Volume 192 — Federal Reporter

Criminal prosecution by the United .States against John S. Steers and others. Judgment of conviction, and defendants bring error. In November, 3907, W. T. Osborne, living upon a farm near Dry Ridg'\ Ky„ and Ms two tenants, Stowers and Bryant, had in their possession about four hogsheads of tobacco, being their entire crop for the season of 3900. They delivered these four hogsheads to Ramsey, the railroad station agent, at Dry Ridge, and directed shipment to Cincinnati, Ohio.

<p>In Error to the Circuit Court of the United States for the Middle District of Pennsylvania.</p> <p>Action at , law by T. E. Spencer against the County of Pike, State of Pennsylvania. Judgment (183 Fed. 894) for plaintiff, and defendant brings error." Reversed.</p>

' In the matter of Samuel Novick, bankrupt. On appeal by bankrupt from an order refusing discharge, on objections of ,E. P. Reed & Co. and others. Reversed.

Suit in equity by Frederick M. Steele and others against the Blue-fields Steamship Company, Limited. From an order appointing an ancillary receiver, defendant appeals.

<p>1. Taxation <§§ 701, 810*) — Tax Titles — Burden of Proof, — North Dakota’ Statute.</p> <p>Under Laws N. D. 1897, c. 67, known as the “Woods Law,” which provides for the issuance of certificates of purchase at tax sale, and that such certificates shall operate to pass title at the expiration of 2 years without redemption, but requires the holder to give notice to the owner 90 days before the maturity of the certificates and to file proof thereof with the clerk of the district court, as construed by. the Supreme Court of the state, such notice is essential to make the certificates evidence of title, and the burden of proving that it was duly served and filed rests on the holder.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. §§ 701, 810.*]</p> <p>2. Taxation (§ 805*) — Tax Title — Suit to Quiet Title — Limitations.</p> <p>Under Laws N. D. 1897, c. 126, § 79, which provides that any person claiming title to vacant land may bring suit to quiet title as against the holder of a tax deed within three years after its execution, as construed by the Supreme Court of the state, a tax deed must conform in substance to the form prescribed by the statute to entitle the holder to the benefit of the limitation.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*]</p> <p>3. Taxation (§ 796*) — Tax Title — Suit to Try Title — Title to Support.</p> <p>A quitclaim deed is sufficient to support an action to quiet title against the holder of a tax title.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1580; Dec. Dig. f 796.*]</p>

Suit in admiralty by the Long Island Railroad Company, charterer of the tug Patchogue and car float No. 14, against the steamship Kronprinzessin Cecilie, North German Lloyd, claimant. Decree for libelant, and claimant appeals. Affirmed.

Suit in equity by the Gould Storage Battery Company against the Electric Storage Battery Company. Decree for defendant, and complainant appeals. Affirmed.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Weed Chain Tire Grip Company, Harry D. Weed, and the Parsons Nonskid Company, Limited, against the Excelsior Supply Company and the Motor Appliances Company. Decree for complainants, and defendants appeal. Modified and affirmed.</p> <p>The appeal is from an interlocutory decree, enjoining appellants, their respective officers, associates, etc., from infringing letters patent No. 723,299, issued March 24, 1903, to Harry Parsons, for a new and useful improvement in anti-slipping and anti-puncturing, devices for the tires of vehicles and for like purposes. Claims 1 and 6 of the patent sued upon (types of all the claims) are as follows:</p> <p>Anti-slipping or protective means for the peripheries of wheels, pulleys, or the like, comprising attaching elements at opposite sides of the wheel, and an anti-slipping or protective medium secured to the attaching elements and extending across and around the periphery of the wheel, said parts being disconnected from though retained on the wheel whereby the anti-slipping or protective medium is free to move or shift its position around the periphery thereof.”</p> <p>“6. Anti-slipping or protective means for the peripheries of wheels, pulleys, or the like, comprising two rings or annuli at opposite sides of the wheel. and an anti-slipping or protective medium consisting of a chain or chains secured to the rings and extending across and around the periphery of the wheel, said parts being disconnected from but retained on the wheel whereby «the anti-slipping or protective medium is free to move or shift its position around the periphery thereof.”</p> <p>The following drawings show two forms claimed to be under the patent in suit, and two forms claimed to be infringing devices:</p> <p> </p> <p>The purpose of the patent, and the way such purpose is carried out, is described by the patentee as follows:</p> <p>“It has been proposed to guard against slipping and puncturing by incorporating an anti-slipping or anti-puncturing device in the tire itself, which has the effect of slowing it considerably or causing disintegration and having other objectionable features. According to my invention I overcome these objections by providing a' separate construction, giving, in effect, a nonslip-ping medium between the surfaces in contact, and merely suspending on or engaging with the wheel, but not fixed thereto, and it is therefore free to travel around the wheel by the action of rolling contact.</p> <p>“The device constituting my invention consists of a network of -rings or strips of metal or other suitable material or a series of small chains or bands fitting loosely over the periphery of the wheel or passing from side to side across the tire — that is, not incorporated with it — and prevented from coming off by two rings, hoops, or their equivalent, preferably of wire or other suitable material, such rings or the like, or one of them, being provided, if desired, with means of attachment and detachment, such as a right and left hand screw-thread and nut, and the said rings or the like being smaller in diameter than the periphery of the wheel they cannot come off accidentally.”</p> <p>Other patents cited are the following:</p> <p>No. 98,126, R. W. Thomson, Dec. 21, 1869.</p> <p>No. 135,128, D. W. Kellogg, Jan. 21, 1873.</p> <p>No. 275,035, O. F. Gilbert, April 3, 1883.</p> <p>No. 334,322, T. B. Williams, Jan. 12, 1886.</p> <p>No. 384,797, H. G. Tipping, June 19, 1888.</p> <p>No. 482,599, I. Townsend, Sept. 13, 1892.</p> <p>No. 567,245, J. H. Lowrey, Sept. 8, 1896.</p> <p>No. 589.019, M. O’Brien, Aug. 31, 1897.</p> <p>No. 589,163, M. Choquette, Aug. 31, 1897. '</p> <p>No. 595,099, E. H. Graves, Dec. 7, 1897.</p> <p>No. 631,142, D. W. Williams, Aug. 15, 1899.</p> <p>No. 639,846, J. Ooan, Dec. 26, 1899.</p> <p>No. 667,457, E. C. Rehfeld, Feb. 5, 1901.</p> <p>No. 675,710, 0. Bonagente, June 4, 1901.</p> <p>No. 681,173, Maxim & Bardwell, Aug. 20, 1901.</p> <p>No. 710,562, P. De Caters, Oct. 7, 1902.</p> <p>No. 768,495, II. D. Weed, Aug. 23, 1904.</p> <p>No. 781,318, H. D. Weed, Jan. 31, 1905.</p> <p>German Patent to Haase & Sohn, No. 65,343, May 22, 1892.</p> <p>No. 95.493, Ernest Rosenberg.</p> <p>Wertheim Swiss Patent No. 15,097, July 29, 1897</p> <p>Thomson British Patent No. 2,986 of 1867.</p> <p>Thomson British Patent No. 2,630 of 1870. ,</p> <p>Archer British Patent No. 3,046 of 1871.</p> <p>Lee et al. British Patent No. 14,499 of 1892.</p> <p>Gifford Patent No. 13,974 of 18961</p> <p>Clark British Patent No. 18,003 of 1897.</p> <p>British Patent No. 14,719 of 1898.</p> <p>British Patent No. 5,625 of 1899.</p> <p>Further facts will be found in the opinion.</p>

