for more than 36 consecutive hours in any case, but applies only where there has been no extension at request of the shipper and the 28-hour period expires in the nighttime.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. | 928; Dec. Dig. t 011 *l! ‘ ”</p>

<p>Insurance (§ 334*) — Fire Policies — Warranty by Insured — Breach—Materiality.</p> <p>■ Absence of the sole watchman from a boat to secure a change of clothing and' without the owner’s knowledge, during which absence the boat burned, was a material breach of the owner’s warranty, under a fire policy, that the boat should “at all times have a competent watchman on board.”</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 850; Dec. Dig. § 334.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of South Carolina, at Charleston.</p> <p>íiction by one Buell against the Kanawha Lumber Corporation. From a decree adjudging insufficient its return to a.rule to show cause why a sale should not be complied with, the Elizabeth Land & Lumber Company appeals.</p>

<p>Patents (§ 328*) — Anticipation—Fastening Means for Core Plates.</p> <p>The Nolan patent, No. 582,481, for fastening means for core plates of electrical machines, claims 2 and 4, in which the means described consist of a ring for bolding the laminae in place and an annular plate having a shoulder to prevent the ring from being thrown out of place by-centrifugal force, are void for anticipation by the Rollings British patent, No. 2,184, of 1893, for a method of attaching the chain wheel to the axle of a bicycle.</p>

<p>Patents (§ 328*) — Novelty—Shajt-Coüpling.</p> <p>The Shaw patent, No. 674,024, for a shaft-coupling, is void for lack of patentable novelty.</p>

<p>In Equity. Suit by Harry O. Chute against the Wisconsin Chemical Company. On motion by defendant to dismiss.</p>

<p>1. Patents (§ 312*) — Infringement—Evidence.</p> <p>Where defendant purchased at second hand sewing machines made by complainant, which when made over and resold by him were equipped with a patented device used on some of the machines made by complainant but not on others, in order to escape liability for infringement of the patent by such sales, defendant has the burden of showing that they were so equipped when originally sold by complainant, and, where it is shown that he changed the numbers on many of the machines, such burden is not sustained by the fact that the machines bearing such numbers when sold by complainant were so equipped.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 312.*]</p> <p>2. Patents (§ 318*) — Infringement—Profits Recoverable.</p> <p>The profits recoverable from an infringer of a patent for an attachment for a machine is not necessarily limited to the increased price of the machines sold by him having the attachment, but the difference in salability is to be considered, and, where it appears that sales would not have been made but for the infringing attachment, he is liable for the entire profit on such sales.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 566-576; Dec. Dig. § 318.*</p> <p>Accounting by infringer for profits, see note to Brickill v. City of New ■York, 50 C. C. A. 8.]</p>

<p>1. Statutes (§ 147*) — Revision—Effect.</p> <p>Tbe Minnesota statute imposing a liability on stockholders of certain insolvent corporations, having been substantially re-enacted by Rev. Laws Minn. 1905, was continually kept in force by means of such revision, though tbe original act was repealed by tbe general repealing clause contained in tbe revision.</p> <p>[Ed. Not'e. — For other cases, see Statutes, Cent. Dig. § 216; Dec. Dig. § 147.*]</p> <p>2. Corporations (§ 274*) — Insolvency—Stockholders’’ Liability — Enforcement — Proceedings.</p> <p>The Minnesota statute for the enforcement of the liability of stockholders of insolvent corporations provides that the receiver shall give proof before the court as to who are stockholders, and that due notice of a hearing shall be given to the stockholders. A petition to enforce stockholders’ liabilities under such statute alleged that thé persons named in a schedule attached were the stockholders. The list did not contain defendant’s name, and the numher of shares stated to belong to the stockholders who were included comprised the entire stock of the corporation. The petition contained another schedule which purported to contain the persons alleged to have been original stockholders and to have transferred their stock to avoid liability, giving the names of the transferees, but defendant’s name was not in this list. Defendant’s name, however, was 'included in the list of creditors, and his claim had been proved and allowed in prior bankruptcy proceedings against the corporation. Held that, since there was no claim in the receiver’s proceedings that defendant was a stockholder at any time, he was entitled to assume that the receiver acquiesced in the validity of proceedings taken four years before for tbe cancellation of his stock, and hence a decree entered pro confesso against the stockholders named operated as an adjudication that defendant was not a stockholder and barred the receiver from maintaining an action against defendant to recover an assessment.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1162-116S; Dec. Dig. § 274.*] .</p>

<p>Suit by Duncan McAulay and another against Z. E. Moody and others. On demurrer to bill.</p>

<p>At Law. Action by John V. Sheppey against Ezra H. Stevens. On demurrer to complaint.</p>

<p>Action by the United States of America against the North German Lloyd Steamship Company, and by the United States against the International Mercantile Marine Company, to recover the cost of deporting certain aliens who had arrived in the country on a vessel belonging to the defendants. On demurrer to the complaints.</p>

<p>Robert Jamieson was indicted for knowingly landing a Chinese laborer in the United States, and demurred.</p>

<p>1. Shipping (§ 304*) — Conversion by Vessel — Loading Cargo Without Authority.</p> <p>The agent of the owner made a conditional sale of a raft of timber, retaining title until payment of the price, and with his consent the purchaser towwl it alongside a vessel and obtained from the mate in charge »n “alongside receipt” in the agent's name. Being refused authority to draw a draft on a proposed consignee with bill of lading attached, with the consent of the agent he returned the receipt to the mate, who accepted it and removed the timber to a wharf at some distance, where its return was accepted by the agent of the owner. Later, without the knowledge of either, the vessel loaded the timber on board. No contract of affreightment therefor ivas made by any one with the ship. Held, that under such facts the taking of the timber was wrongful, and that the vessel was liable for its conversion.</p> <p>[Ed. Note. — For other cases, see Shipping, Dee. Dig. § 104.*]</p> <p>2. Shipping (§ 143*) — “Freight.”</p> <p>"Freight” is the hire or compensation paid for the use of a ship for carrying goods.</p> <p>[E'd. Note. — For other cases, see Shipping, Dec. Dig. § 145.*</p> <p>For other definitions, see "Words and Phrases, vol. 4, pp. 2973-2970.]</p>

<p>In Admiralty. Action by the Peninsular & Occidental Steamship Company against the Atlantic Mutual Insurance Company.</p>

<p>1. Payment (§ 16*) — Note iron Pre-Existing Debt.</p> <p>Acceptance of a note for a pre-existing debt does not discharge or sat* isi'y the debt, unless it is so agreed.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 63-69; Dec. Dig. § 16.* 1</p> <p>2. Liens (§ 16*) — Discharge—Acceptance op Note.</p> <p>Acceptance of a note for a pre-existing debt does not discharge a lien in favor of such debt unless clearly so intended.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 8-16; Dec. Dig. § 16.*]</p> <p>3. Bills and Notes (5 2?*)-t “Promissory Note.”</p> <p>A “promissory note” is a promise to pay.</p> <p>[Ed. Note. — For other cases, sec Bills and Notes, Cent. Dig. § 40; Dee. Dig. | 28 *</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5676-5681; vol. 8, p. 7767.J</p> <p>4. Payment (§ 16*) — Bills and Notes.</p> <p>Ordinarily, there is no payment of a debt evidenced by a note, if the note itself is not paid.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 63-69; Dec. Dig. § 16.*]</p> <p>5. Payment (§ 67*) — Bills and Notes — Burden of Proof.</p> <p>The burden of proof is on one claiming discharge of a pre-existing debt by a note to clearly show that such was the intention.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 189-194, 198; Dec. Dig. § 67.*]</p> <p>6. Evidence (§ 408*) — Testimony Affecting Receipts — Admissibility — ‘Written Agreement.”</p> <p>Receipts are not within the rule prohibiting oral evidence to vary or contradict a “written agreement.”</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1829-1842; Dec. Dig. § 408.*]</p> <p>7. Words and Phrases — “Settlement.”</p> <p>The term “settlement” does not necessarily mean payment or satisfaction, though it may mean that; it frequently meaning adjustment, arrangement. ■</p> <p>[Ed. Note*. — For other definitions, see Words and Phrases, vol. 7, pp. 6446-6450.]</p> <p>8. Payment (§ 73*) — Evidence—Sufficiency.</p> <p>Evidence held to show that a renewal note was not accepted as such payment of a pre-existing debt for machinery sold conditionally as discharged the reservation of title.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 232; Dec. Dig. § 73.*]</p> <p>9. Sales (§ 477*) — Conditional Sale — Payment.</p> <p>That a note given for its entire contract price, payable in three installments, was accepted before two of such installments became due, does not make the debt any less a pre-existing one as affecting the question of discharge of a reservation, of title under the sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1411-1417; Dee. Dig. § 477.*]</p> <p>10. Words and Phrases — “Pre-Existing Debt.”</p> <p>The term “pre-existing debt” includes all debts previously contracted, whether they have become payable or not.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, p. 5497.]</p> <p>11. Sales (§ 477*)- — Conditional Sales — Rights Not Waived.</p> <p>That a conditional seller did not retake the property on the buyer’s default and accepted a renewal to accommodate the buyer did not waive his rights.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1411-1417; Dee. Dig. § 477.*]</p>

<p>1. Account Stated (§ 1*) — AVtiat Constitutes.</p> <p>To constitute an account stated, tliere must be proof that there was an account, that either the account in full or a summary thereof, or the balance due. or claimed to be duo. was actually rendered or came into the possession or knowledge of the party sought to be charged, and tiwi; such party, either expressly or by long acquiescence therein, admitted the amount claimed to lie due and expressly or impliedly promised to pay the same.</p> <p>LEd. Note.' — For other cases, see Account Stated, Cent. Dig. §§ 1-9: Dec. Dig. § 1.*</p> <p>For oilier definitions, see Words and Phrases, vol. 1, pp. 93-98; vol. 8, p. 75(>lj</p> <p>2. Account Stated (§ (>*) — Admissions—Failure to Object.</p> <p>Failure for a long time to object to an account rendered may show an admission that the account or statement is correct and that the balance is due.</p> <p>[Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 30-40; Dec. Dig. | «.*]</p> <p>3. Evidence (§ 71®) — -Mail—Presumption of Receipt.</p> <p>Where it is shown that an account or siatement is mailed to a party sought to lie charged, at his address or place of residence or business, there is a presumption that he received it.</p> <p>(Ed. Note. — For other eases, see Evidence, Cent. Dig. § 92; Dec. Dig. § 71.®)</p> <p>4. Account Stated (§ 19*) — Evidence.</p> <p>In an action on an account stated, evidence held insufficient to show the rendition of account to the defendants.</p> <p>[Ed. Note. — For other eases, see Account Stated, Cent. Dig. §§ 91-93; Dec. Dig. § 19.*]</p>

<p>1. Corporations (§ 217*) — Stockholders—Additional Liability — Statutes —Construction.</p> <p>Statutes creating additional liability of stockholders are in derogation of the common law and must be strictly construed.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 885-844; Dec. Dig. § 217.*]</p> <p>2. Corporations (§ 225*) — Stockholders—Additional Liability — Articles op Incorporation — Amendment.</p> <p>St. Wis. 1898, § 1771, provides for the organization of corporations for a great number of enumerated purposes, aud then adds, “or for any lawful business or purpose whatever, whether similar to the purposes herein mentioned or not,” except banking and certain other special subjects. Section 1772 declares generally what the articles of incorporation shall contain relating purely to corporate functions, and then provides that they may contain such other provisions not inconsistent with law as the corporators deem proper to be therein inserted for the interest of the corporation or for the accomplishment of the purposes thereof, including, if desired, the duration of its existence. Held that, where a corporation, organized for pecuniary profit adopted articles imposing no additional stockholders' liability, it could not by amendment make the common stockholders liable for an assessment to the extent of an amount equal to their holdings.</p> <p>' [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 864; Dec. Dig. § 225.*]</p>

<p>1. Chattel Mortgages (§ 188*) — Validity as Against Creditors — Reservation of Right to Sell.</p> <p>A chattel mortgage is not void because of a provision permitting the mortgagor to sell the mortgaged property, provided it also requires the mortgagor on making sale to pay over the proceeds and apply them to the payment of the mortgage debt, and the mortgagee has the right to constitute the mortgagor his agent to sell the property and to account and pay over the proceeds in reduction of the debt.</p> <p>[Ed. Note.' — For other eases, see Chattel Mortgages, Cent. Dig. §§ 393-404; Dec. Dig. § 188.*]</p> <p>2. Chattel Mortgages (§ 188*) — Validity as Against Creditors — Reservation of Right to Sell.</p> <p>Though a provision in a chattel mortgage authorizing sale by the mortgagor on unrestricted and unlimited credit renders the mortgage void, a mortgage authorizing sales by the mortgagor on credit, but providing that the whole debt should be paid within one year, does not authorize unlimited credit and is valid.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 393-404; Dec. Dig. § 188.*]</p> <p>3. Chattel Mortgages (§ 388*) — Validity as Against Creditors — Reservation of Right to Sell.</p> <p>A chattel mortgage accompanied by an agreement between the parties, whether found in the mortgage or not, which authorizes the mortgagor to deal with the mortgaged property as his own and to sell it and use the proceeds for his own benefit, is void as to creditors.</p> <p>I Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig'. §§ 393-404: Dee. Dig. § 388.*]</p> <p>4. Chattel Mortgages (§ 201*) — Validity as Against Creditors — Evidence.</p> <p>it is not necessary to prove expressly an agreement permitting -a mortgagor of chattels to deal with the property as his own, selling it and using for his own benefit, but such an agreement may be inferred from the acts and conduct of the parties or from the fact that the mortgagee permits a sale to be made.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 300; Dec. Dig. § 201.*]</p> <p>5. Chattel Mortgages (§ 188*) — Validity as Against Creditor — Sale by Mortgagor.</p> <p>There may be a valid agreement by a mortgagor of chattels to sell the property and purchase other property with the proceeds, if the agreement provides that the newly purchased property is to be brought under the lien of the mortgage by a renewal or by a new mortgage to secure the same debt.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 393-401; Dec. Dig. § 188.*]</p> <p>8. Bankruptcy (§ 178*) — Administration of Estatf — Secured Claim.</p> <p>A trustee in bankruptcy representing géneral creditors is entitled to take advantage of the invalidity of a chattel mortgage given by the bankrupt on the ground that it is fraudulent as to creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 178.*]</p> <p>1.. Chattel Mortgages (§ 188*) — Validity as Against Creditors — Sales by Mortgagor.</p> <p>Where the mortgagee of chattels permits a mortgagor to deal with the property as his own, selling it without accounting for the proceeds, the mortgage cannot be upheld as a lien on any part of the mortgaged property.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages. Cent. Dig. §§ 393-404; Dec. Dig. § 188.*]</p>

<p>1. Criminal Daw (§ 113*) — Venue—Illegal Importation.</p> <p>Where an indictment charged an illegal importation into the United States of an alien woman for an immoral purpose, prohibited by Act Cong. Fob. 20. 1907, c. 1134, § 3, 34 Stat. 899 (U. S. Comp. St. Supp. 1909,' p. 447), as amended by Act March 26, 1910, c. 128, 36 Stat. 263, and showed that the importation was complete at the port where the alien was landed, the venue was in that district, and could not be laid in another district to which accused and the alien thereafter went.</p> <p>[Ed. Note. — For other.eases, see Criminal Daw, Dee. Dig. § 113.*]</p> <p>2. Aliens (§ 56*) — Illegal Importation — Immoral Purpose.</p> <p>Mere unlawful cohabitation within a district with an alien woman imported for immoral purposes is not in violation of Immigration Act Feb. 20, 1907. c. 1134, 34 Stat. 89S (U. S. Comp. St. Supp. 1909, p. 447), as amended by Act March 26, 1910, c. 128, 36 Stat. 263, prohibiting the holding or attempt to hold any alien woman or girl for immoral purposes in pursuance of an illegal importation; Congress having no Jurisdiction to control the morals of alien women within the United States, unless in some manner connected with unlawful importation.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 56.*]</p> <p>8. Aliens (§ 59*) — Importation—Immoral Purposes — Keeping, Maintaining. and Controlling — Indictment.</p> <p>Under Act Cong. Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St Supp. .1909, p. 447), as amended by Act March 26. 1910, c. 128, 36 Stat. 263. prohibiting importation of alien females for immoral purposes, and declaring that whoever shall hold or attempt to hold any alien woman or girl for such purpose in pursuance of such illegal importation shall, on a conviction, be confined in prison, etc., counts in the indictment alleging an illegal importation into the United States, and that thereafter defendant, within the district, kept, maintained, controlled, and supported the female claimed to have been illegally imported for immoral purposes “in pursuance of such illegal importation,” were not demurrable.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 59.*]</p> <p>4. Aliens (§ 59*) — Illegal Importation — Unlawful Purpose.</p> <p>An indictment for keeping, maintaining, controlling, supporting, or harboring an alien female pursuant to an illegal importation for an immoral purpose, alleging that such purpose was unlawful cohabitation and adultery, sufficiently charged that the purpose was immoral, in violation of Act Cong. Feb. 20, 1907, e. 1134, 34 Stat 898 (U. S. Comp. St Supp. 1909, p. 447), as amended by Act March 26, 19.10, c. 128, 36 Stat. 263, prohibiting the keeping, etc., in any house, etc., for the purpose of prostitution, or for any other immoral purpose, of any woman or girl after she shall have entered the United States.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 59.*]</p>

In Admiralty. Suit by the Mobile Coal Company and others against the tug Edna. On exceptions by libelant and intervening petitioners to report of the commissioner on their respective claims.

