Volume 187 — Federal Reporter

<p>1. Banks and Banking (§ 16.1*) — Duty of Bank as Collecting Agent. The ordinary duty of a bank receiving a note for collection extends no further than to make proper demand of payment, and sometimes in case of nonpayment to take such further action as necessary to secure and preserve the liability of all parties, by protest and notice as may be required by the law of its state.</p> <p>(Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 551-561 ; Dec. Dig. § 161.*]</p> <p>2. Banks and Banking (§ 161*) — Banks as Collecting Agents — Massachusetts Statute.</p> <p>Rev. Laws Mass. e. 73, § 101, which provides that, “where the instrument is made payable at a bank, it is equivalent to an order to the hank to pay the same for the account of the principal debtor thereon,” applies only where the instrument is made payable at a particular bank named, and the fact that a note made payable at “any bank in Boston” was sent for collection to a bank there in which the maker had a deposit when the note matured did not authorize that bank to pay the note from such deposit.</p> <p>[Fd. Note. — For other cases, see Banks and Banking, Dec. Dig. § 161.*]</p> <p>3. Banks and Banking (§ 171*) — Bank as Collecting Agent — Extent oe Agency.</p> <p>The fact that a bank had received in ordinary course notes for collection against a depositor, as to which it had done its full duty by demand and notice, did not affect its right to advise or promote a general assignment by the depositor, or any other action which it might deem to its own interest or to that of general creditors.</p> <p>]Ed. Note. — For other cases, see Banks and Banking, Dee. Dig. § 171.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Action at law by Albert Harris against Thomas B. Brown. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by Eben H. Gay and Joseph W. Jackson against the Hudson River Electric Power Company and others and against the company alone. The New England Trust Company and the Guaranty Trust Company of New York, creditors of defendant company, appeal from an order approving an agreement of settlement between the receivers and the General Electric Company.

<p> (Syllabus by the Court.) </p> <p>1. Alteration of Instruments (§ 27*) — Bills and Notes — Burden of Froof.</p> <p>Where an innocent purchaser for value before maturity holds commercial paper that is fair on its face, and that gives no indication of any modification by interlineation or otherwise, the burden is on the maker to prove any alteration that he claims was made subsequent to the execution of the note.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-247; Dec. Dig. § 27.*]</p> <p>2. Courts (§§ 360, 361, 372*) — National Courts must Exercise Independent Judgments upon — State Decisions Not Controlling.</p> <p>It is the duty of the national courts to exercise their independent judgments in the determination of all questions of general commercial law, of general jurisprudence, and of right under the Constitution and laws of the United States, although the decisions of state courts may not accord with them.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. §§ 360, 361, 372.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. O. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. O. A. 468.]</p> <p>3. Alteration of Instruments (§ 28*) — Evidence of Condition Subsequent to Signing Competent.</p> <p>On the issue of alteration of a promissory note after it was signed by the maker, proof had been made that the plaintiff was an innocent purchaser for value before maturity, the defendant had testilied that the note was materially changed after he signed it, and the agent of the payee who took the note had testified that it was in the same condition when the defendant signed it that it was at the trial.</p> <p>Jleld, the testimony of the secretary of the payee that he received the note by mail from the agent a few days after it was dated, and that it was then in its condition at the trial, was competent and material, «and should have been admitted in evidence.</p> <p>TEd. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 248-258: Dec. Dig. § 28;* Evidence, Cent. Dig. §1 1900-1902.]</p>

Suit in equity by the Northern Trust Company and Arthur Heurtley, trustee, against the City oí Daporte, Ind. Decree for complainants, and defendant appeals. The city of Laporte appeals from a decree of foreclosure, in favor of tho appellees, as trustees under a mortgage executed by the Laporte Water Supply Company, au Indiana corporation, against the mortgagor and the city of Laporte. impleaded as defendants in the bill filed by the appellees.

<p>Appeals from the District Court of the United States for the District of Massachusetts.</p> <p>. Suit in admiralty by Charles U. Smith, as owner of the schooner Uejok, against the schooner Gov. Ames, Cornelius A. Davis and others, claimants, for collision, and cross-libel against the Uejok. Deere-' for cross-libelants, and libelant appeals.</p>

Action at law by Frank Grantham against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant brings error. This is an action instituted by the defendant in error in the superior court of North Carolina for the county of Wayne and removed therefrom to the Circuit Court of the United States for the Eastern District of North Carolina upon motion of the plaintiff in error.

Suit in equity by the Central Trust Company of New York, trustee, against the Wheeling & Lake Erie Railroad Company. The T. B. Townsend Brick & Contracting Company filed a petition of intervention against both parties, the Zanesville Belt & Terminal Company, and B. A. Worthington, receiver of defendant company. From a decree dismissing such petition on demurrer, it appeals.

In Error and Cross-Error to the Circuit Court of the United States for the Western District of North Carolina, at Statesville. Action at law by the Mooresville Cotton Mills against-the Southern Railway Company. Judgment for plaintiff, and both parties bring error.

Action at law by the Russo-Chinese Bank against the National Bank of Commerce of Seattle-, Wash. Judgment for defendant, and plaintiff brings error. On the 10th day of December, 1903, the Centennial Mill Company, of Seattle, delivered to the Boston Steamship Company and Boston Towboat Company, at Seattle, 35,312 quarter sacks of flour for shipment by the steamship Hyades to Clarkson & Co. at Port Arthur and/or Dalny in Manchuria.

Action at law by J. Hurst Purnell and others against Patrick Goodman and Jeremiah J. Kennedy. Judgment for plaintiffs, and defendants bring error. This cause comes here upon a writ of error to review a judgment in favor of defendants in error, who were plaintiffs below. The judgment was entered upon a verdict, which was directed by the trial judge at the close of the case; exception to such direction being duly reserved. The facts sufficiently appear in the opinion.

Suit in admiralty by George L. Duval and others against the Steamship Hamilton Company, Limited, and the steamship Burma; F. J. B. Crowder, claimant. From a decree dismissing the libel and cross-libel, libelants appeal.

Action at law by the United States, to the use of the General Electric Company, against the Title Guaranty & Surety Company. Judgment for the use plaintiff, and defendant brings error.

Action at law by .Prank Addieg and others against Samuel P. Tull. Judgment for plaintiffs for part of their claim, and they bring error. Writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury in favor of the plaintiffs in error who were plaintiffs below.† The plaintiffs have brought this writ of error because only one of the two items of their demand as stated in the complaint was allowed.

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Three actions by the United States against the St. Joseph Stockyards Company. Judgments for the United States (181 Fed. 625), and defendant brings error.</p>

<p>Shipping! (§ 81*) — Injury to Tow from Swell of Stjeameb — Negligent Navigation.</p> <p>Injury to a flotilla of six canal boats, when passing down the Hudson River, from 1he swell of a meeting steamer, held due to the fault of the steamer in passing at. too high speed: it being shown that several line's of the tow were broken, including two new six-inch towing lines, and that the boats had been recently repaired and were sufficiently seaworthy for the ordinary risks of navigation.</p> <p>[Ed. Note. — For other cases, see Shipping. Cent. Dig. § 345; Dee. Dig. § 8!.41</p>

Action at law by Annie O’Donnell, administratrix, against the New York Transportation Company. Judgment for defendant, and plaintiff brings error. Writ of error to review a judgment rendered upon the verdict of a jury in favor of the defendant by the Circuit Court, Eastern District of New York. This is the second time this case has been before this court; a judgment in favor of the plaintiff having been reversed, as reported in 159 Fed. 659, 86 C. C. A. 527.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by Frederick R. Eaton against a cargo of'lumber laden on board the schooner Edward T. Stotesbur3; McGowan Lumber & Export Company, claimant. Decree (180 Fed. 513) for claimant, and libelant appeals.</p>

Suit in admiralty by Philip W. Saitta against the steamship Italia; the Anchor Line (Henderson Bros.), Limited, Claimant. Decree for libelant (184 Fed. 366), from a part of which claimant appeals. This cause comes here upon appeal from a decree holding the steamship Italia liable for damages to boxes of macaroni. There were two lots of goods — one damaged while abroad the ship; the other damaged while on the pier after discharge.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel in admiralty by the United States against the steam tug Geneva; the Lehigh Valley Transportation Company, claimant. Decree for respondent, and libelant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>Charles McCarthy and Albert P. Stewart were convicted of using the mails to defraud, and bring error.</p>

<p>Bankruptcy (§ 6*) — Corporations Subject to Act — Construction op Amendment.</p> <p>A corporation engaged in conducting a restaurant, which was not subject to adjudication as a bankrupt under Banlcr. Act July 1, 1898, e. 541, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), prior to its amendment by Act .Tune 25, 1910. c. 412. § 3. 30 Stat. 839, cannot be subjected to bankruptcy proceedings because of a general assignment made prior to that date; the amendment not being retroactive.</p> <p>[ Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 2; Dec. I >ig. § «.*</p> <p>What persons are subject to bankruptcy law, see note to In re Taylor, 42 C. C. A. 4.1</p>

<p>1. Sales (§ 81*) — Contrtjction of Contract — Time for Delivery.</p> <p>Time is of the essence of a contract for the sale and subsequent delivery of goods on specified dates.</p> <p>FEd. Note. — For other cases, see Sales, Cent Dig. § 217; Dec. Dig. § 81.*]</p> <p>2. Sales (§ 81*) — Construction of Contract — Time for Delivery.</p> <p>A contract for the sale of goods, to be delivered “at the specified dates,” followed by the specification of a date, requires the delivery on such date, and the buyer is not required to accept the goods at a later date.</p> <p>FEd. Note. — For other cases, see Sales, Cent. Dig. § 217; Dee. Dig. § 81.*]</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Patrick Donnelly, bankrupt. On petition for revision by Otto H. Droege, trustee.</p>

<p>Patents (§ 318*) — Infringement—Profits Kecoyera bee.</p> <p>Complainant made and sold under the name of “Twin Needle. A” a sewing machine containing a patented combination of elements, including the elements of the combination of an expired patent, together with a thread-controlling device which was new, and which was essential to the identity of the machines sold under such name. Defendant bought up secondhand machines of complainant’s make which did not contain tire thread-controlling device, rebuilt and made them over to look like new, added such device, placed thereon medallions taken from worn-out machines containing complainant’s trade-mark, changed the numbers, and resold them as genuine '“Twin Needle A” machines made by complainant. The master found that the thread-controlling device was considered by the trade as essential io fit such machines for the use for which they were bought, and that but for its presence the purchasers would not hare bought them. Belli, that complainant was properly awarded, as profits realized by defendant from the infringement, the entire profits made by him on the machines.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*</p> <p>Accounting bv infringer for profits, see note to Brickill v. Mayor, etc,, of City of New York, 50 C. C. A. 8.]</p>

<p>Patents (§ 828*) — Invention—Handling-Horse fop. Shoe Uppers.</p> <p>The Hayward patent, No. 722,018, for a handling-horse for shoe-uppers, consisting of a piece of spring wire bent with two arms, upon which the uppers are strung in pairs, is void for lack of patentable invention.</p>

Appeals from the Circuit Court of the United States for the District of Massachusetts. In Equity. Suit by the General Electric Company against Frank O. Hartman and others for infringement of patents. Decree for complainant as to one patent and for defendants as to one, and both parties appeal.

<p>1. Patents (§ 328*) — -Validits and ínituxueíient — Guipe fob Punching Presses.</p> <p>The Conley ■& Conley patent, No. 701,541, for a guide for punching presses for punching holes in building beams or girders, at exact predetermined intervals, either the same or different distances apart, the purpose teing to secure accurate coincidence of the holes in different beams to lie joined together by bolts or rivets by means of separately adjustable stops, was not anticipated and discloses invention, and is entitled to protection to the full extent of its disclosure; also hold infringed.</p> <p>2. Patents (§ 328*) — Infmngejient—Gauge fob Punching Peesses.</p> <p>The Conley patent, No. 735,4(¡9, for a gauge for punching presses, construed, and held not infringed.</p>

In Equity. Suit by Byron E. Van Auken and the Consolidated Engineering Company against the Monash-Younker Company and by the Consolidated Engineering Company, Arthur L. Canfield, and Byron E. Van Auken against the same. Bills for infringement of patent No. 828,153, applied for August 1, 1903,. issued August 7, 1906, to Byron If. Van Auken, and No. 890,555, applied for March 22, 1902, issued June 9, 1908, to Canfield and Van Auken.

<p>In Equity. Suit by the Gillette Safety Razor Company against the Clai'k Blade & Razor Company and others. On final hearing.</p>

<p>In Equity. Suit by Daniel J. Davis, Stephen J. Davis, Alfred J. Davis, and the Empire Cream Separator Company for and on behalf of themselves and of the Industrial Construction Company against the A. H. Reid Creamery & Dairy Supply Company.</p>

<p>In Equity. Bill by the North Fork Water Company against William Medland, receiver of the Bear Valley Irrigation Company, and others.</p>

In Bankruptcy. Proceedings for the settlement of the bankrupt estate of the Stanford Clothing Company. On petition to review a referee’s order expunging the claim of the Jefferson County Savings Bank.

<p>In Equity. Suit by the Barber Asphalt Paving Company against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. On petition for instructions to receiver in the matter of transfers.</p>

In the matter of the bankruptcy proceedings of John R. Miley. On petition to revise an order of the referee directing a sale of certain real estate by the trustee against the objections of the vendor.

In the matter of bankruptcy proceedings of Rufus H. Randolph. On petition to review an order of the referee determining the order of priorities and preferences with reference to certain claims.

<p>At Daw. Action by the Guaranty Trust Company of New York against Hugo A. Koehler and others. Trial to court.</p>

<p>Ratdroads (§ 138*) — Traffic Contracts — Con,struotjon.</p> <p>By a contract between two railroad companies, the first granted to the second, a belt line company, the right to two its terminal tracks and station at Atlanta, and agreed to store and dean its passenger engines and coaches and those used by it belonging to a third railroad company named, while laying oyer at Atlanta, and to charge actual cost for switching, hostling, etc., said engines and coaches. Held, that such contract did not embrace Pullman cars, owned by the Pullman Company, although brought to the station by the second party in a train of the third railroad company, and that a right of action to recover damages for an injury to such a ear. while being switched with the remainder of the train by the first party, was outside of the contract, and either sounded in tort or was based on an implied contract.</p> <p>|Kd. Note. — For other cases, see Railroads, Cent. Dig. §§ 430-439; Dec. Dig. § 138.*]</p>

<p>Animals (? 31*) — Transportation op Dtve Stock — Quarantine—Offenses —Diability.</p> <p>Act Cong. March 3. 1905, e. 1196, § 2. 33 Stat. 3264 (U. S. Comp. St. Supp. 1909. p. 1185). declares that no railroad company shall receive for transportation, or transport, from any quarantined state or territory into any other state, any cattle or other live stock, except as provided: and section 3 provides that the Secretary oí Agriculture shall make and promulgate rules and regulations which shall permit and govern the inspection, disinfection, certification, treatment, handling and manner of delivery of live stock shipped from a quarantined state or territory into any other state or territory, etc. Held, that such act, though imposing a penalty for violation thereof, should be construed as a remedial statute, and that the phrase, “from any quarantined state,” must he construed in connection with the succeeding words, “into any other state, etc.,” so that, where cattle are consigned as a through shipment from a point in a quarantined area to a point in prohibited territory, each railroad participating in the transportation violates the act, and not merely the initial carrier, which transports the slock from the quarantined district.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. § 81 ; Dec. Dig. § 31.*]</p>

In the matter of bankruptcy proceedings against William J. Hill and others, individually and trading as William Hill & Sons. On certificate of the referee to review an order expunging the claim of Thomas W. Young as against the individual estate of Ellen I fill-

<p>' In Equity. Suit by Andrew Ramsay against R. H. Lynn and others. On final hearing.</p>

In Admiralty. Suit by the New York Tanning Extract Company against the steamship Royal Sceptre for loss of cargo.

