Volume 186 — Federal Reporter

Petition by the Citizens’ Savings & Trust Company for satisfaction ■ of its alleged mortgage on certain property belonging to the Colonial Paint Company, a bankrupt, sold by the bankrupt’s receiver, to which claim C. C. Foerstner, trustee in bankruptcy, filed objections. From an order allowing the claim, the trustee appealed, and filed petition for review.

In Krror to the Circuit Court of the United States for the Eastern District of Pennsylvania. Action by Charles E. Hamilton, receiver of the Evans-Johnson-Sloane Company, against Eerdinand L. Loeb. From a judgment (179 Fed. 728) for defendant, plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by James O’Neill, by his next friend, Daniel O’Neill, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Trial'(§ 174*) — Insufficiency on Evidence — Hanker of Raising.</p> <p>Tlie insufficiency of the evidence to support a verdict for plaintiff may be raised by oral motion for a directed verdict for defendant, or by a written request for an instructed verdict, before submission to the jury.</p> <p>[Ed. Note. — For othér cases, see Trial, Dec. Dig. § 174.*]</p> <p>2. -Trial (§ 178*) — Motion for Directed Verdict — Review op Evidence.</p> <p>The court, on.a request for a directed verdict, must- take the view of the evidence most favorable to the adverse party, and a verdict is properly directéd only when the ease is palpably for the party asking for the direction; and in the absence of established facts, with which testimony cannot be reconciled, the court may not disregard it as incredible.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. § 178.*]</p> <p>3. Trial (§ 140*) — Weight of Evidence — Question fob Jury.</p> <p>The variance between plaintiff’s original and amended petitions, and his admissions to defendant’s claim agent, contradicting his testimony on the trial, are proper for the jury, as affecting his credibility as a witness.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*]</p> <p>4. Master and Servant (§ 286*) — Injury to Servant — Negligence—Question for Jury.</p> <p>Whether a coal car on a switch track communicating with a lead track in railroad yards, on which an engine hostler was driving an engine, ivas in motion at the time of a collision between the car and the engine at the switch, held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § £86.*]</p> <p>5. Master and Servant (f 289*) — -Injury to Servant — Contributory Negligence — Question for Jury.</p> <p>Whether an engine hostler, injured in a collision between an engine which he operated over a lead track in a railroad yard and a coal car projecting over from a switch track, was guilty ol' contributory negligence, held-, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 289.*]</p>

<p>1. Vendor and Purchaser (§ 33*) — Vapidity op Contract — Fraudulent REPRESENTATIONS.</p> <p>To entitle a purchaser of land to a rescission on the ground of fraudulent representations, they must be clearly and satisfactorily established, must liave been material, and have been relied on, constituting the very ground on which the transaction took place.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40-44; Dee. Dig. § 33.*]</p> <p>2. Vendor and Purchaser (f 33*) — Validity op , Contract — Fraudulent Representations.</p> <p>To invalidate a contract for the purchase of land on the ground of false representations, it is not always essential that the party making them knew them to be false, but it is sufficient if he made them without knowing whether they were true or false.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent.' Dig. §§ 40-44; Dec. Dig. § 33.*]</p> <p>3. Vendor and Purchaser (§ 33*) — Validity op Contract — False Representations — Right to Rely on Representations.</p> <p>A purchaser cannot disaffirm a contract for the purchase of land on. the ground that it was induced by false representations made by the other party, if he had the means of ascertaining the truth readily at hand, whether or not he made use of any such means.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40-44; Dec. Dig. fs 33.*]</p> <p>4. Vendor and Purchaser (§ 108*) — Right op Purchaser to Rescind— Fraudulent Representations — Invalidity op Contract.</p> <p>Misrepresentation by a vendor as to material facts by which a purchase of property is intentionally induced amounts to a fraud which vitiates the contract, and entitles the purchaser to rescind, even though he may have sustained no pecuniary loss.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 108.*]</p> <p>5. Vendor and Purchaser (§ 36*) — Cancellation of Instruments (§ 55*)— Right op Purchaser to Rescind — False Representations.</p> <p>A complainant who was induced to purchase an interest in land containing a coal mine owned by defendant by false representations as to the quantity of coal which had been taken from the mine within the past year, which, it was stated, had all been marketed locally, there being no facilities for shipping, whereas, in fact, not more than a third of such quantity had been mined, and there was not market for more, was entitled to a rescission of the contract in equity, although his co-complainant, who acted as agent for defendant in making the sale to him and who also purchased a separate interest at the same time, was a party to the fraud, or presumably cognizant of the true facts, and was not entitled to relief.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 52, 53; Dec. Dig. § 36;* Cancellation of Instruments, Dec. Dig. § 55.*]</p> <p>6. Words and Phrases — “Damnum”—“Injuria.”</p> <p>There is a distinction between “damnum” and “injuria.” The former means only harm, hurt, loss, damage; while the latter comes from “in,” against, and “jus,” right, and means something done against the right of the party, producing damage, and has no reference to the fact of the amount of damage: ■ •</p> <p>[For other definitions, see Words and Phrases, vol. 2, pp. 1S23, 182-1; vol. 4/ p:''3'614:] ' •'■ • ‘ ' '</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action by Iver Rones against the Katalla Company. Judgment for plaintiff (182 Fed. 946), and defendant brings error.</p>

<p>On rehearing. Former júdgment adhered to.</p>

<p>1. Master and Servant (§ 270*) — Action for Injury to Servant — Evidence —Statutory Duty to Guard Dangerous Machinery and Appliances.</p> <p>In an action by an employé against a packing company to recover for an injury received by falling into an unguarded vat of glue, based on Rem. & Bal. Code Wash. §§ 6587, 6594, which require the operators of factories, mills, etc., to maintain reasonable safeguards for all vats which it is practicable to guard and which can be effectively guarded with due regard to their ordinary use, and make owners violating such requirements liable to employés who sustain injuries by reason thereof, the reasonable practicability of safeguarding the vat where the injury occurred was an issue in the case, and evidence that it was so safeguarded by defendant after the injury was competent and admissible, where it was properly limited to such issue by the instructions.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 918; Dec. Dig. § 270.*]</p> <p>2. Master and Servant (§ 289*) — Action for Injury to Servant — Contributory Negligence — Question por Jury.</p> <p>In an action by an employé against his employer to recover for an injury received when he was in a dangerous place but one where he was required to go in the discharge of his duty, the facts that he was there, that he knew of the danger, and was injured, did not require the court to hold as matter of law that he was chargeable with contributory negligence; but, in the absence of evidence of any specific act of negligence on his part, that question was properly submitted to the jury under instructions defining his duty to exercise care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §| 1089-1132; Dec. Dig. § 289.*]</p> <p>S. Master and Servant (§ 204*) — Assumed Risks — Failure ot- Master to Comply with Statutory Requirement to Safeguard Machinery.</p> <p>Under Rem. & Bal. Code Wash. §§ 0587, 0594, which requires the operators of milis, factories, and workshops where machinery is used to provide reasonable safeguards for machinery, rats, etc., where it is practicable to guard it, and make them liable for injuries to employes who sustain injuries by reason of the violation of such requirement, an employs does not assume the risks of the employment which arise out of the failure of the employer to comply with such statute, nor is he charged with assumption of such risks because of his failure to notify the employer of the unguarded condition of the machinery where it had never been guarded.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-548; Dec. Dig. § 204.*]</p>

Cross-suits in admiralty for collision between the steam barge Florence and the steamship Captain Bennett. Decree against both vessels, and both appeal.

<p>1. Monopolies (§ 12*) — Federal Anti-Trust Act — Construction and Scope.</p> <p>The sale of a business and the good will pertaining to it, and an agreement, within reasonable limitations as to time and territory, not to enter into competition with the purchaser, when made as a part of the sale of the business, and not as a device to control commerce, is not within the federal anti-trust law of July 2, 1890 (chapter G47, 20 'Stat 209 riJ. S. Comp. St. 1901, p. 32001), but such act renders unlawful every contract combination or conspiracy which directly or necessarily operates in restraint of trade between the states without regal'd to the form which the transaction takes.</p> <p>[Ed. Note. — For oilier cases, see Monopolies, Cent. Dig. § 10; Dee. Dig. § 12.*]</p> <p>2; Monopolies (§ 16*) — Federal Anti-Trust Act —Illegal Contracts — Tease- op Vessel. ' •</p> <p>Libelant and respondent were both owners of steamers running, regularly between Detroit and Toledo, and for a number-of years had operated under a pooling arrangement which gave them a monopoly. . At the expiration of such arrangement, libelant sold one of its boats and leased the other to respondent for a term of three years to be run between such two points, and at the same time transferred its good will, and agreed not to engage in competition during the. term. The rental reserved was more than the steamer could have earned operated independently. Bold, on the evidence, that the dominant purpose of the parties was to enable respondent to maintain its monopoly of the business, and that the lease was void as'in violation of Sherman Anti-Trust Law July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), and rent could not be recovered thereon.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 12; Dec. Dig. § 16.*]</p> <p>Severens, Circuit Judge, dissenting.</p>

Bill by Frances E- Waterman against the Canal-Louisiana Bank & Trust Company, as executor of the estate of Caroline .Stannard Tilton, deceased, and others, to construe the will. From an adverse decree, complainant appeals. This is a bill by Frances E. Waterman, wife of Charles A. Crane, a citizen of Illinois, against the Canal-Louisiana Bank & Trust Company, executor of the will of Caroline Stannard Tilton, deceased, and others, all citizens of Louisiana.

<p>1. Homestead (§ 86*) — Exemption—Statutes.</p> <p>Under Arizona Territorial Act March 21, 1907 (Laws 1907, c. 79) J 1, providing that a homestead shall consist of a dwelling house in which the claimant resides and the land on which the same is situated or land that the claimant shall designate, providing it is in one compact body not to exceed $2,500 in value, a homestead exemption may be a dwelling house and the land on which it is situated or real property in a compact body, provided the exemption in either case does not exceed $2,500 in value.</p> <p>TEd. Note. — For other cases, see Homestead, Cent. Dig. §§ 93, 96, 97; Dec. Dig. § 68.*]</p> <p>2. Attachment (§ 181*) — Lien—Merger.</p> <p>Where an attachment was levied on land which the debtor subsequently selected as a homestead, the attachment lien was merged in the judgment obtained by the attaching creditor.</p> <p>[Ed. Note. — For other cases, see Attachment, Dee. Dig. § 181.*]</p> <p>3. Bankruptcy (§ 198*) — Attachment—Exempt Pboperty — Vacation.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), provides that the trustee of the bankrupt’s estate shall be vested by operation of law with the bankrupt’s title as of the date he was adjudged a bankrupt, except as to exempt property. Section 67f provides that all levies, judgments, attachments, or oilier liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of the bankruptcy petition against him shall be void in case he is adjudged a bankrupt, and the lien bo deemed wholly discharged, unless the court shall order the lion preserved for the benefit of the estate, etc. Held, that section 67f was applicable to liens acquired through legal proceedings against the bankrupt within four months prior to the filing of the bankruptcy petition without reference to whether the lien was acquired on exempt or nonexempt property, so that an attachment on property of the bankrupt subsequently exempted to him as a homestead was dissolved by bankruptcy proceedings, though the property did not, pass to the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 198.*]</p>

Petition to Review Order of the District Court of the United' States for the Southern District of New York. In the matter of bankruptcy proceedings against Frank Zotti, trading as Frank Zotti & Co. There was an order of the District Court (178 Fed. 304), reversing a referee’s order directing the European-American Bank in New York to pay to the trustee the amount of checks, and Jesse Watson, as trustee, files a petition for review.

Suit in admiralty by Virgil K. Poland, by Edward N. Deady, his guardian ad litem, against the steamer Ruth, the Oregon Railroad & Navigation Company, claimant. Decree for libelant, and claimant appeals. On the morning of October 15, 1907, the river steamers Oregona and Ruth were on their way up the Willamette river from Portland to Oregon City and beyond. The appellee was a deek hand on the Oregona.

Ballantine, bankrupt. Erom an order (179 Fed. 548) of the District Court giving preference to the claims of Worth and others, creditors, Charles A. Chase, trustee, appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by R. H. Holman against the Gans Steamship Line. From a decree for libelant, defendant appeals.</p>

Action by Wilbur F. Denious, trustee in bankruptcy of the estate of Roger H. Williams, against Jethro P. Henderson and another. Judgment for plaintiff, and defendants bring error.

Cross-libels in admiralty for collision against the steam tug Plymouth, the Central Railroad of New Jersey, claimant, and against the steamship Williamsport, the Philadelphia & Reading Railway Company, claimant. Decree against the Plymouth, and her claimant appeals.

Action by John M. Leyda, trustee in bankruptcy of Ilenry Herold, against Henry R. Gering and another. There was a judgment for plaintiff, and defendants bring error.

<p>Appeal from the Circuit Court of the United States for the Western District of Oklahoma.</p> <p>Suit by the Western Union Telegraph Company against M. E. Trapp, as Auditor, and others. From a decree dismissing the bill, complainant appeals.</p>

<p>1. Taxation (§ 482*) — Corporations—Assessment—Notice and Hearing.</p> <p>Where, in a suit to restrain the enforcement of an assessment of a corporation’s property, the record, showed that the assessment was finally made after the first Monday in August, which was the date fixed by Revenue Act Okl. April 17, 1908 (Laws 1908, c. 71, art. 1), for the meeting of the Board of Equalization, such fact eliminated the objection that the assessment was not made by the board on sufficient notice and hearing.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 482.*]</p> <p>2. Taxation (§ 397*) — Corporations—Privileges and Franchises.</p> <p>Where a sleeping car company operated its cars within the state, the State Board of Equalization in valuing the company’s property for taxation was not limited to the value of the company's tangible property, but was entitled to consider in addition the company’s rights, privileges, and franchises.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 672; Dec. Dig. § 397.*]</p>

<p>1. Bankruptcy (§ 215*) — Trustees—Duties.</p> <p>A bankrupt’s trustee, representing not only the bankrupt, but the general creditors, must realize from the estate all that he can for distribution.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 245.*]</p> <p>2. Bankruptcy (§ 246*} — Trustees—Powers.</p> <p>In Ids representative capacity a bankrupt’s trustee may assert claims, avoid preferences, and collect assets where the bankrupt, if there had been no bankruptcy, could not act ^</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 246.*]</p> <p>3. Bankruptcy (§ 273*) — Trustees—Powers.</p> <p>A bankrupt’s trustee could pay out of the funds in his hands a debt secured by collateral in excess of the amount thereof, and claim subrogation to the rights of the creditor for the benefit of the general creditors.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 273.*]</p>

<p>1. Negligence (§ 136*) — Injury to Person on Station Platform — Jury Questions.</p> <p>Whether plaintiff was struck by defendant express company’s truck, while walking along a station platform held, under the evidence, a jury, question.</p> <p>IEd. Note. — For other cases, see. Negligence, Dee. Dig. § 136.*]</p> <p>2. Negligence (g 61*) — Concurrent Causes — Injury to Persons on Station Platform — Liability.</p> <p>If an express company employe’s negligence contributed to injury of a person struck by a truck, while walking along a station platform, the company is liable, though negligence of outsiders who assisted in pushing the truck contributed to the injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. § 61.*]</p> <p>3. Trial (§ 273*) — Instructions—Exceptions—Time hoi Taking.</p> <p>Exceptions to instructions must be taken before the jury retires.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 680-682; Dee. Dig. § 273.*]</p> <p>4. New Trial ($ 6*)= -Appeal and Error (| 977*) — Discretion.</p> <p>An order granting or refusing a new trial, which the court has power io make, is discretionary, and cannot bo reviewed by writ of error or appeal.</p> <p>[Ed. Note. — For other case's, see New Trial, Cent. Dig. §§ 9, 10; Dee. Dig. § 6;* Appeal and Error, Cent. Dig. §§ 8860-3865; Dec. Dig. § 977.*.]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Gullabi Gulbenkia'n and another against the United States to recover excessive import duties paid. There was a judgment of the Circuit Court (175 Fed. 860), dismissing the complaint, after trial before the court without a jury, and plaintiffs bring error.</p>

Action by Prank B. Coleman, trustee of the estate of the Ií. N. Saylor Cooperage Company, bankrupt, against the Decatur Egg Case Company. There was a judgment for defendant, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Auction by Joseph B. Kendall against the Chicago & Northwestern 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 Iowa.</p> <p>Action by John Hermánele against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in admiralty by the Carolina Portland Cement ’Company against the schooner William H. Sumner, Charles Anderson, master, claimant. Decree for claimant, and libelant appeals.