<p>Action by William H. Young against Dennis Daley. There was a judgment of the Circuit Court of Appeals, affirming a judgment of the Circuit Court, and plaintiff applied for an order directing the Fidelity & Deposit Company of Maryland, surety on the appeal bond of defendant and appellant Dennis Daley, to pay costs.</p>

<p>Reformation of Instruments (§ 19*) — Mutual Mistake.</p> <p>Where parties to a contract, embraced in notes executed by one of the parties to the other, both intended that a provision should lie incorporated therein, making the entire debt shown by the notes payable if there should be a failure to pay any installment of principal or interest, and such provision was omitted by a mistake of the scrivener, the contract would be reformable on the ground of a mutual mistake of facts.</p> <p>[Ed. Note. — For other eases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. § 10.*]</p>

Ill the matter of bankruptcy proceedings of the Houghton Web Company. On petition to review an order of a referee allowing the daim of the Waclmsett National Bank.

<p>At Law. Action by W. A. Johnson against W. A. Ridley and another. On demurrfer to the declaration.</p>

<p>. In Admiralty. Suit by the National Oil Company against the power boat Princess.</p>

<p>In the matter of Elb ridge L. Sweetzer, bankrupt. Petition by War-ren Ozro Kyle and another to revise rulings of the District Court was dismissed, and they apply for allowance of appeal to the Circuit Court of appeals.</p>

<p>In Equity. Suit by John Ashon against the Board of Commissioners for the Protection of Birds, Game, and Eish, and others, to restrain the enforcement of Acts La. 1910, Nos. 132, 245.</p>

<p>1. Treaties (§ 11*) — Most Favored Nation Clause — Fisheries—'"Rights.”</p> <p>_ The most favored nation clause of the Chinese treaties providing that citizens of foreign nations shall have the same privileges and rights, and shall not be charged any higher imposts or duties than those paid by native citizens, does not include the right to take fish from the tide waters of a state.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. § 11.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6220-6223; vol. 8, p. 7790.]</p> <p>2. Treaties (§ 11*) — Regulation—Right to Fish — Nature and Scope.</p> <p>The right to take fish from the tide waters of a state is a property right and not a mere privilege of citizenship, and, since the title to the bed of all tide waters in the state is in the state as trustee for its citizens. the state may impose such conditions on the right to take fish therefrom as it sees fit, notwithstanding the license fee exacted from aliens is higher than that required of its own citizens.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. § 11.*]</p>

<p>Proceedings in bankruptcy against Berree & Wolf. Removal of Thomas A. McAvoy as trustee by the referee, and the appointment of a successor, adjudged void.</p>

<p>1. Appeal and Error (§ 193*) — Objections—Waiver.</p> <p>Au objection that a petition for negligent death of plaintiff’s son does not show that the son was unmarried or childless, within Rev. Civ. Code La. art. 2315, as amended by Act No. 71 of 1884, giving the primary right of action for negligent death to decedent’s minor children or widow, comes too late when first presented on error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §? 1226-1240; Dec. Dig. § 193.*]</p> <p>2. Parties (§ 76*) — Defenses—Capacity to Sue.</p> <p>An exception to plaintiff’s capacity to sue must be pleaded before issue joined.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 117-121; Dee. Dig. § 76.*]</p> <p>8. Evidence (§ 67*) — Presumptions—Continuance of Celibacy.</p> <p>Under the rule that a condition shown to exist at a given time is presumed to continue until the contrary is shown, a boy 18 years old, for whose death suit is brought by his father, is presumed to have remained unmarried, within Rev. Civ. Code La. art. 2315, as amended by Act No. 71 of 1884, giving the primary right of action for negligent death to decedent’s minor children or widow.</p> <p>[Ed. Note. — -For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. § 67.*]</p> <p>4. Carriers (§ 320*) — Passengers—Fall from Platform — Negligence—Jury Question.</p> <p>Whether a carrier was negligent toward a passenger killed by falling from a crowded car platform held, under the evidence, a jury question.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 320.*]</p> <p>5. Carriers (§ 347*) — Passengers—Fall from Cab Platform — Contributory Negligence — Jury Question.</p> <p>Whether a passenger killed by falling from a crowded car platform was guilty of contributory negligence held, under the evidence, a jury question.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 347.*]</p> <p>6. Appeal and Error (§ 1002*) — Review—Findings—Conclusiveness.</p> <p>Finding of negligence on conflicting evidence should not bo disturbed on review.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Doc. Dig. § 1002.*]</p> <p>7. Carriers (§ 306*) — Chartered Trains — Injury to Passenger — Liability.</p> <p>That the excursion train from which a passenger was crowded and killed was chartered by a private person did not relieve the company from liability for the death, where its employ6s were in charge of the train, and the charter contract authorized the conductor to prevent overcrowding.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1250; Dec. Dig. § 306.*]</p>

Action by the O’Neill-Adams Company against the Sperry & Hutchinson Company for defendant’s alleged breach of contract entered into between the parties on .September 3, 1908, whereby defendant •undertook to furnish plaintiff with trading stamps described as “gold standard” stamps, to be used by'plaintiff as an advertising medium.At the close of plaintiff’s testimony, the trial judge directed a verdict in plaintiff’s favor for $22,306.80, and defendant brings error.

Suit in admiralty by the Lehigh Valley Transportation Company, as owner of the steam lighter Packerton, against the steam tug John Ar-buckle: John Arbuckle and another, claimants. Decree for libelant, and claimants appeal. Reversed. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, in favor of libelant for damages sustained from a collision between the steam lighter Packerton and the respondent’s tug John Arbuckle.

Petition to Review and Appeal from the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings of John C. Milne and Walter Turnbull, composing the firm of Milne, Turnbull & Company.

<p>1. Franchises (§ 1*) — Nature of Franchise.</p> <p>A franchise is a grant of right by public authority, the main element of which is, in general, “permission” to do something which otherwise the grantee would not have the right to do.</p> <p>[Ed. Note. — For other cases, see Franchises, Cent. Big. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2929-2942; vol. 8, p. 7606.]</p> <p>2. Taxation (§ 8*) — Powers of State — Telegraph Companies — Franchise Granted by United States.</p> <p>Whatever franchise or right a telegraph company acquires from the United States by its acceptance of the provisions of Act July 24, 1866, c. 230, 14 Stat. 221 (U.'S. Comp. St. 1901, p. 3579), giving such companies the ' right to use the military or post roads of the United States, etc., is exempt from taxation by a state.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 21; Dec. Dig. § 8.*]</p> <p>3. Taxation (§ 376*) — Powers of State — Franchise of Telegraph Company.</p> <p>Act Ga. Dec. 16, 1902 (Laws 1902, p. 37), provides for the imposition of a franchise tax on all corporations, domestic and foreign, which exercise any special right or privilege within the state not allowed by law to natural persons. The state board of appraisers, in making an assessment thereunder of a franchise tax against a telegraph company doing an interstate business, and which had accepted the provisions of Act July 24, 1866, c. 230, 14 Stat. 221 (U. S. Comp. St. 1901, p. 3579). expressly found that the company maintained and operated its lines in the state under the franchise given it by such act, and stated that “our finding is therefore based upon and includes the value of the franchise conferred by the act of Congress.” All tangible property of the company within (he state was separately assessed and taxed under a different statute. Held, that the finding of the board was conclusive as to the basis on which the tax was assessed, and, since the assessment contained an element of unknown amount which was not taxable, the tax based thereon was illegal and void.</p> <p>[Ed. Note. — For other cases, see'Taxation, Cent. Dig. §§ 625, 629-631; Dec. Dig. § 376.*]</p> <p>4. Taxation (§ 40*) — Constitutionality of Tax — Excessive and Discriminatory Taxation.</p> <p>Whore the net profit of a telegraph company for a year on all its fc/u»iness within a state, and passing into, from, or through the state, was less than $2,000, the valuation of its franchise by the state for taxation at $950,000, in addition to a tax upon all of its tangible property, was excessive, discriminatory, unjust, and unconstitutional.</p> <p>[Ed. Note. — -For other eases, see Taxation, Cent. Dig. §§ 08-89: Dec. Dig. § 40.*]</p> <p>Shelby, Circuit Judge, dissenting.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p> <p>Suit in equity by the Western Union Telegraph Company against William A. Wright, Comptroller General of the State of Georgia. Decree for defendant, and complainant appeals.</p>

<p>1. Collision (§ 67*) — Vessel Lying in Channel — Risk of Collision.</p> <p>While permission by the superintendent of anchorages in New York Harbor for a derrick to lie alongside a steamer stranded in a frequented c-linmiei for the purpose of discharging her cargo relieved the derrick of fault as obstructing navigation, it did not give her all the privileges of a vessel at anchor in anchorage grounds: but she rook the risk of injury by collision with vessels navigating with care and skill.</p> <p>|Kd. Note. — For other cases, see Collision, Doc. Dig. § 67.*]</p> <p>2. Collusion (§ 71*) — Unavoidable Accident — Vessel Stranded in Chan-Ni) II).</p> <p>A collision hi Hell Gate between the,tow of a tug and a derrick lying alongside a steamer stranded on Flood Rock, near the middle of the channel. lickl due to unavoidable accident, caused by the presence of u. schooner, which caused the tug to change from her intended course, and not to any fault on her part; it appearing that she was properly navigat od.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 71.*]</p>

<p>3. Bankruptcy (§ 143*) — Assets—Stock Exchange Seat.</p> <p>Though a bankrupt’s seat in the New York Stock Exchange is property or assets passing to his trustee, it cannot become available until claims of other members of the association have been passed on by the sole tribunal entitled to do so according to the laws and rules of the exchange, under the rule that, where a person joins an organization his contractual engagements arising therefrom are binding on all those successors in interest who claim by, through, or under him.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 143.*]</p> <p>2. Exchanges (SS 7*)— Claims — Presentation—'Injunction.</p> <p>Where a member of the New York Stock Exchange lias become a bankrupt, persons,having claims against him may be precluded by their own acts or omissions from submitting such claims'to the exchange committee on admissions, pursuant to its constitution and' by-laws, for allowance against the proceeds of the member’s seat, and may be enjoined from so doing by a court of competent jurisdiction having power over the person of the claimants.</p> <p>(Ed. Note. — For other cases, see Exchanges, Dec. Dig. § 7.*|</p> <p>3. Bankruptcy (§ 136*) — Ciaims—Securities—Stock Exchange Seat.</p> <p>Where bankruptcy proceedings were instituted in Michigan against a member of the Now York Stock Exchange, and the bankrupt was indebted to II. & Co. in an amount secured by pledged collaterals, IL & Co. were entitled to propound their demand to as much of the collateral as they could secure, and also to proceed concurrently before the Stock Exchange committee on admissions to subject the value of the bankrupt’s Slock Exchange seat to the payment of the debt, so that, in the absence of proof that either fund would be sufficient to satisfy the debt, the trustee could not compel payment of the amount received from the sale of such seat to him.</p> <p>|Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 136.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by W. L. Perkins & Co. against Frederick Von Baumbach, Collector of-Internal Revenue. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Patents (§ 168*) — Construction of Claims — Proceedings in Patent Office.</p> <p>A claim in a patent as allowed must be read and interpreted with reference to claims that have been rejected and to the prior state of the art, and cannot be so construed as to cover either what was rejected by the I’atent Office or disclosed by prior devices.</p> <p>fEd. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. § 168.*]</p> <p>2. Patents (§ 172*) — Construction—Proceedings in Patent Office.</p> <p>The liberal construction allowed to pioneer inventions cannot be Invoked in favor of a patentee whose claim was limited to save it from anticipation by previous patents, so as to broaden the claim and practically make it cover what was rejected by the Patent Office.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 247; Dec. Dig. § 172.*]</p> <p>3. Patents (§ 168*) — Construction—Proceedings in Patent Office.</p> <p>Where a patentee on the rejection of his application inserts limitations and restrictions for the purpose of obtaining his patent, he cannot, after he has obtained it, claim that it shall -be construed as it would have been construed if such limitations and restrictions were not contained in it, nor insist on a construction which will include what he was' expressly required to abandon and disavow as a condition of the grant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. ■ Dig. § 168.*]</p> <p>4. Patents (§ 328*) — Invention—Dust-Collecting Substance.</p> <p>The Singer patent, No. 833,423, for processes for making dust collecting or absorbing substances and the products of such processes, which processes consist essentially in drying an absorbent material, as sawdust, and adding thereto a relatively nonvolatile oily substance, is void for lack of novelty and patentable invention in view of the prior art</p> <p>Sanborn, Circuit Judge, dissenting.</p>

In the matter of bankruptcy proceedings of the Cántelo Manufacturing Company. Proceedings by the trustee to compel the assignment of certain rights under patent applications to him for the benefit of the estate in bankruptcy. On certificate of referee.

<p>In Equity. Suit by the Madera Waterworks against the City of Madera and others. On demurrer to bill.</p>

<p>Action by Jane Little, to the use, etc., against Arnold Kohn.</p>

<p>Libel by the United States against Two Barrels of Desiccated Eggs. On exceptions filed by Armour & Co., claimants.</p>

Iu Equity. Suit by J. A. F. Pyle, as trustee in bankruptcy of Steele. Miller & Co., against the Texas Transport & Terminal Company and others. On application for temporary injunction to prevent the removal of certain cotton from the United States.