Suit in equity by the Weed Chain Tire Grip Company, Harry D. Weed, and the Parsons Non-Skid Company against the Pitts Anti-Skid Chain Company, J. F. Pitts, and Lyle A. Closter. Decree for complainants, and defendants appeal. Affirmed.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>Suit in equity by William B. Palmer and Jesse V. Palmer against the Jordan Machine Company for infringement of letters patent No. 878,995, for apparatus for inverting tubular fabrics, issued to William B. Palmer February 11, 1908. Decree for defendant (186 Fed. 496), and complainants appeal. Reversed.</p>

<p>Patents (§ 328*) — Contributory Inerin&ement — Armor for Pneumatic Tires.</p> <p>A preliminary injunction granted tq restrain contributory infringement by defendant of the Parsons patent, No. 723,299, for an armor for pneumatic tires, by selling cross-chains intended for use in repairing the-chains of the patent. ' “</p> <p>[Ed. Note. — Contributory infringements of patents, see notes to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 CC. A. 485; ADolian Co. v. Harry H. .Tuelg Co., 86 C. C. A. 206.1</p>

In Equity. Suit by the Parsons Non-Skid Company and others against K. J. Willis Company. On motion by defendant-appellant to compel complainants to furnish printed copies of their record to defendant to be used by it to make up printed record for appeal. Motion denied.

In the matter of the Waite-Robbins Motor Company, bankrupt. On review of order of referee dismissing petition of Walter G. Robbins to reclaim property from trustee.

<p>In the matter of Asa W. Richardson and others, alleged bankrupts. On motion to amend petition.</p>

<p>In Admii-alty. Suit by Salem W. Avery against the Mayor and City Council of Baltimore.</p>

<p>In Equity. Suit by one McGirr, trustee in bankruptcy of Z. E. Rollins, against the Humphreys Grocery Company. On exception to findings and conclusions of trustee.</p>

<p>In Admiralty. Suit for charter hire by the Pool Shipping Company, Limited, owner of the steamship.Teespool, against Prank Samuel.</p>

<p>At Law. Action by the International Harvester Company of America against James W. Oliver. On demurrer to answer.</p>

<p>1. Copyrights (§ 29*) — Sufficiency of Notice.</p> <p>A copyrighted publication, designated on the title page as “Woodman’s Minnetonka Map-Directory,” which consists oí a map, and also a directory with the name of the publisher printed on the map, and also the words “Copyright 1908,” contains a sufficient notice to protect the copyright of the map.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 29, 30; Dec. Dig. § 29.*]</p> <p>2. Copyrights (§ 12*) — Vapidity—Map.</p> <p>A map is subject to copyright, although the material was obtained ' from prior publications not copyrighted, if it constitutes a new arrangement of such old material and also contains new and original features. [Ed. Note. — For other eases, see Copyrights, Dec. Dig. § 12.*</p> <p>Matter subject to copyright, see note to Cleland v. Thayer, 58 C. C. A. 273.]</p> <p>3. Copyrights (§ 61*) — Infringement—Map.</p> <p>• Where every part of a map is copied from a copyrighted map, infringement is not avoided because certain features of the copyrighted map are omitted therefrom.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. § 64.*]</p> <p>4. Copyrights (§ 87*) — Suit for Infringement-Damages — Construction of Statute.</p> <p>Copyright Act March 4, 1909, c. 320, § 25, 35 Stat. 1081 (TI. S. Comp. St. Supp. 1909, p. 1297), which provides that in a suit for infringement the complainant may recover actual damages and profits, or in lieu thereof such damages as to the court shall appear to be just, and that such damages shall not exceed the sum of $5,000, nor be less than the sum of $260, does not compel the court to award damages to the amount of $250, If in its opinion the actual damages do not amount to so much.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. '§ 81; Dee. Dig. § 87.*]</p> <p>5. Copybights (§ 87*) — Suit f,or Infringement — Damages.</p> <p>That defendant gave away a certain number of copies of a map which infringed complainant’s copyright does not create any presumption that complainant was thereby deprived of. the same number of sales and entitle him to damages on that basis.</p> <p>[Ed. Note.- — For other eases, see Copyrights, Dec. Dig. § 87.*)</p>

<p>1. Attachment (§ 361*) — Wrongful Levy of Attachment.</p> <p>One wbo directs the taking by an officer executing a writ of attach- • ment of property of a third person not rightfully subject thereto is guilty .of a wrongful and tortious act, and is liable to the owner equally with the officer in an action of trespass or trover.</p> <p>[Ed. Note. — For other eases, see Attachment, Cent. Dig. §§ 1315-1318; Dec. Dig. § 361.*]</p> <p>2. Attachment (§ 361*) — Wrongful Levy of Attachment — California Statute.</p> <p>Code Civ. Droc. Cal. § 689, relating to executions and which is made applicable to attachments, providing that, if property levied on be claimed by a third-person, he shall make a verified demand on the sheriff, and that “no claim to such property is valid against the sheriff *. * * unless made as above specified,” is for the benefit and protection of the sheriff, and does not limit the common-law right of the owner of the property as against a wrongdoer participating in the trespass, such as an attachment plaintiff who directs the levy.</p> <p>[Ed. Note. — For other cases, see Attachment, Dec. Dig. § 361.*]</p> <p>3. Courts (§ 328*) — Jurisdiction of Federal Courts — Amount in Controversy.</p> <p>In an action of trespass for the wrongful taking of property under an attachment against a third person, where malice is alleged, and acts of oppression which may properly be the basis for exemplary damages, the damages claimed in apparent good faith and not the value of the property attached are to be taken as the amount involved for the purpose of determining the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 890-896; Dee. Dig.' § 328.*</p> <p>Jurisdiction of circuit courts as determined by the amount in controversy. see notes to Auer v¡ Lombard, 19 O. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459; O. G. Lewis Mercantile Co. v. Klep-ner, 100 C. O. A. 288.]</p> <p>4. Action (§ 38*) — Single and Entire Cause of Action — Torts.</p> <p>However numerous the items of damage claimed if they all flow from one wrong, they are the subject of but a single action.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]</p>

