Volume 190 — Federal Reporter

Action by Maria Williamson, as administratrix of the estate of William Williamson, deceased, against the Berlin Mills Company. Judgment for defendant, and plaintiff brings error.

<p>1. Negligence (§ 87*) — Contributory Negligence — Care Required as Against Negligence oe Another — Mental Capacity.</p> <p>In determining the question of the contributory negligence of a plaintiff injured, primarily, through the negligence of defendant, plaintiff’s want of mental capacity may be shown and considered, and he can only toe held to the exercise of such faculties as he is endowed with by nature to appreciate and guard against the danger.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. § 118; Dec. Dig. § 87. *)</p> <p>2. Street Hah,roads (§§ 98, 117*) — -Injury to Pedestrian — Contributory Negligence.</p> <p>Plaintiff, crossing a street on which there were two street railroad tracks near the middle of a block, after passing around a car standing on the track nearest to her, was struck and injured by a car on the other track moving in the opposite direction. She had seen the car approaching, but at a distance of about 400 feet, and there was evidence tending to show that it was running at twice its lawful speed, which fact she did not know. Hold, that she had the right to assume that it was not running at an unlawful speed and could not he held chargeable with contributory negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208, 239-257; Dec. Dig. §§ 98, 117.*]</p> <p>3. Street Railroads (§ 98*) — Injury to Pedestrian — Contributory Negligence.</p> <p>A pedestrian in crossing a street railway track is not a trespasser on the right of way of the street, railroad company, nor bound by any strict rule of law, as when he approaches a steam railroad crossing, to stop, look, and listen, nor to take special precautions to determine whether there is danger in going upon the track.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]</p>

<p>In Equity. Suit by the Excelsior Drum Works, Eipman Kaiser, and Alfred R. Cunnius against Albert B. Bortel and Charles I. Bortel, trading as the Wooden Phonograph Horn Company. On final hearing.</p>

In Equity. Suit by William A. Johnson against Adolph Johnson for infringement of letters patent No. 850,936, granted April 23, 1907, to complainant, for improvement in tennis court markers. On final hearing.

<p>• In Equity. .Suit.by James D. Hurd, the Consolidated Rubber Tire Company, ■ and the Rubber Tire Wheel Company against the Woodward Company. On motion for preliminary injunction.</p>

<p>1. Patents (§ 167*) — Construction—General and Specific Claims.</p> <p>Where a patent contains specific claims for the one form of structure described in the specification and shown in the drawings, and also broad and general claims, the latter are not to be so limited as to malee them a mere repetition of the specific claims.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 167.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Incandescent Damp Socket.</p> <p>The Sargent patent, No. 605,582, for a lamp socket, which relates t'o the insulation of the cap of the shell of an incandescent lamp socket, was not anticipated, and discloses invention. Also helé infringed.</p> <p>3. Patents (§ 27*) — Invention—Effect of Similar Devices in Other Arts. Invention may exist in a patented device notwithstanding the existence of devices more or less similar in other arts.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*]</p>

<p>In Equity. Suit by the American Sulphite Pulp Company against the De Grasse Paper Company. On exceptions to report of special master.</p>

<p>In Equity. Suit by the Coffield Motor Washer Company against the' A. D. IIowc Machine Company. On final hearing.</p>

<p>In Equity. Suit by the General Knit Fabric Company and Robert W. Scott and R. N. D. Williams against Steber Machine Company and Bernard T. Steber.</p>

<p>In the matter of bankruptcy proceedings of S. A. & W. T. Freeman. Intervention of Atlanta Woodenware Company, mortgagee. On petition to review a referee’s order directing that fees of attorneys for petitioning creditors be paid out of the fund in court arising from the sale of mortgaged property.</p> <p>K. A. & W. T. Freeman were engaged in the furniture ¡business in Albany, Ga. They gave a mortgage to the Atlanta Woodenware Company, which was duly filed and recorded more than two years prior to the bankruptcy proceedings. There was no question as to the validity or bona lides of the mortgage. At the time of bankruptcy the amount due under the mortgage, in round figures, amounted to $5,000. D. W. Nelson, representing claims aggregating in amount only 8271, filed a petition against S. A. & W. T. Freeman, and praying that they be adjudicated bankrupts. The next day an answer was filed, admitting bankruptcy, and asking that they be adjudicated bankrupts. TTpon this petition and answer the referee passed an. order of adjudication. In due course the stock of goods was sold by the trustee for the sum of $1,325. The mortgagee asked that this amount be paid over to it under its mortgage. The referee ordered that there first be paid out of the fund the sum of $355, for certain taxes due upon the property, for the actual costs of the receiver and trustee in preserving and selling the property, for the receiver's, trustee’s, and referee’s commissions; and that there also be paid out ot' the fund, the filing fees and general costs of administration, amounting to $143.50, and the fees of attorneys for petitioning creditors, and for the bankrupt, as soon as the same should be fixed by the court; and that the balance of the fund then be paid over to the mortgagee. The mortgagee filed no exceptions to the payment of the taxes and the court costs, amounting to $355, for the items above stated, but excepts only to that portion of the order directing that attorney’s fees and general costs of administration be paid out of the fund.</p>

<p>Admiralty (§ 99*) — Decree by Default — Procedure.</p> <p>Where, on the filing of a lihel in rem and the issuance of attachment,' the vessel has been seized and the usual notice duly published, and no person appears as owner or claimant, either formally on the record or by notice to the proctors for the libelant, the default itself may be treated as sufficient basis for a formal decree of condemnation and sale without further proofs.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 90.*]</p>

<p>Bankruptcy (§ 407*) — Discharge—Jurisdiction to Grant.</p> <p>A court of 'bankruptcy is without jurisdiction to grant a discharge to a bankrupt unless there are dischargeable debts, and where the only claims listed by a bankrupt, or filed, are stated in his schedule to be disputed,, and are in fact in litigation, which he is contesting, the court has no power to grant him a discharge.</p> <p>[Ed. Note. — • For other cases, see Bankruptcy, Dec. Dig. § 407.*]</p>

In the matter of Herman Schoenfield, bankrupt. On petition by Jacob Salsburg claiming certain property. Upon hearing of petition of Jacob Salsburg, asserting title to propr erty taken possession of by trustee, the following certificate of facts was made by Referee J. W. Cummins: On June 14, 19.10, Herman Schoenfield filed a voluntary petition in bankruptcy, scheduling no assets, but showing a liability of $14,000.

<p>X. Executors and Administrators (§ 613*) — Actions—Defenses—Discharge.</p> <p>The administratrix of a deceased guardian • was not liable for the guardian’s alleged default, where suit to enforce such liability was not commenced until five years • after she had administered the guardian’s estate according to the local law, had accounted for all property she had received, and had been discharged from her trust; the correctness of her accounts not being assailed.</p> <p>[Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 2207-2291; Dec. Dig. § 513.*]</p> <p>2. Descent and Distribution (§ 119*) — Indebtedness obi Ancestor — Liability of Heirs.</p> <p>Heirs of a deceased guardian are not liable for his default beyond the amount of their inheritance.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 433-439; Dee. Dig. § 119.*]</p> <p>3. Executors and Administrators (§ 224*) — Claims—Nonclaim Suit — Application — “Claim”—“Cause of Action.”</p> <p>Rem. & Bal. Code Wash. § 1470, providing that every executor and administrator shall immediately after his appointment cause to be published in some paper printed in his county a notice requiring creditors to present claims within a year after the date of notice, and section 1472, declaring that if a claim is not presented within such year it shall be barrefl, apply to mere personal claims against the estate of a deceased guardian; the word “claim” being synonymous with “cause of action.”</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 768-788; Dec. Dig. § 224*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1015-1019; vol. 8, p. 7598; vol. 2, pp. 1202-1211; vol. 8, p. 7604.1</p> <p>4. Courts (§ 375*) — State Statutes — Enforcement in Federal Court.</p> <p>A state' státute of nonclaim, requiring claims against executors and administrators to be filed within a specified time, will he enforced in a federal court of equity, where suit was brought against an administrator of a deceased guardian on a mere personal demand several years after the bar of the suit of nonclaim became absolute.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. § 983; Dec. Dig. § 375.*]</p> <p>5. Courts (§ 375*) — Guardian’s Bond — Actions—Limitations—Enforcement in Federal Court.</p> <p>Bern. & Bal. Code, § 1432, provides that an action against sureties shall be commenced within six years after the revocation or surrender of letters of administration or death of the principal, and section 1633 declares that all the provisions of the title containing the above-named section relating to administrators’ Bonds shall apply to bonds taken of guardians. Held that, since the state Legislature had supreme power to restrict the obligation of sureties on statutory bonds given by guardians, such sections were enforceable in a federal court and available as a defense to a suit on a guardian’s bond against the surety more than six years after the death of his principal.</p> <p>[I3d. Note. — For other cases, see Courts, Cent. Dig. § 983; Dec. Dig. § 375.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 O. C. A. 533.]</p> <p>6. Limitation of Actions (§ 174*) — Removal of Bar — Equitable Remedy.</p> <p>The rule that a court of equity will remove the bar of limitations to reach trust funds does not apply to a mere surety on a guardian’s bond, whose duty is measured alone by the legal force of the bond, and whose only obligation to the obligee is contained in his covenant.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Dee.' Dig. § 174.*]</p>

<p>In the mattersof the bankruptcy of Sterne & Levi. Petition of W. C. Hudson, trustee, to transfer the cause to the District Court of the United States for the Eastern District of Arkansas.</p> <p>The following is the opinion of Hatupson Gary, Referee:</p> <p>The issues referred to me, as special master, to ascertain and report the facts, with my conclusions thereon, arise upon a petition of W. C. Hudson, trustee, for a transfer of the above-entitled cause from this court to the District. Court of the United Slates for the Eastern District of Arkansas on the alleged ground that the latter court can proceed with said cause for the greatest convenience of all parties in interest.</p> <p>The facts, as derived from the petition and exhibits thereto, responses tiled By Thos. D. Bonner, trustee, and various creditors, the record, and the evidence, are as follows:</p> <p>On February 28, 1911, certain creditors of the firm of Sterne & Levi, merchants having stores at Texarkana. Tex., and Pine Bluff, Ark., filed in this court a petition in involuntary bankruptcy, praying an adjudication of bankruptcy of the partnership and the individual partners. This petition was prosecuted with due diligence to an adjudication, which was made on March 23, 1911, and on April 7, 1911, respondent Thos. D. Bonner was elected and duly qualified as trustee herein.</p> <p>Meanwhile, said firm of Sterne & Levi, and the individual partners, on March (5, 19Í1, filed their voluntary petition in bankruptcy in the District Court of the United States for the Eastern District: of Arkansas, and order of adjudication was made the same day, and on March 21, 1911, IV. C. Hudson, the petitioner, was appointed and qualified as trustee.</p> <p>The stock of merchandise of the bankrupts located at Pine Bluff, Ark., was sold by W. C. Hudson, trustee, for the sum of $5,0(50; that at Texarkana, Tex., by Thos. D. Bonner, trustee, for the sum of .84,100; both sales were confirmed by the courts under whose respective orders they were made; and said sums of money, representing all — or practically all — of the assets of said bankrupts, are in the hands of the respective trustees.</p> <p>[1] The first question that presents itself for consideration and decision is that of jurisdiction. It is apparent from the facts that both courts had jurisdiction of the parties and the subject-matter herein, both on account of the fact, that a partner was domiciled in each district and because a business was maintained in each, and, the jurisdiction of both having been invoked, the initial step in this inquiry is to determine to which of said courts the law gives the preference: for, unless that preference is here, this court has no jurisdiction to entertain the motion to transfer the cause on the ground of the convenience of parties in interest.</p> <p>The letter as well as the spirit of General Order 0 iu Bankruptcy (89 Fed.' v, 32 (1. G. A. ix), which is hereinafter quoted at length, confers exclusive jurisdiction upon that court in which, the petition is first filed, subject to the provision for the transfer of cases from one to another district court where the convenience of parties in interest demands it, which will be discussed later herein. As between two District Courts of the United States it is the duty of the other court to yield jurisdiction and the control and direction of the entire proceeding to the one whose jurisdiction was first invoked. In re Elmira Steel Co. (D. C.) 5 Am. Bankr. Rep. 484, 109 Fed. 456; Matter of United Button Co. (D. C.) 12 Am. Bankr. Rep. 761, 132 Fed. 378.</p> <p>[2] Tlie first petition in bankruptcy having been filed in the District Court of the United States for tbe Eastern District of Texas, it is clear that;this, court is entitled to, and should, proceed with the case unless it clearly1 appears that the convenience of parties in interest requires its transfer under, 'section 32 of the act to some other court. This conclusion is inevitable, notwithstanding the fact, so strongly urged by counsel for the Arkansas trustee, to the contrary, that the second petition was voluntary, and that bankrupts cannot be deprived of their right to a voluntary adjudication, even with an involuntary petition pending against them, unless it be shown that injury would result to creditors by reason of preferential or other transfers betw.een the dates of the respective petitions. ' . .</p> <p>The right of a person to become a voluntary bankrupt under such cireurn* stances was formerly doubted; but it is no longer open to question. .The proper practice, as pointed out by the authorities, under such circumstances, is to stay the proceedings on the involuntary petition, with protection to creditors as to costs, and make an order of adjudication, with leave to creditors to bring forward the involuntary petition in the event that it should develop in the further proceedings in the case that such course is necessary in the interest of creditors. But this contemplates that both petitions are presented to the same court, as is usually the case, or, if presented to different courts, upon a transfer and consolidation of the cases in one of the courts, and is a matter of practice and expediency, which in no way affects, alters, or relates to the question 'of jurisdiction in the first instance.</p> <p>In this connection, it may be remarked that no real distinction is to be found between a voluntary' petition in bankruptcy and an admission by bankrupt upon the filing of an involuntary petition against him of his “inability to pay his debts and a willingness to be adjudged bankrupt on that ground,” with adjudication thereon, under which conditions the casé proceeds, under the law, as though it were voluntary. Prior to the amendment of 1910 (Act June 25, 1910, c. 412, 36 Stat. 838) corporations could not become voluntary bankrupts in the strict and technical sense; but, by filing the admission above referred to, they could and often did accomplish--the same end — indeed, practically the only use found for that ground of bankruptcy was in just such cases. This course was resorted to in the ease of Elmira Steel Co., supra, upon the second petition filed; and, as stated, no distinction worthy of any serious consideration is perceived in respect to the character of the bankruptcy, i. e., whether voluntary or involuntary, between that case and the one here. For the purposes of this inquiry they may be considered as presenting identical facts.</p> <p>Section 32 of the bankrupt act is as follows:</p> <p>“In the event petitions are filed against the same person, or against different members of a partnership, in different courts of bankruptcy, each of which has jurisdiction, the cases shall be transferred, by order of the courts relinquishing jurisdiction, to and be consolidated by one of such courts which can proceed with the same for the greatest convenience of parties in interest.”</p> <p>This section does no more than provide against the hard and fast rule of the former law, under which a case in bankruptcy had to proceed in the court having jurisdiction in which the petition was first filed, without regard to the convenience of parties. It will be observed that no effort is made therein 'to specifically point out the .manner of obtaining a transfer or the court to which the application is to be made, and general order 6 must be resorted to for more specific directions. Collier on Bankruptcy (Sth Ed.) p. 478.</p> <p>This general order is as follows:</p> <p>“In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicile, and the petition may be amended by inserting ah allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction, the petition first filed shall be first heard, and may be amended by the inserting of an allegation of an earlier act of bank-ruptor than that first alleged, if such earlier act is charged in either of the other petirions, and, in either case, the proceedings upon the other petitions, may he stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over ail proceedings therein until the same shall he closed. In case two or more petitions shall be filed in different courts by different members of the same partnership for an adjudication of bankruptcy of said partnership, the court in which the petition is first filed, haying jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall he closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the court so retaining jurisdiction shall, if satisfied that it is for the greatest convenience of parties in interest Unit another of said courts should proceed with the cases, order them to he transferred to that court.”</p> <p>This order leaves no room for doubt but that the court: taking and retaining jurisdiction shall have exclusive jurisdiction to determine the question of a transfer under section 32, for it expressly provides that the court “so reta hiint) jurisdiction (because the petition was first filed therein) shall, if satisfied that it is for the greatest convenience of parties in interest, that another of said courts shall proceed with the case, order them transferred to that court.</p> <p>Therefore, this court, and this court only, is vested with jurisdiction to determine the question here presented, i. e., which of the two courts can proceed with the case for the “greatest convenience of parties in interest.” Authorities supra.</p> <p>f3j Neither the act nor the general order attempts to define the terms “greatest convenience” or “parties in interest.” The interpretation placed upon thorn by the court in the Matter of United Button Co. (D. C.) 13 Am. Bankr. Rep. 454, 137 Fed. 668 — that the terms “parlies in interest” covers every party having any interest in or connection with the case, including priority, secured and unsecured creditors, as well as the bankrupts themselves, and that the term “greatest convenience” depends upon all the circumstances, proximity of a majority of creditors and the place of business of the bankrupts to the court, proximity of witnesses whose attendance is desired in any hearing, and perhaps numerous other factors — would seem to he the correct view. And, in order that all the circumstances -might be fully developed and a full and complete hearing assured herein, 10 days’ notice of the time, place, and object of this hearing was given to every party in interest shown by the schedules of the bankrupts herein. In response to this notice of the referee, more than 50 creditors with claims aggregating $10,596 (the total liabilities •shown in the schedules are less than $18,000) appeared in person and by attorney in opposition to the petition of the Arkansas trustee for a transfer Of the cause. Other creditors having claims of about $1,000 on file with the referee were not present or participating in the hearing and were not considered. Two creditors have claims for rent due and to become due to the amount of about $2,000 on the two store buildings occupied by bankrupts at Texar-kana. Tex., and are claiming priority under the state law, which gives them a lien for one year's rent. The claims are being contested by the trustee, and the hearing thereon has been adjourned to enable claimants and the trustee to secure the attendance of witnesses residing in Texarkana Tex., on issues of fact involved therein. It further developed at the hearing that Ohas. Levi, one of the bankrupts, who formerly resided at Pine Bluff, Ark., is now residing in Texarkana, Tex., whore he and the other partner, Nathan Sterne, are within the jurisdiction of the court, subject to call as witnesses in the further proceedings herein, if their attendance is desired; and said bankrupts were present at the hearing herein and represented to this court that it would better suit their convenience for ilio case to proceed here.</p> <p>Although, under section 32 and general order 6, the burden of satisfying this court, by a fair preponderance of the evidence that it would be for the greatest convenience of parlies in interest to transfer this case to the Arkansas court was upon the petitioner, nothing in support of his petition to transfer was offered by the Arkansas trustee against the array of facts and circumstances consiituting a great preponderance of the evidence in favor of this court retaining and proceeding with the case. Not one creditor, although all had ample notice of the time and object of the hearing, appeared in favor of a transfer.</p> <p>Counsel for the Arkansas trustee argued with much earnestness that the question here presented has been determined by the District Court of the United States for the Eastern District of Arkansas, and the matter is res adjudicata. This is a question that X approach with much reluctance, as it involves an inquiry into the jurisdiction of a sister court of equal dignity with this court. As said in the case of Elmira Steel Co., supra:</p> <p>“But no court can close its doors to parties who have a right to come before it. * * * Its duty to pass judgment is not the less exacting where it sometimes involves, as it does in this case, the disagreeable task of determining the validity of proceedings in another court. ‘And it must be assumed here at the outset that the other court intended, not merely no error in its proceedings, but no interference with or disparagement of proceedings in a sister court; if it committed any error-, or acted without right, it must be believed that it was moved thereto by the pax-ties before it. * * * ’ ”</p> <p>It should likewise be stated that this court has the greatest possible respect for the honorable District Court for the Eastern District of Arkansas, although, with the views herein expressed apd the authorities cited, it feels compelled to differ with its ruling and hold that that court was without jurisdiction to determine the question as to which of these courts could proceed with this case for the greatest convenience of parties in interest. In re Tybo Mining Co. (D. C.) 13 Am. Bankr. Rep. 62, 132 Eed. 097; Matter of United Button Co. (D. C.) 13 Am. Bankr. Rep. 454, 137 Fed. 60S.</p> <p>It being the opinion of this court that the honorable Arkansas court was without jurisdiction in respect to the matter of a transfer of this case, it is unnecessary to determine whether or not creditors who appeared there by petition are concluded by its ruling on said petition. Certainly other creditors would not be so concluded; nor would the trustee herein, who filed a response to the petition of the Arkansas trustee and apxxears in opposition to a transfer. And none of the parties could compromise, intentionally or otherwise, the dignity of this court, by waiving without its consent jurisdiction in a case of undoubted jurisdiction of which it has taken cognizance, as it did in this ease upon the filing of the petition, upon a matter with which it is vested with .exclusive jurisdiction to determine.</p> <p>It follows that the petition to transfer this cause should be denied, and it is so ordered.</p> <p>To the end that the administration of said estate may proceed in this court without further confusion and delay, Thos. D. Bonner, the trustee herein, is hereby directed to respectfully apply forthwith to the honorable District Court for the Eastern District of Arkansas for a stay of proceedings there and pray for an order directing the trustee therein to turn over to this court the assets in his hands.</p>

<p>1. Evidence (§§-31, 32*) — Judicial Noth® — City Charter — Pee adusto.</p> <p>Pierce’s Code Wash. § 408, provides that in pleading any ordinance of a city or town it shall be sufficient to state the title of such ordinance and the date of its passage, whereupon the court shall take judicial notice of the existence of such ordinance and the tenor and effect thereof. Held that, in a suit to restrain a city and its officers from repealing a certain railway franchise ordinance, the court will take judicial notice of the charter of the city and of the franchise ordinances, though pleaded by their titles only.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 40-42; Dee. Dig. §§ 31, 32.*]</p> <p>2. CONSTITUTIONAL LAW (§ 120*)-OBLIGATION OF, CONTRACT — REPEAL' OF Statutory Grant.</p> <p>Where an absolute right of repeal of a statutory grant is reserved by the granting authority, the exercise of such right is not a violation of the federal Constitution restraining states from passing any act impairing the obligation of a contract.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 120.*]</p> <p>3. Courts (§ 282*) — Federal Courts — Jurisdiction—Federal Question — Obligation oe Contract — Impairment.</p> <p>Where ordinances granting a city railway franchise reserved a conditional right of repeal in case the franchise was not operated in accordance with the provisions of the ordinances, a determination of the city council of the question of fact that the grantee had violated the ordinances, and that they should he repealed, was not conclusive, and hence a suit to restrain the city and its officers from repealing the franchise ordinances, and from enforcing such repealing ordinance on the ground that it constituted an impairment of complainant’s contract rights in violation of the federal Constitution, involved a federal question and was therefore within the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-824; Dee. Dig. § 282.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Pm*ch Co. v. Boston & M. O. C. & S. Min. Co.. 35 C. C. A. 7; Earnhart v. Switzler, 105 C. C. A. 262.]</p> <p>4. CONSTITUTIONAL LAW (§ 120*)-OBLIGATION OF CONTRACT — IMPAIRMENT— Application.</p> <p>Tlie prohibition of the federal Constitution against laws' impairing the obligation of a contract applies to all-contracts, whether executed or ex-ecutory, whoever may be parties thereto.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 279-285; Dec. Dig. § 120.*)</p>

<p>' At- Law. ■ Action by Thomas Williams against the Bunker Hill & Sullivan Mining & Concentrating Company. On motion for judgment non obstante.</p>

<p>Tkade-Mabks and Trade-Names (S 59*) — iNKRiNCEMENir.</p> <p>The word “Metropolitan,” when used by a manufacturer on pound and half-pound boxes of chocolates and bonbons, is an arbitrary and fanciful word, not indicative of ingredients, quality, or amounts, and constitutes a valid trade-mark, which is infringed by its use by another, in connection with other words, giving the packages a similar appearance on choc-oíate cakes sold at candy stores in the same city and vicinity, where it has become identified by long use with the goods of the first user. .. .</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent.. Dig. §§ 68-72; Dee. Dig. § 59.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth v. Warner, 50 C. O. A. 323.]</p>

In the, matter of bankruptcy proceedings of Charles D. Gillaspie. On petition to review a referee’s ruling allowing compensation to petitioner’s attorneys.