<p>The Standard Sanitary Manufacturing Company and others being under indictment, the government demurs to pleas of immunity.</p>

Suit by the United States against the Standard Sanitary Manufacturing Company and others to restrain the continuance of certain alleged conspiracies and agreements in restraint of interstate commerce in sanitary enameled iron ware. On motion of the Colwell Lead Company and others to compel their codefendants, Max Goebel and certain others, to answer questions.

<p>' Tbade-Marks and Trade-Names (§ 98*) — Infringement—Good Faith:.</p> <p>Where defendants purchased certain spurious “Rainbow” packing from a stranger who was recommended to them, plaintiff having for years manufactured and sold a superior grade of packing under that name, but, on defendants’ attention being called to the infringement, they disclaimed any guilty knowledge, and offered to desist from the use and sale thereof, and disclosed their books, showing that they had only sold therefrom packing amounting to $44.07, complainant was entitled to an injunction restraining further sales, and to an order for the destruction of the spurious packing, but was not entitled to damages.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Gent. Dig. § 112; Dec. Dig. § 9S.*j</p>

<p>1. Principal and Agent (§ 69*) — Execution oe Agency — A,gent to Sell Selling to Himself.</p> <p>An agent cannot purchase for himself that which his duty requires him to sell for his principal.</p> <p>I Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 130-145; Dec. Dig. § 69.*]</p> <p>2. Appeal and Error (§ 1009*) — Review—Findings in Equity Suit.</p> <p>It is the settled law of the federal courts that, where a chancellor has made his findings of fact and decree on conflicting evidence, they will lie treated as presumptively correct by an appellate court, and will not lie disturbed, unless an obvious error has intervened in the application of the law, or some serious mistake has been made in the consideration of the evidence.</p> <p>| Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3972; Dec. Dig. | 1009.*]</p> <p>3. Contracts i§ 270*) — Rescission for Fraud — Time for Rescission.</p> <p>One entitled to rescind a contract on the ground of fraud must announce his purpose to do so promptly, unconditionally, and unevasively, upon the discovery of the fraud practiced upon him.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1189, 1200; Dec. Dig. § 270.*]</p> <p>4. Cancellation of Instruments (§ 34*) — Suit for Cancellation — Laches.</p> <p>A suit for cancellation of a deed on the ground of fraud, brought within a year after complainant’s rescission of the contract, is not subject to the defense of laches.</p> <p>lEd. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 49-54; Dec. Dig. § 34.*]</p> <p>5. Cancellation of Instruments (§ 59*) — Suit por Cancellation oe Deed</p> <p>—Conditions to Granting of Relief — Value of Improvements Made by Defendant.</p> <p>An agent for the sale of land. v\’h° l>y actual false representations induced his principal to sell the land to a third person, with whom he ivas secretly interested, and who afterwards obtained a conveyance of the land to himself before the grantor had knowledge of the fraud, on a rescission and cancellation of the deed by a court of equity, is not entitled to payment for improvements made by him, although he is charged with the rental value of the land while in his possession.</p> <p>i'Fd. Note. — For oilier cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dec. Dig. § 59.*]</p>

<p>Copyrights (§ 33*) — Rkxewai.s—(’osstruction of Statute.</p> <p>Copyright Act March 4, 1909. e. 320, § 24, 35 Slat. 1080 (IT. S. Comp. St. Supp. 1900, p. 1297). which provides that “the copyright subsisting in any work at the time when this act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower or children of the author if the author he not living, or if such author, widow, widower or children he not living then by the author’s executors, or in the absence of a will his next of kin, for a further period,” etc., in accordance with a weil-soiiled statutory policy, limits such right of renewal to the persons named therein and does not extend it to the “proprietor” of tin' work, although both under that and the prior statute an original copyright might he secured by such proprietor.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. § 33.*]</p>

Action by F. ,M. Andrews & Co. against the Audubon Building Company, Limited. There was a judgment for plaintiff, and defendant brings error. This is an action at law by F. M. Andrews & Co., architects, to recover $57,156.09 for breach of contract by the Audubon Building Company, Limited.

<p>Appeals from the United States Circuit Court for the District of Oregon.</p> <p>Bills by the United States of America against G. B. McUeod to cancel certain land patents. From decrees of the United States Circuit Court for the District of Oregon (174 Bed. 508) for plaintiff, defendant appeals.</p> <p>The bills in these three cases were brought in the Circuit Court of the United States for the District of Oregon in the name of the acting Attorney General of the United States against the defendant to cancel certain patents issued by the United States upon alleged homestead applications and purporting to convey title to certain described public lands of the United States situated in Lane county, Or., on the ground that the said homestead applications were false and forged, and made in the names of fictitious persons; that the patents were issued by the President of the United States to and in tho names of such fictitious persons erroneously and under a mistake of fact, and without knowledge that such applications had been fraudulently made in the name of fictitious persons.</p> <p>It appears from the evidence, and it is not denied, that the homestead applications were fraudulently made in the names of James E. Warwick, William II. Watkins, and Samuel L. Carson upon false proof of settlement and cultivation under the homestead laws of the United States; that there were no such persons as James E. Warwick, William II. Watkins, and Samuel L. Carson; that there was no settlement, residence upon, or cultivation of any of the lands described in the patents by any person; that the homestead applications and other papers upon which the patents were issued were all fraudulently prepared by Marie L. Ware, the United Slates commissioner residing at Eugene, Or.; that they were so prepared at the request and upon the suggestion and with the assistance of S. A. D. Puter, Horace G. McKinley, and others, parties to a conspiracy to defraud the United States out of the title to such lands; that the manner of carrying out this conspiracy was as follows: The names of Warwick and Watkins were signed to applications, affidavits of pretended settlers, and final proof papers in blank by Puter, and tbe name Carson signed to similar papers by Lawrence Hickey, Puter’s brother-in-law. These homestead applications, affidavits of pretended settlers, and other necessary papers were thereafter filled out by Marie L. Ware. United States commissioner at Eugebe, and, after attaching her jurat thereto, .she forwarded the same to the land office at Roseburg. Or., together with the notice of intention to make final proof before her, giving the names of fictitious persons who would make proof of residence on the bind, and its cultivation, as required by law. These papers were accompanied by tbe necessary fees which were furnished by Puter and his associates, and, the papers being regular and fair upon their face, the register of the land office at Roseburg thereupon directed that notice of intention on the part of the fictitious settlers to make final proof be made as required by law, and at tbe time specified therein the final proof papers were filled out by Marie L. Ware and by tbe other parties to the conspiracy in the names of the fictitious applicants and witnesses, and, after being certified by her, were forwarded to the land office at Roseburg, and by the register and receiver certified to the Land Department at Washington, where patents were issued after due time in the names of the fictitious applicants and settlers. At the time the fraudulent homestead papers were signed the fictitious names of Warwick and Watkins were signed by Puter in deed's in blank, and tbe fictitious name of Carson was signed to a similar instrument by Hickey. After the final certificates had been issued by the land office, these deeds were filled out with a description of the land and the name of Emma L. Watson, also a party to the conspiracy, inserted as grantee. The deeds all purported to have been executed before Puter as a notary public. The land was subsequently conveyed by Watson by deed to P. E. Woodward, who, in turn, conveyed it to the defendant G. B. McLeod, who, it is conceded, was a purchaser in good faith for value, and without notice of the fraud.</p> <p>The Circuit Court entered a decree adjudging that the patents issued by tbe United States to the patentees were null and void, and ordered that the same be vacated, set aside, and canceled, and that'all deeds and conveyances purporting to convey said lands to tbe defendant and his grantors be declared null and void and of no effect and canceled, and that the United States be declared to be tbe owner in fee simple of said lands, free from tbe claims of all persons whomsoever. The defendant appeals.</p>

Suit in equity by the United States against Helen A. McClure,. Charles W. McClure, John J. Rupp, trustee under the will of William; C. McClure, deceased, Jethro G. Mitchell, and Leroy Brooks. Decree (174 Fed. 510) for complainant, and defendants appeal.

Action by Morris Rothstein against the United States. Judgment for plaintiff, and the United States brings error. In December, 1908, Rothstein was indicted jointly with one Rubin for harboring an alien woman for immoral purposes within three years after her immigration. During the same December term he pleaded nolo contendere, was convicted and fined $200, paid the fine; and the money was transferred to the treasury.

Action by the United States against the Montpelier & Wells River Railroad. Judgment for the United States, and defendant brings error. On writ of error to review a judgment entered against the defendant below, the Montpelier & Wells River Railroad, upon the verdict of a jury finding the defendant guilty upon the first count of the indictment charging it with the violation of section 10 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 382 [U. S. Comp.

<p>1. Patents G 120*) — Patent fob Same Invention — Suit to Obtain Issuance of Patent — Defenses.</p> <p>■ Where a patent has been granted for specific devices, a second patent to the same patentee, containing generic claims which cover the specific devices of. the prior patent, would be void for double patenting, and the applicant cannot maintain a suit, under Rev. St. § 4915 (U. S. Comp. St. 1901. )>. 3392), to compel the issuance of such a patent.</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. § 172; Dec. Dig. § 120.*]</p> <p>2. Costs ($ 32*) — Right to Costs — Dismissal, of Bill.</p> <p>A defendant, who obtains judgment dismissing a bill upon one defense, is not precluded from recovering costs because he has pleaded other defenses, which were without, merit.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.*</p> <p>Right to costs in equity, see note io Tug River Coal & Salt Co. v. Brigel. 17 C. C. A. 308.]</p>

Suit in equity by the Calculagraph Company against the Automatic Time Stamp Company and William H. Thompson. Decree for defendants, and complainant appeals. On appeal from a decree of the Circuit Court for the Southern District of New York dismissing the bill which is based upon claim 1 of letters patent No. 424,291 granted March 25, 1890, to Emery M. Hamilton for improvements in apparatus for recording measurements of time, space, or quantity.

<p>In Admiralty. Suit by the English & American Shipping Company against the tugs Harry M. Wall and John E. Mehrer.</p>

In the matter of the bankruptcy proceedings of the Franklin Dumber Company. On petition to review a referee’s order, determining the rights of a claimant tinder a contract for a conditional sale of certain personal property.

<p>Bankruptcy (§ 385*) — Claims—Allowance—Surrender of Preference-Existence of Trustee.</p> <p>Where there was a trustee of a bankrupt capable of acting when proofs of certain claims were filed and for eight months prior thereto, and he was not discharged for several weeks after they were filed, the fact that the claims were not submitted for allowance until after the trustee was discharged and his account allowed, and the composition confirmed, did not prevent the referee from allowing them only on condition of surrender of a preference, under Bankr. Act, § 57g (Act July 1, 1898, c. 541, 30 Stat. 560, 562 [U. S. Comp. St. 1901, pp. 3443, 3445]), providing that claims of creditors who have received preferences voidable under section 60b, by the trustee, shall not be allowed unless the preferences are surrendered, since the estate could be reopened, if necessary, as authorized by section 2 '(8), in order that a trustee be appointed to receive the preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 385.*]</p>

<p>1. Bankruptcy (§ 123*) — Trustee—Election—Right to Vote — Director of Bankrupt Corporation.</p> <p>Where a creditor of a bankrupt corporation had a bona fide claim against it. and there was no evidence of collusion or improper influence, the fact that a creditor was also a director and stockholder of the bankrupt corporation did not disqualify him to vote for a trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 123.*]</p> <p>2. Bankruptcy (§ 123*) — Claims—Verification—Amendment.</p> <p>An objection that the claim of a creditor was defective, in that it was verified by his attorney without any statement of a reason therefor, while good if interposed at the creditors’ meeting, before vote taken for trustee, when, in the discretion of the referee, it may be amended in time to permit the creditor to vote, was unsustainable, when not interposed until after the appointment and qualification of the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 123.*]</p>

<p>Receivers (§ 119*) — Glassification of Claims.</p> <p>Where a court of equity lies taken possession of the property of an insolvent street railway company for distribution among creditors, and pursuant to notice claimants have filed and proved their claims, each should be classified by the court in accordance with what the proof shows to be its character, and claimants will not be required to give notice of the particular classification or preference claimed.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 261-266; Dec. Dig. § 149.*]</p>

<p>In Equity. Suits by the Pennsylvania Steel Company against the New York City Railway Company, by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company, and by the Guaranty Trust Company against the Metropolitan Street Railway Company. On petition of receivers of the Metropolitan Street Railway Company for instructions in reference to surrender of certain franchises and removal of certain disused tracks of the Metropolitan Company.</p>

<p>1. Bankruptcy (§ 415*) — Application for Discharge — Special Master — • Appointment.</p> <p>While Bankr. Act July 1, 1898, e. 541, § 14, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), requires the judge personally to hear the bankrupt’s application for discharge, the judge may nevertheless avail himself of preliminary assistance and appoint a special master.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p> <p>2. Bankruptcy (§ 415*) — Application for Discharge — Hearing—^Appointment of Master — Fees. /</p> <p>While it is customary to select the referee as special master to hear an application for a bankrupt’s discharge, any other person may be appointed in the discretion of a judge, and, when so appointed, is entitled to reasonable compensation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p> <p>3. Bankruptcy (§ 482*) — Application for Discharge — Hearing—Allowance to Bankrupt’s Attorney — Diability of Objecting Creditors.</p> <p>Fees of a bankrupt’s attorney for services in prosecuting a petition for the bankrupt’s discharge cannot be charged against objecting creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 482.*]</p>