<p>At Law. Action by Leonard G. Paine against the Standard Plunger Elevator Company. On exceptions to report of referee.</p>

<p>Habeas Corpus f§ 45*) — Federal Courts — Proceedings sor Discharge of| State Prisoners.</p> <p>It is the settled rule of the federal Supreme Court that a writ of ha - beas corpus will not ordinarily be issued to review the decisions of courts of competent jurisdiction, made within the limits of their jurisdiction, even though such decisions may be erroneous, and a defendant, convicted of a crime by a state court of competent jurisdiction, which conviction has been affirmed by the Supreme Court of the state, will not be released from imprisonment thereunder by a federal court on a writ of habeas corpus, on the ground that he is deprived of his liberty without due process of law, because of the overruling of a plea of former acquittal; his remedy being by writ of error from tile Supreme Court of the United States, if he claimed the right under the Constitution in the state courts.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-15; Dec. Dig. § 45.*</p> <p>Jurisdiction of federal courts, see note to in re Huge, 25 O. C. A. d.J</p>

<p>Food (§ 24*) — Food and Drugs Act — Suit for Condemnation.</p> <p>It is a condition precedent to the maintenance of a libel for the condemnation of goods for adulteration or misbranding under Food and Drugs Act June 30, 1906, c. 3915, § 10, 34 Stat. 771. (TI. S. Comp. St. Supp. 1909, p. 1193), when based on a report of the Secretary of Agriculture, that such report should be made after an examination and hearing as provided for in section 4.</p> <p>[Ed. Note.-UFor other cases, see Food, Dec. Dig. § 24.*</p> <p>What constitutes a violation of pure food regulations, see note to Briua v. United States, 105 O. O. A. 559.]</p>

In the matter of College Clothes Shop, bankrupt. On motion by trustee for an order requiring the receiver to turn over assets.

Petition for Review on Order of the District Court of the United’ States for the Middle District of Pennsylvania. In the matter of 1he York Silk Manufacturing Company, bankrupt. On petition of the Commonwealth of Pennsylvania to review an order (188 Ped. 735) relating its claims.

Prosecution by the United States against Charles R; Heike and Ernest W. Gebracht. From a judgment (175 Fed. 852) of conviction,, said defendants bring error. This cause comes here upon writ of error to review the judgments of conviction against plaintiffs in error. They were indicted together with Bender-nagel, Walker, Voelker, and Halligan upon an indictment containing six counts.

<p>1. Insukance (§ 719*) — Accident Policy — Construction — “Observe” — “Abide By.” ,</p> <p>Where, by defendant's constitution, ‘ benefits were restricted to members in good standing who had paid all dues, and who faithfully observed the laws, rules, commands, and regulations then in force, or which might thereafter be added to the constitution, by-laws, and rules, and in taking his obligation of membership, without which admittance was impossible, decedent agreed in writing to abide by the constitution as it then was, or might thereafter be amended, the words “to observe” and “to abide by” meant to obey and to accept the consequences of, and, so far as amendments were concerned, were not restricted to amendments of those laws and rules as related entirely to disciplinary and social regulations, but-extended as well to amendments affecting decedent’s right to benefits.</p> <p>tEd. Note. — For other eases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 17-18; vol. 0, p. 4889; vol. 8, p. 7735.]</p> <p>2. Insurance (§ 787*) — Mutual Benefit Societies — Constitutional Provisions — Amendments.</p> <p>Decedent joined a mutual benefit society having accident insurance benefits, agreeing to observe and abide by the constitution as it then was or might thereafter be amended. At the time he joined, the constitution provided that payment of indemnity for injuries through external, violent, or accidental means should not extend to any bodily injury of which there should be no external or visible signs, which provision was thereafter amended by defining “external, violent and accidental means” to exclude any death, disability, or loss resulting from infection, except where the same resulted from an open wound, and any death, disability, or loss of which there was no external and visible mark on the body; the dead body not being such a mark, except in case of drowning or asphyxiation. MeTcl, that decedent was bound by the amendment, and hence there could be no recovery of benefits for his death from entero-colitis, alleged to have resulted from ptomaine poisoning, of which there was no external or visible mark on the body.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 7S7.*]</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Louis Wollowitz, bankrupt, said bankrupt appeals from an order dismissing his application for discharge. This cause comes here upon appeal of the bankrupt from an order dismissing his application for a discharge. Since the order was in form for dismissal of application, instead of refusal of discharge, he also filed a petition to review.

In .Error to the Circuit Court of the United States for the Eastern District of Illinois. Action by Henri Hotel against the Brazil Block Coal Company. Judgment for plaintiff, and defendant brings error.

Action by Genevieve M. Lennon against the Canadian Pacific Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed. Plaintiff in error was, at the time of the injury complained of, a young woman aged 19 years, on her way from her home at Joliet, Ill., to Toronto, Canada, at which latter city she was intending to enter a community of nuns.

<p>1. Sales (§ 472*) — Conditional Sales — Validity.</p> <p>A contract for the sale of an ice machine, providing that title shall remain in the seller until all the payments, and any notes or acceptances given on account thereof, shall have been fully paid, and in case of default the seller shall have the right, at its option, to take possession of and remove the apparatus, was a conditional sale with title reserved in the seller, and valid in Pennsylvania as against all the world, except creditors of the buyer having a lien by levy or attachment.</p> <p>[Ed. Note. — For other cases, see Sales, Dee. Dig. | 472.*</p> <p>Validity of conditions in contracts of conditional sale of personalty, see note to In re Pierce, 87 C. C. A. 53SJ</p> <p>2. Bankruptcy (§ 140*) — Title of Trustee — Conditional Sales — Statutes— Amendment.</p> <p>Act Cong. June 25, 1910, c. 412, 36 Stat. 838, amending Bankr. Act July 1,, 1898, c. 541, § 47a(2), 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), relating to the duties of trustees in bankruptcy, and providing that such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers óf a creditor holding a lien by legal or equitable proceedings thereon, did not invalidate a conditional sale contract, antedating the amendment, as to the buyer’s trustee in bankruptcy; it being otherwise valid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy,1 Dec. Dig. § 140.*]</p> <p>3. Sales (§ 479*) — Conditional Sales — Recovery—Resort to Other Remedies — Estoppel.</p> <p>Where petitioner, having sold an ice machine to bankrupts under a conditional sale contract, filed a mechanic’s lien against the bankrupts’ estate to protect its lien, but did not prosecute such lien claim to judgment, the filing thereof did not constitute such an election of remedies as would estop it from insisting on its right to reclaim the machine under its conditional sale contract.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 479.*]</p> <p>4. Fixtures (§ 22*) — Machinery—Establishment in Building.</p> <p>Where an ice machine, sold under a conditional sale contract, was erected in part on a foundation’of masonry within a building expressly constructed for it, but was in ho wise attached to the walls or any other part of the building, it was personal property as between the buyer and seller, title to which was in the seller until paid for.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 57; Dec. Dig. § 22.*]</p> <p>5. Appeal and Error (§ 173*) — Review—Questions Not Raised at Trial.</p> <p>An objection that petitioner, a foreign corporation, could not maintain a petition to reclaim property sold under a conditional sale contract, in bankruptcy proceedings against the buyer, in Pennsylvania, because petitioner had not complied with the Pennsylvania laws, could not, be considered, when raised for the first time on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 107!» - 1120; Dec. Dig. § 173.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>. Habeas corpus proceedings by Raymonde Chomel and Martha Brion against the United States. From orders denying the writs (182 Fed. 894) petitioners appeal.</p>

Action by the Columbia Clay Works against Jacob Ferkel. From a judgment for less than the relief demanded, both parties bring error. Affirmed on defendant’s writ of error, and reversed on plaintiff’s writ.