<p>1. .Bankruptcy (§ 115*) — Receivers—Miscondd’cx—Ijiability in Personam. Where a receiver in bankruptcy acts as an officer of the court in the administration of the estate, the bankruptcy court has jurisdiction to determine the validity of his acts, even to the extent of preventing an action at law by one wbo is raising no question and relying on no right which is not within the jurisdiction of the bankruptcy court in the bankruptcy proceeding, the parties being the same; but such court has no jurisdiction to prevent maintenance of an action against the receiver vto enforce a liability in personam against him for acts done beyond the scope of his authority.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 115.*]</p> <p>2. Bankeuptcy (§ 115*) — Judgment—Bes Judicata — Determination.</p> <p>Whether a determination in bankruptcy that certain individuals had no claim on property taken by the receiver was res judicata as to a claim by them that the receiver did not have a right to the possession of the property and was guilty of conversion thereof in his individual capacity could not be determined by the bankruptcy court on an application to stay a suit in the state ■court by such persons against the receiver for such alleged conversion.</p> <p>[Ed. Note.. — For other cases, see Bankruptcy, Dec. Dig. § 115.*]</p>

<p>Bankruptcy (§ 287*) — Action by Trustee fob Preferences — Assumpsit••Quasi Contract.”</p> <p>A trustee in bankruptcy may sue in assumpsit for the value of a preferential transfer of goods by the bankrupt to a creditor, who takes the goods impressed with the obligation created by the bankruptcy act to restore or pay on the trustee electing to sue; such obligation being a “quasi contract,” which is a fiction of law adapted to enforce legal duties by actions of contract, where no proper contract, express or implied, exists. ■</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 287.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5883-5885; vol. 8, p. 7777.]</p>

<p>At Daw. Action by D. J. Shaver, administratrix of the estate of Gilbert Shaver, deceased, against the Pacific Coast Condensed Milk Company and another. On motion to remand.</p>

Proceeding by the United States against Lawrence H. Mills and others. On petition for instructions to the United States Marshal and District Attorney to return certain books and papers to the defendants.

<p>1. Carriers (§ 18*) — Constitutional Law (§ 280*) — Tentative Railroad Rates — Orders of State Commission — Injunction—Due Process of Law.</p> <p>Railroad companies, that have been, are, or will be deprived of parts of their property devoted to the public use of transportation without just compensation during the continuance of the rate-making process by provisions of a state Constitution, or of a state law, or by orders of a state commission, prescribing tentative rates and putting them in effect during the rate-maldug process under severe penalties, may maintain suits for and obtain relief by injunction during the continuance of the rate-making process to the same extent that they may after the process is complete.</p> <p>it is as much a violation of the fourteenth amendment to the Constitution to take the property of a railroad company without just compensation during the process of rate-making as it is after the completion of that process.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 18;* Constitutional Law, Dec. Dig. § 280.*]</p> <p>2. Carriers (§§ 12, 18*) — Injunction—Pleading—Rates—Effect of Body of Rates Fixed by Series of Orders Same as When Made by One Order AND MAY BE PLEADED AND TRIED IN THE SAME WAY.</p> <p>Where within 20 months by a provision of a state Constitution passenger fares were reduced 33% per cent, and by a series of about a dozen orders of its Railroad Commission made at different times freight rates on about 40 per cent, of the intrastate freight business of the railroad companies were reduced about 40 per cent., a bill is not demurrable or defective which avers that the passenger rate prescribed is confiscatory and that the effect of the freight rates fixed is to take the property of the complainant without just compensation, although the bill contains no averment that each order, taken by itself, is confiscatory.</p> <p>The necessary effect of a body of rates prescribed by a series of orders effective at different dates within a few mouths is the same as that of a single order prescribing all the rates at the same time, and it may be so pleaded and tried.</p> <p>TEd. Note. — For other cases, see Carriers, Dec. Dig. §§ 12, 18.*]</p> <p>3. Carriers (§ 12*) — Confiscatory State Rates — Revenue Basis for Apportionment of Value and Distribution of Common Cost to Classes of Business Approved.</p> <p>The apportionment on the revenue basis of the values of the Oklahoma properties of the railroad companies to their different classes of business, and the distribution on the same basis of the items'of common cost between their interstate and their intrastate business, in order to ascertain the net returns they received and would receive from the challenged fares and rates, were sustained by the great weight of the evidence in this case, by reason, and by authority, and they are approved.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 12.*]</p> <p>4. Injunction (§ 135*) — Appeal and Error (§ 954*) — Interlocutory Injunctions — Discretion of Trial Court — Olear Proof of Abuse of Discretion Requisite to Dissolve.</p> <p>•Granting or refusing a temporary injunction is intrusted to the discretion of the court of original jurisdiction, not to the discretion of the appellate court.</p> <p>In the absence of errors of law, the action of the court of original jurisdiction must be sustained, unless there is clear proof of abuse of its discretion.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 304; Dec. Dig. § 135;* Appeal and Error, Cent. Dig. §§ 381S-3821; Dec. Dig. § 954.*]</p> <p>5. Injunction (§-136*) — When Issued.</p> <p>If the questions presented in a suit for an injunction are grave and difficult, and the injury to the moving party will he certain, great, and irreparable if the motion for the interlocutory injunction is denied and the final decision is in his favor, while if the decision is otherwise, and the injunction is granted, the inconvenience and loss to the opposing party will be inconsiderable, or probably may be indemnified by a bond, the injunction usually should be granted.</p> <p>[Ed. Note.- — -For other eases, see Injunction, Cent. Dig. §§ 305, 306; Dec. DIg.'§ 136.*]</p> <p>6. Injunction (§ 21*) — Carriers (§ 18*) — Rates—Test of Rates No Defense Against Injunctions — Acquiescence in Past Injury No Defense to Injunction Against Continuance.</p> <p>The acquiescence of the victim of a continuing injury in its infliction in the past constitutes no defense against, or estoppel of his right to, an injunction against its future continuance.</p> <p>The fact that the railroad companies teste'd the fare and the rates challenged by tbeir actual operation for several months is no sound reason for denying the injunctions against the continued operation of this fare and these rates.</p> <p>. [Ed. Note. — For other eases, see Injunction, Dec. Dig. § 21;* Carriers, Dee. Dig. § 18.*]</p> <p>7. Injunction (§ 5*) — Carriers (§ 18*) — Rates—Court may Restore and Maintain Status Wrongfully Disturbed by.</p> <p>Courts of equity have plenary power, and it is often their duty to issue mandatory injunctions to restore and then to maintain a condition of things that has been wrongfully disturbed or changed.</p> <p>The Circuit Court was far within its power when it enjoined the continuous operation of the confiscatory fare and rates which had changed a lawful status in existence before they took effect.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 4; Dec. Dig. § 5 ;* Carriers, Dec. Dig. § IS.*]</p> <p>8. Carriers (§ 18*) — Injunction — Confiscatory State Rates — Evidence Considered and Injunctions Sustained.</p> <p>The evidence, which is too voluminous for recital or review, was considered, and it is held:</p> <p>That this evidence presents no proof of any abuse of discretion by the Circuit Court in issuing the injunctions, but sustains its findings that the challenged fare and rates are confiscatory, and its orders for the injunctions.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 18.*]</p>

Petition for habeas corpus by the United States, on relation of Pasquale De Rienzo, by his father and next friend, Domenico De Rienzo, against John J.. S. Rodgers, United States Commissioner of Immigration, and others, to obtain petitioner’s release from custody under a deportation order passed by a board of special inquiry in immigration proceedings. There was a judgment of the District Court (182 Fed. 274) dismissing the petition, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Middle District of Tennessee.</p> <p>Action by A. L. Miller, as Comptroller’s Agent in charge of the First National Bank of Macon, Ga., against the American National Bank of Nashville, Tenn. Judgment for plaintiff, and defendant brings error.</p>

On Petition for Review of Order of the District Court of the United States for the Western District of Pennsylvania. In the matter of Harry Kendall Thaw, bankrupt. On petition to revise an order of the District Court.

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Suit in equity by the Audit Company of New York against the City of Louisville and others. Decree for defendants, and complainant appeals.</p>

<p>¡L Courts (§ 407*) — Jurisdiction of Circuit Courts of Appeals — Decisions Reviewable — Interlocutory Order Granting Injunction.</p> <p>Under Act March 3, 1891, c. 517, § 7, 26 Stat. 828 (U. S. Comp. St. 1901, p. 550), as amended by Act April 14, 1906, c. 1627, 34 Stat. 316 (U. S. Comp. St. Supp. 1909, p. 220), an appeal lies from an interlocutory order of a Circuit or District Court granting an injunction “in any cause” to the Circuit Court of Appeals, whether or not an appeal would lie to such court from the final decree therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1100; Dec. Dig. § 407*</p> <p>Jurisdiction of Circuit Courts of Appeals in general, see notes to Lau Ow Bew v. United States, 1C. C. A. 6; United States Freehold Land Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>2. Courts (§ 407*) — Circuit Courts of Appeals — Appeal from Order Granting Injunction — Scope and Extent of Review.</p> <p>On an appeal from an interlocutory order of a Circuit Court granting an injunction, the Circuit Court of Appeals has jurisdiction to determine whether or not the Circuit Court had jurisdiction 'of the case by reason of the presence or absence of a constitutional question.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1100; Dec. Dig. § 407.*]</p> <p>S. Courts (§ 299*) — Jurisdiction of Federal Courts — Federal Question.</p> <p>It must appear from the pleadings, by a statement in legal and logical form, that a suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction of the Constihition or some law or treaty of the United States, in order to confer jurisdiction on a Circuit Court on that ground.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299.*]</p> <p>4. Constitutional Law (§f 206, 251*) — Prohibition of Federal Constitution-Laws of State — Municipal Ordinances.</p> <p>A municipal ordinance, passed pursuant to the authority of the state, which abridges the i>rivileges or immunities of the citizen or deprives a person of property without due process of law, may be an act of the state prohibited by the federal Constitution, but to come within such prohibition the ordinance must, by implication at least, express the will of the state.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 625-648. 726, 727: Dec. Dig. §§ 206, 251.*]</p> <p>5. Constitutional Law (§ 280*) — Courts (§ 282*) — Jurisdiction of Federal Court — Federal Question.</p> <p>Where a franchise to construct and operate a street railroad on certain streets was granted to complainant by an ordinance which expressly provided that the grant was not exclusive, and reserved the right to the city to grant oilier franchises in the same streets, or to itself construct and operate railways thereon, a subsequent ordinance, granting a similar franchise to another company, covering in part the same streets, but expressly providing that, before tracks should be laid in any location where any person or company would be entitled to compensation for damages occasioned thereby, such damages should be ascertained and settled according to law, was not in violation of the federal Constitution as depriving complainant of its property without due process of law, and a bill setting out such facts in a suit to enjoin the graptee from proceeding under tlie ordinance does not state a case within the jurisdiction of a federal court as involving a real and substantial' controversy depending upon the construction of the Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 877-890; Dec. Dig. § 280;* Courts, Cent. Dig. §§ 820-824; Dec. Dig. § 282,]</p> <p>6. Courts (§ 282*) — Jurisdiction of Federal Courts — Federal Question. ■</p> <p>A suit to enjoin the enforcement of a municipal ordinance on the ground that it will deprive complainant of its property without due process of law is not within the jurisdiction of a Circuit Court of the United States as involving a constitutional question, where the state Constitution contains a similar prohibition, and the ordinance, if invalid under one, is equally so under the other; the rule being that in such cases the remedy must be first sought in the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-824; Dec. Dig. § 282.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v.</p> <p>• Mosher, 11 C. C. A. 308: Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Mining Co., 35 C. C. A. 7.]</p>

In the matter of the Pittsburgh Industrial Iron Works, bankrupt. From an order sustaining the claim of the American Car & Foundry Company to a derrick car, and a lien in favor of the First National Bank of Huntingdon, Pa., oh the equipment thereof (179 Fed. 151), the Guarantee Title & Trust Company, trustee, appeals. Reversed. From an order holding invalid an assignment to the bank of a claim against the United States, the bank appeals.

Action at law by Curtis M. Jennings, as sole surviving partner, etc., against James H. Burton. Judgment for plaintiff, and defendant brings error.

<p>Appeals from tlie District Court of tlie United Stales for the Southern District of New York.</p> <p>Suit in admiralty by the United Transportation & lighterage Company against the New York & Baltimore Transportation Line, and cross-libel by respondent against libelant. Decrees for libelant and dismissing the cross-libel (180 Fed. 902), and respondent appeals.</p>

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Trinidad Shipping & Trading Company, Limited, as owner of the steamship Maraval, against the steamship Ciudad de Reus, and cross-libel by La Mutua Sociedad Anónima as owner of the Reus, against the Maraval. Decree against the Mara-val (171 Fed. 470), and claimant appeals.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty by Edmund Uissberger and by Frederick T. Busk and others against the steamship Persiana; Furness, Withy & Co., Limited, claimant. Decrees for libelants, and respondent appeals.

Habeas corpus proceedings by Bertha Kupples, alias Goldstein, alias Click, alias Gluck, against \V. W. Sibray, Inspector of the Department of Commerce and Babor, by Therese Statlichnitzer, against the same, and by Hans Huber against the same. Order in favor of the relator in each case (178 Fed. 144, 150), and respondent brings error.

Uibel by the United States against 275 cases of tomato catsup, more or less,-claimed by George Spraul & Co. From a decree dismissing the libel for want of an allegation of previous seizure, the United States brings error.

Appeals from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. Suits in equity by the Guaranty Trust Company of New York against the Chicago Union Traction Company and others; same against North Chicago Street Railroad Company and others; and same against West Chicago Street Railroad Company and others.

