Volume 189 — Federal Reporter

<p>1. Public Lands (§ 83*) — Grant to Railroads — Right of Way.</p> <p>The effect of Act March 3, 1869, c. 127, 15 Stat. 324, authorizing the Union Pacific Railroad Company, Eastern Division, to adopt the roadbed of the Denver Pacific Railway & Telegraph Company between Denver and Cheyenne as a part of its line, and to grant to the Denver Company the perpetual use of its right of way, was to extend to such company the grant of right of way over the public lands 400 feet wide made to the Eastern Division by Act July 2, 1S64, c. 216, 13 Stat 356. That grant was an absolute grant in presentí, remaining as a float until the definite location or actual construction of the road, and, by virtue of the act of 1869, the Denver Company acquired title to such right of way over all lands which were public lands on July 2, 1864, and all persons acquiring title to, or rights in, any of such lands after that date took subject to such right of way. Reed, District Judge, dissenting.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 83.*]</p> <p>2. Public Lands (§ 83*) — Grant of Railroad Right of Way — Construction.</p> <p>The filing by the Union Pacific Railroad Company, Eastern Division, of a map of its general route, prior to the transfer of its rights to the Denver Company, required to obtain a tentative withdrawal of its land grant from sale or entry by the Interior Department, did not affect the grant of right of way, which, unlike the land grant, was subject to no conditions that the lands should be free from homestead or other claims at the date of definite location of its line, but was absolute.</p> <p>[Ed. Note. — For other eases, see Public Lands, Dec. Dig. § 83.*]</p> <p>3. Public Lands (§ 79*) — Grant of Railroad Right of Way — Construction</p> <p>—Adverse Rights.</p> <p>A mere settlement upon a tract of public land does not initiate any right in the settler which will defeat a subsequent grant of right of way -over such land to a railroad company, hut his rights in that respect at most could only date from the time he filed his declaratory statement.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 244-246; Dec. Dig. § 79.*]</p> <p>4. Eminent Domain- (§ 280*)- — Equitable Estoppel — Rights Which mat be Acquired.</p> <p>Property which can be acquired by the exercise of the power of eminent domain may be acquired for the same public use by the application of the doctrine of equitable estoppel.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dee. Dig. § 280.*]</p> <p>5. Railroads (§ 82*) — Right op Wat Through Public Lands — Acquiescence IN O'CCUPANCT BT OTHER CORPORATIONS.</p> <p>The predecessor in interest of complainant railroad company obtained by grant from Congress right-of way for its road 400 feet wide through the public lands, and also title to every alternate section of such lands under the same grant. Certain of such lands were sold under its authority to a colony, and conveyed by deed; reserving a right of way of 200 feet. The colony- also acquired title to adjoining lands and conveyed to the company a right of way over the same 100 feet wide, with 100 feet additional for station grounds, which conveyance was accepted by the company. The colony then laid out and platted on its lands what is now the defendant city of Greeley, with streets and Mocks extending to the 100 and 150' feet fight of way, and such streets were improved and the lots sold and fenced and improved by the purchasers. From time to time during 40 years complainant and its predecessors purchased and paid for lots within the 400 feet limits of the original right of way, and also obtained from the city franchises to use streets thereon. Various other railroad companies also obtained franchises, and purchased and occupied with their lines and buildings lots within such limits, one of which was organized and owned and- controlled by complainant’s predecessor. Held that, as against the- city and such other public service corporations having the power of eminent domain, complainant was estopped to assert title to or right of way over, the lands lying outside of the 100 and 200 feet limits in which it had acquiesced for such length of time. Sanborn, Circuit Judge, dissenting.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec.'Dig. § 82.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>vSuit in equity by Rathbone, Sard & Co. against the Champion Steel Range Company. Decree for defendant, and complainant appeals.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty by the J. M. Guffey Petroleum Company against the steamship Northman; The Texas Company, claimant, and cross-suit by the Texas Company against the Petroleum Company. Decree for respondent, dismissing libel, in the first suit, and for libelant in the sum of $7,964.40 in.the second, and the J. M. Guffey Petroleum Company appeals.

In the matter of Malvina Hammerstein, bankrupt. From an order denying a discharge, the bankrupt appeals. Malvina Hammerstein filed a voluntary petition in bankruptcy October 24, 1901, and was adjudged a bankrupt the next day, October 25, 1901. On January 22, 1902, she filed a petition praying that a discharge in bankruptcy be granted her. By ail order made January 23, 1902, a hearing on said petition was fixed for February 3, 1902.

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by Michael Tracy and John Tracy, as owners of the scow William Carney, against the steamer Dorothy, the A. H. Bull Steamship Company, claimant, and the steam tug Wyomissing, the Philadelphia & Reading Railway, claimant. Decree against both vessels, and claimants appeal. Reversed, with directions to decree against the Dorothy alone.

Suit in admiralty by J. Allen Hudson, master and chief owner of the schooner Emma Knowlton, against the steamer Pallanza; the Hamburg-American Line, claimant. From a decree awarding him half damages for collision, libelant appeals.

<p>Trade-Marks and Trade-Names (§ 99*) — Suit for Unfair Competition-Reference.</p> <p>Where a decree finding unfair competition by defendant and granting an injunction is entered by a Circuit Court in accordance with a mandate of the appellate court, complainant is entitled to a reference on the question of profits or damages, unless it clearly appears that proof of such profits or damages is impossible.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 99.*</p> <p>Unfair competition, see notes to Seheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 O. C. A. 376.]</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings of T. A. McIntyre & Co. On petition to revise an order directing that certain bonds in the possession of a receiver he sold, and the proceeds in excess of $1,454.93 be turned over to petitioner, Vincent fioeser. Reversed and remanded, with instructions.

<p>Courts (§ 314*) — Jurisdiction of Federal Courts — Citizenship of Parties.</p> <p>A federal court is without jurisdiction on the ground of diversity of citizenship of an action by a corporation of another state against a corporation of a third state, which has no place of business in the state of suit, and on service on an officer of defendant who was not in the state on business of his corporation.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 860; Dec. Dig. § 314.* • •</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 C. C. A. 298.]</p>

Suit in equity by William P. Healy against the National Wire Bound Box Company, Samuel M. Robinson, Richard G. Imvood, and Perry C. Davenberg. Decree for complainant, and defendants appeal.

<p>1. Patents (§ 168*) — Construction—Limitation by Proceedings in Patent OlTICE.</p> <p>Where an applicant for a patent acquiesces in the rejection of the claims presented, and amends the same or substitutes others to meet the objections of the Patent Office, he must be deemed to have surrendered and disclaimed what he has thus conceded, and is bound by the limitation so imposed; and in such case it is immaterial whether the Patent Office was right or wrong in rejecting the original claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. § 168.*</p> <p>Gonelusiveness and effect of decisions of Patent Office in proceedings on applications, see noie to Novelty Glass Mfg. Co. v. Brookfield, 95 C. C. A. 530]</p> <p>2. Patents (§ 87*) — Abandonment—Presumptions.</p> <p>But abandonment of invention through amendment of claims in the Patent Office is not to he presumed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 87.*]</p> <p>8. Patents (§ 828*) — Validity and Tnerinoement — Iron Cinder Orusher.</p> <p>The Sly patent, No. 514,097, for a crusher intended for the recovery of iron from cupola cinder, was not anticipated and discloses invention. It Is not limited to the crushing function, hut includes also the separating feature, which is the principal object' to be accomplished and in which it has proved successful, and is entitled to a reasonable breadth of equivalents. As so construed, held infringed.</p>

<p>1. Patents (§ 151*) — Disclaimer—Suit for Infringement.</p> <p>A disclaimer of an unnecessary and inadvertent statement in the speei- ■ fieation of a patent may be entered in a suit for its infringement, where its effect is not to broaden the claim in issue, but to limit it to the actual invention, strictly within the terms of the claim, and as described and shown, and to save the claim from possible ambiguity.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 151.*]</p> <p>2. Patents (§ 828*) — Validity and Invention — Cab Truck Bolster.</p> <p>The Bauer patent. No. 508.410. for a car truck bolster, elaim 6, was not anticipated and discloses invention; also held infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Suit in equity by Arthur K. Beckwith against the Malleable Iron Range Company. Decree for complainant, and defendant appeals. Affirmed.</p> <p>This appeal is from an interlocutory decree in favor of the appellee, Beck-with. upon his patent, No. 787,425, adjudging validity of the patent and infringement thereof by tlie appellant defendant, with injnnctionai relief.</p> <p>The Beckwith patent was granted April 18, 1905, under an application riled September 11, 1903, for “improvements in stoves,” and contains 11 claims; but claim 11 is alone involved in the charge of infringement, reading as follows;</p> <p>“11. In a stove or range, the combination of the convex rigid back plate, a sheet-metal reservoir, and means for clamping said reservoir against the convex surface of said plate, for the purpose specified.”</p> <p>“in the specifications are the following recitals and references involved in the issues:</p> <p>“The objects of this invention are: First, to provide an improved reservoir by which water may be quickly heated; second, to provide an improved reservoir for stores or ranges by which a maximum amount of the waste heat may be utilized; third, to provide an improved reservoir for stoves or ranges in which the heating of the water is under control. * * *</p> <p>“A structure embodying the features of my invention is dearly illustrated in the accompanying drawings, forming a part of this specification, in which—</p> <p>“Figure 1 is a detail vertical sectional view through a structure embodying the features of my invention, taken on a line corresponding to line 1 1 of Fig 2. Fig. 2 is a detail horizontal sectional view taken on line 2 2 of Fig. 1. Fig. 3 is ail enlarged detail view taken on line 3 3 of Fig. 2. Fig. 4 is a detail sectional view showing the manner of supporting the reservoir on the range, taken on line 4 4 of Fig. 3,</p> <p>“In the drawings the sectional views are taken looking in the direction of the little arrows at the ends of the section lines, and similar letters of reference refer to similar parts throughout the several views.</p> <p>“Referring to the lettered parts of the drawings, A represents the rear portion of my improved stove or range, and A' the oven thereof. These parts are illustrated in conventional form.</p> <p>"I provide a back plate a, which is convex on its outer face or curves outwardly. (See Figs. 1 and 2.) The back plate a is cast or formed of rigid material.</p> <p>“The reservoir B is formed of sheet metal, preferably copper, and its inner side 6 is clamped against the convex face of tlie back plate a by the supporting-straps B'. The clamping of the side of the reservoir against the convex plate a holds the side of the reservoir in close contact therewith over its entire surface and places the same under tension, so that the tendency to buckle or the possibility of its buckling, and thereby forming air-chambers between the side of the reservoir and tlie plate, is overcome. The inner end of the .supporting-straps R' of the reservoir are bent outwardly and perforated to receive the bolts c, which are arranged through the back plate a. Tlie straps are of such length that tension can be applied thereto by the bolts.</p> <p>“Tlie reservoir B is surrounded by a casing C, forming an air-chamber C" between it and the side walls of the reservoir. The casing O is embraced by the frame-like end plate O', supported on the plate a,. Outwardly-projecting flanges i on the back plate a engage the end plates O'. The inner edges of the metal casing C are turned inwardly to form flanges e'. These flanges o' are engaged by the lugs V on the straps B', so that the parts are securely supported.”</p> <p>The drawings are as follows:</p> <p> </p>

<p>In Equity. Suit by the Gilbert Manufacturing Company against the Post & Lester Company. On demurrer to bill. Overruled.</p>

In Equity. Suit by the Central Trust Company of New York, as trustee, against the Wheeling & Fake Erie Railroad Company. Application by B. A. Worthington, as receiver, to restrain Dr. J. C. Dignan and Fritz Rudin, his attorney, from continuing proceedings in a suit in the state courts to subject certain earnings alleged to belong to their judgment debtor, Frank Scott, to the payment of such judgment, and to punish the said Dr. J. C. Dignan and Fritz Rudin for contempt.

<p>At L,aw. Actions by the International Text-Book Company against the Leader Printing Company and against Charles B. Heisler. On demurrer to petitions. Overruled.</p>

In Equity. Bill by the Da Prato Statuary Company against the Giuliani Statuary Company. On motion for temporary injunction. Granted. This is a bill in equity brought by the complainant company of Chicago, a producer and seller of statuary and other articles for the decoration of churches and religious edifices.

<p>1. Bankruptcy (§ 228*) — Proceedings by Referee — Review of Findings of Fact.</p> <p>The court is not disposed to disturb findings of fact by tbe referee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. § 228.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Mechanics’ Liens (§ 156*) — Notice to Owner — Verbal Notice — “Notify.”</p> <p>Under Rev. St. Ohio, § 3185, providing that a person filing an affidavit or a mechanic’s lien' shall within 30 days thereafter notify the owner of the property, his agent, or attorney that he claimed such lien, verbal notice is sufficient The word “notify” as generally used does not imply the use of writing; it .meaning simply to convey information, knowledge, or notice in whatever way.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. $ 187; Dec. Dig. § 156.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4845, 4846.J</p>

<p>In Equity. Two suits by Parke-Davis & Co. against the H. K, Mulford Company. Decree for complainant in each case.</p> <p>This is a final hearing upon two bills in equity praying an injunction against the infringement of two patents. The subject patented in each case is an extract from the suprarenal glands of living animals, and the patent concerns only the product as extracted by the patentee. He also has taken out other patents for his process, which are not concerned here. The alleged infringements of the defendant consist of two products, one in the form of dry powder which constitutes the active chemical principle of the suprarenal glands, and the second a sodium chloride solution of the borate of that principle which is in commerce sold with a preservative such as acetone or chloretone. The complainant asserts that both the dry product and solution infringe the first patent, and that the solution infringes the second patent.</p> <p>The following is the list of claims here in issue:</p> <p>First patent:</p> <p>“1. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands in a stable and concentrated form, and practically free from inert and associated gland-tissue.</p> <p>“2. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands in a stable and concentrated form, practically free from inert and associated gland-tissue, and having a whitish color when in a dry or solid condition.</p> <p>“3. A crytalline (sic) substance possessing the herein-described .physiological characteristics and reactions of the suprarenal glands in a stable and concentrated form, and practically free from inert constituents.</p> <p>“4. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands in a stable and concentrated form, having a whitish color and a crystalline form when in a dry or solid condition, and melting at about 207 centigrade."</p> <p>“6. A crystalline substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands; said substance having the property of crystallizing in a variety of forms.</p> <p>“7. A substance possessing the herein-described properties of the suprarenal glands having a whitish color, difficultly soluble in water at ordinary temperature, soluble in acids and forming salts therewith, soluble in alkalies, and melting at about 207 centigrade."</p> <p>“9. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands, practically free from inert and associated gland-tissue, and having an alkaline reaction.”</p> <p>“11. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands, practically free from inert and associated gland-tissue, having an alkaline reaction and reducing properties.</p> <p>“12. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands, practically free from inert and associated gland-tissue, having an alkaline reaction, giving a green coloration in reaction with ferric salts, and a red coloration with iodine.</p> <p>“13. A substance possessing the herein-described physiological characteristics and reactions of the suprarenal glands and which is not precipitated by the usual alkaloid test reagents.</p> <p>“14. A substance possessing the herein-described properties of the supra-renal glands, practically free from inert and associated gland-tissue, having an alkaline reaction, giving a green coloration in reaction with ferric salts, and having reducing properties.</p> <p>“15. The herein-described substance possessing hemostatic, astringent and blood pressure raising properties having a whitish color and a crystalline form, difficultly soluble in water at ordinary temperature, soluble in acids or alkalies, possessing reducing properties, giving a green coloration in reaction with ferric salts and a red coloration in reaction with iodine.</p> <p>"1G. A solution possessing the herein-described physiological characteristics and reactions of the suprarenal glands in concentrated and stable condition, and from which solution is obtained the herein-described substance free from inert and deteriorating matter by ’ simply neutralizing or removing the solvent.” '</p> <p>Second patent:</p> <p>“3. As an article of manufacture, a substance consisting of the blood pressure raising principle of the suprarenal glands chemically combined with a nonsuprarenal substance whereby the stability of a water solution of said blood pressure raising principle is maintained.</p> <p>”2. As a new article of manufacture, a solution consisting of water and the blood pressure raising principle of the suprarenal glands chemically combined with a nonsuprarenal substance whereby the stability of the solution is maintained.</p> <p>“3. As a new article of manufacture, a substance having the properties of the hemostatic astringent and blood pressure raising principle of the supra-renal glands substantially free from nonblood pressure raising constituents thereof, which is soluble , in water and the water solution of which is practically inert to the oxygen of the air and gives a green coloration with ferric chloride and a red coloration with iodine.</p> <p>“4. As a new article of manufacture, a compound of the crystallizable blood pressure raising constituent of the suprarenal glands substantially free from the noncrystallizable constituents thereof, which is soluble in water, and which when in water solution is practically inert to the oxygen of the air and gives a green coloration with ferric chloride and a red coloration with iodine.</p> <p>“5. The substance consisting of a salt of the herein-described product of the suprarenal glands; said salt being easily soluble in water and possessing the physiological and therapeutic characteristics and reactions of said product in substantially stable and concentrated form.</p> <p>“6. The substance consisting of a chemical compound of an inorganic acid and the herein-described product of the suprarenal glands; said compound having the physiological and therapeutic characteristics and reactions of said product in substantially stable and concentrated form.”</p>