Suit in equity by the American Street Flushing Machine Company against the St. Louis Street Flushing Machine Company and William Ratican. From a decree (180 Fed. 759) for a nominal sum only as profits, complainant appeals.

<p>1. Patents r(§ 328*) — 'Validity and Inebingement — Polishing Machine.</p> <p>- Tbe Gale patent, No. 685,328, claims 1 and 3, for a polishing machine, having a rubbing or polishing belt and a reciprocative head with means for pressing the belt to its work, while valid, in view of the prior art, must be limited to the particular means shown for pressing the reciprocating head to the belt. As so limited, held not infringed.</p> <p>2, PAievrs (§ 328*) — Validity and TiwEracjimrENT — Polishing Machine.</p> <p>The Ynmell patent, No. 74.‘>,<>08. for a polishing machine, claim 7, was not anticipated, and covers an improvement of such undoubted merit as to entitle it to a liberal construction; also, held infringed.</p>

<p>In Equity. Suit by tlie Climax Lock & Ventilator Company against the Ajax Hardware Manufacturing Company, Adolph Rosenberg, Ellsworth E. Clark, and the Ericsson Manufacturing Company. On demurrer and motion for preliminary injunction.</p>

<p>In Equity. Suit by the National Manufacturing Company against -the Sharon Hardware Manufacturing Company. On final hearing.</p>

In Equity. Suits by the Motion Picture Patents Company against the Yankee Film Company and against William Steiner and others. On motions by complainant to dismiss, and by defendants for a special allowance of costs and expenses. These two actions in equity were brought upon patents concerning the validity of which complainant' itself apparently felt increasing doubt as the causes progressed.

<p>In Equity. Suits by the Pennsylvania Steel Company and others against the New York City Railway Company and others; by the Morton Trust Company against the Metropolitan Street Railway Company and others; by the Guaranty Trust Company of New York against the Metropolitan Street Railway Company and others; and by the Morton Trust Company against the Metropolitan Street Railway Company and others. On petition by the Central Crosstown Railroad against the receivers of the Metropolitan Street Railway Company. Petition granted in part.</p> <p>This cause comes here upon petition by the Central Crosstown Railroad to direct receivers of the Metropolitan Street Railway Company to pay: (1) The sum of $52,500 alleged to be due as rental for the railroads and properties of the Central Crosstown Company during the period from October 1, 1907, to April 30, 1908, under the terms of a lease between the Orosstown Company and the Metropolitan Company dated February 8, 1904; and (2) the sum of $27,646 paid to the city of New York by the Crosstown Company for special franchise taxes for the years 1904 to 1908 inclusive.</p>

In Equity. Suits by the Spring Valley Waterworks and by the Spring Valley Water Company against the City and County of San Francisco, the Board of Supervisors of the City and County of San Francisco, and James P. Booth and others, members of and constituting said Board of Supervisors.

<p>1. Waters and Water Courses (§ 203*) — Waxes Companies — Rates—Regality of Rates Fixed by Public Authority.</p> <p>Rates fixed by a city council under legislative authority, to be charged by a water company, are presumptively reasonable and lawful; and the company has the burden of overcoming such presumption by showing by a fair preponderance of the evidence that the rates so fixed are not sufficiently remunerative.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*]</p> <p>2. Waters and Water Courses (§ 203*) — Water Companies — Rates--'Valuation of Plant.</p> <p>In determining the reasonableness of water rates to be charged by a water company, fixed by public authority, a court must ascertain the value of the company’s plant: and on that question both its original cost and prospective value may be considered, but only as factors to be taken into account with other evidence.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*]</p> <p>3. Equity (§ 409*) — Report of Master — Weight' Given to Findings of Fact.</p> <p>When a case is referred to a master in chancery, he does not act simply as a commissioner to take evidence and report the same, but is a judicial officer, and must make findings of fact and adopt conclusions of law; and, while the latter are subject to review by the court, the finding of facts stands as the verdict oí a jury, and cannot be overthrown, unless clearly erroneous.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. §§ 920-923: Dec. Dig. g 409.*]</p> <p>4. Waters and Water Courses (§ 203*) — Water Companies — Rates—Valuation of Property — Going Concern.</p> <p>The plant of a water company should be given a higher valuation for rate-fixing purposes, if the company is a going concern, with patrons already secured and connections made.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dee. Dig. § 203.*]</p> <p>5. Waters and Water Courses (§ 203*) — Water Companies — Rates—Reasonableness.</p> <p>in determining the rate of income which a water company is entitled to earn on the value of its property, the hazards to which it is , subject, such as the shortness of the term of its charter, its liability to the enforced sale of its plant to the city through condemnation proceedings, etc., may properly be taken into consideration.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*]</p> <p>6. Waters and Water Courses (§ 203*) — Water Companies — Kates—Rea-sonableness op Rates Fixed by City.</p> <p>A water company in Des Moines, Iowa, held entitled to earn dividends equal to 8 per cent, on the value of its plant, in view of the hazards of the business and the current rates of interest in the state; and an ordinance fixing rates under which it could not earn anything near such returns held unreasonable and confiscatory, and its enforcement enjoined.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*]</p>

Action by W. C. Younts against the Southwestern Telegraph & Telephone Company. On demurrer to complaint. This suit was instituted in a state court and by the defendant removed to this court upon the ground of diversity of citizenship.