<p>1. Constitutional Law (§ 199*) — Venue—1Transfer of Jurisdiction on Admission Of State.</p> <p>The fact that the organic act of the territory of Oklahoma required criminal offenses to be tried in the county where committed does not render the provision of the enabling act of the state transferring jurisdiction of offenses against the United Slates to the District Court for the appropriate district invalid as an ex post facto law with respect to .offenses previously committed, and such District Court has jurisdiction to Indict and try a person for such an offense, although not held in the county where it was •committed.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 571-583; Dec. Dig. § 199.*]</p> <p>2. Perjury (§ 7*) — Proof on Commutation of Homestead Entry — Competency of Entryman as Witness.</p> <p>Rev. St. § 2301, as amended by Act March 3, 1891, e. 561, § 6, 26 Stat. 1098 (U. S. Comp. St. 1901, p. 3406), provides for the commutation ot homestead entries after 34 months “upon making proof of settlement and of residence and cultivation for such period of 14 months” without specifying the kind of proof. Before amendment, the section required proof to be made as in pre-emption cases, which, under a regulation of the department. was by the testimony of the claimant corroborated by at least two witnesses. Held, that after the amendment, in the absence of a regulation providing otherwise, the same manner of taking proof might properly be followed, in which case the entryman was a competent witness as to his own settlement, and his false testimony respecting the same constituted perjury.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. § 23; Dec. Dig. § 7.*]</p> <p>3. Constitutional Daw (§ 199*) — Ex Post Facto Daws — Statute Fixing Number of Grand Jurors.</p> <p>The fifth constitutional amendment, which requires a presentment or indictment by a grand jury before a person can be tried for an infamous crime, does not give an accused the constitutional right to an indictment by a grand jury composed of the particular number of members prescribed by statute at the time the offense was committed before he can be placed on trial, and the statute governing procedure in the federal courts in the states and fixing the number of members which shall compose a grand jury at not less than 36 nor more than 23, and requiring the concurrence of 12 in an indictment, is not invalid as an ex post facto law as applied to an offense committed in the territory of Oklahoma for which an indict ment was found after the admission of the state by a grand jury of 39, although under tho territorial law the number was fixed at not less than 12 nor more than 16, and 12 were required to concur to return an indictment.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 571-583; Dec. Dig. § 199.*]</p> <p>4. Perjury (§ 13*) — Subornation of Perjury — Nature of Offense Under Federal Daw.</p> <p>I'he crime of subornation of perjury at common law and under the laws of the United States is a misdemeanor.</p> <p>[Ed. Note. — For other cases, see Perjury, CenDDig. § 61% ; Dec. Dig. § 13.*]</p> <p>5. Constitutional Law (§ 199*) — Ex Post Facto Law — Statute Relating to Criminal Procedure.</p> <p>Rev. St. § 819 (U. S. Comp. St. 1901, p. 629), which limits the number of peremptory challenges of a defendant charged with a misdemeanor in a federal court to three, is not invalid as an ex post facto law as applied to a defendant charged with an offense committed in Oklahoma territory, but indicted and tried after the admission of the state because under the law of the territory he was entitled to a larger number.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 571-583; Dec. Dig. § 199.*]</p> <p>6. Criminal Daw (§ 342*) — Evidence—Knowledge and Intent.</p> <p>A wide latitude, in the evidence is permitted in a criminal ease to show corrupt motive and intent especially where they constitute an important element of the offense as in a prosecution for subornation of perjury.</p> <p>[Ed. Note. — For other cases, se.e Criminal Law, Cent. Dig. §§ 773, 774; Dec. Dig. § 342.*]</p> <p>7. Perjury (§ 37*) — Trial eor Subornation oe Perjury — Instructions.</p> <p>Instructions considered and approved in a prosecution for subornation of perjury, defining the elements of the offense.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134r-138; Dec. Dig. § 37.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Suit in equity by the Stearns & Foster Company against the Dixie Cotton Felt Mattress Company and the Boston Store of Chicago. From an order granting a preliminary injunction, defendants appeal.

Suit im equity by A. H. Burroughs, as trustee, and others, against the Toxaway Company and others. From a decree (182 Fed. 129) sustaining exceptions to the report of a special master, plaintiffs appeal.

In the matter of the Jackson Brick & Tile Company, bankrupt; William P. Shade, trustee. Appeal by Samuel McAtee, executor of the estate of Hugh R. Quinn, deceased, from an order disallowing a lien.

<p>1. Electricity (§ 19*) — Uninsulated Wires — 'Warning—Sufficiency—Jury Questions.</p> <p>It was a Jury question whether warning to a subcontractor’s employe that neither ho nor his rigging should touch certain electric wires, and that he must not go near them, was sufficient to advise him of the danger which caused his death — existence of a static current surrounding an uninsulated wire.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 19.*]</p> <p>2. Electricity (§ 19*) — Uninsulated Wires — Contributory Negligence— Jury Questions.</p> <p>Whether a subcontractor’s employé, .electrocuted by coming in contact with a static current surrounding an uninsulated wire, was guilty of contributory negligence in lowering himself opposite the wire, held, under the evidence, a Jury question.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 19.*]</p> <p>3. Electricity (§ 18*) — Uninsulated Wires — Assumption oe Kisk.</p> <p>A subcontractor's employé assumed all risks he knew or ought to have known to exist in working near uninsulated electric wires.’</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. S 10: Dec. Dig. S 18.*]</p> <p>4. Electricity (§ 19*) — Uninsulated Wires — Assumption of Iítsk — Jury Question.</p> <p>Whether a subcontractor’s employ®, electrocuted by coming in contact with a static electric current surrounding an uninsulated wire, assumed the risk, held, under the evidence, a jury question.</p> <p>[Ed. Note. — Eor other cases, see Electricity, Dec. Dig. § 19.*]</p> <p>5. Electricity (§ 14*) — Duty to Invitees.</p> <p>An owner of premises on which there were high tension electric wires was bound to a subcontractor's employ® to make the place where he was required to work reasonably safe; it being only as to mere licensees that one owes no active duty as to the condition of premises.</p> <p>[Ed. Note. — Eor other cases, see Electricity, Dec. Dig. § 14.*]</p>

<p>1. Set-Off and Counterclaim (§ 59*) — Right of Defendant to Judgment foe Excess — Law of Maryland.</p> <p>Code Pub. Gen. Laws 1904. Md. art. 75, §§ 12, 13, relating to set-off, does not authorize a defendant to recover an affirmative judgment against tbe plaintiff on a counterclaim for unliquidated damages for breach of the contract sued on.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 130-132; Dec. Dig. § 59.*]</p> <p>2. Set-Off and Counterclaim (§ 35*) — Unliquidated Demand — Damages for Nondelivery of Goods.</p> <p>In an action to recover the price of goods delivered under a contract of sale, a counterclaim for nondelivery of goods according to tbe contract Is one for unliquidated damages.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. § 35.*]</p> <p>3. Pleading (§ 411*) — Right of Defendant to Judgment fob Excess-Waiver of Objections.</p> <p>Under the law of Maryland, the failure of a plaintiff to demur to a plea of set-off is not a waiver of the right to object to recovery of an affirmative judgment thereon, where the objection is taken before verdict by prayer for instructions.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 13S4, 13S5; Dec. Dig. § 411.*]</p> <p>4. Sales (§ 428*) — Warranties—Remedies for Breach — Set-Off.</p> <p>A provision in a contract for the sale of paper to be used in making bags that “the said paper shall be substantially tbe same average quality as the samifies attached to this contract” constituted an express warranty of quality, and, in an action to recover the price of paper delivered under the contract, the purchaser was entitled to recoup from the contract price the difference between the value of the paper as so warranted, and that actually delivered.</p> <p>[Ed. Note. — For other cases, see Sales, Cent Dig. §§ 1214-1223; Dec. Dig. § 428.*]</p> <p>5. Sales (§ 99*) — Construction of Contract — Right of Cancellation.</p> <p>Under a contract for the sale of 2,000 tons of paper, to be delivered during a year in substantially equal monthly installments, a provision giving the seller the right to cancel the contract if any amounts due thereunder should not be paid within 10 days after maturity did not give tbe seller' such right when it was in default in deliveries, and the damages resulting from such defaults to the purchaser more than equaled the payments due for paper delivered.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 264; Dee. Dig. § 99.*]</p>

<p>1. Sales (§ 128*) — Contract—Repudiation.</p> <p>The fact that the buyer, under a contract fqr the manufacture and sale of paper, requested the seller to furnish more than the contract required, did not constitute a repudiation of the contract nor release the seller from its obligations thereunder.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 31S-321; Dec. Dig. § 128.*]</p> <p>2. Evidence (§ 450*) — Contract oe Sale — Construction—Parol Evidence.</p> <p>Defendant wrote plaintiff to enter order for 100 tons of 90 per cent, white sulphur bag paper at a specified price on specifications for one car load to he furnished as a sample for defendant’s acceptance, and if satisfactory defendant to supply specifications for the balance of 100 tons to be shipped at defendant's order; that, if such quantity was satisfactory, defendant to have the privilege of taking about 2,000 tons during the year from the contract dato of that grado or of 80 per cent, grade at a stated lower price and 1,000 tons of 50 to 55 per cent, manilla bag at a lower price on same time and terms. The offer being accepted, defendant on the next day ordered 20 tons of 90 per cent, and 5 tons of 80 per cent., and 15 tons of manilla, asking for Ike manufacture and shipment of a sample roll of the 90 per cent, by express. This reaching defendant on September 3d, it ordered 60 tons of the 90 per cent., 15 tons of the 80 per cent, and 75 tons of the manilla, and on October 19th gave an additional order for 55 tons of 90 per cent, and 20 tons of 80 per cent. The paper ordered on August 161 h reached defendant on September 18th and 27th. and the 80 and 90 per cent, was not received until subsequent to October 27th, the order of October 19th never having been filled, and the paper company on the 24th having withdrawn the quotation on the ground that the option liad expired. Held, that parol evidence that the orders given by defendant for 80 per cent, paper were regarded as having been given on the first 100 tons contracted for was not objectionable as offered to contradict or vary the contract; it being admissible to show the construction put on a term of the contract, which was not unambiguous, by the parties themselves.</p> <p>FEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082; Dec. Dig. § 450.*]</p> <p>3. Sales (§ 101*) — Option to Purchase— Repudiation — Grounds.</p> <p>Where a contract to purchase a sample 100 tons of paper of specified grades provided that, if the paper was satisfactory, the buyer should have the privilege of taking 2,000 tons of 90 or 80 per cent, paper at a specified price and 100 tons of another grade at a lower price, letters written by the buyer, after a portion only of such sample order had been delivered, expressing disappointment at the comparatively small amount of light-weight paper shipped on the sample order, and making other suggestions with reference to the manufacture, it being admitted that the seller had the right to fix the weights as it had done, did not show that the buyer was not satisfied with the sample order and was therefore not entitled to exercise its option to purchase the larger quantity specified, and did not authorize the seller to repudiate the contract on the ground that because of the dissatisfaction of the buyer the option had expired; the seller not being entitled to accept orders on the theory that the contract was still in force and then after an advance in the market to elect to treat those things as breaches of the contract and to declare a forfeiture therefor, where it had itself treated such acts as a compliance therewith.</p> <p>FEd. Note. — For other cases, see gales, Cent. Dig. §§ 267, 268; Dec. Dig. I 101.*]</p> <p>4. Set-Off and Counterclaim (§ 59*) — Unliquidated Damages -Affirmative Judgment.</p> <p>Where plaintiff, when sued for the price of certain paper, sot up a claim for damages arising out of the seller’s breach of the contract in failing to furnish the contract quantity, defendant’s demand was an unliquidated claim for which an affirmative judgment could not be rendered under the Maryland rule prohibiting an affirmative judgment for unliquidated damages on a counterclaim, though such damages arise out of plaintiff’s breaches of the contract sued on.</p> <p>[Ed. Note. — For other eases, see Set-Off and Counterclaim, Cent. Dig. §§ 130-132; Dec. Dig. § 59.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of Mew York.</p> <p>Suit in admiralty by J. R. Harrington against the American Tie & Dumber Company. Decree for libelant, and respondent appeals.</p>

<p>Collision (§ 125*) — Action for Damages — Sufficiency of Evidence — Vessel Lying at Dock.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting on libelant to establish by a preponderance of testimony his allegation that an injury received by his canal boat, lying alongside a dock at night, witli two scows outside of her, was caused by a collision between the tow of respondent tug and the outer scow; the testimony tending to show that the scow was struck at such a place that it could not have caused the injury complained of.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 125.*]</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 Oil Seeds Company against the steamship Konigin Luise and the North German Lloyd, owner. Decree for libel-ant (173 Led. 811), and claimant appeals.</p>

Suit in equity by Pusey & Jones against the Pennsylvania Paper Mills. From a decree (173 Fed. 634) postponing its lien to that of S. G. Egolf and others, the George M. Newhall Engineering Company Limited, appeals.

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Kastern District of Washington.</p> <p>Suit in equity by the United Slates against Silas A. Gilson. Decree for complainant, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action by the United States against the Baltimore & Ohio Railroad Company. Judgment for defendant, and the United States bring error. -</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action at law by the Warsaw-Wilkinson Company against the Exchange Mutual Life Insurance Company. On motion to amend mandate in 181 Fed. 330.</p>

<p>Trial (§ 252*) — Instructions—Inapplicability to FíVidtíncis.</p> <p>An instruction which assumes, contrary to the fact, that the parties to a contract had adopted the telegraph as a means of communication in reference to the contract, is properly refused.</p> <p>LEd. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p>

<p>1. Insurance (§ 535*) — Marine Insurance — Notice oe Loss — Necessity.</p> <p>A provision of an insurance policy ou a vessel that, iu case of any loss or misfortune to the vessel, prompt notice of the disaster should be given to the insurer, and that a failure to give such notice should relieve it from liability therefor, is valid and enforceable, aud it is immaterial whether or not such notice would have been of benefit to the insurer.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1322; Dec. Dig. § 535.*]</p> <p>2. Insurance (§ 539*) — Marine Insurance — Notice oe Loss — “Prompt Notice.”</p> <p>A policy of insurance on a canal boat provided that, “in ease of any loss or misfortune” to the vessel, “prompt notice of the disaster” should be given to the insured, and that a failure to give such notice should relieve it from any liability therefor. Held, that notice given nearly a month after the boat sank was not “prompt” within such requirement and avoided the policy; no reason appearing why the owner could not have given such notice at once.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 132S-1336; Dec. Dig. § 539.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5GS3; vol. 8, p. 7767.]</p>

<p>Courts (§ 290'*) — Jurisdiction oe Federal Courts — Suit Arising Under Patent Laws.</p> <p>A bill in a federal Circuit Court alleged that complainants, wlio were owners of certain patents, and pending applications for patents, assigned tile same in trust to one of the defendants, to be by him assigned to defendant telegraph company in exchange for,shares of its slock; that its codefendant wrongfully assigned the patents to it; that it refused to issue the stock, but retained the assignments and was using the inventions. The bill prayed that the assignments be declared inoperative, and for a reconveyance of the patents, and also for an injunction and accounting for infringement against the telegraph company. That company in its answer claimed ownership of the patents by virtue of the assignments. Held, that the suit could not be maintained as one for infringement, under the patent laws, until the alleged fraudulent assignments had been set aside in equity, and title to the patents, either legal or equitable, vested in complainants, and that, it being admitted that the requisite diversity of citizenship did not exist between the parties, the court was without jurisdiction to grant such relief.</p> <p>¡Ed. Note. — For other cases, see Courts, Cent. Dig. § 832; Dec. Dig. § 290. *]</p>

<p>1. Judgment (§ 654*) —Matters Concluded — Decree in Suit for Infringement of Patent.</p> <p>A decree rendered after full hearing dismissing a bill alleging infringement of a patent and all of its claims, upon which issue was taken by the answer, is a conclusive adjudication that the device in suit does not infringe any claim of the patent as between the parties or their privies, notwithstanding the fact that complainant voluntarily by notice restricted his proofs and contention to certain Specified claims.</p> <p>[Eci. Note. — For other cases, see Judgment, Cent. Dig. § 1365; Dec. Dig. § 654.*]</p> <p>2. Injunction (§ 26*) — Restraining Prosecution of Suit — Grounds—Prior ADJ ITDICATTON.</p> <p>A manufacturer of an alleged infringing article, who became, in effect, a fiarly defendant in a suit for the infringement by a stipulation on the record that it was defending the suit, is entitled to invoke the decree therein dismissing the bill on the merits as a ground for enjoining the prosecution of a suit subsequently brought by the complainant against another of its customers for infringement by sale of the same device.</p> <p>(Ed. Note.- — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.*</p> <p>Restraining proceedings in federal courts, see note to Clapp v. Otoe County, 45 C. C. A. 591.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Acme-Keystone Manufacturing Company against Charles A. Dearborn and Barnet Grossbard, copartners as the American Blind Stitch Company. Decree for complainant (180 Fed. 766), and defendants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Suit in equity by the Warner Instrument Company against the Stewart & Clark Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents (§ 136*) — Reissues—Statutory Grounds.</p> <p>Where a patent for a process was adjudged invalid for lack of patentable invention, in that the process was not new, but the claim was merely for the function of a machine to do what had previously been done by hand, the case was not one of insufficiency, overstating, inadvertence, accident, or mistake, which would entitle the patentee to a reissue under Rev. St. § 4916 (U. S. Comp. St. 1901, p. 3393).</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 198% ; Dee. Dig. | 136*</p> <p>Grounds fo- reissue of patent, see note to General Electric Co. v. Richmond St. & I. Ry. Co., 102, C. C. A. 145.]</p> <p>2. Patents (§ 328*) — Validity of Reissue — Machine for Chipping Glass.</p> <p>The Conroy reissue patent, No. 12,189 (original No. 723,139), for a machine for chipping the edges of glass articles, is void as granted without authority of law.</p>