Receivership proceedings against the Ozone Lumber Company and others. From an order apportioning expenses and taxes, the 2Etna Life Insurance Company and others appeal, adversely to A. H..Leonard, receiver, and others.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Habeas corpus by Lena Halpert against Samuel Redfern, Immigration Commissioner, and others. From a judgment granting relief to the petitioner, defendants appeal.</p>

<p>Intern at, Revenue (§ 40*)~ Retail Ltqtjok Deapeks — Piace foe Save.</p> <p>One who has paid a special tax entitling him to retail liquor at hia regular place of business does not violate Rev. St. § 3242 (U. S. Comp. St. 1901, p. 2094), by delivering liquor to a customer at the latter's residence, though the sale be completed there.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 40.*]</p>

<p>Collision (§ 61*) —Tugs and Tows Meeting — Failure to Comply with Passing- Aobuement.</p> <p>A finding of the trial court affirmed that a collision between the tows of the tugs Taylor and P. It. It. No. 32, meeting in Arthur Kill, was duo solely to the fault of No. 32 in failing to comply with an agreement to pass starboard to starboard, which was proper under the special circumstances.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 78; Dec. Dig. § 61. *</p> <p>Collision with or between towing vessels and vessels in tow, see note to TJie John Engiis, 100 C. C. A. 581.]</p>

; • Appeal from the District Court of the United States for the Eastern District of New York. Suits in admiralty by Daniel Sullivan, Martin McNulty, John Murray, and Joseph Mulcahy, respectively, against the steamship Mont-rose ; Robert Glegg, claimant. Decrees for libelants, and claimant appeals.

e Northern District of Mississippi. Action by E. Van Winkle Gib & Machine Company against J. W; Taylor and another. The Swift Fertilizer Works and others bring error, adversely to the Okolona Cotton Oil Company and others, from a decree confirming a master’s report on their petition of intervention.

Suit in equity by the Autopiano Company against the Amphion Piano Player Company. Decree for defendant, and complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Suit in equity by the Westinghouse Electric & Manufacturing Company against the Interurban Railway & Terminal Company. From an order granting a preliminary injunction, defendant appeals.</p>

Action at law by George R. Ostheimer and another against the Valley Duplex Magnet Company. Judgment for plaintiffs, and defendant brings error. This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, in fayor of defendants in error, who were plaintiffs below. The judgment was entered upon a verdict rendered on a retrial of the action.

<p>• Monopolies (§ 21*) — Rights of Members — Suit fob Infringement — Allegation of Unlawful Conspiracy.</p> <p>It is no defense to a suit for infringement of a patent that the complainant and third persons have entered into an illegal combination or conspiracy in restraint of trade; and such defense is not aided by an allegation in the answer that' the suit is not brought in good faith to prevent infringement, but for the purpose of making such conspiracy effective. ■</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dee. Dig. §21.*] ■</p>

<p>At Law. Action by Sallie Dunbar, as administratrix of the estate of her deceased husband, against the Charleston & Western Carolina Railway Company, to recover damages for wrongful death under the employer’s liability áct. At the trial the defendant’s counsel offered to prove that the wife, who was suing for the death of her husband, was temporarily separated from him. This was objected to.</p>

In Equity. Suit by the Eouisville & Nashville Railroad Company against Adam T. Siler, Rawrence B. Finn, and Rew P. Tarlton, individually and as constituting the Railroad Commission of Kentucky. On motion for preliminary injunction. The complainant brings its bill in equity against defendants as individuals, and also as officials composing the Railroad Commission of Kentucky.

Suit by Henry D. Doherty & Co. against Alex. Rice and others. This is a suit in equity for the specific performance of a contract for the sale of corpornte stock having no market rating.

In the Matter of the Monongahela Distillery Company, a bankrupt. Petition for review of the order granting the petition of the Schufeldt Company for reclamation of goods and for book accounts.

Charles H. Dougliten and others were indicted for conspiracy to defraud the United States in connection with certain coal land claims in Alaska. On demurrer to the indictment by /defendant McKenzie.

Suit by the Washington State Sugar Company against Samuel Sheppard and others. Pleas presenting the question of defect of parties allowed, with leave to amend the bill, or to join issue on the pleas.

<p>1. COMMEBO® (§ 85*)-INTERSTATE COMMERCE ACT — AMENDMENTS—EFFECT.</p> <p>The Hepburn amendment of 1906 (Act June 29, 1906, c. 8591, 84' Stkt. 584 [U. S. Comp. St. Supp. 1909, p. 1149]) to the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) materially restricted the jurisdiction of the courts, an(l the primary jurisdiction of the Interstate Commerce' Commission, particularly under section '10-of Act March 2, 1889, c. 382, 25 Stat. 862 (U. S. Comp. St. 1901. p. 3172), has been considerably extended.</p> <p>[Ed. Note. — For other cases, see Commerce, Dee. Dig. § 85.*]</p> <p>2. Commerce (§ 85*) — Interstate Commerce Aot — Jurisdiction of Courts.</p> <p>The original jurisdiction of the federal courts under section 9 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [ü. S. Comp. St. 1901, p. 3154]) .lias not been entirely destroyed, and they still may redress such wrongs as can consistently with the act he redressed without previous action by the Interstate Commerce Commission, and, when one sues for discrimination by a carrier, it is necessary in the first instance to determine whether the wrong can be redressed by the courts.</p> <p>[Ed.' Note. — For other cases, see Commerce, Dec. Dig. § 85.*</p> <p>Jurisdiction of federal courts of suits under interstate commerce act, see note to 11 C. C. A. 318.]</p>

<p>Trade-Marks and Trade-Names (§ 95*) — Misuse—■Deception of Public.</p> <p>Where defendant silver company, without color of right, used the name “Rogers” on the silver-plated ware of its manufacture, and had acquired no right to use the name, derived either from the original. Rogers companies, or the 'subsequent legitimate users of the name, but used it solely to mislead and defraud the public, complainants, having a qualified property right therein, were entitled to a preliminary injunction to restrain such use.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

<p>In the matter of J. H. Kaplan, bankrupt. On certificate of reféree.</p> <p>The following is the report of West, Referee:</p> <p>During the progress and administration of the above matter the following question arose: The bankrupt filed his petition and schedules in bankruptcy on December 25,1909, and on said day ho was duly adjudged a bankrupt. Tlie bankrupt claimed in his said schedules the following property as exempted to him under the state laws: “Household and kitchen furniture and wearing apparel (section 2189, Code Miss. 1906), $100.00. One cow (same section as above). Two hundred and fifty dollars in personal property, to wit. money (section 2147, Code Miss. 1906), $250.00.”</p> <p>All of the said property, except the sum of $250, was allowed to the bankrupt as exempted, and delivered to him by the trustee; and from the order disallowing said $250 a petition for review has been filed, and the matter is certified to you for decision on appeal from said order. The testimony showed that the bankrupt was a Kussian, who had not been naturalized as a citizen of the United States and of the state of Mississippi. He testified that he had fded his declaration of intention to become a citizen, hut that the matter had not been consummated at the lime of his bankruptcy, so that he was not. ai, the time of the bankruptcy, nor yet, for that matter, a citizen of ihe United States of America and of the state of Mississippi.</p> <p>My contention is that the exemption laws of this state have made three classes of exemptionisis, as follows:</p> <p>The first paragraph of section 2139 of the Code of 1906 is as follows: “Personal Property Exempt. — 'The following property shall be exempt from seizure under execution or attachment, to wit.” And it then enumerates the items, such as tools of a mechanic, etc. This exemption is allowed, regardless of citizenship or head of family, so that the mechanic, regardless of the fact as to whether he be a citizen of Mississippi or head of a family, is entitled to the exemption.</p> <p>The ninth clause of said section is as follows: “The following property of each head of a family, to be selected by the debtor, to wit: * * * ” And then the items are enumerated, s«ch as work horses, household goods, etc. As is readily seen, the exemption hero is given only to the head of a family. The bankrupt, being the head of a family, was allowed his cow and his household goods, and that exemption was allowed regardless of whether the claimant he a resident of a city, town, or village, or a rural resident, since no limitation clause is found in the section; but I take it that it may be inferred the Legislature intended such an exemption in the interest of' the husbandman, especially from tho many items enumerated. It was under this secfio.it that 1 allowed the bankrupt his exemptions.</p> <p>Section 2147 of the Code of 1906 allows certain exemptions to the resident of a city, town, or village, and is in the following language: “Every citizen of this state, male or female, being a householder and having a family residing in any city, town or village, shall be entitled to hold,” etc., “the land and buildings,” etc., “and personal property to be selected by him not to exceed in value two hundred and fifty dollars, or the articles specified as exempt to the head of a family.” It is quite evident to my mind that the Legislature intended a distinction between this section and 2139, supra. It is under section 2147 that the bankrupt claimed the $250 of personal property (money), and which I denied him.</p> <p>Since it is rather difficult for the urban resident to conveniently, and economically, I might say, own horses, cows, sheep, fodder, rye, com, potatoes, oats, hogs, chickens, farming implements, and the numerous other things listed in section 2139, which make rural life so attractive to the urban inhabitant, the Legislature, in its effort to recompense the city resident for the deprivation of the good things above mentioned, gave to him, not only his land and buildings resided upon as a homestead, but allowed him $250 of personal property to be selected by him, or the articles specified as exempted to the head of a family. The word “or” is important in this connection, since it shows that the exemptionist must make a selection, if he he a resident, as was the bankrupt in this case, of a city, town, or village. In other words, if he desires to select $250 worth of personalty, instead of .the articles exempted to the head of a family under section 2139. supra, he may do so, and this selection may be made from the stock of merchandise on lumd; but. if he selects $250 worth of merchandise, he cannot select any of the articles mentioned as exempted to the head of a family under section 2139.</p> <p>Since the exemption laws are to be liberally construed, 1 think that, since Kaplan was nnable to make up his selection from his household goods and- his cow, I would have allowed1 him to make up the balance from the stocky of goods, had he been a citizen of the United States and of the state of Mississippi. This matter has been up before me quite frequently, and my ruling has been in accordance with that in this case, and no appeal has been heretofore had, I think the Legislature intended the word “citizen” in section 2147 to mean something; and the Supreme Court of this state seems to have had the same idea, since it decided in the case of Yignaud v. Dean, 77 Bliss. 800, 27 South. 881, that only a person who is both a resident and a citizen of this state is entitled to homestead exemption under the section. I do not think that an alien is entitled to the exemption mentioned in 2147.</p> <p>Another reason why the exemption is not allowable is that the court will notice the bankrupt claims as exempted $250 in money, and makes no mention that he claims goods from the stock to the vhlue of $250. Without burdening the court with citations, I beg to say that I have found the bankrupt law to be as follows: At the time the bankrupt files his schedules, he must, in that schedule, make his claim for such exemptions as he may be entitled to receive under the state law. This exemption must be claimed out of the property of the bankrupt. The bankrupt had no cash on hand when he went into bankruptcy, so that he could claim no $230 in money, since the cash drawer was empty and certainly he could not' claim it. It is also the law that the bankrupt though making his selection from the stock of goods, may, in order that the rest of the stock may bring a fair value, allow his selection to remain with the rest of the assets, and thus add to the value of the sum total, and when the sale is made have the trustees pay to him.his exemptions in money. If the sale should bring dollar for dollar of the appraised value, then the trustee would pay to the bankrupt the sum of $250 in cash; but, if the sale did not bring a dollar for dollar appraisement, then the bankrupt would receive in money the percentage the'appraisement bore to the sale. In other words, if the bankrupt had selected goods of the appraised value of $250, and those same goods had brought $200 in money, then the trustee would pay the bankrupt that sum in lieu of the goods. This is done only, as I say, when the bankrupt is desirous of having the money instead of the articles selected. No action or petition of this kind was had by the bankrupt; his claim for exemption being simply $230 in money, which he never had.</p> <p>The bankrupt also claims that the referee exceeded his right in denying his exemptions, and says that only after the trustee has set aside the exemptions to the bankrupt could the referee, on objection by some creditor to the setting aside of such exemptions, have any right to pass upon the question. To stale this proposition is to answer it. To hold any other way than I did would amount to saying that the referee could not pass an order disallowing the exemption until the trustee had .actually set aside the same to the bankrupt, who might, before a creditor could object to such allowance, “fold his tents and silently steal away.” YVhere, manifestly, in the opinion of the referee, the bankrupt is not entitled to the exemption .claimed, I can see no good reason why such officer should stand idly by, so that such “red tape” may be gone through with before he could legally pass upon the question.</p>

<p>Basks and Banking (§ 80*) — Insolvency—General or Special Deposit— Thust Fund.</p> <p>Complainants being in litigation concerning the title to certain lands in the possession of a tenant, it was agreed that the landlord’s share of the rentals accruing pendente lite should he deposited in a bank to abide the final determination of the controversy, pursuant to which agreement various sums were so deposited, there being at no time any agreement or understanding between any of the parties and the bank that the deposits were to be held or kept separate from the general funds of the bank. Hold, that such deposit was general in its nature, and did not constitute a trust fund, so that, on the failure of tho bank, complainants were only entitled to share In the bank’s assets as general creditors.</p> <p>[üd. Noto. — For other cases, see Banks and Banking, Cent. Dig. §§ 184-190; Dec. Dig. § 80.*j</p>

Information by the United States against the J. Lindsay Wells Company for violation of the food and drugs act. On motion to quash. On or about March 23, 1909, the J. Lindsay Wells Company, a corporation of Memphis, Tenn., shipped from the state of Tennessee into the state of Indiana a consignment of cotton seed meal.

In the matter of the City Bank of Dowagiac, bankrupt. From ait order of the referee disallowing his claim as a lien against a particular fund) Karl H. Nelson appeals.

<p>Bankruptcy (§ 200*) — Laborers’ Liens — Invalidation—Adjudication.</p> <p>Where laborers of an insolvent sawmill corporation instituted proceedings in chancery in the state court to establish a lien on the corporation’s assets in the hands of receivers, which lien is conferred by Acts Miss. 1908, c. 181, such liens, created February 19, 1910, were dissolved by a bankruptcy adjudication against the corporation on April 13th following, and were not available in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 289-316: Dec. Dig. § 200.*]</p>

In the matter of bankruptcy proceedings of R. L. Foster. On objections to the bankrupt’s discharge. Discharge confirmed on special finding of Referee West, which is as follows: By proper order of this court, the undersigned was appointed as a special master to hear the evidence and report a finding of facts with recommendation thereon upon objections to the above-named bankrupt’s petition for discharge.

<p>SnimrNG (§ 58*) — Sikeuntg ok Scow m Loading — Unskaworthiness.</p> <p>The sinking of a scow while being loaded with sand by the charterer held, under the evidence, not to have been due to any fault or negligence of the charterer in loading, which rendered it liable for the injury to the vessel, Imt to the fact that the scow was not seaworthy, as represented, but leaked, which caused her to list and dump her load, and rendered the owner liable for its value and the expense incurred by the charterer in raising and removing her.</p> <p>IKd. Note. — For other cases, see Shipping, Dee. Dig. § 58.*]</p>

Action by the National Bank of Commerce in St. Louis against the Sancho Packing Company and others. From so much of the judgment as released the packing company and defendant T. 1,. Macon, j'r., from liability on the notes in question, plaintiff brings error.

In the matter of William C. Baumhauer, bankrupt. From an order of the District Court (179 Fed. 966) affirming an order of the referee disallowing a part of the claim of J. H. Baumhauer, he appeals.

<p>1. Insurance (§ 789*) — Death Behhjhts — Notice—Constitution and By,Laws — Instructions.</p> <p>The constitution of defendant mutual benefit society provided that within 90 days from the receipt of satisfactory proof of the death of a member in good standing the society would pay to the person entitled thereto a sum not exceeding $5,000, and would also pay to the person entitled thereto the sum of $1,300 In weekly installments of $20 each; the first to be paid within 90 days from the receipt of proof of death. The by-laws declared that in case of an accidental injury notice must be given within 10 days thereafter, containing specified information.1 and a notice of like character given in like manner and time in case of death or loss resulting from accidental injury, and a failure to give any notice required, or to furnish, within 30 days after the period of immediate, total, continuous disability resulting from accidental injury, or from the date of death or loss resulting therefrom, direct and affirmative proof of such aceident and of such disability, death, or loss, shall be deemed a waiver of all claims against the order. Held, that such provisions with reference to notice contemplate a distinction between injuries to the member from disability or loss of life or other bodily injury and claims made by the beneficiary in case of the death of the member, and that such beneficiary was therefore not required to give notice of her claim for death or loss until 30 days after the insured’s death.</p> <p>[Ed. Note.- — For other cases, see Insurance, Cent. Dig. §§ 1963-1905'; Dee. Dig. § 789.*]</p> <p>2. Insurance (§ 789*) — Mutual Benefit Societies — Notice of Death-Waiver.</p> <p>By-laws of a mutual benefit society, providing for notice of a death claim Within a specified time after the member’s death, are for the benefit of the society and may be waived.</p> <p>[Ed. Note.- — 'For other cases, see Insurance, Cent. Dig. § 1965; Dec. Dig. § 789.*]</p> <p>3. Insurance (§ 819*) — Mutual Benefit Societt — Death of Member — Notice — Waiver.</p> <p>In an action on a mutual benefit certificate, evidence JielA to justify a verdict finding that defendant company had waived a provision of its by-laws, requiring notice of death within a specified time.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 819.*]</p>