<p>At Law. Action by Maggie Boyd and others against the Great Western Coal & Coke Company. On motion to remand'. Granted.</p>

<p>At Law. Action by Republic Iron & Steel Company against Howard Carlton to recover as creditor an unpaid stock subscription of defendant to the South Baltimore Steel Car & Foundry Company. On demurrer to declaration.</p>

Action by James P. Ragan, trustee in bankruptcy of Richard W. Cahill, against Dennis D. Donovan, as assignee for the benefit of the creditors of the Citizens’ State Banking Company, and others._ Heard on the report of a special master for the complainant. Findings and report of the special master approved and made the order of the court.

<p>Petition by Samuel Lewis for a writ of habeas corpus against G. Oliver Frick, Immigration Inspector. Petitioner discharged.</p>

At Raw. Action by Sylvester J. Shelton against the Canadian Northern Railway Company. Judgment for a part only of the relief demanded. The plaintiff, a resident of South Dakota, entered into a contract in Canada with the defendant company for the transportation of a car load of household goods and live stock from Emerson Junction to Lloydminster, both in the Dominion of Canada.

Suit by tbe Pacific Improvement Company against the Chattanooga Southern Railroad Company, in which Henry R. Ramb filed an intervening petition for an allowance against defendant for compensation for services rendered as its president. Demurrer to intervention, as amended, sustained.

<p>1. Equity (§ 43*) — Jurisdiction—Retention of Jurisdiction Acquired.</p> <p>Though complainant in a suit in equity to rescind a contract with defendant, who was nominally an agent, but really the principal, and for an accounting, had an adequate remedy at law for breach of warranty, where the court on the first argument refused to dismiss in equity and remit the party to an action at law, the action having been tried in 1904, and finally submitted in 1906, and resubmitted on final argument in 1907, and the parties having taken over four years to submit their briefs, the equity court will decide the cause on its merits.</p> <p>!.Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 121-140; Dec. Dig. § 43.*] .</p> <p>2. Sales (§ 441*) — Remedies of Buyer — Suit for Breach of Warranty-</p> <p>Sufficiency oí; Evidence.</p> <p>In a suit in equity, evidence held insufficient to show a breach of warranty of the quality of coal sold by the respondent to complainant, or any legal basis for estimating damage from such a breach.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig. § 441.*]</p> <p>3. Sales (§ 442*) — Elements—Damages.</p> <p>Where complainant purchased coal from respondent as agent of a seller in Wales, but the respondents were in fact the principals, and on a dispute arising as to the quality of the coal the complainant sent a representative to Wales to see the supposed principal, the complainant is entitled to recover the provable disbursements in sending the representative to Wales.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-130.1; Doc. Dig. § 442.*]</p>

In the matter of the bankruptcy of the Bellevue Pipe & Foundry Company, a bankrupt. On petition for review of the decision of the referee on the trustee’s petition to expunge claims of the SlossSheffield Steel & Iron Company and the National Supply Company.

<p>At.Law. Action by the Louisville & Nashville Railroad Company and Atlantic. Coast Line Railroad Company against the Empire State Chemical Company. On demurrer to defendant’s answer. Overruled in pari and sustained in part.</p>

<p>1. Usury (§ 57*) — Usurious Transactions.</p> <p>A company not being able to obtain a loan applied to a third person for a loan. He declined because he did not have the money, but agreed to procure the money from a bank and make himself liable for the debt on the company agreeing to pay him a specific sum per month for the trouble in procuring the money and for the sale of his credit. Held, that the . transaction was not tainted with usury.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 128, 129; Dec. Dig. § 57.*]</p> <p>2. Bankruptcy (§ 316*) — Mortgagee of Bankrupt — Attorney’s Fees.</p> <p>A mortgagee, in a mortgage providing for an attorney's fees in ease legal services become necessary to protect his interest, filed a petition for leave to foreclose the mortgage after the bankruptcy of the mortgagor, and the trustee in bankruptcy filed a petition for leave to sell free from liens. Held, that the mortgagee was entitled to an allowance of an attorney’s fee for the filing of his petition and for representation under the trustee’s petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 316.*]</p> <p>3. Bankruptcy (§§ 223, 368*) — Sale of Property Free from Liens — Commis-</p> <p>sions — Liability.</p> <p>The bankruptcy act as amended, authorizing payment of commissions from the proceeds of the sale of incumbered property of a bankrupt, applies only to eases in wliicli the bankruptcy court rightfully exercised its jurisdiction to sell free from liens or where the lienholder consented to a sale, but where the unincumbered property brought' largely less than the amount of the liens on it, the bankrupt estate must pay tile commission of tlie referee and the trustee.</p> <p>[.Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 223, 368.*]</p> <p>4. Bankruptcy (§ 316*) — Attorney’s Fees — Coblection of Insurance</p> <p>Honey.</p> <p>Where insurance under the same policies was partly due a trustee in bankruptcy and partly due lienholders of the bankrupt, the trustee with the consent of the lienholders properly collected ihe insurance and if was proper to allow him an attorney's fee and to charge against the lien-holders a pro rata part thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 316.*]</p> <p>5. Bankruptcy (§ 188*) — Lien op Mortgage.</p> <p>A corporation engaged in the business of cutting and sawing timber, executed a mortgage to procure money to enable it to continue business and the mortgagee knew the facts. The mortgagor had the right under the mortgage of ingress and egress for the purpose of cutting Umber. Held, that the mortgagee, as against tlie trustee in bankruptcy of the mortgagor, lost his lien on timber cut and sawed and commingled by the, mortgagor with lumber manufactured from timber cut from unmortgaged premises.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Dec. Dig. § 188.*]</p> <p>6. Bankruptcy (§ 316*) — Insurance of, Mortgaged Premises--Rights of</p> <p>Mortgagee.</p> <p>A mortgagor engaging in the business of cutting and sawing timber, executed a mortgage to procure money to enable it to continue the business and the mortgagee knew it. The mortgagor had the right under the mortgage of ingress and egress for the purpose of cutting the Umber, and the mortgagor was required to insure the mortgaged property. The mortgagor obtained polities covering the mortgaged property and other property. Held, that the mortgagee was not entitled to insurance on property on which he had no lien as against the trustee in bankruptcy of the mortgagor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 316.*]</p>

<p>1. Carriers (§ 18*) — Rates—Regulation by Railroad Commissioners.</p> <p>A complaint, seeking to enjoin rates fixed by tbe railroad commissioners of a state, should state facts which show that such rates do not afford a fair return on the value of the complainant’s property devoted to the particular use, and, in the absence of such allegations, the presumption of law will prevail that the rates made are fair.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 18.®]</p> <p>2. Pleading (§ 8®) — Conclusions of Law — Charges—Regulation by Rail-</p> <p>road Commissioners — Injunction.</p> <p>A complaint to enjoin rates fixed by the railroad commissioners of a, state, alleging, in general terms, that the local rates of the company affected by t'he order were reasonable and just, and as low as the situation of the parties and the competitive condition of the business would permit, and that the said compensation charged on existing tariffs is reasonable and just and affords but slight compensation above the cost's of the service, and that the reductions attempted to be made by the commission involve rates, which, if enforced, would deprive complainant of a large sum of annual revenue, and compel it to give the use of it's property without reasonable or just compensation, and compel it to increase other rates on traffic not affected by the order, thus compelling discrimination, and that the order was unreasonable, unjust, and arbitrary, and that the rates sought to be prescribed are confiscatory, was insufficient as stating conclusions of law not supported by averments of fact.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28% ; Dec. Dig. § 8.*]</p>

<p>1. Insurance (§ 110*) — Lire Insurance — “Policy.”</p> <p>The word “policy,” in a life policy provision for payment to a beneficiary of a stated sum on insured's deatli during continuance of the policy, refers to the insurance contract.</p> <p>LFd. Note. — For other cases, see Insurance, Dee. Dig. § 146.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5410-5412-1</p> <p>2. Bankruptcy (§ 143*) — Assets—Lire Policy.</p> <p>A paid-up policy insuring bankrupt’s life, under agreement to pay him an annuity for life after 20 years, which have not expired, and to pay his widow a fixed sum on his deatli, vests in his trustee in bankruptcy only as to- the bankrupt’s interest in the annuity and not as to the entire-present value of the policy, under Bankr. Act July 1, 1898, c. 541, § 70a (5), 30 Stat. 566 (U. S. Comp. St. 1901, p. 3451), vesting in the trustee title to property which the bankrupt might have transferred; though the policy reserves an option to the bankrupt to surrender it at the end of the-20-year term:</p> <p>[Bd. Note. — For other eases, see Bankruptcy, Dec. Dig. § 143.*]</p>

<p>Criminal prosecution by the United States against the St. Louis Coffee & Spice Mills. On demurrer to evidence.</p>

Criminal prosecution by the United States against Jacob Frank, Charles Frank, and Emil Frank, trading as the Frank Tea & Spice Company. Judgment on plea of guilty. . On or about March 21, 1909, Jacob Frank, Charles Frank, and Emil Frank, trading under the firm name and style of the Frank Tea & Spice Company, shipped from the state of Ohio into the state of Kentucky a quantity of so-called lemon extract labeled, “P. & S. Brand Extract Terpeneless Lemon— ■Artificially Colored.

<p>' Paul Clein was convicted of murder, and moves for a new trial.</p>

<p>In Equity. Bill by Ida Richardson Hood and others against J. B. McGehee and others. On demurrer to amended bill.</p>

At Law. Action by David M. Morris against the Travelers’ Insurance Company and the Union Soapstone Company. Demurrer to declaration sustained. An action on the case.

<p>In Equity. Suit b}^ the National Cloak & Suit Company against David Kaufman for copyright infringement. On demurrer to bill Overruled.</p>

<p>At Law. Action by Y. Sagara against the Chipago, Rock Island & Pacific Railway Company. On motion to remand to state court. Motion sustained.</p>

<p>1. Removal of Causes (§ 26*) — Citizenship—Consent op Parties.</p> <p>An action in a state court by one nonresident citizen against another, relating to a matter of venue rather than of general jurisdiction, may be removed to the federal court for the district, only with the consent of both parties.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 26.*]</p> <p>2. Courts (§ 272*) — Federal Courts — Jurisdiction—Diversity oij Citizenship.</p> <p>Where jurisdiction by a federal court depends on the diversity of state citizenship alone, the action may he instituted in the district of the residence of either party at the option of plaintiff, the provision limiting venue as applicable to the district of defendant’s residence being for his benefit so that he may waive it.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 811; Dee. Dig. § 272.*]</p> <p>3. Courts (§ 276*) — Federal Courts — Jurisdiction—Diveríiity op Citizenship.</p> <p>A plaintiff instituting a suit in the federal court of a district other than that of the residence of either of the parties, waives thereby the wrong venue and the provision authorizing venue in the district of his residence.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*</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 C. C. A. 298.]</p> <p>4. Removal op Causes (§ 105*) — Act to Remove into Federal Court — -Remanded to State Court — Consent op Parties.</p> <p>Where a plaintiff sues in a state court in a district other than the residence of either of the parties and defendant attempts to remove the case into the federal court for that district, he thereby consents to be sued in the federal court for that district, but plaintiff is entitled to remand to the state court unless he consents to the removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 215 ;i Dec. Dig. § 105.*]</p> <p>5. Removal op Causes (§ 12*) — Actions by Aliens — Rights op Dependant.</p> <p>The provision requiring an action by an alien against a citizen to be brought in the court of the district where defendant is an inhabitant, is for the benefit of defendant alone, and an alien instituting a suit in a state court in a district in which defendant does not' reside, may not complain because defendant removed the cause into the federal court for that district.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32,33 ; Dec. Dig. § 12.*]</p> <p>6. Courts (§ 321*) — Jurisdiction—Citizenship.</p> <p>The grant of jurisdiction to the federal courts by Const, art. 3, § 2, and the judiciary act (Act March 3, 1911, c. 231. § 256, 36 Stat. 1160), of controversies between citizens of the United States and citizens and subjects of foreign states, includes suits against, as well as suits by, aliens.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 847-849; Dec. Dig. § 321.*]</p> <p>7. Removal of Causes (§ 11*) — Grounds—Diversity of Citizenship.</p> <p>Where an alien sues a citizen in a state court in the district of the citizen’s residence, the citizen may not remove the cause to the federal court, unless a federal question is presented.</p> <p>| Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 29-31; Dec. Dig. § 11.*]</p> <p>8. Removal of Causes (§ 27*) — Grounds—Diversity of Citizenship.</p> <p>.Where an alien sues a foreign corporation in a state court the corporation may remove the action to the federal court, the basis of removal being tbe existence of a controversy between an alien and a citizen.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 6T-68; Dec. Dig. § 27.*]</p>

<p>In Admiralty. Suit by Bonaparte Shoe, managing owner of the ' Matilda D. Borda, against George F. Craig and another. Decree for libelant.</p>

<p>In Equity. Action by J. C. Wayt against the Standard Nitrogen Company and another. Motion to remand case to the state court.</p>

<p>Action by John Duff, receiver of the Consumers’ Gypsum Conjpany, against the United States Gypsum Company. Heard on demurrer to petition.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of B. B. Bazemore. On petition to review referee’s order disallowing petitioner’s application to reclaim certain goods.

In the matter of W. G. & E. W. S. Daugherty, trading under the firm name of W. G. Daugherty & Son, bankrupts. On demurrer to specifications of objections to bankrupt’s discharge.

<p>Action by Hector M. Hitchings, on behalf of himself and all other stockholders of the Cobalt Central Mines Company, against the Co-bait Central Mines Company and others. On demurrer to bill.</p>

G. V. Davin and another were indicted for violating the white .slave traffic act. Demurrer to both counts of the indictment sustained.