<p>1. Aliens (§ 66*) — Naturalization of Seamen — Construction oe Statute— ‘‘Seaman.”</p> <p>Iter. St. § 2174 (TI. S. Comp. St. 1901, p. 1934), which authorizes the naturalization of any foreign seaman who “shall have served three years on board of a merchant vessel of the United StatQs,” after having declared his intention to become a citizen, on production of his certificate of discharge and good conduct during that time, is sufficiently broad to embrace every ‘‘seaman” who has served the required time on an American vessel, coastwise or other.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 130; Doc. Dig. § 66.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6374, 6375.1</p> <p>2. Aliens (§ 66*) — Naturalization oe .Seamen — Construction of Statute.</p> <p>Under such section the “certificate of discharge and good' conduct” required may be made by either a master or shipping commissioner, although the service was rendered in the local coastwise trade.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 130; Dec. Dig. § 66.*]</p>

<p>Tn Admiralty. Suit by the New York & Porto Rico Steamship Company against the ^Rtna Insurance Company.</p> <p>This is a libel in personam by the owners of the steamship Santurce against underwriters to recover a proportion of a sum of money assessed against the steamship in general average upon a salvage of the steamship ami her cargo. The Saninrce left New York on a voyage around the island of Porto Rico and back, December 11, 1904. On December 16, 1904, for some reason not ascertained, she broke off two flukes five feet long, of her four-biaded propeller about half 1he distance between the rim of the boss and the end of the blade. She arrived at San Juan on the 17th, where she discharged a part of her top cargo, and arrived the next day at .Tobos, in the island. From there she went to Ponce and Mayaguez, where, on the 21st. she learned of the damage to her propeller blades which has been mentioned. From there slie proceeded to Guanicii, where she arrived on the 2Bd, and where she was “tipped” for the purpose of taking off her old propeller and shipping another which she carried. This was not done, but on the 24th she went back to Jobos in order to load a sufficient quantity of cargo to put her well-down by the stern. From there she went to San Juan, having shipped 2,400 bags of sugar, and left San Juan on the 21st for New York. For some reason not certainly ascertained she stripped off the two remaining blades of her propeller at a point about 1.4 inches from the rim of the boss. Being thus in this helpless condition, she called to her assistance the steamship Rosewood and was towed to Nassau, where she shipped her new propeller and proceeded to New York without further mishap. Subsequently the Rosewood libeled the Santurce for salvage and recovered. The recovery was adjusted by general average, and the amount; awarded against the steamship, which she had paid, was apportioned among the various underwriters. The sum being awarded against the respondent is the proper proportion of the total amount adjusted in general average. Several surveys took place, one at .Tobos, one at Guanica, at which it was recommended that she proceed to Jobos and there load with 6,000 bags of sugar to put her in trim and prevent her prop.eller racing in the heavy sea, and that from there she might safely proceed at slow speed to New York. »</p> <p>The policy in question was a common form of American time policy, containing a warranty of seaworthiness and a two-year limitation. To it was attached a printed rider, pasted on the face of the policy, immediately below the first general statement of the name of the steamship, the amount of the risk, and the period for which it ran. It contained all the provisions of the usual English marine poiicy and at the bottom were the words: “The terms and conditions of this form are to be regarded as substituted for those of the policy to which it is attached, the latter being hereby waived.” This was dated and signed by the agent, but had not at the bottom the usual fac simile printed signatures of the president and secretary of the company, which were contained only in the policy. It was conceded that the libel was filed more than two years after the final adjustment in general average, which was the last step taken by the vessel to ascertain the loss.</p> <p>The underwriter relies on two defenses: First, that the proceeding was begun too late; and, secondly, that the ship was unseaworthy, and that it was negligent for the master to proceed from San Juan upon the voyage.</p>

<p>1. Evidence (§ 574*) — Opinion Evidence — Weight.</p> <p>In a collision suit, tbe testimony of officers and crew as to wbat occurred on their own vessel is entitled to more weight than that of witnesses on board other vessels, or on shore, who merely assert their opinions, based on what they observed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2400; Dee. Dig. § 574.*] ⅜</p> <p>2. OoLLisiON (§ 85*) — Steam Vessels Meeting in Fog — Fault.</p> <p>Evidence considered, and held insufficient to show that a steamer passing down.from Mobile to the bay in the daytime in a dense fog and near the west shore was in any way in fault for a collision with a schooner coming up in tow alongside a launch; it appearing that she was proceeding at half speed, which was about 4½ miles an hour, that she had a lookout and kept sounding fog signals, and that she did not see nor hear the other vessels until they were within about 75 feet, and then at once reversed.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 85.*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>3. Words and Phrases — “Moderate Speed.”</p> <p>“Moderate speed” is not a fixed rate of miles per hour, but something materially less than the vessel’s full speed, depending upon surrounding circumstances.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 4551, 4552.]</p>

<p>1. Snrr-piNG (§ 39*) — Construction of Charter Party — Freight—Measurement of Dumber.</p> <p>A provision in the charter of a vessel for the carriage of a cargo of lumber for the payment of freight at so much per thousand “superficial feet, board measure,” Is not to be taken as requiring the application, with mathematical exactness, of the unit of one foot in length, one foot in width, and one inch in thickness to the cubical contents, but only a substantial application of that unit to the lumber according to certain standard sizes by which an overrun in thickness of less than one-quarter of an inch, in width of not more than one-half inch, and in length of a fraction of a foot, is not to be taken account of.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 141-148; Dee. Dig. § 39.*]</p> <p>2. Shipping (§ 62*) — Cuartee—Duty of Master to Sign Bills of Bading.</p> <p>If bills of lading presented by a charterer to the master after the vessel is loaded are in accordance with the contract made by the charter party, it is the duty of the master to sign them, and his refusal to do so is a breach of the charter.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Dec. Dig. § 62.*]</p>

<p>1. INTERNA!, REVENUE (§ 9*)-SPEOIAL CORPORATION TAX — DISSOLUTION OF Corporation.</p> <p>A corporation which has continued in business through a calendar year cannot evade liability for the special excise tax imposed by Act Aug. 5. 1909. e. 6, S 38. 36 Stat. '112 (U. S. Comp. St. Supp. 1909, p. 844), by dissolving before the time when it is required to make a return of said business to the collector of internal revenue and the assessment of the tax.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent Dig. §§ 13-'28: Dec. Dig. § 9.*]</p> <p>2. Internal Revenue (⅞5 9*) — Special Corporation Tax — Effect ow, Dissolution.</p> <p>Under Corporation Act N. ,T. (P. L. 1896, p. 295) §£ 53-55, which provide that corporations, however dissoived, are “continued bodies corporate for the purpose of prosecuting and defending suits by or against them and of enabling them to settle and close their affairs,” but may not continue their business, and make the directions trustees to settle the business, the officers of a corporation which has dissolved after becoming subject to the special tax imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), on its business of the preceding year, who are also directors, have authority, and it is their duty, to make the return of such business required by the act.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*]</p>

<p>In Admiralty. Suits by Adelbert L. Bedlatty against the Barrett Manufacturing Company and C. J. Miers & Son to recover for a personal injury.</p>