<p>In the matter of bankruptcy proceedings of the Goble Boat Company. On petition to review a referee’s order expunging and disallowing the claim of J. Lee Goble, an alleged creditor.</p>

<p>In the matter of bankruptcy proceedings of the McDavid Lumber Company. On petition of William F. Lee to review a referee’s ruling denying priority of liens for services rendered as defendant’s bookkeeper as against certain chattel mortgages on the bankrupt’s assets.</p>

In the matter of bankruptcy proceedings of Sherman R. Norris, trading as the Minnesota Grain Indemnity Company. On petition of Emma Gould and 34 others for review of an order disallowing their claims against the bankrupt.

<p>CORPORATIONS (§ 170*)-STOCKHOLDERS — CREDITORS,</p> <p>Preferred stock certificates guaranteed to tlie holders 10 per cent, per annum if the net profits permitted; reserved to the corporation the right, to redeem the certificates after January 1, 1911, at a fixed amount per share; bound the corporation to redeem all the outstanding certificates on or before January 1, 1916; and authorized the holders, on failure to pay dividends to which they were entitled for 90 days, to foreclose a mortgage securing such preferred stock, and provided for a first mortgage lien on all the corporation’s property as security therefor, in which the holders of the certificates were entitled to participate ratably. Such stockholders were not entitled to participate in the management of the corporation nor in its profits above 10 per cent, per annum, nor in the assets on distribution above $11 per share. Held, that such stockholders were creditors of the corporation and not stockholders, and hence a mortgage given to secure such stock was not fraudulent.</p> <p>IEd. Note. — For other cases, see Corporations, Cent. Dig. §§ 024-632; Dec. Dig. § 170.*]</p>

Action by the American Shipbuilding Company against Frank P, Whitney and others. On motion to dissolve an order restraining the taking of depositions of certain witnesses.

In the matter of bankruptcy proceedings of one Sussman. On the bankrupt’s petition for discharge, to which certain creditors objected.

<p>In the matter of bankruptcy proceedings of Henry C. Gara. On motion to dismiss objections to bankrupt's discharge.</p>

Suit in equity by the American Trust Company as trustee against the Metropolitan Steamship Company and others. From an order (183 Fed. 250) directing payment of a receiver’s certificate as a prior claim over a deficiency judgment on mortgage foreclosure, the claimant trust company appeals.

<p>1. CARRIERS (§ 94*) — Delay in Delivery on Goons — Measure of Liability.</p> <p>The mere nondelivery of cotton by a carrier, even though a reasonable time for delivery had elapsed, does not, without other wrongful act, constitute a conversion so as to render the carrier liable for its value, but gives a right of action only for the damages caused thereby.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 371; Dec. Dig. § 94.*]</p> <p>2. Appeal and Error (§§ 223, 242, 527*) — Review—Trial Without Jury.</p> <p>A special finding made by a trial court where a jury is waived becomes a part of the record, and the appellate court may, under Rev. St. § ,700 (U. S. Comp. St. 1901, p. 570), determine its sufficiency to support the judgment without a bill of exceptions, and even though no exception was taken to the judgment in the court below, or any specific ruling made on the question of law involved.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Dec. Dig. §§ 223. 242, 527.*]</p> <p>3. Appeal and Error (§ 1177*) — Disposition of Cause — Reversal.</p> <p>Where on a writ of error a special finding is found to be insufficient to support the judgment, and silent as to essential facts involved under the issues, and as to which there is a conflict in the testimony, the appellate court, being limited to a determination of the questions of law arising upon the record, cannot supplement or piece out the imperfect findings of fact by its own original investigation and determination of original facts, but in such case the judgment should be reversed, and the case remanded for a new trial.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 4599; Dec. Dig. § 1177.*]</p> <p>4. Appeal and Error (§ 719*) — Review—Bindings op Fact.</p> <p>Where the special findings of fact made by a trial court are insufficient to support the judgment, the error is of such controlling character that the Circuit Court of Appeals will take notice of it under its rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), although without a sufficient assignment of error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2976; Dec. Dig. § 719.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Action at law by the Pensacola Bank & Trust Company against R. E. Melton. J. S. Thornsberry, J. B. Ramsey, J. R. Ramsey, K. J. Ramsey, C. H. Ramsey, and D. H. Sharp. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maine.</p> <p>Suit in equity by James M. W. Hall and others against Alfred K. Ames and others. IDecree for defendants, and complainants appeal.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Electrical Translating Device.</p> <p>The Armstrong and Woodbridge patent, No. 726.391, for an electrical translating device, was not anticipated and discloses invention; also, held, on tbe evidence, not void for prior public use and infringed.</p> <p>2. Evidence (§ 77*) — Presumptions—Failure to Call Witness.</p> <p>On an issue as to an alleged prior use of a patented device, the fact that defendant has failed, without cause shown, to take the testimony of the person best qualified to testify with intelligence and accuracy on the question, may properly be considered.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. § 77.*]</p> <p>3. Patents (§ 259*) — Contributory Infringement.</p> <p>A corporation which manufactured under contract an electrical translating device which in operation infringed complainant's patent held, on the evidence, chargeable with contributory infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 400-402; Dec. Dig. § 259.*</p> <p>Contributory infringement of patents, see notes to Edison Electric L. Co. v. Peninsular Light, P. & II. Co., 43 C. O. A. 485; AColian Co. v„ Harry H. Juelg Co., 86 C. C. A. 206.]</p>

<p>1. Patekts (S 328*)- — Validity and Infringement- -Process op Regulating Temperature op Combustion in Gas Producers.</p> <p>The Doherty patent. No. 829.105, for a process of regulating the temperature of combustion in gas producers by introducing to the grate a mixture in definite proportions of the waste products of combustion, including carbon dioxide, and of air at a designated temperature for the purpose of reducing the temperature of combustion and, preventing the formation of clinkers, was not anticipated and discloses invention. Also, held infringed as to claims 7, 10, and 13.</p> <p>2. Patents (§ 27*) — Validity—Theory of Operation.</p> <p>Whatever may he the correctness of the theory of operation of a pat-entee if a new application of old means is sufficiently described to enable those skilled in the art to produce a new and useful result, tt is enough to sustain the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27. *1</p> <p>3. Patents (§ 328*) — Valtdtty and Infringement — Combustion Regulator 1’or Furnaces.</p> <p>The Doherty patent. No. 841,504, for apparatus for regulating combustion in furnaces, claim 3, is for a true combination, was not anticipated, and discloses invention ; also, held infringed.</p> <p>Defendant’s Petition for Rehearing.</p> <p>4. Patents (S 315*) — Suit fob Infringement — Rehearing.</p> <p>The discovery after final hearing and decision in an infringement suit of another patent claimed to anticipate 1 lie one in suit', particularly where it was referred to in defendant’s record and brief, is not a sufficient ground for reopening the case.</p> <p>[Ed. Note.- -For other cases, see Patents, Dec. Dig. § 315.*]</p>

<p>1. Patents (§ 328*) — Invention—Governor for Aib Compressing Motor.</p> <p>The Stewart patent, No. 745,683, for a pneumatic governor for electrically driven air pumps or compressors, is void for lack of invention in, view of the prior art.</p> <p>2. Patents (§ 328*) — Valid tty and Infringement — Governor fob Air Compressing Motors.</p> <p>The Maeloskie patent, No. 826,341, for a pneumatic governor for electrically driven air compressors, was not anticipated and discloses invention; the device being the first to bo entirely commercially successful; also held infringed.</p> <p>3. Patents (§ 73*) — Anticipation—Date oe Anticipating- Invention.</p> <p>The date when, a patent is actually issued, rather than the date when the application therefor was filed, determines whether or not it anticipates another patent.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 73.*]</p>

In Equity. Suit by the Lord & Burnham Company against John A. Payne for infringement of letters patent No. 583,247, granted May 25, 1897, to William A. Burnham for improvements in metal eaves. On final hearing.

<p>Patents (§ 328*) — Infringement—Molding Apparatus.</p> <p>The Tabor patent, No. 533,101, for improvements in molding apparatus, the Tabor-Mumford patent, No. 582,325, for improvements in motal-founding machines, and the Tabor-Mumford patent, No. 654,292, for improvements in molding machinery, all relating to the making of sand molds for use in foundries, and covering combinations of devices intended to facilitate the withdrawal of the pattern without defacing the mold, construed, and held not infringed.</p>

<p>'Patents (§ 328*) — Validity and Infringement — Machine fop. Making Paper Boxes.</p> <p>The Labombarde patent, No. 960,348, for a machine for making pasteboard boxes, construed, and held, valid; also infringed as to claims 1, 7, and 8, but not infringed as to claims 9, 10, and 11.</p>

<p>1. Patents (§ 238*) — Infringement—Change in Fobm of Construction.</p> <p>Infringement of a patent is not avoided by making in one piece wbat the inventor made in several, when in practical operation it makes no difference whether one form of construction or the other is used.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Ilig. § 3TC; Dec. Dig. § 238.*]</p> <p>2. Patents (§ 141*) — Reissues—Validity.</p> <p>A reissue is not necessarily void because it contains broadened claims or claims which more accurately and precisely cover the invention as described in the original patent'.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dec. Dig. § 141.*</p> <p>Grounds for reissue of patent, see note to General Electric Go. v. Richmond St. & I. Ry. Co., 102 C. C. A. 145.]</p> <p>3. Patents (§ 328*) — Validity and Tnfktngement — Automobile Truck.</p> <p>The Weber reissue patent, No. 12,430 (original No. 772,014), for an automobile truck, held valid and infringed.</p> <p>4. Patents (§ 314*) — Suit for Infringement — Order of Proof.</p> <p>That the complainant' in a suit for infringement of a patent did not prove the marking of the articles made under his patent until his rebuttal testimony will not deprive him of the right to an accounting where the fact was undisputed, and the delay not prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 314.* 1</p>

<p>In Equity. Suit by the Adrian Wire Fence Company against the Jackson Fence Company. On demurrer to bill.</p>

<p>In Equity. Suit by the Jackson Skirt & Novelty Company against Louis Rosenbaum and others. On demurrer and plea.</p>

<p>1. Patents (S 328*) — Designs—B-rancii Box for Emcotrio Wires.</p> <p>The Havens design patent. No. 39,707, for a design for a branch box for insulated electric wires, is not void on its face, because the article is not' a, proper subject for a design patent, for anticipation, nor for lack of invention.</p> <p>2. Patents (§ 310*) — Suit von Infringement — Demurrer to Biix.</p> <p>A prior patent, not set out in tbe bill cannot be considered as part of tbe record on demurrer.</p> <p>[Ed. Note. — Por other eases, see Patents, Doc. Dig. § 310.*]</p> <p>3. Patents (§ 290*) — Suit bob Infringement — Parties.</p> <p>In a suit by an exclusive licensee for infringement of a patent, it is not prejudicial error to join tbe patentee as a complainant.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 290.*</p> <p>Persons entitled to sue for infringement, see note to Snead v. Scheble, 99 C. C. A. 583. j</p>

<p>In Equity. Suit by the Commercial Acetylene Company and the Prest-O-Dite Company against Arthur S. Widrig and Perry G. Robinson. On motion for preliminary injunction.</p>

<p>At Law. Action by the Cheatham Electric Switching Device Company against the Transit Development Company, and by the same against the Nassau Electric Railroad Company. On motion ior examination of property.</p>

<p>In Equity. Suit by Edward T. Bdrrowes and others against the Carrom-Archarena Company and others. On demurrers to bill.</p>

<p>Patents (§ 257*) — Infiungembnt—Violation of, Conditions Attached to License.</p> <p>Tlie owner o£ a patent may sell the patented article under restrictions as t'o the price at which it shall be resold, and is entitled to an injunction to restrain a violation of such restrictions by one having full knowledge of them as an infringement of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 257.*]</p>

In Equity. Suit by George T. Bisel Company against Matthew' Bender and others, trading as Matthew Bender & Co., ánd De Witt’(A Moore. On application to continue a temporary injunction until final hearing.

In the matter of James N. Brenner, bankrupt. On review of order of referee, made on petition to require the bankrupt to turn over property to his trustee.

<p>1. Carriers (§ 14*) — Depot Privileges — Discrimination—State Statutes.</p> <p>The Missouri statute against discrimination has no application to a suit by a transfer company to compel a terminal railway and union depot company of a city to grant to it the right to maintain a booth and stand within the depot for the transaction of its business and to solicit the transfer of passengers and baggage, the greater part of which was interstate business.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 14.*</p> <p>Use of carrier’s premises by hack and cab drivers, hotel runners, etc., see note to Donovan v. Pennsylvania Co., 57 C. C. A. 367.]</p> <p>2. Carriers (§ 14*) — Depots—Transfer Business — Discrimination.</p> <p>A union depot company in a city has a right to make an exclusive contract with a concern for the transfer of passengers in that city, and may lawfully refuse to grant others engaged in the same business an opportunity to use the depot and adjacent grounds to solicit patronage on equal terms.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent.'Dig. §§'28-30; Dec. Dig. § 14.*]</p>

<p>Shipping (§ 71*) — Master—Action Against por Negligence.</p> <p>Evidence considered in an action in personam against the master of a tug for the death of libelant’s intestate alleged to have been drowned through the negligent navigation of the tug by respondent and held not to sustain such allegation.</p> <p>"[Ed. Note. — For other eases, see Shipping, Dee. Dig. § 71.*)</p>

<p>1. Admiralty (§ 5*) — What Law Governs — Alien Seaman on Foreign Ship.</p> <p>A German, on being duly enrolled and signing articles as a seaman on a Swedish ship, became for the time being, for all purposes of consideration by the courts of the United States in his relations to the ship, a subject of the Kingdom of Sweden.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 5.*]</p> <p>2. Admiralty (§ 6*) — Vessels in Foreign Port — Law Governing.</p> <p>The merchant vessels of one country visiting the ports of another country for the purposes of trade subject themselves to the laws which govern the port they visit so long as they remain.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 6.*]</p> <p>3. Admiralty (§ 5*) — Jurisdiction—Foreign Vessels.</p> <p>In the absence of treaty stipulations, the court's of admiralty have .civil jurisdiction in all matters appertaining to a foreign ship while in port, and also in certain eases when the court has the vessel in its territorial jurisdiction, although the cause of action arose on the high seas.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 69-85; Dec. Dig. § 5.*]</p> <p>4. .Admiralty (§ 5*) — Jurisdiction—Controversies Between Foreign Vessels and Subjects — Discretion.</p> <p>The exercise of civil jurisdiction by courts of admiralty of the United States, where those concerned are all citizens of the same foreign state and the cause of action arose on or with regard to a ship of such state, is hot imperative but discretionary, and where the controversy involves matters arising beyond the territorial jurisdiction of this country, or relates to differences between master and crew, or the crew and shipowners, the court, on general principles of comity, will not take jurisdiction unless there is special reason for doing so, and will require the consul of such country to be notified, and, although not absolutely bound by, will pay respect t'o, his wishes. But where special circumstances exist, as where the voyage is ended or seamen have been dismissed or treated with great cruelty, the courts, in the absence of treaty stipulations, will entertain jurisdiction, even against the protests of the. consul.</p> <p>[Ed. Note. — For other cases, see Admiralty, Gent. Dig. §§ 69-85; Dec. Dig. § 5.*]</p> <p>5. ADMIRALTY (§ 5*)-JURISDICTION — FOREIGN SHIP» — EFFECT OJT TREATY PROVISIONS.</p> <p>Where treaty stipulations exist with regard to the right of the consul of a foreign country to adjudge controversies arising between the master and crow of ships of such country or other matters occurring on the ship, such stipulations are the law of the land and must he faithfully and fairly observed.</p> <p>[Ed. Note. — For other cases, see Admiralty, flee. Dig. § 5.*]</p> <p>6. Treaties (§ 11*) — Conflict Between Treaty and Statute.</p> <p>Congress has power to regulate matters affecting foreign seamen and foreign vessels, and foreigners generally, when within the ports of this country, by making their entrance subject to such conditions as it may impose, or wholly withdrawing its consent to permit them to enter, and, where it; has passed an act which may conflict; with prior treaty stipulations, it is the duty of the courts to uphold the later statute if clear and explicit, even in contravention of express stipulations in an earlier treaty.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. § 11.*]</p> <p>7. Admiralty (§ 5*) — Discretionary Jurisdiction — Foreion Vessels and Crews.</p> <p>What circumstances will influence a court of admiralty to take jurisT diction of a suit: between a, foreign seaman and a foreign vessel, in the absence of applicable treaty stipulations, over the protest of the consul of the country to which the vessel belongs, is a matter to be determined on the particular facts of each case.</p> <p>[Ed. Note. — For other eases, see Admiralty, Gent. Dig. §§ 69 -85; Dec. Dig. § 5.*]</p> <p>8. Admiralty (§ 5*) — Jurisdiction—Foreign Ships and Orews-Treaties.</p> <p>Where special treaty stipulations exist with a foreign country which on their face exelude the jurisdiction of a court of admiralty over a cause and vest it in a consul of such country, the court is not empowered to proceed and take jurisdiction because there is no such consul within the district nor because of any other special circumstances.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 5.*]</p> <p>9. Admiralty (§ 5*) — Jurisdiction—Foreign Vessels — Treaty Provisions.</p> <p>Rev. St. §§ 4079-1081 (U. S. Comp. St. 1901, pp. 2766, 2767), which provide the mode by which foreign consuls shall exercise the exclusive jurisdiction vested in them by special treaty stipulations in controversies between masters and crews of foreign vessels, do not affect- the force- of the treaty provisions excluding the admiralty courts from jurisdiction in case a consul does not. follow such mode.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 5.*]</p> <p>10. Admiralty (§ 20*) — Jurisdiction—Construction on Treaty- — '“differences” Between Officers and Crew.</p> <p>Under the provisions of the treaty of July 4, 1827, between Sweden and Norway and the United States (8 ,Stat. 352, art. 13), and that of June 1, 1910, between Sweden and the United States, both of which vest in the consular officers of each country exclusive jurisdiction to hear and determine “differences” which may arise between the officers and crews of merchant vessels of such country either at sea or in port without' interference by the local authorities unless In case of breach of the peace, etc., a court of admiralty of the United States is without jurisdiction of a suit by a foreign seaman on a Swedish vessel against sueh vessel based on the alleged negligence of the master by which libelant was injured in an American port and compelled to leave the vessel.</p> <p>[Ed. Not’e. — For other cases, see Admiralty, Dec. Dig. § 20.* For other definitions, see Words and Phrases, vol. 3, p. 2064. Admiralty jurisdiction of suits between foreigners, see note to 37 C. C. A. 193.]</p> <p>11. Admiralty (§ 5*) — Jurisdiction—Foreign Vessels — Rule of Comity.</p> <p>Assuming that such treaties do not exclude the jurisdiction of a court of admiralty absolutely, but that it may assume such jurisdiction in its discretion, it should not do so over the objection of a Swedish consul indorsed by the minister from that country.</p> <p>[Ed. Note. — For other eases, see Admiralty, Dec. Dig. § 5.*]</p>

<p>In Admiralty. Action by Frank Imbrovek against the Hamburg-American Steam Packet Company and others.</p>

In Admiralty. Suit by the State of Maryland, to the use of Mary SzCzesek, widow of Martin Szczesek, individually and as mother and next friend of Joseph, John, Mary, Eva, and Stanislaus, infant children of Martin Szczesek, deceased, against the Hamburg-American Steam Packet Company and others.

<p>1. Bankruptcy (§ 39*) — Voluntary Proceedings — Effect oe Pending In ■ VOLUNTARY PETITION.</p> <p>Whether a court of bankruptcy should proceed under a voluntary petition of a debtor or a pending involuntary petition against him is not a question of jurisdiction or of right in the parties, but one of practice, aiid the adjudication should be made in the proceeding which under all the circumstances appears to he for the best interest of the entire estate. As a general rule, if should be made in the voluntary case, with proper protection to the rights of prior petitioning creditors as quicker, less expensive and less likely to lead to expensive litigation, and the court is not precluded from acting under such rule by the fact that the debtor may have appeared and participated in the involuntary proceeding under such circumstances as might ordinarily create an estoppel if his own interests alone were involved.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 39.*]</p> <p>2. Bankruptcy (§ 51*) — Adjudication—Pendency oi? Voluntary and Involuntary Broceedings.</p> <p>An adjudication on a voluntary petition in bankruptcy will not necessarily render void the appointment of a receiver in prior involuntary proceedings, but all rights under such proceedings, including liability for costs and expenses, may be fully protected by order of the court'.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 51.*]</p>

<p>In Equity. Bill by the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company against William A. Wright. On exceptions to answer.</p>

<p> (Syllabus by the Court.) </p> <p>Insurance (§ 455*) — Risks Insured — Accident Policy.</p> <p>In an action on a policy of accident insurance insuring against "bodily injuries effected directly and independently of all other causes through external, violent and accidental means,” it appeared that the assured, a man of 54 years of age, normal height and weight, raised and lowered himself repeatedly in and from a Morris chair by the use of his hands and arms alone; that such exertions caused his death ¡by dilation of the heart, which, on post mortem examination, proved to be enlarged and the valves hardened. Held that, as the exertions were voluntary and intended, the only element of accident was the result, for which there was no liability under the policy of insurance.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Bee. Big. § 455.*</p> <p>Accident insurance, risks and causes of loss, see notes to National Acc. Soe. v. Bolph, 38 C. C. A. 3; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 126.)</p>

In Equity. Suit by Emma Burton against tlie R. G. Peters Salt & Number Company and another and the Stearns Salt & Lumber Company, intervening petitioner. Application by intervener to compel the receiver for the defendant company to perform a contract made by it with intervener.