Suit by Richard Y. Anderson against H. C. Sharp. Motion to remand to the state court. This suit was originally brought in the, slate court. In form it is one of trespass to try title, the prayer being to recover a tract of land specifically described in the petition. The plaintiff also prays for a writ of possession. The cause was removed on the petition of the defendant to this court.

In Bankruptcy. In the matter of bankruptcy proceedings of J. D. McUlta. On certificate to review a referee’s decision allowing exemptions.

<p>Action by Joseph Ryan, an infant, by his guardian ad litem, Margaret Ryan, against the Philadelphia & Reading Coal & Iron Com.; pany. On proceedings for the distribution of a settlement for injuries to an infant.</p>

<p>In Equity. Bill by Grace Eones Copeland and others against Frank T. Staples as trustee and others. Decree for defendants.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of J. W. Zeigler Company, Inc. On motion to punish Nathan C. Herz as receiver of the bankrupt appointed in the state court for contempt.

<p>O. T. Anderson was indicted for purchasing cattle .from an Indian in alleged violation of Act Cong. July 4, 1884, and he demurs.</p>

<p>In Equity. Suit by The Dalles & Rockland Eerry Company against W. T. Héndryx. On motion to remove the cause to the state court.</p>

<p>In Equity. Suits by William M. Barrett, as president of the Adams Express Company, by Edward T. Platt, as Treasurer of the United States Express Company, and by Wells Eargo & Co., against the City of New York and others. Decree for complainants.</p>

Indictment by the United States against Rouis Rispoli for violating the white slave act, in that defendant knowingly persuaded a woman to go from one state to another in interstate commerce with intent that she should there engage in immoral practices, and knowingly causing her to be carried as a passenger in interstate commerce on the line of a common carrier from New York to Philadelphia.

<p>Action by the Brooklyn Trust Company and another, as executors of the will of Leonard J. Busby, deceased, against Charles W. Mc-Cutchen. On demurrer to complaint. Overruled with leave.</p>

<p>1. Public Lands (§ 38*) — Timbee and Stone Lands — Entetmen—Equitable Rights.</p> <p>One whose application to enter land under the timber and stone act (Act June 3, 1878, c. 151, 20 Stat. 89 [ü. S. Comp. St; 1901, p. 1545]) has been received by the local land officers has a superior equitable right to a subsequent applicant, though by mistake of such officers the first application was noted on the tracts and plat book as relating to other land.</p> <p>DSd. Note. — For other cases, see Public Lands, Gent. Dig. § 82; Doc. Dig. § 38.*]</p> <p>2. Public Lands (§ 137*) — Patents—Validity.</p> <p>Where, through mistake of local land officers, .the first application to enter land under the timber and stone act (Act Juno 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1903, p. 1545]) is noted on the tracts and plat book as covering another tract of land, and a subsequent' applicant procures the first patent to the particular land, the patent Is not absolutely void.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 324; Dec. Dig. | 13,7.*]</p> <p>3. Public Lands (§§ 120, 128*) — Conflicting Rights — Determination.</p> <p>Title to land entered under the timber and stone act (Act June 3, 1878, c. 151, 20 Stat. 89 LIT. S. Comp. St. 1901, p. 1545]) having passed to defendant by prior patent, though another liad made prior application to enter and made final proof, his .application, by mistake of the local land officers, having been noted on the tracts and plat book as covering another tract of land, the question of the real ownership was open in the proper courts, In a suit by the United States to set aside such patent, or by one claiming under the first applicant' to declare a trust.</p> <p>[ Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335, 344; Dec. Dig. §§ 320.128.*]</p> <p>4. Vendor and Purchaser (§ 231*) — Bona Fide Purchasers — Notice—Records — Patents.</p> <p>Under Rev. Laws Minn. 1905, § 4735, authorizing recording of government patents, and under section 3356, making properly recorded instruments notice to subsequent purchasers, purchasers from a prior patentee are chargeable with notice of a junior recorded patent, and are chargeable through such patent with knowledge that, on account of the junior patentee’s prior application to enter the land, the senior patentee was not' entitled to the land as against him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 533-539; Dec. Dig. § 233.*]</p> <p>5. Public Lands (§ 120*) — Patents—Suit to Set Aside — Laches.</p> <p>Laches does not bar'suit by the government to set aside a patent to public land.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p>

<p>1. Commerce (§§ 41, 68*) — Interstate Commerce — Interference by Municipal Ordinance — “Peddler.”</p> <p>A merchant in Chicago employed an agent, who solicited orders for merchandise in a city in Missouri and reported the orders. The merchant put up each article ordered in a package, and all the packages were shipped to the agent, who took the goods from the depot and delivered them to the customers and collected the price. Held, that the transaction was interstate commerce, and the agent was not a “peddler,” within an ordinance of the city imposing a license for selling merchandise from wagons, and the ordinance, as applied to the transaction, was invalid as an interference with interstate commerce.</p> <p>LEd. Note. — For other cases, see Commerce, Cent. Dig. §§ 30, 31, 107-109; Dec. Dig. §§ 41, 68*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5260-5267; vol. 8, p. 7750.]</p> <p>2. Injunction (§ 85*) — Restraining Enforcement of Void Ordinance— ■ Jurisdiction.</p> <p>The enforcement of a municipal ordinance, void for interference with interstate commerce; by criminal proceedings, with frequent arrests and other arrests threatened, will be enjoined.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]</p>

In Equity. Bill by the Finance Company of Pennsylvania against the Trenton & New Brunswick Railway Company and others. On rule to show cause and proofs on petition of Mitchell B. Perkins, as receiver of the Bordentown Electric Eight & Motor Company.

<p>1, Removal of Causes (§ 89*) — Petition fok Removal — Conclusiveness.</p> <p>The facts stated in a petition for the removal of a cause to a federal court, which are nor In coutlict witli anything contained in the pleadings in the suit, must be taken as true unless traversed.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 89.*]</p> <p>2. Removai. of Causes (§ 4*) — Actions Removable — Suit in Equity.</p> <p>A suit instituted in a state court as authorized by Civ. Code Ga. 1910, §§ 3895, 3896. to compel an executor to assent to a legacy to plaintiff, is a suit in equity, independent of and distinct from the administration of testator’s estate by the ordinary’s court, and may be removed to the federal court on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 11-20; Dec. Dig. § 4.*]</p>

In Bankruptcy. Petition by David Spruks and others for an order directing the receiver of the Lackawanna Dairy Company, a bankrupt, to pay petitioner a claim as preferred.

<p>Deportation proceedings by' the United States against Mar Poy. From an order of deportation, the alien appeals.</p> <p>This is an appeal from an order of deportation passed by the United States Commissioner at El Paso. The appellant claims to be 'a citizen of the United States by virtue of his birth in San Francisco, Cal. At the hearing before the commissioner the appellant, failing to produce evidence of his nativity, was ordered deported. Pending the appeal thé testimony of two Chinese witnesses of San Francisco was taken to prove his birth in that city. There also appears in the record the testimony of the appellant in his own behalf and that of the Chinese interpreter and the deputy marshal introduced by the government. The statement made by the appellant to the immigration authorities at the time of his arrest was also submitted in evidence by the assistant district attorney.</p>

<p>Appeal from the Circuit Court of the United States for the District of South Dakota.</p> <p>Suit by the City of Vermillion against the Northwestern Telephone Exchange Company. Decree for defendant, and complainant appeals.</p>

<p>1. Bankruptcy (§ 303*) — Suit to Avon) Peeference — Burden and Measure of Proof.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat 562 (U. S. Comp. St. 1901, p. 3145), as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1909, p. 1314), the burden of proof is on a trustee in bankruptcy seeking to avoid as a preference a transfer of property made by a bankrupt1 to prove by sufficient evidence that the bankrupt (L) while insolvent (2) within four months of the bankruptcy (3) made the transfer ip question; (1) that the creditor receiving tire transfer will be thereby enabled to obtain a greater percentage of his debt than other creditors of the same class; and (5) that the creditor receiving the transfer had reasonable cause to believe that it was thereby intended to give a preference.</p> <p>[ICd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>2. Trial (§ 105*) — Effect of Admission of Evidence — Failure to Object.</p> <p>Evidence received, though incompetent as hearsay or otherwise, if not reasonably objected to on proper grounds, constitutes evidence in the cause.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dee. Dig. § 105.*]</p> <p>3. Bankruptcy (§§ 166, 303*) — Voidable Preference — Intention of Debtor —Evidence.</p> <p>To render a preference voidable under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), there must have been an actual intention on the part of the debtor to give a preference; but, where the necessary result of the transaction was to create a preference, the law will conclusively impute such intention to the debtor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 166, 303.*]</p> <p>4. Bankruptcy (§ 166*) — Voidable Preference — Intention of Debtor — Evidence.</p> <p>A presumption of law that a bankrupt in making a payir- t or transfer to a creditor intended to give a preference does not arise from the fact alone that he knew himself to be insolvent, nor is the creditor’s belief that the debtor is insolvent in itself equivalent to a belief that he intends a preference so as to render the payment or transfer voidable under Bankr. Act July 1, 1898, e. 541, § 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 166.*]</p> <p>5. Bankruptcy (§ 303*) — Suit to Avoid Preference — Sufficiency of Evidence.</p> <p>Evidence considered in a suit by a trustee in bankruptcy to set aside as a preference a transfer of a mortgage by the bankrupt to defendant as security, and held insufficient to sustain the burden of proof resting on complainant to show that at the time of such transfer defendant had reasonable cause to believe that the bankrupt intended to give him a preference, or that such preference was in fact intended.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig, § 303.*]</p>

States for the Southern District of New York. Giuseppe Calicchio and others were convicted of a criminal offense, and they bring error.

<p>1. Shipping (§ 86*) — Personal Injuries — Questions for Jury.</p> <p>In an action by a trim operator in employ of a coal company against a steamship company for personal injuries sustained by falling into an open hatch while loading the vessel, held, that the court' properly submitted to the jury the question of the right of the plaintiff to he on the vessel as established by custom and tbe defendant’s knowledge of such custom.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 353-360; Dec. Dig. § 86.*]</p> <p>2. Appeal and Error (§ 724*) — Assignments—Ground of| Objection.</p> <p>Where the ground of the objection on which an assignment was'based was not stated, the assignment cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2997; Dec. Dig. § 724.*]</p> <p>3. Shipping (§ S6*) — Personal Injuries — Evidence.</p> <p>In an action against a steamship company for personal injuries received by plaintiff; while assisting to load a vessel, in falling into an open hatch, a question was asked as to a custom of the trim operator, such as plaintiff, going down on the deck of the boat to look after his machinery, and the answer was that it was a general custom for him to do so, and that “when he was starting a boat was practically the only time he had to look after the machinery, while it was high up out of the water, and that he did this by going down on the deck of the boat, taking advantage of that time because they would roll from 10 to 12 cars in such large vessels before they shifted when they started.” Held the answer was not immaterial nor subject to the objection that it related merely to an individual habit, and that it's object was to create a right of plaintiff to be on the deck of the vessel and a correlative duty of defendant.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 353-360; Dec. Dig. § 86.*]</p> <p>4. Evidence (§ 147*) — Admissibility—Negative Testimony.</p> <p>In an action by one injured by falling into the hatch of a vessel, testimony by witness in answer to an inquiry as to the condition of the hold with “reference to being dark or otherwise,” that it was pitch dark, that you could see nothing at all, and that there were no lights down in the hold, hut that afterwards when ho came back he saw lights, was not merely negative.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 435-437; Dec. Dig. § 147.*]</p> <p>5. Shipping (§ 86*) — Personal Injuries — Negligence—Question for Jury.</p> <p>In an action against a steamship company for personal injuries from falling into an open hatch while engaged in loading the vessel, held that, under the evidence and circumstances, it was not error to refuse to hold as a matter of law that “an open hatchway on a ship provided with the usual coamings is not evidence of negligence,” but that such question was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent'. Dig. §§ 353-360; Dec. Dig. § 86.*]</p> <p>■6. Shipping (§ 86*) — Personal Injuries — Contributory Negligence — Question for Jury.</p> <p>In an action against a steamship company by a trim operator for injuries sustained by falling in an open hatch in loading the vessel, held, that the question of plaintiff’s contributory negligence was for the jury.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 353-360; Dec. Dig. § 86.*]</p>

Suit in equity by the Rust Land & Dumber Compaq against J. W. Whe'eler, H.' B. Wheeler, D. C. Wheeler, and C. B. Paul, doing business as copartners under the name of J. W. Wheeler & Co. Decree for defendants, and complainant appeals.

<p>In Error to the Circuit Court of the United States for the Western Division of the Western District of Washington.</p> <p>Action by John Marinovich against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Uibel by the United States against Twenty Cases of Grape Juice; S. M. Flickinger & Co., claimants. Decree for claimants, and the United States appeals.

Action at law by the United States - against Alessandro Bolognesi and William Hartfield, trading as Bolognesi, Hartfield & Co. Judg-' ment (169 Fed'. 1013) for plaintiff, and defendants bring error. Writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of the defendant in error who was the plaintiff’ below. In the opinion following the parties are designated as in the Circuit Court.

In “Error to the Circuit Court of the United States for the Southern District of New York. Action at law by the United States, on the relation of Frank P. Bartlett, against the United States Fidelity & Guaranty Company. Judgment for relator, and defendant brings error.

Action by Fannie Enos, administratrix of the estate of Charles Thomas Enos, deceased, against the Kentucky Distilleries & Warehouse Company and others. Judgment for defendants, and plaintiff brings error'.

Suits by James C. Robinson and by Reuben O. Scovill against the Mutual Reserve Rife Insurance Company. Appeal from a final decree distributing the funds of defendant. This cause comes here upon appeal from final decree distributing the funds of defendant, an insolvent insurance company, among the several claimants. The company is the one which was' before the Supreme Court in Polk v. Mutual Reserve Rife Insurance Company, 207 U. S. 310, 28 Sup. Ct. 65, 55 L. Ed. 222.

Uibel by the United States against 300 cans of frozen eggs claimed by the European Egg Company. From a judgment sustaining exceptions to the libel, the government appeals.

Suit in admiralty for collision by Owen J. McWilliams, as owner of the tug Zouave, against the tug Charles J. Senff; the Brooklyn Eastern District Terminal Company, claimant. Decree for claimant, and libelant appeals. The suit was brought to recover damages for a collision between the libel-ant’s steam tug Zouave and a car floated in tow of the steam tug, Charles H. Senff, which occurred in the North River on June 8, 1907, about 2 o’clock in the «morning.

<p>Patents (§ 328*) — Invention—Inkstand.</p> <p>The Ashley patent, No. 829,752, for an inkstand which is made of glass, having a square or angular base and a substantially flat top with a circular reservoir therein, the glass being turned in to form a dome shaped cover to the reservoir leaving an opening in the center is void for lack of invention in view of the prior art.</p>

In Equity. Suit by the Victor Talking Machine Company against the American Graphophone Company. Decree for complainant. Suit in equity to restrain alleged infringement of United States letters patent No. 896,059, dated. August 11, 1908, “record for'talking machine,” and for an -accounting.