<p>Í. Carriers (§ 12*) — Regulation of Rates — Rowers of State.</p> <p>A state has the power to .establish rates to be charged by common carriers for the exclusively intrastate carriage of freight and passengers, either by the direct action of the lawmaking department or by a commission to whom that department has by law delegated it, subject to the restriction that the rates made must he reasonable and fair to the carrier and the public, and not confiscatory of the carrier's property.</p> <p>[Ed. Note. — Eor other eases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>2. Carriers (§ 12*) — State Regulation of Rates — Reasonableness of Rates — Burden of Proof.</p> <p>Rates established by a state for the intrastate carriage of freight and passengers are presumptively reasonable and just, and the burden of proof to show the eontraTy is upon the x>arty attacking them.</p> <p>[E"d. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*] ■ . ■</p> <p>3. Carriers (§ 12*) — State Regulation of Rates — Suit for Injunction.</p> <p>To justify a court in setting aside rates established by a state for the intrastate carriage 'of freight and passengers, it is incumbent on the .■carriers to piove by evidence which is clear, unequivocal, and convincing, and leaves the court reasonably free from doubt, that they are unjust and confiscatory, and that to make them conipeusatory the rates would not have to be so high as to make them oxipressive to the imblic.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*J</p> <p>4. Carriers (§ 12*) — Rates—Reciprocal 'Rights of Carrier and Public.</p> <p>The rights of carriers and the public with respect to rates are reciprocal. The carrier is entitled to ask a fair return on the value of its property which it employs for the imblic convenience, and the public is entitled to demand that no more be exacted from it for the use of the public highway than the services rendered are reasonably worth.</p> <p>TEd. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>5. Commerce (§ 34*)- — State Regulation oe Rates — Constitutionality-Interference with Interstate Commerce.</p> <p>Rates established by a state for the iutrastate carriage of freight or passengers necessarily indirectly affect interstate rates; but that fact does not .render the establishment of such rates unconstitutional, as an interference with interstate commerce.</p> <p>[Ed. Rote. — For other cases, see Commerce, Cent. Dig. §§ 26, 82; Dec. Dig. § 34. *J</p> <p>6. Carriers (§ 12*) — Regulation of Rates — I’owees of State.</p> <p>The right of every sovereign state to regulate public service corporations and the rates to be charged by them, subject to the provisions of the fourteenth constitutional amendment, prohibiting deprivation ,of one's property without due process of law, and other constitutional provisions, rests upon the police power of the stale.</p> <p>[Ed. Role. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>7. Carriers (§ 12*) — Rates Established by State — Reasonableness—Evidence.</p> <p>The fact that intrastate freight and passenger rates established by a state are not lower than those in other states of itself raises no presumption that such rates are reasonable, and not confiscatory.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>8. Carriers (§ 12*) — Rates Established by State — Reasonableness—Evidence.</p> <p>The reasonableness of rates for the intrastate carriage of freight and passengers established by a state, as affecting a particular carrier, cannot be determined alone from the kind or amount of business done by such carrier; the fact remaining, which must be considered, that it is entitled to earn a fair return on its investment, if it can be done without making the rates oppressive.</p> <p>[Ed. Rote. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>9. Carriers (§ 12*) — Rates Established by State — Reasonableness—Ret Earnings of Company.</p> <p>In computing the net earnings of a railroad company for the, purpose of determining the reasonableness or confiscatory effect of rates established by the stale on intrastate business, sums paid out by the company for injuries to persons may properly be included in operating expenses.</p> <p>[Ed. Rote. — For other cases, see Carriers, Cent. Dig. §| 7-20; Dec.- Dig. § 12.*]</p> <p>10. Courts (§ 508*) — Jurisdiction of Federal Courts — Suit to En.iotn Enforcement of Rati.road Rates.</p> <p>■Under the laws of Arkansas creating and prescribing the powers of the slate railroad commission, a railroad company, affected by an order of such commission establishing intrastate rates, made after a full hearing, may maintain a suit in the federal court to enjoin the enforcement of such rates as confiscatory and unconstitutional, without first applying to the commission for their reduction.</p> <p>[Ed. Rote. — For other eases, see Courts, Cent. Dig. §§ 1418-1430; Dee. Dig. § 508.*J</p> <p>11. Carriers (§ 18*) — Rates Established by State — Suit to Enjoin Enforcement — Estoppel iiy Acquiescence.</p> <p>The fact that railroad companies complied with an order of a state commission establishing freight rates for five years raises a strong, but not conclusive, presumption that such rates are reasonable; but it does not estop the companies from thereafter maintaining a suit in equity to enjoin the enforcement of such rates as confiscatory, on clear proof that conditions have so changed, by the increase of operating expenses or otherwise, that the net earnings thereunder on their entire intrastate business have ceased to be compensatory.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 16-20; Dec. Dig. § 18.*]</p> <p>12. Carriers (§ 18*) — ‘Rates Established by State — Suit to Enjoin Enforcement.</p> <p>Where a fair trial for one year by railroad companies of rates established by a state on intrastate business has demonstrated that such rates are not compensatory, the companies cannot be deprived of their right to an injunction restraining the further enforcement of such rates by speculation as to the effect their continuance might have on future business.</p> <p>[Ed. Note.- — For other cases, see Carriers, Cent. Dig. §§ 16-20; Dec. Dig. § 18.*]</p> <p>13. Carriers (§ 12*) — Rates Established by State — Suit to Enjoin Enforcement — Earnings of Company from Intrastate Business.</p> <p>In computing the net earnings of a railroad company from its intrastate business under rates established by the state, to determine whether or not such rates are compensatory, miscellaneous earnings and expenses, not directly attributable to either its intrastate or interstate business, may properly be apportioned between the two on the basis of the earnings from each source.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>14. Carriers (§ 12*) — Rates Established by State — Suit to Enjoin Enforcement — Earnings of Company.</p> <p>All of the stock of a railroad company owning lines in Arkansas was owned by a second company, which latter had been given 40 per cent, of the stock of an express company in consideration of the grant of the exclusive privilege of doing business over all the lines controlled by it, including those of the subsidiary company in Arkansas, and it annually received dividends on such stock, but no part of the same was apportioned to the subsidiary company. Held, that in computing the earnings of the subsidiary company, for the purpose of determining whether intrastate rates established by the state of Arkansas were confiscatory, it must be credited with its proper share of the dividends received on the express stock, which, in the absence of other evidence, might properly be apportioned on a mileage basis.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>15. Carriers (§ 12*) — Rates Established by State — Suit to Enjoin Enforcement-Earnings of Company.</p> <p>In computing the earnings of a railroad company from its intrastate business, for the purpose of determining whether rates established by che state are confiscatory, the fair rental value of the dining room, saloon, check stand, etc., privileges in a passenger station must be included in such earnings, although it in fact grants such privileges for a merely nominal rental.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dee. Dig. § 12.*]. .</p> <p>16. Carriers (§ 12*) — Rates Established by State — Suit to Enjoin Enforcement — Expenses of Company.</p> <p>In computing the net income of a railroad company, for the purpose of determining the reasonableness of state rates, the intrastate business of the company is justly c-hargeahle with its proper proportion of the expense incurred by the company in maintaining agents in various parts of the country to solicit business.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.* I</p> <p>17. Carriers (§ 12*) — Rates Established by State - Reasonableness — Value of Property Devoted to Intrastate Business.</p> <p>On an issue as to whether railroad rates on intrastate business established by a state are reasonable or confiscatory with respect to a railroad company doing both intrastate and interstate business, the proportion of the entire value of the property of the company in the state which is devoted to the intrastate business, and on which it is entitled to earn a fair return from such business, may fairly be determined on the basis of the earnings, by tailing the same proportion' of the entire value that the intrastate earnings hear to the entire earnings in the state from both intrastate and interstate business.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 32.*]</p> <p>18. Carriers (§ 12*) — Rates Established by State — Reasonableness—Expense of Doing Local Business.</p> <p>On an issue as to whether railroad rates on intrastate business established by a state are reasonable or confiscatory with respect to a company doing both intrastate and interstate business, the expense of doing the intrastate business cannot properly be computed alone on the basis of the earnings from such business as compared with the total earnings from both classes; hilt other factors should he taken into consideration, such as the comparative ratés received fot and expense of handling each class, the kind of traffic forming the bulk of each, especially where the interstate business is largely in the carriage of grain and similar commodities paying a low rate, which forms but a small part of local shipments, and other matters which under the particular circumstances affect the question.</p> <p>TEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 32.*]</p> <p>19. Carriers (§ 12*) — Rates Established by State — Reasonableness—Cost of Maintenance.</p> <p>In apportioning the cost of maintaining the way and structures of a railroad between its intrastate and interstate business, on an issue as to the reasonableness of intrastate rates established by a state, there seems no fairer basis than the earnings from the two classes of business; while, on the other hand, the cost of locomotive and car maintenance which should he charged to each class of business can be more nearly approximated by using the ear mile basis.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. i 32.*]</p> <p>20. Carriers (§ 12*) — Rates Established by State — Reasonableness—Cost of Maintenance.</p> <p>The apportionment of the cost of maintenance of freight cars of a railroad company considered, as between its intrastate business, its interstate business terminating or originating in the state, and its through or transstate business, on an issue as to the reasonableness of rates established by the state.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>21. Carriers (§ 12*) — Rates Established by State — Reasonableness—Expenses.</p> <p>The basis for apportionment of various expenses of a railroad company between its intrastate and interstate business considered, on an issue as to the reasonableness of rates established by the state.</p> <p>[Ed. Kote. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>22. Carriers (§ 12*) — Rates Established by State — Reasonableness—Injunction.</p> <p>Railroad companies in Arkansas held entitled to earn an income of 0 per cent, per annum on the value of their property employed in intrastate business, computed on the basis of the assessed valuation of such property, and from the earnings of a prosperous year to reserve a surplus of 1.5 per cent, in addition; and the rates established by the Arkansas Railroad Commission and the two-eent passenger law of February 9, 1907 (Acts Ark. 1907, p. 10), held, confiscatory as to such companies, and their enforcement enjoined.</p> <p>[Ed. Note.' — For other cases, see. Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p>

"Indictments against the Merchants’ & Miners’ Transportation Company, against the Atlantic Coast Line Railroad Company, and against the Seaboard Air Line Railway Company for violating the interstate commerce act as amended. On plea in abatement, alleging error in the drawing of the grand jury.

<p>Indictment of the Merchants’ & Miners’ Transportation Company, the Atlantic Coast Tine Railroad Company, and the Seaboard Air Tine Railway Company for violating the interstate commerce act as amended.</p>

Indictment against Harvey C. Miller and another for violating the interstate commerce act as amended. On plea in abatement.

<p>Carriers '(§ 38*) — Interstate Commerce Law — Violation.</p> <p>Interstate Commerce Act Eeb. 4, 1887, c. 104, § 6, 24 Stat. 380 (TJ. S. Comí). St. 3901. p. 3156), as amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 586 (U. S. Comp. St. Supp. 1909. p. 1353), provides that every common carrier subject to the act shall file with the Interstate Commerce' Commission, and print and keep open to public inspection, schedules showing all rates, etc., and containing the classification of freights in force, and any rules or regulations affecting or determining any part or the aggregate of such rates, or the value of services rendered to the passenger. shipper, or consignee, and that copies of such schedules for the use of the public “shall be kept posted in two public and conspicuous places in every depot, station or office of such carrier where passengers or freight, respectively, are received for transportation.” field, that an indictment charging shippers with receiving a concession, in that they accepted transportation of certain freight at a less rate than that filed with the Interstate Commerce Commission, but which failed to charge that the higher rate so filed had been and was posted as required, was fatally defective.</p> <p>[Ed. Note — For other cases, see Carriers, Dec. Dig. § 38.*]</p>

Proceeding by the United States against Frank H. Barrett and Charles D. Reid for contempt. Information was filed herein as follows: In the Circuit Court of the United States for the Northeastern Division of the Southern District of Georgia.

<p>1. Pleading (§ 62*) — Joint Torts.</p> <p>Where plaintiff, a passenger in an automobile, was injured in a collision with another automobile, and alleged that defendants, the owners of both cars, their servants and agents, did not use due and proper care and skill, and then and there so carelessly ran, managed, and operated the automobiles that they collided, in consequence whereof, etc., such allegation stated a cause of action against defendants as joint tort-feasors.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 132; Dec. Dig. § 62.*]</p> <p>2. Pleading (§ 62*) — Joint and Several Liability.</p> <p>Where plaintiff, a passenger in a taxicab, was injured in a collision with another automobile, and defendants severally owned and severally operated the cars that came into collision, a count in the declaration that defendants, their servants and agents, did not use due care, but so carelessly managed and operated the automobiles that they came together, etc., did not state the case as it existed, under the rule that, if the collision resulted in consequence of the negligence of both drivers, the tort was one for which the defendants were jointly and severally liable.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 62.*]</p> <p>3. Parties (§ 27*) — Action (§ 38*) — Joint Tort — Joinder.</p> <p>Where defendants were charged with a joint tort in the separate operation of separately owned automobiles, there was no error in their joinder as parties defendant in an action for injuries, regardless of any rights plaintiff might have under Gen. Laws R. I. 1909, c. 283, § 20, providing that, when plaintiff is in doubt as to the person from whom he is entitled to recover, he may join two or more defendants, with the view of ascertaining which, if either, is liable, and may recover only against such of defendants as are liable, etc.</p> <p>[Ed. Note. — For other eases, see Parties. Gent. Dig. § 35; Dec. Dig. § 27 ;* Action, Cent. Dig. § 5-19; Dec. Dig. § 38.*]</p> <p>4. Pleading (§ 53*) — Joint and Several Liability — Causes of ActionJoinder.</p> <p>Gen. Laws R. I. 1909, c. 283, § 20, provides that, whenever plaintiff is in doubt as to the person from whom he is entitled to recover, he may join two or more defendants, and recover only against such as may be liable. Held that, where defendants were properly sued as joint tortfeasors, plaintiff may join a separate count against each.</p> <p>|Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 114-117; Dec. Dig. § 53.*]</p>

■In Error to the Circuit Court of the United States for the District pf •Colorado. Action by Jacob Maki, administrator of August Wainianpaa, against the Union Pacific Coal Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Niels Nielsen against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Bill by the Board of Trade of the City of Chicago and the United States against the Merchants’ Stock & Grain Company and others. From an order finding defendants guilty-of contempt of an interlocutory injunction, they bring error.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Bill by W. F. Cowham against Charles N. Haskell, Governor of Oklahoma, and others. Decree for complainant, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Constitutional Law (§ 143*) — Contracts—Impairment op Obligation.</p> <p>On September 24, 1886, pursuant to chapter 107, Laws of Kansas 1876, the county of Clark subscribed for stock of a railroad company, and agreed to pay for it in its bonds bearing interest at 6 per cent, per annum payable in 80 years from their date and on April 10, 1889, it delivered its bonds so payable according to this contract.</p> <p>On March 5, 1887, chapter 77, Laws of Kansas 1887, provided that any county in that state might redeem any of its bonds thereafter issued to railroad companies at any time after 10 years from the date of their issue, and Clark county called these, bonds in 1902, and gave notice that interest would cease thereon on October 10th in that year.</p> <p>Held, if the act of 1887 was applicable to the bonds in controversy, it impaired the obligation of the county’s contract of subscription, and was void, and if it did not apply to them that contract was valid, so that in either case the county was obligated to pay the interest on the bonds for 30 years from their date.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 346-348; Dee. Dig. § 143.*]</p> <p>2. Counties (§ 184*) — Bonds—Construction—Statutes—Estoppel of Recital — Chapter 107, Laws of Kansas 1876, and Chapter 77, Laws of Kansas 1887.</p> <p>The fact that there was a recital in the bonds that they were issued by virtue of the authority conferred by the act of 1876 and by the acts of the Legislature amendatory thereof (Acts 1877, cc. 142, 144) and supplemental thereto did not estop the railroad company or the plaintiff, a bona fide purchaser for value, from enforcing the county’s obligation to pay the interest on the bonds after the call because the act of 1887 conferred no authority to issue the bonds, and was not amendatory of or supplemental to the act of 1876.</p> <p>fEd. Note. — For other cases, see Counties, Dec. Dig. § 184.*]</p>

<p>Injunction (§ 101*) — Labor Strike — Acts of Violence or Intimidation.</p> <p>Union or other laborers have the right to quit the service of an employer when they choose to do so. and they may by peaceable methods persuade others to quit the service of an employer, but when they go beyond that, and attempt to induce laborers who have tilled the places abandoned by (hem to quit work either by actual assaults or by threats, abusive language, or other means calculated to intimidate such workmen, they are without their rights and will be enjoined by a court of equity.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ :174, 175; Dee. Dig. § 101.*</p> <p>Restraining boycotts, strikes, and other combinations by employes interfering with commerce or business, see note to Shine v. Fox Bros. iMl'g. Co., 86 O. C. A. 313.]</p>