<p>1.Evidence (§ 437*) — Parol Evidence — Varying Written Instruments— Illegality.</p> <p>Where thé entire agreement of the parties has been reduced to writing, parol evidence is inadmissible, and the court can only enforce the written stipulations, but parol evidence is admissible to show that' the obligations contemplated by a written contract involve acts forbidden by law, though the writing expressly provides that nothing but the writing shall be considered.</p> <p>[Ed. Note. — For- other eases, see Evidence, Cent. Dig. §§ 2025-2029; Dec. Dig. § 437.*]</p> <p>2. Contracts (§ 140*)' — -Validity—Illegal Contracts.</p> <p>Where the parties to a contract reduced to writing stipulating that nothing but the writing shall be considered, made an illegal contract outside of the writing, the original contract is void, and with it must follow the written agreement, whether regarded as a part of the total engagement's between the parties, or as an independent contract made in performance of the prior oral contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 713-721; Dec. Dig. § 140.*]</p> <p>3. Contracts (§ 138*) — Illegal Contracts — Estoppel.</p> <p>A party to an illegal contract cannot lie estopped from setting up the illegality, and this is especially true where the contract violates a statute designed to relieve the party from some supposed oppression.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]</p> <p>4. Usury (§ 53*) — Usurious Transactions.</p> <p>A lender of $10,000 at 6 per cent, had as a part of the transaction borrowed the funds at 5 per cent. He obtained collateral security for the loan, but the collateral was troublesome. He received as a part» of the transaction an additional $1,200 per year for nominal work of notifying delinquent debtors of the borrower on their claims delivered as collateral. Held, that the transaction was usurious under the statute of New York.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 91, 114-118; Dec. Dig. § 53.*]</p> <p>5. Usury (§ 113*) — Burden of Proof — Evidence.</p> <p>A party relying on the defense of usury has the burden of proving it by a preponderance of the evidence, and the court in determining the sufficiency of the evidence must act cautiously.</p> <p>[Ed. Note. — For other eases,. see Usury, Cent. Dig. §§ 308-323; Dec. Dig. § 113.*]</p> <p>6. CoNSTrnmoNAX Law (§ 70*) — .Tctmcial Powkbs — Encroachment on Leg-islaitjee.</p> <p>Whether the usury law is too drastic, or is economically unwise, is no concern of the court's, which are bound to enforce it as written.</p> <p>I KM. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*]</p>

<p>Aliens (§ 32*) — Guíñese—Deportation Proceedings — Citizenship.</p> <p>Act May 5, 3892, c. G0/§ 3, 27 Stat. 25 (U. S. Comp. St. 1901, p. 1320), provides that- any Chinese person arrested under the provision of the act shall be adjudged unlawfully within the United States unless the person shall establish by .affirmative proof, at’ the hearing, his lawful right to remain within the United States. Held that, where a Chinese person, arrested in deportation proceedings within the United States, and not taken at the border, claimed to be a natural born citizen, the burden of proof thereof was on him, and the United States was not bound to establish the contrary.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. O. A. 538.]</p>

<p>Money Received (§ 4*) — Contract—Privity.</p> <p>Plaintiff’s contract for services provided that he should receive not less than $20 per week, and that when dividends paid by the employer corporation exceeded 5 per cent, plaintiff should then receive as additional compensation not less than $15 for each additional $100 in excess of the sum necessary to pay the 5 per cent, dividend, the balance of each of such $100 to be divided pro rata among the stockholders, and that all wages and additional wages or salary should be charged to the expenses of the company. Meld, that such agreement did not-make the additional wages provided for on dividends exceeding 5 per cent, being declared by the corporation, plaintiff’s property, but simply fixed the amount of wages which he should from time to time receive, and hence, such additional wages not having been paid to plaintiff when dividends in excess of 5 per cent, were declared and paid to the stockholders, plaintiff could not recover a proportionate amount of such additional wages from each stockholder receiving such increased dividends in assumpsit for money received.</p> <p>[Ed. Note. — For other cases, see Money Received, Gent. Dig. §§ 7-13; Dec. Dig. § 4.*]</p>

Proceedings by the United States against the City of Tiffin and others to condemn a portion of a public alley for a post office site. On demurrer to petition.

<p>In Admiralty. Suit for collision by Anders Holtung, master of the steamship Caprivi against the steamship Menominee.</p>

<p>In Equity. Suit by the Thaddeus Davids Company against Cort-landt I. Davids and others, trading as the Davids Manufacturing’ Company. On final hearing.</p>

At Raw. Action by J. P. Acker and others, as administrators of W. F. Acker, deceased, against the Charleston & Western Carolina Railway Company. On appeal from a taxation of costs by the clerk on remand of costs to the state court.

<p>Indians (§ 13*) — Indian- Hands — Additional Allotment — Timbe» Reserve.</p> <p>Where complainant, a Chippewa Indian, having received an allotment in the White Earth reservation, was entitled to an additional allotment under Act April 28, 1904, c. 1786, 33 Stat. 53!), and in 1907 selected and applied for 80 acres oul of a certain township in satisfaction of her claim, the Interior Department had no authority to decline her application on the ground that such section had been reserved as a sawmill reserve to furnish lumber with which to construct hopses for Millo Lac Indians removing to the White Earth reservation,.according to the government's agreement of August 30, 1902, to build houses on lands allotted, to the Mille Lac Indians in order to induce them to remove to such res-, ervation ; there being no statutory authority authorizing the withdrawal of reservation lands, otherwise subject to entry, for that purpose.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dee. Dig. § 13.*]</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Application of Chin Leong for a writ of habeas corpus for Wing You. From an order discharging the latter from the custody of Ellis De Bruler, immigration Commissioner, he appeals.</p>

<p>1. Municipal Corporations (§ 766*) — Torts—Streets—Controlling Electricity.</p> <p>Whore a city conveyed a deadly current of electricity for lighting and power purposes along a public alley, and permitted a telephone company to maintain its poles and wires on the same alloy and close to the light wires and directly above them, the city would be held to have known and anticipated that the telephone wires might break and fall on or near to the light wires, that the telephone company enrployds would he required to examine and inspect its wires to keep them in proper condition, and that others would be on its public streets, and hence, it was the city’s continuing duty through its proper officers to exercise reasonable care commensurate with the dangers incident to the transmitting of such current to prevent injuries to third persons rightfully on the street or alley by the escape of electricity.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1621, 1622; Dec. Dig. § 766.*]</p> <p>2. Municipal Corporations (§ 817*) — Electricity;—Personal Injuries-» Burden op Proof,.</p> <p>Where plaintiff, a telexihone lineman, was injured by an electric current escaping from the city’s electric light wrires through a telephone wire into his body, the burden was on him in order to recover from the city to show that he received the injury by means of a current of electricity, and that the current escaped from the control of defendant city by reason of its neglect.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dee. Dig. § 817.*]</p> <p>S. Municipal Corporations (§ 82 L*) — Escape — Injuries — Negligence — Question por Jury.</p> <p>In an action for injuries to a telephone lineman by the alleged escape of electricity from an electric light wire belonging to defendant city, evidence held to require submission to the jury of the question whether the current by which i>laintif£ was injured was negligently permitted to escape from the city’s wire.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 821.*]</p>

<p>3. Criminal Daw (§ 371*) — Evidence—Other Offenses — Intent.</p> <p>In a prosecution for using the United States mails in furtherance; of a scheme to defraud, evidence of defendant’s connection in various similar transactions in which the mails were used in furtherance of similar fraudulent schemes from December, 1904, nearly to the time of the transactions charged in the indictment, was admissible to show intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.*]</p> <p>2. Criminal Law (§ 822*) — Trial—Instructions.</p> <p>The correctness of a charge cannot be determined from excerpts taken therefrom and considered apart from other instructions bearing on the same subject.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990-1995; Dec. Dig. § 822.*]</p> <p>3. Criminal Law (§ 925%*) — New Trial-Misconduct of Jury.</p> <p>In a prosecution for using the mails in furtherance of a scheme to defraud, misconduct of one of the jurors in procuring from the bailiff a copy of the federal statutes while the jury were deliberating on a verdict was not ground for a new trial, where it did not appear that such misconduct influenced the verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.*]</p>

<p>1, Appeal and Ereob (§ 1207*) — Reversal—Remand—Proceedings in Lower-Court.</p> <p>Where the Kansas Court of Appeals in an action on certain coupons taken from municipal bonds reversed a judgment in favor of the.holder- and remanded the cause to the district court, that court was authorized to render a judgment not inconsistent with that of the Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4696-4699; Dec. Dig. § 1207.*]</p> <p>2. Judgment (§ 636*) — Res Judicata.</p> <p>Where, in an action on certain municipal bond coupons, the Kansas Court of Appeals reversed a judgment for plaintiff, holding that the bonds themselves were void, and that plaintiff was not a bona fide purchaser thereof, and was not therefore entitled to recover interest, and no-writ of error or appeal was taken therefrom, a judgment rendered by the district court in conformity with the judgment of the Court of Appeals was res judicata between the parties and. their privies of every question which was actually involved in and determined by the judgment.</p> <p>[Ed. Note. — For other eases, see Judgment, Dec. Dig. § 630.*]</p> <p>3. Judgment (§ 713*) — “Estoppel by Judgment.”</p> <p>The essence of estoppel by judgment is that some right, question, or fact in dispute between parties has been judicially determined by a court of competent jurisdiction, and, where such judgment is pleaded in bar of a subsequent action, the question for determination is whether such question has been so determined between the same parties and their privies, and not upon what evidence it was determined or the reason therefor.</p> <p>I Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1234-12! 1; Dec. Dig. § 713.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2497; vol. 8, p. 7655.]</p> <p>4. Judgment <$ 7.14*) — Res Judicata — Identity op Issues.</p> <p>Where, in an action on certain interest coupons on municipal bonds, it was finally held that the holder was not a bona fide purchaser for value, and that the bonds wore void, so that no recovery could be bad on the coupons, such judgment was conclusive against the holder’s right to maintain an action on other coupons subsequently maturing.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1242, 1243; Dec. Dig. § 714.*</p> <p>Conclusiveness of judgment as dependent on theory of action or recovery, seo note to Millie Iron Mining Co. v. McKinney, 96 C. C. A. 163.]</p>

<p>Carriers (§ 318*) — Injury to Passenger — Evidence.</p> <p>' In an action for injuries to a passenger, caused by an alleged sudden stop following the derailment of a car, physical facts held, to require a verdict for defendant on the ground that plaintiff could not have been injured in the manner claimed.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307-1314; Dec. Dig. § 318.*]</p>

<p>1. Banks and Banking (§ 170*) — Collection Agents — Misconduct oe Sub-agents — Liability.</p> <p>In the absence of any express or implied contract that a bank to which collections are sent would not be liable for the misconduct of its sub-agents in making the collection, it is responsible for the negligence of those so employed. . <</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 588, 589, 592; Dec. Dig. § 170.*]</p> <p>2. Banks and Banking (§ 170*) — Collection Ageno^-Negligence op Sub-AGENT — OUSTOiM OP BUSINESS.</p> <p>Where defendant hank had been acting as plaintiff’s collection agent for some time, with the understanding that it should not be liable for the misconduct of its subagents, and on receipt of the item in question for collection in accordance with its uniform prior practice acknowledged receiving the check and incorporated in the body of the receipt a statement that in receiving the same it acted only as agent, and assumed no responsibility for the acts, omissions, neglect, or default of agents or subagents at other points, or for items lost in transit, it was not liable for the failure to collect the check, due to the negligence of a subagent.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 588, 589, 592; Dee. Dig. § 170.*]</p>

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of New York in Bankruptcy.</p> <p>In the matter of the Ironclad Manufacturing Company, bankrupt. Petition by J. Fred Pierson to revise order of District Court. On motion for stay.</p>

<p>X. Receivers (§ 210*) — Foreign Receivers — Stockholders’ Liability — Enforcement.</p> <p>Where an assessment against stockholders of a railroad company was levied by an Ohio state court, a receiver appointed by such court was entitled to sue on the assessment and recover the same against stockholders in the courts of New York.</p> <p>LEd. Note. — For other cases, see Receivers, Cent. Dig. §§ 417-420; Dec. Dig. § 210.*]</p> <p>3. Limitation of Actions (§ 58*) — Liability of Stockholders — Assessments — Accrual.</p> <p>Limitations do not begin to run against an assessment against stockholders of a railroad company in insolvency proceedings prior to the entry of a decree levying such assessment</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig, § 327; Dec. Dig. § 58;* Corporations, Cent Dig. §§ 1084-1093.]</p>

In Equity. Suit by the Crown Cork & Seal Company of Baltimore City against tlie Brooklyn Bottle Stopper Company, Emilio Alberti, James Alberti, and John Alberti. Same against the American Cork Specialty Company and Joseph Mundet, otherwise known as “Jose Mundet,” and same against Aaron Johnson. On motions for preliminary injunction.

<p>In Equity. Suit by Michael Berardini against Felice Tocci. On final hearing.</p> <p>Action upon letters patent issued to complainant and numbered 889,094 and 889,095. All the testimony in the case was adduced in open court.</p>

<p>1. Patents (§ 327*) — Suit ros Infringement — Effect of Prior Decision..</p> <p>Where, in an infringement suit, an alleged anticipating patent was in the record and discussed in the briefs in the Circuit Court of Appeals,,' the decision sustaining the patent should be construed as overruling such claim of anticipation, and should be followed in that respect by a Circuit Court of another circuit. , , . ,, ,</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 620-625; Dee. Dig. § 327 :* Courts. Cent. Dig. § 328.</p> <p>Operation and effect of decision in equitable suit for- infringement, see note to Westinghouse' Electric & Mfg. Co. v. Stanley Instrument Co., 68 C. C. A. 54.1.]</p> <p>2. Patents (§ 32S*) — Validity and Infringement — Chain Tire for Automobiles. ' - -</p> <p>The Parsons patent, No. 723,299, for an armor for Rheumatic'tires, hold not anticipated, valid, and infringed. ■ : 1</p>

In Equity. Suit by Phillis A. Hides and husband against the Crawford Coal & Iron Company and others. On motion by complainant for order of publication as to nonresident defendants.

<p>1. Commerce (§ 61*) — Interstate Commerce — Federal Statute Regulating-Shipment on Intoxicating Biquors — Construction.</p> <p>. Section 239 of the Criminal Cade (Act March 4, 1909, c. 321, § 239, 35 'Sta't'. 1136 [U. S. Comp. St. Supp. 1909, p. 1464]), which makes it a criminal offense for “any railroad company, express company or other common .cairier or dny other person, in connection with transportation” of intoxi-eating liquors in interstate commerce, to “collect the purchase price or any párt thereof before on or after delivery from the consignee,” or in any' manner act as the agent of the buyer or seller of any such liquor for the purpose of buying' or selling or completing the sale thereof, applies to a bank to which a draft for the purchase price of a shipment of liquor is sent by the seller in another state, with a bill of lading for such liquor attached, and which collects the draft from the consignee, and delivers the,bill of lading1 to him upon which he obtains the liquor from the carrier. ■</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 61.*]</p> <p>2. Statutes (§ 199*) — Construction—“Person.”</p> <p>The word “person” in federal legislation includes corporations.</p> <p>[Ed. Note.- — For other cases, see Statutes, Cent. Dig. § 277; Dec. Dig. § 199.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol; 8, p. 7752.]</p>

<p>In Equity. Suit by the East Tennessee Telephone Company against the Board of Councilmcn of the City of Erankfort and others. ,Qn plaintiff’s motion for preliminary injunction.</p>

<p>In Equity. Suit by the George H. Eee Company against Edward H. Webster, individually and as manager and director of the Agricultural Ijxperiment Station of the Kansas Agricultural College. On final hearing.</p>

<p>1. Taxation (§ 16*) — -Fowebs of United States — Constitutional Limitations.</p> <p>In the exercise of tlie taxing power by the United States, so long as Congress follows the particular constitutional provisions relating to the levying of taxes, there are no limitations upon its right to discriminate in selecting the subjects of taxation.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 16.*]</p> <p>2. Constitutional Daw (§ 283*) — Tonnage Tax on Use of Foreign-Built Yachts — Due Process.</p> <p>Tariff Act Aug. 5, 1909, c. 6, § 37, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 1057), which imposes an annual tonnage duty “upon the use of every foreign-built yacht, pleasure boat or vessel, not used or intended to be used for trade, now or hereafter owned or chartered for more than six months by any citizen or citizens of the United States,” is within the constitutional powers of Congress. The tax, being an excise, geographically uniform and within the special limitations regulating the exercise of the taxing power, cannot be held invalid as in violation of the due process of law clause of the fifth amendment because it discriminates between owners of foreign and home built yachts.</p> <p>fEd. Note. — For other cases, see Constitutional Law, Dec. Dig. § 283.*]</p> <p>3. Taxation (§ 10*) — Powers of United States — Property Without Territorial Jurisdiction.</p> <p>The rule that the power of a state to impose taxes is limited with respect to tangible personal property to property within its territorial jurisdiction, does not apply in the same degree to federal legislation, since the underlying principle on which such rule is based is that taxes are the consideration for protection afforded, and the federal government', unlike that of a state, has power to afford protection to the persons and property of its citizens although they may be domiciled and the property located in a foreign country.</p> <p>I Ed. Note. — For other cases, see Taxation, Dec. Dig. § 16.*]</p> <p>4. Shipping (§ 7*)- -Tonnage Tax on Use of Foreign-Built Yachts — Construction of Statute.</p> <p>Tariff Act Aug. 5, 1909. c. 6, § 37, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. .1057), which imposes an annual tonnage tax upon the use of every foreign-built yacht or pleasure boat, owned or chartered for more than six months by a citizen or citizens of the United States, in the absence of language dearly expressing a contrary intention, must be presumed to apply only to subjects within the territorial jurisdiction of the United States, and to bring a case within the statute it must be shown that a foreign-built yacht is used, to some extent at least, within the limits of thé United States, and especially where the owner, although a citizen of the United States, is domiciled in a foreign country.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 7.*]</p> <p>5. Shipping (§ 7*) — Tonnage Tax on Use op Foreign-Built Yachts — Construction op Statute.</p> <p>Tariff Act Aug. 5, 1909, c. 6, § 87, 86 Stat. 112 (U. S. Comp. St'. Supp. 1909, p. 1057)', imposes a tonnage tax to be collected annually on the 1st day of September “upon the use of every foreign-built yacht, pleasure boat or vessel, not used or intended to be used for trade, now or hereafter owned or chartered for more than six months, by any citizen or citizens of the United States.” HeM, that the limitation of six months applied only to yachts- chartered, and no particular length of ownership was necessary to subject the owner to the tax; that it was the intention of the act that the tax should be levied on the 1st day of every September after its enactment and the full annual tax was therefore collectible on September 1, -1909, and that the tax was not on the actual use but on the privilege of using, and was collectible although a yacht had been out of commission during the entire preceding year.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 7.*]</p> <p>6. Treaties (§ 11*) — Effect as to Inconsistent Laws — Subsequent Statutes.</p> <p>A treaty with a foreign country cannot be invoked by an individual to defeat liability for a tax imposed by a subsequent act of Congress.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. § 11.*]</p> <p>7. Shipping (§ 7*) — Tonnage Tax on Use op Fobeign-Built Yachts — Method op Enforcement.</p> <p>The tonnage tax imposed on the use of foreign-built yachts by Tariff Act Aug. 5, 1909, c. 6, § 37, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 1058), may be collected by an action in the nature of debt against the yacht owner.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 7.*]</p> <p>8. Statutes (§ 6*) — Constitutionality op Revenue Act — Amendments Proposed in Senate.</p> <p>That a provision of a revenue act originating in the House of Representatives was added as an amendment in the Senate, and afterward concurred in by the House, does not render it invalid as a bill for raising revenue originating in the Senate, in violation of Const art. 1, § 7. .</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>9. Constitutional Law (§ 251*) — “Due Process op Law.”</p> <p>“Due process of law,” guaranteed in both the fifth and fourteenth amendments t’o the Constitution, means the law of the land. The guaranty implies the administration of equal laws according to established rules by competent tribunals having jurisdiction and proceeding upon notice and hearing.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 732; Dec. Dig. § 251.*</p> <p>For other definitions, see Words-and Phrases, vol. 3, pp. 2227-2256; vol. 8, p. 7644.]</p>

<p>1. SmppiNG (§ 7*) — Tonnage Tax on Use of Foreign-Built Yachts — Construction of Statute — “Foreign Built.”</p> <p>A yacht is “foreign built” within the meaning of Tariff Act Aug. 5, 1909, c. 6, § 37, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 1057), imposing a tonnage tax On the use of such yachts owned by citizens of the United States, if it was originally built in a foreign country, so long as it retains its identity, so that if a registered vessel of the United States, it could not be renamed, under Rev. St. § 4179 (IT. S. Comp. St. 1901, p. 2831), without the consent of the Commissioner of Navigation; and short of such complete change of identity no amount expended thereon in this country for alterations, betterments, or even rebuilding, will convert it into a home-built vessel.</p> <p>[Ed. Note. — For other cases, see Shipping, Dee. Dig. § 7.*]</p> <p>2. Shipping (§ 7*) — Tonnage Tax on Use op Foreign-Built Yachts — Proceedings por Collection.</p> <p>The tonnage tax imposed on the use of foreign-built yachts owned by citizens of the United States by Tariff Act Aug. 5, 1909, c. 6, § 37, 36 Stat. 112 (U. S. Comp. St. Supp. 1909. p. 1057), being a tax upon the privilege of use is assessable to and collectible from the personal user, and the provision of the statute that such tax shall be levied and collected “by the collector of customs of the district nearest the residence of the managing owner” requires that where the owner resides in one district the collector of that district shall levy and collect the t'ax, and the attempted action of the collector of another district to that end is unwarranted and ineffective, and will not support an action to recover the tax. [Ed. Note. — For other cases, see Shipping, Dec. Dig. § 7.*]</p> <p>3. Shipping (§ 7*) — Tonnage Tax on Use op Foreign-Built Yachts — Assessment op Tax — Tonnage.</p> <p>Where a foreign-built yacht, whose owner was subject to tonnage tax. under Tariff Act Aug. 5, 1909, e. 6, § 37. 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 3057), had been enlarged so that her tonnage was increased, the collector in assessing the tax was entitled to have her remeasured. [Ed. Note. — For other cases, see Shipping, Dee. Dig. § 7.*]</p> <p>4. Words and Phrases — “Built”—“Rebuilt.”</p> <p>Anything which is “built” is formed “by uniting materials into a regular structure,” and that which is “rebuilt” is constructed “after having been demolished.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, pp. 8S7, 838; vol. 7, pp. 5986, 59S7.]</p>

<p>1. Sales (§ 8*) — Construction—Contract for Delivery op Product op Coal Washery — Right to Terminate.</p> <p>A contract between complainant and defendant coal company, which was operating a washery under leases of a culm dump, required complainant to make advances to pay claims against defendant and improve its works; such advances to be secured by a mortgage on defendant’s interest in the dump and its machinery. It further provided that all coal produced until the culm bank was exhausted should be delivered to complainant on board cars at the washery and be sold by him for the best prices obtainable without further restriction except as to coal of a specified grade, and that on the 20th of each month he should pay to defendant “the aggregate selling price on board cars at the washery of all coal delivered during the preceding month to his customers on sales made by him,” less a commission and a certain sum per ton to be reserved and applied on his advances until the same were repaid. Held, that such contract was not one of agency or factorage under a del credere commission, but was essentially one for the sale by defendant to complainant of its entire product, which gave him a vested interest in the coal and could not be terminated by defendant except upon the strongest grounds, amounting to actual fraud or its equivalent.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 18-19; Dec. Dig. ’8.8.*] _;___</p> <p>2. Salks (§ 96*) — Excuses for Nonperformance-Contract fob Sale of Coal Production.</p> <p>Evidence considered, and hold insufficient to justify a defendant coal company in repudiating and refusing to further perform a contract by which, in consideration of advances made to it by complainant, it agreed to deliver to him all of the output of its washery until the culm bank on which it was working was exhausted, such coal to be sold by complainant and paid Cor to defendant monthly, less a commission, no fraud on complainant's part being charged, and no substantial breach by him shown.</p> <p>[Ed. Note. — For other eases, see Sales, Dec. Dig. § 96.*]</p> <p>3. Specific Performance (§ OS’*) — Contracts Enforceable — Contract for Sale of Coal Production.</p> <p>A contract by which defendant, a coal company engaged in reclaiming coal from the culm bank of a large colliery, in consideration of advances made to it by complainant, agreed to deliver to Mm for sale all of the output of its washery until the bank was exhausted, such deliveries, less a commission deducted, to bo paid for monthly, hold specifically enforceable in equity, where the time required to exhaust the dump and the quantity which would be produced therefrom were wholly contingent and uncertain, and the damages resulting to complainant from its breach were incapable of ascertainment at law except by a multiplicity of successive actions extending over an indefinite time.</p> <p>[Ed.' Noto. — -For other cases, see Specific Performance, Dec. Dig. § 68.</p> <p>Eight to specific performance as affected by adequacy of remedy at law, see note to Marthinson v. King, 82 C. O. A. 368.]</p> <p>4. Equity (§ 53’*) — Jurisdiction—Adequate Remedy at Law — Time for Objection.</p> <p>If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that plaintiff had a plain and adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 173-176; Dec. Dig. § 53.’*]</p>

In the matter of bankruptcy proceedings of Newell J. Hill. On petition of the Town of Bristol, a creditor, to review the decision of the referee allowing, a claim of the estate of the bankrupt's wife for .money alleged .to have been loaned to the bankrupt.