<p>Petition to Revise an Order of the District Court of the United States for the Southern District of California.</p> <p>In the matter of Fred Dorr, bankrupt. On petition by Carroll Allen, trustee, to review an order of the referee denying- the trustee’s petition to reconsider a claim of John J. Forbis.</p> <p>A petition is presented for the revision of an order of the District Court affirming the order of the referee in' bankruptcy denying the petition of the trustee to reconsider the claim of the respondent which had. theretofore been allowed. The respondent had filed his claim for 87,312.89 against the bankrupt's estate, and the claim had been allowed. The trustee filed a petition for the reconsideration and rejection thereof'on the ground, and the sole ground, that the claim was based on a gambling transaction in stock prohibited by the law of Montana. The facts as stipulated are as follows: The respondent was a resident of Butte, Mont., in June and July, 1908, and at the same time the bankrupt was a stockbroker at tbe same place conducting a brokerage business where grain stocks and other securities were sold on margin and otherwise. On June 30th the respondent purchased from the bankrupt certain shares of stock of the United Steel Corporation, the total purchase price of which, with the commission, was ,$15,162.50. The respondent paid on account thereof $3,864.35, leaving a balance due the bankrupt of $11,258.15, for which the latter held the stock as security. The bankrupt was a member of the New York Stock Exchange, where the orders of the respondent were executed. On August, 12, 1908, the value of the stock so purchased was $18,750, and before said date the bankrupt had without the knowledge or consent of the respondent disposed of the stock, and at the time when the petition for bankruptcy was filed he had in his possession none of the stock, nor any stock of the same kind, nor any money with which to purchase such stock. Said purchase and sale was made subject to the following agreement: “All orders for the purchase and sale of any article received and executed with the distinct understanding that actual delivery is contemplated, and the party giving the orders so understands and agrees. It is further understood that, on all credit business, the right is reserved to close transactions when credits are running out — or so nearly in our judgment, as to endanger the account — without further notice, and settle contracts in accordance with rules and customs of Exchange when order is executed.” For violation of the rules the bankrupt was suspended from membership in the New York Stock Exchange on July 29, 1908. The petition in bankruptcy against the -bankrupt was filed on August 12, 1908, and at that time the value of tbe said stock was $18,750.</p> <p>Section 8416 of the Revised Codos of Montana provides: “Gambling Games Prohibited. — Any person who carries on, opens up or causes to be opened, or who conducts or causes to be conducted, or operates, or runs, as principal, agent or employe, any game of monte, dondo, fan-tan, tan, stud-horse poker, craps, seven and a half, twenty-one, faro, roulette, draw-poker, or the game commonly called round-the-table poker, or solo, or any banking or percentage game, or any game commonly known as a sure-thing game, or any game of chance played with cards, dice or any device whatever, or who runs or conducts or keeps any slot machine, or other similar machine, or permits the same to be run or conducted, for money, chocks, credits, or any representative of value, or for any property or thing whatever, or any person or persons-who conduct any brokerage business,-bucket shop, or- office where grain stocks or securities of any kind are sold on margins a-nd any person owning or in- charge of any saloon, -beer, hall, barroom, cigar store or other'place of business, or any place where drinks are sold or served, who permits any- of the games mentioned in this section to be played in or about such saloon, beer hall, barroom, cigar store, or other place of business, or permits any slot.machine, or other similar machine to be kept therein, is punishable by a 'fine of not less than one hundred nor more than one thousand dollars, and may be -imprisoned for not less than three months, nor more than one year, or by both such fine and imprisonment”</p>

<p>In Error to the District Cornet of the United States for the Western District of Tennessee.</p> <p>Action by the United States against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of' the United States for the Western District of Pennsylvania.</p> <p>Action at law by the Commonwealth of Pennsylvania, for the use of the County of Clarion at the suggestion and now for the use of the Clarion County Poor District, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.</p>

Action by the Central Trust Company against the Third Avenue Railroad Company and others. From an order on a claim by the people of the State of New York, they appeal.

Suit in equity by Hannah O’Callaghan and Edward Corcoran against Terrence O’Brien, administrator of the estate of John Sullivan, deceased, and Marie Carrau. Appeal by J. W. Robinson, assignee of the judgment recovered for costs, from an order distributing certain of the proceeds of the judgment to W. F. Hays and W. M. Russell.

Action by J. H. Terrell against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. This is an action originally commenced in the city court of Birmingham, Ala., by the defendant in error, against the Southern Railway Company, the plaintiff in error, and removed by the latter, by proper proceedings, to the Circuit Court of the United States for the Southern Division of the Northern District of Alabama, at Birmingham.

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York. In the matter of J. Jungmann, Incorporated, bankrupt. Appeal by Hegeman & Co. from an order of the District Court.

<p>1. Post Office (§ 35*) — Scheme to Defraud — Elements of Offense.</p> <p>The elements of the offense defined by Rev. St. § 5180 (U. S. Comp. St. 1901. p. 3096). prohibiting the use of the post office in the furtherance of a scheme to defraud, are the devise or intended devise of the artifice to defraud by accused, the intention to effect the scheme or artifice by opening correspondence or communication with some person through the mail or by inciting some person to open communication with him through the mail, and the execution of the scheme or artifice or an attempt to do so by the deposit of a letter or other communication in the post office for transmission or delivery, or taking or receiving a letter or communication for that purpose therefrom.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Ilig. § 55; Dec. Dig. § 35.*]</p> <p>2. Post Office (§ 35*) — Wrongful. Use — Scheme to Defbaud — Indictment.</p> <p>Id a prosecution for using the post office establishment in furtherance of a scheme to defraud, in violation of Rev. St. § 5180 (U. S. Comp. St. 1901, p. 3096), it is not necessary that, the scheme charged in the indictment, if carried out, would necessarily defraud, but it is sufficient if the scheme as charged is reasonably adapted to defraud.</p> <p>I Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. § 35.*]</p> <p>3. Post Office (§ 48*) — Wrongful Use — Scheme to Defraud — Indictment.</p> <p>An indictment for using the post office establishment in the furtherance of a scheme to defraud alleged that, for the purpose of defrauding K. out of certain hotel property owned by him in Illinois, defendants represented and stated to him that they were the owners of a certain 360 acres of land in H. county, Okl., of the value of $32 per acre, which they would exchange with K. for his hotel property, when, in fact, defendants had no title or Interest in the Oklahoma land which they nndertook to convey to K. by a pretended deed, purporting to he made by others; that defendants intended to defraud, and did in fact defraud, K. out of the hotel property, and, in the furtherance of such scheme and as a means of executing it, they unlawfully, etc., devised and caused to be deposited in the post office certain letters, etc., containing an abstract of title and opinions of attorneys. Held, that the indictment was not demurrable for a failure to sufficiently'state the facts constituting the scheme to defraud.</p> <p>[Ed. Note. — For other eases, see Post Office, Dec. Dig. § 48.*]</p> <p>4. Indictment and Information (§ 121*) — Certainty—Bill of Particulars.</p> <p>Where the language used in an indictment, though sufficient to state the' offense intended to be charged, was such that defendants might be surprised by the production of evidence for which they were unprepared, their remedy was by an application for a bill of particulars before trial.</p> <p>[Ed. Note. — For other eases, see Indictment and Information, .Cent. Dig. §§ 316-320; Dec. Dig. § 121.*]</p> <p>5. Post Office (§ 48*) — Misuse of Mails — Indictment.</p> <p>Where an indictment for misuse of the mails in the furtherance of a scheme to defraud alleged that, as a means of executing the scheme, defendants unlawfully, etc., deposited and caused to be deposited in a United States post office at H., in Oklahoma, a registered envelope addressed and directed to IC (the person intended to be defrauded), such envelope being duly stamped with postage thereon, and then and there contained a certain letter directed to K. purporting to be signed by one of the defendants, a copy of which was set out, and also containing opinions with reference to the title to land in Oklahoma, which defendants were attempting to exchange for IC’s property, and the letter so deposited in the United States post office was transferred by means of the post office establishment to IC. in furtherance of and in execution of the scheme and artifice to defraud, it charged with sufficient certainty that defendants intended to effect the scheme or artifice by opening correspondence with IC. through the United States mails.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 48.*]</p> <p>6. Post Office (§ 48*) — Misuse of Mails — Indictment—Deposit of Letter.</p> <p>Where an indictment for the misuse of the mails in furtherance of a scheme to defraud did not expressly state that the letter in question deposited in the post office was to be sent or delivered by the Post Office Department, but charged that it was mailed and addressed to the person to be defrauded, that the envelope was duly stamped with postage, and that defendants then and there unlawfully, etc., and knowingly deposited it in the United States post office, it sufficiently charged that the letter was to be sent or delivered by the United States mails.</p> <p>[Ed. Note. — For other eases, see Post Office, Dec. Dig. § 48.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. O. A. 79.]</p> <p>7. Post Office (§ 48*) — Misuse of Mails — Scheme to Defraud — Scif.nter.</p> <p>Where, in a prosecution for misuse of the mails in the furtherance of a scheme to defraud, the indictment alleged the devise of a scheme to defraud IC. out of certain hotel property by inducing him to make an exchange of the property for certain real estate in Oklahoma, which defendants did not own, that they contemplated the use of the mail service of the United States in executing the scheme, and actually employed such service in the sending of a letter to IC., containing matter calculated to further the trade, it was not defective for failure to charge by way of scienter that defendants knew that neither they nor the person they expected to have convey the land did not have title thereto.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 48.*]</p> <p>8. Criminad T,aw (§ 1044*) — Writ ojt Erkoe — Review—Objections in Teiai, Court — Motion bob Directed Verdict.</p> <p>The sufficiency of evidence to sustain a conviction cannot be reviewed on a writ of error, where defendants made no request fit the close of all the evidence for a directed verdict.</p> <p>[Ed. Note. — For other cases, see Criminal haw, Dec. Dig. § 1044.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Xu the matter of bankruptcy proceedings of Merrill & Baker. From an order modifying a referee’s decision with reference to the allowance of claims of Walter M. Jackson, so as to expunge the same, claimant appeals. Affirmed on opinion of Hough, District Judge, which is as follows: The legal questions before the referee and this court are covered by a stipulation as to the facts embracing many matters qnite immaterial to a clear statement of the problem presented.

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Suit in equity by the Metropolitan Water Company against the Kaw Valley Drainage District of Wj’andotte County, Kan., George Stumpf, E. J. Mason, and AI Mebus. Defendants appeal from an order granting a preliminary injunction.</p>

<p>Appeals from the Circuit Court of the United States for the District of Kansas.</p> <p>Suits in equity by the United States Trust Company of Kansas City, Mo., trustee, and others, against the Kaw Valley Drainage District of Wyandotte County, Kan., and others; Gertrude L. Brown and others against the same; A. B. Adler against the same; and the Fowler Packing Company against the same. Appeals by defendants from orders granting preliminary injunctions.</p>

Suit in admiralty for collision by the Crown Steamship Company, Limited, as owner of the steamship Crown of Castile, against the steamship Kronprinz Wilhelm, North German Lloyd, claimant, and cross-libel, by the North German Lloyd against the Crown of Castile. Decree dividing damages, and both parties appeal.

Suit in admiralty by Edgar F. Euckenbach, as owner of the steamer Julia Euckenbach, against the Insular Eine. Decree for respondent, and libelant appeals. This canse comes here upon appeal from a decree, dismissing the libel. The libel was filed to recover for damages which the steamer [ulia Euckenbach sustained while .being docked by steam tugs at Pier 31, Brooklyn, N. Y.

<p>ColtjsioN (§ 11*) — Steamer and Melting Tow — Unlawful Tow — Liability of Tows.</p> <p>The regulations esta Wished by the Department of Commerce and Labor, under authority of Act May 28, 1908, c. 212, § It, 35 Stat. 428 (U. S. Comp. St. Sup]). 1909, p. 1100), limiting the length of tows and of hawsers between vessels in tows in inland waters, and prescribing penalties to be imposed on the master of a towing vessel willfully violating such regulations, while binding on tugs, are not binding on the vessels in a tow acting in obedience to the orders of the master of the tug, and they cannot be held in fault for a collision between one of their number and another vessel, on the ground alone that, following such orders, they bad lengthened their hawsers beyond the prescribed limit, at a place not within the rule, and could not shorten them after reaching waters within the rule.</p> <p>I'Ed. Note. — For other cases, see Collision, Cent. Dig. § 10: Dee. Dig. § 11.*</p> <p>Collisions with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

Action at law by Beckie Jarowski against the Hamburg-American Pácket Company. From the judgment, plaintiff brings error. On motion by defendant to vacate order found in 182 Fed. 320, 104 C. C. A. 548.

Suit in equity by Frederic W. Hillard against the Remington Typewriter Company. From a decree holding valid and infringed claims numbered 8, 11, 12, and 15 of letters patent No. 791,420, granted to Frederic W. Hillard for improvements in typewriting machines, defendant appeals.

Suit in equity by Frank M. Ashley against the Samuel C. Tatum Company. Decree for complainant (181 Fed. 840), and defendant appeals. The suit was brought for infringement of complainant’s design patent No. 37,504, granted to him August 8, 1905, for design for an inkstand. Defendant’s inkstand is made under patent to S. F. Hilles, assignor to defendant, granted July 6, 1909, No. 40,125, for- design for an inkstand.

In Equity. Suit by Otis A. Mygatt against the M. Schaffer-Flaum Company for infringement of patent No. 821,306 for a prismatic reflector, and design patent No. 37,983 for a design for a reflector. De - cree for defendant on the first patent, and for complainant on the second.

<p>Patents (§ 308*) — Injí’bii'íu'ement—Preliminary Tn-tcnction — Wbohotot, TTse by Complainant as Ground dor Dissolution.</p> <p>The wrongful use by a complainant of a preliminary injunction against infringement of a patent, by sending notices of the same to the trade and to customers of a defendant, together with lei ters which are misleading as to its scope and effect, and calculated to injure defendant’s legitimate business, affords ground for dissolution of the injunction.</p> <p>nid. Note. — For other cases, see Patents, Cent. Dig. § 505; Dec. Dig. § 308.*]</p>

<p>In the matter of bankruptcy proceedings against Jacob M. Gartman. On certificate of a referee to review an order denying an application of the Jv. D. Caulk Dental Depot for possession of certain personal property sold to the bankrupt under a conditional sale.</p>

In the matter of Herbert Gulick. Application for an order enjoining the Gulick-Halle Company from further prosecuting certain actions in the state court between itself as plaintiff and the bankrupt as defendant. This order was obtained -by the bankrupt on February 6, 1911, on the strength of the adjudication ex parte on the voluntary bankruptcy petition filed that day by the petitioner and the schedules thereto annexed.

<p>1. Assignments for Benefit of Creditors (§ 39*) — Restrictive Provisions— Effect.</p> <p>An assignment for the benefit of creditors, restricting its benefits to such creditors as would assent to the same and consent to receive dividends thereunder in satisfaction of their claims, was valid as between the parties, and could only be assailed by nonconsenting creditors, whose rights were thereby prejudiced.</p> <p>fEd. Note. — For other eases, see Assignments for Benefit of Creditors, Cent. Dig. § 155; Dec. Dig. § 39.*]</p> <p>2. Bankruptcy (§ 60*) — Act' of Bankruptcy — “General Assignment foe the Benefit of Cebditors” — Restrictive Assignment.</p> <p>An assignment of all of a debtor’s property to an assignee to convert into money and apply to the discharge of debts owing to such creditors as assented thereto and agreed to accept the dividends thereunder in full of their claims, was a “general assignment for the benefit of creditors,” within Bankr. Act July 1, 1898, e. 541, § 3, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), providing that a general assignment shall constitute an act of bankruptcy; it being unnecessary that the assignment should be valid as to dissenting creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 60.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3052-3054.]</p>

<p>1. Aliens (§ 53*) — Who Abe — Deportation.</p> <p>The immigration acts as amended in 1903 (Act March 3, 1903, c. 1012, 32 Stat. 1213), prescribing the aliens liable to deportation as immigrants, applies to all aliens whether first arriving in the country or returning to the country after a temporary absence.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 53.*]</p> <p>2. Aliens (§ 54*) — Deportation—Proceedings—Powers op Immigration Officials.</p> <p>Under the immigration acts, the immigration officials have exclusive power to determine whether an alien shall be deported as liable to become a public charge, and. so long as the procedure prescribed by such acts and the rules established for their administration are substantially followed, the courts cannot interfere.</p> <p>LKd. Note. — For other cases, see Aliens, Dec. Dig. § (54.*]</p>

<p>In Admiralty. Suit by the Eastfield Steamship Company against J. T. McKeon and others. The court having decreed that libelant could not recover, on the ground of having parted with all interest in the suit, libelant moved to amend the libel by making it read: “East-field Steamship Company sues on its own behalf and for the use of Eield line, Cardiff, limited.”</p>

<p>1. Municipal Corporations (§ 285*) — “Contract”—Grant of Exclusive Franchise.</p> <p>Under Rev. St. Mo. 1889, § 1589, authorizing cities of the fourth class to grant an exclusive franchise to furnish electric light to the city and its inhabitants for a term not exceeding 20 years, an ordinance granting such right, duly passed, signed by the mayor and accepted by the grantee, constitutes a contract binding on the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 757; Dee. Dig. § 285.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1513-1534 3 vol. 8, pp. 7615, 7616.]</p> <p>2. Constitutional Law (§ 128*) — “Impairment of Obligation of Contract” — Grant of Exclusive Franchise by City.</p> <p>Where a city has granted an exclusive franchise to an electric light company to furnish lights to the city and its inhabitants for a term of years, under legislative authority, and the grant has been accepted and acted on, it is an impairment of the obligation of the contract so made within the constitutional meaning of the term for the city to enter into competition with the company before the expiration of the grant.</p> <p>[E'd. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 372-389; Dec. Dig. § 128*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3412-3417.]</p> <p>3. Municipal Corporations (§ 122*) — Presumptions—Validity of Ordinances Duly Signed.</p> <p>A city ordinance duly signed by the mayor was presumptively regularly passed and presented to him for his approval.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 284-286; Dec. Dig. § 122.*]</p> <p>4. Evidence (§ 186*) — Secondary Evidence — Copy of City Ordinance.</p> <p>Where a city ordinance has been lost, a copy made and compared by the clerk and certified by him with the corporate seal of the city attached is admissible as secondary evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 661-673; Dee. Dig. § 1S6.*]</p> <p>5. Municipal Corporations (§ 106*) — Enactment of Ordinances — Statutory Requirements — Recording of Vote.</p> <p>Rev. St. Mo. 18S9, § 1597, applying specially to cities of the fourth class, provides that “no ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elect shall vote therefor and the yeas and nays entered on the journal,” and such provisions as construed by the Supreme Court of the state are mandatory, and a compliance therewith is essential to the validity of an ordinance. At a meeting of the council of a city having six aldermen, the record showed the presence at roll call of four, who were named. The journal further recited that a bill was “presented * * * and upon motion adopted. Yeas five, nays none.” Held, that such record did not, either literally or substantially, comply with the statute, since it failed to show the vote of any particular one of the six aldermen elect, and that the ordinance was void.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §5 22Í-228; Dec. Dig. § 106.*]</p> <p>6. Mttnicipat, Corporations (§ 341*) — Iiaegal Contract' — Effect op Fart PERFORMANCE.</p> <p>A cily luiving power to grant an exclusive franchise to an electric light company for a term of years undertook to do so by an ordinance which was void because noi passed in conformity to law. The grantee accepted the ordinance, built a plant, and furnished light and power to the city and its inhabitants for the greater part of the term, receiving payment therefor. Held, that the fact that the contract had been performed for such length of time did not render it valid nor give the company the right to enforce it in equity for the remainder of the term.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Bee. Big. § 341.*]</p>

Criminal prosecution of Charles F. Munday, Archie W. Shiels, and Earl E. Siegley by indictment charging defendants with conspiracy by a scheme to fraudulently acquire coal lands in Alaska.