<p>1. Contracts (§ 234*) — Construction—Building Contract.</p> <p>Under a contract for the building of a reinforced concrete structure, providing that the contractor should “provide all the materials and perform all the work for the * * * building of the concrete work,” and that, “if more or less concrete is required in foundations, it shall be added to or deducted from the contract price at a unit price of $6 per cubic yard,” where by a change in plans less concrete work was required in the foundation, the owner was not entitled to a deduction of $6 per yard for the concrete and a further deduction for the saving in steel; but the word “concrete,” as used in such provision, is to be construed as meaning reinforced concrete, including the necessary steel therein, in the absence of evidence showing that the sum stipulated is so variant from the actual cost that such construction could not have been within the intention of the parties.</p> <p>[Ed. Note.' — For other cases, see Contracts, Dec. Dig. § 234.*]</p> <p>2. Contracts (§ 196*) — Construction—Building Contract.</p> <p>Under a building contract requiring the work to be done under the direction of an architect, to be paid by the owner and having authority to condemn any part of the work and to require its replacement by the contractor, there is no ground for charging the contractor with the services of an inspector employed to see that the work conforms to the plans and specifications.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec1. Dig. § 196.*]</p> <p>3. Contracts (§ 300*) — Construction op Building Contract — Delay in Completion — “Causes Beyond the Control op the Contractor.”</p> <p>Under a building contract requiring the contractor to pay the owner a stated sum per day for delay in completing the building beyond the time fixed by the contract, but further providing that the penalty should be suspended, should the work be delayed “by causes beyond the control of the contractor,” such provision must be construed with regard to the circumstances and to the ordinary course of business at the time of the contract. The bare fact that materials were ordered and delayed in manufacture or transit does not show a cause beyond the control of the contractor; nor does the failure to get material from a particular man, unless it was of such peculiar character as not to be procurable elsewhere; and, even when shown that there was unavoidable delay in obtaining material, it must be further shown that the delay in completion of the building was in fact due to that cause.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1372-1381; Dec, Dig. § 300.*]</p> <p>4. Damages (§ 79*) — Construction op Stipulation in Contract — Liquidated Damages or Penalty.</p> <p>Where the actual damages resulting from the failure to complete a building by the time fixed by the contract was not shown, a stipulation for tile payment by the contractor of a stated sum per day after such time and until completion will be treated as oue for liquidated damages, and not as a penalty, and enforced.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. § 79.*]</p>

<p>In Equity. Suit by the Western Union Telegraph Company and others against the American Bell Telephone Company. On exceptions to master’s report.</p>

<p>1. Injunction (§ 37*) — Possession oe Land — Disputed Title — Prior Trial at Law.</p> <p>Where, in a suit to restrain the conversion of the waste waters of a stream by the construction of a dam, complainant claimed to own the dam and reservoir site and also land below the dam under a wagon road grant which expressly reserved all lands containing mineral, and defendant denied plaintiff’s ownership, and claimed that the land was in fact mineral and so reserved, defendant was entitled to a trial of the issue of complainant’s title to a jury, and hence a court of equity would not oust defendant’s possession or enjoin it from using the premises until complainant’s title had been established at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 85; Dec. Dig. § 37.*]</p> <p>2. Public Lands (§ 114*) — Patent—Collusiveness.</p> <p>The issuance of a patent to certain lands by.the United States was not a conclusive adjudication that the lands were nonmineral, where the patent itself contained an exception of all mineral lands should any be found in the tract described.</p> <p>IKd. Note. — For other cases, see Public Lands, Cent. Dig. ,'>14-322; Dec. Dig. § 314.*</p> <p>Decisions of land deparment, their conclusiveness and effect, see notes to 1 lari man v. Warren, 22 C. O. A. 38; Carson City (fold & 8. 31. Co. v. North Star 3Dn. Co., 28 C. C. A. 344 ; TJinta Tunnell 31. & T. Co. v. Creede & C. C. 31. & 31.. Co., 57 C. C. A. 207.]</p> <p>3. Waters and Water Courses (| 85*) — Riparian Proprietors —Right to Fi.ov -Injunction.</p> <p>While a riparian proprietor is entitled to the ordinary and usual flow of a stream so long as it is of beneficial use to him, including under some circumstances flood waters reasonably to be expected during the ordinary seasons, a lower riparian proprietor was not entitled to restrain diversion of the flood waters of a stream by a nonriparian proprietor, where he was not injured thereby.</p> <p>I Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. 84-90: Dec. Dig. § 85.*]</p>

Habeas corpus by the United States, on relation of one Ueberall, against William Williams, as Commissioner of Immigration at the port of New York. This ease comes up upon return to a writ of habeas corpus issued to inquire into the detention of the relator by the immigration authorities at Ellis Island, in this district, under warrant, of deportation issued by the Secretary of Commerce and Labor.

<p>Trade-Marks and Tbade-Names (§ 70*) — Unfair Competition — Previous-Use — Color of Article.</p> <p>WEere complainant manufactured and sold an alleged dustless dust-cloth of black color, but be was not a pioneer in the business, be was not entitled to restrain defendant from manufacturing, and putting out in competition, a similar cloth made from black material purchased from, another.</p> <p>[Ed. Note. — Eor other eases, see Trade-Marks and Trade-Names, Dec-Dig. § 70.*</p> <p>Unfair competition, see notes to Sebeuer v. Muller, 20 C. O. A. 165; Rare v. Harper & Bros., 30 C. C. A. 376.)</p>

<p>1. Courts (§ 310*)- — Necessary Parties.</p> <p>The rule that all persons interested in a suit in equity in a federal court having jurisdiction on the ground of diversity of citizenship nm'st he made parties does not apply, where the bringing in of a dispensable party will oust the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. § 310.*]</p> <p>2. Courts (§ 317*) — Parties—Necessary Parties.</p> <p>A federal court, In determining whether the requisite diversity of citizenship to give it jurisdiction exists, must align the parties on one side or the other according to their real interests.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 317.*]</p> <p>3. Courts (§ 308*) — Federal Courts — Jurisdiction—Citizexsiiip oe Parties.</p> <p>The Federal Mining Company, a Delaware corporation, the Bunker Hill Company, and the January Company, both Oregon corporations, each owned a mining claim, and all three claims conflicted. The Federal Company sued the Bunker I-Iill Company in the United States court to quiet title and for an accounting for ores taken from the overlaps, and the January Company had .a similar suit against the Bunker Hill Company in the state court. The Bunker Hill Company moved to make the January Company a party in the suit in the United States court, which was resisted on the ground that, because of the ownership of the entire January stock by the Federal Company, it could not he a defendant, 'hut must he a plaintiff, which would destroy the jurisdiction of the court by having an Oregon citizen on both sides of the case. Held, that the January Company could be made a defendant, since its claim was adverse to tlie Federal Company, though the relation between the two companies was not hostile.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 855, 856; Dec. Dig. § 308.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v, Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 O. C. A. 298.]</p> <p>4. Courts (§ 264*) — Federal Courts — Jurisdiction—Citizenship or Parties — Cross-Bill.</p> <p>The controversy between the Bunker Hill Company and the January Company could be litigated between them on cross-bill as ancillary to the main ease, though they were citizens of the same state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 801; Dec. Dig. § 264.*]</p> <p>5. Equity (§ 115*) — -Bringing in New Parties.</p> <p>The Federal Company could not complain of the making of the January Company a party defendant, -on the ground that it would complicate the issues, necessitate delay, and entail on it additional expense, since it had been in its power to bring the entire controversy into court in one suit.</p> <p>I Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 280 283; Dee, Dig. § 115.*]</p> <p>6. Courts (§ 489*) — Parties—Necessary Parties.</p> <p>The making of the January Company a party defendant did not interfere with the jurisdiction of the state court, for the state court could still proceed with the suit brought by that company.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1341; Dec. Dig. § 489.*]</p>

<p>Railroads (§ 216*) — Switch Tracks — Maintenance—Contract—Instruction —“Shall and May.”</p> <p>Complainant owned a coalyard, through which defendant operated a switch track. The railroad claimed to own the rails and ties, and, complainant refusing to concede that such was the fact, negotiations were entered into for the execution of a contract, in which complainant should concede to the railroad company a right of way and its ownership of the track, in consideration of which the railroad company should maintain the track and afford complainant service. Complainant having refused to route all possible traffic over defendant’s road, further negotiations resulted in a contract by which, in consideration of a dollar paid by tlie railroad company, complainant admitted that it was the lawful owner of the track, agreeing that defendant, its successors and assigns, “shall and may hare the right” to maintain and operate the side track until complainant. his heirs and assigns, shall serve on the railway company 60 days’ notice to remove the same. This contract was signed only by complainant and certain trustees under a mortgage deed to the property, and not by the railroad company. Hold, that tlie words “shall and may” as so used should not be construed as implying an absolute obligation on the part of the railway company, and that complainant was not entitled to restrain the railroad company from refusing to maintain the track.</p> <p>(Ed. Note. — For other cases, see Railroads, Cent. Dig. § 733; Dec. Dig. § 216.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by the Baer Bros. Mercantile Company against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Action at law by D. S. Snyder against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. The defendant in error (plaintiff below) recovered verdict and judgment against plaintiff in error (defendant below) for damages for the loss of an arm, incurred by plaintiff while engaged as yard conductor in coupling ears in the wéfet part of defendant’s “K. & O. yards,” so-called, near Knoxville, Tenn.

<p>1. Insurance (§ (568*) — Life Insurance — Assignment—Insurable Interest — Questions for Jury.</p> <p>Decedent having obtained two life insurance policies payable to his executors, administrators and assigns, assigned both to his nephew B., and thereafter decedent and B. again assigned the policies to plaintiff bank as security for a loan. Decedent was unmarried and bad no relatives in the United States. He was associated in business and lived in the same house with B., constituting a part of his family, but the nature of their business relation, whether partners or otherwise, was not shown. Decedent employed a lawyer to look after his affairs down to the time of his death which occurred when he was 51 years old. Held, that such assignment did not constitute a wager as a matter of law, on the theory that B. had no insurable interest in decedent’s life, since whether B. had reasonable ground to expect pecuniary advantage from decedent’s continued existence was for the jury.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 668.*</p> <p>What constitutes an insurable interest in human life, see note to Manhattan Life Ins. Co. v. Hennessy, 39 G. C. A. 632.]</p> <p>2. Insurance (§ 122*) — Ltfe Insurance — Assignment—Insurable Interest.</p> <p>A moral, as distinguished from a legal, obligation resting on insured to render a pecuniary benefit or advantage to an assignee of certain life policies, was sufficient to confer on such assignee an insurable interest.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 166, 167: Dee. Dig. § 122.*]</p>

Petition by the Cummins Grocer Company and others for adjudication in involuntary bankruptcy against Ben Talley. From a judgment dismissing the petition, plaintiffs bring error and appeal.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>Suit in equity by Mary Frank against John Schnuettgen. Decree for defendant, and complainant appeals.</p>

<p>In Error to the Circuit Court of the United Stated for the District of Connecticut.</p> <p>Action at law by D. E. Eoewe and others against Martin Lawlor and others. Judgment for plaintiffs, and defendants bring error.</p> <p>This canse, an action for damages under the anti-trust act, comes here upon writ of error to review a judgment of the Circuit Court, District of Connecticut, for $232,240.12 in favor of defendants in error, who were plaintiffs below. The verdict on which this judgment was entered was practically directed by the court, who left to the jury merely the matter of damages, as the “only question with which they could properly concern themselves.” The jury assessed the damages at $74,000, which amount the court trebled.</p>

<p>1. Brokers (§ 24*) — Relation—Broker’s Obeiuatiox.</p> <p>On the acceptance of a customer’s order and the deposit of a margin for the purchase of stock, the broker undertakes to advance the purchase money required in excess of the margin and promptly obtain the stock ordered, to carry and hold such amount of stock in his hands or under his control as the property of, at. the risk and for the sole use of. the customer, ready for delivery on his order so long as the margins required by the broker are kept good, and to make delivery to the customer on payment of his advances, less any dividends paid on the stock, interest, thereon, and commissions, or to sell the shares on the order of the customer, and to account to him, for the proceeds in like maimer.</p> <p>I Ed. Note. — For other cases, see Brokers, Cent. Dig. § 19; Dec. Dig. § 24.*]</p> <p>2. Brokers (§ 26*) — Broker and Customer — Relation of Parties.</p> <p>The relation between customer and 'broker on the purchase of stocks on margin when the purchase is made is that of pledgor and pledgee, and not that of debtor and creditor, so that, while the customer’s property right in the stock purchased must be preserved, the certificates, being treated as only the evidence of property in the shares, are interchangeable in the hands of the broker so long as an equivalent amount of shares are kept under his control to meet the requirements of the contract.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 20; Dec. Dig. § 26.*]</p> <p>3. Brokers (§ 24*) — Purchase of Shares on Margin — Method of Business —Customer.</p> <p>Where a broker purchases stock on a margin for a customer, he is not authorized either by the custom of brokers or by the methods of dealing on the exchange to immediately sell the stock so purchased without retaining a sufficient number of shares on hand to deliver to the customer on demand and payment of the price, and thus to convert the transaction into a mere item of debit and credit between the broker and customer with no feature of present ownership of the stock.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 24.*]</p> <p>4. Brokers (§ 30*) — Contract—Performance.</p> <p>Where brokers, after purchasing stock for a customer on margin, immediately sold the same for their own benefit during the pendency of the transaction, and did not keep on hand a sufficient number of shares of the stock purchased to fulfill the contract in case delivery was demanded, and thereafter claimed to have closed the account by the sale of the stocks for the customer’s default in failing to supply the required margins, the brokers were not entitled to recover losses sustained because of a failure to show performance on their part.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 30.*]</p>

Proceeding in admiralty by Henry W. Cook for limitation of liability. From a decree awarding damages to Robert Smith (Arch-bald, District Judge, not agreeing), petitioner appeals.

Habeas corpus by Chin Uen. From a judgment discharging the relator, the United States appeals. The following is the opinion of Martin, District Judge, in the lower court: The petitioner alleges in his petition for the writ: First, that the relator’s appeal to the Secretary of Commerce and Labor was considered and passed upon by Ormsby McHarg, Acting Secretary, and not by the Secretary.

Bill by Henry T. Ankeny, as guardian, etc., and Lillie B. Ankeny, against Leslie T. Richardson and others. Decree for defendants, and complainants appeal.

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action at law by Eliza J. White, administratrix of the estate of Howard White, against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

- Suit in equity by Louis S. Owsley, personally and as executor of the will of Charles T. Yerkes, deceased, and others, against Mary Adelaide Yerkes and George W. Young. Decree for defendants, and complainants appeal.