<p>At Law. Action by T. Van Brimmer against the Texas & Pacific ■Railway Company. Motion to remand to state court.</p>

<p>Action by George J. H. Crowe, as trustee in bankruptcy of Pappas & Karahall,. against Frederick J. Baumann. On demurrer to complaint.</p>

<p>Public Lands (§ 120*) — Suits to Cancel Patents — Limitation--Constbtjc-TroN of Statute.</p> <p>Act March 3, 1891. c. 561, § 8, 26 Stat. 1099 (TI. S. Comp. St. 1901, p. 1521). providing that suits by the United States to annul patents to lands thereafter issued shall only he brought within six years after the date of the issuance of such patents, affects not only the remedy, but the rights of parties, by making a patent conclusive as a transfer of title after the expiration of six years, although it may have been voidable, or even void, and its effect cannot be avoided by allegations of fraud in the bill, and that the fraud was concealed until after the lapse of six years.</p> <p>[Ed. Note. — For other cases, see Public Lauds, Dec. Dig. § 120.*]</p>

<p>Shipping (§ 39*) — Ohabticr—1Construction—Insurance.</p> <p>A time charter party for a tug, which provided that the charterer should save the owners harmless from all claims for injuries done by the tug to other vessels, persons, or property through the negligence of the officers or aw, contained a further provision that, “in case of any liability on the part of the charterer to the owners for any damage covered by insurance effected by or for the benefit of said owners, the charterer shall have the benefit of said insurance.” Meld, that such provision did. not impose any obligation on the owners to maintain insurance in force for the benefit of the charterer.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 39.*]</p>

In the matter of the Chambersburg Silk Manufacturing Company, bankrupt. On certificate of referee, concerning payment1 of fees, etc., in preference to lien creditors.

<p>In the matter of application to condemn land in Ulster County, New York, for Ashokan Dam and Reservoir; William Sage, Jr., claimant. On motion to confirm report of commissioners.</p>

John Grant Lyman was indicted for conspiracy to aid, abet, and assist himself to escape from an officer. On petition for a warrant for removal as authorized by Rev. St. § 1014 (U. S. Comp. St. 1901, p. 716).

<p>In Error to the Circuit Court of the United States for the District of Idaho.</p> <p>Condemnation proceedings by the Weiser Valley Land & Water Company against Colonel W. Ryan and another. From a judgment assessing damages, plaintiff brings error.</p>

<p>1. Eminent Domain (§ 274*) — Trespass—Injunction—Estoppel.</p> <p>Under Rev. Codes, Idaho, § 5226, providing that a condemner of land is not entitled to enter and take possession prior to the ascertainment of damages by a jury and the payment of such damages or a deposit with the clerk, unless the damages are assessed by commissioners appointed by the court for that purpose, and such damages when so assessed are paid to the owner, or, if refused by him, deposited with the clerk to abide the result of the action, the fact that a landowner, after stipulating that the condemner might submerge the land to be taken until final judgment in condemnation proceedings on giving bond, did not take any steps to prevent the condemner’s construction of its works until after the latter refused to pay the judgment rendered in condemnation proceedings, did not estop the landowner to then sue to enjoin the maintenance of the improvement.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 274.*]</p> <p>2. Eminent Domain (§ 241*) — Condemnation—Judgment.</p> <p>Under Rev. Codes, Idaho, §§ 5223, 5224, 5225, relating to condemnation proceedings, it is improper to render judgment of condemnation until the award of compensation has been paid; proper judgment being a personal judgment against the condemner for the amount of the award.</p> <p>LEd. Note. — For other eases, see Eminent Domain, Dec. Dig. § 241.*]</p>

Christopher C. Wilson and others were convicted of using the mails to effect a scheme to defraud, and they bring error. Writ of error to review a judgment of the Circuit Court, Southern District of New York, taken by the defendants, Christopher C. Wilson, William W. Tompkins and Francis X. Butler.

Petition to Revise a Decree of the District Court of the United States for the Southern District of Texas. In the matter of bankruptcy proceedings of Vineyard, Walker & Co. On petition to revise a decree of the United States denying the right of J. E. Johnson and others, petitioners, to be paid out of a surplus in the hands of F. O. Norris and others, trustees, interest accruing after adjudication on claims paid in full.

<p>Appeal from the District Court of the United States for the Southern District of Texas.</p> <p>Petition by J. E. Johnson and others against F. O. Norris and others, trustees in bankruptcy of the firm of Vineyard, Walker & Co., for distribution of an alleged surplus in the hands of defendant as trustees for the payment of interest accruing subsequent to adjudication on claims otherwise paid in full. From an order denying such relief, petitioners appeal.</p>

Suit in admiralty for collision by the Western Transportation & Towing Company, as owner of the steamer Annie Comings, against the French barque Europe, Theophile Rollier, master, claimant. Decree for respondent, and libelant appeals..

<p>In Error to the District Court of the United States for the District of South Dakota.</p> <p>Action by the United States against Jennie R. Douglas. Judgment for defendant, and plaintiff brings error.</p>

Suit in equity by the United States against the Minidoka & Southwestern Railroad Company and s the Utah Construction Company. From an order denying in part a motion for a preliminary injunction, complainant appeals.

Suit by Harriet F. Speckart against Leopold F. Schmidt and others for an accounting. Held: and proceeds to allege that Schmidt induced Mrs. Speckart to enter into an arrangement whereby the former was to use the funds of the estate in his business of managing brewing companies, and obtaining control over such companies, and thereby, in the use of said funds in such investments, he has gained large profits, the amount of…

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>Suit by the United Railroads of San Francisco against the City and County of San Francisco and others. Decree for complainant, and defendants appeal.</p> <p>The appeal in this case is taken from an order of the Circuit Court granting a temporary injunction restraining the appellants, pending the suit or until the further order of the court, from building, constructing, or operating a street railroad in San Francisco over and along .“Market street from East street to Geary street, a distance of seven blocks,” and “over and along Point Lobos avenue from Thirty-Third avenue, the point of intersection of Cliff avenue with Point Lobos avenue, a distance of nine blocks.” The bill of complaint filed by the appellee sets forth several franchises granted by the city and county of San Francisco to various street railroad corporations, all of which franchises are alleged to have been assigned to the appellee. It alleges that these franchises were granted upon the condition that no more than two corporations should be granted the right to use any of the streets covered thereby for more than five consecutive blocks. It alleges certain proceedings taken by the appellants with a view to the construction of a municipal railroad beginning at the ferry and extending up Market street to Geary and out Geary to the ocean, with a branch to the City Park. These proceedings are alleged to be the action of the city resulting from the vote on two distinct propositions which had been submitted to the voters of the city; proposition No. 1 covering the Market Street Railway from the ferry to! Geary street, proposition No. 2 covering the street railway from the intersection of Geary and Kearney to the ocean, with its branch to the park. The bill alleges that this railroad is about to be constructed along the said streets which are covered by the complainant’s franchises and its roads. It alleges that, unless the city is restrained, the construction of its road will cause irreparable damage to the appellee, that the value of its property will thereby be depreciated, also the value of its securities and bonds. Othfe’r facts aro sot forth showing the threatened injury to the appellee’s property. There is no diversity of citizenship between the parties to the suit, and the jurisdiction of the Circuit Court was invoked on the ground that a federal question was involved, in that the construction of the road under the ordinances adopted by the city would result in impairing the obligation of the appellee’s contracts, and taking the property of the appellee without duo process of law, in violation of the fifth and fourteenth amendments to the Constitution of the United States; that the franchises granted to the ap-pellee’s predecessors in interest “were so granted and accepted upon the express condition and provision that it should be lawful for the board of supervisors of the city and county of San Francisco to grant to one other corporation than to the grantee, and to no more, the right to use the street or streets named therein for a distance of five blocks and no more, and that said grant was made upon the terms and conditions specified in section 499 of the Civil Code as said section existed in the Civil Code at the date of the passing and the adoption of said order, to wit, in the year JS79, which said section of the Civil Code is in the terms and figures following, to wit: •499. Two corporations may be permitted to use the same streets, each paying an equal portion for the construction of the track; but in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks.’ ” The hill alleges that the road which tlie appellants aro proceeding to construct will, when constructed, cover the same streets with the appellee’s street railway, a distance of seven blocks on Market street and a distance of nine blocks on Point Lobos avenue. It is not alleged that the appellee had a franchise for the exclusive use of any of the streets of San Francisco, or that the appellants were unauthorized to grant franchises to others over, the same streets, or to build a municipal railway in the city of San Francisco. The illegality of the proposed action of the city is alleged to consist in the fact that on Market street the road which the city proposes to build will occupy the same street with the ap-pellee’s road for a distance of two blocks, and on Point Lobos avenue for a distance of four blocks in excess of the distance which was permissible under section 499 of the Civil Code.</p>

<p>1. Public Lauds (§ 120*) — Suit fob Cancellation of Patent — Grounds fob Relief.</p> <p>The United States has the same remedy in a court of equity to set aside or annul a patent for public land on the ground of fraud in procuring its issue that an individual would have in regard to his own deed procured under similar circumstances, and a patent may. be canceled either on the ground that it was obtained by false' and fraudulent statements or evidence, or that it was issued through the inadvertence or mistake of the officers of the Land Office, where both grounds are alleged.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p> <p>2. Public Lands (§ 35*) — Homestead Entries — Necessity oe Residence.</p> <p>Under Rev. St §§ 2289, 2290, 2291 (V. S. Comp. St. 1901, pp. 1388-1390), construed in connection with other cognate provisions of the homestead law, a homestead entryman owning no land, and applying to enter 160 aeres as a homestead, in order to be entitled to a patent, is required to show both actual residence on the land in good faith and cultivation for the required length of time.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 72-77; Dec. Dig. § 35. *</p> <p>Rights acquired by homestead settlements and entries, see note to Mc-Cune v. Essig, 59 C. C. A. 434.]</p> <p>3. Public Lands (§ 120*) — Suit for Cancellation of Patent — Fraud in Homestead Entry.</p> <p>Defendant in making final proof under a homestead entry testified, as did his witnesses, that he established actual residence on the land which he continued for the required five years, and on such proof a patent was issued. It was shown without contradiction that defendant, who was unmarried, never at any time actually resided on the land, but with an uncle some miles distant, going to the land frequently, and once in four or five months taking his bedding and remaining overnight. He built a house on the land, and cleared a small tract, which was cultivated by tenants. Shortly after receiving the patent, he sold the land. Held,. that such evidence did not show a compliance with the law, but that the patent was issued in reliance on the proofs made which were untrue, and that the government was entitled to its cancellation.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dee. Dig. § 120.*]</p>

<p>1. Drains (§ 20*) — Construction of Missouri Statute — Nature of Drainage Districts — Liability on Contracts.</p> <p>Under the Missouri drainage act (Bev. St. 1899. § 8283, as amended by Laws 1905, p. 182), which authorizes the county court of a county, if on petition it shall find in favor of the improvement, to contract for the construction of a drainage ditch and to set apart the lands found to be benefited as a drainage district to be known by a number, such districts are merely political subdivisions of the county and not corporations capable of being sued, and a contract let by the engineer on behalf of the county for drainage work, as provided by the statute, is a special contract of the .county, the work to be paid for by assessment on the lands of the district, and on which the county is alone suable.</p> <p>[Ed. Note. — For other cases, see Drains, Dec. Dig. § 20.*]</p> <p>2. Drains (§ 49*) — Contract eor Construction of Public Drains — Construction.</p> <p>A contract by a county for the construction of a public drainage ditch, made under statutory authority and based on specifications and a plat and profile made by an engineer, presumably contemplates the completion of the work to conform to the specifications, and where by such a contract the contractor was to be paid stated prices per cubic yard for the excavation, different on different sections, and a lump sum additional for the removal of coal, stone, and shale, and was required to remove all trees, stumps, and logs, the contract cannot be construed to exempt him from removing stone found in the line because of a further provision that he should execute the work with a steam dredge, without dressing the sides by hand, nor because, that particular stone was not shown by the profile, which was not required by law to show the character of the material to be removed.</p> <p>[Ed. Note. — For other cases, see Drains, Dec. Dig. § 49.*]</p> <p>3. Drains (§ 49*) — Contracts for Construction — Performance—Modification.</p> <p>Where the contractors under such contract on encountering the stone notified the county court that they did not consider it within their contract, a further agreement that they might proceed without prejudice to their right to insist on such claim or to the right of the county to contest it did not change the rights of the parties under the original contract, nor entitle the contractors, who left the stone in place, to recover the final payment for the work which by the terms of such contract was reserved until the contract should be fully performed.</p> <p>[Ed. Note. — For other cases, see Drains, Dec. Dig. § 49.*]</p> <p>4. Drains (§ 49*) — Performance—Condition Precedent to Recovery on Contract for Drain — Engineer’s Certificate.</p> <p>Where a contract for the construction of a public drain provided that final payment thereon should be made only on the estimates of the en-glneer, to entitle tlie contractor to recover such payment, it must he both alleged and proved either that such estimate was made or that plaintiff had completed the work to entitle it to the same, and that the engineer had arbitrarily or fraudulently refused to make it.</p> <p>[Ed. Note. — For other tuses, see Drains, Dec. Dig. § 49.*]</p>

In Krror to the District Court of the United States for the Northern Division of the Southern District of California. S. C. Lillis was convicted of maintaining an unlawful inclosure of, and hindering free passage upon, public, lands, and he brings error.

Action at law by Hugo Alberto Thomsen and others against the Union Castle Mail Steamship Company, Limited, and others. Judgment for plaintiffs, and defendants bring error. Writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of Jthe defendants in error, who were plaintiffs below, in an action for the recovery of treble damages under the federal anti-trust statute.

Habeas corpus, on petition of Charles Harris Burkman and others, against W. G. Doane, captain Twenty-Fifth United States Infantry, commanding officer at Et. Lawton, Seattle, for the United States government. Judgment discharging Charles Harris Burkman from custody of such officer, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Damages. (§, 79*) — Liquidated Damages — Construction of Contract.</p> <p>Where the amount of damages for the breach of a contract is uncertain and difficult of ascertainment, and an agreement is made which discloses the intention of the parties that a sum certain shall constitute the amount of the liquidated damages for the breach, the agreement, will be enforced.</p> <p>But where the contract fails to disclose such an intention, or leaves the intention of the parties in doubt, and the amount specified is unreasonable, the agreement will not be construed to be a contract for liquidated damages.</p> <p>[Ed. Note. — Eor other cases, see Damages, Dec. Dig. § 79.*]</p> <p>2. Damages (§ 78*) — Liquidated Damages — Oonstbuction of Conteact— Eacts — Conclusion.</p> <p>Parties agreed that the vendor would sell and deliver to the vendee 400,000 cross-ties within an agreed time, that the vendee would pay during the succeeding month 90 per cent, of the value of the ties delivered each month, and that if the vendor failed to deliver the full quantity within the stipulated time the retained 10 per cent, of the contract price of those delivered should be applied in satisfaction of the liquidated damages of the vendee. The vendor delivered 378,392 ties, of the value of $95,606.26, but made default in the delivery of 21,608 ties.</p> <p>Held, the contract was not .that the retained 10 per cent, of the value of the ties delivered should constitute the amount of the liquidated damages of the vendee for the vendor’s failure to deliver all the tics within the time agreed, but the agreement was that this 10 per cent, should be retained to secure, and, as soon ,as these damages were liquidated, should be applied to pay, the vendee’s damages on account of the vendor’s failure to deliver all the ties.</p> <p>[Ed. Note. — Ear other cases, see Damages, Dec. Dig. § 78.*]</p>

In the matter of the Algoua Dumber & Shingle Company, bankrupt. Appeal by Doren Grinstead, trustee, from an order allowing the claim of the Union Savings & Trust Company as a secured debt.

Suit in equity by the Colt’s Patent Firearms Manufacturing Company and John M. Browning against the New York Sporting Goods Company. Decree for defendant, and complainants appeal. This cause comes here upon appeal from a decree dismissing the bill of complaint in an action for infringement of patent.

<p>Patents (§ 628*) — In fiungement — Automatic Fikeakm:.</p> <p>The Browning patent, No, 747,585, for an automatic firearm, construed, and held not infringed by tlic device of the' Searle patent, No. 804,985.</p>

<p>In Error to the Circuit Court of the CJnited States for the District of Massachusetts.</p> <p>Proceeding for contempt by the Couch Patents Company against Samuel Kreplik. From the judgment, defendant brings error.</p>

<p>1. Patents (§ 328*) — Anticipation—Apparatus toe Pasteubizing Beee.</p> <p>The Wagner patent. No. 607,304, for an apparatus for pasteurizing beer, which consists of endless chains having receptacles for conveying bottles of beer through a tank with compartments containing water of different temperatures, is void for anticipation by the apparatus of the Leach British patent, No. 5,065, of November 19, 1881, for curing fish, which employs the same mechanical combination for a similar purpose in an analogous act.</p> <p>2. Patents (§ 61*) — Anticipation—Date of Application fob Patent.</p> <p>An application for a patent for a process cannot be considered, for the purpose of the question of anticipation, a continuation of a prior application for a patent for a machine for carrying out such process, which, although disclosing the process, did not claim it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 77; Dec. Dig. § 61.*]</p> <p>3. Patents (§ 328*) — Anticipation—Process f,ob Pasteubizing Beeb.</p> <p>The Wagner patent, No. 768,550, for a process for pasteurizing beer, is void for anticipation by the Pindstofte German patent, No. 89,691, of December 9, 1896.</p> <p>4. Patents (§ 72*) — Anticipation—Process.</p> <p>It is not necessary, to constitute an anticipation of a process patent, that the two processes should be identical in all particulars; but it is sufficient if in general aspects they are the same, and the difference in minor matters is only such as would suggest itself to a person possessing ordinary skill in the art.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 86-91; Dee. Dig. § 72.*]</p> <p>5. Patents (§ 64*) — Anticipation—Process.</p> <p>A patent for a process may be anticipated by a prior patent for a machine which fully discloses such process.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 64.*]</p>

In Equity. Bill by the Indiana Manufacturing Company against the Nichols & Shepard Company. On demurrer to complaint, on exceptions to answer, and on motion to strike out cross-bill. Demurrer to complaint, and exceptions to answer overruled. The defendant demurs to a bill of complaint which seeks to enforce rights dependent on or connected with a “license and agreement” of June 10. 1902, between complainant, as licensor and the defendant as licensee.

<p>In Equity. Suit by Cornelius Vanderbilt against the American Car & Foundry Company. On final hearing.</p>

On petition of the Atchison, Topeka & Santa Fé Railway Company and others to enjoin enforcement of an order of the Interstate Commerce Commission, the United States & Arlington Heights Fruit Company and others, interveners.