<p>1. Patents (§ 211*) — Licenses—Construction and Operation.</p> <p>A license contract, under a patent, providing that “tins agreement to extend five years from date with a privilege of ten years or terminate at any. time if by mutual consent of both parties,” gave the licensee the privilege of continuing for ten years which he could exorcise ex parte, and it was sufficient to extend the license if he continued making the patented machines or otherwise indicated his intention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 304- 3:11; Dec. Dig. § 211.*]</p> <p>2. Courts (§ 349*) — Witnesses—Competency in Federal Courts.</p> <p>Under llev. St. § 858, as amended by Act June 29, 1900, c. 3608, 34 Stat 018 (U. S. Comp. St. Supp. 3909, p. 242), which provides that the competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be determined by the laws of the state, and Code Cir. Proc. N. Y. § 829, the testimony of a defendant in a suit'in equity for infringement of a patent, brought by an assignee, as to personal transactions between himself and complainant’s assignor, since deceased, is incompetent.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 925; Dec. Dig. § 349.*</p> <p>Competency in federal courts — Eollowing state practice. See notes to O’Connell v. Keed, 5 C. O. A. 602; Bank of California v. Cowan, 21 C. O. A. 278.]</p> <p>3. Patents (§ 211*) — Licenses—Construction.</p> <p>Where a license under a patent required the licensee to pay a royalty on machines sold, but contained no provision as to the effect of a default, mere delay in the payment of royalties did not operate to terminate the license.</p> <p>[Ed. Note. — For other cases,* see Patents, Cent. Dig. §§ 304-311; Dec. Dig. § 211.*]</p>

<p>Patents (§ 328*) — Infringement—Clutcii Mechanism.</p> <p>The Mabley and Franquist patent. No. 883,552, for a eluteb. mechanism for automobiles of the reversible cone clutch type, held not infringed by a clutch of the multiple disk type.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit in equity by the Kennicott Water Softener Company against John E- Bain. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by the Parson Manufacturing Company against Charles T. Coe, trading as the New York Grate Bar Company. Decree for defendant (180 Fed. 7-12), and complainant appeals.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Paring Machine.</p> <p>The Tripp patent, No. 572,689, for improvements in apple paring and coring machines, while of narrow scope, was not anticipated and discloses invention; also held infringed.</p> <p>2. Patents (§ 328*) — Validity and Infringement — Paring Machine.</p> <p>The Boutell patent, No. 693,778, for an improvement in apple paring machines, the purpose of which is to give to the cutting knife a variable rotary movement and a more rapid movement at the ends of the fruit, was not anticipated, is novel and useful,'and discloses invention; also held infringed.</p> <p>3. Patents (§ 328*) — Validity and Infringement — Paring Machine.</p> <p>The Boutell patent, No. 892,394, for improvements in apple paring and coring machines, covers a combination of old elements with the addition of a pusher device, the operation of which is novel and useful, and which renders the combination patentable as involving invention; also held infringed.</p>

<p>1. Patents (§ 116*) — Designs—Description— Sumicienoy.</p> <p>Under Rev. St. § 4933 (U. S. Comp. St. 1901, p. 3399), making provisions governing patents for inventions applicable to patents for designs, and under section 4888 (U. S. Comp. St. .1901, p. 4888), requiring “written description” of inventions to be filed, a patent reciting invention of a design for textile fabrics, and referring to an accompanying drawing as a plan view of the fabric showing the design, is not invalid because the design is not described in words.</p> <p>lEd. Note. — For other eases, see Patents, Cent. Dig. § 108% ; Dec. Dig. § 116.*]</p> <p>2. Statutes (§ 219*) — aids—Construction by Executive Departments.</p> <p>The uniform practice of the Patent Office is entitled to weight in construing a statute relating to patents.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 296, 297; Dee. Dig. § 219.*]</p>

<p>1. Courts (§ 290*) — Federal Courts — Jurisdiction—Patent Infringement.</p> <p>A federal Circuit Court has jurisdiction of a suit for infringing a design patent.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. § 832; Dec. Dig. § 290.*]</p> <p>2. Courts (§ 292*) — Federal Courts — Jurisdiction—'Trade-Marks.</p> <p>A federal Circuit Court has no jurisdiction of a suit for infringing a common-law trade-mark or for unfair competition, in the absence of diverse citizenship. '</p> <p>[Ed. Note.- — For other eases, see Courts, Cent. Dig. § 834; Dec. Dig. § 292.*]</p> <p>3. Courts (§ 299*) — Federal Courts — Nature of Cause Pleaded.</p> <p>A bill of complaint setting forth a cause of action for patent infringement, “further’’ showing adoption by defendant of a trade-name deceptively similar to complainant’s, “further’’ showing unfair competition in trade, resulting, among other things, from the location of defendant in complainant’s former place of business, and praying injunction against Imitating complainant’s invention, from employing such name, and from unfairly competing, states distinct causes of action, as affecting (he court's jurisdiction; the allegations respecting unfair competition and use of complainant’s trade-name not' being mere incidents to the suit for infringement.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 841 ; Dec. Dig. § 299.*]</p> <p>4. Courts (§ 299*) — Federal Courts — Jurisdiction—Pleading.</p> <p>The federal court’s jurisdiction cannot be extended by uniting in the same complaint a cause of action of which it has no jurisdiction with one of which it has.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299.*]</p> <p>5. Patents (§ 116*) — Infringement—Pleading.</p> <p>A bill for infringeDient of a design patent is not insufficient because the patent contains no written description of the design.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 168%; Dec. Dig. § 116.*] '</p>

<p>At Law. Action by O. R. Hubble, administrator of Mary L. Hubble, against the Nashville, Chattanooga & St. Louis Railway Company. On motion to remand to the state court.</p>

<p>In Equity. Suit by Henry E. Chanfrau against Benjamin Alexander and oiliers. On final hearing.</p>

<p>1. Judgment (§ 948*) — Res Judicata — Pleading.</p> <p>Under the Pennsylvania practice a special plea of res Judicata is proper.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1787-1794; Dec. Dig. § 948.*]</p> <p>2. Judgment (§ 670*) — Res Judicata — Identity op Parties.</p> <p>Judgment, in a suit under a state statute brought by plaintiff in behalf of herself and her minor children for negligent death of her husband, bars a subsequent suit by her as administratrix, under Federal Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1172); difference in the capacity in which she sued not affecting the identity of the parties to the suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1185; Dec. Dig. § 670.*]</p> <p>3. Judgment (§ 585*) — Conclusiveness—Identity op Issues.</p> <p>That a suit for negligent death, under Federal Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1172), presents a different cause of action from that stated in a former suit under a state statute for such death does not prevent the former judgment operating as bar, where the material questions of fact supporting the new cause of action are the same as those involved in the former suit.</p> <p>[Ed. Note. — For other eases, see Judgment, Dee. Dig. § 585.*]</p>

<p>In the matter of bankruptcy proceedings of Northampton Portland Cement Company. On certificate of referee confirming a plan of organization.</p>

<p>At Law. Action by Wallace N. Bradley against the Union Bridge & Construction Company. On demurrer to complaint.</p>

<p>Suit by the United States against Moses Ellis for the cancellation of defendant’s certificate of citizenship.</p>

<p>In the matter of bankruptcy proceedings of Shaffer & Stern. On petition to review a referee’s order requiring the bankrupt to turn over to the trustee certain alleged withheld assets.</p>

In the matter of bankruptcy proceedings against John H. Roy. On petition to review a referee’s determination as to the validity of an election of trustee.

<p>1. Habeas Corpus (§ 92*) — Scorn op Writ — Review.</p> <p>Where relator was committed for contempt in disobeying an order of a referee in bankruptcy, habeas corpus was only available to review the validity of the commitment, and not the order.</p> <p>lEd. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 87-95; Dec. Dig. § 92;* Contempt, Cent. Dig. § 219J</p> <p>2. Habeas Corpus (§ 27*) — Orders of Referee —Disobedience —Review-Certification.</p> <p>Under Baukr. Act July 1, 1898, c. 541, § 41b, 30 Stat. 550 (U. S. Comp. St. 1301, p. 3437), providing that the referee shall certify the facts to the judge if any person shall do any of the things prohibited by the section, and that the judge shall thereupon in summary maimer hear the evidence ns to the acts complained of. and, if it is such as to warrant him in so doing, punish the person in the same manner and to the same extent as for contempt committed before the court of bankruptcy, the referee’s failure to certify disobedience of a proper order to the court for action, while an irregularity, was not a jurisdictional defect in proceedings to punish the person guilty of such disobedience as for contempt, so as to subject the commitment to collateral attack by habeas corpus.</p> <p>lEd. Note.. — For other cases, see Habeas Corpus, Cent. Dig. § 22; Dec. Dig. § 27.*]</p>

In the matter of bankruptcy proceedings against George A. Glenn. On petition by the receiver for an order restraining George R. Murray from selling, removing, or disposing of certain property alleged to belong to the bankrupt’s estate.

In the matter of bankruptcy proceedings against Thomas M. Twining. On certificate of referee to review an order awarding an automobile purchased by the bankrupt to the Fox Chase Bank as pledgee.

<p>1. Trade-Marks and Trade-Names (§§ 3, 9*) — Names Subject of Ownership —Geographical and Geological Terms.</p> <p>The words “Birdsboro Trap Rock” are a combination of a geographical term and a geological lerm, the former‘qualifying the latter and together with the latter expressing the true descriptive name of the rock; the quality of trap varying with the iocalily in which it is found.</p> <p>[Ed. Note. — .-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7, 13; Dec. Dig. §§ 3, 9.*]</p> <p>2. Trade-Marks and Trade-Names (§§ 3, 9*) — Names Subject of Ownership —Geographical and Geological Terms.</p> <p>No one can by the adoption of a purely descriptive name or a geographical name which carries with it the nature or quality of a natural product there yielded exclude others from truthfully describing or employing terms indicative of such nature or quality.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7, 13; Dec. Dig. §§ 3, 9.*]</p> <p>3. Trade-Marks and Trade-Names (§ 1*) — -Nature of Right.</p> <p>The owner of a trade-mark proper has an exclusive right good “as against all the world” to its use in connection with articles for which' it was appropriated and to which it has been applied, and a mark under which no such exclusive right can exist in the owner or appropriator cannot constitute a trade-mark proper.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>4. Trade-Marks and Trade-Names (§ 9*) — Names Subject of Ownership— Geographical Names — Unfair Competition in Trade.</p> <p>Subject possibly to an exception where the relationship of the appropriator of the name to the place is, under the circumstances of a given case, such that fraud will be presumed ipso facto from the use of that name by another, whatever may be the secondary meaning gained by « purely geographical name there is no exclusive right of property in the name in its application to vendible articles, and its use by others can be prevented, not on the ground of trade-mark infringement, but only on that of unfair competition in trade.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. | 13 : Dec. Dig. § 9.*]</p> <p>5. Trade-Marks and Trade-Names (§ 3*) — Names Subject of Ownership— Geographical Names.</p> <p>The facts that a truly descriptive name has first been applied by one to an article manufactured, produced or sold by him, whether the article be old or new with him or others, and that such term has acquired by association a secondary meaning pointing to origin or ownership, cannot operate to preclude others having a right to manufacture, produce or sell articles of the same kind from fairly applying to them such truly descriptive name.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7;. Dec. Dig. § 3.*]</p> <p>f>. Trade-Marks and Trade-Names (§ 59*) — Names Subject of Ownership-Geographical or Descriptive Names.</p> <p>No one can through the adoption and application of an arbitrary or fanciful word as a trade-mark, -whether registered or unregistered, exclude others from using in connection with similar articles a geographical or descriptive name open to the public, on the ground that the latter name so closely resembles the former as to be calculated to mislead the purchasing public as to' the origin, manufacture or ownership of the article sold, or for any other reason.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72; Dec. Dig. § 59*</p> <p>Use of geographical names as trade-mark or trade-name, see notes to Hoyt v. J. T. Lovett Co., 17 C. C. A. 657; Illinois Watch-Case Co. v. Elgin Nat. Watch Co., 35 C. C. A. 242.]</p> <p> (Additional Syllafbus ~by Editorial Staff.) </p> <p>7. Words and Phrases — “Trap”—“Trappoid”—“Trappous”—“Tbappose”— ‘ ‘Trappean’’ — ‘Trappe’ ’ — ‘ ‘Trappa.’ ’</p> <p>The word “trap,” although derived from the Swedish word “trappa,” meaning a step or stair, has been known and used as a' common English name for igneous rock for more than 100 years. And the words “trappoid,” “trappous,” “trappose,” “trappean,” are adjectives related to trap. But the word “trappe” is not and never has been in this country a descriptive name for trap rock. The designation “trappe rock” is unknown to the English language, and if the word “trappe” be known to that language it bears no relationship whatever to rock. The word “trappe” appears to be an obsolete Anglo-Saxon word signifying, not rock, but artifice or strategem.</p>

<p>In the matter of bankruptcy proceedings of Frank Torchia.</p>

<p>1. Towns (§ 66*) — Mandamus (f 114*) — Bight of Action Against Town - New York ¡Statute.</p> <p>Town Daw N. Y. (Consol. Laws, c. 62) § 260, authorizes the town board of any town to contract for the lighting of the streets, highways, public buildings, etc., of the town, for the payment of the expense thereof, and to establish lighting districts. Section 263 provides that the amount of any such contract shall be assessed, levied, 'and collected upon the taxable property in said town or district in the same manner and by the same officers as town taxes and. be paid over by the supervisor, who is in effect tiie town treasurer, to the person or company furnishing the light. Section 11 provides that any action to enforce the liability of a town on any contract lawfully made with any of its officers shall be in the name of the town. A town board contracted with a lighting company in the name of the town for the lighting of a district, and levied and collected upon the property of the district the money required to meet the payments under the contract which was paid to the supervisor. Bills for one year's lighting were duly presented, audited, and ordered paid by the town board, but the supervisor who held the fund misappropriated the same resigned and absconded. JHeld, that the contractor’s claim was a liquidated indebtedness of the town, and that its remedy was by an action at law against the town and not by mandamus against its officers to compel the levy and collection of a tax to meet the claim, which was a duty they had already performed.</p> <p>[Ed. Note.' — For other cases, see Towns, Dec. Dig. § 66:* Mandamus, Cent. Dig. §§ 244-246; Dec. Dig. § 114.*]</p> <p>Towns (§ 62*) — Claims Against — Effect of Allowance by Town Board.</p> <p>The auditing and allowance of a claim against a town by the town board vested with statutory authority to that end are judicial acts, and are conclusive on the town, so far as the amount and legality of the claim are concerned.</p> <p>[Ed. Note. — For other cases, see Towns, Dec. Dig. § 62.*]</p>