<p>The American Druggists’ Syndicate was charged with misbranding a drug.</p>

<p>1. Aliens (§ 40*) — -Immigration—Deportation—Security fob Return — STATUTES— CONSTRUCTION.</p> <p>Immigration Art Fob. 20, 1907, c. 1134. § 19, 34 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 458), provides that if tile owner of any vessel bringing an alien not entitled to enter shall make any charge for the return of such alien, or shall take any security from Mm for the payment of such charge, he shall be guilty of a misdemeanor. Held, that such provision applies only to acts done within the United States, since to construe it as applicable to acts occurring wholly within foreign territory would render it violative of international law.</p> <p>(Ed. Note. — For other cases, see Aliens, Dec. Dig. § 40.*]</p> <p>2. Aliens (§ 59*) — Deportation—Charge for IIeturn Passage — Offenses— Indictment — “Charge.”</p> <p>Immigration Art Feb. 20, 1907, c. 1131, § 19, 34 Stat. 904 (TJ. S. Comp. St. Supp. 1909, p. 458), provides that if the owner of a steamship shall make any “charge” for the return of any alien brought to the United States and not entitled to enter, or shall take any security from him for the payment of such charge, he shall be guilty of a misdemeanor. An indictment alleged that defendant steamship company at Bremen collected return passage money from proposed immigrants who were within the excluded elasses, and that it afterwards brought them to New York, and, knowing of their proposed deportation, holds the money as security for a charge to be made for deportation. Held, that tbe word “charge'’ as so used did not import a continuing act, but meant an overt act, by which the charging party manifested his purpose to demand the money charged from the person charged, excluding the subsequent relations which were consequences of the act, and that the indictment was therefore fatally defective for failure to allege that the forbidden “charge” was made with the intent to apply the' amount so collected to the return of the aliens under deportation.</p> <p>LEd. Note. — For other cases, see Aliens, Dec. Dig. § 59.*</p> <p>For other definitions, see Words and Phrases, yol. 2, pp. 1064-1072; vol. S, pp. 7599, 7600.]</p> <p>3. ALIENS (§ 59*) — -IMMIGRATION—OFFENSES—SECURITY FOR DEPORTATION — INDICTMENT — “TAKING SECURITY. ”</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, § 19, 34 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 458),'providing that if any shipowner shall make any charge for the return of any alien brought to the United States' and not entitled to enter, or shall take any security from him for the payment of the charge of deportation, he shall be guilty of a misdemeanor, an indictment alleging that defendant at Bremen collected return passage from certain proposed immigrants who were within the excluded classes, and held the money as security for a charge to be made for deportation, did not charge the taking of the money as security within the United States, since to retain money taken in a foreign country was not a continuous repetition of the “taking” within the United States by reason of'the fact that the aliens were brought to the United States and ordered deported because not entitled to enter.</p> <p>ÍEd. Note.- — For other cases, see Aliens, Dec. Dig. § 59.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 6851-6863; vol. 8, p. 7813.]</p>

<p>1. Admiralty (§ 54*) — Stipulations yob Release or Vessel -Construction.</p> <p>A stipulation for value given by the claimant for the release of a libeled vessel, pursuant to a rule of the court in admiralty, takes the place of the vessel itself for all purposes of the snit, and is available for the payment of all sums decreed in favor of the libelant against the vessel, including interest and costs, notwithstanding the fact that an additional stipulation for costs has been given, and the amount recoverable thereon, and for which execution may issue, includes interest on the agreed value of the vessel from the date of the stipulation where it is so conditioned in accordance with the practice of the court.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 443-447; Dee. Dig. § 54.*]</p> <p>2. Admiralty (§ 54*) — Stipulation Given by Claimant — Liability of SUBETY.</p> <p>Where a stipulation for value given by the claimant of a libeled vessel was conditioned for the payment of the amount awarded by final decree of the trial court “or by any appellate court if an appeal intervene, with, interest,” the waiving by libelant of further security on an appeal does not release the surety on the stipulation from the further payment of interest thereon, in accordance with its terms, or of costs of the appellate court.</p> <p>[m Note. — For other cases, see Admiralty, Cent. Big. §§ 443-447; Dee. Dig. § 54.*]</p> <p>3. Admiralty (§ 54*) — Stipulation Given by Claimant — Liability op Surety.</p> <p>Under a stipulation given by a claimant in admiralty, conditioned that, if the stipulators fail to pay the amount of any decree against them, execution may issue against both claimant and his surety, both are principals, and no demand is necessary upon the claimant in order to justify a demand on the surety.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 54.*]</p>

Libel by the United States of America against Ten Barrels of Vinegar. This is a case arising under the “p'ure food act,” so called. Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1191).

<p>1. Master and Servant (§ 155*) — Injuries to Servant — Negligence—Fait,-urf, to Warn.</p> <p>A master was not negligent in failing to warn an experienced carpenter of the liability of a box or ease, forming one of a stack of three, to fall from another when the stack was pushed along the floor, as the master could presume that the servant had full knowledge of such danger: there being no obstruction that the cases would be liable to strike, and the only apparent danger of falling consisting of 1he tilting of the stack in process of movement.</p> <p>LEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 310: Dec. Dig. § 155,*)</p> <p>2. Negligence (§ 1*) — Definition.</p> <p>Negligence is the failure to do something which in the exercise of ordinary care ought to have been done, or the doing of something which in the exercise of ordinary care ought not to have been done.</p> <p>¡Eü. Note. — For other eases, see Negligence, Cent. Dig. § 1; Dee. Dig § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763: vol. 8, pp. 7729-7731.1</p> <p>3. Master and Servant (§ 149*1- Injuries to Servant — Methods of Work.</p> <p>Where there is a safe and unsafe way of doing certain work, and the master directs the employe to do it in the unsafe way, the danger of which the master knew or ought to have known, and the employe follows the master’s directions in ignorance of,the dangers of doing it that way and is injured, the master is liable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 291-295; Dec. Dig. § 149.*]</p> <p>4. Master and Servant (§ 265*) — Injuries to Servants — Presumptions.</p> <p>Where a servant was injured by the fall of one of a stack of cases he was directed to move in a specified manner, negligence of the defendant in giving the directions as to moving the cases without instructions or warning as to the dangers could not be presumed, nor could it be inferred from the happening of the accident and the consequent injury, but must be proved affirmatively.</p> <p>¡Hd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 2G5.*J</p> <p>5. Master and Servant (§ 287*) — Injuries to Servant — Directions—Acts of Superintendence — Question for Jury.</p> <p>Where plaintiff was injured by Die fall of one of a stack of lacking cases he was directed to move by a superintendent, whether the giving of directions as to how the slack should be moved was an act of superintendence within the New York employers’ liability law (Consol. Laws, c. 31, §§ 200-204) was for the jury.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 287.*]</p> <p>6. Master and Servant (§ 219*) — Injuries to Servant — Assumed Risk.</p> <p>Plaintiff, an experienced carpenter, who had been a superintendent in the construction of buildings, was directed by defendant’s superintendent to move a stack of cases by placing his back against the cases and extending Ms legs so as to move the eases by sliding them along the floor. There was no obstruction in the way, and while so engaged the top case fell and struck plaintiff’s extended leg, causing the injury complained of. llel'tl, that the danger was apparent, and that plaintiff assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. O. A. 314.]</p>

<p>In the matter of Louis N. Chase, bankrupt. On application for discharge.</p>

<p>Pleading (§ 238*) — Answee—Application to Amend.</p> <p>A trustee in a mortgage executed by an insolvent corporation to secure bonds having been permitted to file a cross-bill to foreclose in insolvency proceedings against the insolvent, a judgment creditor intervened and answered the trustee’s cross-bill, denying any knowledge or information sufficient to form a belief as to the truth of the cross-bill. After taking proofs, such creditor moved to amend its answer, and alleged that the mortgage was without consideration, was given when the corporation was insolvent, with the intent to prefer the trust company as trustee over other creditors, and with the intent to hinder, delay, and defraud the insolvent’s other creditors, including defendant. The affidavit with reference to delay alleged that neither the creditor nor the deponent, its attorney, had knowledge that the mortgage was given without consideration, or was fraudulent, until the taking of the testimony in support of the cross-bill; but there was no showing that the creditor by the exercise of diligence could not have secured such information before answer, nor were any facts stated showing that the creditor at the time of the application had knowledge that such was the fact. Held, that the showing was insufficient to justify leave to amend.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 238.*]</p>

In the matter of the bankruptcy of the City Bank of Dowagiac. There was an order of the referee disallowing in part the claim of one Spaulding, a creditor, and he prays for a review thereof.

<p>In the matter of bankruptcy proceedings of one Westbrook. On objections by á creditor to the bankrupt’s discharge.</p>

<p>Sales (§ 420*) — Action by Buyer pop. Breach oe Contract — Evidence oe Damages.</p> <p>In an action for breach of contract for the sale of phosphate to be delivered. to plaintiff in France, evidence of the market price of such phosphate at the time and place of delivery held suflicient to warrant the submission of the question of damages to the jury.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 420.*]</p>

Suit in admiralty by Peter Rainjak against the Austro-American Steamship Company, Limited. Decree for respondent, and libelant appeals. The libelant came to this country as an immigrant passenger on the steamship “Eugenia,” belonging to the Austro-American Steamship Company, Limited, arriving here on December 16, 1907.

<p>1. Appeal and Erbok (§ 897*) — Appeal in Open Court -Parties -Citation— Necessity.</p> <p>Where an appeal is taken in open court, it is taken against all adverse interests; all parties present in fact or in law being regarded as having notice without citation.</p> <p>[luí. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2101; Dec. Dig. § 897.*]</p> <p>2. Appeal and Error (§ 336*) — Appeal in Open Court — Severance—Objections.</p> <p>Where an appeal was taken in open court from an order granting an interlocutory injunction, appellant’s failure to summon and sever and notify parties was not a jurisdictional defect, but one which might be corrected in the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 330.*</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., 93 C. C. A. 608.]</p> <p>3. Courts (§ 316*) — Jurisdiction—Real Party in Interest — Statutes.</p> <p>Act Cong. March 3, 1875, c. 137, § 5, 18 Stat. 472, continued and reenacted by Act Aug. 13, 1888, c. 866, § 6, 25 Stat. 436 (U. S. Comp. St. 1901, p. 511), provides that if it appear to the satisfaction of the Circuit Court, at any time after suit brought therein, that it does not really involve a dispute or controversy properly within the court’s jurisdiction, or that the partiés have been improperly or collusively made or joined to create a case cognizable under the act, the court shall proceed no further, but shall dismiss the suit or remove it as justice shall require. Iicld that, where a street railway and electric company, prior to default in the payment of principal or interest on bonds secured by mortgage, was entitled to possession of its property, and the only persons objecting to its right to lay double tracks on a certain street were the abutting property owners, a nonresident trustee for the bondholders under such mortgage was not entitled to maintain a suit in the federal court against the railway company, the city, and the objecting property owners, to restrain them from objecting to the laying of such additional track, on the allegation that such improvement was essential to the bondholders’ security; that the bondholders were more deeply interested in the property of the railway company than any other corporation or persons; and that a failure of the railway company to lay such track would greatly impair the value of the bonds, etc., it being evident that the suit was instituted by the plaintiff as trustee to relieve the railway company, the real party in interest, from the necessity of resorting to the state court.</p> <p>[Ed. Note. — For other eases, see Courts, Gent. Dig. § 862; Dec. Dig. § 316.*]</p>

Action at law by Corinna E. Hobart against P. M. Hall and the City of Minneapolis. Judgment (174 Fed. 433) for plaintiff, and defendants bring error.

<p>1. Indictment and Infobmation (§ 130*) — Counts—Diffebent Offenses— Joindeb.</p> <p>The statute limiting the number of counts which may be joined in the same indictment for separate offenses committed within the, same six calendar months relates merely to the mode of procedure, so that the inclusion of more than three counts in the same indictment does not vitiate it as an entirety; the rights of the defendant ordinarily being amply safeguarded by directing the prosecution before entering on the trial to nolle pros, all the counts in excess of three, or by requiring the prosecutor to elect three of the counts on which he will proceed after his evidence is in, and then compel him to abandon the others,</p> <p>[Ed. Note. — FOr other cases, see Indictment and Information, Cent. Dig. §§ 419-423; Dee. Dig. § 130.*]</p> <p>2. Post Office (§ 48*) — Misuse of Mails —“Scheme to Defeaud” — Indictment.</p> <p>An indictment for violating Rev. St. § 5480, as amended by Act Cong. March 2, 1889, c. 393, § 1, 25 Stat. 873 (TJ. S. Comp. St. 1901, p. 3696), prohibiting the use of the United States mails in furtherance of a “scheme or artifice to defraud,” must allege, not only that the defendant had devised a scheme or artifice to defraud, but must also plead facts showing what the artifice was, wherein the fraud consisted, and how it was to be accomplished, the words “scheme or artifice” not being equivalent to a plan or mode of effecting a fraud, but must be a plan so cunningly devised and presented as to appeal to human passion for gain, by untruthful and seductive embellishment of advantages, begetting confidence where it would not otherwise be bestowed; and hence. an indictment merely charging that defendant caused another to order1 a diamond ring from complainant to be paid for on the installment plan, through the United Stales mails, with the intent not to pay for the same, did not charge a scheme to defraud, and was therefore insufficient.</p> <p>[Ed. Note. — Por oilier cases, see Post Ofiice, Dec. Dig. § 48.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 0342.</p> <p>Nonmailable mal ter, see note to Timmons v. United States, 30 C. C. A. 79.J</p>

. In Error to the Circuit Court of the United States for the Southern District of Iowa. : Action by Charles Austin against the Barber Asphalt Paving Company. There was a judgment for plaintiff, and defendant brings error. This was a suit to recover damages for injuries alleged to have been occasioned by the negligence of the defendant company in maintaining an open manhole on its premises into which plaintiff fell and sustained an injury.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Action by Sarah A. Jackson against the Mutual Eife Insurance Company of New York. Judgment for defendant, and plaintiff brings error.</p>

Bill by William J. Hagadorn and others against Street Grading District No. 60 of kittle Rock, Arkansas. From the decree, defendant appeals. The statutes of Arkansas (section 5664 et seq., Kirby’s Digest 1904) empower any 10 resident owners oí real property in any portion of a city of the first or second class to petition the city council to take steps toward making improvements in streets, alleys, and sewers.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Bill by Eben W. Kimball,- receiver, against Charles M. Connor. Judgment for plaintiff, and defendant appeals.</p>

Bill by C. A. Benton and others against King Dumber Company and others. From an order granting an injunction pendente lite, defendants appeal.

<p>1. Bankruptcy (§ 414*) — Application for Discharge — Evidence.</p> <p>While the ordinary rules of evidence control in the contest of a bankrupt’s discharge, the proof must be strict and convincing to justify a refusal of the bankrupt’s application, though not necessarily such as to establish the objections beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cení. Dig. §§ 720-722; Dee. Dig. § 414.*]</p> <p>2. Bankruptcy (§ 414*) — Application foe Discharge — Oiweotions—Evi-dence.</p> <p>On objections to a bankrupt’s discharge, evidence held insufficient to sustain a finding that the bankrupt failed to keep books of account, or that he concealed or destroyed them so as to prevent his financial condition from being ascertained.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. § 722; Dec. Dig. § 414.*]</p>

'Appeal from the Circuit Court of the United States for the Northern District of Mississippi. Bill by F. T. Fleitmann and others composing the firm of Fleitmann & Co. against the John M. Stone Cotton Mills. Decree for defendant, and plaintiffs appeal.