<p>In Admiralty. Suits by the Chelsea Fibre Mills, Robert' Balfour, and others, and Henry P. Winter and others, respectively, against the steamship Good Hope.</p>

<p>In Equity. Bills by F. Ray Comstock and another against Lydia Lopokowa and against Alexander Volonine for preliminary injunction.</p>

<p>In Equity. Suits by the Pennsylvania Steel Company and others against the New York City Railway Company and others; Morton Trust Company against the Metropolitan Street Railway Company and others; Guaranty Trust Company of New York against Metropolitan Street Railway Company and others; and the Morton Trust Company against the Metropolitan Street Railway Company and others. On 'application by receivers of the Metropolitan Street Railway Company to amend a petition and a claim.</p>

<p>In Equity. Suit by Samuel Bernstein against August Danwitz. On ¿notion to punish defendant for contempt.</p>

<p>1. Tbade-Marks aatd Tbade-Names (§ 3*) — Descriptive Terms — “Hole-proof” Hosiery.</p> <p>The word “Holeproof.” as a trade-mark for hosiery, is not invalid as descriptive where it has been used and advertised for such length of time as to have acquired a secondary meaning as designating the product of a particular maker.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. § 3.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & I-Iereth Co. v. Warner, 50 C. C. A. 323.J</p> <p>2. Tradf.-Marks and Trade-Names (§ 59*) — Infringement.</p> <p>The arbitrary name “Knotair,” as applied to a make of hosiery, is not in itself an infringement of the trade-mark “Holeproof,” previously adopted by another manufacturer.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 6S-72; Dee. Dig. § 59.*]</p> <p>3. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition.</p> <p>Complainant made and sold hosiery under the trade-mark “Holeproof" in specially designed and colored boxes, each containing six pairs, and, when sold by the box, with a guarantj' of replacement if holes appeared therein within six months, which was novel and widely advertised. Defendant, which as a dealer had been selling complainant’s product, became agent for a different make sold under the name of “Knotair,” which it had put up in boxes and with a dress closely resembling those of complainant, and advertised and sold with a similar guaranty, and to customers who called for “Holeproof,” although not actually representing it to be such. Held, that such acts evidenced an intention to obtain an advantage from the advertising and popularity of complainant’s goods, and constituted unfair competition, which would 'be enjoined.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. .§ 70.*</p> <p>Unfair competition, see notes to Seheuer v. Muller, 20 O.'C. A. 1G5; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>In Equity. Suits by the Pennsylvania Steel Company and others against the New York City Railway Company and others, by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company and others, and by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others. In the matter of the petitions of the Pennsylvania Steel Company and others,-creditors of the New York City Railway Company. On exceptions to report of special master.</p> <p>Following is the report of the special master:</p> <p>As the answers to all of the other questions propounded by the court depend upon the answer to the question as to the incidence of expenditures made and obligations incurred by the receivers as its officers with respect to the property demised by the lease from the Metropolitan to the City Company during the period from September 24, 1907, to August 1, 1908, or any part of that period, it has been agreed that the liability of two general classes of expenditures shall be decided, viz.: (1) Clearly operating expenses, of which conductors’ wages are a type, and (2) betterments and improvements, of which it is agreed that certain scraper cars and feeders are types. It is admitted that the conductors’ wages were paid for the operation of some of the roads demised which were subject to both the general and refunding mortgages made by the Metropolitan Street Railway Company and included in the two foreclosure decrees, and that the scraper ears and feeders are subject to one or the other of these mortgages and are included in the property to be sold under such decrees.</p> <p>When the court on the 24th day of September, 1907, at the instance of the two plaintiffs, the petitioning contract creditors of the New York City Railway Company acting on behalf of all others, took under its control practically the entire system of street surface railways in the boroughs of Manhattan and the Bronx demised to that company by the Metropolitan Company, it also took over assets of the City Company consisting of $083,-898 in cash; materials and supplies $1,110,792; accounts receivable to the extent of several hundred thousand dollars, certain choses in action since reduced to possession by its receiver amounting to some millions of dollars a large part of which is, however, claimed by Metropolitan receivers, and two miles of railway track in Mt. Vernon which was all the railway track it owned. This last-named asset has since been sold for $500, which with the proceeds of the choses in action is in possession of the receiver of the City Company, but the other assets enumerated are in the possession of tlie receivers of the .Metropolitan Company, not having been turned over by them on August 1, 1908. when the appointment, of the separate receiver of the estate of the City Company as such in place of Messrs. .Toline and Robinson, who had prior to that acted in both capacities, went into effect. These other assets amounting in value to over $2,000,000 constituted a substantial fund for the payment of creditors of the City Company, both <■011 tract creditors, preferred or general, and tort creditors as well, but they have not been surrendered, as the administration of the railroad properties from September 24, 1907. to August 1, 1908, resulted in an operating deficit of over .$1,000,000 which is increased by nearly $2,000,000 for expenditures actually incurred and met from sources other than earnings during the period in question for improvements and betterments, exclusive of several millions in addition for obligations for similar betterments and improvements incurred but not met during such period. If this deficit is to lie borne by the estate of the City Company, and the equivalent in value of its assets above described is not to be accounted for to its receiver by tlie Metropolitan receivers, the fund for the payment of its creditors will .be depleted and tile Metropolitan bondholders whose security has been preserved and improved by the court’s operation will presumptively reap a benefit from the expenditures mentioned for which they have not paid. Tlie object of this proceeding instituted on petitions of committees of the contract and tort creditors of the City Company duly recognized by the court is to obtain just such an accounting, the bondholders of the Metropolitan Company through their trustees resisting it, with tlie receivers of the estates of both companies represented and ready to furnish all information, but remaining neutral as to the particular questions involved.</p> <p>Some account of Ihe history of the relation of the two companies prior to the receivership and of the receivership during tlie period involved, familiar sis it is to court and parries, is necessary to an understanding of tlie contentions involved. In 1902 practically the entire street surface railway system of the borough of Manhattan and the Bronx was operated by the Metropolitan Company, as owner, lessee, or through the control of stock of companies whose independent existence and operation continued. Its outstanding share stock then as now was 852,000,000 on which it had paid dividends for years of 7 per cent. In 1901 and 1902 these dividends, though paid, were not earned, deficits resulting of $31,000 in 1901, and 8210.200 in 1902, which did not include franchise taxes then in dispute, hut paid since the receivership, nor interest on the floating debt, which would have increased these yearly deficits by over $000,000 in each year. On the 14th day of February, 1902, as on the 24th of September, 1907, in addition to its own outstanding bonded debt, there were outstanding against its properties various bonded debts, and in 1902 it owed in addition to all these a floating debt of about $11,000,000.</p> <p>The City Company in 1901 acquired the property of the North Mt. Vernon Railway Company which had been sold in 1898 for about $15,000. It consisted of two or three miles of track in Mt. Vernon, a car barn, and three or four cars, and it constituted the only railway asset of that company above referred to. It. had no direct connection with any of the lines owned, leased, or operated by the Metropolitan Company, although it did then or later connect with those of the Union Railway tlie stock of which the Metropolitan Company controlled. The City Company also had a traffic agreement with the Ft. George & Eleventh Avenue Railroad Company, lmt the road of that company consisted of hut a mile of track on 145th street; in the borough of Manhattan extending eastward from Eleventh avenue to the Harlem river. While some stress is laid on these facts, it is, of course, obvious that these tracks formed no part of any line or route Important to the system, and that they furnished no connection with that system which either the court or its receivers would for a moment at any time have deemed it' necessary to preserve.</p> <p>On February 14, 10012, tlie Metropolitan Company leased its system to the City Company for 999 years in consideration of the latter’s promises to operate, maintain, and keep it in repair, to pay the former’s obligations as they accrued except the principal of its funded debt, and to pay an annual rental of 7 per cent, upon its outstanding share stock of $52,000,000. The items of interest and rentals accruing yearly thus assumed amounted to over $10,000,000 in • addition to the annual rental of $3,640,000. It further agreed to pay $23,000,000 to be used to pay its floating debt, and for the improvement, extension, and equipment of the property, and this it paid prior to May 22, 1907, advancing in addition $2,834,000 for construction work prior to the receivership for which the Metropolitan Company by the terms of the lease was on September 24, 1907, its debtor. Betterments and improvements of the character of the scraper cars and feeders here in dispute were to be paid for by the Metropolitan Company under article 15 of the lease.</p> <p>Operation under the lease by the City Company began in April, 1902, and payment of the fixed charges and rental continued during that portion of the term between that time and the appointment of the receivers, but with a constantly increasing annual deficit, as shown by the reports to the Railway and Public Service Commissions amounting from June 30, 1902, to September .20, .1907, to $11,425,939, which amount does not include more than $3,000,000 for disputed franchise taxes for such period recently paid on adjustments obtained by the receivers. These payments sufficiently account for the insolvency of the lessee company, and show not only that the Metropolitan stockholders received for five years or more dividends that were not earned, but that Metropolitan bondholders received interest for at least a year prior to the receivership amounting to more than $1,265,000 that was not earned.</p> <p>On September 24, 1907, the creditors’ bill was filed and an order entered with the City Company’s assent appointing Messrs. Joline & Robinson temporary receivers of the estate of the lessee company, including the assets owned by it above described and this leasehold interest. The bill contained the usual allegations, among them allegations that the lessee’s only means of meeting its obligations to its lessor were by continued operation as a whole, and that a receiver was needed with power to that end for the preservation of the property and the accommodation of the public, with a prayer for such appointment “to preserve the unity of the system as it has been maintained and operated.” These allegations, however, though the contrary is urged by the bondholders, it is understood bind nobody, not even the parties making them, and furnish no aid in determining which estate shall ultimately bear the deficit in operation. Ames v. Union Pacific R. R. Co. (C. C.) 74 Fed. 335. The order entered also contained provisions for continued operation to the end “that operation of the railroad system of the defendant shall be continued in the same manner as at present and the public duties obligatory upon the defendant be in all respects discharged.”</p> <p>On October 1, 1907, just one week after .the entry of this order, the Metropolitan Company filed its petition stating that it was of vital importance to itself and its creditors that the property be kept intact, alleging its own insolvency caused by that of its lessee, and suggesting as a reason for the court’s prompt interposition that the lease reserved no right of entry for any default until a year after such default and after written demand and notice. It asked to be made a party defendant, and that the receivership be extended to its property, and on the same day tht same men were appointed temporary receivers of that property which was thus made liable for the result of subsequent operation. N. Y. Security & Trust Co. v. St. Louis, Cons. R. R. Co. (G. C.) 102 Fed. 391.</p> <p>In the opinion granting the application, the court said that: “The receivers are now in possession of the earning power of the petitioner, and under the terms of the lease petitioner can avail of no default in payment of the amount stipulated within a year from such default. The property is an intricate combination of various roads, one or more of which might be cut out of the system by failure to pay interest on some underlying mortgage or some rental due the constituent road. It is of vital interest to the petitioner that the property be kept intact. * * * The interests of lessee and lessor are different and in a sense diverse. Nevertheless it poems practicable to adjust all questions in a single receivership. * * * TTieir (the receivers’! sole functions are to hold the property intact, operating it as efficiently for the public service as their resources will permit, to ascertain the liabilities, to marshal the assets, and, eventually, unless in the meantime some entirely solvent concern able to liquidate all obligations and succeeding' to owners’ and lessees’ interests shall appear to take it off their hands, to sell it to the best advantage, and apply the proceeds to the payment of the liabilities. It is thought that the present receivers can do this as holders of the interests of both lessor and lessee. Should future experience seem to indicate that a separate trustee for one; of the parties is required, some way to meet that difficulty will he found.” Penn. Steel Co. v. New York City Ity. Co. (C. C.) 157 Fed. 442.</p> <p>On October 9, 1907. the Morton Trust Company, trustee under the refunding mortgage, to whose rights and obligations under that mortgage the Farmers’ Loan & Trust Company, respondent in this proceeding, 1ms in the meantime succeeded, filed a bill of re-entry, and at its instance the same receivers were appointed of the mortgaged property and its income. This mortgage was made by the Metropolitan Company subsequent, to the lease, to -which it was subject, and it covered that company’s reversionary interest in all of the property demised to the City Company of which that covered by the mortgage to the Guaranty Trust Company made prior to the lease was a part. On this same day, too, an order had been entered making the receiverships of the Metropolitan and City estates permanent, such order having been entered in pursuance of an opinion filed the day previous, in which the court, after referring to its prior memorandum quoted from above, said: ‘‘Having taken its (Metropolitan’s) entire property into possession of tlie court under conditions which left it powerless to recover the same for a year, the receivership left it wholly without means to meet its obligations, and it seems to be clearly the duty of the court which has thus deprived it of its resources to protect it against execution while receivers handle and distribute those resources. Having possession of the res, the court acquires jurisdiction of its owner.” 157 Fed. 415. After referring to rentals due to companies leasing their lines to the Metropolitan and to the interest on various mortgage bonds of such roads which by the lease the City Company had covenanted to pay and directing the payment of the same, it continued: “This will not include the rental to the Third Avenue Company which will fall due the last of this month (October, 1907). A clause in the lease by that road provides that default in the payment of any installment of that rental cannot be availed of for six months. * * * Until further orders the receivers will also, if the other parties to such arrangements consent, carry out the arrangements by which the New York City Railway Company operates certain railroads not under lease, such as the Dry Dock, East Broadway and Battery Railroad and the Union Railway.” Penn. Steel Co. v. New York City Ry. Co. (C. C.) 157 Fed. 446.</p> <p>On November 9, 1907, alleging defaults in payment of interest due under the Third Avenue'mortgage, thd Morton Trust Company filed its bill for foreclosure, and again asked the appointment of receivers in that suit which was made, the same receivers being appointed by an order entered on November 19, 1907. A similar bill alleging similar defaults was again filed by it on June 12, 1908. In obedience to the direction of the court, the receivers paid no dividends, rentals, or.interest on the stock or bonds of the Third Avenue accruing under the lease by it to the Metropolitan and by the Metropolitan to the City Company, and the Central Trust Company, trustee under the mortgage securing its bonds, having filed its bill of foreclosure, an order was entered on January 6, 1908, appointing Frederick W. Whit-ridge, Esq., as receiver of the Third Avenue Railroad Company, and in pursuance of an order entered January 9, 1908, the property of that company comprising as it did two-fifths of the whole Metropolitan system, was transferred at midnight between January 11th and January 12th to its receiver. The system was still further disintegrated on May 1, 1908, by cessation of operation over the tracks of the Fulton Street Company, on June 29, 1908, over those of the 28th and 29th Street road, and later on, on the petition ctf the receivers filed «Tune 17, 190S, over those of the Central Park, North & East River Company known as the “Belt Line.”</p> <p>On February 26, 1908, the Guaranty Trust Company, trustee under the general mortgage of the Metropolitan Company made in 1879, prior to the lease, covering a portion of the property subsequently demised, filed its bill of foreclosure. On March 17, 1908, an order was entered appointing the same receivers of the property thus mortgaged to it. Its hill prayed that the City receivers be directed to account and pay over to the receivers to be appointed in the cause thus begun by it the entire net earnings of the street railways and property in their possession covered by its mortgage not exceeding the rental reserved in the City lease so long as said lease might continue in force.</p> <p>In its answer to the petition of the Morton Trust Company filed June 24, 190S, that possession of the leased property be turned over to the Metropolitan. receivers, and that a separate receiver of the City Company be appointed, the Guaranty Trust Company stated that it had not theretofore applied for a separate receiver of the property involved in its suit, as its mortgage extended to a portion only of the Metropolitan property, and that it did not believe that sufficient advantage would result to it§ bondholders from separate operation to justify a disintegration of th'e system. Up to this time on June 24, 1908, just nine months after the appointment of the receivers at the instance of the City Company, neither mortgagee had asked for a separate receivership, but the result of all these proceedings is summed up by the court’s statement. that “the entire system as a going concern was placed in the hands of the court, on the application of a creditor of the lessee, but with the assent of both companies and the subsequent approval of the representatives under the lessor mortgages.” Id.. 105 Fed. 465. On .Tuly 28, 1908, William W. Ladd, Esq., was appointed separate receiver of the City Company, Messrs. Joline and Robinson retaining possession of the Metropolitan system as receivers of that company’s property which they have been operating since. In the order making this appointment, the court reserved the right to impose a lien upon the properties constituting the Metropolitan system for the unpaid obligations of the receivers prior to August 1, 1908, and directed the Metropolitan receivers to account to receiver Ladd for’all the City Company’s assets, which petitioners now insist they have not done.</p> <p>Certain undisputed facts bearing upon the general equities involved as to the condition of the property taken over by the receivers on September 24, 1907, and as to the character of their expenditures during the period in question, may be noted in concluding this statement of facts. In their report in evidence the receivers stated that at that time the condition of the operating plants with the exception of the power houses had been allowed to deteriorate to so great an extent that a collapse was imminent, and that, “realizing that the interests of the holders of the corporate securities, and the welfare of the public at large demanded the continuance of the operation of the property, as an entirety, they set themselves to the task of rehabilitation.” The condition of the cars on hand was bad and the destruction of over 600 cars necessitated the purchase of 155 pay as you enter' cars, 89 standard closed ears, 22 snow sweepers, and 10 slot scrapers. It was also necessary to install improved sprinkler apparatus and new substation equipment. The electric track installed from 1897 to 1900 was worn to an extent that subjected the rolling stock to great strains and jars, and much rehabilitation of track structure was therefore instituted. The expenditures made for these purposes were under the supervision and direction of the ■court which confined them to such as were necessary. Id., 160 Fed. 223. That they were necessary is fully indicated by the testimony adduced before me. They have undoubtedly preserved the system, and have probably to a considerable extent added to its value, much of the property purchased and installed being now included in that to be sold under foreclosure.</p> <p>It is conceded by the respondents that neither the court nor its receivers at any time prior to the entry of the formal order directing the surrender of the demised property on August 1, 190S, ever adopted the lease. Indeed, the acts of the receivers taken under the direction of the court, at the very in-eoption of the receivership, amounted to an open renunciation of it. They were directed not. to pay the dividend due in Ocotober, 1907, by way of rental on Metropolitan, stock, and, of course, did not. They were directed not to pay dividends on the stock of the Third Avenue Company, due October 13, 1907, and interest on the bonds of that company due January 1, 1908, both of which payments were fixed obligations accruing on the dates named as rental under the lease of that company to the Metropolitan and absolutely assumed by the City Company as a fixed charge payable by way of rent from it, which defaults on January, 1908, resulted in cutting out a most important two-fifths of the entire system committed to their charge. They were instructed to eliminate the Fulton Street Road, the Twenty-ISighth & Twenty-Ninth Street Road, and later on the Belt Line, the last important not only because of its length, but because of the connections it insured. That they had a reasonable time within which to determine whether it would be to the advantage of all interested in the property either as creditor of either company or as lessor or mortgagee to adopt the lease is, of course, established (Quincy Iiy. v. Humphreys, 145 U. S. 82, 105, 12 Sup. Ct. 787, 36 L. ■ Ed. 632; Cl. S. Trust Co. v. Wabash, 150 TI. S. 287, 14 Sup. Ct. 86, 37 L. Ed. 1085; Park v. N. Y., Lake Erie & W. JRy. Co. [O. C.] 57 Fed. 799); nor is it urged that the 10 months that elapsed before there was a formal separation of interests by tile entry of an order appointing a separate receiver of the City estate was so unreasonably long as to constitute an adoption, as, in view of the complexify of the system and the vast financial problems, difficult legal questions and onerous obligations to the traveling public involved, it could not be. There is, however, no approach to unanimity in the positions of the two mortgagee trustees, respondents here, respecting the question as to whether during the period the lease controls as to the obligations of the City Company and as to the right of its estate to reimbursement for expenditures made or obligations incurred while operating. Counsel for the Farmers’ Loan & Trust Company, though in substance conceding that the City estate in the hands of the receivers is not bound by the terms of the lease in the sense that it would be had it been adopted, nevertheless insist that during the 10 months involved it. does control, and. their whole argument is based mainly on that legal proposition. Tims they say that, “as far as all expenditures for current maintenance and operation are concerned, it is clear from the lease that they are to be paid by the lessee or whoever claims under it,” and this includes the conductor wage type of operating expense above referred to; and while conceding as strict logic would seem to require that the lease also controls as to outlays for construction of which the scraper cars and feeders are the stipulated types, and that by article 15 such outlays constitute an ultimate charge against the Metropolitan estate, they avoid the effect of this concession by restricting reimbursement to securities or funds of the Metropolitan which might properly be used Cor that purpose if it shall appear on a complete accounting that there are such, which I take to mean funds or securities in excess of those needed to satisfy the mortgage liens. To the contrary of this, counsel for the Guaranty Trust Company says that “the lease was a contract between the Metropolitan and City' Companies which the receivers of neither company adopted in any such sense as to be bound by it as an executory contract, and that the right of the lessee company’s receivers to reimbursement for any expenditures during- tlae period of their possession must rest either upon contract or upon some' equitable ground; that there is no contract upon which it can rest except the lease; that obligations for reimbursement arising under the lease are the obligations of the Metropolitan Company and not of its receivers; and that, if any equitable ground exists (which he denies), it cannot arise out of the lease.”</p> <p>L1J That a court in possession through its receivers of property demised by a lease is not, prior to its adoption, express or implied, bound by any of its terms, is I think to be now regarded as generally and definitely settled. The principle as laid down by the Supreme Court in the cases arising out of the Wabash receivership, cited supra, has, perhaps, not been always followed out, and there are doubtless expressions in judicial opinions which considered apart from the facts suggesting them lend some support to the contention, of counsel for the .iunior mortgagee. Stick expressions occur in the cases relied on. Olycle v. Richmond & D. lid. Co. (C. C.) 63 Fed. 21; - Johnson v. Lehigh Talley Traction Co. (C. O.) 130 Fed. 932; Central Trust Co. v. Wabash, etc., ltd. (C. C.) 34 Fed. 259; more particularly Farmers’ Loan & Trust Co. v. Northern Pacific E. E. Co. (C. C.) 58 Fed. 237; and Felton v. City of Cincinnati, 95 Fed. 336, 37 G. C. A. 88. Nevertheless all of these were cases where the facts suggest an implied adoption of the lease. The rule as laid down in this circuit in the Erie receivership (supra 57 Fed. 799) and accepted by Judge Lurton speaking for the Circuit Court in N. Y. Penn. & O. E. E. Co. v. N. X. Lake Erie, etc. (C. C.) 58 Fed. 268, is, however, as stated, and that rule has been nowhere applied in any of the cases to facts more closely resembling those here under consideration than in Mercantile Trust Co. v. Farmers’ Loan & Trust Co., 81 Fed. 254, 26 C. C. A. 383, decided by the Circuit Court of Appeals for the Eighth Circuit. That was an appeal from an order denying the receivers of the St., Louis & San Francisco Railroad Company leave to renounce four leases'. The receiver had been appointed in a suit to foreclose a consolidated mortgage made by the lessee company subsequent to the date of the leases to it of four railroads, which leases secured bonds that were issued under first mortgages upon the respective roads made simultaneously with the leases. The San Francisco Company covenanted in each lease to pay taxes, to operate, and to pay certain rent in no event less than the interest on such first mortgage bonds. The receivers appointed in foreclosure of the consolidated mortgage made by the lessee to the appellant Mercantile Trust Company operated the four-leased lines for a year when they petitioned for leave to renounce the leases, and on reference to a master the trustees under’ the first mortgages appeared before him and resisted the application. 1-Ie reported insufficient earnings from leased lines, but that the unity of the property covered by the consolidated mortgage was its chief value, and should be preserved, that the leases should be affirmed, and the defieiences met out of the earnings of the entire system, and this report the court confirmed, adjudging the receivers liable for the rentals, and making them a lien superior to the consolidated mortgage. The appeal taken by the trustee under that mortgage therefore squarely suggested the question here involved, and the court, speaking through Judge Sanborn, said: “Counsel have devoted much time and space to a consideration of the question whether or not the income of the entire property covered by the consolidated mortgage was sufficient to pay its operating expenses and rent reserved under these leases during the receivership. That question is immaterial. If the leases should have been renounced, no part of the deficiency resulting from the operation of the leased lines can be charged against or paid out of the proceeds of the corpus of the trust estate (the property of the lessee covered by the consolidated mortgage), but these deficiencies must all be paid by the railroads which respectively caused them;” and the cases cited in support of this proposition include not only the cases above cited arising out of the Wabash and Erie receiverships and in addition those out of the Union Pacific receivership (Ames v. Union Pac. E. Co. [C. C.] 60 Fed. 966, and Id., 74 Fed. 335), but two of the very cases mainly relied on by counsel here in support of the contrary of the proposition, viz.’ the Central Trust Company v. Wabash and the Northern Pacific Cases, supra. On the other hand, the court said that, if the leases had been properly adopted by the court below, then the rentals reserved became an integral part of the operating expenses of the trust estate in the hands of the receivers, and secured a preference in payment not only out of income, but out of the corpus of the trust, and it held that they had been.</p> <p>This ease is conclusive, not only against the contention that the lease during the period in dispute controls for ‘certain purposes which is urged in behalf of the junior mortgagee, but, if well decided in its application of principles determined by the Supreme Court, it is conclusive, also, as to the contentions urged on behalf of the senior mortgagee which are based not upon the lease — which, as I have stated, it concedes does not control— but upon general equitable principles. These, I think, are two which may be thus summarized: (1) That a court of equity will not displace the lien of a mortgage on property of which it has taken possession at the instance of the owner, or of his iossee or of the creditors, secured or unsecured, of either, for the payment out of such property of expenses incurred in its operation and preservation,'even if such expenses be dictated by strict necessity and the property be of a nature requiring its continued use for public purposes, provided there be any other fund out of which such payment can be made; i"2) that, even if no fund exist, such lien can be displaced only in cases where the liabilities incurred result from strict necessity, and that the exercise of the power is then confined to such expenditures as would come within the operation of the G-month rule had they been made by the mortgagor.</p> <p>It is obvious, not only that neither of these asserted principles find any support in the case above cited, but that they are in violation of it, and I am referred to no case which flatly lays down either doctrine except the case of the N. Y. Security & Trust Oo. v. Louisville, etc., R. R. Oo. (C. 0.) 102 Fed. 397, decided at Circuit, in 1900, which does lay down the first. There receivers were appointed of a consolidated company at the instance of creditors and subsequently of the trustee of its mortgage. The company had resulted from the consolidation of companies owning lines subject to divisional mortgages so called which were subsequently foreclosed; a receiver having been also appointed in these latter suits. The master held that the expense incurred in operating each division during the first receivership should be charged to the division which caused it, but the court held that the expenses of the receivers incurred before a receiver was appointed at the instance of divisional mortgagees should be first paid out of any surplus that might arise from the entire properties after paying the divisional bondholders. Notwithstanding the thorough discussion by counsel of the cases involved, I am unable to reconcile this case, not only with the San Francisco case, but with the decision of the Supreme Court, in Union Trust Co. v. Ill. Midland Railway Co., 117 U. S. 469, 6 Sup. Ct. 809, 29 L. Ed. 963, or with the decisions arising out of the Union Pacific receivership in the Gulf Company and Gunnison Company Cases (O. C.) 60 Fed. 967, and 74 Fed. 335, in which as it seems to me the opposite conclusion was reached.</p> <p>T21 With reference to the second principle asserted by counsel for the senior mortgagee, it is to be noted that, if it be correctly stated and applied, then the power of a court upon which circumstances have imposed the serious obligation of operating railroad properties or other public utilities is, if not nullified, so far curtailed as to make it dangerous for it to attempt to operate at all. It doubtless is the rule marked out in tbe many cases cited by counsel in support of his extension of the doctrine that only those expenditures of a corporation which the creditor would have a right to expect to have met out of current Income as distinguished from those for construction, including not only betterments, but perhaps even more or less necessary repairs involving restorations of permanency can be preferred and are then payable only out of income, unless diversion be shown when they become payable out of the corpus to the displacement of prior liens. These cases are Lackawanna Go. v. Farmers’ Loan & Trust Go., 176 U. S. 298, 20 Sup. Ot. 363. 40 L. Ed. 475; International Trust Co. v. Contracting Go., 95 Fed. 850, 87 O. O. A. 396; Illinois Trust & Savings Bank v. Loud, 105 Fed. 125; 44 C. O. A. 889, 52 L. R. A. 481; Fordyce v. Omaha R. R. Co. (C. C.) 145 Fed. 544; Street v. Maryland Ry. Co. (O. C.) 59 Fed. 25; New England R. R. Co. v. Carnegie Steel Co., 75 Fed. 54, 21 C. C. A. 219; Bound v. S. C. R. R. Coi (C. O.) 51 Fed. 58; Atlantic Trust Co. v. Dana, 128 Fed. 209, 62 C. C. A. 657; Rodgers Ballast Car Co. v. Omaha, 154 Fed. 629, 88 C. O. A. 403, to which may be added the most recent expression of the Supreme Court cited by counsel for the .junior mortgagee on this question in Gregg v. Met. Trust Co., 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717, in which by a divided court an indebtedness for railroad ties contracted prior to the receivership was held not to be entitled to preference, ev,en though the receivers retained and used some of the ties; no diversion of income having been shown. These cases, however, refer only to expenses incurred by the corporation itself, and do not hold that this doctrine controls a court operating, not only for the benefit of all ultimately entitled to the property, but for the convenience of the public as'well, and such is certainly not the rule in the federal courts. Atlantic Trust Co. v. Chapman, 208 U. S. .300, 28 Sup. Ct. 406, 52 L. 1M. 528; Kneeland v. Bass Foundry & Machine Works, 140 U. S. 592, 11 Sup. Ct. 857, 35 L. Ed. 543; Union Trust Co. v. Midland R. R. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963; Miltenberger v. Lo-_ gansport R. R. Co., 106 U. S. 286, 1 Sup. Ct. 140, 27 L. Ed. 117. Indeed, it has been repudiated by the Circuit Court of Appeals in this circuit in these very litigations for on the appeal from the order authorizing receivers- certificates for expenditures for just such betterments and constructive items aseare here involved it affirmed the order, thus opening the way to a possible, if not probable, displacement of the liens of these mortgages, as to which it said: “The justification of displacing liens is the preservation of the property upon which they exist.” Penn. Steel Co. v. N. Y. C. R. Co., 163 Fed. 243, 90 C. C. A. 188. If it were the doctrine, it is easy to see wjiere it would lead. In the Lackawanna Case, supra, the Supreme Court decided that expenditures incurred by the Houston & Texas Railway Company to replace rails the condition of which, as the master found, was such as to make travel unsafe, did not constitute an indebtedness of such a nature as to justify displacement of the mortgage lien. To hold the doctrine urged would therefore mean that the court has not the power to incur expenditures to make travel safe. I think the true view is that purchasers of the securities of a railroad company must be held to have bought with the fact in view that its property is devoted to a public use, that the demands of the public are first to be considered, and that just such expenditures may be preferred, if the occasion arises, as this court, having such principle in mind (157 Fed. 445), decided might be made when it entered its order of October 29, 1907, among others in evidence here, reciting that the expenditures by the receivers then authorized were “necessary to make the road under their charge efficient, to place their equipment in proper condition, and to perfect, the service of said roads.” Those expenditures thus authorized included, among others, such “betterments,” if that be the proper characterization where improvements are suggested by necessity, as are -indicated by the stipulated types of feeders arid cars here in dispute.</p> <p>[3] Moreover, apart from the consideration of the refinements and distinctions drawn from the precedents elaborately presented and discussed in the briefs, it is clear to me that the equities suggested by the facts here present. effectively grouped by their counsel, are wholly with the petitioners. The assertions made in behalf of the senior mortgagee that the principle underlying the petitioner’s claim is that one who expends money upon the property of another, either with or without his consent, is entitled to a paramount lien upon such property for the amount of the expenditure, or that the proposition of law urged by them is that a court of equity, at the request of a stockholder or creditor (including a lessee and the lessee’s creditors), will undertake to experiment with the property of an insolvent corporation at the risk of its bondholders in disregard of all liens — the benefits of the experiment, if any, to accrue to the petitioning creditor, while, if loss results, the burden is to be thrown on the bondholders — altogether misconceive the position taken on behalf of those creditors. That position is that a fund of upwards of $2,000.000 in value of property on which the co.urt by the appointment of its receivers made an equitable levy which would have inured largely to their benefit ought not to be expended to their detriment in the operation of a system of street railroads covered by a lease constituting their debtors’ only other asset, when the partial preservation of the unity of that system, of primal importance to the public, has inured almost wholly to the advantage of these very mortgagees and to theirs not at all. That such position involves the possible displacement of liens and the exercise of a power in the court, challenged it is true, but which for reasons stated, must be held to exist, so to charge property devoted to a public, use, both for operation and improvement, does not deprive it of any of its force, even though it be conceded that such power is to be exercised with proper caution, for the wisdom and propriety of the expenditures actually made is not only not challenged, but substantially admitted. Had tlie eourt, on tlie very day that it entered its order of October I, 1007, extending tlie receivership to the interest of the lessor at the latter's express instance, inserted in that order a provision that the lease he deemed not to be in effect, there can be no doubt that the quick assets of the lessee would have gone to its creditors without challenge, and that the burden of subsequent operation would have fallen where petitioners now contend it should fall. Neither ean there he much doubt that if the facts disclosed by the record as to the financial history of the Metropolitan for two years prior to tlie lease and of its lessee under the lease Cor the years ending in the receivership had been known to the creditors and hail been put before the court at that time, Just that direction, if demanded, would have been inserted in that order. Those facts known at, the time from public reports, though not necessarily to creditors, contract or tort, who were under no obligation to know them, demonstrate clearly 1he utter hopelessness of expecting that any profit would accrue to those creditors from continued operation, for a profit to them meant that many millions in excess of the receipts from operation that tlie experience of the prior years indicated as probable would have to be earned to meet the fixed charges accruing under underlying leases and mortgages, the interest on tlie consolidated mortgages, franchise taxes, and the rental to the lessor company, all of which would have haft to be earned before anything could have been added to the funds available for payment to those creditors. In tlie light of these facts which, if unknown to the mortgagee trustees, they were certainly under more of an obligation to know than were tlie petitioners, operation during the period in dispute can hardly be called an experiment, but, if it could, it was an experiment which they, too, had it in their power to end in the earliest part of that period, and for it they must accept their share of responsibility. No court would then have refused them tlie surrender involved in a separation of receiverships — from any aspect, ns it seems to me, a pure matter of form and not of substance — which neither asked for until .Tune 24, 1008, for this very condition of hopeless insolvency put air end to the period of grace after default provided for in the City and Third Avenue leases which they not only now urge as a reason for their own inaction, but point to without convincing reason as something of which the petitioners were attempting to take advantage. Quincy It. 11. Oo. v. Humphreys, 145 U. S. 82, 12 Sup. (It. 787. ISO I.i. Ed. (122. I therefore think that that should be regarded as having been done that should have been done; that, since no intervening equities prevent, a provision should he regarded as having been contained in the order of September 24, 1907, directing that the Lease he not'adopted; and, that whatever words of description the receivers may have used in their transactions during the period in dispute, or however they may have been spoken of by parties or the court, they should be deemed to have been, just what the court has called them, operating conservators of tlie property in its custody committed to their charge for the benefit of those ultimately entitled and, for tlie purpose of deciding the incidence of the deficit from operation during the whole of the period in question, receivers of the property of the Metropolitan Street Railway Company.</p> <p>1 am aware that for the week elapsing between their first appointment and October 1. 1907. when the lessor company intervened, a doubt has been expressed, though not by petitioners who assert the contrary, as to whether they can he so regarded, hut 1 think that, as matter of law, they not only can, but should be. Tlie court lias said in tlie expression italicized above of its act in appointing receivers on the earlier date that having taken possession of the res. it acquired jurisdiction of its owners, and the Supreme Court in the Illinois Midland Case, 117 IT. S. 460, C Sup. Ct. 809, 29 L. Ed. 902, clearly lays down the doctrine that those ultimately entitled, like the respondents here, as mortgagees, are not entitled in tlie first instance to notice of application for leave to make expenditures in displacement of their lien such as are here involved which may he authorized before they were parties — and in that case were — but that what they can ask is, what is now in this proceeding being accorded to them for expenditures made during the whole period in dispute including its first week, full opportunity to be heard before the incidence of those expenditures has been determined.</p> <p>Contentions are urged on behalf of both the respondents that admissions in answers interposed by the petitioners to amended bills in the foreclosure Suits that Messrs. Joline & Robinson, were operating as the receivers of the New York Railway Company during the disputed period are conclusive against their present contentions. Such admissions are, however, equivalent to nothing more than statements that the lease was then in force — an admission of a conclusion of law, as to which the mortgagees themselves are not in accord, which binds nobody. So it is urged on behalf of the junior mortgagee that the order made by the Circuit Court of Appeal on the appeal from the order authorizing the issue of receivers’ certificates directing an extension of the lien of those certificates to the property and net income of the City Company and the order made by the Circuit Court separating the receiverships and directing the surrender of the property covered by the lease, to which proceedings the petitioners were parties, make the question as to who was operating res adjudicata as to them, and constitute a bar to this proceeding. In the final order made in the latter proceeding, however, the court expressly reserved the right to impose a lien upon the properties constituting the Metropolitan System for the unpaid obligations of the receivers prior to August 1, 1908, and directed Messrs. Joline & Robinson to account to receiver Ladd for all the City Company’s assets, thus leaving the very question here involved open; while, in the former proceeding, the amendment of the order concludes parties including the trustees themselves only as to the extension of the lien to net income, meaning undoubtedly, income, if any, in excess of payments from receipts of üall charges reserved by the lease including dividend rental to Metropolitan stockholders, or, in other words, income from operation under the lease which would mean its adoption. The court did not by that order determine that there had been such adoption or income, nor what net income is, nor to whom, subject to the lien, .it should be paid, and neither the parties nor any one else are concluded as to such questions. Moreover, this question which is based on the order of the Circuit Court of Appeal made in May, 1908, as well as the arguments of respondents, based upon expressions of the petitioners, or of the receivers, or even of, the court, as to the existence of the lease, or character of the operation dui'ing the disputed period have been disposed of by the court itself when, writing in September, 1910, and referring to the opinion handed down on the separation of the receiverships in July, 190S (Penn. Steel Co. v. New -York City R. Co. [C. C.] 165 Fed. 463), and to whether the lease had terminated or not, it said: “But up to that time the question when it terminated or whether it had terminated had not been raised nor argued, and it was not then and has not been since decided.” Id., 182 Fed. 159.</p> <p>Having this in mind as well as the further declarations of the court contained in the same opinion that the better way is “to consider the receivers .(during this disputed period) as acting in a dual capacity, representing both companies, but so far as the public was concerned, using money indifferently from whatever source it came to secure an efficient service and effect a restoration of the property which was in a deplorable condition,” and that “subsequent accounting between the two estates will (would) determine what money should have been thus used and upon which estate lay the burden of keeping up the property as a going concern,” I shall report to the court the following answers to the questions contained in its order:</p> <p>(a) That the lease, dated February 14, 1902, made by the Metropolitan Street Railway Company to Interurban Street Railway Company (now New York City Railway Company) so far as the properties demised by it taken into its possession by. the court through its receivers on September 24, 1907, .are concerned, should be deemed to have been no longer in effect after said last-mentioned date. •</p> <p>(b) That during the period from September 25, 1907, to July 31, 1908, both inclusive, Adrian H. Joline and Douglas Robinson, as officers of the court, were acting in a dual capacity as receivers of Metropolitan Street Railway Company and New York City Railway Company and as conservators of said properties demised by said lease for the benefit of the public and of those ultimately entitled thereto, including the lessor’s mortgagees, and were operating said properties as receivers of the property of Metropolitan Street Railway Company.</p> <p><o) That the expenditures made and' obligations incurred by Adrian II. Jolino and Douglas Robinson as officers of this court, with respect of the property demised by the said lease during the period from September 24, 1907, to August 1, 1908, of which tile expenditures for conductors’ wages for scraper cars, and for new feeders are types, are chargeable against the estate of Metropolitan Street Railway Company.</p> <p>(d) That the receipts of Adrian H. Joline and Douglas Robinson as officers of this court in respect of the property demised by said lease during the period from September 24, 1907, to August 1, 1908, are to ho credited to tlie estate of Metropolitan Street Railway Company except such receipts as constitute a part of the estate of New York City Railway Company sell-ara te and apart from said lease and said property thereby demised.</p> <p>(e) That said lease was at no time adopted by Adrian H. Joline and Douglas Robinson acting as receivers of this court in respect of the property of New York City Railway Company.</p> <p>A proposed report in acordarme herewith may he submitted on behalf of both petitioners on May 5, 1911, Ihe respondents to have five days within which to file with me objections and proposed amendments after service upon them of a copy of the proposed draft report.</p> <p>When the matter of accounting between the two estates, Metropolitan Street Railway and New York City Railway, was about to be taken up, it was apparent that the special master would be confronted with a crucial question, viz., whether the lease continued in force until August 1, 1908, or whether its obligations ceased to be binding on either estate on October 1, 1907. It was decided that such question should be taken up and determined as a separate proposition, the special master to pass upon certain individual payments as “types” so as to make the order to be entered upon his report a final one. See opinion Penn. Steel Company v. New York City Railway Company (C. C.) 182 Fed. 155 (Sept. 21, 1910), and order December 2, 1910. The special master took testimony and filed his report, exceptions to which are now before this court.</p>