<p>Habeas corpus by the United States, on the relation of Arthur Bosny and another, against William Williams, Commissioner of Immigration.</p>

<p>1. Judicial Sales (§ 53*) — Validity—Return op Master.</p> <p>While it is the duty of a special master authorized by the court to make a sale of real estate to report the costs and expenses of executing the order of the court, his failure to do so does not affect the validity of the sale.</p> <p>[Ld. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 104-107; Dee. Dig. § 53.*]'</p> <p>2. Courts (§ 18*) — Powers of Court — Sam of Land Beyond its Jurisdiction.</p> <p>While a court may not fix the lien of its decree upon lands in another jurisdiction and then order a sale of such lands by its master in satisfaction of that lien, it may enforce a contract lien, as the execution of a trust, where the parties are before it, and it can enforce the confirmation of the title by appropriate conveyance.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 54; Dec. Dig. § 18.*]</p> <p>3. Courts (§ 18*) — Powers of Court— Sam of Land Beyond its Jurisdiction.</p> <p>In a suit in equity in a federal court by stockholders for the winding up of the affairs of a corporation and distribution of its assets, consisting of land in another district of the state which was subject to a trust deed, where the bill alleged a conspiracy between the trustee and others to defraud the stockholders, and where the corporation, the trustee, and all parties in interest wore before the court and consented thereto, the court had jurisdiction to sell the land by its master as a preliminary to the adjustment of the claims of the mortgage creditors, a portion of which was alleged by complainant to be fraudulent, and the distribution of the fund among the creditors and stockholders.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 54; Dec. Dig. § 18.*]</p>

<p>In Equity. Suit by the Edison Electric Eight & Power Company of St. Paul and-another against W. J. Blomquist and others, On motion for a temporary injunction.</p>

<p>1. Master and Servant (§ 117*) — Safety of Premises — Negligence.</p> <p>It was negligent to turn off lights in a railway freight depot while an employé was walking along a platform, at the end of which was an open elevator shaft.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 177, 208; Dec. Dig. § 117.*]</p> <p>2. Master and Servant (§ 127*) — Elevator Shafts — Duty to Guard.</p> <p>Failure to repair elevator doors designed to close the shaft or to stop a practice of the operators in blocking the doors so they would not close automatically was negligence toward other employes.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 252; Dec. Dig. § 127.*]</p> <p>3. Master and Servant (§ 106*) — Elevator Shafts — Liability for Injury.</p> <p>It is no defense to liability for injury to an employe who fell into an elevator shaft which was left open through failure of doors to close automatically that the elevator appliances were owned and maintained by another company; the elevator being leased and operated as part of the premises.</p> <p>TEd. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 193-198; Dec. Dig. § 106.*]</p> <p>4. Master and Servant (§ 227*) — Injury to Employé — Contributory Negligence.</p> <p>An employé injured by falling into an open elevator shaft cannot recover if he was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 60S-072; Dec. Dig. § 227.*]</p> <p>5. Master and Servant (§ 177*) — Fellow Servants — Liability tor Negligence. ,</p> <p>, An employe who fell into an open elevator shaft cannot recover if his injury was duo to a fellow servant’s negligence.</p> <p>I'Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 357; Dec. Dig. § 177.*]</p> <p>61 Master and Servant (§ 265*) — Contributory Negligence — Burden oe Prooe.</p> <p>The burden Is on an employer, sued for negligent injury, to show contributory negligence.</p> <p>¡Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 205.*]</p> <p>7. Damages (§ 132*) — Personal Injury — Encessiveness. ' ¡</p> <p>Twelve thousand live hundred dollars is not excessive recovery for m- ¡. •jury to a healthy laborer 36 years old. earning $1.80 a day and wages for overtime, resulting in a badly broken leg, involving two amputations, and crippling bim for life.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-396; Dec. Dig. § 132.*]</p>

In Equity. Suit by certain Michigan telephone companies to restrain the enforcement of Pub. Acts 1909, No. 49, providing for taxation of telephone companies on an ad valorem basis.

In the Matter of Bankruptcy Proceedings of Frank Calvi. Application for the confirmation of the report of the special master in proceedings to recover property alleged to have been sold in fraud of creditors, and hearing on exceptions.

<p>Indictment against the Atlanta Journal Company and others for conspiracy. Heard on demurrer.</p>

<p>In the matter of Guy L. Wade, bankrupt. On review of order of referee respecting claim of Dr. Edwin E. James.</p>

<p>In the matter of bankruptcy proceedings of Stephen S. Pangborn. On application for adjudication.</p>

<p>1. Carriers (§ 58*) — Purchaser oe Drafts with Bill of Lading — Title Acquired.</p> <p>A purchaser of drafts, drawn by a shipper, payable to itself, and bills of lading, consigning to itself goods against which the drafts were drawn, and which goods the shipper had agreed to sell to a third person, acquires the title of the shipper with the power of .ius disponendi of the shipper, and it may divert and sell the goods, and the third person may not complain thereof.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58. *j</p> <p>2. Trover and Conversion (§§ 10, 11*) — What Is “Conversion.”</p> <p>Where a purchaser of drafts, drawn by a shipper, payable to itself, and bills of lading, consigning to itself goods against which the drafts were drawn, and which goods the shipper had agreed to sell to a third person, forwarded the drafts and bills of lading to a banker for collection with instructions to deliver documents only on payment, the purchaser reserved the title and jus disponendi, and the banker delivering the goods to the third person before payment and the third person receiving the goods were guilty of Conversion, a wrongful delivery of goods, either negligently or willfully, made hy on© entrusted with the custody of them, being a conversion.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84-98; Dec. Dig. §§ 10, 11.*]</p> <p>3. Action (§ 28*) — Trover and Conversion (§§ 10, 11*') — Replevin (§ 9*)— Powers.</p> <p>Where the hanker delivered the goods to the third person prior to payment. the purchaser could ratify the tortious act and sue the third person for the price, or in trover for conversion, or in replevin for the goods, or he could sue the banker for conversion.</p> <p>[Ed. Note. — For other eases, see Action, Cent. Dig. §§ 196-215; Dec. Dig. § 28;* Trover and Conversion, Cent. Dig. §§ 84-98; Dec. Dig. §§ 19, 11;* Replevin, Cent. Dig. §§ 69-82; Dec. Dig. § 9.*]</p> <p>4. Carriers (§ 58*) — Drafts—Agents for Collection — Powers.</p> <p>Where the purchaser sued the hanker for conversion for the tortious delivery, the hanker could not defend on the ground that the purchaser was indebted to the third person for damages for breach of warranty by the shipper because there was no warranty by the purchaser, because the goods were tortiously converted before a sale, a warranty arising only out of contract.</p> <p>[Ed. Note. — For other eases, see Carriers, Dec. Dig. § 58.*]</p> <p>5. Trover and Conversion (§ 51*) — Drafts — Agents for Collection — Powers.</p> <p>Where a banker, receiving for collection drafts with bills of lading with instructions not .to deliver prior to payment, delivered prior to payment;, the measure of damages for his conversion of the goods was the face value of the drafts, representing to his knowledge the full price of goods, and legal interest from date of conversion.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 267; Dec. Dig. § 51.*]</p>

In the matter of bankruptcy proceedings of J. V. Lindsley & Co. From a referee’s order refusing to allow one Alexander a preference, petitioner files a petition for review.

<p>Injunction'(§ 137*) — Proceedings at Law — Temporary Injunction.</p> <p>Wliere a suit to restrain proceedings at law, instituted by a widow to conserve and increase ber interest in her deceased husband’s estate, involved important and difficult questions, tbe determination of which was doubtful, a preliminary injunction pendente lite would not be granted on affidavits, under the rule that equity will not issue a preliminary injunction in a doubtful case. '</p> <p>[Ed. Note. — For other eases, see Injunction, Dec. Dig. § 137.*</p> <p>Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of Georgia.</p> <p>Action at law by Haven & Clement against D. W. James. Judgment for plaintiff (172 Fed. 250), and defendant brings error.</p>

<p>1 Navigable Waters (§ 26*) — Obstruction—Injury to Vessel — Evidence.</p> <p>Evidence considered, and held, to sustain the allegation of a libelant that a wire cable by which one of the propeller tubes of its steamship was fouled in the harbor of Honolulu was left there, attached to the anchor chain of a buoy, by a dredging vessel of claimant which was employed in the harbor and using such cables as a part of her equipment.</p> <p>[Ed. Note. — -For other cases, see Navigable Waters, Dee. Dig. § 26.*]</p> <p>‘Navigable Waters (§ 22*) — Maritime Torts — Negligence Causing Injury to Vessel.</p> <p>To place or negligently leave a wire cable attached to the anchor chain of a buoy in a harbor under water, where it is liable to cause injury to vessels using the harbor, is negligence, and constitutes a maritime tort, which subjects the wrongdoer to legal liability for the direct consequences of an injury resulting therefrom.</p> <p>iEd. Note. — For other cases, see Navigable Waters, Cent. Dig. § 132; Dec. Dig. § 22.*]</p> <p>3. Maritime Liens (§ 3*) — Liens for Torts — Vessels Liable — Dredge.</p> <p>A floating dredge, capable of carrying her own machinery and implements and working crew, when employed as an aid to commerce in deepening navigable channels and harbors, is subject to the maritime law and to a maritime lien for a tortious injury to another vessel caused by negligence of those controlling her operations.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Dec. Dig. § 3.*</p> <p>Maritime liens for torts, see note to The Anaces, 34 C. C. A. 565.]</p> <p>4. Navigable Waters (§ 26*) — Obstruction—Liability of Vessel for Maritime Tort — Extent of Liability.</p> <p>When libelant’s steamship Siberia was in the harbor of Honolulu on a voyage to Japan, one of her propellers became fouled by a wire cable negligently left attached- to the anchor chain of a buoy by claimant’s dredge. The cable was wound around the propeller tube, but, after cutting loose the anchor chain, the Siberia proceeded to Yokohama without waiting to remove the cable, with the result that quite a serious injury was done to the propeller and surrounding parts, which could have been avoided by a delay of two or three days at Honolulu. Held, that the dredge was not liable for such indirect and avoidable injury, and that libelant was entitled to recover only the reasonable expense of having the cable removed there, together with demurrage for the time which would have been required.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dee. Dig. § 26.*]</p>

Action at law by E. H. Huntington and Arabella Huntington, heirs and devisees of Collis P. Huntington, deceased, against John Lewis Taylor and others. Erom an order of the Circuit Court (156 Fed. 700), John Quincy Dickinson and others bring error.

<p>Tu Error to the District Court of the United States for the Western District of Michigan.</p> <p>Frank I,. Higgins was convicted of a criminal offense, and brings error.</p>

Court of the United States for the Northern District of Georgia. Action at law by Clifford H. Ritch against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>Suit in admiralty by C. A. Hooper & Co., a corporation, against the steamship Wellesley, Steamship Wellesley Company, claimant. Decree for libelant, and claimant appeals.</p>

<p>1. Public Lands (§ 19*) — “TJni.awful Inolosure” — Construction of Statute.</p> <p>Under Act Eeb. 25, 1885. c. 149, § 1, 23 Stat. 321 (U. S. Comp. St 1901, p. 1524), which makes unlawful “all inclosures” of public lands not claimed in good faith by the person inclosing the same, a fence built upon one’s own land, which in fact incloses public lands of the United States, is unlawful, regardless of the intent with which such fence is built or maintained.</p> <p>LEd. Note. — For other eases, see Public Lands, Cent. Dig. §§ 25, 26; Dec. Dig. § 19.*)</p> <p>2, Public Lands (§ 19*) — “Unlawful Inclosure” — Construction of Statute.</p> <p>Where defendants maintained a fence around a large tract of land, the greater part of which they owned, but which also included smaller tracts of public land of the United States, such inclosure was not rendered lawful by again inclosing the government tracts by fences built around each by defendants on their own land, thus segregating them'from the larger inclosed tract.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 25, 26; Dec. Dig. § 19.*]</p> <p>Van Devanter, Circuit Judge, dissenting.</p>

<p>1. Damages (§ 40*) — Lost Pboeits — Cektainty.</p> <p>Lost profits are recoverable as damages only when they are ascertainable with certainty, and not when they are indefinite and remote.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig."§ 40.*]</p> <p>2. Injunction (§ 252*) — Liability on Bonp — Speculative Damages.</p> <p>A mining company, wrongfully enjoined from operating a mine, is not entitled to recover on the injunction bond profits lost, where it appears that, on account of other mines, operations were not- suspended by the injunction, and that the particular mine would have been worked to an uncertain extent.,</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 586-59S; Dec. Dig. § 252.*]</p>

Action by William J. Moxley, a corporation, against Henry E. Hertz, Internal Revenue Collector, to 'recover revenue tax on oleomargarine. From a judgment for defendant (173 Fed. 728), plaintiff brings error.

<p>1. Courts (§ 414*) — Requests to Find — Review.</p> <p>Under the practice in the Second Circuit, questions of law may be raised by requests to find in a case tried to the court, and submitted on an agreed statement of facts.</p> <p>•' [Ed. Note. — For other eases, see Courts, Dec. Dig. § 414.*]</p> <p>2. Trial (§ 391*) — Findings—Necessity.</p> <p>There need be no finding of a fact stated in an agreed statement of facts.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 914; Dec. Dig. § 391.*]</p> <p>3. Appeal and Error (§ 934*) — Review—Presumptions.</p> <p>A judgment for one suing to recover taxes paid under protest requires an assumption on appeal that the trial court found that the tax was paid under protest.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781; Dec. Dig. § 934.*]</p> <p>4. Internal Revenue (§ 9*) — Bank Capital.</p> <p>The capital and surplus of a trust company permanently invested in stocks and bonds, the bank business being done entirely on deposits, is not subject to the tax upon capital and surplus used in banking imposed by War Revenue Act June 13, 3898, c. 448, | 2, subd. 1, 30 Slat. 448 (U. S. Comp. St. 1903, p. 2286).</p> <p>[Ed. Noto. — For other cases, see Internal Revenue, Dee. Dig. § 9.*]</p> <p>5. United States (§ 125*) — Actions.</p> <p>Since a sovereign can be sued only by his own consent, he may prescribe the conditions on which he will be sued.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 113, 114; Dec. Dig. § 125.*]</p> <p>6. United States (§ 110*) — Interest—Costs—Federal Obligations.</p> <p>Interest and costs can be awarded against the United States only by congressional wa rrant.</p> <p>I Ed. Note. — For other cases, see United States, Cent. Dig. § 93; Dec. Dig. § 110.*]</p> <p>7. Internal Revenue (§ 38*) — Recovery of Taxes.</p> <p>On judgment against a collector of internal revenue for taxes paid under protest, costs incurred before judgment and before any certificate of probable cause was granted were properly awarded against him.</p> <p>¡ Eii. Note. — For other eases, see Internal Revenue, Cent. Dig. § 83; Dec. Dig. § 38.* |</p> <p>8. Internal Revenue (§ 38*) — Recovery of Taxes —Right to Interest.</p> <p>On judgment against a collector of internal revenue for taxes unlawfully exacted and paid under protest, interest was properly awarded.</p> <p>[E'd. Note. — For other cases, see Internal Revenue, Cent. Dig. § 83; Dee. Dig. § 38.*]</p>

Petitions to Review Orders of the District Court of the United States for the Southern District of New York. In the matter of A. O. Brown and others, bankrupts. On petitions by Helen N. Wilkin and H. J. Horrocks, respectively, to review orders of the District Court.