<p>1. Colusión (§ (¡1*) — Steameb and Tug with Tow — Negligent Navigation op Tug.</p> <p>The schooner Truitt, while being towed from Jersey City stern first by a tug on her side to Stapleton Anchorage with an ebb tide, came into collision with the steamship Texas, which was proceeding from the anchorage to Hoboken at a speed of not more than three knots. The weather was hazy, but the vessels saw each other when about half a mile apart, and the tug signaled with two whistles and starboarded. Receiving no answer, she again signaled and kept her course. The Texas at first, owing to the haze, did not see the tug, but supposed the schooner to be anchored, and on seeing the tug thought the schooner was going in the direction she was headed and ported her helm to pass to the eastward of her and also another steamer crossing toward the west shore. She did not hear the tug’s signal, but, on finding the direction in which she was headed, at once reversed. Hold, that she was not in fault, but that the fault was solely that, of the tug in persisting in attempting to pass starboard to starboard, which was not justified by the positions of the vessels on somewhat crossing courses with the tug, the burdened vessel.</p> <p>I Ed. Note. — For other eases, see Collision, Cent. Dig. § 78; Dec. Dig. § 61.*</p> <p>Collision with or between towing vessels and vessels in tow, see noto to The John Englis, 100 O. C. A. 581.J</p> <p>2. Collision (§ 58*) — Negligence in Towing Schooner Steen Eiest — Fault . op Tug.</p> <p>It is negligence for a tug to tow a schooner stern first for any considerable distance in New York Harbor on a hazy day when other vessels are likely to be misled tíV tlie fact; but, where the tow was not consulted, the fault is solely that of the tug.</p> <p>[Ed. Note.- — For other cases, see Collision, Cent. Dig. §§ 68-71; Dec. Dig. § 58.*]</p>

<p>In the matter of the United Wireless Telegraph Company, bankrupt. On rule to show cause why a pending suit against the bankrupt, instituted by Floyd H. Bradley, receiver of the International Wireless Telegraph Company, in the Court of Chancery of New Jersey, should not be stayed.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>Action by John Bush against the Cincinnati Traction Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Courts (§ 367*) — Federal Courts — Following State Decisions.</p> <p>The decisions of the highest court of a state as to the nature and ex- . tent of the rights of mortgagees of property therein are binding in the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.* . *</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Mortgages (§ 137*) — Rights of Mortgagees — Daw of Nebraska — “Owner.”</p> <p>Under the decisions of the Supreme Court of Nebraska, mortgagees of property in that state have an estate in'the property mortgaged separate and distinct from that of the mortgagors, and are comprehended within the term “owner” in cases where “owners” are required to be made parties to suits.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 270-276; Dec. Dig. § 137.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5134-5151; vol. 8, p. 7744.]</p> <p>& Specific Performance (§ 96*) — Suit by Vendor — Interest—Sufficiency of Tender.</p> <p>By an ordinance of the city of Omaha, granting a franchise to complainant water company, the city was given the right at its election to purchase the property of the company at a valuation to be fixed by appraisers. Notice of such election was given by the city, and appraisers were appointed who made a report fixing the value of the property, whereupon complainant tendered a deed conveying the property to the city and demanded payment of the value fixed by the appraisers which was refused and complainant then commenced suit to enforce specific performance. At the time of the tender and subsequent suit there were outstanding mortgages of record on the property made by complainant, but neither party made mention of them in its pleadings and the mortgagees were not made parties. Heló, that, under the law of Nebraska, they had rights in the property which could only be cut off by making them parties, and that the tender of the deed by complainant did not entitle it to the purchase price or put the city in default so as to start the running of interest even though it did not plead such defect of parties as a defense to the suit.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 278-285; Dee. Dig. § 96.*]</p> <p>4. Specific Performance (§ 101*) — Suit bt Vendor — Interest—Sufficiency of Tender of Deed.</p> <p>In sucli caso, as the duty rested on complainant at all times to place itself in a position to offer a good and unincumbered title before it was entitled to demand the purchase money, the city was not estopped to rely on the insufficiency of the tender at any time by failing to make the objection when the tender was made or in its pleadings and a. decree for specific performance after the mortgagees have been brought in and their interests proteefed, will treat the transfer as having been made at that date, without requiring defendant to pay interest, or complainant to account for earnings during the pendency of the suit.</p> <p>I'Ed. itote. — For other cases, see Specific Performance, Dec. Dig. § ioi.*;i</p>

<p>1. Municipal Corporations (§ 868*) — Contract for Purchase of Waterworks — Validity—Nebraska Statute.</p> <p>The power conferred on cities of the second class in Nebraska by Comp. St. 1887, c. 14; § '69, subd. 15 (3), to provide for a supply of water by the purchase or construction of a system of waterworks, to issue bonds for the purpose, and provide for their payment by the levy of an annual tax not exceeding seven mills on the dollar on the property within the city, as such statute is construed by the Supreme Court of the state, comes within the exception of section 89 of said chapter, which pror vides that no contract shall be made nor expense incurred unless covered •by the annual appropriation bill required to be passed during the first quarter of each fiscal year by section 86, “except as herein otherwise expressly provided,” and a contract for the purchase of a waterworks ■ plant is not invalid because no provision for payment therefor has been previously made by an appropriation bill.</p> <p>• [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1842; Pee. Dig. § 868.*]</p> <p>2. WATERS AND WATER COURSES (§ 188*) — PUBLIC WATER SUPPLY — CONTRACT for Purchase of Waterworks — Validity.</p> <p>Under Comp. St. 18S7, c. 14, § 69, subd. 15(3), which provides that cities of the second class may enact ordinances “to provide for the purchase * * * erection or construction of'a system of waterworks,” conceding that such a contract can only he made by ordinance, a provision in an ordinance granting a franchise to a water company giving the city the right to purchase the company’s plant at its election by giving six months’ notice that thereupon, if the parties cannot agree, the plant shall be appraised by three persons to be selected as therein provided, and that, on the making of their award, “the city shall pay to said waterworks company * * * in cash the sum so ascertained within three months after the date of said award,” on the giving of the notice of election, becomes a binding contract, and its validity is. not affected by the fact that the notice was directed by motion or resolution. and not by another ordinance.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 383.*]</p> <p>3. Municipal Corporations (§ 864*) — Validity of Contract — Purchase of Property.</p> <p>A contract for the purchase of property made by a city under authority given by statute is not invalid because the city is without power to levy a tax sufficient to pay for the property.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. S§ 3833. 1834; Dec. Dig. § 861.*]</p>