<p>In Equity. Suit by the Pennsylvania Steel Company and others against the New York City Railway Company and. others, by the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company and others, and by the Guaranty Trust Company of New York against the Metropolitan Street. Railway Company and others. Memorandum on liling decretal order overruling exceptions to special master's report in “termination of lease" proceeding. See, also, 190 Fed. 009.</p>

In the matter of bankruptcy proceedings of The Leader. On petition to review an order denying the validity of an alleged equitable assignment in favor of the Plunkett-Jarrell-McRea Grocer Company, intervener.

<p>In Equity. Bill by Frederick M. Steele against the United Fruit Company and others. On exceptions to the report of the master.</p>

<p>Action by Clyde R. Painter, trustee in bankruptcy of Henry Del-venthal, against the Township of Napoleon, Henry County, Ohio, and another. On exceptions to master’s findings.</p>

In Admiralty. Suit by the Chesapeake & Ohio Railway Company and others against the steamer Maryland for salvage services.

<p>1. Commerce (§ 25*) — Employer’s Liability Act — Employés on Ferryboat.</p> <p>Employer’s Liability Act April 22, 1908. c. 149. 35 Stat. 05 (U. S. Comp. St. Supp. 1909, p. 1171), as amended by Act April 5, 1910, c. 143, 36 Stat. 291, applies to employés of a railroad company employed on a ferryboat owned and operated by tbe company in interstate commerce in connection with its railroad, superseding state statutes on tbe subject.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 25.*</p> <p>What law governs master’s liability for injuries to servant, see note to Mexican Cent. By. Co. v. Jones, 48 C. C. A. 232.]</p> <p>2. Seamen (§ 29*) — Master’s Liability fob Injury to Servant — Negligence.</p> <p>Evidence considered in a proceeding on a claim for the death of an oiler employed on a steam ferryboat, caused by steam escaping from the main steam pipe which broke off at the joint where it was attached to the steam chest, and held not to show any act of negligence on the part of the owner of the vessel which rendered it liable, but to leave the cause of the breaking of the pipe entirely unexplained and to be conjectured only.</p> <p>[Ed..Note. — For other cases, see Seamen, Dec. Dig. § 29.*]</p> <p>3. Shipping (§ 209*) — Liability op Vessel Owner — Eroceedings p.or Limitation.</p> <p>In order to avail himself of the statute allowing a limitation of liability, a vessel owner must surrender the vessel for sale within a reasonable time after the claim arose, and in as good condition as at that time, and, if he retains and uses it for any considerable time and until it lias from any cause greatly deteriorated in value, lie cannot limit his liability to the amount it brings at the sale, but a claimant on seasonable objection may show the market value of the vessel at the time the claim arose.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 646-662; Dec. Dig. S 209.* 1</p> <p>4. SHIPPING (S 209*) — -I'lM'PI.OYEB’S Ll'ABtMTY ACT — AUMIBAMY .TuBISMCI ION —Proceeding yob DiiiitattoN of Liability.</p> <p>Whether or not Employer’s Inability Act April 22, I90S, c. 140, 35 Stat. 65 (U. S. Comp. St. Supp. 1909. p. 1171), by implication repeals the statutory provisions permitting shipowners to limit llieir liability in so far as they might be used by a railroad company engaged in inters!ate commerce to limit its liability for injuries to employes on its vessels used in sneh commerce, it does not deprive a court of admiralty of 1he general jurisdiction over limitation of liability because such a claim is involved, nor of jurisdiction to hear and determine a claim on its merits therein with the consent of the claimant, or where the proceeding was begun before the passage of the statute and where any objection to jurisdiction on such ground had been waived.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 209.*</p> <p>I,imitation of owner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p>

<p>1. Shipping (§ 121*) — Seaworthiness of Vessel — Implied Waekanty.</p> <p>The acceptance of cargo by the master of a lighter without objection to the quantity jS an implied representation that the vessel is seaworthy for the carriage of such quantity.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 449; Dec. Dig. § 121.*</p> <p>Implied warranty of seaworthiness, see notes to The Carib Prince, 15 C. C. A. 38S; Neilson v. Coal Cement & Supply Co., 60 C. C. A. 179.]</p> <p>■2. Shipping (§ 121*) — Loss op Cargo — Liability of Vessel — 'Unseawoetiiiness.</p> <p>A steam lighter under contract to carry a deck load of 173 tons of copper to be loaded on a steamship, while lying in a sliii at Iloboken that night waiting to unload, and while her crew were absent, listed and dumped a part of her cargo. She could safely carry a deck load of from 150 to 160 tons, and on previous occasions a load of ISO to 190 tons had caused her to spread and leak. The weather was calm, and under the evidence it appeared that the listing was probably caused by the presence of water in the vessel, due either to leakage caused by overloading or to water siphoning from a tank through failure to close a cock. Held that, in the first case, the vessel was not seaworthy for the voyage, and 311 the second she was not properly cared for by bor crew, and in either ease was liable for the loss.</p> <p>[Ed. Xote. — Eor other cases, see Shipping, Cent. Dig. § 450; Dec. Dig. § 421.*]</p> <p>8. Smn'iso ($ 113*1 — Contract of AFFinoiflTmrau'rT — Place of Delivery.</p> <p>A contract! by a lighter to cai*ry a cargo from Chrome, N. J., to Xew York, covered its carriage to the Hoboken clocks.</p> <p>[Ed. Xote. — Eor other cases, see Shipping, Cent. Dig. § 427; Dec. Dig. § ri3.*J</p> <p>4. Shipping (§ 141*) — Charter—Dtamt.tty for Eoss of Cargo.</p> <p>tTncler a charter to carry a cargo which provided that the owner should protide a seaworihy boat, a further provision exempting him from “marine risks” did not relieve him from liability for cargo which was dumped from the deck by the listing of the vessel due to excessive or uncared for leakage.</p> <p>TEd. Xote. — Eor other cases, see Shipping, Cent. Dig. § 497; Dec. Dig. I 3 41.*]</p> <p>5. Shipping (§ 27*) — Sale on Vessel — Riam’s of Purchaser — Disks.</p> <p>Where, at the sale of a vessel in an action at law, announcement was made of a maritime lien claimed against it, the purchaser was charged with notice of, and took subject to, such lien if established as a prior lien.</p> <p>[Ed. Xote. — Eor oilier cases, see Shipping, Cent. Dig. I 90; Dec. Dig. § 27.*]</p>

<p>At Raw. Action by R. J. Darnell, Incorporated, against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. On demurrer to declaration.</p>

<p>1. Commerce (§ 95*) — Excessive Charges bt Interstate Carrier-Action for Damages.</p> <p>The interstate commerce act (Act Feb. 4, 1887, c. 104, §§ 14, 16, 24 Stat. S84 [U. S. Comp. St. 1901. pp. 3t64, 3.1651), as amended by Act June 29, 1906, c. 3591, §§ 3, 5, 34 Stat. 589, 590 (U. S. Comp. St. Supp. 1909, pp. 1157, 1159). provide that the Interstate Commerce Commission shall make a report in writing in respect to its investigation into the reasonableness of rates, and that “in case damages are awarded such report shall include the findings of fact on which the award is made.” They authorize the commission on a determination that a party complainant is entitled to an award of damages against a carrier because of the charge and collection of excessive rates in violation of the act to make an order directing the payment of such damages on or before a day named, and provide that, on a failure to comply with such order, the complainant for whose benefit it is made may file a petition in a Circuit Court “setting forth briefly the causes for which he claims damages and the order o* the commission in the premises”; that “such suit shall proceed in ail respects like other suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated.” Held, that such provisions do not make the order pilma facie evidence in such suit of the liability of the carrier, but only of the facts stated in the order and findings, and that it was tile province of tlie court to determine whether sueh facts sustained the order.</p> <p>[Ed. Note. — For other cases, see Commerce, Dee. Dig. § 95.*]</p> <p>2. Commerce (§ 95*) — Excessive Charges by Interstate Carrier — Recovery ■■ of Damages — Award by Interstate Commerce Commission.</p> <p>An order of the Interstate Commerce Commission awarding damages to a complainant against railroad companies is not sustained by findings that the carriers charged a rate on lumber shipped by the complainant which was excessive and unreasonable to the .extent of the damages awarded, where it is also found that the complainant added the increased freight to the price of the lumber and the same was paid by the consumer, and it is not found that the freight was in fact paid by the complainant, or that it in any way suffered actual damage from the excessive rate.</p> <p>[Ed. Note. — For other eases, see Commerce, Dec. Dig. § 95.*]</p>

<p>1, Corporations (§ 585*) — Powers and Liabilities — Ownership or Control of Other Corporations.</p> <p>Wliile the fact tliat ihe stockholders of two corporations, or the greater part thereof, are the same persons, does not operate to destroy the legal identity of either, nor the fact that one corporation exercises a controlling influence over the other, through stock ownership or the identity of stockholders, operate to make either the agent of the other, or to merge the two into one, yet the legal fiction of distinct corporate existence in such cases will he disregarded, when necessary lo circumvent fraud, or where one corporation is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality or adjunct of the other.</p> <p>[Ed. Note. — Fof other cases, see Corporations, Dec. Dig. § 585.*</p> <p>Acquisition by corporation of stock of another corporation, see noto to Anglo-American Land M. & A. Co. v. Lombard, 68 C. C. A. 120.]</p> <p>2. Corporations (§ 484*) — Assumption op Debts of Another Corporation-Liability.</p> <p>A complaint alleged that defendant corporation owned and controlled another corporation, which was organized solely for the purpose of handling goods made by defendant, and which became indebted to plaintiff: that defendant caused it to transfer its assets, which were in excess of its liabilities, to a third corporation, organized for the same purpose, and also owned and controlled by defendant, for no other consideration than an agreement to pay the debts of the transferring corporation, which It did. with the exception of plaintiff's; that plaintiff did not assent to such transfer, lmt brought suit against his debtor, pending which ihe last corporation became bankrupt; that thereupon defendant executed a bond conditioned for the payment of such sum as plaintiff might be entitled in law to receive out of 1he amount received by the receiver In bankruptcy, on the giving of which bond defendant received the bankrupt’s assets; that plaintiff afterward recovered judgment in his suit. Held, that such complaint stated a cause of action on the bond; plaintiff being entitled, oti the facts alleged, either to a lien on the assets of the bankrupt for the entire amount of his claim, or to share with its other creditors, a matter to be determined on the trial.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 484.*]</p>

In Admiralty. Suit by the Merritt & Chapman Derrick & Wrecking Company as owner of the steam tug, Rescue, against the steam tug Prudence for collision. On the morning of the 12th of January, 1010, about 9:60 o’clock, Ike tugs Rescue and Prudence were in collision in the harbor of Norfolk, some 600 feet out in the stream, about abreast of the Norfolk county ferry slip.