<p>1. Clerks ot? Courts (§ 74*) — Action on Bond — Cause of Action-Damages.</p> <p>Id an action on the bond of a Circuit Court clerk for refusing to enter a default judgment in favor of the use plaintiff in a garnishment proceeding, he was not entitled to recover, in the absence of proof that there were funds of the defendant in tlio hands of the garnishee subject to garnishment.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 127; Dec. Dig. § 74.*]</p> <p>2. Courts (§ 344*) — State Practice — Return Dat — Federal Courts.</p> <p>Rev. St. § 914 (U. S. Comp. St. 1901, p. 684), requiring Circuit Courts to conform to the state practice as near as may be, etc., does not require conformity with reference to return days for summons; such courts, as to that, being governed by their own rules.</p> <p>[Ed. Note; — For other cases, see Courts, Cent. Dig. § 917; Dee. Dig. § 344.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Rife Ins. Co. v. Hall, 27 C. C. A. 392.]</p>

Habeas corpus proceeding, on the relation of Antonios Bougadis, "against William Williams, Commissioner of Immigration. From an order discharging relator, the Commissioner appeals. On appeal by the Commissioner of Immigration from an order of the Circuit Court for the Southern District of New York, made in habeas corpus proceedings, discharging the appellee, Antonios Bouga-dis, who was held by virtue of a warrant issued by the.

<p>1. Rankruptct (§ 149*) — Partnership—Adjudication Against Partner.</p> <p>Bankr. Act July 1, 1898, c. 541, § 5h, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), which provides that, “in the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy unless by consent of the partner or partners not adjudged bankrupt; but such partner or partners * * * shall settle the partnership business as expeditiously as its nature will permit and account for the interest of the partner or partners adjudged bankrupt,” applies only to a case where less than all of the. members' of a partnership, but not the partnership, hare been adjudged bankrupt.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent Dig. § 229; Dec. Dig. § 149.*]</p> <p>2. Bankruptcy (§§ 54, 69, 149*) — Partnership—Eitect op Adjudication— Estates op Membebs.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 5, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3424), a partnership is a legal entity, which may be adjudged a bankrupt irrespective of an adjudication against any of its members: but in an involuntary proceeding, where the act of bankruptcy charged is one that involves insolvency of the partnership, there can be no adjudication against it, unless it and all its members are insolvent, and in such a case, though the adjudication be against the partnership only, or against the partnership and some, but not all, of its members, the estates of all the members are drawn into the proceeding for administration. ■</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. §§ 54, 69, 149.*]</p>

Petition for Review of Order of the District Court of the United States for the Western District of Pennsylvania. In the matter of bankruptcy proceedings against Henry C. Menke & Co. On petition of William Sunderman, as trustee, etc., for an order directing the sale of the interest of Henry C. Menke in certain real estate owned by him individually and as a tenant in common.

<p>1. Jury (§ 28*) — Waiver—Record—Sufficiency.</p> <p>A recital in a .judgment that both parties, announcing “Ready for trial” formally waived a jury in open court, is insufficient to show waiver of jury by written stipulation, as required by Rey. St. § 649 (U. S. Comp. St. 1901, p. 525)..</p> <p>[Ed. Note. — For other cases, see Jury, Dee. Dig. § 28.*]</p> <p>2. Appeal and Ebbob (§ 553*) — Recoed—Sumtciency.</p> <p>A substitute for a formal bill of exceptions, indorsed by the trial' judge, “The foregoing contains the agreed record,” held not to constitute.a finding of facts, or agreed statement of facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 553.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern Dis* trict of Georgia.</p> <p>Criminal prosecution by the United States against the American Naval Stores Company, Edmund S. Nash, and others. From a judgment of conviction, defendants bring error.</p>

<p>• Appeal from the Circuit Court of the United States for the Southern District óf Georgia.</p> <p>Suit in equity by Rollin J. Nelson against the Americus Manufacturing Company. Decree for defendant, and complainant appeal's.</p>

Suit in equity by James Bredin, Charles H. Bredin, and Hugh F. Kenny against the National Metal Weather Strip Company. Defendant appeals from a final decree (182 Fed. 654) awarding profits and damages.

<p>1. Patents (§ 328*) — Validity and Infringement — Vegetable Topping Machine.</p> <p>The Vrooman patent, No. 676,549, for a vegetable topping machine, claims 1, 3, 4, 6, and 7 held valid and infringed.</p> <p>2. Patents (§ 325*) — Costs—Persons Liable — Joint Defendants — Discretion of Court.</p> <p>In a suit against joint wrongdoers as infringers of a patent, it is only in rare and exceptional cases, where one defendant has participated only in a trivial or almost wholly unrelated manner, that the court will exercise its discretion in his favor by relieving him from full liability for costs.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 325.*]</p>

In Equity. Suit by William B. Palmer and Jesse V. Palmer against the Jordan Machine Company for infringement of letters patent No. 878,995 for apparatus for inverting tubular fabrics, granted to William B. Palmer February 11, 1908. On final hearing.

<p>In Equity. Suit by the New Jersey Patent Company and the National Phonograph Company against Edward ET. Martin. On citation for contempt.</p>

<p>1. Patents (§ 114*) — Suit to Obtain Patent — Laches.</p> <p>Tbe remedy by bill in equity to obtain a patent which has been refused by the Patent Office, given by Rev. St. § 4915 (U. S. Comp. St. 1901, p. 3S92), is a part of the application for the patent, and is governed by the rule as to laches declared by Rev. St. § 4894 (U. S. Comp. St. 1901, p. 3384), which provides that the failure of an applicant to prosecute his application within one year after any action therein shall be regarded as an abandonment, unless it be shown that the delay was unavoidable.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 166; Dee. Dig. § 114.*]</p> <p>2. Patents (§ 114*) — Suit to Obtain Patent — Laches—Unavoidable Delay.</p> <p>An allegation in a bill to obtain the issuance of a patent under Rev. ■St. § 4915 (U. S. Comp. St. 1901, p. 3392), filed more than a year after the application was refused by the decision of the Court of Appeals of the District of Columbia in interference proceedings, that complainants brought suit within the year- against the successful applicant, to whom the patent was granted, and learned for the first time after such suit had been pending for several months that the defendant had assigned the patent, whereupon that suit was dismissed and the present one was brought against the assignee, does not show that the delay was “unavoidable,” within the meaning of Rev. St. § 4894 (U. S. Comp. St. 1901, p. 3384); there being no allegation that the assignment was not recorded, nor that complainants had no means of ascertaining the fact of the assignment.' •</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 166; Dec. Dig. § 114.*]</p> <p>3. WOBDS AND PlIKASES-“UNAVOIDABLE DELAY.”</p> <p>A delay caused by negligence is 'not' “unavoidable.”</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Pulley fob Hay Cab-biebs.</p> <p>Tbe Louden patent, No. 515,296, for a round-topped swinging pulley for bay carriers,. was not anticipated, and discloses patentable novelty; also held infringed.</p> <p>2. Patents (§ 328*) — Novelty—Hay Cabeieb.</p> <p>Tbe Louden patent, No. 620,467, for an improvement in grappling books for bay carriers, is void for lack of novelty.</p> <p>3. Patents (§ 328*) — Validity and Infringement — Hay Cabeieb Mechanism.</p> <p>Tbe Louden patent, No. 555,605, for a locking dog for track bangers for bay carriers, held valid, but, as limited by tbe prior art, not infringed.</p>

<p>In Equity. Suit by May E. Doble against the Pelton Water Wheel Company for infringement of letters patent, reissued No. 12.460, for á hydraulic nozzle, granted to William A. Doble June 22, 1909.</p>

<p>In the matter of bankruptcy proceedings of Frank W. Woodman. On petition to review a referee’s order denying the petition of the National Biscuit Company to reclaim certain biscuit containers.</p>

In the matter of bankruptcy proceedings of Fred W. Vaine. On order to show cause why the time of the bankrupt to file his petition for discharge should not be extended after the expiration of the year subsequent to adjudication.

<p>1. INSURANCE (| 586*) — INTEREST TO BlINEEICIARY.</p> <p>AVhere a policy provided that it should be paid to the beneficiary of insured last designated on the back of the policy, if living, one so designated, under the Wisconsin law, took a vested interest in the policy, subject only to the possibility that she might assign or surrender the policy and destroy such interest.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1170; Dee. Dig. § 586.*]</p> <p>2. Bankruptcy (§ 113*) — Beneeiciary’s Interest in Policy — Rights ox*’ Trustee.</p> <p>Where a bankrupt was designated as beneficiary in a policy on the life of his mother, which directed that it should be paid to the beneficiary of the insured last designated on the back of the policy, if living, and the insured died four days after the filing of the bankruptcy petition, leaving the bankrupt as a designated beneficiary, his interest in the policy was one which he could have transferred, and which therefore vested in the trustee under Bankr. Act July 1, 1898, c. 541, § 70a, 30 Slat. 565 (Ü. S. Comp. St. 1901, p. 3451), providing that the trustee is vested with all property which, prior to the filing of the petition, the bankrupt by any means could have transferred.</p> <p>[Ed. Note.. — For other cases, see Bankruptcy, Dec. Dig. § 143.*]</p>

<p>1. Master and Servant (S 311*) — Injuries to Servant — T.iabjlity of Feu-now Servant.</p> <p>Negligence of a superintendent in failing to see that a ladderway in the mino was in reasonably safe condition, resulting in injury to plaintiff, A fellow servant, constituted mere nonfeasance in failing to perform a positive duty of the master, for which such superintendent was not liable, under the rule that a .servant is not. liable to third persons or coemployes for nonfeasance.</p> <p>[Ed. Note. — For other pases, see Master and Servant, Cent. Dig. $ 1236; Dec. Dig. § 311*1</p> <p>2. Removal of Causes (§ 36*) — Joinder of Resident Defendants -Separable Controversy — No Cause of Action.</p> <p>Where plaintiff joined a resident coemployd as a party defendant to an action against his nonresident corporate employer to recover for injuries alleged to have resulted because of the master’s negligent failure to provide plaintiff with a reasonably safe place in which to work, and the complaint on its face disclosed no cause of action against such resident defendant, his joinder was fraudulent, and no bar to a removal of the cause to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*</p> <p>Fraudulent joinder of parties to prevent removal, see note to Qffner v. Chicago & E. R. Co., 78 C. C. A. 362.]</p>

<p>1. Carriers (§ 37*) — 'Transportation or 'Cattle — 28-Hour Law — Failure to Furnish Water.</p> <p>Where cattle were transported in patent cattle cars, equipped with troughs affording an opportunity to water them without unloading, but the cattle were kept in the cars for a period longer than that authorized by statute, without water being introduced in the troughs for at least a part of the cattle, the carrier was liable for the penalty provided by the 28-hour law (Act .Tune 29, 1906, c. 3591, 34 Stat. 607 [U. S. Comp. St. Supp. 1909, p. 1178]).</p> <p>riSd. Note. — For other cases, see Carriers, Dee. Dig. § 37.*]</p> <p>2. Carriers (§ 37*) — Transportation oe Cattle — Space.</p> <p>Where, in the shipment of cattle from Chicago to New York, one of the cars, 36 feet long, contained 21 bulls, tied side by side to alternate sides of the car, and in a number of other cars from 18 to 19 large cattle were carried, the cars were too heavily loaded; it appearing by wn-contradicted proof that cattle under transportation should have at least 2]/> feet of space for each animal.</p> <p>[Ed. Note.- — -For other cases, see Carriers, Dec. Dig. § 37.*]</p>

<p>Suit by tlie United States of America by Charles E. Gfidley to set aside a patent to land.</p>

<p>In Equity. Suit by S. Duffield Mitchell against the Big Six Development Company. On demurrer to supplemental bill.</p>

<p>In Admiralty. Suit by William Munroe and others, as owners of the steamer Markham, against the City of Chicago.</p>

<p>1. Evidence (§ 461*) — Testimony Affecting Writings — Admissibility.</p> <p>Under an agreement, in a note secured by collateral, that the securities should be applicable to any other obligation held by the payee, parol evidence offered by the payee is not admissible to show that the parties understood that the collateral was to cover the debts of the pledgor’s firm.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*]</p> <p>2. Partnership (§ 187*) — Pledges—Application of Collateral.</p> <p>An agreement, in a note secured by collateral, that the securities should he applicable to any other obligation held by the payee, entitles the payee to apply surplus proceeds of the collateral to an obligation of a firm of which the maker is a partner.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 340, 342; Dec. Dig. § 187.*]</p>

Complaint by the Washington Water Power Company against Charles Waters and others to condemn land for the flowage of Coeur d’Alene Rake incident to the construction of an electric power plant. On demurrer to plaintiff’s third amended complaint.

<p>1. Bankruptcy (§ 20*) — Jurisdiction op Bankruptcy Court — Jurisdiction op State Court.</p> <p>An order of a state chancery court appointing a receiver of an insolvent corporation subsequently adjudged a bankrupt entered after the adjudication of bankruptcy which, allows a fee for the attorneys of the receiver for services rendered by them in the chancery court, and which adjudges that the fee shall be a priority claim constituting a lien on the assets of the corporation, is void because outside of the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dee. Dig. § 20.*]</p> <p>2. Bankruptcy (§ 20*) — Jurisdiction op Bankruptcy Court — Jurisdiction op Court.</p> <p>The bankruptcy jurisdiction when properly invoked in bankruptcy proceedings against a corporation supersedes prior proceedings in the state court for winding up the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p> <p>The compensation allowed attorneys for professional services in bankruptcy-proceedings is a priority claim payable out of the assets of the estate of the bankrupt.</p> <p>3. Bankruptcy (§ 347*) — Fees op Attorneys.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 538; Dec. Dig. § 347.*]</p> <p>4. Bankruptcy (§ 347*) — Fees op Attorneys.</p> <p>The compensation for legal services rendered the receiver in a state court of a bankrupt prior to adjudication of bankruptcy, which services are beneficial to the estate, is a preferred claim in the right of the receiver, and is part of his expenses in the preservation and care of the estate.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Dec. Dig. § 347.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of E. B. Havens & Co. On petition of certain creditors for the payment of dividends declared on stocks alleged to have been in the hands of the bankrupts bélonging' to the claimants at the time of their assignment for the benefit .of creditors,, and received by the assignee subsequent to the filing of petition in bankruptcy and before election of the trustee.

<p>1. Bankruptcy (§ 336*) — Claims—Amendment After Limitation.</p> <p>A trustee under a mortgage- given to secure bonds of tbe bankrupt corporation filed a petition before tbe referee in bankruptcy setting up tbe mortgage and praying that it be declared a first lien, that the property be sold for cash, and tbe proceeds applied to tbe mortgage, with a prayer for other and further relief. Issue being joined, -testimony was taken and tbe bonds introduced in evidence. Tbe mortgage having been held void and the determination having been affirmed by the United States Supreme Court, more than a year after the institution of bankruptcy proceedings, the owner of the bonds filed a claim on the bonds as a general creditor within 00 days after such affirmance. Held that, though the proceedings by the trustee under the mortgage did not constitute a sufficient proof of claim within Bankr. Act July i, 1898, c. 641, §1 57a, 571), 30 Slat. 500 (U. S. Comp. St. 1901, p. 3443), such proceeding, having disclosed all the facts necessary to show a valid claim against the estate. was amendable after the expiration of the year so as to disclose a valid claim.</p> <p>[ICd. Note. — For other cases, see Bankruptcy, Dee. Dig. § 330.*]</p> <p>2. Bankruptcy (§ 328*) — Claims—“Liquidation.”</p> <p>Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561. (TI. S. Comp. St. 1901. p. 3444), declares that claims shall not be proved against a bankrupt’s estate subsequent to one year after the adjudication, or, if liquidated, by litigation, and tbe final judgment is rendered within 30 days before or after the expiration of such time, then within 60 days after the rendition of such judgment. Held, that the term “liquidation,” as so used, was not limited to proceedings having for their object only the ascertainment of the amount due on the claim, but included as well proceedings to ascertain the kind and character as well as the amount of the claim, and hence proceedings against a bankrupt’s estate to establish certain bonds as a preferred lien on tbe bankrupt’s assets covered by mortgage given io secure the bonds were proceedings for liquidation, so that, on adverse determination, the bondholders were entitled within 00 days to filo their claims on the bonds as general creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 328.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4180.]</p>

<p>1.- Monopolies (§ 10*) — Federal Anti-Trust Act — Penal Provisions — Constitutionality.</p> <p>The penal provisions of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p: 3200), making it a misdemeanor to engage in any combination or conspiracy in restraint of interstate commerce or to monopolize or attempt to monopolize any part of such commerce, are constitutional.</p> <p>[Ed. Note. — For other cases, see Monopolies,' Dee. Dig. § 10.*]</p> <p>2. Monopolies (§ -31*) — Federal Anti-Trust Act — Indictment por Violation— Sufficiency.</p> <p>Counts of an indictment charging conspiracy to restrain and monopolize interstate trade and commerce in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p . 3200), considered, and held to sufficiently charge and describe the offense.</p> <p>[Ed. Note.- — For other cases, see Monopolies, Dec. Dig. § 31.*}</p> <p>■ 3. Indictment and Information (§ 125*) — Duplicity—Violation op' Feder- ■ al Anti-Trust Act.</p> <p>Under Sherman Anti-Trust Act July 2, 1890, c. 647. § 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), which makes it a misdemeanor to “monopolize or attempt to monopolize * * * any part of the trade or commerce among the several states or with foreign nations,” monopolizing and attempting to monopolize such commerce are separate offenses and cannot be included in one count of an indictment. •</p> <p>[Ed. Noté. — For other cases, see Indictment and Information, Dec. Dig. § 125.*]</p>

<p>Nelson T. Zumwalt was indicted for furnishing liquor to -a Nez Perce Indian. On demurrer to indictment.</p>

<p>Action by Henry Vollmer, as trustee in bankruptcy of Frederick Plage, individually and as a member of the firm of Young & Plage, and by Henry Plage as trustee in bankruptcy of Frederick Plage, individually and as a member of the firm of Young & Plage, against Henry and Frederick Plage.</p>

' In Equity. Suit by Wm. S. Lovell, as trustee in bankruptcy of Knight, Yancey & Co., against Latham & Co. and others, in which Knauth, Nachod & Kuhne filed a cross-bill. On motion to strike cross-bill.