<p>In Equity. Suit by the United States Light & Heating Company against the J. B. M. Electric Company and others. Decree for complainant.</p>

<p>Eatents (§ 328*) — Validity and Tnfrtííoemen.t — ,-Gear Case.</p> <p>The Waters patent, No. 739,306, for a gear case, adapted to cover the reduction gear of electric motors of trolley cars; was not anticipated, -and .discloses invention; also held infringed by certain styles of gear cases which -were made by defendant when the suit was commenced, hut not ' by -the style afterward adopted, and which was the only one made at the time of trial.</p>

<p>In Equity. Suit by the American Patent Diamond Dop Company against Rawson L. Wood, .St. John Wood, and Plarry S. Wood. On final hearing. Decree for complainant.</p>

<p>• In Equity. Suit, by Henry B. Newhall against J. Jacob Shannon & Co. On final hearing. Decree for defendant.</p>

In Equity. Suit by St. John Wood against Louis Kahn and others for infringement of the Wood patent, No. 839,356, for a process for dividing diamonds. On final hearing. Decree for defendants.

<p>In Equity. Suit by the Metallic Rubber Tire Company against the Hartford Rubber Works Company. On final hearing. Decree for defendant. ■</p>

In Equity. Suit by Daniel B. Euten against the Dover Construction Company. On demurrer to bill. Suit to restrain infringement of five certain patents on reinforced concrete structures, Nos. 818,386, 853,202, 853,203, 923,058, 934,411; the last two are process patents.

<p>In Equity. Suitby the Fostcr Hose Supporter Company against the Thomas P. Taylor Company. On final hearing. Decree for defendant.</p>

<p>1. Courts (§ 347*) — Federal Courts — Jurisdiction—Procedure.</p> <p>Under Conformity xVct June 1, 1872, c. 255, § 5, 17 Stat. 197, providing that in actions at law in federal courts the proceedings shall conform to the practice of the state in which tlie action is brought, to which there is but the one exception that the defense that the court has no jurisdiction of defendant must' be set up by special plea in abatement, a plea to the jurisdiction, taking issue with the averment of the petition that plaintiff is a resident of Ohio, where the action is brought, and insisting that he is a resident of Michigan, of which state defendant is also a citizen, is not permissible. Gen. Code Ohio, § 11,309 (Rev. St. § 5001), permits this question, when appearing on the face of the petition, to be raised by demurrer; section 11,311 (section 5063) permits it, when not so appearing, to be raised by answer; and no other method for raising it is known to the practice of that state.</p> <p>| Ed. Note. — For oilier cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 847.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, a C. O. A. 591; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 892.]</p> <p>'2. Judgment (§ 106*) — Default—Extension of Time.</p> <p>Though defendant merely interposed a plea to the jurisdiction, which practice is not permissible, yet it being impossible to say that it was filed otherwise than in good faith, motion for default judgment will be disallowed, and he will be allowed time in which to plead.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 106.*]</p>

<p>In the matter of James W. Bassett, bankrupt. On question certified to the court by the referee as to exemptions. Exemptions allowed.</p>

Deportation proceedings by the United States against Chan Tse Cheung. From an order of deportation issued by the United States commissioner, the alien appeals. This is an appeal from an order issued by the United States Commissioner-at El Paso deporting the appellant to China.

<p>United States (§ 111*) — ClaimSt-^Rigiits op Assignee.</p> <p>Under Rev. St. §■ 3477 (U. S. Comp. St. 1901, p. 2320), prohibiting the transfer of claims against the United States, and declaring that such transfers shall be void unless executed in a particular manner and containing certain recitations of fact, an assignment of a claim against the United States for money paid to the Land Office by plaintiff’s assignors as the purchase price and fees, pursuant to a timber land entry which was erroneously rejected, was invalid and insufficient to sustain an action against the government by the assignee in a federal court.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. §§ 94-98; Dec. Dig. § 111.*</p> <p>Assignment of claims and government contracts, see note to Green-ville Sav. Bank v. Lawrence, 22 C. C. A. 650.]</p>

In Admiralty. Suit by the Morris & Cummings Dredging Company against the steam tug Reliance. On exceptions to clerk’s taxation of costs on the appeal of libelant and claimant. Claimant’s exceptions overruled, and libelant’s exceptions sustained.

<p>In Equity. Petition by Nathan C. Remsen against the C. E. Blanke Tea & Coffee Company, On motion to remand.</p>

<p>Towage (§ 9*) — Compensation—Actions—Pleading.</p> <p>A libel for towage services to a vessel in her home port where the bargain was made with the owner, which states that the services were performed at the special instance and request of the owner, and- which does not set forth that they were done on the credit of the vessel, and which does not show that a state statute created a.lien, does not set forth facts to support an action in rem.</p> <p>[Ed. Note. — For other cases, see Towage, Dec. Dig. § 9.*] .</p>

In Equity. Suit by Daniel J. Leary against the Mayor and Aider-men of Jersey City and others to restrain the sale of lands for unpaid taxes. Heard on bill, supplemental bill, answers, stipulations, and proof.

<p>In the matter of A. O. Brown & Co., bankrupts. On report of referee with respect to claims upon the fund on deposit with the Hanover National Bank. Report confirmed.</p>

<p>In the matter of A. O. Brown & Co., bankrupts. Ex parte Allen R. Smart. Order in favor of claimant.</p>

<p>In the matter of A. O. Brown & Co., bankrupts. Ex parte Bessie H. Parker. Order in favor of claimant.</p>

<p>1. Street Bailroads (§ 28*) — Franchises—Construction.</p> <p>The right of a city granting a street railway franchise subject to the right at any time to designate any other line of railway in the city as demanded by the public necessities, and to extend any existing line, and, on the failure of the company to construct and put in operation any line demanded within a reasonable time fixed by the council, to grant to any ©tlier company the right to construct and operate a street railway in the streets so designated, can only he exercised by an order which fixes the time within which the company must construct and operate any line ordered, and, before the council may give another company the right to maintain a car line on any street in which a line has been ordered, it must determine the time within which the company must complete the work.</p> <p>[Ed. Note. — For other cases, see Street Bailroads, Dec. Dig. § 28.*]</p> <p>2. Street Bailroads (§ 28*) — Franchises—Enforcement—Remedy or Municipality.</p> <p>The sole remedy of a city granting a street railway franchise subject to the right to designate other lines of railway and to extend any existing line, subject to the right to grant to any other company the exclusive right to operate a street railway in the streets so designated on the company failing to comply with the extensions demanded, is on the failure of the company to comply with extension orders, by granting to some other companj' the right to operate cars on streets on which extensions or new lines have been ordered.</p> <p>[Ed. Note. — For other cases, see Street Bailroads, Dec. Dig. § 28.*]</p> <p>3.. Constitutional Law (§ 241*) — Equal Protection or¡ the Law — Municipal Ordinances — Validity.</p> <p>An ordinance directing a street railway company to construct and equip tracks on designated streets and put the same in operation does not deny the equal protection of the law to the company which accepted a franchise, giving the city the right to designate other lines or the extension of existing lines as demanded by public necessities.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 700, 701; Dec. Dig. § 24L*]</p> <p>4. Injunction (§ 144*) — Besteaining Enrorcement or Municipal Ordinances — Pleading.</p> <p>One suing to restrain the enforcement of a municipal ordinance may allege extraneous facts showing that the ordinance is in fact void, and the allegations of the bill must be taken as true on motion for temporary injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*]</p> <p>5. Constitutional Law (§ 133*) — Impairing Obligation or Contract-Franchises — Ordinance.</p> <p>An ordinance granting a street railway franchise required the company at its own expense to remove its tracks when the city desired t'o make any improvement on the streets including the laying of sewers, and reserved to the city the power to designate any other line of railway or an extension of any existing lino as demanded by the public necessities. A subsequent ordinance, accepted by the company, provided that sewers should be built in streets before new lines should be ordered or existing lines he extended, and later such ordinance was amended so as to omit all reference to sewers. Held, that the amended ordinance was binding on the company though not accepted by it, because the amendment was an exercise of the power of the city to regulate the manner of carrying on the business of the road and the use of the streets, and hence an ordinance directing the construction of a line over a street- in which there were no sewers was not invalid as impairing the obligation of a contract.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. § 376: Dec. Dig. § 133.*]</p> <p>■6. Constitutional Law (§ 297*) — Dub Process of Law.</p> <p>Such ordinance was not invalid as depriving the company of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 297.*]</p> <p>7. Street Railroads (§ 28*) — Ordinances—Extensions—Validity.</p> <p>Where a street railway franchise reserved to the city the right to direct the construction of new lines and the extensions of existing lines, when demanded by public necessities, an ordinance directing the construction of tracks nine miles in length could not be adjudged invalid as arbitrary and unreasonable, on the ground that the public necessities did not demand the work, the city council having determined that public necessities demanded the work, and the general manager of the company stating that 9% miles of extensions during the year would not be unreasonable, but within the power of the company to make.</p> <p>• [Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 28.*]</p> <p>8. Constitutional Law .(§ 133*) — Due Process of Law — Impairing Obligation of Contract — Street Railway Extension — Municipal Order.</p> <p>A street railway company accepting a franchise to operate a street car system in a city, subject to the right of the city at any time to designate other lines of railway as demanded by public necessities, or the extensions of existing lines, with the right of the city to grant to any other company the exclusive right to construct and operate a street railway in streets so designated on t'he company failing to comply with the orders of the' city, may be put to its election on the adoption of an extension ordinance as to whether it will build the line ordered or allow another company to build it, and any future action by t'he city in exercising its rights under the franchise is within the scope of the franchise, and will not deprive the company of its property without due process of law nor impair the obligation of a contract.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 133.*]</p> <p>8. Constitutional Law (§ 115*) — Obligation of Contracts — Legislature.</p> <p>Resolutions or orders of a eity directing a street railway company to construct new lines or extend existing lines are legislative acts, within the rule that a legislative act may not' impair the obligation of a contract.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 115.*]</p> <p>10. Street Railroads (§ 65*) — Regulations—Municipal Authority.</p> <p>A city granting a street railway franchise may, within the police power, regulate the service for public convenience, safety, or health.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 65.*]</p> <p>11. Street Railroads (§ 70*) — Regulations—Ordinances—'Validity.</p> <p>An ordinance of a city limiting the number of passengers on each street car to 75, and imposing a penalty for its violation, is a valid exercise of the power of the city to regulate street car service pf a company having a franchise to operate a street car system in the city.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>12. Street Railroads (§ 70*) — Regulations—Ordinances—Validity.</p> <p>A provision in a city ordinance limiting the number of passengers on Street cars that the company shall post in its cars the number of people to be reasonably carried in each car is valid.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dee. Dig. § 70.*]</p> <p>13. Street Railroads (§ 70*) — Regulations—Ordinances —Validity.</p> <p>An ordinance requiring a street railway company, having a franchise to operate street cars in a city subject to the duty to furnish and run a sufficient number of ears to accommodate the traveling public on all streets which they occupy for railway purposes, to continuously provide and operate on each car line a sufficient number of passenger cars to receive and carry all persons desiring transportation without admitting into the car more passengers than the carrying capacity thereof, does no more than declare obligations imposed on the company by the franchise, and is not invalid as subjecting the company to a forfeiture of its franr ehise for failure to comply with the ordinance.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>14. Municipal Corporations (§ 661*) — ^Control of Streets — Police Power.</p> <p>Where the state commits to a city tho care of its streets and the enforcement of all regulations for controlling the operation of street cars thereon, the city has .the exclusive right to regulate the streets, not only for the people who live there, but for all who como there.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 4434-1437; Dee. Dig. § 661.*]</p> <p>15. Street Railroads (§ 70*) — Regulations—Ordinances.</p> <p>An ordinance providing that when any passenger shall be admitted into any street car in excess of the carrying capacity thereof as defined, the company shall forfeit a specified sum for each passenger so admitted, merely provides for a. penalty for receiving persons in excess of the specified number, without requiring or authorizing it to receive more than such number, and the ordinance is valid.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>16. Street Railroads (§ 70*) — Regulations—Ordinances.</p> <p>A city ordinance which prohibits a street railway company from admitting passengers on any of its cars in excess of the carrying capacity of the car as defined, relates only to the city, and only prohibits the company while ‘in the city from faking on passengers after the prescribed number has been reached, and is not invalid so far as it affects iuterurban business and the company may bring into the city a car carrying more passengers than the maximum.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>17. Street Railroads (§ 70*) — Regulations—Ordinances.</p> <p>.4 municipal ordinance prohibiting a street railway company from admitting passengers into any of its cars in excess of the carrying capacity thereof as defined is not invalid for failing to provide for extraordinary occasions, and. whore ail- extraordinary occasion arises, it may defend a violation by establishing the facts.</p> <p>[Ed. Note. — For other cases, séé Street Railroads, Dec. Dig. § 70.*]</p> <p>18. Street Railroads (§ 70*) — Regulations—Ordinances.</p> <p>'Fhe proviso in an ordinance fixing the maximum number of street car passengers, and imposing a penalty on the street car company for a violation thereof, that company shall not be liable to the penalty in any case wherein another car on the same line proceeding on the same track and in the same direction and containing fewer passengers than the carrying capacity, shall at the time be within 300 feet of the point where 1 lie excess passenger,is admitted, does not impose any obligation on the company, and does not require it to run its cars 300 feet apart, but merely relieves the company from the obligation imposed on it in another part of the ordinance, and the proviso is not violative of the federal Constitution.</p> <p>[Ed. Note. — For other eases, see Strcoi Railroads, Dee. Dig. § 70.*]</p> <p>19. Injunction (§ 85*) — Ordinances.</p> <p>An ordinance regulating street car service, and fixing the maximum number of passengers permitted on cars, must be obeyed at the expense of the street railway company, and it cannot restrain the enforcement of . the ordinance on the ground that obedience to it will necessitate an enormous expense where the claim that such expense will be incurred results from an erroneous construction of the ordinance.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]</p> <p>20. Injunction (§ 144*) — Pleadings—Construction.</p> <p>Though a motion for temporary injunction to restrain the enforcement of a municipal ordinance must be determined by the allegations in the bill, yet where the allegations are based on an unwarranted construction of the ordinance, the court must disregard the allegations. 1</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*]</p>

<p>1. Post Office (§ 26*) — Fraud Order — Review by Courts.</p> <p>The only cases in which the courts will disturb a fraud order made by the Postmaster General are when it is tainted with fraud, absolutely without authority of law, clearly outside of the statute, or, perhaps, clearly, palpably, and obviously wrong.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 26.*]</p> <p>2. Post Office (§ 26*) — Fraud Order — Ground for Issuance.</p> <p>What might otherwise he a legitimate business or profession may be so conducted as to render it a vehicle of fraud and deception and bring it within the purview of Rev. St. §§ 3929, 4041, as amended (U. S. Comp. St. 1901, pp. 2686, 2749), authorizing the Postmaster General to refuse the use of the mails in furtherance of schemes to defraud.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 26.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 O. C. A. 79.]</p> <p>3. Post Office (§ 26*) — Fraud Order — Regularity of Proceedings</p> <p>A fraud order issued by the Postmaster General after an extensive hearing on two weeks’ notice to the party affected is not rendered invalid , because of the denial of a general request for a continuance made without any showing of facts to support it.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 26.*]</p> <p>4. Post Office (§ 26*) — Fraud Order — Evidence to Warrant Issuance.</p> <p>Evidence on which a fraud order was issued by the Postmaster General against complainant, who was conducting by mail the business of treating cases of deafness as a specialist, considered, and held not only to warrant the making of the order, but amply to sustain it.</p> <p>TEd. Note. — For other eases, see Post Office, Dec. Dig. § 26.*]</p> <p>5. Post Office (§ 26*) — Fraud Order — Suit to Enjoin Enforcement — Preliminary Injunction.</p> <p>On an application for a preliminary injunction to restrain the enforcement of a fraud order, the presumption is in favor of the legality of the action of the Postmaster General, and a strong showing is necessary to warrant the granting of the order.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 26.*]</p>

Action by the United States against the Kansas City Southern Railway Company. Verdict was directed for defendant. On motion by the plaintiff for new trial. “This is an action instituted by the government to recover penalties for violations of the act of Congress entitled “An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon,” approved March 4, 1907, c. 2939, 34 Stat. 1415 (U. S. Comp.