<p>1. Maritime Ltens (§ 27*) — Breach of. Executory Contract.</p> <p>There is no maritime lien for the damages arising from the breach of a contract, although maritime in its nature, which remains wholly exec-utory.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 41-45; Dec. Dig. § 27.*]</p> <p>2. Admiralty (§ 33*)— Jurisdiction — Breach of Contract.</p> <p>A contract for the rendition of stevedoring services is maritime, and, if executed in whole or in part, a court of admiralty may take jurisdiction of claims arising thereunder by a suit in personam or in rem, but, so long as It remains purely executory, ttie admiralty jurisdiction is in personam only.</p> <p>riSd. Note. — For other cases, see Admiralty, Cent. Dig. §§ 164-176; Dec. Dig. § 13.*</p> <p>Admiralty jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 C. (A A. 347; Bontin v. Rudd, 27 C. C. A. 530.1</p>

<p>Removal of Causes (§§ 18, 19*) — Federal Question — Pleading.</p> <p>Where a plaintiff’s pleading states every fact upon which the solution of a substantial question arising under the Constitution or laws of the United States depends, so that the question of the construction of a constitutional or statutory provision may be presented by a demurrer and may be determinative of the case, it is removable as one arising under such Constitution or laws.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 36-53; Dec. Dig. §§ 18, 19.*]</p>

<p>Suit by the Underground Electric Railways Company of London, Limited, against Louis S. Owsley, as executor of the last will and testament of Charles T. Yerkes, deceased, and others.</p>

In Equity. Suit by the Sperry & Hutchinson Company against the City of Tacoma and others. On application for injunction pendente lite to restrain enforcement of a city ordinance exacting exorbitant license fees for using trading stamps.

'At Raw. Action by Alexander D. Ross against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. On motion by defendant for directed verdict. The plaintiff in this case, a switchman, while climbing upon a box car, took hold of a grabiron upon the top of the car, and on his attempting to pull himself up it gave way, and he fell to the ground, sustaining the injury complained of.

<p>Habeas corpus bjr the United States, on relation of Georgios Glavas,. against William Williams, United States Commissioner of Immigration at the Port of New York. Dismissed.</p>

<p>Proceedings by the United States against Morris Meyers, Arthur E. Bernd, Adolph Huber, and the Savings Bank of Danbury to condemn site for post office at Danbury. On report of committee.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Viscount De Valle Da Costa, as administrator of Dclfiuo Rodriguez, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the Circuit Court of the United States for the District of Maine. Suit in equity by the Central Trust Company oí New York against the Bod well Water Power Company and others. Appeals by the Allis-Chalmers Company and Clara E. Mullen and others, executors, mechanic’s lien claimants, from a decree denying them priority.

<p>1. Shipping (§ 102*) — Seaworthiness ov Vessel — Method os Construction.</p> <p>While, in determining whether or not the construction of a vessel rendered her nnseawort hy, it is proper to consider evidence of the usual custom of shipowners and the usual method of construction of ships and tlieir appliances, such evidence is not necessarily conclusive, and should be considered in the light of what would appear to be the pm-dent method of construction, and may be rejected entirely where the construction is obviously defective.</p> <p>[Ed. Note. — Eor other .cases, see Shipping, Cent. Dig. § 484; Dec. Dig. § 132.*]</p> <p>2. Appeal and Error (§ 1010*) — Review—Findings—Seaworthiness op Vessel.</p> <p>A finding that the placing of the filling pipe extending from the engine room to the trimming tank in the forepeak of a steamship upon the floor of the intermediate hold, boxed in, without a valve within or immediately without the tank to shut off the water in the tank from the pipe in case of a break in the pipe to prevent, the flooding of the hold, rendered the vessel unseaworthy as to cargo in such hold, will not be reversed by an appellate court where there was expert testimony that such construction was faulty.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8979-3982; Dec. Dig. § 1030.*]</p> <p>3. Shipping (§ 132*) — Liability op Vessel eor Injury to Cargo — Seaworthiness.</p> <p>The fact of the breakiug of one of the sections of cast-iron pipe extending from the engine room o£ a steamship to a tank in the forepealc along the floor of the hold, allowing water to escape into the hold and injure the cargo therein, in the absence of evidence to the contrary, authorizes an inference that the ship was unsea worthy as to the cargo placed in the hold at the beginning of the voyage, by reason either .of defects in the pipe or the boxing, and the burden rests upon the vessel to overcome such inference.</p> <p>[Ed. Note. — For other cases, see Shipxiing, Cent. Dig. § 484; Dec. Dig. § 132.*]</p> <p>4. Shipping (§ 121*) — Carriage op Goods — Implied Warranty op Seaworth- , INESS.</p> <p>In every contract for the carriage of goods by sea, in the absence of agreement otherwise, there is an absolute implied warranty that the ship is seaworthy at the time of the beginning of her voyage, and reasonably fit to encounter the ordinary perils to be expected, and her liability for loss or injury to cargo from a latent defect in vessel or appliances is not affected by the Harter act (Act Feb. 13, 1893, c. 100, 27 Stat. 445 [U. S. Comp. St. 1901 p. 2948]).</p> <p>[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 321.*</p> <p>Implied warranty of seaworthiness, see notes to The Garib Prince, 16 C. O. A. 8SS; Neilson v. Coal, Cement & Supply Co., 60 C. C. A. 177.)</p>

<p>In Error to the Circuit Court of the United States for the Western District of, Arkansas.</p> <p>Action by J. B. Hicks against the Bolen-Darnall Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant (§ 280*) — Action for Injury to Servant — Negligence — When Question eor .Tuey.</p> <p>While mere proof that a rock fell through one of the floors of the stope of defendant's mine and killed an employé might not be sufficient to establish defendant’s negligence, when if is shown, not that there was a defect, hut that the strength of the lagging composing the floor was insufficient to sustain the rocks which fell, and which had fallen at dil'fer-ent times previously, a prima facie presumption of negligence is raised, which is not overcome by the testimony of witnesses that, the lagging was such as was customarily used in other mines, or that it was reasonably safe, which is a question for the jury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 28(1.*]</p> <p>2. Negligence (§ 5*) — Evidence—Brooe of Custom.</p> <p>Evidence of custom may he admissible on the question of negligence, but cannot establish that what was in fact unnecessarily dangerous was in law reasonably safe, as against persons to whom there was a duty to be careful. *</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 7; Dee. Dig. § 5.*]</p>

' In the matter of the bankruptcy of Susan I/. Ames. Original petitions of Charles S. Gill, as trustee, and of the Farmers’ & Manufacturers’ Bank of Rich Hill, Mo., to review a decision of the referee in bankruptcy.

<p>Collision (§ 100*) — Steam Vessels Meeting in Fog — Mutual Faults.</p> <p>A collision on the Columbia river at night in a fog between the steamer Cascades, passing down from Portland, and the steamer Trorline, passing up, held due to the fault of both vessels; the Cascades being in fault for being out of her course and on the wrong side of the river, in violation of article 25 of the inland navigation rules (Act Juno 7, 1897, c. 4, SO Stat. 101 LU. S. Oomp. St 1901, p. 28831), requiring steam vessels in narrow channels to keep to that side of the fairway which lies on their starboard side, whereas she was heading across the river, and the collision occurred within 250 feet of the Oregon shore, and both vessels being in fault for running at full speed until nearly the time of collision, although each heai'd the fog signals of the oilier, in violation of article 16 of such rules.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 213-215; Dec. Dig. § 100.*</p> <p>Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

Eibel by the United States against One Box of Tobacco, “Foot Prints''; F. M. Bohannon, claimant. Judgment for claimant, and the United States brings error. The claimant. F. lit. Bohannon, is a manufacturer of tobacco in the city of Winston. N. C., and among other brands of tobacco manufactured by him is a brand called “Foot Prints,” one box of which was seized under the libel filed in this case.

Action at law by the Speer Hardware Company against W. A. Lamon and J. W. Wallace, partners as W. A. Lamon & Co. Judgment for plaintiff against such defendants and others as sureties on their supersedeas bond, and defendants bring- error. On motion to dismiss writ of error.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma.</p> <p>Suit in equity by O. A. Simmons, trustee in bankruptcy of the Boswell Mercantile Company, against the Boswell National Bank. Decree for complainant, and defendant appeals.</p>

<p>Money Received (§ 18*) — Action— Sufficiency oe Evidence.</p> <p>An action founded solely on a common count for money had and received held not sustainable on the evidence.</p> <p>[Ed. Note. — For other cases, see Money Received, Dec. Dig. § 18.*]</p>

for the Eastern District of North Carolina, at Raleigh. Suit in equity by the Trust Company of America against the Norfolk Southern Railway Company. The Norfolk Southern Railroad Company, purchaser at foreclosure sale herein, moved for an injunction against J. F. Talbott to restrain a sale of the property on execution from a state court. From an order (183 Fed. 803) overruling stieh' motion, the Railroad Company appeals.

Bill in equity by Arthur Bruce Howe and others against Milton E. Parker and others. From a decree sustaining a demurrer and dismissing the bill, defendants appeal.

<p>1. Patents (§ 328*) — •'Validity and Infringement — Hydraulic Nozzle.</p> <p>The Doble reissue patent, No. 12,460, for an improvement in nozzles for impact water wheels, was not anticipated, covers a true combination, and discloses patentable invention; also held infringed.</p> <p>2. Patents (§ 26*) — Patentable Combinations — Essentials.</p> <p>It is not necessary to constitute a patentable combination that each element in performing its own function shall also modify the function performed by the others, but it is generally sufficient if there be such coaction that a result is produced which is new, and the result is new if it is substantially a better result than that which has been accomplished by other combinations.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube ,Co. v. Aiken, 91 C. O. A. 123.]</p> <p>3. Patents (§ 26*) — Patentable Combinations.</p> <p>That there is novelty in one of the 'elements does not justify a claim to a patentable combination of the elements, unless there is coaetion between them to produce a new result, hut a combination is not unpatentable merely because the result might have been accomplished by other combinations.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>Bill by the Kryptok Company against the Stead Lens Company for infringement of patent. From an order enjoining complainant from bringing other suits for infringement of patents, complainant appeals.</p>

<p>1. Patents (§ 297*) — Suits for Infringement — Effect Given to Prior Adjudications.</p> <p>Where, in an earlier adjudication of a patent, a rule determining infringement or noninfringement upon a given state of facts has been laid down or recognized by the appellate court, a lower court, in subsequently dealing with the patent on a similar or substantially similar state of facts, is as much bound to follow such rule of infringement as to recognize the validity of the patent theretofore upheld by the higher court.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 481-488; Dec. Dig. § 297.*</p> <p>Operation and effect of decision in equitable suit for infringement, see note to Westinghouse Electric & Mfg. Co. v. Stanley I. Co., 68 C. C. A. 541.]</p> <p>2. Patents ■(§ 328*) — Validity and Infringement — Asphaltic Petroleum Products and Process of Making Same.</p> <p>The Byerley patent, No. 524,130, for a process of making asphaltic products from the residuum of petroleum after distillation and for the product itself, held valid and infringed, on a motion for preliminary injunction, following prior adjudications.</p>

<p>In Equity. Suits by Eben-H. Gay and Joseph W. Jackson against Hudson River Electric Power Company, Hudson River Water Power Company, and others; by Trust Company of America, trustee, against Hudson River Water Power Company and others; by Morton Trust Company, now Guaranty Trust Company of New York, as trustee, etc., against Hudson River Electric Company and others; by Knickerbocker Trust Company, as trustee, etc., against Hudson River Electric Power Company and others; by Knickerbocker Trust Company, as trustee, etc., against Hudson River Power Transmission Company and others; by New York Trust Company, formerly New York Security & Trust Company, as trustee, etc., against Saratoga Gas, Electric Light & Power Company and others; by Trust Company of America, as trustee, etc., against Madison County Gas & Electric Company and others; and by Natioual Contracting Company against Hudson River Water Power Company and others. Motion, first, for the consolidation of the six pending foreclosure suits, all ancillary to the main equity suit, and, second, to postpone for the present the proof of the claims of the eight defendant companies as against each other; application by the receivers of said corporations for settlement of their accounts and motion for allowances to themselves and their solicitors, and finally hearing on exceptions to masters’ reports in certain of the foreclosures and on allegations to obtain decree establishing certain alleged equitable liens; and finally application for a decree of sale, etc., in the consolidated foreclosure if the consolidation order is granted.</p>

<p>1. Judges (§ 30*) — Federal District Judge — Powers Under Assignment to Hold Court in Another District.</p> <p>A federal district judge, assigned by order of a circuit judge to bold Circuit and District Courts in a district other than his own, because of the contemplated absence of the district judge of the district to which such assignment is made, is not thereby empowered to make and sign orders in a case pending in such other district when absent therefrom and in his own district, and especially when the resident judge of such other district, who presided at the hearing of the cause, is within his district.</p> <p>[Ed. Note. — For other cases, see Judges, Dec. Dig. § 30.*]</p> <p>2. appeal and Error (§ 470*) — Supersedeas—Authority to Approve Bond.</p> <p>Under the provisions of Rev. St. § 1000 (U. S. Comp. St. 1901, p. 712), that “every judge signing a citation * * * shall take good and sufficient security * * * where the writ is a supersedeas,” etc., where the presiding judge of a Circuit Court of Appeals allowed an appeal from a Circuit Court, signed the citation, and fixed the amount of the security to be given to operate as a supersedeas, the bond to be approved by “this court,” in order to become effective as a supersedeas the bond must be approved by such judge, and neither the judge nor clerk of the court from which the appeal was taken has power to give such approval.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 470.*]</p>

<p>1, Ptmure Lands (§ 93*) — Injunction (§ 197*) — Jurisdiction—-Suit to Restrain Waste.</p> <p>A bill by tbe United States against a railroad company and others, alleging that such company, claiming the right under an act oí Congress, has. through its eodefendants as its agents, unlawfully cut and removed timber from the public lands, that it and its eodefendants are wantonly abusing the license given by such act, and committing waste in taking such timber for private and unauthorized purposes, states a cause of action cognizable in equity for relief by injunction, and the court having assumed jurisdiction may decree full and final relief, including damages.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 93;* Injunction, Cent. Dig. § 417; Dec. Dig. § 197.*]</p> <p>2. Public Lands (§ 88*)- — Grant of Rights to Railroad Company — Con • STRUOTION OF ACT.</p> <p>By Act June 8, 1872, c. 354, 17 Stat 339, as amended by Act March 3, 1877, c. 126, 19 Stat. 405, the Denver & Rio Grande Railway Company was granted right of way over the public lands and the right to take timber and other material for its construction and repair from the public lands adjacent thereto, “provided that said company shall complete its railway as far south as Santa F6 within ten years of the passage of this act and shall complete 50 miles additional south of said point in each year thereafter; and in default thereof the right and privileges herein granted shall be rendered null and void so far as respects the unfinished portion of said road.” The southern terminus of the company’s line as fixed by its articles of incorporation was El Paso, in Mexico, which was intended to he reached by following the valley of the Bio Grande through Santa Fé. The company subsequently entered into a contract with other companies by which it preluded itself from building its line to Santa Fé or down the Bio Grande Valley, but which left it free to build as far south to the westward. Held, that such contract was not an abandonment of its line, and did not affect its rights under the grant.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 88.*]</p> <p>3. Public Lands (§ 85*) — Grant op Bisiits to Railroad Company — Location op Line.</p> <p>The line of railroad constructed by the Denver & Bio Grande Bail-way Company from Antonito, on its main line westward across the divide separating the waters of the Great Colorado from the Bio Grande and extending to Durango, held to be the “San Juan Bailway” authorized by its articles of incorporation, and entitled to the grant of right of way and timber rights conferred on the company by Act June 8, 1872, c. 354, 17 Stat. 339, as amended 'by Act March 3, 1877, c. 126, 19 Stat. 405.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 259; Dec. Dig. § 85.*]</p> <p>4. Public Lands (§ 93*)- — Grants to Bailroads — Bight op Way Through Indian Beservation — “Public Lands” Defined.</p> <p>By Act June 8, 1872, c. 354, 17 Stat. 339, as amended by Act March 3, 1877, c. 126, 19 Stat 405, defendant the Denver & Bio Grande Railway Company was granted right of way over the public lands, and the right to take timber, stone, etc., from such lands adjacent to its several projected lines one of which extended through the then existing Ute Indian reservation, which covered a tract 125 by 200 miles in extent in southwest Colorado, and had been set apart by treaty for the exclusive use of the Indians, but with a reservation of the right by proclamation of the President to appropriate right of way for the construction through the reservation of any railroad authorized by law. Such a proclamation was issued on behalf of the defendant in 1S80, and it thereafter constructed its line through the reservation. Prior’ to such construction Congress had also ratified an agreement with the Indians by which their rights in the reservation were extinguished, except as to allotments in severalty. Held, that the words “public lands,” as used in the grant, must be construed as including lands within the reservation, and that the act gave defendant the right to take the timber and other materials from such lands.</p> <p>[Ed. Note.- — For other eases, see Public Lands, Cent. Dig. § 283; Dec. Dig. § 93*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5793-5795; vol. 8, p. 7772.]</p> <p>5. Public Lands (§ 93*) — Recovery op Damages por Cutting op Timber-Estoppel.</p> <p>The United States is not estopped to recover damages from a railroad company fox timber cut and removed from public lands under a claim of right given by a congressional grant, which was a mere license to the company to use timber from lands adjacent to its line for construction purposes, by the acquiescence of government agents in such taking, if it was, in fact, unauthorized and unlawful.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 93.*]</p> <p>6. Judgment (§ 707*) — Conclusiveness op Adjudication — Nature op Action.</p> <p>A plea of res judicata as estoppel inter omnes must be based oh a judgment in a proceeding purely in rem.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dee. Dig. § 707.*] _■</p> <p>7. Public Lands (§ 93*) — Grant of Timber Rights to Railroad Company - “Adjacent Lands.”</p> <p>tinder ¡i grant to a railroad company of tlie right to cut timber for construction purposes from the public lauds “adjacent” to its lino, lands more than three miles from the line of the right of way, measured at right angles thereto, are not adjacent, while those within that limit art' adjacent.</p> <p>I hid. Note. — For other cases, see Public Lands, Doc. Dig. § 93.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 181-187; vol. 8, pp. 7í)(io, 7Ü66.J</p> <p>8. Public Lands ($ 93*) — Grant of Timber Rights to Railroad Company— “Repair.”</p> <p>Under a grant to a. railroad company of the right to cut timber front adjacent public lands “for the construction and repair” of its road, where neither the grant nor the company’s articles of incorporation specified the kind of road to he built, it was optional with the company to build either a broad or narrow gauge, and, having constructed a narrow-gauge road, it had no authority to take timber to make the same over into a broad gauge, which was reconstruction, and not repair, but it did have the right to take such timber to keep the road in repair after such .change had been made.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 283; Doc. Dig. S 98.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6096 6102; vol. 8, j). 7785.]</p> <p>9. Public Lands (§ 93*) — Grant on Timber Rights to Railroad Company— Construction.</p> <p>Under an act granting to a railroad company generally the right to take timber from adjacent public lands “for the construction and repair of its railway and telegraph lines,” where the articles of incorporation of the company authorized it to construct a number of connecting lines, it had the right to take timber from lands adjacent to one line for use in the construct ion or repair of another.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 283; Dec. Dig. § 93.*]</p> <p>10. Public Lands (§ 93*) — Grant of Timber Rights to Railroad Company-Construction.</p> <p>Under a grant to a railroad company of the right to take timber from public lands adjacent “required for the construction and repair of its railway and telegraph line,” any part of the timber cut which was not suitable for such use, and all waste or side cuts incident to the sawing of the logs, used into tile dimensions required, remains the property of the United States, and the company has no right therein, and, if used by it for other purposes or by its ageuts for their own benefit with its consent or to its profit, the company and such agents are jointly liable therefor.</p> <p>[Ed. Nolo. — For other eases, see Public Lands, Cent. Dig. § 283; Dec. Dig. § 93.*]</p> <p>11. Public Lands (§ 93*) — Grant of Timber Rights to Railroad Company-Waste.</p> <p>Evidence considered, and held insufficient to show that a railroad company in exercising the right granted by Congress to take timber from public lands required for the construction and repair of its road abused the privilege by causing the timber cut to be so manufactured as to leave an undue percentage of merchantable lumber not used for the purposes specified which was sold for the benefit of itself or its agents.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 93.*]-</p>

<p>Specific Performance (§ 88*) — Good Faith of Plaintiff — Intention.</p> <p>A party is not entitled in equity to specific performance of a contract, where he has not only failed to perform the terms and conditions of the, contract on his part, which were essential parts of the consideration, but did not intend to do so when he entered into the contract.</p> <p>[Ed. Note.--For other cases, see Specific Performance, Cent. Dig.-§ 220; Dec. Dig. § 88.*</p> <p>Persons entitled to enforce specific performance, see note to Dawyer v. Post, 47 C. C. A. 490.1</p>

<p>In Equity. Suit by the New Jersey Land & Lumber Company against the Gardener Lacy Lumber Company and others. On exceptions to report of special master.</p>