Habeas corpus by the' United States, on the relation of Alfred Ruiz, against S. E. Redfern, as Commissioner of Immigration, and others, to obtain relator’s release from the custody of the defendant under deportation warrant.

<p>1. Reference (§ 89*) — Referee’s Reporiv-Findings op Pact and Law.</p> <p>Where a case is referred to the referee, merely to summarize conflicting testimony on material points is not a sufficient finding of the ultimate facts, under Acts Pa. 1874 (P. L. 109, 166), requiring a referee to state separately and distinctly the facts found, as distinguished from the evidence concerning such facts, the answers to such points as may he submitted, and his conclusions of law.</p> <p>[ICd. Note. — For other cases, see Reference, Cent. Dig. §§ 135-140; Dec. Dig. § 89.*]</p> <p>2. Reference (§ 89*) — Findings of Fact — General and Smcoial Findings.</p> <p>Where a referee is not required to make specific findings of fact, general findings that are equivalent to specific statements are sufficient.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 135-140: Dec. Dig. § 89.*J</p>

<p>Application of George Shapiro for naturalization.</p>

In the matter of bankruptcy proceedings of the Van Wert Machine Company. On petition for review of orders by a referee allowing the claim of Cora E. Wilson Fitz Gerald for wages as a claim having priority to the extent of $300, and a similar claim of Ernest Fitz Gerald claiming priority to the extent of $260.

<p>Appeal from the District Court of the United States for the Northern District of Ohio.</p> <p>Action in admiralty by John R. Preston against tbe Jenkins Steamship Company. Decree for libelant, and respondent appeals.</p>

<p>1. INDICTMENT AND INFORMATION (§ OS*)-SUFFICIENCY.</p> <p>An indictment will not be held insufficient on an objection first made after going to trial, on the ground that the facts were stated more by way of recital than directly; all the elements of the offense being set out.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 200; Dec. Dig. § 93.*]</p> <p>2. TNBIOTMENT AND INFORMATION (§ 196*)-USING MAILS TO DEFRAUD — INDICTMENT — SUFFICIENCY.</p> <p>As against objection to testimony or motion in arrest, an indictment for using tbe mails to defraud sufficiently charged that a letter was intended to be sent or delivered by the post office department, where it stated that accused deposited and caused to be deposited in a particular post office a certain envelope, duly stamped and sealed, and addressed to certain persons.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. I>ig. §g 628-035; Dee. Dig. § 196*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. O. A. 79.]</p> <p>8. Cmminap Law (§ 369*) — Evidence of Otiikr Offenses — Admissibility.</p> <p>In a trial for using the mails to defraud, it was error to admit evidence of one of the defendant's conviction of other offenses, where his character was not put iu issue.</p> <p>fEd. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 822-824; Dee. Dig. 3 369.*]</p> <p>4. Fines (g 17%*) — Abatement—Death of Accused.</p> <p>A fine for an offense abated with accused’s death, especially where the judgment was reversed for error, entitling his estate to a fund deposilcd to secure its payment.</p> <p>[Ed. Note. — For other cases, see Fines, Dec. Dig. § 17%.*]</p>

<p>Iri 'Error to-the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Roland Register was convicted of offenses, and he brings error.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. Suits in equity by Colt’s Patent Firearms Manufacturing Company and John M. Browning against the New York Sporting Goods Company (two cases), and by the Victor Talking Machine Company and another against William H. Hoschke and the Sonora Phonograph Company. On motions by complainants in each case, who are appellants, to be relieved from payment of clerk’s supervision fee.

<p> (Syllabus by the Court.) </p> <p>1. Damages (§§ 38, 40*) — Personal Injury — Evidence of Personal Earnings Admissible — Profits of Labor and Capital Combined Inadmis- " .BIBLE. ,</p> <p>In action for damages for personal injury, the profits of a business or of the performance of a contract derived from the combination of capital and labor do not constitute a sound basis for estimating the earning capacity of the injured person, who furnishes a part of the labor. .</p> <p>But one whose earnings are derived from the use of his labor, skill, or knowledge, without the use of substantial capital, may prove the amount of such earnings at and for a reasonable time' before the occasion of his wrongful injury, and a decrease thereof caused by the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88, ,237-241; Dec. Dig. §§ 38, 40.*]</p> <p>.2. Damages (§ 172*) — Pebsonal In.j toy — Facts—Conclusion.</p> <p>H. made a contract; with a railroad company to- load cars with gravel for a specified amount per cubic yard, and to furnish at Ms own («pense all the teams, tools, scrapers, equipment, labor, powder, and other explosives necessary to do the work. lie was injured while he was engaged in the performance of this contract, and over the objection of the defendant below he was asked and answered the question: “What were your earnings at the time of 1lie accident?”</p> <p>ITcM, tliero was error in admitting this evidence as a basis for estimating his personal earnings, because the answer necessarily included the profits from his contract.</p> <p>|Kd. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492; Dec. Dig. § 172.*]</p>

Tn the matter of the estate of William C. Manley, bankrupt. Petition by the W. A. Paterson Company to revise an order affirming an order of the referee expunging petitioner’s claim.

<p>1. Patents (§ 328*) — Invention—Recuse Bum-craft Ftjenace.</p> <p>The Stevens patent, No. 843,971, lor a refuse burner to consume the waste product of sawmills, having a water jacket formed by an outér and inner cylindrical iron shell, discloses hut a single novel feature over those of the prior art, which is in employing braces between the two shells having a slot at the inner end through which the connecting bolt passes to secure them to a radial circumferential flange on the inner shell, which gives a slidable connection and allows for the expansion and contraction of the inner shell, and such feature does not involve invention, especially in view of the use of similar connections in the construction of boilers, which is an analogous art.</p> <p>2. Patents (§ 311*) — Suits fob Infringement — Evidence.</p> <p>Evidence of anticipation by prior devices and of prior use is admissible-in a patent suit to show the prior state of the art, although no notice of it was given in the answer.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 542; Dec. Dig. § 311.*]</p>

<p>Patents (§ 259*) — “Contributory Infringement” — What Constitutes.</p> <p>“Contributory infringement” exists when one knowingly concerts or acts with another in an unlawful invasion of a patentee’s rights. If suck assistance is given by furnishing an essential part of an infringing combination and the part furnished is adapted to no other use than an infringing use, such contribution makes him a contributory infringer; but, if the part furnished is adapted to other and lawful uses, in addition to infringing uses, then an intent to furnish for infringing use must be established before the furnisher can be held a contributory infringer.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 400-102; Dec. Dig. § 259.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1540.]</p>

<p>Patents (§ 310*) — Suit fob Ikfkixgemext — Multifakiousness of Bill.</p> <p>' A bill for infringement of a patent against three defendants, alleging past and completed acts of infringement against two, a second cause of action against one of such two for continuing infringement by use of the Infringing article, and a third cause of action against all the defendants, growipg out of a different and uncompleted transaction, is demurrable for multifariousness.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 518; Dec. Dig. f 310.*]</p>

<p>Patents (§ 326*) — Suits fob Infeingement — Violation of I njunction — Oon-TKXBUTOEY INFRINGEMENT.</p> <p>Defendants had been enjoined from infringing complainant’s patent for a moving picture machine. An applicant for employment by them as stage director of the taking of moving pictures, in order to demonstrate his efficiency, arranged to take a series of pictures on two occasions, employing the actors and camera man, who used one of the infringing machines. The films were delivered to defendants, who also paid all the expenses of the taking. Held, that the man in charge acted as their agent, and that they were chargeable as contributory infringers, and subject to punishment for contempt for violation of the injunction.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 326.*]</p>

<p>Depositions (§ 55*) — Time fob Taking — Extension—Presumptions.</p> <p>Equity rule 09, providing tliat 3 months, and no more, shall be allowed lor taking testimony, unless the time shall be enlarged by the court, and that no testimony taken alter that period shall be allowed to be read in evidence, does not preven! the court, either on stipulation or for cause, from enlarging the time on motion, and it would be presumed that an enlargement of the time during the 90 days had been agreed on, where neither party completed his proof within the time, or whore testimony is taken without objection after the time has expired, and neither party has moved to apportion the time, or to set the cause down for final hearing on bill and answer, or to dismiss.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 120-12-1; Dec. Dig. § 55.*]</p>

In Equity. Suit by the Bouvier-Iaeger Coal Land Company against Howard H. Sypher and others. On March 4, 1795, Robert Morris obtained from the commonwealth of Virginia a patent for a tract of 320,000 acres of land then lying in the counties of Wythe and Russell, now lying mainly in McDowell and Wyoming counties, W, Vá.

<p>In Admiralty. Petition by the Metropolitan Steamship Company, owner of the Steamship H. F. Dimock, for limitation of liability. On exceptions to report of commissioner to ascertain value.</p> <p>The steamship above named collided with another vessel while on a voyage from New York to Boston, and received such injuries that she required the services of salvors. She succeeded, however, in completing her voyage and delivering her cargo in a partly injured condition. She then returned to New York, and there instituted proceedings for q limitation of liability. It was referred to a commissioner to ascertain her value for purposes of giving bond in the limitation proceedings. The report of the commissioner having been filed, this hearing was had on exceptions thereto.</p>

<p>Actions by Sallie Bilger, Fitch, Kahler, and Hughes against Jeremiah Nunan and others.</p>

<p>ALIENS (§ 54*) — Deportation—Limitation.</p> <p>Under Act Cong. March 3, 1903, c. 1012. 32 Stat. 1213, and Act Cong. Feb. 20, 1907, c. 1134, §§ 20, 23 , 34 Stat 904, 905 (U. S. Comp. St. Supp. 1909, p. 459), providing l'or the deportation of aliens unlawfully in the country within throe years after landing, the government is entitled to the whole of the last day of the three years in which to make the arrest, prescription being interrupted by the arrest, and to a reasonable time in which to carry out the sentence of deportation.</p> <p>[Ed. Note.- — For other cases, see Aliens, Dee. Dig. § 54.*)</p>

<p>At Law. Action by Walter Niedner, as receiver of the Farmers’ & Traders’ National Bank of La Grande, Or., against A. B. Thomson. Judgment for plaintiff.</p>

<p>Aliens (§ 40*) — Deportation at Carrier’s Expense — Time Limit — Statutes —Retroaction.</p> <p>Act Coug. March 26, 1910, e. 128, 36 Stat. 263, abrogating the three-year time limit for deportation of aliens at the expense of the carrier by which they unlawfully entered, • does not operate retroactively, and hence does not apply to an alien prostitute, where the three-year limit expired in February, 1908.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 40.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by E. C. Harley against the Reading Finance & Securities Company. Judgment for plaintiff (183 Eed. 1023), and defendant briugs error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Proceeding by Horace E. Campbell, trustee in bankruptcy of the estates of 'Morris Magen and Jacob Magen, individually and as partners, trading as Magen Bros. Company, against Morris Magen and Jacob Magen for contempt. From an order (179 Fed. 572) adjudging the respondents guilty, they bring error.</p>

Bill by the United States Wood Preserving’ Company against John II. Sundmaker, Director of Public Service of the City of Cincinnati, Ohio, and others. The bill having been dismissed on demurrer, complainant appeals. The complainant, an unsuccessful bidder for a public contract, filed a bill to enjoin the performance of and annul the contract awarded to a competitor, and to compel the acceptance of its bid and the execution of a contract with it.

<p>1. United States (§ 11*) — Voters—Qualification—Representation in CONGRESS.</p> <p>Const, art 1, § 1, vests all legislative power granted in a Congress to be composed of a Senate and House of Representatives, and section 2 declares that the House of Representatives shall be composed of members chosen every second year by the people of the several states, and that the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state Legislature. Meld that, though the states may prescribe the qualifications of voters for the most numerous branch of their own Legislatures, they do not in prescribing such qualifications directly prescribe the qualifications of voters for representation in Congress, though under such constitutional provision the qualifications are the same in each case; the right to vote for a member of Congress being fundamentally based on the federal Constitution creating the office and prescribing the qualifications of voters therefor.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 7; Dec. Dig. § 11.*]</p> <p>2. ConspiRact (§ 29*) — “Privilege” of Citizens — “Right.”</p> <p>The right or privilege to vote at an election for a member of the House of Representatives of the United States is a right or privilege secured by the Constitution of the United States, and such right is therefore within the meaning of section 5508 of the Revised Statutes of the United, States (U. S. Comp. St. 1901, p. 3712).</p> <p>[Ed. Note. — For other eases, see Conspiracy, Cent. Dig. §§ 42-52; Dee. Dig. § 29.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5583-5589: yol. 8, p. 7704; vol. 7, p. 6220-6224; vol. 8, p. 7790.]</p> <p>3. Conspiracy (§ 29*) — To Oppress or Intimídate — Statutes—Application.</p> <p>Rev. St. § 5508 (U. S. Comp. St. 1901, p. 3712), provides that if two or more persons conspire to oppress, threaten, or intimidate “any citizen” in the free exercise or enjoyment of any right or privilege secured hy the Constitution or laws of the United States, or because of his having so exercised the same, they shall be fined, etc. Held, that such section was not intended for the sole protection of the civil rights of citizens of African descent, depending entirely on the federal Constitution and laws passed in accordance therewith, but protected all citizens in the civil rights guarantied and secured to them by the Constitution and laws of the United States.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 42-52; Dec. Dig. § 29.*]</p>

Suit in equity by the Keystone Type Foundry against the Portland Publishing Company. From a part of the decree (180 Fed. 301), denying complainant certain relief, it appeals.

Petition for Revision of Certain Orders in Bankruptcy of the United States District Court for the Northern Division of. the Western District of Washington. Held: that the bankrupt should only receive in cash With regard to the homestead claim, the findings of fact and conclusions of the referee were as follows; “That on the 15th day of April, 1909, the bankrupt paid a deposit of $200 on the purchase price of the property now claimed as homestead.

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action at law by N. Eord Brent against the Charles H. Lilly Company. Judgment for plaintiff (174 Fed. 877), and defendant brings error.</p>

Action by Boise City, Idaho, against the Boise Artesian Hot & Cold Water Company, Limited. Judgment for defendant, and plaintiff brings error. The plaintiff in error was plaintiff in the court below, where it brought the action to recover from the defendant certain license fees imposed by one of its ordinances, enacted in 1906. The facts of the case are undisputed.

<p>In Error to the District Court of the United States for the District of Oregon.</p> <p>William Hanley was convicted of a criminal offense, and brings error.</p>

<p>1. Insurance (§ 334*) — Policy—Construction—'Warranties.</p> <p>Where a Are policy authorized additions, alterations, and repairs without limit of time, and also provided that insured warranted that due diligence should be used that the automatic sprinkler system should at all times be made in good order, insured was only bound during the making of repairs to its mill and sprinkler system to use due diligence to maintain the system in good working order.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 847-855; Dec. Dig. § 334.*]</p> <p>2. Trial (§ 139*) — Direction op Verdict — Evidence.</p> <p>Tn an action at law on a Are policy, the court was not authorized to withdraw an issue as to whether plaintiff had used due diligence to keep its sprinkler system in good order from the jury, and direct a verdict for defendant, uuless plaintiff’s evidence considered in its most favorable light was such that all reasonable men must draw therefrom the conclusion that plaintiff had not used due care.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. § 139.*]</p> <p>3. Insurance (§ 608*) — Sprinkler System — Maintenance—Question for Jury.</p> <p>In an action on a Are policy, evidence held to require submission of the question of plaintiff’s due care in maintaining its sprinkler system in working order to the jury.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 668.*]</p>

<p>Pilots (§ 7*) —Power of States to Control and Regulate — Federal Statute-Coastwise Vessels.</p> <p>The federal statutes (Rev. St. §§■ 3126, 4401, 4444 [U. S. Comp. St. 1901, pp. 2036, 3016, 3037]) respectively authorize (section 3126) registered vessels of the United States to engage in the coastwise trade, with the privilege of touching at one or more foreign ports during the voyage; provide (section 4401) that all coastwise seagoing vessels shall be subject to the navigation laws of the United States, and every coastwise seagoing steam vessel subject to such laws “not sailing under register” shall when under way, except on the high seas, bo under the control and direction of pilots licensed by the inspectors of steamboats; and prohibit (section 4444) any state or municipal government from requiring pilots of steam vessels to procure a state or other license in addition to that issued by the United States, and from levying pilot charges upon any steamer piloted as provided therein, provided that, “nothing in this title shall be construed to annul or affect any regulation established by the laws of any state requiring vessels entering or leaving any port of such state, other than coastwise steam vessels, to take a pilot duty licensed or authorized by the laws of such state or of a state situate upon the waters of such state.” HeW, that the exception in section 4401 from those vessels thereby made subject to the pilotage laws and regulations of the United States of vessels “sailing uuder register” includes only such vessels engaged in foreign commerce, and that under such provisions, construed together, the state of California is without power to levy pilotage charges on registered vessels, entering or leaving the port of the San Francisco, which are engaged in making voyages between that port and Washington ports on Fuget Sound in charge of pilots licensed under the laws of the United States, although on each of such voyages they make a brief call at the port of Victoria, B. C., for passengers, freight, and mails.</p> <p>[Ed. Note. — For other cases, see Pilots, Dec. Dig. § 7.*]</p> <p>Gilbert, Circuit Judge, dissenting.</p>

Suit in equity by the United States against the Southern Pacific Railway Company. Decree for complainant (157 Fed. 96), and defendant appeals.