<p>1. Corporations (§ 262*) — Stockholders — Subscription Liability — Defenses.</p> <p>Where in proceedings by an insolvent corporation’s receiver to recover a stock subscription liability stock assessed under a decree of the court in which the insolvency proceedings were pending exceeded in amount the stock issued as bonus t'o bondholders under a mortgage, an objection that all claims against the corporation except those of bondholders had been paid, and that defendant owned no stock except bonus stock, was insufficient as a complete defense, though it might have been urged as a partial defense to a definite part of the assessment.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 262.*]</p> <p>2. Corporations (§ 246*) — Insolvency—Action Against Stockholder — Nature op Liability.</p> <p>Where a receiver of an insolvent corporation had title to the right to call, for an assessment on stockholders under a decree of the court in insolvency proceedings against the corporation, the stockholders’ liability was several and not joint.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 981, 982; Dec. Dig. § 246.*]</p> <p>3. Corporations (§ 268*) — Stockholders—Liability—Place op Payment.</p> <p>AVhere a decree in insolvency proceedings against a corporation imposed a statutory liability on stockholders and directed payment t'o the receiver, and a notice was given requiring payment to be made to the receiver within a specified time, a complaint to enforce such liability was not defective for failure to allege the place where payment was to be made.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. § 268.*]</p> <p>4. Corporations (§ 268*) — Stockholders—Statutory Liability — Complaint.</p> <p>Where an action against stockholders of an insolvent corporation brought by the receiver to enforce a statutory liability for unpaid stock, was based on a chancery decree in insolvency proceedings, the complaint was not' objectionable for indefiniteness in that it was impossible to tell whether it was based on the statute of the state of the corporation’s domicile or on the language of an agreement supposed to have been entered into as a definition of the statutory liability imposed by that statute.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig! §§ 1129-1141; Dec. Dig. § 268.*]</p> <p>5. Corporations (§ 243*) — Stock—“Subscription”—Bonus to Bondholders,</p> <p>Where corporate stock was given to bondholders of a corporation as a bonus to induce them to purchase the bonds, their acceptance of the stock as such bonus constituted a subscription • sufficient to carry any liability that might attach thereto.</p> <p>[Ed. Noto. — For other oases, see Corporations, Cent. Dig. § 952; Dec. Dig. § 243.*</p> <p>For other definitions, see Words and Phrases, vol. 7,.pp. 6727-0732.]</p> <p>8. Corporations (§ 268*) — Stock Subscription' — Stockholders’ Liability— Enforcement.</p> <p>Where a corporation’s receiver, in a suit to enforce a stockholder’s liability on shares issued as a bonus to purchasers of bonds, showed that the subscription to the bonds to which the stock passed as an incident was received prior to the time of the corporation’s suspension, the eomXilaint was not defective for failure to definitely allego that the corporation was entitled to assess such stock at the time of its suspension.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1129-1141; Dec. Dig. § 268.*]</p> <p>7. Corporations (§ 268*) — Insolvency—Stockholders’ Liability — Assessment.</p> <p>Where an assessment was levied on stockholders of an insolvent corporation by a decree in insolvency proceedings, an allegation in an action against a stockholder to enforce such assessment, that he had notice thereof, was sufficient.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1129-1141; Dec. Dig. § 268.*]</p> <p>8. Pleading (§ 216*) — Complaint—Demurrer.</p> <p>In an action to enforce a stockholder’s liability under a decree imposing a stock assessment in insolvency proceedings, a defense that' defendant had no notice of the decree could not be determined on demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 216.*]</p> <p>9. Pleading (§ 217*) — Demurrer to Answer — Objections to Complaint-v LIMITATIONS.</p> <p>On demurrer to an answer, the demurrer could not be carried back and sustained to the complaint because plaintiff did not affirmatively show that' the cause of action was not barred by limitations.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 540-548; Dec. Dig._ § 217.*]</p> <p>10. Corporations (§ 268*) — Stockholders’ Liability — Assessment—Pleading.</p> <p>Where a stockholder sued while receiver of a corporation to recover a statutory liability, divided a defense into throe parts as aiiplied to three separate holdings of stock, such partial defenses should have been stated as a complete defense to a part of the cause of action, and the three so-called partial defenses united into one defense with three several statements as to the acquisition of stock, or else should specify that each acquisition of stock is an answer to a particular portion of the complaint rexiresented by one-third of the stock referred to.</p> <p>[Ed. Note. — For other eases, see Corporations, Dec. Dig. 268.*]</p> <p>11. Corporations (§ 243*) — Stockholders’ Liability — Bonus Stock.</p> <p>That bonus stock to be delivered to subscribers for bonds of a corporation was transferred to a trust company holding the mortgages securing the bonds, and by it transferred to the bondholders on their purchase of bonds, could not relieve the latter from their statutory liability as stockholders with respect to creditors of the corporation.</p> <p>¡Ed. Note. — For other cases, see Coritorations, Dee. Dig. § 243.*]</p> <p>12. Corporations (§ 268*) — Insolvency — Stockholders’ Liability — DeFENSES.</p> <p>In an action to enforce a stockholder’s liability for unpaid stock, an allegation that defendant had paid for a part of the stock by a conveyance of certain real estate stated a sufficient defense pro tanto.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 268.*]</p> <p>13. Corporations (§ 243*) — Stock Subscription — Defenses.</p> <p>In an action by' a receiver of an insolvent corporation to recover a stock assessment, an allegation that B. was to receive the entire capital stock in consideration of certain services and that all the stock was to be held in trust by defendant until it was available, by mutual agreement-, the use of B. stated no defense to a proper call on the record-holder of the stock for payment of an assessment.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. § 243.*]</p> <p>14. Corporations (§ 262*) — -Stock Assessments — Defenses.</p> <p>In an action on a corporate stock assessment made by a court in insolvency proceedings, an allegation that defendant held certain of the stock as collateral security with certain bonds for a loan made by him, was demurrable as a collateral attack on the jurisdiction of the court making the assessment against defendant as owner of the stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 262.*]</p> <p>15. -Corporations (§ 268*.) — Stock Assessment — Counterclaim.</p> <p>Tn an action against a stockholder of an insolvent corporation on a stock assessment, a counterclaim alleging that defendant held bonds of the corporation amounting to $202,90.0 with interest at 5 per cent, from June 1, 1902, and that he was entitled to set off such amount against his alleged subscription liability of $206,250 was not demurrable.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 268.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 22*) — Character of Mark — Suggest - IVENESS.</p> <p>Where a red cross, used as a trade-mark on toothbrushes prior to 1905, was only suggestive of asepsis and general cleanliness, and not descriptive of the general character of the blush, and was not iiifended to imply consent or approval of its use by the lied Cross ¡Society, it was not objectionable as being either illegal or deceitful in itself.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 25: Dec. Dig. § 22.*]</p> <p>2. Trade-Marks and Trade-Names (§ 22*) — Validity—Bad Faitii.</p> <p>Where complainant' used a red cross as a trade-mark on toothbrushes, the fact that he added the words “Bed Cross Brush'’ or “Red Cross” did not convict him of had faith as indicating that the brushes had been adopted by or had any tiling to do with the Bed Cross Society.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 25; Dec. Dig. § 22.*]</p> <p>3. Trade-Marks and Trade-Names (§ 31*) — Extent of, Use.</p> <p>Plaintiff adopted a red cross as a trade-mark on toothbrushes with the wordy ‘‘Bed Cross Brush.” Before 1901 the only brushes hearing the mark had been a line of “Comilo” brushes. In 1901 complainant, finding the sales of these brushes to be failing off, began making and sending a bone brush to supply his trade in the United States, to which he added the red cross mark and the words “Red Cross Hygienic,” which brushes he continued to ship in largo quantifies, and the “Comilo” in small quantities, until suit was brought, also shipping other brushes without the mark. Ualcl, that the mark was not originally used to indicate “Comilo'’ brushes only, and complainant' was not limited to its use on such brushes.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 35; Dec. Dig. § 31.*]</p> <p>4. Trade-Marks and Trade-Names (§ 93*) — Character of Mark — Quality.</p> <p>Evidence held, insufficient to indicate that complainant adopted the red cross as a trade-mark for toothbrushes to indicate quality only.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p> <p>5. Trade-Marks and Trad*í-Names (§ 2*) — Nature of Mark — Public Policy.</p> <p>Under Acts Cong. Jan. 5, 1905, c. 23, 33 Stat. 599 (U. S. Comp, St. Supp. 1909, p. 1038), and June 23, 1910, c. 372, 36 Staff. 604, declaring that the use of the red cross as a trade-mark should be permitted where its use antedated 1905, it could not be said that the use of such trade-mark on toothbrushes antedating that date was contrary to public policy.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 2.*]</p> <p>6. Trade-Marks and Trade-Names (§ 25%,* New, vol. 6, Key No. Series)— Number of Trade-Marks.</p> <p>Where complainant, a manufacturer of toothbrushes, used as trademarks on the back a star-inclosed “D” and the word “Comilo,” and thereafter placed on the front of the handle a red cross and the legend “Red Cross Brush,” and the latter mark was shown to have been accepted by the public as indicating brushes made by complainant, it was no objection to complainant’s use thereof that he had previously adopted and still used the marks on the back.</p>

At Law. Action by Charles D. Kountz, administrator, against the Toledo, St. Louis & Western Railroad Company, for damages for the negligent death of decedent, earning $300 per year. Motion for new trial denied.

<p>1. Death (§§ 85, 89*) — Negligent Death — Damages.</p> <p>Iu an action under the federal employer’s liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]) for negligent death, the jury, in estimating the damages to the surviving widow who is the only beneficiary, may consider the relation of husband and wife, and determine what it would reasonably have been worth to the widow in money to have had the care and advice of her husband, but may not allow damages for mental anguish as a result of her loss.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 111, 118; Dec. Dig. §§ 85, 89.*</p> <p>Mental suffering as element of damages for wrongful death, see note to Chicago, R. I. & P. R.y. Co. v. Caulfield, 11 C. C. A. 563.]</p> <p>2. Death (§ 99*) — Damages—Excessive Damages.</p> <p>Decedent at the time of his negligent death was 45 years old with a life expectancy of 25 years. He earned from $125 to $175 per month. Ho had been a railroad engineer for 12 years. lie had no children, and lived happily with his wife who was 38 years old. He brought his pay check's to her, and she controlled the proceeds and paid the hills, and deposited the surplus of $50 a month. Held, that a verdict for $12,000 was not excessive.</p> <p>[Ed. Note. — For other cases,. see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p> <p>3. New Trial (§ 76*) — Excessive Damages — Power of Court to Set Aside.</p> <p>The trial court,may not set aside a verdict as excessive unless convinced that the jury acted from passion or prejudice.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent'. Dig. §§ 153-156; Dec. Dig. § .76.*] •</p>

<p>1. Reformation of Instruments (§§ 19, 20*) — Grounds—Mutual Mistake.</p> <p>Reformation of a contract will not be granted by equity unless there has been a mutual mistake, but where there has been a mistake of one party, accompanied by fraud of the adverse party, the instrument may be made to conform to the agreement according to the intention of the parties.</p> <p>[Ed. Note.- — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78, 79-80; Dee. Dig. §§ 19, 20.*</p> <p>Reformation of instrument as dependent on mutuality of mistake, see note to American Ass’n v. Williams, 93 C. C. A. 10.]</p> <p>2. Reformation of Instruments (§ 36*)' — Pleading—Bill—Sufficiency.</p> <p>A bill to reform a $10,000 tontine life policy, binding insurer for an annual premium for 20 years to pay $10,000 on insured’s death within the 20 years, and to pay insured, if living at the expiration of that period, $10,000 with surplus equivalent to the full proportionate share of the profits of insurer’s business earned by the policy, or at the option of insured to issue a paid-up policy, or to issue a life annuity, which alleges that insurer induced insured to accept the policy and to pay the premiums by fraudulent' representations that by experience of insurer, and with like experience in the future, the policy would entitle insured at the maturity thereof to an option of $17,570 in cash, or a paid-up policy of $37,600, or a life annuity of $1,400, and that the policy would yield such result's unless variations in current rates of interest, in mortality, lapsing, or other variable quantities, would prevent insurer from having the same experience in the future, that the representations were made to insured by insurer’s authorized agent orally and by printed blanks attached to the policy, stipulating that insured at the tontine period had three methods of settlement as shown by the representations, does not state a cause of action, since the contract of insurrance, as evidenced by the policy issued, is in accordance with the intention of the parties as disclosed by the allegations of the bill.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Dec. Dig. § 36.*]</p> <p>3. Account (§ 12*) — Adequacy of Remedy at Law.</p> <p>A bill for discovery and accounting, which alleges that a policy issued by defendant on complainant’s life requires defendant to pay a specified sum, with a dividend, equivalent to the full proportionate share and profits of defendant’s business earned by the policy, and which avers that complainant was assured that the past experience of defendant would entitle him to a specified sum, shows that complainant has an adequate remedy at law, on the theory that defendant is bound by tbe representations, and in an action at law complainant need only ¡prove tbe fact that there has been no difference in condition since the execution of tbe policy from those existing prior thereto, and he may compel, under Rev. St. § 724 (TJ. S. Comp. St. 1901, p. 583) a production of defendant’s books on that question.</p> <p>[Ed. Note. — For other cases, see Account, Cent. Dig. § 65; Dec. Dig. § 32.*]</p> <p>4. Reformation of Instruments (§ 25*) — Scope of Remedy.</p> <p>A court will not reform an instrument where the legal construction of the instrument as reformed will be the same as before reformation, and the court will not reform a tontine life policy where, if reformed, the rights of the parties would not be changed.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 84r-90; Dec. Dig. § §5.*]</p> <p>5. Account (§ 17*) — Discovery—Pleading.</p> <p>Where a bill seeks both discovery and an accounting, the discovery is deemed incidental to the accounting, and where there is no right to an accounting, the bill is bad on demurrer, especially where plaintiff has an adequate remedy at law, and may, under Rev. St. § 724 (ü. S. Comp.. St. 1901, p. 583), compel the production of defendant’s hooks to disclose the facts.</p> <p>[Ed. Note. — For other cases, see Account, Dec. Dig. § 17.*]</p>

<p>In Admiralty. Libel by J. L. Pritchard against the steamer Armorica. Decree for respondent.</p>

<p>In Equity. Suit by Thomas W. Jackson, as trustee for the creditors of the United Syndicate Buyers, against Henrietta A. Sedgwick. Decree for plaintiff.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Ethma B. Greer. On petition for review of a referee’s order requiring the bankrupt to turn over to the trustee $7,010.15.