<p>Appeal and Error (§ 14*) — Judgments Reviewable — Decree Entered Pursuant to Mandate. *</p> <p>A Circuit Court of Appeals will not entertain an appeal from a decree . ' entered in accordance with its mandate by a Circuit Court.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 48-58; Dee. Dig. § 14.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suits by the Eagle White Lead Company against Albert Pflugh and another, partners as Pflugh & Co. From a decree of the Circuit Court (180 Fed. 579), defendants appeal.</p>

In the matter of involuntary bankruptcy proceedings against Jacob Yungbluth and against August W. Schafer, copartners doing business as the Bank of Hamilton, Jacob Yungbluth & Co., Proprietors; and the Bank of Hamilton, A. W. Schafer & Co., Proprietors; and A. W. Schafer & Co., Private Bank; and against the alleged partners as individuals.

<p>1. Courts (§ 366*) — Federal Courts — Construction of State Statutes— Rules of Decision.</p> <p>A federal court, in determining questions of local statutory construction, is controlled by the decisions of the highest court of the state.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 957; Dec. Dig. § 366.* '</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M, R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 46SJ</p> <p>2. Master and Servant (§ 95*) — Injuries to Servant — Violation of State Law.</p> <p>Where a boy under 18 years of age was killed while operating an elevator in violation of St. Mass. 1902, c. 350, declaring that elevators shall not be operated by persons under 18 years of age, the violation of the statute, under the rule established by the Massachusetts courts, was no defense against a recovery, unless decedent’s illegal conduct contributed directly and proximately to the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § ICO; Dec. Dig. § 95.*]</p> <p>3. Master and Servant (§ 96*) — Death of Servant — Operation of Elevator —Violation of Statute — Cause of Injure.</p> <p>Where a hoy under 18 years of age was killed while operating an elevator in violation of St. Mass. 1902, c. 350, declaring that, elevators shall not he operated by persons under that age, and there was evidence that the elevator suddenly fell because of a pre-existing defect in the terminal stop mechanism, independent of and disconnected with the ordinary starting or stopping of the elevator by the operator, plaintiff claiming that the terminal stop mechanism was adrift before the accident, and that no force in operating it could have been the direct cause of the accident, or could have set the terminal stop mechanism adrift, it did not appear as a matter of law that intestate’s act in starting the elevator directly eontributed to the accident, and hence that his violation of the statute was the proximate cause thereof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 158; Dec. Dig. § 96.*]</p>

<p>1. Shipping (§ 166*) — Liabilities op Owners of Vessels — Defective Condition of Vessej>-Evidence.</p> <p>Where a structure on the promenade deck of a passenger vessel, consisting of a chain box extending on both port and starboard sides from deckhouse to rail, covering a necessary part of the steering gear, was common in vessels of the size and age of the vessel, and had long been well known on vessels used for passenger traffic, negligence of the owner could not be predicated on the construction of the vessel, though there was evidence that a sloping cover for the steering chain would have been less dangerous.</p> <p>[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 166.*]</p> <p>2. Shipping (§ 166*) — Liabilities of Owners of Vessels — Defective Condition of Vessel — Evidence.</p> <p>Where a passenger came on board during daylight, and went to her stateroom, a few feet from- such an obstruction, and then left the stateroom, and went to the other side of the deck, near the corresponding obstruction, where she remained for some hours, the failure of the owner to warn the passenger of the obstruction was not actionable negligence,, and it was not liable for injuries sustained by her by stumbling over the. obstruction near her stateroom before 8 p. m. of a clear, mild day, when the sun set at about 7:30 p. m.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 166.*]</p> <p>3. Husband and Wife (§ 209*) — Injuries to Wife — Action by Husband.</p> <p>AYliere a wife may not maintain libel for personal injuries, her husband may not maintain a libel for expenses on account of the wife’s injuries and for the loss of consortium.</p> <p>[Ed. Note. — For other cases, see Husband and AVife, Cent. Dig. § 768; Dec. Dig. | 209.*]</p>

<p>Appeal from the District Court of tlie United States for the Southern District of West Virginia, at Charleston.</p> <p>Suit in admiralty by the Kanawha Dock Company against the steamboat Keystone State. From an order of tlie District Court, James A. Henderson, receiver of the Pittsburgh & Cincinnati Packet Fine, appeals.</p>

<p>Appeal from the Circuit Court of the United States for the South■ern District of Mississippi.</p> <p>Suit in equity by A. N. Bunckley and others against the Scottish-American Mortgage Company, Limited. Decree for defendant, and -complainants appeal.</p>

<p>Bills and Notes (§ 487*) — Pleading—Amendments—Dieeebent Cause of Action.</p> <p>Where plaintiff sued on a note containing a promise to pay for value received, and alleged the facts relative to a transaction between plaintiff and defendant as a consideration for the note, an amended petition, thereafter filed, based on the same note, and making the same allegations as to execution and delivery, the amount due and unpaid, and asking judgment as before, but omitting the facts relative to the transaction stated as a consideration for the note, was not subject to a motion to strike, as alleging a different cause of action from that set forth in the original petition.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1575-1583; Dee. Dig. § 487 ;* Pleading, Cent. Dig. § 703.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action at law by the Millie Iron Mining Company against Price McKinney. Judgment for defendant, and plaintiff brings error.</p>

Appeals from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. Two suits in equity by the Schmertz Wire-Glass Cómpany and the Mississippi Wire Glass Company against the Western Glass Company. Decrees for complainants (178 Fed. 977), and defendant appeals.

<p>Appeal from-the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by John Anton against the Grier Bros. Company. Decree for defendant, and complainant appeals.</p>

Suit in equity by John I. McDuffee, trustee, and the Allis-Chalmers Company against the Hestonville, Mantua & Fairmount Passenger Railway Company and the General Electric Company. Decree for complainants (181 Fed. 503), and defendants appeal.

<p>Patents (§ 328*) — Validity and Infringement — Dumping Cage for Crushers and Pulverizers.</p> <p>The Williams patent, No. S43J29, for a dumping cage for crushers and pulverizers, was not anticipated and discloses invention. Claims 1 and 2 also held infringed.</p>

<p>Patents (§ 328*) — Infringement—Pneumatic Hammer.</p> <p>The Boyer patent, No. 667,863, for a pneumatic hammer, narrowly construed, as it must be in view of the prior art, is not infringed by the device of the Richards patent, No. 735,589.</p>

<p>Appeal and Error (§ 708*) — -Questions Presented for Review — Effect of Omission of Evidence.</p> <p>An order fining a party for contempt for disobedience of an injunction is not reviewable on a record which does not contain the evidence on which it was based.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 70S.*]</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. Suit in' equity by Leo Frank and Israel De Keyser against William Bernard. Decree for complainants, and defendant appeals.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by the Matteawan Manufacturing Company against the Emmons Bros. Company. Decree for defendant, and complainant appeals.</p>

In Equity. Suit by the Ferry-Hallock Company against the Orange Hat Box Company for infringement of letters patent No. 574,894. On motion to compel witness to answer questions.

<p>Patents (§ 297*) — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction, restraining infringement of a patent, will not be granted, although the patent has been sustained in a prior suit, which does not clearly appear to have been contested, and where on its face, as well as on the showing made, its validity appears doubtful.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 4S1-488; Dee. Dig. § 297.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p>

<p>Indictment against the Texas & Pacific Railroad Company for violation of the interstate commerce law. On defendant’s motion to direct a verdict.</p>

<p>In the matters of bankruptcy of Philip Bologh and others, of Frederick Rosenzweig, individually and trading as Art Novelty Company, and of Simon Lindau. Motions by receiver in bankruptcy in the Rosenzweig-and Lindau cases and by the trustee in bankruptcy in the Bologh case for an order directing the New York Superintendent of Banks to pay to the respective petitioners moneys deposited by them in the Carnegie Trust Company.</p>

<p>In the matter of bankruptcy proceedings against Charles L. Deland. Application for adjudication.</p>

<p>Bankruptcy (§ 288*) — Referee—Powers.</p> <p>A referee in bankruptcy could order that property be turned over to the trustees, where he decided that title to it was in the estate, and not in respondents, who claimed it as collateral security pledged by bankrupt.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 288.*]</p>

<p>1. Aliens (§ 32*) — Chinese Deportation Proceedings — Burden of Proof.</p> <p>• Under Immigration Act May- 5, 1892, c. GO, § 3, 27 Stat. 25 (U. S. Comp. St. 1901, p. 1320), liroviding that any Chinese person or person of Chinese descent arrested under the provisions of the act shall be adjudged to be unlawfully within the United States, unless such person shall establish, by affirmative proof, to the satisfaction of the justice, judge, or commissioner, his lawful right to remain, the burden rests on the defendant in Chinese deportation proceedings to establish his right to remain, notwithstanding'he has been arrested within the country, and claims to be a native bom citizen.</p> <p>[Ed. Note. — For other eases, see Aliens, Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong Ton v. United States, 104 C. C. A. 538.]</p> <p>2. Aliens (§ 32*) — Deportation Proceedings — Executive Jurisdiction.</p> <p>Since the issue on which the power to deport aliens depends may itself be determined by the executive officers of the government as an incident to the exercise of the power, it is not material whether the alien is taken at the borders of the country or within it; the right of a citizen to enter the country being entitled to the same protection as his right not to be deported.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*]</p> <p>3, Aliens (§ 32*) — Chinese Deportation Proceedings — Citizenship— Evidence.</p> <p>Evidence held insufficient to establish that respondent in Chinese deportation proceedings was entitled to remain in the country as a natural born citizen.</p> <p>I Ed. Nolo. — For other cases, see Aliens, Dec. Dig. ü 32.*]</p>

<p>Removal op Causes (§ 26*) — Residence—'Place.</p> <p>As affecting a federal court's jurisdiction, defendant is a resident of a state'where he has lived for more than a year under' an expressed intention to make Ms home there, where he has engaged in business, leased business property, bought a home, joined a chamber of commerce, and paid poll tax, though his affidavit resisting remand of the cause states that he “is not determined to make this his home, or to become a citizen of this state, but is seriously considering the advisability of moving back - to his home in” another state.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 61; Dec. Dig. §.26.*]</p>

In the matter of bankruptcy proceedings of William W. Tracy and others and the firm of Tracy & Co. Proceedings by certain creditors to reclaim property. On exceptions to the report of a special master.

<p>Action by Emma Bachrach against the Jewish Foster Home.</p>

<p>1. Trade-Marks and Trade-Names (§ 9*) — “Java.”</p> <p>The word “Java,” though geographical, having acquired a secondary meaning by its use in connection with face powders, was entitled to protection as used in the phrase “Poudre de Riz de Java,” indicating a variety of perfumed face powder.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 13; Dec. Dig. § 9.*]</p> <p>2. Trade-Marks and Trade-Names (§ 9*) — Designation of Article — Construction — Intent.</p> <p>“ The phrase “Poudre de Riz de Java,” used by complainant to indicate a variety of perfumed face powder, did not import a statement that the rice used in the powder was grown in Java.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 9.*]</p> <p>3. Trade-Marks and Trade-Names (§ 95*) — Infringement—Simulation—Injunction.</p> <p>Complainant compounded and sold a perfumed face powder under the phrase “Poudre de Riz de Java,” and defendant advertised and sold a similar powder in a similar package under a label “Javarice Powder,” and also used the words “Poudre de Riz de Java” on packages and in advertisements. Held, that complainant was entitled to a preliminary injunction against the use of the name “Poudre de Riz de Java,” but that such injunction would 'not prevent defendant from calling its product “Rice Powder” or “Poudre de Riz,” nor from adding to the name a statement that its product contained powder made from rice grown on the island of Java, provided such statement was accurate and so arranged typographically that the word “Java” was not given such a degree of prominence as would be calculated to cause confusion between the packages of complainant and defendant.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

In the matter of bankruptcy proceedings against William Hurley. On petition to review a referee’s ruling that the trustee was entitled to certain' property described in a petition brought by him to recover the same, and directing Louisa A. Marsh in possession to deliver the property to the trustee.

<p>1. Boundaries '(§ 33*) — Patents of Kentucky State Lands — Evidence to-Identify Land — Exclusion of Prior Grants Within Boundary Described.</p> <p>A party to a suit to establish title to land who claims under a state patent for a large tract, which states that it contains a certain number of acres, but excludes a certain number of acres within its boundaries as having been previously patented or appropriated, has the burden of proving that the land in dispute is within his own boundaries and without those of prior grants, but he is not required to make such proof beyond a reasonable doubt, and it is sufficient if the evidence reasonably establishes such facts.</p> <p>LEd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 140-152; Dee. Dig. § 33.*]</p> <p>2. Adverse Possession (§ 100*) — Extent of Possession — Tracts Held by Different Titles.</p> <p>Under the law of Kentucky, entry and inclosures made entirely upon land to which the person entering had title and right of possession under a grant from the state cannot extend his possession to other land ouiside of his grant, but covered by a grant to another, which can ripen into title thereto by adverse possession against the legal owner, although it was his intention that his possession should cover the latter also; the law being that the owner cannot be divested of bis title by adverse possession when there has been no entry anywhere on his land.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*]</p> <p>3. Adverse Possession (§ 43*) — Continuity of Possession.</p> <p>Where possession was taken of a large tract of land, to a part of which the occupant had title under a patent and to a part of which he did not, the continuity of the adverse possession of the latter was broken by Ills sale of the patented land only and his removal from the tract, and where his grantee claimed only the land conveyed, and it cannot be tacked to a possession subsequently retaken by him.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-225; Dec. Dig. § 43.*]</p> <p>4. Boundaries (§ 37*) — Lands Patented by State — Location of Grant.</p> <p>Evidence considered us to the location of a 10,000-acre survey of land in Kentucky for which a patent was granted by the state of Virginia in 1789.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]</p> <p>5. Adverse Possession (§ 100*) — Extent of Possession.</p> <p>Where one took possession of land claiming under a patent which was void because the land was a part of a larger tract covered by a prior patent, so that his possession was altogether wrongful and adverse to the true owner, his possession was not necessarily limited to (he part in fact covered by the patent under which he claimed, but he may acquire title by adverse possession to so much of the larger tract as he actually claimed.</p> <p>LEd. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*J</p> <p>G. Adverse Possession (§ 7*) — Public Lands of State — Grant to Tiitrd Person.</p> <p>The possession of land belonging to the state by one claiming title thereto, although without right, on the patenting of such land by the state to another, at once becomes adverse to the patent, and ripens into a title if continued for the statutory period after the issuance of the patent.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 21 42; Dec. Dig. § 7.*]</p>

<p>Petition on behalf of Porter Charlton for a writ of habeas corpus and writs of' certiorari in aid thereof.</p>

Action by Let tie T. Hoyt, as administratrix, etc., of Irwin B. Hoyt, deceased, against the Ogden Portland Cement Company. On defendant’s motion to set aside and declare null and void the service of summons in an action commenced in the state court and removed by the defendant.