<p>1. Criminal Law (§ 280*) — Plea in Abatement— Sufficiency.</p> <p>■ A plea in abatement to an indictment that books containing incriminating evidence were wrongfully produced before the grand jury was bad where it showed that the books belonged to corporations of which accused was president, and not to him individually.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 648; Dec.Dig. § 280.*]</p> <p>2. Criminal Law (§ 280*) — Pleas in Abatement — Construction.</p> <p>Pleas in abatement are to be strictly construed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 645; Dee. Dig. § 280.*]</p> <p>3. Criminal Law (§ 280*) — Pleas in Abatement — Sufficiency.</p> <p>A plea in abatement to an indictment that accused’s private books and papers were wrongfully produced before the grand jury is 'insufficient where it fails to show that there was no other evidence before the grand jury upon which the indictment was found, but, on the contrary, shows that there was other evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 648; Dec. Dig. § 280.*]</p> <p>4. Indictment and Information (§ 10*) — Plea in Abatement — Grounds— Evidence Before Grand Jury.</p> <p>That competent evidence upon which an indictment was founded, consisting of books and documents, were unlawfully seized and produced ' before the grand jury, is no ground for abating the indictment.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 54; Dec. Dig. § 10.*]</p> <p>5. Indictment and Information (§ 10*) — Evidence Before ' Grand Jury— Self-Incriminating- Evidence.</p> <p>An indictment -for using the mails to defraud purchasers of town lots by misrepresenting facts affecting their value was not subject to be quashed because private books belonging to accused were wrongfully produced before the grand jury, if the books contained no incriminating evidence.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. ■ Dig. § 54; Dec. Dig. § 10.*]</p> <p>6. Indictment and Information (§ 140*) — Motion to Quash — Judicial Discretion.</p> <p>, A motion to quash an Indictment is ordinarily addressed to the trial court’s sound discretion.</p> <p>,LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. § 474; Dec. Dig. § 140.*]</p> <p>7. Criminal Law (§ 959*) — New Trial — Refusal to Hear Oral Evidence-Judicial Discretion.</p> <p>Whether to hear oral evidence on motion for a new trial lies.within the trial court’s sound discretion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2406; Dec. Dig. f 959.*]</p> <p>8.-Criminal Law (§ 959*) — New Trial — Refusal to Receive Affidavits— Judicial Discretion.</p> <p>It was not an abuse of discretion to refuse to receive cumulative affidavits offered in support of motion for a new trial, after the motion had 1 been (alien under advisement, and the trial court was ready to announce his 'decision.</p> <p>[Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. § 2406; Dec. Dig. § 959. *J</p>

<p>1. Contempt (§ 60*) — Corrupting Jurors — Evidence.</p> <p>Evidence held to warrant a finding that defendants were guilty of contempt in attempting to corrupt and influence certain jurors whom it was expected would sit in the trial of a criminal case.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig¡ §§ 182-187; Dec. Dig. § 60.*]</p> <p>2. Contempt (§ 33*) — Jurisdiction—Federal Courts — Statutes.</p> <p>Rev. St. § 725 (TJ. S. Comp. St. 1901, p. 583), provides that the jurisdiction of federal courts to punish contempts shall not be construed to-extend to any case except the misdemeanor of any person in their presence, or so near thereto as to obstruct the administration of justice. Held, that where defendants attempted to corrupt jurors whom they expected would sit in a criminal trial about to be held in the same city, and such acts occurred in a saloon several blocks from the place where court was held, it was sufficiently near to the court to obstruct the administration of jnstice, and was therefore within the court’s jurisdiction to punish, though it did not occur on property belonging to the United States or occupied or used by the court.</p> <p>[Ed. Note. — For other eases, see Contempt, Dec. Dig. § 33.*]</p> <p>3. Contempt (§ 61*) — Denial Under Oath — Failure to Answer.</p> <p>The common-law rule that a person charged with contempt is entitle® .to his discharge where he files an answer which is direct, and not evasive, explicitly denying the alleged contempt, had no application where defendants charged with contempt did not answer the petition, but went to trial on the charges made, and gave oral testimony in which they denied the incriminating facts under oath.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 188-194; Dee. Dig. § 61.*]</p> <p>4. Contempt (§ 58*) — Foreign Answer — Conclusiveness.</p> <p>Under Eev. St. § 725 (U. S. Comp. St. 1901, p. 588), authorizing federal courts to punish for contempt, the filing of a sworn answer to a petition explicitly denying the alleged contempt is not necessarily conclusive that defendant is not guilty.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 169-175; Dec. Dig. § 58.*]</p>

<p>1. Carriers (§ 12*) — State Regulation oe Rates — Presumption oe Reasonableness.</p> <p>Rates to be charged by a railroad company, made by a state railroad commission, charged by law with the duty of fixing just and reasonable rates, are presumptively just and reasonable, although the statute does not expressly make them so, and the burden rests on the railroad company to prove to the contrary before it is entitled to an injunction to-restrain their enforcement.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dee. Dig. § 12*]____</p> <p>2. Carmhes (§ 12*) — State Regulation of Rates — Suit to Enjoin Enforcement of Order — Sufficiency of Evidence.</p> <p>In a suit by a railroad company to enjoin the enforcement of an order made by a state railroad commission, fixing rates on a single commodity, on the ground that such rates are unreasonably low and confiscatory, it is incumbent on complainant to show as near as may be the expense of rendering the particular service, and it is not sufficient to entitle complainant to the relief demanded to show that the percentage of reduction made by the order, if applied to all the traffic of the company, would reduce its income below what it is reasonably entitled to earn.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. i 12.*]</p> <p>3. Carriers (§ 12*) — State Regulation of Rates — Valuation of Property.</p> <p>The aggregate amount of outstanding stock and bonds of a railroad company is not a proper measure of the value of its property for rate-fixing purposes.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p>

<p>1. Bills asd Nones (§ 96*) — Defenses—Accommodation.</p> <p>it is a defense to a note in the hands of a national bank’s receiver that it was given in good faith to the bank solely for its accommodation, and on agreement that the bank would provide for its payment, and never call upon defendant maker to pay It.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 165; Dec. Dig. § 96.*]</p> <p>2. Bills and Notes (§ 503*) — Evidence—Admissibility.</p> <p>Whore a maker sued on a note by the payee bank’s receiver claimed that the note was given for the bank’s accommodation, and the receiver claimed that it was given for the benefit of another corporation in which the maker was interested, it: was error to refuse to permit, him to show the amount of the company’s stock for comparison with his holdings. '</p> <p>LEd. Note. — For other cases, see Bills and Notes, Dec. Dig. § 503.*]</p>

Dibel by D. Gifford Wood against the Cunard Steamship Company, Limited. From a decree awarding insufficient damages, libelant appeals. This cause conies here upon appeal from a decree awarding damages to the amount of $100 only for the loss of a trunk and its contents, libelant,, an English school-teacher, came from Liverpool to the United States as a steerage passenger on one of defendant’s steamers.

Action by Walter W. Faulds and others against' G. Wilse Tilton and others. Judgment for defendants, and complainants appeal. This case involves the title to about 2.000 acres of land in Vermilion Conn- , ty. Illinois, underlaid with coal.