<p>Frauds, Statute or (§ 84*) — Contract foe Sate or Minino Stock — Passing of Titbb.</p> <p>Complainant was the owner of .1,300 shares of stock of defendant mining company, the certificate for which was destroyed by fire. 'Shortly afterward he made an agreement with intervener to sell him the stock for a stated price and gave a bond conditioned for its delivery within 70 days. It was further orally agreed that complainant should obtain a. letter from the secretary of the company showing that he was the owner of the stock, and that a new certificate would be issued to him on compliance with the requirement of the by-laws in that regard, and that on delivery of such letter intervener should pay for the stock. Complainant procured and delivered such letter, when intervener required, as a further condition to payment, that complainant; should execute to the company an indemnity bond required before issuance of a new certificate which complainant refused to do. Held that, since certain things were required to be done by both seller and purchaser before payment; for or delivery of the stock, the contract was clearly executory, and title lo the stock did not pass; and that, as an essentia] part; of the contract, was in parol, it, was void under Rev. Codes Idaho, § 6009. declaring such con-traéis invalid unless in writing or unless there was a delivery of some part of the property or payment of some jmrt of the purchase price.</p> <p>I Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §g 154-161 : Dee. Dig. § 84.*]</p>

<p>Iu Error to the District Court of the United States for the Northern District of California. -</p> <p>George W. Dwinnell and another were convicted of conspiracy to suborn, and they bring error.</p>

Suit in admiralty by the Simpson Dumber Company as owner of the schooner Advent against the steamer Sonoma, the Oceanic Steamship Company, claimant. Decree for libelant, and claimant appeals.

<p>In Error to the Circuit Court of the United States for the Southern District of Georgia.</p> <p>Action at law by George P. Northrop against the Columbian Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by Fred J. Bliss against the Washoe Copper Company and the Anaconda Copper Mining Company. Decree (167 Fed. 342) for defendants, and complainant appeals.

<p>In Error to the Circuit Court of the Unitedi States for the Northern District of West Virginia, at Parkersburg.</p> <p>Action by Hettie G. Taylor, as administratrix of Harry B. Taylor, deceased, against the Baltimore & Ohio Railroad Company.' Judgment for defendant, and plaintiff brings error.</p> <p>Tills is an action instituted by the administratrix oí Harry B. Taylor, deceased, against, the Baltimore & Ohio Railroad Company in the circuit court of Wood county, W. Va.. from which it was removed to and tried in the Circuit Court of the United States for the Northern District oí West Virginia: trial resulting in a judgment for the plaintiff, to which this writ of error has been sued out by the defendant company.</p> <p>The cause of action is based upon the death of the plaintiffs decedent by the alleged negligence and wrongful acts of the defendant company. Taylor was an engineer in the employ of the railroad company. At the time of his death he had been in such employ as engineer more than five years, having been promoted from the position of fireman. He was 83 years old, was a strong, vigorous man, in good health, of temperate habits, and good character, and left surviving him a wife and one child, a boy 2% years old.</p> <p>The railroad company at the time was operating among its other lines one extending from Wheeling to Kenova, in West Virginia, a distance of over 200 miles wholly along the hanks of the Ohio river. In January, 1007. the operation of this line of road had been greatly impeded by the high waters of this river, and for the three days prior to the 22d of this month operations had been altogether suspended except as to work trains engaged in the repair. On the 22d, however, the waters had so far recoded that operations had been resumed and trains wore running under special telegraphic orders between the stations of Parkersburg and Point Pleasant, a distance of about 80 miles, in or near the middle of the line. At or about 1 o’clock in the afternoon of the 23d a special train, consisting of an engine, tender, and 27 freight cars, some of which were loaded with steel rails, was ordered out of Parkersburg yard to proceed down the river or south toward Point Pleasant, subject solely to telegraphic orders. Taylor was engineer on this train. His train arrived at Ravenswood. 33 miles below Parkersburg, some time after (5 o’clock, where orders 25 and 07 were received by its conductor and Taylor, the engineer. Order No. 25 directed reduction of speed io 10 miles per hour between certain points sot forth, to 6 miles per hour between certain other points, and then set: forth: “Fill at bridge just oast of Longdale is settling. Run slow. No water at Bet art or Spillman.” The station of Bet art was 16 miles below Ra-venswood and was a telegraphic one. When the train arrived there;, the white signal was displayed. Indica ling that its block was clear, no orders were there for it. and that it was at liberty to go head. .Some 2% miles below Retart (sometimes spoken of as south and sometimes west, in the record) was a fill, some 150 feet long and 30 feet high, in the deepest place, which liad originally been a trestle; but in 1001 a stone or concrete arched culvert had been put in to ailow a small stream to pass through, and the place had been then filled with sand, gravel, and other earth material. Backwater from (he river through this arch had filled the low ground both above and below this fill to within a few feet of its top. When Taylor's train reached this fill, it was running at a speed variously estimated a( between 10 and 15 miles an hour. "When the engine went on it. the fill sank, “squashed out,” as the witnesses expressed it, the rear of the engine sank down and overturned, killing Taylor, his fireman, and a brakeman who were at the time on the engine.</p> <p>The allegations in the declaration in effect charge the railroad company with negligence, in that it did not use due and proper care in maintaining this fill and its roadbed there in a safe and proper condition; did not make proper inspection and tests to ascertain its unsafe and dangerous condition; did not employ suitable and sufficient servants to keep and maintain it in such safe condition; furnished to decedent an unusually largo, heavy, and unsuitable engine to operate his train upon the then known condition of the roadbed; that with knowledge of the unsafe and dangerous condition of this fill and roadbed it. neglected to inform Taylor thereof, as it could have done in time to avoid the accident, but, on the contrary, displayed the white signal to him at Letart, which directed him in effect to proceed with assurances of safety.</p> <p>A demurrer to this declaration was entered and overruled by the court below, and the defendant entered a plea of not guilty; its defense being in effect a general denial of liability, an assertion , of disobedience of orders by decedent, and contributory negligence and assumption of risk on his part.</p> <p>A trial by jury was had, a verdict for $10,000 damages rendered, a motion to set aside which was made and overruled, numerous exceptions to rulings of the court and to instructions given and refused were taken, and the case is now here for review upon 22 assignments of error.</p>

Libel of information by Albert J. Olivier against the Steamship Venus, Thomas F. Hyland, master, claimant; United States, inter-vener. Decree for respondent, and libelant appeals.

<p>In Equity. Suit by the Chamberlin Metal Weather-Strip Company against the Peace Metal Weather-Strip Company. On final hearing.</p>

<p>In Equity. Suit by the McCreery Engineering Company against the Massachusetts Fan Company and others. Decree for defendants.</p>

<p>In Admiralty. Suit by the Ratta & Terry Construction Company against the steamship Raithmoor. Decree for libelant.</p>

<p>Joseph Stern and others were convicted of crime. Motions in arrest of judgment and for new trial.</p>

<p>In Equity. Suit by D. H. Riley, as trustee of the Jackson Stores, bankrupt, against one Pope and others, to enforce stockholders’ liability. On application to confirm a compromise agreement.</p>

-In Bankruptcy. Tn the matter of bankruptcy proceedings of the J. 13. & J. M, Cornell Company. On application for the confirmation of a bid for the bankrupt’s assets.

<p>1. Public Lands (§ 71*) — Railload G-kant — Constkuction.</p> <p>By Act July 25, I860, c. 242, 14 Star. 239, Congress made a grant of lands in Oregon and California in aid of the construction of a railroad and telegraph line from the Central Pacific Railroad in California to Portland in Oregon, the company entitled to such lands in Oregon to be such one, organized under the laws of the state, as should he designated by the Legislature and should file its assent to the conditions of the act within one year after its passage, and thereafter complete a specilied section of its road each year and the whole, from Portland to the state line, by a lime fixed. The act provided that, if n company should fail to comply with its conditions by filing its assent, etc., the act should be null and void, and also reserved the right of Congress, having due regard 1o the rights of the companies, at any time to alter, amend, or repeal it. In 1868 it was amended (Act .Tune 25, 1868, c. 80, 15 Stat. 80) by extending the time for commencement and completion of the several sections of the road, and by Act April 10, I860, e. 27, 16 Stat. 47, a further amendment was enacted which allowed any company theretofore designated by the Legislature of Oregon to file its assent within a year thereafter, with a proviso “that the lands granted by the act aforesaid shall he sold to actual settlers only, in Quantities not greater than one quarter section to one purchaser and for a price not exceeding $2.50 per acre.” The Oregon Central Railroad Company was organized in 1867, was designated by the Legislature of the state to receive the grant in 1868, and in June, 1869, adopted a resolution assenting to the terms of the act with its amendments., which it filed in the Interior Department. It proceeded with the construction of its road, receiving patents for the lands granted coterminous with its completed sections in accordance with the act. Held, that the grant was not in praesenti, there being no grantee In existence or qualified to take at the time the act was passed: that the company acquired no rights or equities under the act until the filing of its assent by which its rights and its relation to the grant were initiated; and that it took' the lands subsequently earned subject to the proviso contained in the amendment of April 10, 1869, by virtue of which amendment alone it was permitted to, come, into such relation after the time fixed by the original act had expired.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 232; Dec. Dig. § 71.*]</p> <p>2. Public Lands (§§ 85, 117*) — Railroad Grants — Conditions—Effect of Action of Land Department.</p> <p>It is within the jurisdiction of the Land Department, before issuing patents to public lands to a railroad company under a grant, to determine whether all the conditions to entitle the company to such patents have been complied with, and its determination of all matters of fact is conclusive and not subject to collateral attack; but it is not within its province to determine whether conditions subsequent imposed in the grant have been fulfilled, and its issuance of patents from time to time as sections of the road were completed, even after such conditions subsequent had been violated as to lands previously patented, was not a waiver by the government of the right to insist on such conditions nor an adjudication that they had been complied with.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. .Dig. §§ 259, 324; Dec. Dig. §§ 85, 117*</p> <p>Decisions of Land Department — their conelusiveness and effect, see notes to Hartman v. Warren, 22 C. C. A. 38; Carson City Gold & Silver Mining Co. v. North Star Mining Co., 28 C. C. A. 344; Unita Tunnel Mining & Transportation Co. v. Creede & Cripple Creek Min. & Mill. Co., 57 C. a A. 207.]</p> <p>3. Public Lands (§ 85*) — Railroad Grants — Waiver of Conditions — “Sale.”</p> <p>A condition in a grant of lands to a railroad company, that they should be sold only to actual settlers with a limitation as to quantity and price, was not waived by the government by its acquiescence in a transfer of the entire grant to a corporation organized to succeed to all the property, rights, and franchises of the original grantee, which was not a sale within the meaning of the condition, but merely a substitution of grantees; the land still remaining subject to the condition in the hands of the transferee.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 259; Dec. Dig. § 85.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.]</p> <p>4. Public Lands (§88*) — Railroad’Grants—Waiver of Conditions.</p> <p>A breach of a condition in a grant of lands to a railroad company that the land should be sold only to actual settlers, in limited quantities, and at a fixed price, was not waived by the government because it remained silent when sales were made, in violation of such condition, where there was no action to mislead the grantee or create an estoppel.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 266-268; Dee. Dig. § 88.*]</p> <p>5. Public Lands (§ 88*) — Railroad Grants — Waiver of Conditions — Action of Executive Officers.</p> <p>Executive officers of the United States cannot, without express authority from Congress, waive conditions imposed by Congress in a grant of lands to a' railroad company.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 266-268; Dec. Dig. § 88.*]</p> <p>6. Public Lands (§ 88*) — Riilsoad Grant — Waiver of Conditions,</p> <p>Where an act granting, lands to a railroad company gave the government the right to use the road for certain purposes, and also imposed conditions on the sale of the lands by the grantee, the acceptance and use of .the road by the government, even after the violation of such condition, was not a waiver thereof.</p> <p>FEd. Note. — For other cases, see Public Lands, Cent. Dig. f§ 266 ‘¿(18; Dec. Dig. § 88.*]</p> <p>7. United States (§ 133*) — Right of Action — Laches.</p> <p>Laches is not imputable to the United States.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 127, 128; Dee. Dig. § 133.*J</p> <p>8. Public Lands (§ 88*) — Railroad Grants — Conditions.</p> <p>Act Sept. 29, 1890, e. 1040, 26 Stat. 496 (U. S. Comp. St. 1901, p. 1598), declaring forfeited all lands theretofore granted in aid of the construction of any railroad opposite to and coterminous with the portion of such road not then completed and in operation, did not operate to confirm the title of the companies to lands opposite completed portions of their roads against all contingencies and reserved conditions whether precedent or subsequent, nor as a waiver of forfeiture for condition broken.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 266-268; Dec. Dig. § 88.*]</p> <p>9. Public Lands (§ 88*) — Railroad Grants — Suit for Forfeiture — Limitation.</p> <p>Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (Ü. S. Comp. St. 1901, p. 1521), and Act March 2, 1896, c. 39, § 1, 29 Stat. 42 (U. S. Comp. St. 1901, p. 1603), which together limit the time for the bringing of suits by the United States for the cancellation of patents to lands, whether issued under a railroad grant or otherwise, to a stated time after the issuance of such patents, do not apply to a suit to enforce a forfeiture of an entire railroad grant, so far as the land is still held by the grantee, for breach of a condition requiring the grantee to sell only to actual settlers, which may have occurred after the patents were issued.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 266-268; Doc. Dig. § 88.*]</p> <p>10. Public Lands (§ 42*) — Construction—Legislative Grants of Land.</p> <p>In the case of legislative grants of public lands, imposing conditions along therewith upon the grantee in relation to the thing granted, the acts conferring them are to be construed as laws, and the technical rules governing the interpreting of contracts are inapplicable; the single inquiry being as to the intent of the one party — -the legislative intendment in promulgating the law.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 42.*]</p> <p>11. Public Lands (§ 42*) — Construction—Legislative Grants of Land.</p> <p>If there is ambiguity or uncertainty in an act granting public lands to private individuals or corporations, it should be construed most favorably to the government.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 42.*]</p> <p>12. Trusts (§ 21*) — Law Creating Trust — Certainty as to Beneficiaries and Interests.</p> <p>An act granting lands to a railroad company, with a proviso that they shall be sold to actual settlers only in quantities not greater than one quarter section to one purchaser and for a price not exceeding $2.50 per acre, does not create a trust in the company in favor of persons who may settle on the land, which they can enforce, as such a trust would be void for uncertainty both as to the beneficiaries and their interest, since both the quantity and price specified in the act are maximum, leaving it dis-eretionary with the company to sell a less quantity to one purchaser or to make a lower price.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 29, 30; Dec. Dig. § 21.*]</p> <p>13.Public Lands (§ 85*) — Railroad Grant — Construction and Operation.</p> <p>An act granting lands to a railroad company, with a proviso that they shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser and for a price not exceeding $2.50 per acre, does not create a contract with a third person to sell him a particular tract of land on his declaring his purpose to become a settler thereon or making actual settlement and tendering the purchase price to the company, in the absence of any such offer by the company, since the act makes no such offer on behalf of the government, but transfers title to the land to the company, which may or may not sell in a particular instance, in its discretion.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 259; Dec. Dig. § 85.*]</p> <p>14. Public Lands (§ 85*) — Railroad Grant — Construction—Condition Subsequent.</p> <p>In reviving a grant of lands to aid in the construction of a. railroad in Oregon, in 1869, after it had lapsed by reason of the failure of any company to file its assent and acceptance within the time prescribed by the original act, Congress added a clause, “And provided further that the lands granted by the act aforesaid shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.” Held, that such proviso ivas not á covenant, but, construing it in the light of the then settled policy of Congress to preserve all public lands for the use of actual settlers, while at the same time it was the design to assist the construction of the road, it imposed on the grant a condition subsequent for a breach of which on the part of the grantee company the lands were subject to forfeiture to the United States.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 259; Dec. Dig. § 85.*]</p> <p>15. Public Lands (§ 90*) — Railroad Grant —Condition Subsequent — Rights oe Mortgagee.</p> <p>Under such construction of the grant, a mortgage of the lands, in their entirety, would be subject to the condition subsequent.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 273; Dec. Dig. § 90.*]</p> <p>16. Public Lands (§ 85*) — Railroad Grant —Construction—Conditions Subsequent.</p> <p>By Act May 4, 1870, c. 69, 16 Stat. 94, Congress made a grant of lands tb the Oregon Central Railroad Company to aid in the construction of its road, the act providing that the lands should be sold to actual settlers only in quantities not greater than one quarter section to any one settler and at prices not exceeding $2.50 per acre. It further provided that the company should by mortgage or deed of trust to trustees set apart all of the nqt proceeds of the sales as a sinking fund to be used in the purchase ánd redemption of its bonds therein described, and that no part of such fund should be used for any other purpose until all of the bonds had been purchased or redeemed. Hold, that such provisions were not merely regulative covenants, not enforceable, but to be observed or not in the discretion of the company, but conditions subsequent, for a violation of which the grant was forfeitable to the United States.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 259; Dec. Dig. § 85.*]</p> <p>17. Equity (§ 24*) — Jurisdiction—ICnfobcemext op Forfeiture.</p> <p>Tile general rule that a court oí equity will not enforce a forfeiture is not inflexible, and it may do so where the forfeiture is consonant with right and justice, and especially where it is for breach of condition of a public grant to a private person or corporation.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §.§ 69-76; Dec. Dig. § 24.*]</p> <p>18. Pujbuic Lands (§ 88*) — Suit to Enforce Forfeiture op Grant — Jurisdiction op Equity.</p> <p>By Act July 25, 1866, c. 242, 14 Stat. 239 (as amended by Act June 25, 1868, c. 80, 15 Stat. 80, and Act April 10, 1869, c. 27, 16 Stat. 47), and Act May 4, 1870, c. 69, 16 Stat. 94, Congress made grants of lands to two railroad companies in Oregon annexing certain conditions to each grant. April 30,1908, Congress by a joint resolution (No. 18, 35 Stat. 571) authorized and directed the Attorney General to instituto and prosecute any and all suite in equity, actions at law, and other proceedings which he might deem adequate and appropriate to enforce the rights and remedies of the United States arising or growing out of such grants, in which suits he should, in such manner as he should deem appropriate, assert all rights and remedies existing in favor of the United States, “including the claim on behalf of the United States that the lands granted by each of said acts respectively or any part thereof have been and are forfeited to the United States by reason of any breaches or violations of any of the terms or conditions of either or any of said acts, which may be alleged and established in any such suits, actions or proceedings; it not being intended hereby to determine the right of the United States to any such forfeiture, * * * but it being intended to fully authorize * * * the court or courts before which such suits * * * may be instituted or pending to entertain, consider and adjudicate the claim and right of the United States to such forfeiture, and if found to enforce the same.” Held, that a federal court of equity had jurisdiction to entertain and determine such a suit, brought to cancel patents issued under such grants, and to quiet the title of the United States to the lands embraced therein, although it involved a forfeiture of the grants; the lands being wild and unimproved and not in the actual possession of defendants.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 266-268; Dec. Dig. § 88.*</p> <p>Jurisdiction of federal courts in suits under public land laws, see note to Bailey v. Mosher, 11 C. C. A. 314.]</p>