<p>1. Principal and Agent (§ 103*) — Powers of agent — Implied Authority.</p> <p>After correspondence between defendants, in New York, and plaintiff, which operated a sawmill in Louisiana .for the manufacture of cottonwood lumber, with reference to the purchase 'by defendants of lumber to be cut by plaintiff during the ensuing season, defendants sent an agent to Louisiana, who signed an agreement in his own name for a contract to be drawn by defendants later, by which defendants were to purchase at stated prices all the better grades cut by plaintiff during the season, and to make monthly advances on the cut of the preceding month until the lumber was cured and shipped. It was further provided that defendants should also make monthly advances, by way of loan, on all the lower grade lumber cut by plaintiff, which was more than half the entire cut, the same to be repaid as plaintiff should sell and ship such lumber. Held, that the agent had no implied nor apparent authority to make a contract containing such an unusual provision, no such thing having been mentioned in the correspondence, and that in the absence of ratification the agreement was not binding on defendants.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dee. Dig. § 103.*]</p> <p>2. Principal and Agent (§ 170*) — Unauthorized Contract of Agent-Ratification.</p> <p>In view of the fact that the so-called agreement was in the form of a letter from plaintiff to defendants, that it was signed by the agent individually, and provided for a formal contract to be'drawn by defendants, a delay of five days after its receipt before answering it did not amount to a ratification.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 638-643; Dec. Dig. § 170.*]</p>

Action by E. B. Hawkins, sheriff and administrator of Samuel C, Delay, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Eastern Division óf the Northern District of Illinois.</p> <p>Bill by Albert A. Newman and others against the Newman Clock Company. Application by the Chicago Title & Trust Company as receiver of the corporation for the payment of receiver’s and attorney’s fees. From a decree denying such application, the receiver appeals.</p> <p>The bill of complaint was filed in the superior court of Cook county, 111., October 16, 1909, by appellee Albert A. Newman, as complainant, and the .other appellees as defendants. It was brought for an injunction to prevent alleged illegal corporate action feared by complainant, at the hands of the individual defendants, owners of 58 percentum of the corporate capital. Complainant owns the balance. The alleged apprehended wrong affected complainant’s interest as a stockholder. Other wrongs charged to have been already committed by defendant Renshaw were against the corporation, consisting of neglect and fraudulent mismanagement, an account of which was prayed, and an injunction against the holding of a certain corporate meeting in New York, alleged to be unlawful. A receiver was also prayed for to prevent the removal of the corporate assets from Chicago to New York. The relief prayed, other than the receivership, related entirely to the internal affairs of the corporation. The record does not show service of subpoena on any defendant, but there was an appearance in the state court by the corporation alone.</p> <p>Upon the filing of the bill, October 16, 1909, the state court issued a preliminary injunction, restraining Renshaw, Magoffin, and Ward from holding the corporate meeting, from managing the affairs of the corporation in the interest of another corporation, selling merchandise to a third corporation, or removing the corporate assets. Appellant was appointed receiver at the samp time, and complainant, as president, turned over to it the corporate assets. On October 19, 1909, defendants Clock Company, Renshaw. Magoffin, and Ward appeared specially in the state court and removed the case to tho federal court, upon the ground that they were citizens of different states from complainant, and that the proper jurisdictional sum was involved; alleging, also, that Fegtley and M. A. Newman were neither proper, necessary. nor indispensable parties, but were agents of complainant. The matter of the removal was brought to the attention of the state court. On the same day the removing defendants filed a transcript of the record in the circuit court, and at once filed a general appearance therein (called on its face a special appearance), asking a dissolution of the injunction, a discharge of the receiver and a dismissal of the bill, all on the alleged ground that the federal court, as well as the state court, was without jurisdiction. The next morning an order of removal was made 'by the state court.</p> <p>The defendant corporation appeared generally in the Circuit Court November 10, 1909, and filed a general demurrer to the hill, and a special demurrer to the jurisdiction of the state court over the subject-matter, or the persons of the corporation and other removing defendants, an(i a like demurrer to the jurisdiction of the Circuit Court. The same day the receiver, on notice to all parties, applied to the court for directions, and was by it ordered to continue the corporate business; no one objecting. Appellant continued the-business successfully, and until it was discharged.</p> <p>At or about the time of filing the transcript in the Circuit Court the removing defendants again appeared generally in that court by giving- notice to complainant that they would apply for an order compelling complainant to file a bond for $300,000 against loss by reason of the temporary injunction, and an additional bond for $300,000 against damage from the receivership, for dissolution of the injunction, discharge of the receiver, and dismissal of the hill for want of jurisdiction in the state court. The motion went over until the next day. when the third and fourth general appearances of the removing defendants were made (also denominated special ones), by filing formal motion for dissolution and discharge, as outlined in the notice of tiny previous day. and a formal motion for bonds, reducing the amotints, however, from $300,000 to $100,000. A hearing of the motions was set for October 2(5ih. prior to which all the removing defendants served affidavits in support of their motions.</p> <p>The motions were heard and taken under advisement. The hill having been lost, it was stipulated between counsel for the receiver and the removing defendants that an amended and supplemental bill might be filed, which was done December 14. J909, and subpoena issued, returned non eat inventus as to defendant Renshaw. On December 18th, the Circuit Court made an order finding that the solicitors for defendants Renshaw, Magoffin, and Ward had no authority to make other than a special appearance, and did not intend to do so. that the appearance of October 19th be stricken out, and all motions in behalf of said defendants held Cor naught. This left the case standing on general demurrer and motion io dismiss for want of jurisdiction interposed by the corporation defendant alone.</p> <p>The demurrer of the corporation was sustained December 18, 1909, the receiver discharged, and ordered to turn back io the corporaiion all its property. It was also directed to present its accounts for consideration within three days. It filed a detailed account showing gross cash receipts of $25-(í99.(íí>. and disbursements $12,105.9(5, including $500 paid to its attorneys, and $1.000 retained for its own compensation, leaving due from it, if the claims for fees should he allowed, $13,593.73: also showing that S4.414.98 was turned over to it at the time it took possession, so that it had $9,178.75 more money on hand than at the beginning. December 23d the Clock Company moved the court to compel the receiver to pay over all funds, without deducting the $1.500 on account of attorneys’ and receiver's fees. The receiver answered, showing that it had conducted the business successfully, had saved about $500 by discontinuing the president’s salary; that it was ordered to continue the business by the court, without any objection; that it was not concerned in the question as to who should pay the fees, nor how the items should be taxed, but was advised that the court had signified its purpose of taxing them against complainant, who proposed in that case to take an appeal, suggesting that it be permitted to retain the $1,500 until it should be definitely settled who should pay it. It further suggested that it might properly be permitted to retain the money, “subject to repayment undoubtedly by complainant to the defendant company, should it finally be ■ determined that this is just and equitable, but thus leaving this respondent not involved nor mixed up between the parties in this litigation.” It further appeared by affidavit that an attorney for the corporation informed an employs of the receiver within two days after its appointment that defendant claimed the state court had no jurisdiction to appoint the receiver, and that it would have to look to complainant for its fees and expenses.</p> <p>The court filed its opinion on the motion to pay over on July 21, 1910, holding that the settled rule in Illinois, and in the federal courts, is that, where the court is without jurisdiction to appoint the receiver, the latter cannot withhold any of the fund for compensation or costs, but must account to defendant for the whole. The opinion continues: “Most of these cases hold that the costs should' be taxed against the complainant. It would seem equitable to hold that, if by reason of his services a receiver should render valuable services to the owner of the property, the court might take such fact into consideration in determining the question; but that service must result in the enhancing of the estate while in the receiver’s hands. The case in hand discloses no such condition. It follows that the receiver should pay over to the defendant the balance so retained by him and look to complainant for his costs and remuneration, and it is so ordered.”</p> <p>A decree was entered accordingly on the same day, by which it is found that the $1,500 was a fair, usual, reasonable, and just compensation for it and its counsel, but that it was not entitled to retain it because the state court had no jurisdiction to appoint a receiver, decreeing that the receiver pay the money to defendant Clock Company, and dismissing the amended and supplemental bill for want of jurisdiction, with costs against complainant. From this decree the receiver appeals, assigning as error the direction to pay over the money, the ruling that there was no jurisdiction to allow compensation,» or to appoint a receiver, or to entertain the suit.</p>

Action by the United States against Oberlin M. Carter and others to recover property belonging to the United States, misappropriated and embezzled by defendant as a disbursing officer of the United States in the furtherance of certain public improvements under 'contracts between the United States and John F. Gaynor,' Benjamin D. Green, and the Atlantic Contracting Company, in which a receiver was appointed and funds recovered to the extent of $8,000 in the Northern district…

<p>In Error to the Circuit Court of the United States for the District of Rhode Island.</p> <p>Action by Thomas Darnborough against Joseph Benn & Sons, Incorporated. From a judgment sustaining a demurrer to the declaration, plaintiff brings error.</p>

Bill by the Sandusky-Portland Cement Company against the Baltimore & Ohio Railroad Company. From a decree dismissing- the bill, complainant appeals. The appeal is from a decree of the Circuit Court dismissing the bill for want of equity; a demurrer to the bill having- been sustained by the court, and the appellant having failed and refused to further amend. The facts are stated in the opinion.

<p>Railroads G 328*) — Accidents at Crossings -Contributory Negligence.</p> <p>PlaiirfitFs husband, while driving across the main track of defendant’s railroad at a street crossing in a village, was struck and killed by a mail train, running at a speed of about 40 miles an hour, which did not stop at such station. Deceased had been driving along a parallel street, from which his view of the railroad was somewhat obstructed; but after turning upon the crossing street, and crossing a passing track, 45 feet from the main track, he had a clear view along the main track in the direction from which the train approached for several hundred feet, obstructed only occasionally by the smoke and steam from an engine standing on the passing track. He did not stop to look or listen after crossing ihe passing track. Hold, that his failure to do so constituted contributory negligence as matter of law, which precluded a recovery for his death.</p> <p>|Ed. Note. — For other eases, see Railroads, Cent. Dig. §4j 1057-1070; Dec. Dig. $ 328.*|</p>

, Appeal from the Circuit Court of the United States for the Southern District of Ohip. In the matter of the application - for the appointment of a receiver for P. P. Mast & Co., in which the Bettendorf Metal Wheel Company intervened, claiming the proceeds of certain assigned claims. From a decree denying intervener’s claim for preference, it appeals.

<p>1. Aliens (§ 32*) — Chinese Deportation — Bail.</p> <p>Proceedings for deportation of Chinese aliens not being criminal in character, the general statutory provisions concerning bail in criminal cases do not apply thereto.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 91; Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*) — Chinese Persons — Deportation Proceedings — Bail — Statutes — Application.</p> <p>Act Cong. Nov. 3, 1893, c. 14, § 2, 28 Stat. 8 (U. S. Comp. St. 1901, p. 1322), regulating deportation of Chinese, and providing that,'after determination by the District Court of an appeal from a deportation order, the order shall be executed by the marshal with all convenient dispatch, and pending such execution the Chinese person shall remain in the marshal’s custody and shall not be admitted to bail, applies, and denies bail only when a final order of deportation has been made, and has no application to the question whether bail may be allowed pending an appeal from the decision of the commissioner.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 94; Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 32*) — Deportation of Chinese — Bail.</p> <p>Chinese Exclusion Act May 5, 1892, c. 60, § 5, 27 Stat. 25 (U. S. Comp. St. 1901, p. 1319), prohibits courts of the United States from allowing bail in deportation proceedings against Chinese persons seeking to land in the United States in the first instance, and Act Cong. Nov. 3. 1893, e. 14, § 2, 28 Stat. 8 (U. S. Comp. St. 1901, p. 1322), prohibits the allowance of bail after the rendition of a final deportation order and pending its execution by the marshal. IIeld, that such sections, by implication, did not give an absolute right to bail to a Chinese person domiciled and residing in the United States at the time of his arrest for deportation, pending an aplica 1 from a commissioner's order to the District Court, but authorized the granting or withholding of bail under such circumstances in the exercise of discretion.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dec. Dig. § 32.*]</p>

Suit in equity by William E. Colley against the New York Zinc Company, Charles C. Wolcott, and Frances E. Wolcott. Complainant and the defendant corp'oration appeal from a part of the final decree making an allowance to complainant’s solicitors.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.-</p> <p>■ Action by George E. Gale against the Canada, Atlantic & Plant Steamship Company, Limited. Judgment for plaintiff, arid defendant brings error.</p>

Petition to Review and Revise an Order of the District Court of ' the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy. In the matter of the United States Decalcomania Company, bankrupt. Petition by William Hegner against the American Trust & Savings Bank, as trustee in bankruptcy of said Decalcomania Company, to revise an order of the District Court.

<p>Appeal from the District Court of the United States for the District of Montana.</p> <p>Habeas corpus, on petition of Hyoma Matsumura, to obtain his release from custody of Martin L. Higgins, Sheriff, pursuant to deportation warrant. From an order denying the writ, and remanding petitioner to custody, he appeals.</p>

Habeas corpus by Kara tura Suzuki to obtain her release from the custody of Martin L. Higgins under a deportation warrant. From an order denying the writ, petitioner appeals.

<p>Patents (§ 328*) — Novelty—Electrical Panel-Board.</p> <p>The Krantz patent, No. 705,850, for ail electrical panel-board, is void for lack of patentable novelty.</p>

<p>Patents (§ 328*) — Validity and Infringement — Belting.</p> <p>The Gilmer patent, No. 723,379, for a belting, claim 7, which was added by way of amendment and is a much broader claim than the others and than the device described in the specification, if valid at all, in view of the prior art, cannot be construed to cover the device of the Geisel patent, No. 726,670, which was invented pending Gilmer’s application and was known to him before he added such claim. Also, field not infringed by such Geisel device if conceded validity. if</p>

In the matter of Dr. Voorhees Awning Hood Company, bankrupt. On certificate from W. L. Hill, referee, sur claim of Dr. S. H. Voorhees. The following is the essential part of the referee’s report: Dr. Samuel Herbert Voorhees has filed various affidavits of claim, to which the trustee has filed exceptions.

<p>Patents (§ 328*) — Validity and Inekingement — Incandescent Lamp Socket.</p> <p>The Perkins patent, No. 626,927, for an Incandescent lamp socket, while it does not involve a conception of a broad and novel character, discloses invention, and the specific structure is novel and useful; also held infringed.</p>

<p>In Equity. Suit by the Cumberland Telephone & Telegraph Company against the City of Louisville.</p>

James A. Patten and others were indicted for alleged violation of the Sherman anti-trnst law in the running of a corner in cotton. On demurrer to indictment.

<p>At Law. Action by the United States against the Comet Oil & Gas Company and the Federal Union Surety Company. On demurrer to petition.</p>

At Law. Action by Anthony S. Hannay and others against the Guaranty Trust Company of New York. On demurrer to complaint.. The allegations of the complaint may be thus summarized: The plaintiffs carry on business in Liverpool, England. The defendant is a New York banking corporation. Knight. Yancey & Co. was a firm which formerly carried on business in buying and selling cotton in Alabama.

In the matter of the Miller Pure Rye Distilling Company, bankrupt. Erom an order (176 Fed. 606) adjudging the Penn National Bank of Reading to be the owner of certain property, Joseph A. Taney, trustee, appeals. Appeal from the District Court of the United States for the Western District of’Pennsylvania. In the matter of the Foxtown Distilling Company, bankrupt. From an order adjudging J. M. Selden & Co. to be the owners of certain property, Isaac N. Boarts, trustee, appeals.

Action by John W. Davis against E. H. Jennings and others, doing business under the firm name of the Producers’ & Refiners’ Oil Company. Judgment for plaintiff, and defendants bring error.