<p>1. Judgment (§ 243*) — Persons Concluded — Judgment Against Nonexistent Corporation — X’artnersiiip Having Same Name.</p> <p>A judgment against a defendant sued as a corporation when there is no such corporation, nothing else appearing, is void, and cannot be enforced against the property of a partnership doing business under the same name.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428; Dec. Dig. § 243.*]</p> <p>2. Corporations (§ 34*) — Estoppel to Deny Corporate Existence — Partnership.</p> <p>Neither the use by a partnership of a company name similar to that of a corporation, nor an inadvertent expression in a letter written by its attorney to the attorney for a damage claimant, implying that the company had a board of directors, which fact was not known to any of the partners, constituted a holding out of the partnership as a corporation which estopped it from denying that such was the fact as against such claimant, especially in view of Ky. St. § 576 (Russell’s St. § 2161), which requires every corporation under a penalty to use the word “incorporated” in connection with its name on its place of business and on all printed or advertising matter, which the partnership had never done.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 81-96; Dec. Dig. § 34.*]</p> <p>3. Estoppel (§ 95*) — Estoppel by Silence — Duty to Speak.</p> <p>Under the rule that, to make out an estoppel from mere silence, there must be a duty -to speak and a right to rely on such silence, where one making a claim against a partnership brought suit alleging it to he a corporation, making service on one of the partners only as an officer of the corporation, and no one of the partners entered an appearance, they were under no such duty to their adversary to advise him of his mistake that their failure to do so created an estoppel, and rendered the judgment against the supposed corporation binding upon them.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 285-287; Dec. Dig. § 95.*]</p>

Indictment against John G. Crouch for permitting a Chinese alien to land in and enter the United States, without necessity, and without giving bond under the rules and regulations of the Department of Commerce and Labor.

<p>In bankruptcy proceedings of J. K. Cochran, a bankrupt. Action of Referee in denying the bankrupt exemptions allowed by the Constitution and statutes of Georgia approved.</p>

<p>In Equity. Suit by Frank White against Matthew Bender and others, trading as Matthew Bender & Co. On motion for a preliminary injunction.</p>

<p>In the matter of the Federal Lumber Company, bankrupt. On question of adjudication.</p>

<p>In the matter of bankruptcy proceedings against the Crafts-Riordon Shoe Company, Incorporated. On involuntary petition for adjudication.</p>

<p>1. Insurance (§ 400*) — Life Insurance — Stipulations as to Incontestability-Parties Affected.</p> <p>A stipulation in a life policy that it shall be incontestable after one year inures only to the benefit of insured and his beneficiary, and it may not be invoked by a stranger to the contract.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. § 400.*]</p> <p>2. Fraud (§ 28*) — Procuring Policy — Liability.</p> <p>Where insmml and the beneficiary in a lile policy and a third person procured, by fraudulent representations that insured was in good health and an insurable risk, a policy made incontestable after one year, and-insurer, relying on the representations, issued a policy which it was required to pay on the death of insured after the year, the liability of insurer on the policy was the natural and probable consequence of the misrepresentations, and insurer could sue the third person for the fraud.</p> <p>[Ed. Note.- — For other cases, see Fraud, Dec. Dig. § 28.*]</p> <p>3. Fraud (§ 43*) — Procuring Policy — Declaration.</p> <p>A declaration stating a cause of action for deceit, resulting in an insurer issuing an incontestable life policy which it was required to pay, must allege with certainty the fraudulent misrepresentations made by defendant, either directly or through another, a party to a conspiracy to defraud insurtir, and, while allegations as to the conspiracy may be pleaded as an inducement, there must be direct allegation charging defendant with deceit by false representations.</p> <p>[Ed. Note. — For other cases, see Fraud, Dec. Dig. § 43.*]</p>

<p>In Equity. Bill by the Frank Shepard Company against the Zachary P. Taylor Publishing Company.</p>

<p>In Equity. Suit by Edward Butcher, Jr., against Samuel Cantor and another to set aside certain transfers by the bankrupt to bis wife for fraud.</p>

<p>In Equity. Suit by John Conway and others against the Owensboro Savings Bank & Trust Company and others. On motion of T. J. Turley to dismiss.</p>

In the matter of bankruptcy proceedings of C. M. Montgomery. The claim of the Huey & Philp Hardware Company was disallowed by the referee and the case certified.

<p>Courts (§ 270*) — Federal Dr,si'tins — Defendants Residing in Different Districts in Same State -Statutes -Repeal.</p> <p>Rev. St. § 740(11. S. Comp. St. 1901, p. 587), providing that, whim astute contains more than one district, every suit not of a local nature, must be brought in the district where the defendant resides, lfut. if there are two or more defendants residing in different districts of (lie state, it. may be brought in either district, etc., was not; repealed by Act March 3, 1875, e. 137. i 1. 18 Stilt. 470. as amended by Act March 3,1887, c. 373, § 1, 24 Stat. 552, and corrected by Act Ang. 13, 1888, c. 800, § 1, 25 Stat. 433 (VI. S. Comp. St. 1901. p. 508), declaring that no civil suit shall be brought before either the Circuit or District Courts of the United States against, any person by any original process or proceeding in any other district tlnm that whereof he is an inhabitant; and, where jurisdiction is founded only on the fact that the action is between citizens of different slates, suit; may be brought only in the district of the residence of either defendant or plaintiff, but: the two acts should lie read together, section 740 being regarded as an exception to the general rule prescribed by section 1 of the act of 1875.</p> <p>Sections 51 and 52 of the new Judicial Code referred to in illustration.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § 810; Dec. Dig. § 270.*]</p>

<p>In the matter of bankruptcy proceedings of Alexander Sayed. On appeal of the First National Bank of Boyne City from a referee’s order allowing a trustee’s petition to vacate an assignment of a real estate contract.</p>

_ Petition for writ of habeas corpus by Marcelle Sire to obtain her discharge from the custody of P. W. Berkshire and another pursuant to a warrant of deportation.

<p>Petition for writ of habeas corpus by Lena Ladaux to obtain relator’s discharge from the custody of F. W’. Berkshire and another, pursuant to an order of deportation.</p>

<p>In the matter of A. O. Brown & Co., bankrupts. On petition by Allen R. Smart to reclaim money as a trust fund.</p>

<p>In the matter of Fisk & Robinson, bankrupts. On petition to review referee’s order with reference to the claim of J. P. Morgan & Co.</p>

<p>Bankruptcy (§ 76*) — Petition—Rights of Petitioner.</p> <p>Where an involuntary bankruptcy petition was filed against the alleged bankrupt by a tax collector, but failed to allege that at the date of the petition the taxes had remained unpaid for three months after being committed to the collector, which, under the Massachusetts law, was essential to entitle the collector to maintain an action for the taxes, it did not show that the collector had a provable claim sufficient to authorize him to file the petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 7(5.*]</p>

<p>1. Removal of Causes (§ 63*) — Petition—Phoof.</p> <p>Where an action in tort is brought in a state court by a resident plaintiff against a resident and a nonresident defendant who are concurrently or jointly liable, an allegation in a petition for removal that the resident defendant was joined solely to prevent a removal was insufficient without proof of the fact to sustain a removal of the cause.</p> <p>I Ed. Note. — For oilier cases, see Removal of Causes, Cent. Dig. § 115; Dec. Dig. § 61.*]</p> <p>2. Removal of Causes (§ 49*) — Join dee of Defendants — Intent.</p> <p>Where an action in tort is brought in a state court by a resident plaintiff against a resident and a nonresident defendant, plaintiff’s motive in makiug the resident defendant a party is immaterial, in the absence of a showing of had faith, unless it appears from the complaint that there is no joint right of action against him and (he nonresident defendant.</p> <p>[lid. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ OS-99; Dec. Dig. § 49.*]</p> <p>3. Removal of' Causes (§ 49*) — Joinder of Parties — Separable Controversy. .</p> <p>Where an action In tort is brought in a state court by a resident plaintiff against a resident and a nonresident defendant, who are concurrently or jointly liable, but which might have been brought against any one or more of them instead of all, containing no separable controversy, it is not removable to the Circuit Court of the United States by the nonresidents, and this though the liability of petitioning defendant is based solely on the doctrine of respondeat superior.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dec. Dig. § 49.*</p> <p>Removal of causes: Separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155; Pollitz v. Wabash R. Co., 100 C. C. A. 4.]</p> <p>4. Removal of Causes (§ 61*) — Joint Cause of Action — Test of Removability.</p> <p>Where plaintiff in good faith prosecutes his action on a joint cause of action against a resident and a nonresident defendant, and the complaint is the only pleading in the ease, the test of removability is the action as stated in the complaint; the question of joint liability not being triable in the removal proceedings.</p> <p>[Ed. Note.- — For other cases, see Removal of Causes, Cent. Dig. § 115; Dec. Dig. § 61.*]</p>

<p>In Equity. Bill by Hyman Eevin against the Northwestern National Insurance Company of Milwaukee to set aside an award of arbitrators.</p>

In the matter of the bankruptcy proceedings against Edward H. Smith and Smith M. Durland, trading as E. H. Smith & Co. On referee’s report in proceedings to punish the respondent Smith for contempt.

In tlie matter of bankruptcy proceedings against James E. Tarbox. On petition to review an order of a referee dismissing the trustee’s petition for an order requiring Lizzie M. Piper to turn over certain personal property.

<p>1. Sales (§ 296*) — Stoppage in Transitu — Goods in General Order-Termination of Transportation.</p> <p>Where goods shipped to the bankrupts had been removed from the .vessel by the customs authorities and remained in their custody, freight and duty unpaid, without any entry having been made of them, the transportation was not complete, and the sellers were entitled to exercise their right of stoppage in transitu by notice served on the collector of customs.</p> <p>[Ed. Note. — Por other eases, see Sales, Cent. Dig. §§ 837-847; Dec. Dig. § 296.*]</p> <p>2. Sales (§ -296*) — Stoppage in Transitu — Goods in General Order — Termination of Transportation.</p> <p>Where goods shipped to bankrupts had been unloaded from a vessel and had been entered in the custom house through the bankrupts’ broker, and remained in bonded warehouses in New York, freight paid but duties unpaid, the transitus was terminated, and the goods were not subject to stoppage in transitu by notice served on the collector of customs.</p> <p>[Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 837-847; Dee. Dig. § ’296.*]</p>

In the matter of bankruptcy proceedings of A. B. Ostrom and C. B. Swanson, individuals and copartners as Ostrom & Swanson. On petition to review an order of a referee disallowing the claim of Charles Boring.

<p>In the matter of bankruptcy proceedings of Clifton C. Shinn. On rule to show cause why a sale of property seized in attachment proceedings against the bankrupt should not be enjoined.</p>

In the matter of bankruptcy proceedings against the Anson Mercantile Company. Victor H. Anderson was appointed trustee over the objection of the Walker Smith Grocery Company, and the- appointment was certified to the court for review.

<p>1. Bankruptcy (§ 446*) — Referee’s Order — Review.</p> <p>A review of a referee’s order, requiring a bankrupt to pay over money alleged to have been withheld from bis trustee, may be properly restricted to tbe referee’s report, tbe evidence to which be refers therein, and to such evidence as tbe petitioner may include in bis exceptions to tbe referee’s finding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 446.*]</p> <p>2. Bankruptcy (§ 136*) — Concealed Assets — Findings—Evidence.</p> <p>Evidence held to justify a referee’s finding that a bankrupt bad withheld and concealed a part of tbe proceeds of real property sold prior to tbe filing of bis petition, and requiring payment thereof to tbe trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

<p>At Law. Action by Susanna Salminen against James Ross. Verdict for plaintiff, and defendant moves for a new trial.</p>

<p>3. Tbade-Marks and Trade-Names (§ 67*) — Unfair Competition.</p> <p>Where complainant by making and selling Id's dustless duster in the same distinctive maimer for a number of years liad, at great expense, built up a valuable trade therein, his rights were entitled to protection against defendant, Ms prior sales manager, who, after leaving complain, ant’s employ, started to make and sell similar dusters.</p> <p>[Ed. Note. — -For other cases, see Trade-Marks and Trade-Names, Cent. Big. £ 7S: Dec. Dig. £ 07.*)</p> <p>2. Trade-Marks and Trade-Names (§ 97*) — Uni,awful Competition — Injunction.</p> <p>In a suit to restrain unlawful competition, complainant, before any showing of actual damages, was not entitled to an injunction restraining defendant from putting out a package and circular similar to complainant's.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names; Cent. Dig. §§ 110, 111; Dec. Dig. § 97.*]</p> <p>3. Trade-Marks and Trade-Names (§ 97*) — Unlawful Competition — Color of Article — Injunction.</p> <p>Where complainant, a pioneer in the business, manufactured and sold a certain alleged dustless dust cloth, and for a long period of time had dyed such cloths black to give them a distinctive appearance, and by advertising had built up a valuable trade, complainant was entitled to an injunction restraining defendant from manufacturing and putting out in competition with complainant’s cloth another similar cloth dyed black.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. § 97.*</p> <p>Unfair competition in use of trade-mark, see note to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.)</p>

<p>In Equity. Suit by Hibberd B. Worrell, as trustee in bankruptcy, etc., against Daniel Whitney and others.</p>

<p>In Equity. Suit by the Ehiited Booking Offices of America against William J. Gaynor, as Mayor of the City of New York, and Herman Robinson, as Commissioner of Ricenses. On application for preliminary injunction restraining defendants from revoking complainant’s license to do business as a theatrical employment agency, and from proceeding to do so under Laws N. Y. 1910, c. 700, and from taking any action or proceeding thereunder against complainant for violation of such law, pending final hearing and determination of the suit.</p>

<p>Depositions (§ 71*) — Witnesses—Refusal to Testify — Authobity to Compel.</p> <p>Where, in suits pending in a Circuit Court in Ohio, an order was made before issue joined authorizing defendants to take such evidence as could not be produced in open court in the form of depositions, under which defendants procured a subpoena 'for the appearance of a witness before a United States commissioner in tbe Southern district, of New York, the Circuit Court In New York, on the refusal of tbe witness to testify, had no power, inherent, or statutory, to compel the witness to testify or imprison him for contempt.</p> <p>[Ed. Note.- — For other cases, see Depositions, Cent. Dig. § 132; Dec. Dig. § 71.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of Illinois, See, also, 184 Fed. 887. William Jack, for bankrupt. George T. Page, for trustee.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Martin A. Ryan, for appellant. Wray & Callaghan (Stephen Callaghan and Nelson L. Keack, of counsel), for appellee.</p>

In the matter of the New England Breeders’ Club, bankrupt. Nathaniel W. Hobbs, trustee, appeals from an order denying his petition for disallowance of a mechanic’s lien claim in favor of the Head & Dowst Company. On petition for rehearing. Overruled. For former opinion, see 184 Fed. 409. Henry F. Hollis, for appellant. George H. Warren, Robert L. Manning, and Burnham. Brown, Jones & Warren, for appellee.

<p>Appeal from the District Court of the United States for the Southern District of Alabama. H. Lilians, for appellant. R. Percy Roach, for appellees.</p>

<p>Appeal from Circuit Court of the United States for the Northern District of Georgia. Henry R. Goetehius, for appellant. William A. Wimbish and Edgar Watkins, for appellees.</p>

This cause comes here upon appeal to review a decree awarding the libelant, as master of the German steamship Erika, $45,000 as salvage and $3,333.21 for expenses, with Interest and costs. Burlingham, Montgomery & Beecher (Charles C. Burlingham, of counsel), for appellant. Wheeler, Cortis & Haight (C. S. Haight, of counsel), for appellee.