<p>In Rquity. Suit by George D. Roberts and others against the Southern Pacific Company and others.</p>

Action by the United States against the Northern Pacific Terminal Company to recover penalties for an alleged violation of the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1909, p. 1178]). Judgment for plaintiff.

<p>In Bankruptcy. In the matter of the Le Sueur Co-operative Company. On petition to review a referee’s order allowing the claim of J. ■M. Drozda.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of the Le Sueur Co-Operative Company on petition to review a referee’s order allowing the claims of A. C. Meinke and Meinke Brothers against the bankrupt’s estate.

<p>Action by Michael Craven against Embury P. Clark. On objections to the appointment of an auditor.</p>

<p>In Error to the District Court of the United States for the District of North Dakota.</p> <p>S. A. Eloren was convicted of depositing illegal matter in the mails, and brings error.</p>

<p>Post Oraron (§ 50*) — Peosecution job Using Mails to Drebaitd — Instructions.</p> <p>In a prosecution under Itev. St. § 5480 (U. S. Comic St. 1901, p. 3696), for using the mails to effect a scheme to defraud, instructions are erroneous which permit a conviction on a finding of any stated group of facts, from which a purpose to defraud is omitted.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 50.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 G. C. A. 79.'|</p>

■ Suit by F. P. McCabe and others against the Atchison, Topeka & Santa Fé Railway Company and others. From a decree o_f dismissal rendered after sustaining a demurrer to the bill, complainants appeal.

■ Appeal from the Circuit Court of the United States for the District of Massachusetts. In the matter of Elbridge L. Sweetser, bankrupt. From an order of the Circuit Court (181 Fed. 617), rendered on the petition of John C. Hammond and others, creditors, Warren Ozro Kyle and another, assignees, appeal.

Tn Error 1o the Circuit Court of the United States for the District of South Dakota. Action at law by John E. Ouackenbush against the City of Yank-ton, S. D. Judgment for defendant, and plaintiff brings error.

In Equity. Suit by the National 'Binding Machine Company against the James D. McLaurin Company. Decree for complainant. This is the usual suit in equity for the infringement of patent No. 700,816, which is a device for supporting and delivering paper for wrapping and binding purposes.

<p>In the matter of David Rohrer, bankrupt. On question of validity of pledges.</p>

<p>Criminal prosecution- by the United States against %’oms F. Swift and others. On motions to quash and pleas to. the indictment,' and •motion to, strike pleas from files.</p> <p>The indictment in this case charges a combination in restraint of trade and commerce among the several states, and contains five counts. ' The first, second; and fifth counts charge the engaging by the defendants in the combination therein described “during the ten years next preceding the finding and presentation of this indictment, * * * and therefore continuously and at all times during the three years, next preceding the finding and presentation of this indictment.” The fourth count charges the engaging in a similar combination “at all times during the three years next preceding the finding and presentation of this indictment,” and, further, that “during all the times mentioned in this indictment said defendants, together with other persons whose names are to the jurors unknown, have maintained and made effective an agreement, understanding, and arrangement among themselves whereby they have fixed, regulated, and controlled the prices,” etc. - The third count charges the engaging in such a combination “continuously and at all times during the three years next preceding the finding and presentation of this indictment,” without any subsequent qualifying words as to time.</p> <p>The separate pleas in abatement filed on behalf of the. respective defendants are of two classes: (A) Pleas of those defendants who were impleaded in the indictment of July 1, 1905; (B) pleas of those defendants who were not impleaded in the indictment of 1905. The defendants in this case who were formerly indicted, and whose pleas here are identical, are Louis F. Swift, Edward E. Swift, Charles H. Swift, J. Ogden Armour, Arthur Meeker. Thomas J. Connors, and Edward Morris. Seven separate pleas in abatement have been filed on behalf of each of these defendants.</p> <p>The first plea is directed at the first count of the indictment. It sets out verbatim the first and seventh counts of an indictment returned on July 1, 1905; the special pleas in bar filed October 28, 1905, by each of those defendants to the former indictment, including the first and seventh counts thereof; the additional special pleas in bar filed on November 22, 1905, to the former indictment; the replications to those special pleas; the verdict of the jury sustaining the special pleas, rendered on March 21, 1906; the judgment on that verdict, entered on March 29, 1906, in favor of those defendants. The plea then sets out certain evidence of and concerning the matters and things heard and considered by the grand jury which returned the indictment of July 1, 1905, and which it avers was1 also heard by the grand jury which returned the indictment herein; that there was no evidence presented to the grand jury which returned this indictment, of and concerning the engaging by these defendants in the combination described in the first count, other than evidence of and concerning the acts, transactions, matters, and things charged in the indictment of July 1, 1905; that the acts, transactions, matters, and things which are stated and charged in the first count of this indictment are the same acts, transactions, matters, and things which were stated and charged in the first and seventh counts of the indictment of July 1, 1905; that the evidence described was'material to the charges contained in the first count of this indictment, and that the consideration of the same by the grand jury was prejudicial to the defendants. The plea closes with averments of diligence.</p> <p>The second, third, and fourth pleas are identical with the first, save only that they are directed at, respectively, the second, fourth, and fifth counts of this indictment.</p> <p>The fifth plea responds to the entire indictment. In it is incorporated, by reference, the record fully set out in the first plea, and the averments of diligence. It also avers that after the making of the investigation by the Commissioner of Corporations, as described fully in the special pleas in bar filed to the indictment of July 1, 1905, the Commissioner of Corporations reported the. information and data so gathered by him to the President of the United States, and embodied in'the printed volume known as üie “Gar-' field Report.” a part of the information obtained from the several defendants ; that the Garfield Report is a' public document, which is incorporated by reference: that in 1904 and 1905 the Garfield Report and the information and evidence secured from the defendants were delivered to the Attorney General of the United States and to the district attorney for the Northern district of Illinois; and upon information and belief that the Garfield Report and the evidence secured from the several defendants were used by the attorneys for the United States in this proceeding in preparing and searching out evidence against the defendants, which was introduced before and considered by the grand jury returning this indictment; that such evidence, so searched out and prepared with the use and aid of the evidence so secured from the several defendants, which was introduced before the grand Jury returning this indictment, was material evidence, and prejudicial to the defendants.</p> <p>The sixth plea also responds to the entire indictment. The record of the 3905 proceedings set out in the first plea, and the averments of diligence, were also incorporated by reference. In addition it avers that the attorneys for tlie United States submitted to the grand jury which returned this indictment evidence of and concerning the acts, transactions, matters, and things respecting which the several defendants had previously produced evidence before the Commissioner of Corporations in the course of his investigation, referred to and described in the record of the former proceedings. and respecting which acts, transactions, matters and things the several defendants had become immune from prosecution, as adjudged in the former proceeding; that evidence of and concerning such acts, transactions, matters, and things, respecting which the several defendants were immune, was used by the attorneys for the United States and by the grand jury in preparing and searching out other evidence against the defendants, and the evidence so prepared and searched out was used before and considered by the grand jury; and that such evidence was material and its use prejudicial. Certain portions of the evidence respecting immune transactions was then described, namely, certain corporate records and the testimony of several witnesses, and the averment that such evidence was considered by the grand jury.,</p> <p>The seventh plea also responds to the entire indictment. The 3905 proceedings set out in the first plea, and the averments of diligence were there incorporated by reference. It is also averred that the grand jury which returned this indictment heard evidence which was of and concerning the acts, transactions, matters, and tilings charged in the indictment of July 1, 1905, and on account of which the several defendants had been adjudged to lie immune from prosecution. It desorilles, also, certain corporate records and the testimony of certain witnesses, which was heard and considered by tile grand jury returning the indictment, of July 1, 3905, with the averment that it was also heard and considered by the grand jury which returned this indictment. It avers that such evidence was material and prejudicial, and that there was no evidence presented to the grand jury of and concerning the engaging by these defendants in the supposed combination in the indictment herein charged, other than evidence of and concerning the acts, transactions. matters, and things charged in the indictment of July 1, 3905.</p> <p>Identical motions to quash have been filed on behalf of each of the defendants on whose behalf were presented the foregoing pleas in abatement, and therein is set forth the record of the former proceedings, incorporated by reference to the first plea in abatement; that, the attorneys for the United States presented to, and the grand jury returning this indictment heard and considered, evidence respecting the same acts, transactions, matters, and things concerning which the respective defendants had theretofore produced evidence before the Commissioner of Corporations; that the grand jury returning this indictment heard evidence of and concerning the same acts, transactions, matters, and things respecting which evidence had been heard and considered by the grand jury which returned the indictment of July 1, 3905, and as to all of which immunity from further prosecution had been adjudged. Certain portions of such evidence were described, namely, corporate records and the testimony of certain witnesses. The motions state that such evidence was material and prejudicial, and that there was no evidence heard by the grand jury returning this indictment concerning the engaging by these defendants in a combination, other than evidence of and concerning acts, transactions, matters, and things stated and charged in the indictment of July 1, 1905.</p> <p>(B) Identical pleas in abatement have been filed on behalf of Edward Til-den, Francis A. Fowler, and Louis II. Heyman, defendants herein, who were not impleaded in the indictment' of 1905.</p> <p>The first of these pleas avers and describes the investigation of the fresh meat industry, conducted under a resolution of the House of Representatives, by Commissioner Garfield, in 1904; that in the course of that investigation the defendants were required to furnish evidence respecting the method of business pursued in the conduct of the fresh meat business of certain of the corporations named in the present indictment; that such evidence so furnished related to several of the acts, transactions, matters, and things charged in this indictment; that on March 3, 1905, and afterwards, Commissioner Garfield reported the information and data so gathered by him to the President of the United States, and embodied a part of it ip. what is known as the “Garfield Report,” a public document incorporated therein by reference; that in 1904 and 1905 the Garfield Report and other evidence and information secured from these defendants were delivered to the Attorney General of the- United States, and to the district attorney for the Northern district of Illinois, and that the evidence so secured by the Commissioner from these defendants was made use of by the attorneys for the United States in searching out other evidence against them, and which was introduced before, and heard and considered by, the grand jury which returned this indictment; that such evidence was material and prejudicial. The plea ends with an averment of diligence.</p> <p>In the second plea the three defendants aver and describe the conducting of the Garfield investigation in 1904: that the Commissioner secured evidence and information from them of and concerning acts, facts, circumstances, matters, and things referred to in the present indictment as being and constituting the supposed engaging by the defendants in the unlawful combination; that thereafter the defendants could not be subjected to any penally or forfeiture for or on account of the respective transactions, matters, and things concerning which they had so testified or produced evidence before the Commissioner; that the attorneys for the United States presented to, and the grand jury which returned this indictment heard and considered, evidence of and concerning the same acts, transactions, matters, and things respecting which the defendants had produced evidence before the Commissioner of Corporations, and for and on account of which they had become and were immune from prosecution; that the evidence consisted in part of certain corporate records and the testimony of certain witnesses, who are referred to; that the attorneys for the United States and the grand jury which returned this indictment used evidence of and concerning transactions respecting which these defendants were immune from prosecution in preparing and searching out other evideuce against them, and the grand jury which returned this indictment heard and considered such evidence so prepared and secured; that all. of such evidence was material and prejudicial; and that the defendants were diligent in presenting the matter to the court.</p> <p>The third plea on behalf of these three defendants is identical with the second, excepting that it avers upon information and belief that there was no evidence presented to the grand jury of and concerning the engaging by the defendants in the supposed combination charged 'in the indictment, other than evidence of and concerning the acts, transactions, matters, and things respecting which the defendants had theretofore produced evidence before the Commissioner of Corporations, and respecting which they had thereby become and were immune from prosecution.</p> <p>Motions to quash were filed on behalf of Tilden, Fowler, and Heyman, containing statements descriptive of the Garfield investigation in 1904; that the defendants were required to furnish evidence in the course of such investigation; the compilation of the Garfield Report, which was incorporated by reference; that the report and the evidence secured.from the defendants wore in 1901 and 1905 obtained by the attorneys for 1he United States, and were used by them in preparing and searching out'evidence against the defendants, all of which was introduced, heard, and considered in the investigation and proceeding before tile grand jury which returned the present indictment; that the grand jury heard and considered evidence of and concerning the same acts, transactions, matters, and things respecting which evidence had been secured from the defendants by the Commissioner of Corporations in the course of his investigation, and used such evidence in preparing and searching out other evidence, which was also used and offered against the defendants; that part of the evidence consisted of corporate records and the testimony of certain witnesses; that there was no evidence presented to the grand jury of and concerning the engaging by the defendants in the supposed combination charged in the indictment, other than evidence of and concerning the acts, transactions, matters, and things respecting which the defendants had theretofore produced evidence before the Commissioner of Corporations; that the evidence used was material and prejudicial. The matters and things set forth and averred in the plea in abatement were incorporated by reference.</p> <p>The government moved to have the motions to quash the indictment denied and the pleas in abatement stricken from the tiles. The defendants asked to have the motions, to qnasli sustained, or for a rule on the government to reply within a short day to the jileas in abatement.</p>

<p>Bankkottct (§ 136*) — Withheld ■ Assets — Contempt—Defenses.</p> <p>A bankrupt having been ordered on November 18, 1909, to pay to his trustee $69,317.14, such order was affirmed by the District Court on February 21, 1910; the order fixing March 21st as the time of payment. This order was again affirmed by the Circuit Court of Appeals, mandate being filed on March 10, 1911, and on trustee’s petition the time of payment was extended to April 26th, and, the bankrupt not having complied, a rule was granted against him for contempt. Held that, while the bankrupt’s plea of physical inability to comply constituted a defense to the rule, his bare denial of ability was insufficient to establish the fact.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

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

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

<p>In Error t<> t'<o Circuit Court of the United States for the Southern Division of the Southern District of California.</p>

, Appeal from the Circuit Court of the United States for the Northern District of New York. Suits in equity by Eben H. Gay and Joseph W. Jackson against the Hudson River Electric Power Company and others and against said company alone. From an order allowing an appeal taken by receivers for defendant to stand on conditions, the New England Trust Company appeals.

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

<p>In Error to the Circuit Court of the United Slates for the Southern District of New York.</p>

<p>In Error to the Circuit Court of the TTniied States for the Southern District of New York.</p>