Action at law by the Manitowoc Malting Compan]'- against Joseph Feuchtwanger, Henry Feuchtwanger, and Aaron Feuchtwanger. Judgment for plaintiff (169 Fed. 983) and defendants bring error. Eór a number of years prior to 1907, plaintiffs in error, sellers of malt, had employed defendant in error to convert their barley into malt.

<p>Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In tlie matter of Thomas A. Ennis and Charles E. Stoppani, bankrupts. Walter Bamford petitions to revise certain orders of the District Court, and. also appeals from said orders.</p> <p>I. Statement of Facts Concerning the Claim of the Appellant Bamford.</p> <p>' The bankrupts were stockbrokers, doing business in New York City. The appellant was a customer of the bankrupts, who liad deposited certain securities with them as collateral for his speculative account, and who, after the bankruptcy, tiled a petition in the District; Court praying, among other things, for tlie reclamation of such of said securities as might have come into the possession of the receiver. While this proceeding was pending it appeared that the securities of various claimants — including some of the appellant’s— had been hypothecated to secure loans to the bankrupts at the Mechanics’ National Bank. New York, and that said bank had satisfied such loans liy the application of a balance on deposit to the credit of the bankrupts and by the sale of a portion of the collateral and liad a surplus fund on hand. The District Court ordered the bank to t.urn over this fund to the receiver, and thereafter tlie petitions of various claimants interested in such fund, including that of the appellant were in effect consolidated, and the rights of all parties referred to a special master for determination.</p> <p>■The special master found that 82 shares of Safety Car Heating stock had been deposited by the appellant with the bankrupts as collateral, and were included in the securities hypothecated with the Mechanics’ Bank, and that, after the bankruptcy, they were sold by the bank. The master further found that the claimant was entitled to a lien on said surplus fund turned over by the bank to the receiver, “subject to the payment of his proportion of the burden of the loan” — a condition which will he hereafter explained. The special master also found that 30 shares of Paterson Savings Institution stock had likewise been deposited by the appellant with the bankrupts, and had been included In the collateral delivered to the Mechanics’ Bank, and that; said shares had been returned unsold by the bank to the receiver and were in his possession. The master found that the appellant was entitled to receive said shares upon making the same contributions as in tlie case of the Car Heating stock. The report of the special master was confirmed by the District Court.</p> <p>The condition, “subject to tlie payment of his proportion of the burden of tlie loan,” attached by the master to the order in the appellant’s favor seems to mean substantially this; The master awarded relief to two classes of claimants for securities or proceeds — class A and class B. Claimants placed in class A were held entitled, by reason of superior equities, to the specific restitution of their securities, or were awarded a lien on said surplus fund for the amount of the proceeds of their securities, without contribution, except for expenses. Tlie fund was insufficient to pay all claimants upon this basis, so that the claimants placed in class B in receiving less than their proportionate share of the fund, were said to contribute to the burden of the loan. Tlie appellant was placed in class B and tlie primary contention made in his behalf is that he should have been put in class A.</p> <p>II. Statement of Facts Concerning the Claim of the People’s Bank.</p> <p>The special master, in addition to the claims of the nature already described as being placed in class A. allocated to that class the claim of the People's Bank of Passaic, N. .7., arising from an alleged constructive trust in certain funds which tlie special master found could be followed into the hank account of the bankrupts. The appellant Bamford, in addition to objecting to his own exclusion from class A, contends that there was error in including the People’s Bank in that class. The facts concerning this claim of the People’s Bank may be thus summarized from tlie findings of the special master:</p> <p>On April 9, 19Ü9, the People's Bank ordered sold through the bankrupts’ Passaic branch $15,000 of certain bonds. The order was executed upon the same day, and the bonds were sold to one Cohen. On April 12, 1909 — holidays intervening — the bonds were delivered to the bankrupts at New York. The messenger who delivered the bonds was instructed to obtain a certified check for their proceeds and to deposit the same in a New York bank. The 'messenger, however, delivered the bonds upon an uncertified check drawn upon the Mechanics’ Bank and deposited that. The condition of the bankrupts’- bank account upon said day would have permitted the certification of a check for the amount of the proceeds of said bonds. On Axiril 13, 1909. the bankrupts suspended, and payment of said uncertified check was refused by, the bank upon which it was drawn. The check received from Cohen for the purchase price of said bonds was deposited to the credit of the bankrupts in said Mechanics’ Bank. The People’s Bank had no account with the bankrupts, except a deposit account of the bankrupts, the balance due upon which was deducted by the master from the claim of said bank.</p> <p>Other material facts concerning both the claim of the appellant Bamford and that of the People’s Bank are stated in the opinion.</p>

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York. In the matter of Thomas A. Ennis and Charles E. Stoppani, bankrupts. Eouis F. Braun petitions to revise certain orders of the District Court, and also appeals from said orders.

<p>Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York.</p> <p>■ - In the matter of Thomas A. Ennis and Charles F. Stoppani, bankrupts. Alexander C. Lassen petitions to revise an order of the District Court, and also appeals from said order.</p> <p>The general nature of the proceedings involved in tills appeal is stated in Matter of Ennis. Bamford, Petitioner, 187 Fed. 720, decided this day. The present appellant contended in such proceedings that he was the owner of 18 shares of Tennessee Coal & Iron stock, which were deposited with the bankrupts before their failure, and which he claimed to follow into the proceeds of stock embraced in the pledge to the Mechanics’ Bank and exchanged by said hank for certain United States Steel bonds. Some of the bonds were sold by the Mechanics’ Bank in the liquidation of its loan, and the remainder were turned over to the trustee. Other Tennessee Coal & Iron shares liad been pledged by the bankrupts to the National Reserve Bank, and these shares were likewise exchanged for bonds, which, upon the liquidation of the loan to that hank, were also turned over to the trustee.</p> <p>It was stipulated that the special master should consider the appellant’s claim, not only as to the securities returned by the Mechanics’ Bank, but also as to these returned by the Reserve Bank. The special master dismissed the appellant's claim, upon the ground that he had failed to identify the stock which he sought to reclaim, and this action was affirmed by the District Court.</p>

<p>Insurance (§ 574*) — Adjustment of Loss — Proceedings Under Provision • for Appraisal.</p> <p>A provision in an insurance policy that “in the event of disagreement as to the amount of loss the same shall * * * be ascertained by two competent and disinterested appraisers,” the company and the insured each selecting one, is an agreement for an appraisement, and not an arbitration, subject to the strict rules governing arbitration and awards;' and, there being no requirement for notice nor necessity for witnesses, an appraisement is not vitiated by the mere fact that the appraisers met without notice to the company, while officers of the insured corporation were present and pointed out the damaged property, where there is no suggestion of undue influence or bad faith, and the appraisers made their valuation on their own knowledge of the subject..</p> <p>[Ed. Note.- — For other cases, see Insurance, Cent. Dig. §§ 1430-1432; Dec. Dig. § 574.*]</p>

<p>1. Municipal Corporations (§ 706*) — Use oe Streets — Motor Vehicle Accident-Contributory Negligence — Question eor Jury.</p> <p>In an action for injuries to a pedestrian while crossing a street at a crossing by being run into by a taxicab, evidence hold to require submission of the question of plaintiff’s due care to the jury.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dee. pig. § 706.*]</p> <p>2. Trial (§ 253*) — Instructions.</p> <p>Where, in an action for injuries to a pedestrian at a street crossing by being run into by a taxicab, the court charged that whether iilaintiff was • negligent was for the jury to determine, and that they should not weigh the extent of plaintiff’s fault, but, if he was at fault at all and his fault contributed to the result, he could not recover, defendant was not prejudiced by a further instruction that if plaintiff while on the sidewalk looked up and down the street, and, seing nothing of a dangerous character approaching, walked in the usual quiet manner across the street, looking as he went for what he could see, but looking incidentally and turning his head as he walked along, as a man usually does who goes along in an ordinary walk, then he was not at fault, in that such charge withdrew the issue of plaintiff’s contributory negligence from the jury; it being construed to refer only to the look and listen rule and a charge that such rule was inapplicable, and as explaining that, if plaintiff did the things hypothesized, he would not be at fault as a matter of law.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>3. Trial (§ 296*) — Instructions—Curing Error.</p> <p>Where, in an action for injuries to plaintiff by being struck by a taxicab at a street crossing, the court expressly charged that, if plaintiff was guilty of any fault which contributed to the accident he could not recover, such instruction cured an erroneous charge that, if plaintiff in crossing the street did anything that could have been called a run or if he did anything beyond the usual walking in the way the court had previously described in crossing the street, then it would be for the jury to find whether he was at fault, and whether such fault contributed to the result.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716; Dec. Dig. § 296.*]</p> <p>4. Municipal Corporations (§ 706*) — Use oe Streets — Injury to Travelers —Look .and Listen Rule.</p> <p>Under the Massachusetts law, there is no imperative rule that foot passengers in crossing streets are conclusively presumed to be negligent if they do not continuously look and listen to ascertain whether motor cars are approaching; the question of contributory negligence being for the jury if it appears that the person injured was walking across the street in the usual way. ^</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 706 ;* Highways, Cent. Dig. § 473.]</p> <p>Brown, District Judge, dissenting.</p>

R. D. Wooddell was convicted of embezzlement, and he brings error. The plaintiff in error was convicted of the crime of embezzlement under an indictment which charges that on or about March 1, 1909, iu the county of 'Pima, territory of Arizona, “being then and there intrusted by one Anna Duncan with a certain sum of money, to wit, 31,000, lawful money of the United States of America, and intrusted to the said It.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Mary McCord and others against, the Baltimore & Ohio Railroad Company. From a judgment in favor of defendant non obstante veredicto, plaintiffs bring error.</p>

Action by the United States National Bank of Portland, Or., against the Amalgamated Sugar Company, judgment for plaintiff (179 Fed. 718), and defendant brings error. The defendant in this action drew a clieck on its banker for $4,000, which in due course of banking business was received by the plaintiff, properly indorsed. and wiflioui knowledge of any defect impairing its commercial value.

Action at law by George C. Ball, receiver of the First National Bank of Carroll, Iowa, against the German Bank of Carroll County, Iowa, and others. Judgment for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States fo’r the Eastern Division of the Northern District of Illinois.</p> <p>Edward Enders and Henry Hinn were convicted of violating the oleomargarine law, and they bring error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>Action by the German Savings & Loan Society against the Commercial Union Assurance Company, Limited, of London, England. Judgment for defendant, and plaintiff brings error.</p>

Suit and cross-libel in admiralty for collision between the schooner Sunny South and the steamer Old Point Comfort. Decree against the steamer, and her claimant appeals.

<p>.1. Negligence (§ 136*) — Contributory Negligence — When Question fob Jury.</p> <p>Contributory negligence is a matter of defense, and is ordinarily a question for the jury. It is only where the facts are undisputed, or of such a conclusive character that the inference of negligence must be drawn therefrom, that a court will itself pass on the question.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 333-336; Dec. Dig. § 136.*]</p> <p>2. JUilroads (§ 350*) — Accidents at Crossings — Contributory Negligence —Question for Jury.</p> <p>Plaintiff was struck and injured by a train while driving over the tracks of defendant’s railroad at night in a light surrey. The crossing was in a city, and was guarded by gates during the daytime, but they were not operated so late at night. There was evidence that the train was running at a speed of 50 miles an hour, and that it gave no signáis of its approach; also that plaintiff stopped, but did not see nor hear a train. The track curved about 1,000 feet from the crossing. Held, that the question of plaintiff’s contributory negligence was properly submitted to the jury.</p> <p>I Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p>

In the matter of Thomas C. Fogarty, bankrupt; the Milwaukee Trust Company, trustee. From an order disallowing claim for counsel fees and disbursements, the bankrupt appeals. This is an appeal from an order denying appellant’s claim for an allowance out of the estate on account of certain services and disbursements of his attorneys.

<p>1. Admiralty (§ 2S*) — Action in IIem--Breach of Shipping Art toles by Master.</p> <p>A seaman may maintain an action in rem against the vessel for breach of the slopping articles, in that the master did not treat, him with proper kindness, hut assaulted him.</p> <p>I Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 278-288; Dec. Dig. S 28.* 1</p> <p>2. Seamen (§ —Shipping- Articles -Breach — Treatment by Master.</p> <p>Libelant, who was a seaman, became intoxicated while on shore leave, and on his return to the ship was violent and very abusive toward the captain, refused to go forward when ordered, and resisted when the cap-lain and mate undertook to lead him. The captain then procured a pair of handcuffs, lmt, when he attempted to put them on, libelant struck him in the face two or three times, and he then struck libelant; on the head with the handcuffs, inflicting slight injuries. IfcXiX, that the captain’s assault was justified, as repelling an attack in defense of his own person, and did r.ot entitle libelant to recover from the ship for breach of contract.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 195-211; Dec. Dig. § 30.*</p> <p>Discipline and punishment of seamen, see note to The John and Winthrop, 106 C. C. A. 8.]</p>

Condemnation proceedings by the City of Woburn against Edward E. B. Adams. From a judgment awarding defendant $19,000 for the land taken, the City.brings error.

<p>1. Garnishment (§ 58*) — Property Subject — Declared Dividends in the „Hands of a Bankrupt’s Trustee.</p> <p>Dividends declared by a bankrupt’s trustee -while in his possession unpaid to the claimants are still in custodia legis and not subject to ■■ .garnishment. *</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 113; Dec. ' ' Dig. § 58.*]</p> <p>2. Bankruptcy (§ 20*) — Ruling of State Court — Garnishment of Dividends.</p> <p>Ruling of the state court permitting the garnishment of dividends after they have been declared by an officer of the state court as a receiver,' administrator, or trustee, cannot affect the administration by a federal court of an estate in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p>

<p>Master ani> Servant (§§ 28(5, 28!)*) -Injuries to Servant — Railroads—Operation— Persons Near Track — Negligence — Contributory Negligence.</p> <p>In an action for injuries to a servant while walking along the side of a switch track by being struck by a car shoved along the track from the rear by means of a flying switch, evidence hold to require submission to the jury of defendant’s negligence and plaintiff’s contributory negligence.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 28(5, 289.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Southern District of California.</p> <p>Action at law by Maggie Thomas and John Thomas, her husband, against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

In' Error to the Circuit Court of the United States for the Western District of Pennsylvania. Action at law by William Fehl against the Ohio & Pittsburgh Milk Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Eastern IDivision of the Eastern District of Washington.</p> <p>In Equity. Suit by the Great Northern Railway Company against W. IT. Tolliver and Sophronia Tolliver, his wife. Decree for complainant, and defendants appeal.</p> <p>This is a suit by appellee against appellants to enjoin the latter from claiming property in, or in any way interfering with, the former’s right to an appropriation and diversion of water through and sufficient !o fill a four-inch pipe or conduit leading from a certain spring, known as “Egbert Springs,” in Grant county, state of Washington, to a water tank at Kphrata Station, in said county, for use in the engines of the former in operating its trains. The appellee, or the plaintiff in the original suit, derives its right and title from the >St. Raul, Minneapolis & Manitoba Railway Company. The spring is located on the N. W. % of the N. E. % of section 1C, township 21 north,, range 26 east, being a school section granted to the state of Washington when it was admitted into the Union as a state. One J. F. Beazley, supposing that the spring was located upon his land, while in fact it was not, with his wife, on August 23, 1892, conveyed, for a consideration of .$2,500, to the St. Paul, Minneapolis & Manitoba Railway Company an easement over and across his land to the spring for the location of a three-inch pipe line, for conducting water to its water tank at Ephrata, and in conformity therewith the 'pipe line was so located and constructed. This conveyance was duly recorded in the office of the auditor for Grant county August 24, 1S92. On September 29, 1899, one Jesse Cyrus, without ownership in the land upon which the spring is situated, for the consideration of $500, executed a conveyance to the ét. Paul, Minneapolis & Manitoba Railway Company, whereby he granted and conveyed to said railway company the right to enlarge the capacity of the supply pipe from a diameter of three inches, as granted to the company by deed of conveyance from J. F. Beazley, to one of four inches, together with the right to so much of the water of Egbert Springs as will naturally flow through said four-inch pipe, the water to be used by the company for railway purposes only. The grant contains the following covenant of warranty: “To have and to hold the same, together with all the rights, privileges and appurtenances thereunto belonging to the said party of the second part, its successors and assigns forever. And the said party of the first part, for himself, his heirs, administrators and assigns,’ does covenant to and with the said party of the second part, its successors and assigns, that he is well seised in fee of said water rights and privileges and has the right to convey the same, and that the same are free from all incumbrances, and the above granted water rights and privileges in the quiet enjoyment and peaceable possession of the said party of the second part, its successors and assigns, in perpetuity against all persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part will forever warrant and defend.” This deed was duly recorded October 10, 1899. On October 27, 1905, Jesse Cyrus entered into an executory contract with the state of Washington for the purchase of the tract above described upon: which Egbert Springs are situated. On February 20, 1908, Cyrus assigned all his right, title and interest in his contract of purchase to W. H. Tolliver, one of the defendants in this suit, and on the 25th of the same month Tolliver acquired a deed from the state. On October 26, 1909, Tolliver instituted an action in the state court against plaintiff herein, to recover damages on account of the location of the pipe, thereby seeking to oust the plaintiff from the land, and to enjoin it from further use of the water from the spring. That case was removed to the Circuit Court of the United States, and the present suit seeks as well to enjoin that proceeding until the ownership of the water right is determined. These facts appear in the bill and answer, and, the cause having been set down for hearing on such bill and answer, the Circuit Court decided against appellants; hence this appeal.</p>

Action at law by A. N. Bort against E. H. McCutchen & Co. and others on a bond. Judgment for defendant sureties, and plaintiff brings error.