<p>In Bankruptcy. In the matter of the Williamsburg Knitting Mill. Proceedings to review referee’s order holding invalid a vendor’s lien under an unrecorded conditional sale contract as a lien against the bankrupt’s estate.</p> <p>This proceeding is now before the court upon the application of George H. Holt & Oo. to review the action of Referee John B. Boche, holding the claim of the petitioners, as vendors of a certain sprinkler system furnished to the bankrupt Company, not to constitute a lien' as against the said sprinkler in the hands of the bankrupt’s trustee, because of lack of recordation of the contract of sale prior to the bankruptcy, and also because the sprinkler system is subject to lien by a deed of trust upon the property of the bankrupt, in which the same was installed, to Henley, trustee, to secure a debt to the Peninsula Bank, of Williamsburg, under the after-acquired property clause 'contained in said mortgage.</p> <p>The facts are briefly that under contract dated August 25, 1909, but not signed by the bankrupt until the 14th of October, 1909, George H. Holt & CO. undertook to install in the bankrupt’s mill at Williamsburg a complete automatic sprinkler system, supply pipes, pressure alarm and other valves, a 50,000-gallon tank, and a steel tower for the tank. Holt & Co. were to furnish the labor and materials incident to the work, except as otherwise provided in the specifications, and the bankrupt company was required to “do' all necessary trenching, carpenter work, and mason work, and cartage and handling of material in Williamsburg, Va., also to furnish foundations for the 50,000-gallon tank.” The sprinkler system was duly installed, the bankrupt erected the concrete foundation on which the 50,000-gallon tank tower was erected, and to which it was securely bolted, pipes were laid underground running into the plant (a large brick building) bolted to the beams in the building, and the sprinkler was ready for service in March, 1910. In the contract the following clause reserving title until the full purchase price was paid appears: “It is agreed that the said sprinkler system and equipment shall become, be and remain the property of the party of the first part until the title thereto is acquired by the party of the second part as hereinbefore provided, and that said system and equipment shall, during the period of the agreement herein provided, be, and be considered as personal property and. not a part of the realty.” Although this contract was duly executed, no memorandum thereof was ever recorded in the clerk’s office of the circuit court of the county of James City and city of Williams-burg, as required by section 2462 of the Code of Virginia, which is as follows: “Every sale or contract for the sale of goods and chattels wherein the title thereto or a lien thereon is reserved until the same be paid for in whole or in part, or the transfer of title is made to depend on any condition, and possession be delivered to the vendee, shall, in respect to such reservation and condition, be void as to creditors of and purchasers for value without notice from such vendee until such sale or contract be in writing, signed by both the vendor and vendee, in which the said reservation or condition is expressed, and until and except from the time that a memorandum of said writing, setting forth the date thereof, the amount due theron, when and how payable, and a brief description of said goods or chattels, be docketed in the clerk’s office of the circuit or corporation court of the county or corporation in which said goods or chattels may be.”</p> <p>The- facts as to the- mortgage to Henley, trustee, in favor of the Peninsula Bank are substantially that the same was executed on the 23d day of November, 1909, to secure a loan of $12,000, and duly recorded in the clerk’s office of the circuit court of the county of James City and city of Williams-burg. This conveyance was made’ subsequent to the execution of the contract with Holt & Co., but prior to the completion of the sprinkler system equipment, which was not until March, 1910. The reservation of title in Holt & Co. was not recorded, as aforesaid, and the deed to Henley, trustee, after conveying the lands, buildings, and improvements thereon of said Knitting Mills, contained an after-acquired clause, as follows: “Together with the engines, boilers, fixtures, machinery, and all other appliances and equipments constituting or in any wise whatsoever connected with the Wil-liamsburg Knitting Mill Company plant, in and upon the premises hereby conveyed, or wliicli may Tbe acquired and placed upon the said premises during the continuance of this trust; it being the true intent and purpose of this deed to convey 1o the said trustee the entire plant of the Williamsburg Knitting Mill Company for the purposes hereinafter set forth.”</p>

At-Law. Action by the Michigan-Aluminum Foundry Company agaihát the Aluminum Castings Company and others. ■ On motion by defendant Alujninum Company of America to set aside service. . On, motion by defendant Aluminum Company 'of America, upon special appearance^ to set aside service of process in a suit at law under- section 7,'Act July;2, 1890, c. 647, 26 Stat. 210-(U. S. Comp.

At Law'. Action by the Southern Steel & Iron Company against Hickman, Williams & Co. and others. Defendants pleaded an offset, and paid the balance of the claim. Offset allowed, and judgment against defendants, for costs.

In the matter of bankruptcy of Knight, Yancey & Co. On petition to review a referee’s ruling, allowing in part and disallowing in part the claims of certain German creditors against the bankrupt estate.

<p>Habeas corpus by the United States, on relation of Thomas Buc-cino and Salvatore Buccino, against William Williams, Commissioner of Immigration at the port of New York.</p> <p>This cause comes here upon habeas corpus, sued out by relators, who are Italian aliens, seeking to enter this country, and who are held by the immigration officers for return to the country from which they came. Thomas is 48 years of age. His son Salvatore is 11. The board of special inquiry, three inspectors sitting, held that they were liable to become public charges, and they were ordered deported. Appeal was taken to the Secretary of Commerce and Labor, and decision affirmed. Subsequently, for what reason does not appear, a rehearing was ordered. This was heard by three inspectors other than those who composed the first board. They had the aliens before them, took some testimony, and reached the same conclusion as the first board. Their finding was transmitted to the Secretary with the record and approved by him.</p>

<p>In the matter of the Big Cahaba Coal Company, bankrupt. On review, on petition of the Southern Railway Company, of order of referee.</p>

<p>1. Courts (§ 357*) — Federal CoxniT — Statutes.</p> <p>Where acts of Congress make specific provision for costs, they are controlling ; but, if no provision for certain kinds of costs is made, the federal courts may follow the state statutes, if they do not result in injustice in the particular case.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 357.*]</p> <p>2. Costs (§ 173*) — Attorney’s Fees — Statutes.</p> <p>Rev. St. §§ 823, 824 (TI. S. Comp. St. 1901, p. (¡32), providing specifically that attorneys shall be allowed certain fees, and no others, are exclusive on the subject of attorney's fees, so that, since no provision for attorney’s fees on motions is made, no fee could be allowed on a motion to set aside the service of process.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 688-090; Dec. Dig. § 173.*)</p> <p>3. Costs (§ 173*) — Docket Fee — “Final Hearing.”</p> <p>8ince the hearing on a motion to set aside the service is not a final hearing of the canse, no statutory docket fee can be taxed therefor.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 173.*</p> <p>For other definitions, see AVords and Phrases, vol. 3, pp. 2799-2801.]</p> <p>4. Costs (§ 154*) — Attorney’s Fees — Depositions.</p> <p>Rev. St. § 824 (U. S. Comp. St. 1901, p. 632), providing for an allowance of $2.50 for each deposition taken and admitted in evidence in the cause, relates to a deposition admitted at the trial or final hearing, and hence does not authorize the taxation of such sum for depositions taken and used in resistance of a motion to set aside the service.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 354.*]</p> <p>5. Costs (§ 154*) — Disbursements—Traveling Expenses — Depositions.</p> <p>Traveling and other expenses of an attorney in taking depositions to be used in resistance of a motion to set aside the service cannot be taxed as a part of the costs.</p> <p>[Ed. Note. — For other eases, see Costs, Dec. Dig. § 154.*]</p> <p>6. Costs (§ 153*) — Disbursements—Witness Fees — Depositions.</p> <p>Comp. Laws Mich. 1897. § 11,254, providing that, on motions in actions at law, such allowance may be made as the court shall deem best, refers only to attorney’s fees, and does not authorize an allowance of disbursements for the fees of witnesses and examiners, etc., in- taking depositions to be used on the hearing of a motion to set aside the service of process. . .</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 153.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Jacob Richter. Application by the bankrupt for discharge.</p>

<p>Bankruptcy (§ 72*) — Corporations—Manufacturing—''“Engaged Principally in Manufacturing.”</p> <p>Where a Massachusetts corporation was organized to deal in and manufacture refrigerators, refrigerator cars, and accessories, appliances, etc., but, at the time an involuntary bankruptcy petition was filed against it, it had never manufactured anything, or, begun business, beyond authorizing its directors to make an endeavor to get contracts, it was not subject to adjudication as a corporation “engaged principally in manufacturing,” within Bankr. Act July 1, 189S, c. 541, § 4, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), prior to its amendment by Act Cong, June 25, 1910, e. 412, 36 Stat. 838.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7650.</p> <p>What persons are subject to bankruptcy law, see note to Mattaon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

In Equity. Suit by tile Illinois Central Railroad Company against the International Association of Machinists and others. On motion by complainant for an injunction restraining defendants from trespassing on its property and from interfering with its business as an interstate carrier.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Suit in equity by S. W. Marr against J. Truman Nixon. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>Suit in equity by the G. & C. Merriam Company against Arthur J. Saalfield. Decree for defendant, and complainant appeals.</p>

<p>BaíYkrcpxot (§ 140*) — Property Passing to Trustee — Property Heed Under Conditional Sale Contract.</p> <p>Under Pierce’s Code Wash. § 6547, which provides that a memorandum of all conditional sales of personal property “shall be filed in the auditor's office of the county wherein * * * the vendee resides,” a petitioner which made and installed café fixtures in the place of business of a corporation in Seattle under a contract reserving title until full payment, which contract was filed in the auditor’s office of that county on the day after its execution, was entitled to reclaim the property on the bankruptcy of the corporation, and proof that the purchase price had not been paid, although its petition did not expressly allege that the bankrupt resided in that county, where such fact was shown by the record.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 140.*]</p>

Suit in equity by Frank R. Shinn and others against the Deschutes Irrigation & Power Company, Frederick S. Stanley, Roscoe Howard, and the Merchants’ Savings & Trust Company, formerly the Merchants’ Investment & Trust Company, in which Alexander M. Drake, the Pilot Butte Development Company, and R. S. Howard, Jr., receiver of the Title Guarantee & Trust Company, intervened. Decree for complainants, and Intervener Howard appeals.

Two petitions by the Goodrich Transit Company against the Interstate Commerce Commission, the United States intervening, and two petitions by the White Star Tine against the United States, the Interstate Commerce Commission intervening; the relief sought being injunctions to restrain enforcement of orders made by the Interstate Commerce Commission. On demurrers to petitions and motions to dismiss.

In Bankruptcy. In the matter of bankruptcy proceedings of C. W. Reynolds. On petition to review a referee’s order requiring a bankrupt to turn over to the trustee goods and merchandise, or their alternative value,- and at the same time to show cause why he should not be punished for refusal to obey the order.

<p> (Syllabus by the Court.) </p> <p>1. Attorney and ultent (§ 38*) — Orare® op “Attorney” — “Property Right’ ’ — Disbarment.</p> <p>The office ot attorney at law is not a property right, but is an extraordinary privilege, which one is entitled to have conferred on him upon showing his possession of certain moral and educational qualifications, which he must reasonably retain in order to continue in that relation. Admitted, he thereafter stands as an officer of the court, with a duty thereto superior to every other demand upon him, called upon to use his honest judgment and effort to assist the court to a just determination of the issues affecting his client. His office is primarily indispensable to the administration of justice, and is intimate and peculiar in its relation to and vital to the well-being of the court, lie may not be deprived of his office, except in the exercise of a sound judicial discretion, after a formal hearing, with due notice to him, and upon strict proof of professional unfitness.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 50-61; Dec. Dig. § 38.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 630-632; vol. 8, p. 7586; vol. 6, p. 5729; vol. 8, p. 7770.]</p> <p>2. Attorney and Client (§ 38*) — Duties—Opposition to Re-Eleotton op Judge.</p> <p>One, being an attorney at law, has the undoubted right to oppose a judge for re-election, and may, in support of his opposition, refer to the official acts of such judge. His professional duty requires that he assist in keeping from the bench a person unworthy of that honor. This same duty, in even higher degree, demands, as a correlative, that in executing his opposition he refrain from scandalous and libelous attacks, alleged to be founded on court records, distorted and garbled for such purpose.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 50, 61 ; Dec. Dig. § 38.*]</p> <p>3. Attorney and Client (| 37*) — Disbarment.</p> <p>Disbarment of an attorney at law, when not adjudged for a contempt of court, is had for the primary purpose of protecting the court and public from the official ministrations of one who, because of disclosed moral unfitness, has forfeited a right to the court’s confidence, and lias lost thereby his usefulness as an officer of the court. That it may operate as a punishment of tile delinquent for Ms misconduct is incidental only.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 50-63; Dec. Dig. § 37.*]</p> <p>4. Attorney and Client (§ 38*) — Disbarment-Professional Misconduct.</p> <p>Respondent, haying- an ill will against M„ a judge of the state court in which respondent practiced, and moved hy such ill will to defeat M. for re-election, personally published and circulated, in the district in which M. was then a candidate, certain pamphlets containing scurrilous and libelous statements and comments reflecting upon the conduct of M. as a judge, and impugning the purity and fairness of judicial proceedings conducted by M. supporting said charges by references to court records garbled and distorted by respondent to effect a libelous purpose. In the compilation and publication of these libels respondent employed his professional standing as a member of the local bar. conversant, therefore, with the proceedings in M.’s court, to give the scandalous and unjust statements readier acceptance. Held, these acts of respondent did not constitute contempt of court, but were professional misconduct involving moral turpitude, not because merely he libeled M., nor because M. as the object of his attack was a judge who was a candidate for re-election, but for the special reason that, from the, nature of such libels and in the manner of their publication by him, he involved his professional standing therein.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 50-GO ; Dec. Dig. § 38.*]</p> <p>5. Attorney and Client (§ 38*) — Disbarment—Professional Misconduct.</p> <p>Three promissory notes, of which two were made by M. and H., the other bearing the indorsement of M. and II., were paid by M. and were each held by respondent as attorney for M. upon a written contract for fees, wherein it was provided that respondent was to have two-thirds of the amount of recovery upon these and other claims of M. in respondent’s hands for collection up to the amount of $2,250, and in addition all recoveries over that amount; the right of action in M. as to each of said three notes being for contribution against H. M. was insolvent, and his right of contribution was subject to certain offsets belonging to H.. as respondent well knew. Respondent, having vainly endeavored to obtain M.’s agreement that H. should be sued upon each of said first two notes as if the same had not been paid, but in the name of the original payee, one R., who was then a stranger to each of said notes, thereupon, without the knowledge of M. entered into a written contract with R., whereby R. was to pay respondent a fee .contingent upon recovery in an action on said first notes, and, further, without the knowledge of M., and R. never having been a party to said third note, procured one D., an attorney at law, who was ignorant of the facts, to bring suit in the name of R., upon each of said three notes, against H., and as if neither of said three notes had been paid, and as if R. were the owner thereof, with intent thereby to deceive H. as to the status of each of said three notes, and to delude H. into refraining from making such defenses to either of said three notes as might be available to him, had he been sued in either cause of action upon contribution, in which way only, upon the facts, could he properly be sued. Held, respondent therein was guilty of professional misconduct involving moral turpitude.</p> <p>[Ed. Note. — -For other cases, see Attorney and Client, Cent. Dig. §§ 50-61; Dec. Dig. § 38.*]</p> <p>6. Attorney and Client (§ 41*) — Disbarment—Professional Misconduct.</p> <p>Respondent, having repeatedly attempted to persuade opposing counsel, M. & F., to permit a certain bill of exceptions to be filed in this court to contain matters referring to proceedings on motion for new trial, submitting to said M. & F. a certain “condensed statement of the substance” of affidavits for insertion in said bill as a part thereof, and said 31. & E. refusing to consent to the inclusion of said “condensed statement” in said bill, referred said bill to said M. & E. for approval without said “condensed statement,” and, having procured thereby the approval of said bill by said 31. & If. indorsed thereon, thereafter caused said “condensed statement” to be inserted in said approved bill at an obscure and out of the way place, and thereupon procured said bill, as so added to. and wiihout the consent or knowledge of said M. & K., to be signed and sealed by the trial judge. Held, respondent was thereby guilty of professional misconduct involving moral turpitude.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 53; Dec. Dig. § 41.*]</p> <p>7. Attorney and Client (§ 53*) — '“Malpractice”—Deceiving Client.</p> <p>One G., being unable to speak or understand any language but Polish, and to read or write even his name in any language, employed respondent. as his counsel, upon a contingent fee, to prosecute in this court a claim for personal injury.- Nearly two years after the bringing of such suit, the same not having been tried, G. gained an erroneous impression that respondent’s disbarment in the state court prevented his attention to the case, and thereupon engaged Mrs. S., a professional interpreter for Polish people, to help him settle his claim, and through a reputable attorney, introduced to him by Mrs. S., effected an adjustment for money then paid to him, all transactions relating thereto being in English, and all information thereof being given to G. through the translation of Mrs. R Respondent, learning of the fact, sought and obtained G. to sign by mark a written repudiation to accompany a tender back of the amount of the settlement, the money therefor being furnished by respondent. who upon refusal of the tender prepared and caused G. to verify and sign a reply, which he filed to defendant’s answer pleading the settlement, which reply alleged that the same was procured by fraud and deceit practiced upon G. Preliminary to and in preparation for the drafting of said reply, respondent caused a subpoena to issue in the case for Mrs. S. to appear for her deposition, although she was neither ill nor about to leave the jurisdiction, and examined her as to the transaction of the settlement. The testimony thus had from Mrs. S. showed no condition of fraud or deceit of G., and otherwise was radically at variance with material averments of said reply. Seven months later respondent had the case assigned for trial, whereupon it was adjudged that the averments of the reply were not supported by any evidence.</p> <p>Contemporaneously with his inducement to G. to attempt impeachment of the settlement, respondent prepared and liled with a justice of the peace a suit in attachment against G. upon a claim of one-half the amount of the settlement for respondent’s fees in the case and his expenses, and procured thereby a garnishment of the money. G. was served with process in this suit while in respondent’s office in response to respondent’s invitation to there appear and sign the aforesaid repudiation. The writs were wholly in English and unintelligible to G., who was allowed by respondent to remain in ignorance of their effect and of Ms rights in the action against him brought by his said counsel until after the appearance day, at which time judgment was entered against him in favor of respondent by default. After the termination of the trial in this court wherein this conduct of the respondent was revealed to the court, respondent released G.’s money, securing to himself only reimbursement for expenses incurred by him in the trial and the costs of his personal action against G.</p> <p>Held, that it was unprofessional for respondent to prepare, and to cause an illiterate and grossly ignorant client to verify and file a pleading which the client could but imperfectly understand through the medium of translation, and in support of which respondent could have no reasonable expectation that competent testimony was procurable; that, because of tbe natural resentment inflaming respondent, Ms offense in tbis behalf might be condoned, were it not for other attendant circumstances, and that, after his anger cooled, he imposed this pleading upon the court; that respondent’s suit against G. wMle acting as the latter's counsel, and, having knowledge of G.’s helpless ignorance of the proceedings' and of his reliance upon respondent as respondent’s client, without providing that G. should be duly apprised of his right as defendant to the action, whereby G. became in default, was unethical and unprofessional in high degree; that the conduct of respondent in these matters was “malpractice,” as that term is used in the rule affecting the continuance of attorneys at the bar of this court, of which the court should take cognizance.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Dec. Dig. § 53.* For other definitions, see Words and Phrases, vol. 5, pp. 4313, 4314.]</p> <p>8. Attorney and Client (§ 43*) — Disbarment—Evidence.</p> <p>The right to take depositions is not general, but is limited to emergencies and occasions pointed out by statutes and judicial decisions. It is such an otherwise uncontrollable appropriation of power peculiar to courts, conferring for the time being upon an attorney of record, on his own initiative, a function of the court, namely, to compel attendance of witnesses, that to exceed the plain limits of its exercise is to abuse the right, to be reprehended as professional misconduct, when aggravated by persistence and scienter. Respondent in the cause at bar, after repeated advice from the court that the issues to which they were afterward addressed would not be allowed presentation in this ease, and .after urgent admonition that he should not ask the court to consider such questions for any purpose, took three depositions in three distant cities, upon notice .under the title of the case, ¡by Mm personally written and given, to produce, and thereby did produce, testimony not responding in any degree to»any issue in this case, but which was in fact wholly impertinent and immaterial, and substantially scandalous and unfit either for the court’s consideration or to be placed in the record. Held, that the use of the court’s name and process to bring into the record such matters, having regard to the scienter and purpose^ which are clearly imputable to respondent, was professional misconduct, which the .court should consider for the illumination it affords in determining the reflection upon respondent’s professional character cast'by the acts upon which formal charges are based herein.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 59, 60; Dec. Dig. § 43.*]</p> <p>9. Attorney and Client (§ 60*) — Professional Misconduct — Findings of . State Court — Consideration by Federal Court.</p> <p>Disbarment by a court of the state over which a federal court has jurisdiction does not ipso facto deprive the subject of his right to appear in the federal court, even upon the authentication of the fact upon the records of the latter court. Federal courts enjoy the right to determine for themselves the qualifications of members of their bars; but judgment of disbarment rendered by a state court in a proceeding over which it had jurisdiction, and in which the rights of the accused attorney! have been duly safeguarded, and containing a finding of facts upon which judgment is rendered, may be accepted by the federal court as a prima i’acie establishment of facts upon which this court may determine the existence or otherwise of professional misconduct.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. 5 83; Dec. Dig. § 60.*]</p> <p>10. Attorney and Client (§ 58*) — Disbarment—Sentence.</p> <p>In determining the corrective to ¡be applied for professional misconduct, the court should attempt a judgment commensurate with the'character of respondent as suggested by the several instances in their ággre-gate effect. Accordingly, it is held, that the offenses charged and established by the evidence against respondent, being matters engaging his attention at various times and upon different subjects, whereby variant phases of disregard for professional obligations are exhibited, demand nothing less of the court than an order of permanent disbarment, which is therefore entered.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 76-78; Dec. Dig. § 58.*]</p>

<p>Exchange of Pkopekty (§ 3*) — ■FRAUDctmnt Hepbesentations — Lands.</p> <p>A statement in letters written by defendant’s agent to complainant's agent, in negotiations for an exchange of lands, that defendant’s land consisted of an orange grove of 12% acres, containing 750 trees, giving the varieties, did not constitute a fraudulent representation, which entitles complainant to rescind, because the trees did not cover tlie entire tract, bnt. something' over 10 acres only, where the number of trees was truthfully stated, and they were planted the usual distance apart.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Dee. Dig. § 3.*]</p>

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

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

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

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

<p>In Error to the District Court of the United States far the Western District of Texas.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from an order granting the bankrupt’s discharge.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas.</p>

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

<p>In Error to the District Court of the United States for the Northern District of Alabama. Z. T. Rudulph and Ray Rushton, for plaintiff in error.</p>

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

<p>In Error to the Circuit Court of the United States for the District of South Carolina, at Charleston.</p>

<p>Petition to Superintend and Revise Order of the District Court for the Northern District of Texas.</p>

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

<p>Appeal from the District Court of the United States for the Western District of Texas.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas.</p>

<p>Appeal from the District Court of the United States for the. Western District of Texas.</p>

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

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

<p>Appeal from the Circuit Court of thq United States for the Southern District of New York. This cause comes here upon appeal from an order granting a preliminary injunction.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Appeal from a decree awarding $12,500 to the libelant for salvage services rendered to the steamship Ravn. The libel-ant appeals, claiming the award to be inadequate.</p>

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

<p>Appeal from the Circuit Court of the United 'States for the Northern District of Texas.</p>

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

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

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

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

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

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

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

<p>Suit by the Lehigh Valley Railroad Company against the United States; Interstate Commerce Commission and Henry E. Meeker, intervening. On motion for preliminary injunction.</p>