<p>1. Canals (§ 30*) — Obstruction—Injury to Vessel.</p> <p>Evidence considered, and held t'o sliow tliat the sinking of a loaded canal boat while being pushed by libelant's steam canal boat in the center of, the Erie Canal, which was the usual place, by striking a stone in the bottom, was due to the negligence of respondent which in working at the place with a dredge had raised or turned the stone, which was embedded in the bottom of the canal, so as to render it a dangerous obstruction to navigation.</p> <p>[Ed. Note. — For other cases, see Canals, Dec. Dig. § 30.*]</p> <p>2. Canals (§ 29*) — Contract with State for Improvement — Iniury to Vkssf,ls — Liability of Contractor for Negligence.</p> <p>Under a contract with Hie state for deepening and widening tlie Erie Canal, wliieli provided tliat tlie work sliould be done “so as not to interfere with tlie navigation of tlie present canal,'’ and that all damages of whatever nature resulting from the work during its progress should be borne by the contractor, it was liable for an injury to a canal boat being navigated in the usual manner from striking an obstruction negligently caused by the contractor in doing the work.</p> <p>| Ed. Note. — Lor other cases, see Canals, Cent. Dig. §§ 36-39; Dec. Dig. § 29.* |</p>

<p>Breach op Marriage Promise (§ 31*) — Damages--Amount Awarded.</p> <p>Evidence considered, and held to support a verdict of $25,000 damages for breach of a contract of marriage, where it showed that plaintiff had actually suffered a pecuniary loss of over $15,000 by refusing employment during the time of the engagement at the request of defendant, and that defendant was worth not. less than $55,000.</p> <p>TEd. Note. — For other cases, see Breach of Marriage Promise, Cent-Dig. § 47; Dec. Dig. § 31.*]</p>

<p>1. Bankruptcy (§ 44*) — Corporation.</p> <p>Directors of a corporation have power to put the corporation into bankruptcy, and a vote of the stockholders to that: end is not necessary.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 44.*]</p> <p>2. Corporations (§ 298*) — Directors—Meetings—-Majority—Notice to Minority.</p> <p>Majority directors of a corporation under ordinary circumstances have no right to hold a meeting without notice t'o the minority.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1298; Dec. Dig. § 298.*]</p> <p>3. Corporations (§ 298*) — Directors—Meetings—Notice to Minority Director.</p> <p>A corporation had three directors. A directors’ meeting was held by two of them without notice to the third, at which a resolution was passed placing the corporation in bankruptcy. The third director was not friendly with his codirectors, and their relations had become so strained that they had resulted in a personal altercation, which ended in his being ejected from the office of the company. He had commenced an action against the corporation and his codirectors, charging fraud in the sale of stock to Mm, and asking that the contract of sale be rescinded, which suit was pending at the time the meeting was held, and it appeared that he was interested in defeating the resolution in order to sustain an attachment by himself of the corporation’s property. Hold, that notice to Mm would have been nugatory, and hence a meeting was validly held without such notice.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1298; Dec. Dig. § 298.*]</p> <p>4. Bankruptcy (§ 44*) — Corporation—Resolution op Directors — Petition.</p> <p>Where majority directors of a corporation adopted a resolution authorizing the filing of a petition to place the company in bankruptcy, such petition was not fatally defective for failure to show the resolution on its face.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 44.*]</p>

<p>In Admiralty. Suit by George H. Risley against the President and Directors of the Insurance Company of North America. Decree for libelant.</p>

In Bankruptcy. In the matter of Frank H. Kyte, bankrupt. On exceptions to findings of the referee refusing to tax costs of an opposition to the bankrupt’s discharge against bankrupt.

Proceedings by the United States against Lim Sam. From an order of deportation, he appeals. Reversed, and appellant discharged. This is an appeal from an order passed by the United States commissioner, June 13, 1910, deporting appellant, Lim Sam, to China. Pending the appeal in this court the appellant took the depositions of two witnesses, Lim Chung and Chin Sing, to prove his birth in San Francisco, Cal.

In the matter of the bankruptcy of the Calhoun Supply Company. Petition to review order of referee denying the petition of the Barbour Buggy Company to reclaim property.

<p>1. Maritime Liens (§ 57*) — Statutory Liens — Jurisdiction to Enforce.</p> <p>A lien, given by a state statute for materials or supplies furnished to a vessel in her home port in the state is enforceable by suit in rein in a court of admiralty.</p> <p>[Ed. Note. — For other eases, see Maritime Liens, Cent. Dig. § 96; Dee. Dig. § 57.*</p> <p>Maritime liens created by state laws, see note t'o The Electron, 21 C. C. A. 21.]</p> <p>2. Maritime Liens (§ 25*) — Statutory Lien for Materials Furnished— Gas Engine — “Material.”</p> <p>Under Revisal N. O. 1905, § 2016, which gives a lien on a vessel for all debts contracted “for work done on the same or material furnished,” one who furnished an engine to be installed in a gas boat, relying on the credit of the vessel, is entitled to a lien therefor as “material,” on compliance with the statute as to recording; and it is immaterial that by the contract it reserved title to -the engine until paid for.</p> <p>[Ed. Note. — Eor other cases, see Maritime Liens, Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4404.]</p>

<p>1. Towage (§ 11*) — Cake Required.</p> <p>A master of a tug in charge of a tow, and unable because of its small size to do more than save itself in time of storm, must be very observant of the weather, and must not run risks that may be avoided, and must make for one of the numerous harbors available as soon as it becomes evident that stormy weather is to be expected.</p> <p>[Ed. Note. — For other eases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>2. Towage (§ 15*) — Care Required.</p> <p>Evidence held to show actionable negligence of a captain of a tug in failing to take timely precautions to avoid a storm by entering a harbor with tlie tow.</p> <p>[Ed. Note. — For other cases, see Towage, Dec. Dig. § 15.*]</p> <p>3. Death (§ 95*) — Action fob Negligent Death — Damages.</p> <p>In libel by an administratrix for the death of her husband, 61' years old, engaged as master of a barge, a decree of $3,500 will be awarded as damages for his negligent death.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108-120; Dec. Dig. § 95.*]</p> <p>4. Death (§ 95*) — Action for Negligent Death — Damages.</p> <p>AVhere a mother, suing for the negligent death of a son, had only the hope and expectation that he would contribute to her support, the court will award her $500 damages for his negligent death.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108-120; Dec. Dig. § 95.*]</p>

In the matter of the bankruptcy of James M. Hartdagen. Petition in proceeding to reclaim personal property in the possession of the bankrupt’s trustee.

<p>In Admiralty. Suit by the Jersey City Stockyards Company, as owner of the steamer Burlington, against the steamtug Transfer No. 12. Decree for libelant.</p>

<p>1. Railroads (§ 222*) — Operation—Emission of Smoke — Nicoligence.</p> <p>In a suit by an adjoining property owner for injuries to Ms property by the alleged negligent operation of a railroad through the emission of smoke, a city ordinance regulaiing the emission of smoke by railroads within the city limits, though not conclusive on the issue of negligence; was admissible as bearing on such issue.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Dec. Dig. § 222.*]</p> <p>2. RAILBOADS (§ 222*) — Opebatiox—Emission op SlIOKE.</p> <p>Though a railroad’s franchise authorizes it to emit whatever smoke</p> <p>■ may be necessary in carrying freight and passengers, it is not authorized to exceed the necessities of its business, and is liable for tlie negligent emission of smoke to the injury of adjoining property owners.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 721; Dec. Dig. § 222.*]</p>

In Admiralty. Suit by the owner of the launch Nero against the derrick Hercules for collision. On final hearing:. Decree for respondent.

<p>In Admiralty. Suit for collision by the Chesapeake Lighterage & Towing Company against the steamship Middlesex. Decree for half damages</p>

<p>In Equity. Suit by Charles G. Cornell, Jr., against the Nichols & Langworthy Machine Company. Proceedings for distribution of assets in the hands of a receiver of an insolvent corporation.</p>

<p>In Admiralty. . Suit by Robert L. Rogers, owner of the bugeye Nettie, Allison against the. steam tug Lauretta Spedden. Decree for libelant: ’</p>

<p>Collision (§ 79*) — Steamer and Schooner — Failure to Caret Lights.^</p> <p>A steamer held not in fault for a collision with a schooner at night, on the ground that the schooner was not carrying lights, and could not have been seen from the steamer in time to have, prevented the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 123, 139, 151; Dec..Dig. § 79.*]</p>

<p>1. Carriers (§ 150*) — Limitation of Liability — Validity of Limitation.</p> <p>A provision of a bill of lading exempting the carrier from all liability for loss or damage to the property shipped, unless proved to have been caused by its fraud or the “gross negligence” of itself or its servants, is not contrary to public policy; there being no distinction between gross negligence and ordinary negligence under the decisions of the federal courts.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 654-659; Dec. Dig. § 150.*]</p> <p>2. Carriers (§§ 155, 158*) — Limitation of Amount of Liability.</p> <p>A common carrier may by a contract fairly entered into with a shipper limit the amount of its liability for negligence, and the validity of such a contract is not affected by the fact that the carrier uses printed bills of lading, which fix an arbitrary value for all packages, having no relation to their real value, beyond which it is not to be liable unless a greater value is stated by the shipper and more freight paid, where the facts are fully understood by the shipper who declines to place a valuation on the property, and assents to the limitation in consideration of a reduced rate.</p> <p>[Ed. Note. — For other eases, see Carriers, Gent. Dig. §§ 663-718; Dec. Dig. §§ 155, 158.*]</p> <p>3. Carriers (§ 27*) — Interstate Commerce Act — False Billing.</p> <p>The fixing of the value of property in a hill of lading at less than its actual value for the purpose of limiting the amount of the carrier’s liability in case of loss is not a false billing in violation of Interstate Commerce Act Feb. 4, 1887, c. 104, § 10, 24 Stat. 882, as amended by Act March 2, 1889, c. 382, § 2, 25 Stat. 857 (ü. S. Comp. St. 1901, p. 3160).</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 27.*]</p> <p>4. Negligence (§ 1*), — Definition.</p> <p>Negligence is the failure to exercise the care appropriate to the circumstances of the particular case.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763: ■ vol. 8, pp. 7729-7731.]</p> <p>Noyes, Circuit Judge, dissenting.</p>

Circuit Court of the United States for the Southern District of New York. Criminal prosecution by the United States against Matthias Radin, Abraham Minsky, and others. From a judgment of conviction, defendants Radin -and Minsky bring error. Judgment was entered upon the verdict of a jury finding defendants above named guilty under section 5440 of the U. S. Revised Statutes (U. S. Comp.

<p>1. Damages (§ 120*) — Breach—Measure of Damages.</p> <p>Where plaintiffs had contracted to furnish defendant the lumber required under a building contract, but, lumber having advanced in price, refused to make further deliveries unless defendant would pay the advance, the fact that defendant refused to do so did not preclude him from recovering, as damages for breach of the contract, the loss from delay in obtaining the lumber elsewhere, since he was under no obligation to accept it from plaintiffs under the conditions attached to their offer which would have required him to waive the breach of the contract.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 291-305; Dee. Dig. § 120.*]</p> <p>2. Damages (§ 163*) — Action foe Breach — Matter in Mitigation of Dam-</p> <p>ages — Burden of Proof.</p> <p>The party chargeable with breach of a contract has the burden of proving facts in mitigation of damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454-459; Dec. Dig. § 163.*]</p> <p>3. Damages (5 175*) — -Evidence—Breach of Contract.</p> <p>Upon the question oí tile damages recoverable for delay by plaintiffs in furnishing the lumber required by defendant in the performance of a building contract, evidence was admissible that plaintiffs knew that, under defendant’s contract, he was subject to a penalty if the building was not completed within the time- fixed, as tending to show that such penalties were within the contemplation of the parties when the contract for the lumber was made.</p> <p>[Ed. -Vote. — For other cases, see Damages, Cent. Dig. §§ 469 — 171; Dee. Dig. § 175.*]</p>

<p>Arrest (5 71*) — Evidence—Seizure or Property — Order for Ketdrn — Enforcement.</p> <p>Where hooks and papers belonging to persons charged with crime were seized oil a bench warrant directing the arrest of such persons, and some of the books and papers had no relation to the matters in issue, it was within the nonreriewable discretion of the court to order their return, and to enforce such order as against the district attorney by contempt proceedings.</p> <p>[Ed. Note. — -For other cases, see Arrest, Dee. Dig. § 71.*]</p>

<p>1. Patents (§ 328*) — Reissues—Identity of Invention — Drive-Chain.</p> <p>Tlie Morse reissue patent, No. 12,844 (original No. 757,762), for a drivecliain for power transmission, is void, as not being for the same invention as the original patent, which was clearly limited to a two-part pintle, while in the reissue it was attempted to broaden it to include a pintle of any number of parts more than one, although such a chain had previously been held not to infringe’the original patent.</p> <p>H. Patents (§ 165*) — Infringement—Effect of Unnecessary Limitation on Claims.</p> <p>A patentee, who limits his claims to the precise construction shown and described, even though not obliged to do so, cannot hold as an infringer one who uses a different construction.</p> <p>[Ed. Note. — For' other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165. *J</p>

<p>Patents (§ 328*) — Invention—Cutleet-Polishino Machine.</p> <p>The Dilg & Dilg patent, No. 662,919, for a cutlery-polishing machine, is void for lack of invention, in view of the prior art, which, for the purpose of testing the question of invention, must be regarded as including cutlery-grinding machines.</p>

In Equity. Suit by James D. Hurd, the Consolidated Rubber Tire Company, and the Rubber Tire Wheel Company against William Seim and Gustave Reissig. On application by complainants for preliminary injunction, and also on petition of the Diamond Rubber Company of New York for leave to intervene as party defendant.

<p>In Equity. Suit by the American Steel Foundries and J. S. Andrews Company against the Wolff Truck Frame Company. Decree for complainants.</p>

<p>In Equity. Suit by the Asbestos Shingle, Slate & Sheathing Company and Ludwig Hatschek against the H. W. Johns-Manville Company. Decree for complainants in part.</p>

<p>Suit by Asbestos Shingle, Slate & Sheathing Company and another against H. W. Johns-Manville Company for infringement of patent. Decree was rendered in favor of complainants (184 Fed. 620), and defendant, claiming that complainants had made an improper use of such decision, applied to punish complainants for contempt. Decree for defendant.</p>

<p>Patents (§ 328*) — Validity and Infringement — Knuckle Joint.</p> <p>Tlie Crutchlow patent, No. 625,150, for .a knuckle joint, adapted for use on jacquard machines, was not anticipated, and discloses patentable invention, and the device is useful and meritorious. Also held infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Pliers.</p> <p>The White patent, No. 794,064, for a pliers, adapted for use In building and repairing wire fences, was not anticipated, and is valid, although the claims must be narrowly construed in view of the prior art Also held infringed.</p>

<p>Patents ¡3 328*) — Novelty—Machine and Process eor Cutting Stone.</p> <p>The Pierce patents, No. 876,087, for a stone cutting apparatus, consisting essentially of a cutting wheel of agglomerated carborundum, of dished shape, and No. 914,303, for a process of dividing marble .slabs-by means of a similar wheel, are both void for lack of patentable novelty in view of the prior art.</p>

<p>In Equity. Suit by the Perkins Electric Switch Manufacturing Company against the Yost Electric Manufacturing Company. On settlement of decree.</p>

<p>In Equity. Suit by the Peirce Specialty Company and Hubbard & Co. against the Harvard Electric Company. Decree for complainants.</p>

<p>In Equity. Suit by the Beekman Sanitary Specialty Company against Otto Bernz. On final hearing. Decree for defendant.</p>

<p>1. Patents (§ 297*) — Infringement—Injunction- -Effect of Priob Adjudications.</p> <p>In patent cases, conclusive effect is accorded by each of the Circuit Courts to a prior judgment of any one of them, whenever the patent, the question, and the evidence are the same.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 481-488; Dec. Dig. § 297*1</p> <p>2. Patents (§ 288*) — Suits for Infringement — Equity Jurisdiction — Effect of Expiration of Patent.</p> <p>The expiration of a patent pending a suit in equity for its infringement does not deprive the court of jurisdiction for the purpose of awarding damages.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 288.*]</p> <p>3. Patents (§ 828*) — Validity and Infringement — Draft Equalizer.</p> <p>The Sehandoney patent No. 490,214 for a draft equalizer held valid and infringed.</p>

<p>Specific performance (§ 116%*) — Pleadins—Answers—Amendment—Inconsistent Defenses.</p> <p>Where iñ a suit for specific performance of a contract to assign improvement patents, defendant answered alleging that the patents in question were not for improvements, but for separate and distinct inventions, and admitting that they had not disclosed the patents to complainants, defendants were not entitled, after the commencement of the taking of prima facie proofs, to have leave to amend so as to allege the inconsistent defense that defendants had disclosed the subsequent patents to complainant’s assignor, who declined to receive them, admitting as to some of them that they were not for improvements, and for this reason complainants were estopped to maintain a suit for specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. § 116%.*]</p>

In Equity. Suit by the Vacuum Cleaner Company against Elias B. Dunn, doing business under the trade-name of Dunn’s Improved Vacuum System. On motion to strike off plea. Granted, .with leave to answer.