Action by Wiley W. Mills,-administrator of the estate of Kaspar Strojny, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant brings error. The writ of error is to a judgment upon the verdict oí a jury, in a personal injury case, finding the plaintiff in error guilty of negligence, as charged in the declaration, and assessing the defendant in error’s damages at $4,000.

Action at law by the Columbian Reinforced Concrete Company, for use of the Monongahela National Bank of Pittsburgh, against Harry A. Rose and Richard W. Fisher, doing business as Rose & Fisher. Judgment for defendants, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action at law by N. A. Vandevort against the Thompson-Starrett Company. Judgment (182 Fed. 875) for plaintiff, and defendant brings error.</p>

<p>Towage (§ 15*) — Injury to Tow — Negligence oe Tug.</p> <p>Evidence considered, and hold to sustain tiie allegations of a libel that the sinking of a dredge by striking a rock while being towed down the Ohio in front of a steamer was due to The fault of the steamer in passing through a narrow and tortuous channel between an island and the north shore in a negligent and unskillful maimer.</p> <p>[Ed. Note. — For other cases, see Towage, Dec. Dig. § 15.*]</p>

<p>Insubance (§ CI2*) — Action on Policy — Defenses.</p> <p>The failure of an insured after a loss to name an appraiser, under a clause in the policy providing for an appraisal “in the event of disagreement as to the amount of loss,” constitutes no defense to an action on the policy, where it is not alleged or shown that there was a disagreement.</p> <p>LEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1522-1527; Dec. Dig. § G12.*]</p>

District of Pennsylvania. Action at law by Nellie Rehfeld against the Baltimore & Ohio Railroad Company. From the refusal of the court to take oil a nonsuit, plaintiff brings error.

Scire facias on a forfeited recognizance by the United States against Alphonse Du Faur and another. Judgment for defendants, and the United States brings error.

Suit in equity by the Ideal Concrete Machinery Company against Willis H. McDowell. Decree for complainant, and defendant appeals. Reissue patent No. 12,578, December 18, 1906, to Borst and Groscop, owned by appellee, was hold by the Circuit Court to be valid and infringed.

<p>1. Patents (§ 141*) — Reissues—Validity.</p> <p>Authority to grant reissue patents is derived exclusively from Rev. St. § 491G (U. S. Comp. St. 1901. p. 3393), and the commissioner goes beyond' his jurisdiction if he grants a reissue for an invention other than the one disclosed and described in the original patent, which, by reason of inadvertence, accident, or mistake, is inoperative to secure the monopoly it shows on its face was intended to be secured.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dec. Dig. § 141.*]</p> <p>2. Patents (§ 141*) — Reissues.</p> <p>The inadvertence of the solicitors of an applicant for a patent is liis inadvertence, and, on the other hand, their erroneous judgment in submitting to the rejection of claims is his erroneous judgment, and he is estopped from presenting any of such rejected claims in an application for a reissue.</p> <p>[Ed. Note.. — For other cases, see Patents, Cent. Dig. § 211; Dec. Dig. § 141.*]</p> <p>3. Patents (§ 141*) — Reissues—Inadvertence.</p> <p>Where none of the original claims presented by an applicant for a patent was adequate to cover the invention disclosed by the specification and. drawings, acquiescence in the rejection of such claims is not an abandonment of the invention as an entirety, and the failure of his solicitors to submit adequate claims is an inadvertence which may entitle the applicant to a reissue.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 211; Dec. Dig. § 141.*]</p> <p>4. Patents (§ 328*) — Validity and Infringement — Computing Scale.</p> <p>The De Vilbiss reissue patent, No. 12,137 (original No. 649,913), for a computing scale, is not invalid as departing from the original invention, and it also covers a true combination which produces an improved result and discloses invention. Also, Held infringed.</p>

Suit in equity by the Warren Bros. Company against the City of New York and the Uvalde Asphalt Paving Company. From an order granting a preliminary injunction, defendants appeal. This cause comes here upon appeal from an order granting preliminary injunction against a threatened infringement of claims 5, 6, and 11 of letters patent No. 727,505, granted to Frederick J. Warren, May 5, 1903, for a new and useful improvement in pavements.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Suit in equity by the Chamberlin Metal Weather Strip Company against the Monarch Weather Strip & Supply Company. Decree for defendant, and complainant appeals.</p>

<p>1. Reference (§ 99*) — Report of Auditor — Use as Evidence.</p> <p>Under the practice and decisions in Massachusetts, the report of an auditor appointed in an action at law is admissible in evidence on a trial of the case to a jury.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 148-150; Dec. Dig. § 99.*]</p> <p>2. Patents (§§ 210, 218*) — Implied License to Use Patented Article — Shop Right — Invention by Empi.oyé.</p> <p>Plaintiff was employed by defendant as superintendent of its factory, in which it manufactured flexible tubing for covering electric wire, and it was a part of Ms duty to improve defendant’s machinery. While so employed he made important improvements in machines for making such tubing ;• the entire cost of his experiments, the perfecting of his invention, the construction of a practicably operative machine, and the taking out of a patent therefor being paid by defendant, ■ which also paid for the construction of machines which were installed in its factory under plaintiff’s direction. During the time the machines were so used, plaintiff's salary was increased from $1,800 to $5,000 per year. Held that, on such facts, defendant had at least a shop right or implied license to use those particular machines without payment of compensation to plaintiff, and, in the absence of evidence warranting a finding of an agreement to pay therefor, an action to recover for such use was not maintainable.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 301, 302, 330-338; Dee. Dig. §§ 210, 218.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Sheffield Car Company against the Buda Foundry & Manufacturing Company. Decree for defendant, and complainant appeals.</p> <p>The appeal is from a decree dismissing the bill for want of equity. The bill was to restrain infringement of letters patent No. 876,058, issued Jan. 7, 1908, for a Railway Motor Velocipede. Claims 14, 16, 18, 20, 23, 24, 30, 32, 35, 36, 38, 39 and 41, the ones sued upon, are as follows:</p> <p>14. In a structure of the class described, ihe combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof; a crank shaft arranged transversely of said frame in front of the rear traction wheel; driving connections for said crank shaft to the axle for said rear traction wheel; means for connecting or disconnecting said driving connections; a bifurcated hand lever arranged between the said side rails of said frame; a pitman connecting said hand lever to said crank shaft; an operator’s seat: arranged at the rear of said hand lever; foot rests; supporting links for said foot rests; links whereby said foot rests may be detach-ably connected to said pitman; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said seat; driving connections for said engine to the forward traction wheel: and means for connecting or disconnecting said driving connections, for the purpose specified.</p> <p>16. In a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof; a crank shaft arranged transversely of said frame in front of the rear traction wheel; driving connections for said crank shaft to the axle for said rear traction wheel; means for connecting or disconnecting said driving connections; a bifurcated hand lever arranged between the said side rails of said frame; a pitman connecting said hand lever to said crank shaft; an operator’s seat arranged at the rear of said hand lever; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said seat; driving connections for said engine to the forward traction wheel; and means for connecting or disconnecting said driving connections, for the purpose specified.</p> <p>18. In a structure of the class described, the combination of the frame comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof ; a crank shaft arranged transversely of said frame in front of the rear traction wheel; driving connections for said crank shaft to the axle for said rear traction wheel; means for connecting or disconnecting said driving connections ; a hand lever arranged between the said side rails of said frame; a pitman connecting said hand lever to said crank shaft; an operator’s seat arranged at the rear of said hand lever; foot rests; supporting links for said foot rests; links whereby said foot rests may be detachably connected to said pitman; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said seat; driving connections for said engine to the forward traction wheel; and means for connecting or disconnecting said driving connections, for the purpose specified.. ■ ,</p> <p>■ 20. Ip a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof ; a crank shaft arranged transversely of said frame in front of the rear traction wheel; driving connections for said crank shaft to the axle for said rear traction wheel; means for connecting or disconnecting said driving connections ; a hand lever arranged between said side rails of said frame; a pitman, connecting said hand lever to said crank shaft; an operator’s seat arranged at the rear of said hand' lever; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said seat; driving connections for said engine to the forward traction wheel; and means for connecting or disconnecting said driving connections, for the purpose specified.</p> <p>23. In a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof ; a bifurcated hand, lever; driving connections for said hand lever to the rear axle; an operator’s seat arranged at the rear of said hand lever; an engine arranged between the side rails of, said- frame at the rear of the front traction wheel and in front of the said hand lever, said hand lever being adapted to straddle said engine in operation; a belt rim on the side of said forward traction wheel; a belt pulley on the crank shaft of said engine; a driving belt; a belt tightener for said driving belt; and an operating lever for said tightener, for the purpose specified.</p> <p>24. In a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof ; a hand lever; driving connections for said hand lever' to the rear axle; an operator’s seat arranged at the rear of said hand lever; an engine arranged between the side rails of said frame at the rear of the front traction whepl, and in front of the said hand lever; a belt rim on the side of said forward traction wheel; a belt pulley on. the crank shaft of said engine; a driving belt; a belt tightener for said driving belt; and an operating lever for s;aid tightener, for the purpose specified.</p> <p>30. ,In a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of -said frame at the front and rear ends thereof ; a hand lever; driving connections for said hand lever to the rear axle; an operator’s seat arranged at the rear of said hand lever; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said hand lever; driving connections for said en-, gine' to the forward traction wheel; means for connecting or disconnecting said driving connections; and a third wheel detachably connected to said frame, for the purpose specified.</p> <p>32. In a. structure of the class described, the combination of-, the frame, comprising side rails connected, by crosspieces; a pair of traction wheels arranged -between the side rails of said frame at the front and rear ends thereof-; a hand lever; driving connections for said hand lever to the rear axle; an operator’s seat arranged '.at the rear of said hand lever; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said hand lever, said hand lever being adapted to straddle said engine ■ in operation; driving connections for said engine to the forward traction wheel; and means for connecting or disconnecting said driving connections, for the purpose specified.</p> <p>85. In a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof; an operator’s seat; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said operator's seat; a belt rim on the side of said forward traction wheel; a belt pulley on the crank shaft of said engine; a driving belt; a belt tightener for said driving belt; an operating lever for said tightener; and a third wheel detachably connected to said frame, for the purpose specified.</p> <p>80. Tn a structure of the class described, the combination of the frame, comprising side rails connected by crosspieces; a pair of traction wheels arranged between the side rails of said frame at the front and rear ends thereof ; an operator’s seat; an engine arranged between the side rails of said frame at the rear of the front traction wheel and in front of the said operator’s seat; a belt rim on the-side of said forward traction wheel; a belt pulley on the crank shaft of said engine; a driving belt; a belt tightener for said driving belt; and an operating lever for said tightener, for the purpose specified.</p> <p>38. In a structure of the class described, the combination with a frame, of traction wheels and motor, a hand-power driving mechanism, and a foot-power driving mechanism, arranged and connedcd so that the car may lie propelled either by the motor hand-power or foot-power, or any combination thereof, as desired.</p> <p>89. Tn a strudure of the class described, the combination of a frame; traction wheels; ail engine; driving conned ions therefor to one of said traction wheels: a hand lever; driving connections therefor to one of the traction wheels; and means for connecting or disconnecting said driving connections for said hand lever and engine.</p> <p>41. In a structure of the class described, the combination of a frame; traction wheels: an engine; driving connections for said engine to one of said traction wheels; a hand lever; driving connections therefor to one of said traction wheels; pivotally-supported foot rests; detachable connections therefor to said hand lever; and means for connecting or disconnecting said driving connections.</p> <p>Other patents cited are the following:</p> <p>No. 870,058, AY. S. Ilovey, .Tan. 7. 1908.</p> <p>No. 270,820, E. B. Hinslcy, Jan. 9, 1883.</p> <p>No. 599,912, J. McGeorge, Mar. 1. 1898.</p> <p>No. 020,586, J. Henderson, Mar. 7, 1899.</p> <p>No. 073,128, J. Henderson, Apr. 30, 1001.</p> <p>No. 078,963, G. W. Manson, Julv 23. 1901.</p> <p>No. 710,048, S. H. Ellis, Sept. 80, 1902.</p> <p>No. 738.559. J. W. Meijer, Sept. 8, 1903.</p> <p>No. 914,347, AY. S. Hovey, Mar. 2, 1909.</p> <p>No. 914,348. AY. S. Hovey, Alar. 2, 1909.</p> <p>No. 914,845, Al. L. Jenkins, Mar. 9, 1909.</p> <p>The facts are stated in the opinion.</p>

<p>Insurance (§ 152*) — Accident Policy —Construction—“Passenger.’-’</p> <p>A postal clerk, while riding in a mail car in the performance of his du- • ties, is not a “passenger,” within an accident polity insuring him against, bodily injuries while riding as a passenger in or on any railway passenger car propelled by mechanical power, provided by a common carrier for passenger service, etc.</p> <p>[Ed. Note. — For other cast's, set; Insurance, Cent. Dig. §§ 116-1, 3173, 1174; Dec. Dig. § 452.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5218-5227; vol. 8, p. 7748.1</p>

<p>In Equity. Suit by Dan Danciger and others against S. W. Stone and others.</p>

<p>In Equity. Suit by the United States against Elmer Shock, County Treasurer of Okmulgee county, Okl.</p>

<p>1. Taxation (§ 181*) — Indians (§ 15*) — Lands—Lands Inherited froh Allottees.</p> <p>The provision of Act May 27, 190S, c. 199, § 9, 35 Stat. 311, that “the death of any allottee of the Five Civilized Tribes shall operate to remove -all the restrictions upon the alienation of said allottees’ land” is qualified by the further provisions: First, that the full blood heirs of such allottee cannot dispose of their interests in'such inherited lands without the approval of the court having jurisdiction of the settlement of the estate of the deceased allottee, and second, if the deceased allottee be of oue-half or more Indian blood leaving children surviving him born since March 4, 1906, the homestead remains inalienable during the life or lives of such children, or until April 26, 1931, unless restrictions are sooner removed by the Secretary of the Interior. In view of such provisions, the interests of such full blood heirs and the homesteads of deceased allottees of one-half or more Indian blood leaving children born since March 4, 1900, are not alienable or taxable until such restrictions are removed, but all other interests in such inherited lands are subject to taxation.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 181 ;* Indians, Dec. Dig. § 15.*]</p> <p>2. Indians (•§ 15*) — Taxation (§ 181*) — Lands—Construction of Statute.</p> <p>Act May 27, 1908, c. 199, § 9, 35 Stat. 314, provides that all allotted lands of enrolled full blood Indians of the Five Civilized Tribes, and enrolled mixed bloods of three-quarters or more Indian blood “shall not be subject to alienation * * * prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions.” It further provides that “nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act.” Held, that ihe latter provision did not apply to the supplemental agreement with the Creek Indians approved June 30,1902, c. 1323, 32 Stat. 500, under which the restrictions on alienation of surplus allotments expired Aug. 8, 1907, but only to restrictions theretofore removed by the Secretary of the Interior, under authority "of law, and to restrictions removed by Acts of Congress theretofore passed, not for the purpose of imposing, but of removing restrictions imposed by prior legislation; that under the first provision all allotments, whether of homesteads or surplus lands made to enrolled full bloods and mixed bloods of three-quarters or more Indian blood are not alienable nor taxable until the restrictions thereby imposed have been removed.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15;* Taxation, Dec. Dig. § 181.*)</p> <p>3. Indians (§ 15*) — Eestrictions on Alienation of Land — Power of Congress to Refutóse.</p> <p>It is within the power of Congress to impose restrictions on the alienalion of the lands of Indian allottees although restrictions imposed by prior legislation have expired by limitation.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 37-44; Dec. Dig. § 15.*)</p>

At Law. Action by Edwin S. Dickerson, trading as Woodward & Dickerson, against the Louisville fc Nashville Railroad Company. On demurrers to answer and reply.

Suit in equity by T. K. Price and others against the Union Land Company, and others. Decree for defendants, and complainants appeal.

In Equity. Suit by the New York Trust Company and others, against the City and County of Denver and others, the Denver Union Water Company and the South Platte Canal and Reservoir Company. From orders granting preliminary injunctions on the bill and cross-bill of the water company, the City and County of Denver appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia.</p> <p>Habeas corpus proceeding by Sadie M. Sprung against the Immigrant Inspector at Norfolk. From an order discharging petitioner, the United States, appeals.</p>

<p>Mandamus by John C. McClellan and others against John E. Car-land, United States District Judge for the District of South Dakota.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 893*) — Equity—Trial De Novo — Immaterial Errors.</p> <p>An appeal in a suit in equity invoices a trial de novo in the appellate court, and a just and final decision if that lie possible.</p> <p>Where, therefore, the decree below was clearly rigid:, and the result could not have been otherwise if alleged errors in the proceedings had not been committed, such errors must be disregarded, and the decree will be affirmed.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3048; I)oc. Dig. § 895.*J</p> <p>2. Courts (§ 497*) — Conflict of Jurisdiction — Court Which First Acquires Custody Excludes Jurisdiction of Others.</p> <p>The lawful custody of specific property by a court of competent jurisdiction withdraws that property, so far as necessary to accomplish the purpose of the custody, and until that purpose is accomplished, from the jurisdiction of every other court.</p> <p>The court which first acquires the lawful jurisdiction of specific property by the seizure thereof, or by the due commencement of a suit from which it appears that it. is or will become necessary to a determination of the controversy involved, or to the enforcement of its judgment or decree therein for the .court to seize, to charge with a lieu, to sell or to exercise other like dominion over it, thereby withdraws that property from the jurisdiction of every otber 'Court so far as necessary to accomplish the purpose of the suit, and entitles that court to retain the control of it requisite to give effect to its final judgment or decree free from the interference of every other tribunal.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1386; Dec. Dig. S' 497.*]</p> <p>3. Courts (§ 506*) — Conflicting Jurisdiction — Stay—Pendency of An- ' other Action in State Court.</p> <p>When a' state court has secured by proper process the custody or dominion of specific property which it is one of the objects of a subsequent suit in the federal court between the same parties concerning the same matter to subject to its judgment or decree, the latter suit should not be stayed or dismissed, hut should proceed as far as may bo without creating a conflict concerning the xiossession or disposition of the prpilerty, and then, if need be, be stayed until the proceedings in the state court have been completed, or time for their termination has elapsed.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 506.*</p> <p>■ Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 O. C. A. 356.]</p> <p>4. Action (§ 64*)- — Suit Commenced by Filing Petition.</p> <p>A suit is commenced at the time of the filing of the complainant’s petition with the bona fide intention to lirosecute the suit with diligence, provided there is no detrimental or unreasonable delay in the issue or service of process.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 725-734; Dec. Dig. § 64.*]</p> <p>5. Judgment (•§ 713*) — Res Adjudicata — Subject-Matter — All Matters Admissible.</p> <p>In an action between the same parties, or those in privity with them, upon the same claim or demand a decision upon the merits is conclusive, not only as to every matter offered, but as to every admissible matter which might have been offered, to sustain or defeat tbe claim or demand.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1241; Dec. Dig. § 713.*]</p> <p>6. Judgment (§ 713*) — Res Adjudicata — Former Judgment — Facts—Conclusion.</p> <p>One of two sons commenced a suit in the state court against the other son and the widow of the complainant’s deceased father to xrartition 616 acres of land of which he died seised, and issued a summons. Before the summons was served the defendant son conveyed his share of the property to a corporation of another state, which commenced a like suit against the complainant son and widow, and a trustee, to whom 229 acres of the land had been conveyed to secure the. payment to the lender of $2,600. This trustee and the lender were subsequently made parties to the suit in the state court, and a final decree in xmrtition was rendered therein. In the suit in the federal court the corporation averred that $23,000 had been advanced to flic complainant in the suit in the stafe court by the father before his decease, and asked an accounting and a proper allowance oil account of this advancement in the partition, but this claim was never presented in the suit in the state court.</p> <p>Held, the suit in the state court was first commenced, and the decree of that court conclusively estopped the corporation frorn maintaining any claim which might have been presented to and adjudicated by the stale court in the partition suit there, either on account of the alleged advancement or otherwise, to any of the land not adjudged to its grantor . by that decree.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1241; Dec. Dig. § 713.*]</p> <p>7. Equity (§ 340*) — Hearing on Bill and Answer — Allegations Admitted.</p> <p>When a suit is heard on bill and answer, the allegations of fact in the bill that are denied in the answer are to be taken as disproved and the avermeuts of fact in the answer whether responsive to the bill or not stand admitted.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 697-710; Dec. Dig. § 340.*]</p>

<p>1. Corporations (§ 95*) — Stock Certificates — Receipt for Subscription.</p> <p>New Jersey Corporation Act (P. B. 1896, p. 277) § 19, provides that every stockholder shall have a certificate signed by the president and treasurer, certifying the number of shares owned by him in such corporation. Beld, that a purchaser of shares in a corporation organized under such act was ordinarily entitled to a valid stock certificate properly so executed, and hence an order to a broker to purchase stock was not ordinarily fulfilled by a delivery of a temporary receipt for stock subscriptions, certifying that the person named was the owner of the stated number of shares fully paid, and that a certifícale therefor would he issued when engraved, and ready for delivery on presentation of the receipt.</p> <p>[Ed. Note. — For other c-ases, see Corporations, Cent. Dig. § 436; Doc. Dig. § 95.*]</p> <p>2. Corporations (§ 121*) — Purchase of Stock — Contract—Performance by Broker — Evidence.</p> <p>Evidence held to require a finding that brokers’ contract to purchase stock in a corporation, the certificates of which had not then been engraved and were not ready for delivery, was performed and expected by the customer to be fully performed by the delivery of temporary receipts for stock subscription certifying to the ownership of the shares and providing that the certificates would be delivered when engraved and ready for delivery on presentation of the receipt.</p> <p>[Ed. Note. — For other casés, see Corporations, Dee. Dig. § 121.*]</p>

. Action at law by Frank J. Kelley against the Southern Pacific Company. Judgment of nonsuit, and defendant brings error. The plaintiff in error was defendant below, in an action of assumpsit, brought by Kelley (as plaintiff), to recover the value of an automobile delivered to the defendant, for transportation to California; and the suit was commenced in the municipal court of Chicago, and removed to the United States Circuit Court on petition of the defendant.

<p>Petition to Revise an Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the Ferguson Contracting Company, bankrupt. On petition by George F. Meinecke to revise an order of the District Court,</p> <p>Petition for revision of an order of the District Court, Southern District of New York, denying a motion of the present petitioner to compel a receiver in bankruptcy to pay over to him certain moneys alleged to have been collected for his benefit.</p> <p>The respondent, as the temporary receiver of a construction company, was authorized to continue the performance of a contract for certain railroad work. The Hunter Contracting Company was a subcontractor upon such work which was accustomed in paying off its laborers to deduct from their wages the amounts which they respectively owed to the petitioner for groceries supplied.</p> <p>The Hunter Company abandoned the work and left a number of laborers unpaid. The receiver, in order to avoid delay and, perhaps, the filing* of liens, paid the wages of these laborers, less the amounts which it appeared they owed the petitioner. The receiver, at the time of making such payments, was not indebted to the Hunter Company.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Bill by the L. H. Gilmer Company against Otto Geisel. Bill dis7 missed (187 Fed. 606), and complainant appeals.</p>

<p>Patents (§ 828*) — Infringement—Incandescent Lamp Socket.</p> <p>The Perkins patent, No. 626,927, for an incandescent lamp socket, the dominating and essential feature of which, as construed in prior decisions, is the complete separation and insulation of the chambers, held not infringed by a device which lacks such feature.</p>

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

Bill by the Kentucky Coal & Timber Development Company against the Kentucky Union Company to remove a cloud on title. From a decree dismissing the bill on demurrer, plaintiff appeals.

Action at law by Mamie Conley, administratrix of the estate of Thomas Conley, deceased, against the St. Eouis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action at law by V. J. Willey against W. N. Trulock and Marianna P. Trulock. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Street Railroads (§ 103*) — Injury to Person on Track — Effect of Contributory Negligence.</p> <p>Where a plaintiff, who was struck and injured by an electric car while walking toward it on the track, was clearly chargeable with contributory negligence, he cannot recover from the street railway company for the injury, without proof that those in charge of the car, after having actual knowledge of liis peril, might have avoided his injury by tbe exercise of ordinary care.</p> <p>I Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*]</p> <p>2. Street Railroads (§ 103*) — Injury to Person on Track — Contributory Negligence.</p> <p>Plaintiff was struck and injured by a street car at night, while walking on the track directly toward the car, which had a headlight burning. The motorman saw him when some distance away, but did not attempt to stop the car, which was running at a speed of 8 or 10 miles an hour, until it was within some 20 feet of plaintiff, when it was too late. Plaintiff was in fact very much intoxicated, but the motorman and passengers who saw him approaching all testified that there was nothing in his walk to indicate it. The street was being repaired, and a watchman was employed to see that the danger lights were kept burning, and the motorman testified that he supposed plaintiff to be such watchman when he saw him on the track. Held, on the evidence, that the motorman had the right to presume, until he knew ihe contrary, that plaintiff was in possession of his faculties, and would step off the trade, and that he was not chargeable with negligence in not stopping sooner which would render the company liable for the injury notwithstanding plaintiff’s negligence.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 219; Dee. Dig. § 103.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Ancillary bill in equity by B. A. Worthington, receiver of the Wheeling & Take Erie Railroad Company, against the Railroad Commission of Ohio. Decree for complainant, and defendant appeals.</p>

Suit in equity by Herman N. Mattley, trustee in bankruptcy of Walter K. Darker, against John Giesler, administrator c. i. a. of the estate of Joseph W. Wolfe, deceased. Decree (175 Fed. 619) for defendant, and complainant appeals.

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action at law by the International Harvester Company of America against Anna Voboril. Judgment for defendant, and plaintiff brings error.</p>

<p>Shipping (g 40*) — Construction op Charter Party — Discharging Berth.</p> <p>A time charter party provided, that the vessel should discharge where the charterer should direct, provided she could always safely lie afloat at any time of tide, “except as provided below’’; the latter words being written in Hie printed form. Then followed provisions that the steamer might be required to discharge in a mud berth at specified ports, and might be employed to and from certain ports, at some of which there was no place where she could discharge and lie afloat at all times of tide. She was seat with the master’s consent to a port not specified, bui where she could only discharge in a mud berth. Field, that the printed provision for discharging only where she could always lie afloat was waived, at least at the latter port, and that lior refusal to discharge there in a mud berth was a breach of the contract.</p> <p>IKd. Note. — For other cases, see Shipping, Dec. Dig. § 40.*]</p>

Suit in equity by A. Leschen & Sons’ Rope Company against Gran-ville G. Allen and others. Decree for defendants, and complainant appeals. Held: and the same shall be published in some newspaper in the comity where the operations of such company are carried on, if there be one, once each week for four consecutive weeks, and also in some daily paper of general circulation at the place where the principal office of such company is located, if there be one, each day for thirty…

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma.</p> <p>In the matter of B. E. Lovin, bankrupt. Proceeding by the ElletKendall Shoe Company to reclaim goods. Order denying petition, and claimant appeals.</p>

Suit in equity by the Exchange Scrip-Book Company against Rand, McNally & Co. Decree for complainant, and defendant appeals. The appeal is from a decree enjoining appellants from infringing claim 4, of letters patent No. 669.489, issued March 5, 1901, to appellee, on the application of Joseph Richardson and George D. Bangston, for certain improvements in Railway Tickets. Claim 4 of the patent is as follows: “4.

Effie Hoke and another were indicted for alleged violation of Act Cong. June 25, 1910, c. 395, 36 Stat. 825, prohibiting the furnishing of transportation for or the persuading, enticing, or inducing of a woman to go from one state to another as a passenger in interstate commerce for immoral purposes. On demurrer to the indictment.

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. Bill by Oiin S. Fellows against the Borden’s Condensed Milk Company. Decree for defendant (180 Fed. 421), and complainant appeals.</p>

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

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

Appeals from the Circuit Court of the United States for the Southern District of New York. The patent in suit (Edison reissue patent No. 12,037) has four claims. In March, 1907, it was declared valid by this court as to claims 1, 2, and 3, and invalid as to claim 4. The bills of complaint in these suits were filed in November, 1910, and the complainant has never filed a disclaimer of claim 4.

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