<p>In Equity. Suit by William IT. Redington against the Office Equip.ment Company. Decree for defendant.</p>

<p>1. Bankruptcy (§ 341*) — Validity of Liens — Jurisdiction of Referee.</p> <p>- Where a trustee is in possession of real estate incumbered by a deed of trust, deposited as collateral security with a creditor of the bankrupt, and the creditor voluntarily appears before the referee and presents his claim for allowance as a secured claim by virtue of the deed of trust, the referee has jurisdiction to summarily determine the validity of the lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 341.*]</p> <p>2. Deeds (§ 208*) — Delivery—Evidence—Sufficiency.</p> <p>A corporation, by its president, executed a deed to another corporation of which the same person was president, and on the same date the grantee, by its president, executed a deed of trust to secure purchase money notes. Both corporations treated the deed as delivered, and the , deed of trust and the purchase money notes were pledged as collateral for a loan made to the grantor by a third person. Held to show that the deed was delivered so that title passed thereunder prior to the execution of the deed of trust.</p> <p>[Ed. Note. — For other cases, see Deeds, Dec. Dig. § 208.*]</p> <p>3. Corporations (§ 28*) — Organization—De Facto Corporations.</p> <p>Where the incorporators took the formal steps required by statute to entitle the corporation to a certificate of incorporation, and the Secretary of State issued a certificate in due form, the corporation was a de facto corporation, though it had no stockholders, and though no part of its capital stock was paid in.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 26, 70? Dec. Dig. § 28.*]</p> <p>4. Corporations (§ 28*) — De Facto Corporations — Conveyances—Collat-</p> <p>eral Attack.</p> <p>A transfer of property by or to a de facto corporation cannot be collaterally attacked, and is valid against all persons except the state. .</p> <p>[E:d. Note. — For other cases, see Corporations, Cent. Dig. §§ 26, 70; Dec. Dig. § 28.*]</p> <p>5. Bankruptcy (§ 161*)- — Preferences—Acts Constituting.</p> <p>Bankr. Act July 1, 1898, e. 541, § 60a, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act Cong. Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1909, p. 1314), which provides that where the preference consists of a transfer, the period of four months shall not expire until four months after the record of the transfer, as required by law, extends the time within which a transfer may be attacked as a preference, and where a transfer is one which is required to be recorded, . the four months’ period does not begin to rim until the conveyance is recorded, but where the transfer, when made, was based on a present consideration, delay in recording does not warrant the court in treating the conveyance as if made as security for an antecedent debt, and a transfer given as security for a present loan is not a voidable preference, though the transfer is not recorded until within four months of the adjudication in bankruptcy of the transferror.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 161.*]</p> <p>{. Bankruptcy (§ 184*) — Fraudulent Conveyances — Failure to Record Conveyances.</p> <p>Rev. St. Mo. 1899, § 925, provides that no instrument shall be valid except between the parties and such as have actual notice, until deposited for record. Bankr. Act July 1, 1898, c. 541, §§ 67a, 67e, 70e, 30 Stat. 564, 565 (U. S. Comp. St. 1901, pp. 3449, 3451), confer on trustees the right to avoid transfers, voidable as fraudulent conveyances, or which may be avoided by creditors under the state law for want of record. A grantor, a corporation, conveyed its land to a grantee, a corporation, which on the same day executed a deed of trust to secure the purchase money notes. The grantor borrowed money from a bank and pledged as collateral the notes and deed of trust. Neither of the deeds were then recorded, but the bank later returned the deed of trust to the president of the grantor with instructions to record it, which was not done for nearly five years, and until within four months of the adjudication of the bankruptcy of the grantor. Before the record of the deed the grantor incurred debts to persons who relied on its ownership of the property. field, that the deed of trust was constructively fraudulent as to creditors extending credit to the bankrupt, and the lien of the bank must be treated as invalid as against the trustee as a representative of the creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 184.*]</p>

In the matter of the bankruptcy of the Jackson Brick & Tile Company. Proceeding for.review of an order by the referee, allowing the claim of the Merchants-Eaclede National Bank as a general claim, but refusing to allow the claim as a secured one.

In Admiralty. Suit for collision by Frank M. Osborne ana others, owners of the steamer John W. Moore, against the steamer Edward Y. Townsend, Cambria Steamship Company, claimant, by the Pittsburgh Steamship Company, owner of the steamer Queen City, against the steamers Townsend and Moore, and for Duncan McIntyre, deceased, against the owners of all three vessels. Decrees against the Townsend and owner only.

In Equity. Suits by the Pennsylvania Steel Company against the New York City Railway Company and others, by the Fanners’ Loan, & Trust Company, successor to the Morton Trust Company, against the Metropolitan Street Railway Compan)' and others, by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others, and by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company and others.

<p>Public Lands (§ 88*) — Railroad Grant — Forfeiture for Breach of Condition Subsequent — Power to Declare.</p> <p>A court of equity has no inherent power to decree a forfeiture of a land grant made by Congress, and the United States cannot maintain a suit to recover land so granted for breach of a condition subsequent, in the absence of a declaration of forfeiture by Congress or of express authority from Congress for the institution of the suit.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 235, 266-269; Dec. Dig. § 88.*]</p>

In Equity. Bill by the Central Vermont Railway Company against John W. Redmond and others constituting the Public Service Commission of Vermont. On petition for an injunction restraining the enforcement of an order relating to changes in complainant’s tracks, crossings, etc., at White River Junction.

Nelson Gardner, who for many years had lived within the limits of the Stockbridge and Munsee Reservation, enrolled as an Indian of that tribe, was indicted for rape committed within the limits of the reservation December 18, 1909, on the person of an Indian girl. He was indicted under Federal Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1151 [U. S. Comp.

Suit by the Southern Pacific Company against Thomas K. Campbell and others, as Railroad Commissioners of the State of Oregon, known collectively as the Railroad Commission of Oregon, and another. Temporary injunction continued.

<p>Suit by Frank R. Williams against John Molther and another, local inspectors of steam vessels.</p>

<p>In Admiralty. Suit by Alexander Jaggs, as master of the steamship Minnesota, against the steamship Sidra, and cross-libel against the Minnesota. Decree against the Minnesota.</p>

<p>1. Patents (§ 317*) — Suit fob Infringement — Injunction.</p> <p>In a suit for infringement of a patent, although infringement is found and an accounting ordered, the court has power to refuse an injunction if the facts are such that it would be inequitable to grant it.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 559-565; Dec. Dig. § 317.*]</p> <p>2. Patents (§ 317*) — Suit for Infringement — Injunction—Discretion of ■Court.</p> <p>. Defendants were the sole manufacturers of carborundum, having built up an extensive business, and having a large and expensive plant with machinery built for that special work.. Their product was also protected by a patent, but in its manufacture they used a process of smelting by electric current which was held to infringe complainant's patent, and without the use of such process their plant could not be operated. Their use of it was entered into in good faith, and without knowledge that it was an infringement. Held that, while complainant was entitled to a decree for an injunction and an accounting, inasmuch as it was not in competition with defendant as a manufacturer and could be fully compensated in damages, the injunction would he withheld on the giving of a bond by defendant to secure the payment of such profits and damages as complainant might recover.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. P 550 -565; Dec. Dig. § 317.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Poos Mfg. Co., 72 C. C. A. 123.1</p>

<p>In Equity. Bill by Dietrich E. Eoewe and others against the California State Federation of Labor and others.</p>

<p>1. Admiralty (§ 21*) — Death—State Daw.</p> <p>In proceedings in admiralty for causing death hy negligence, the remedy is derived from the state statute giving the right of action to the next of kin.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 218; Dec. Dig. § 21.*)</p> <p>2. Admiralty (§ 31*) — -Death—Contributory Negligence.</p> <p>In a libel in admiralty for the death of a passenger, contributory negligence is a valid defense.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 301-305; Dec. Dig. § 31.*]</p> <p>3. Shipping (§ 166*) — Wrongful Death — Negligence—Contributory Negligence.</p> <p>In a libel in admiralty for the wrongful death of a passenger, libelant must affirmatively prove that the owners of the vessel were negligent, whereby their decedent was killed, and also that decedent was free from contributory negligence.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 166.*]</p> <p>4. Shipping (§ 166*) — Death oe Passenger — Proximate Cause — Contributory Negligence.</p> <p>A steamer left her dock with a barge in tow to which was attached a yawl made fast to the stern of the barge by a five-foot line. A deck hand remained seated in the yawl until the boat arrived at an island where he left the yawl and stood on the barge near the line. Subsequently he went forward on t'he barge to get water, and, while doing so, decedent, who was intoxicated, hauled the yawl to the stern of the barge and boarded her, without knowledge of the master. The deck hand, on returning, ordered decedent out of the yawl, and, in his attempt to d6 so, decedent slipped or stumbled-and was precipitated into the river. I-Tis companion, also in the yawl, grabbed him, but could not retain his hold, and, in spite of prompt efforts at a rescue, he was drowned. Held, that decedent’s contributory negligence was the proximate cause of his death, and not the failure of the steamer to comply with Inspector’s Rule 8, § 4, providing that every barge carrying passengers in tow, and engaged in excursions, shall be supplied with two yawl boats one of which must he manned and towed in such a manner as to best afford piompt relief in case of accident or disaster, and that the owners of the steamer were therefore not liable for decedent’s death.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 551; Dec. Dig. § 166.*]</p>

<p>In Admiralty. Suit by Leonard E. James, as master of the steamship Erroll, against the Standard Oil Company of New York. Decree for libelant.</p>

<p>Carriers (§§ 320, 347*) — Action for Injury to Passenger — Condition of Premises — Question foe Jury.</p> <p>While plaintiff was waiting for a train in a station on defendant's railroad In the evening, she had occasion to visit the water-closet, which was 150 feet from the station and reached over a i>Iatform extending along the track and beyond the building. Having been shown the way by another passenger, plaintiff was passing along such platform, when she fell off and was injured. Held, that evidence that the night was very dark, and that the platform was inadequately lighted, if at all, was sufficient to require the submission to the jury of the question of defendant's negligence and breach of duly, and of plaintiff’s contributory negligence, especially hi view of a state regulation requiring such places to be well lighted, where required by the convenience of passengers.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. §§ 320, 347.*]</p>

<p>1. Carriers (I 320*) — Action for Injury to Passenger — Questions for Jury.</p> <p>Evidence considered, in an action by a passenger to recover from a railroad company for an injury received by falling when leaving a car in the night, alleged to have been due to an accumulation of snow and ice on the "platform and steps, and held sufficient to require the submission to the jury of the questions whether there was such accumulation, and also whether, if so, it was due to the negligence of the company.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 320.*J</p> <p>2. Carriers (§ 347*) — Inj ury to Passenger — Contributory Negligence.</p> <p>That a passenger, injured by falling on the icy steps of a car from which he was alighting in the night', was carrying a grip in each hand, belonging to ladies in his charge, instead of holding to the railing witli one hand, cannot be said to constitute contributory negligence as matter of law.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346-1397; Dee. Dig. § 347.*]</p> <p>3. Negligence (S 1*) — Definition.</p> <p>Negligence consists in the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. S, pp. 7729 7731.]</p>

<p>Carriers (§ 318*) — Action for Negligence — Sufficiency of Evidence.</p> <p>Evidence held to sustain a verdict finding that the death of a passenger in an elevator in defendant’s building was caused by the negligence of the operator in starting the elevator when deceased was stepping out [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 318.*]</p>

In Equity. Suit by the National Electric Signaling Company against the United Wireless Telegraph Company. Decree for complainant for injunction and accounting as to certain claims, and dismissing the bill as to others.

<p>In Equity. Suit by William B. Mershon & Co. against the Bay City Box & Lumber Company. Decree in part for complainant, and in part for defendant.</p>

<p>In Equity. Suit by the Electric Renovator Manufacturing,Company against the Vacuum Cleaner Company and another. On motion to vacate preliminary injunction.</p>

<p>1. Patents (§ 303*) — Suit for Infringement — Preliminary Injunction.</p> <p>A court will not ordinarily on a motion for a preliminary injunction to restrain infringement of a patent determine the scope and validity of a subsequent patent under which defendant is operating, the presumption •being, until overcome by proof, that it substantially differs from the earlier patent, and that defendant is acting within his rights.</p> <p>[Ed. Note. — IfoT other eases, see Patents, Cent. Dig. §§ 49&-408; Dec. Dig. § 303.*]</p> <p>2. Patents (§ 301*) — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction to restrain infringement' of a patent denied where defendant had for 15 years been engaged in manufacturing the alleged infringing product under later product and process patents, and had an extensive business with a large investment and outstanding contracts, and where the question of infringement was doubtful on the showing made.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. fá 489-495; Dec. Dig. & 301.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement' suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p>

<p>Action by the United States of America against Quincy O. M. Gill-more.’ Judgment for plaintiff.</p>

In Bankruptcy. In the matter of bankruptcy proceedings against the Rutland Grocery Company. On certificate of a referee as to the disallowance of certain claims of exemption.

<p>In Equity. Action by the Lockport Felt Company against the United Box Board & Paper Company. The Ousatonic Water Power Company filed a claim for rent.</p>

<p>1. Constitutional Law (§ 276*) — Property Rights — Liberty to Contract-staking of Private Property.”</p> <p>The taking away by legislative enactment of the free exercise of the right of private contract is an appropriation by the state of private property within the meaning of the fourteenth constitutional amendment.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 845, 846; Dec. Dig. § 276*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 6851-6862; 7813.]</p> <p>2. Constitutional . Law (§ 298*) — Insurance (§ 4*) — Police Powers of</p> <p>State — Regulating Fire Insurance .Charges — Kansas Statute.</p> <p>Laws Kan. 1909, c. 152, providing for the regulation of rates and charges by fire insurance companies doing business in the state, is not in violation of any rights secured to such companies by the fourteenth constitutional amendment, but is within the legitimate powers of the state and valid.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 847; Dec. Dig. § 298;* Insurance, Dec. Dig. § 4.*]</p>

Action by the United States against the Atlantic Coast Line Railroad Company. On demurrer to complaint. Plaintiff complains in three causes of action, alleging: (1) That prior to the 18th day of April, 1904, it was the owner and in the possession of certain mail pouches, mail sacks, keys, etc., of the value of $135.85.

<p>1. Indians (§ 15*) — Lands—Alienation—Surplus Bands.</p> <p>Under the provision of the Indian appropriation act (Act April 21, 1904, c. 1402, § 1, 33 Stat. 204), that “all the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads. hereby removed.” an adult intermarried citizen of the Chickasaw Nation, not of Indian blood, had power to execute a valid mortgage on his surplus allotment, although patent had not issued therefor, which was made a condition precedent to alienation by the supplemental agreement of July 1, 1902, with the Choctaw and Chickasaw Tribes.</p> <p>[Ed. Note. — For other eases, see Indians, Dee. Dig. § 15.*]</p> <p>2. Indians (§ 15*) — Lands—“Alienation”—Mortgage.</p> <p>A. mortgage given to secure a loan by an intermarried citizen of one of the Five Civilized Tribes, not of Indian blood, on Ms surplus lands, is a conveyance amounting to an ‘-alienation” within the meaning of Act April 21, 1904, e. 1402, § 1, 33 Stat. 204, removing all restrictions on alienation by such allottees except as to homesteads.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.'*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 302--306; vol. 8, p. 7571.]</p> <p>8. Words and Phrases — “Conveyance.”</p> <p>A conveyance is title transfer of the title of land from one person or class of persons to another.</p> <p>FEfl. Note.- — For other definitions, see Words and Phrases, vol. 2, pp. 1575-1584; vol. 8, p. 7619.]</p>

<p>1. Corporations (§ 558*) — Appointment of Receiver — Jurisdiction.</p> <p>While there is no statutory authority in Delaware for the appointment of a receiver o-f a solvent private manufacturing corporation, a circuit court of the United States sitting as a court of chancery may in the exercise of its general equity powers properly constitute such a receivership under exceptional and exigent circumstances as, for instance, where it has become impossible for the corporation to answer any of the ends of its creation or where there has been such fraudulent, willful or reckless mismanagement of its business and affairs by its board of directors as to produce a conviction that further control of the corporation by the same hoard would result in the destruction of its business and insolvency or cause great and unnecessary loss to its creditors or stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. | 553.*]</p> <p>2. Corporations (§ 553*) — Receivers—Appointment.</p> <p>No mere differences of opinion among the stockholders or directors as to the business methods or policy of the corporation can of themselves constitute a legitimate ground on which to vest in a receiver control and management of the corporate property and franchises.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. § 558.*]</p> <p>3. Corporations (§ 553*) — Receivers—Ground for Appointment.</p> <p>Mere irregularities or minor and comparatively trivial faults of commission or omission on the part of the directors and officers of the corporation, not amounting to flagrant disregard of their official duty showing their unfitness to control its business and establishing the probability of serious and substantial disaster or ruin to the corporate enterprise' should they further continue in charge, will not afford suilicient ground for.the appointment of a receiver.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dee. Dig. § 553.*]</p> <p>4. Corporations 0 557*) — Receivers—Grounds foe Appointment.</p> <p>To justify the appointment of a receiver of a corporation on the ground of fraud on the part of its directors in the conduct of its affairs, the bill must definitely allege facts and the allegations must be strictly proved.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227-2236; Dec. Dig. § 557.*]</p> <p>5. Corporations (§ 155*) — Sale of Manufactured Product — Payment of Dividends.</p> <p>The court will not at the instance of a minority stockholder of a solvent manufacturing corporation order a sale of its manufactured product, and the application of the proceeds tó the payment of dividends declared and unpaid, the application of its funds to the payment of dividends being within the legitimate functions of the board of directors.</p> <p>[Ed. Note.- — Eor other cases, see Corporations, Cent. Dig. §§ 500-603; Dec. Dig. § 155.*]</p> <p>6. Corporations (§ 320*) — Suit by Stockholder — Cancellation of Contract.</p> <p>In a suit by a stockholder of a solvent corporation on behalf of himself and other stockholders for the cancellation of a contract between that corporation and another on the ground that it was fraudulently procured and improvident, the court in the absence of evidence to the contrary may infer from the fact that no other stockholder has sought to intervene that the other stockholders do not view the contract unfavorably or that they believe that the setting aside of it under'the circum- . stances would ibe more detrimental to than promotive of their interests as stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 320.*]</p> <p>7. Corporations (§ 317*) — ’Suit by Stockholder — Setting Aside Contract.</p> <p>The mere fact that the president of a corporation, who owns the majority of its stock, has been guilty of such fraud in procuring the execution by it of the contract as would warrant the setting aside of the contract on a bill brought by the corporation, does not justify the court in setting it aside at the suit of a minority stockholder.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401-1415; Dec. Dig. § 317.*]</p> <p>8. Courts (§ 307*) — Federal Courts — Jurisdiction.</p> <p>Where the joinder of an indispensable party will oust the jurisdiction of a federal court having cognizance of the cause on the ground of diversity of citizenship the party seeking relief must proceed in a state tribunal.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 307.*]</p>

<p>In Admiralty. Suit for collision by the Wright & Cobb Lighterage Company against the New England Navigation Company, in which the Union Ferry Company and the New York, New Haven & Hartford Railroad Company were brought in under the rule.</p>

<p>In the matter of John E. Carlon, bankrupt. On review of decision of referee.</p>

<p>In Admiralty. Libel by Thomas W. Smith against the steam tug; Blue Bell for loss of a tow.</p>

<p>In Admiralty. Libel by Staples Coal Company against the steam, tug E. V. McCaulley. Decree for libelant.</p>

<p>Bankruptcy (§ 114*) — Receivers — Ju’nrsDK’Tiojf to Appoint — Expenses of ItECEXWÍRSUlP WlIKRB APPOINTMENT WAS ERRONEOUS.</p> <p>A District Court has jurisdiction to appoint a receiver Cor the properly of a corporation on the filing of a petition in bankruptcy against it by creditors, although it is afterward determined that the corporation was not subject to adjudication as a bankrupt, and it may in its discretion allow and pay the expenses of the receivership, including compensation to the receiver and his attorney from the funds in his hands where such services were beneficial to the estate.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 111.*]</p>

<p>In Equity. On petition by tlie Hill Veneer Company against W. R. Monroe, receiver of the Hawley Slate Furniture Company,'to reclaim property.</p>

<p>Criminal prosecution by the United States against Ned Thompson. On demurrer to indictment.</p>

In Equity. Suit by Dorothy Dorr Dam, administratrix, against the Kirk Da Shelle Company.. On exceptions to report of special master. Sustained in part.

In Equity. Suit by John C. Tomlinson against George G. Moore. On motion by complainant to enforce obedience by defendant to subpoena, and by defendant to quash subpoena. Motion to quash sustained.

<p>Bankruptcy (§ 408*) — Right to Discharge — Concealment oe Property.</p> <p>The transfer by a bankrupt, while insolvent, of the property which he occupied and continued to occupy as a hotel, to his wife, and its omission from his schedules, where there is evidence sufficient' to satisfy the court that-it is really held for his benefit and subject to his control, constitutes a concealment of the property from his trustee, and defeats his right' to a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 735; Dee. Dig. § 408,*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Suit in equity by the McCrum-Howell Company against the St. Paul Electric Company and B. B. Downs. From an order granting a preliminary injunction, defendants appeal.</p>

Suit in equity by Isabella C. Baldwin against Mary A. Reynolds and others. Complainant appeals. A large tract of timber land in Rowan county, Ky., was sold by William II. Held: Mary A. Reynolds, appellee, appearing and voting as the owner of 94 shares of the stock, and Marsh as the owner of 3 shares, and Reynolds’ son as the owner of the 3 De Witt shares.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>Suit in equity by Alexander U. Watson and others against the Security Life & Savings Insurance Company, National Life & Trust Company, National Life Insurance Company of the United States of America, a federal corporation, and National Life Insurance Company of the United States of America, an Illinois corporation. Decree for defendants, and complainants appeal.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action at law by Jennie Brothers and Charles R. Brothers against Frank J. Cunningham and the Cunningham Rand & Improvement Company. Judgment for defendants, and plaintiffs bring error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Missouri. In the matter of Jacob W. Derr, bankrupt. On petition by Celsus Orear, trustee, to review an order of the District Court.

<p>Mobtgagbs (§ 597*) — 'Suit to Redeem — Release oh. Equity oh Redemption.</p> <p>A letter written by complainant to defendant, to whom he had assigned a contract for the purchase of land as security for a loan, stating that he could not pay his notes, and that if defendant wanted anything he would have to take the land, was not a sufficient conveyance or release of complainant’s equity of redemption under the law of Minnesota, and did not. estop him from subsequently maintaining a suit to redeem and for an accounting, where defendant took possession, of and used the land without foreclosing his lien.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1742-1752; Dee. Dig. § 597.*]</p>

<p>Patents (§ 32S*) — Validity—Claims Broader than Invention — Carbureters.</p> <p>In the Schebler patent, No. 806,431, for a carbureter, while the specification and drawings may disclose a patentable invention, claims 1, 2, and 3 are invalid, as broader than the actual invention so disclosed and in view of the prior art.</p>

<p>In Equity. Suit by Graff, Washbourne & Dunn against Frederick H. Webster and Hawley T. Webster. Decree for complainaiit.</p>

<p>In Equity. Suit by the Thompson & Norris Company against the Moxie Nerve Food Cornpanji. On final hearing. Decree for complainant.</p>

<p>Petition by Isidor Klein and Karola Klein against William Williams, Commissioner of Immigration at the port of New York, for a writ of habeas corpus.</p>

<p>At Law. Action by C. W. Robinson against W. A. Furber and others. On petition by defendant Furber, for writ of supersedeas.</p>

<p>In Admiralty, Suit by William Wittekoppe against the New York & Pacific Steamship Company. Decree for libelant.</p>

<p>Equity (§ 149*) — Bill—Multifariousxess.</p> <p>A bill setting up a cause-of action by a corporation complainant against a corporation defendant for breach of a contract, and an entirely separate and distinct claim by individual complainants against defendant corporation and other defendants for the delivery of stock in defendant corporation, held demurrable for multifariousness.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 36S-370; Dec. Dig. § 149.*]</p>

<p>In Admiralty. Suit by the O’Rourke Dry Dock Company against Michael K. Neville. Decree for libelant for part of claim.</p>

<p>In the matter of Henry B. Hirth, bankrupt. On review of order of referee disallowing claim of Christian Grimsrud.</p>

<p>Corporations (§ 478*) — Mortgages—After-Acquired Personalty,</p> <p>Under the rule of the federal courts; a mortgage given by a corporation Covering real and personal property owned and to be acquired extends to personal property subsequently acquired and necessary to the mortgagor’s business, as against general creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1871; Dec. Dig. § 478 ;* Mortgages, Cent. Dig. §§ 208-289.]</p>

At Law. Action by Harry S. Hollenback, as administrator, etc., of Jeremiah Hollenback, deceased, against Augustus N. Hand and another, as receivers of the Elmore & Hamilton Contracting Company. On plaintiff’s motion to set aside a verdict for defendants, and for a new trial on the ground that the verdict is clearly against the weight of the evidence and not supported thereby, and for prejudicial errors in the admission and rejection of evidence.

In Equity. Suit by the San Erancisco Gas & Electric Company against the City and County of San Erancisco and others. On motion by defendants to dismiss for want of jurisdiction.

At Law. Action by the United States against the St. Louis Southwestern Railway Company of Texas. Trial by the court. Judgment for plaintiff.

In Admiralty. In the matter of the petition of the Lambert’s Point Tow Boat Company, as owner of the steam tug “John Twohy, Jr.,” for limitation of liability. On motion to set aside a deed to the vessel made by the marshal and to direct a suit for its recovery.

<p>1. Shipping (§ 56*) — Charter Party — Construction.</p> <p>Where a charter party hiring a small tug and barges for inland harbor improvement work provided that the property was hired to be used by an engineering company for engineering and construction work in the harbors of M. and B., and sneh other places on the Atlantic or Gulf Coast as the charter party might desire, contained no stipulation for deep sea towage, and did not authorize an assignment to another for any purpose, the charterer had no authority to let the tug to another to tow a loaded car float from Norfolk to Savannah.</p> <p>[Ed. Note. — Bor other cases, see Shipping, Dec. Dig. § 56.*]</p> <p>2. Maritime Liens (§ 65*) — Harbor Improvement Work — Coal Burnished</p> <p>to Tug and Imi>rovement Barges.</p> <p>Coal furnished by libelant for a tug and barges chartered by an engineering company to perform certain harbor improvement work held to have been furnished on the credit of the engineering company, and not of the tug, so that the latter was not subject to a libel therefor.</p> <p>[Ed. Note. — Bor other cases, see Maritime Liens, Dec. Dig. § 65.*]</p> <p>3. Maritime Liens (§ 25*) — Supplies.</p> <p>Supplies furnished to a tug on the captain’s orders while in a harbor and at her legitimate work under a charter party, the terms of which were not known either to the captain or- the merchants, were furnished on the credit of the tug for which it was liable, as provided by Act June 23, 1910, c. 373, 36 Stat. 604.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Dec. Dig. § 25.*]</p>

<p>In Admiralty. Petition of the New York & Long Branch Steamboat Company, charterers of the steamboat Little Silver, for limitation of liability. On claims for damages resulting from collision by Borrea ' Johnson and Hans Johnson.</p>

In the matter of the Watertown Concrete Stone Company, bankrupt'. On review of order of referee disallowing in part the claim of Peter, A. Ward for damages for breach of contract, and finding that he owed the bankrupt $110 on the contract.

<p>At Law. Action by J. M. Tiller against the St. Louis & San Francisco Railroad Company. On demurrer to plaintiff’s amended petition.</p>

<p>In Admiralty-. Suit by Henry Gilbert against the steamer Thomas Cranage. Decree for libelant.</p>

<p>Suit by the United States against Thomas Plaistow to cancel a certificate of citizenship.</p>

In tlie matter of John G. O'Neil and Robert B. Doubleday, as inr dividuals and as copartners in the firm of J. G. O’Neil & Co. On review of order of referee disallowing claim of Rloise C. Doubleday for $443.75 against the estate of Robert B. Doubleday, and also reducing another claim of said claimant from $108.21 to $61.20.

<p>At Law. Action by Charles Judge against the Northern Pacific Railwáy Company. On demurrer to portion of answer.</p> <p>Sustained.</p>

Writs of habeas corpus and certiorari for the arrest of Leibel Pincusov Glucksman, brought pending application for extradition.

<p>At Law. Action by John O’Connell and others, executors, againsi the American Fire Insurance Company of Philadelphia. Judgment for defendant.</p>

<p>1. Shipping (§ 147*) — Freight—Short Delivery.</p> <p>Under -a provision in a charter party of a vessel as a private carrier of oil in cases that the cargo should be received and delivered alongside within reach of the vessel’s tackles, and that the ship should receive a stated sum for each ease delivered whether full, part full or empty, proof that the vessel received the number of cases stated in the bills of lading, that none were stolen during the voyage, and that all on board were delivered alongside by her tackles into lighters, entitles her to freight On all shown by the bills of lading, although there may have been a shortage when the oil reached its destination.</p> <p>[Ed. Note. — For other cases, see Shipping, Dee. Dig. § 147.*]</p> <p>2. Shipping (§ 148*) — Freight—Deduction for Damage to Cargo by Stevedore.</p> <p>Where such charter provided that the vessel’s stevedore for loading and unloading should be approved by the charterer, and his agent refused to permit the master to discharge a stevedore for rough handling of the cargo in unloading, the charterer was not entitled to make a deduction from freight on account of breakage by such stevedore.</p> <p>[Ed. Note.- — For other cases, see Shipping, Dec. Dig. § 14S.*</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.]</p>

<p>Petition of Harvey Walter Freeze for naturalization. On objection to sufficiency of petition.</p>