<p>1. Corporations (§ 566*) — Receivers—Income—Right to.</p> <p>A bill by an insolvent corporation’s judgment creditor, brought for receivership in behalf of all the creditors, “secured and unsecured,” was a general creditor's bill, and income derived by the receivers belongs to the corporation’s bondholders as against,the judgment creditors, under foreclosure had on a cross-bill.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.*]</p> <p>2. Receivers (§ 189*) — Actions—Foreclosure—Attorney’s Fees.</p> <p>Attorneys who filed a cross-bill on receivership against an insolvent corporation were properly allowed a fee, though a decree thereunder was set aside for want of notice to the bondholders’ trustee, where a substituted decree under which the property was sold was founded on a cross-bill.</p> <p>[Ed. Note. — For other cases, see Receivers, Dee. Dig. § 1S9.*1</p>

<p>In Error to the Circuit Court of the United States for the Western ’ District of Arkansas.</p> <p>Action by Mrs. Clyde Duke, as administratrix of Walter Duke, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiiT and defendant brings error.</p>

In the matter of Morgan & Williams, a partnership,, alleged bankrupts. From an order dismissing the petition in involuntary bankruptcy, the Washington Cotton Company and others, creditors, appeal-

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the United States against Oberlin M. Carter and others., in which Jerry Searles and others intervene. From a judgment overruling their petitions, they appeal.</p>

• In Error to the Circuit Court of the United States for the Western Division of the Southern District of Georgia. Action at law by Charles M. Vet against B. A. Hooks and others. Judgment for plaintiff, and defendant Hooks brings error.

• Appeal from the Circuit Court of the United States for the District of Kansas. . Suit by the City of Kansas City, Kan., and others against the Union Pacific Railroad Company. To set aside a judgment recovered by default.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of the Ironclad Manufacturing Company, bankrupt. On petition to revise an order of the District Court. The matter was presented to the Circuit Court of Appeals on the following petition; The petition of J. Fred Pierson respectfully shows and alleges to this court: First.

<p>1. Alien's (§ 32*) — Deportation—Chinese—Defenses—Citizenship—Determination.</p> <p>Where a Chinese person in deportation proceedings claims to be a native-born citizen, he is entitled to a judicial determination of such question.</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. C. A. 538.]</p> <p>2. Appeal and Erkob (§ 1011*) — Deportation Proceedings — Evidence.</p> <p>A finding on an issue of citizenship in Chinese deportation proceedings, based on conflicting evidence of witnesses heard orally in the .District Court, will not be disturbed on appeal, unless the record clearly shows that an obvious mistake was made by the trial court in considering the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3089; Dec. Dig. § 1011.*]</p>

Suit in equity by the Commercial Acetylene Company and the PrestO-Lite Company against the Acme Acetylene Appliance Company, Arthur S. Widrig, Robert Widrig, and Fred Wilmot. From an order (188 Fed. 89) granting a preliminary injunction, defendants appeal. This is an appeal from an order (188 Fed. 89) granting a preliminary injunction.

<p>1. Commerce (§ 27*) — Carriers Subject to Interstate Commerce Act — Terminal Railroad Company — “Engaged in the Transportation of Property prom One State to Another.”</p> <p>The Chicago Junction Railway Company, as lessee, operates the railroad owned by the Union Stockyard & Transit Company of Chicago, which consists of some 250 miles of tracks in Chicago, wholly within the state of Illinois, connecting with the tracks of interstate trunk line railroads, and extending to the Union Stockyards and some 650 different industrial establishments in the stockyards district. It is organized under the general railroad law of the state, and its business is to haul cars between receiving tracks on the trunk line roads and the stockyards and industrial plants, from which the shipments are made or to which they are consigned, for which it receives a flat rate per car, in all cases paid by the trunk line company and absorbed in its own charges. Hold, that such company is- a common carrier “engaged in the transportation of property from one state to another” by rail within the meaning of Interstate Commerce Act Feb. 4, 1887, e. 104, § 1, 24 Stat. 379 (ü. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), and subject to the provisions of sections 6 and 20. as amended by sections 2 and 7, of such act, requiring such carriers to file schedules of rates and to make reports, when required by the Interstate Commerce Commission. (Arch-bald, Judge, dissenting.)</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>2. Commerce (§ 27*) — Carriers Engaged in Interstate Commerce — “Engaged in the Transportation of Property prom One State to Another.”</p> <p>Interstate commerce begins with the shipment of an article in one . state directed and destined to another state, and ends only with the delivery at destination. All common carriers by railroad, which participate in its actual transportation from the time of shipment to the time of delivery, are “engaged in the transportation of property from one state to another,” within the meaning of Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 37⅜ (U. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 5S4 (U. S. Comp. St. Supp. 1909, p. 1149), whether their services be performed wholly in one state or in more than one state, whether their services be primary, and called “carriage,” or incidental, and called “switching,” whether the carrier be paid a fiat sum per car or a percentage of the through rate, and whether such payment be made directly by the shipper or consignee on the one hand, or by the initial or final carrier on the other.</p> <p>■ [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>3. Carriers (§ 24*) — Interstate Commerce Act — Reports prom Owners op Railroads Engaged in Interstate Commerce.</p> <p>The owner of a railroad, which is leased and operated by the lessee as a common carrier engaged in interstate commerce, may be required by the Interstate Commerce Commission to make annual reports, under Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 31(59), as amended by Act June 29, 1906, c. 3591, §■ 7, 34 Stat. 593 (TJ. S. Comp. St Supp. 1909, p. 1163).</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 60-66; Dec. Dig. § 24.*]</p> <p>4. Carriers (§ 24*) — Interstate Commerce Act — Companies Subject to Act —Stockyards Company — “Common Carrier.”</p> <p>A stockyard company, which receives live stock from carriers at its yards, pens, feeds, and cares for the same, and maintains a public market for its sale, and which unloads and reloads it when required, receiving fixed prices for its services, is not a “common carrier,” within the meaning of Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (D. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149).</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 24.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1313-1319; vol. 8, p. 7007.]</p> <p>5. Carriers (§ 24*) — Interstate Commerce Act — Construction—“Common Carrier” Defined.</p> <p>The term “common carrier,” as used in Interstate Commerce Act Feb. 4, 1887, e. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1901,'p. 3154), as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), is to be given its ordinary meaning of one engaged in the actual work of transportation; and a corporation not so engaged is not within the statute merely because it is authorized by its charter to engage in such business.</p> <p>[Ifld. Note. — For other cases, see Carriers, Dec. Dig. § 24.*]</p> <p>6. Carriers (§ 24*) — Interstate Commerce Act — Corporations Subject to Act — “Common Carrier.”</p> <p>A stockyards company, authorized by its charter to build and operate a railroad, and which did build and operate one in interstate commerce, on leasing its lino and equipment for a term of years to an independent operating company; ceased to be a “common carrier” engaged in interstate commerce, within the meaning of Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (TJ. S. Cornu. St. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), and is not subject to the provisions of the act as such because it receives as rental a share of the net earnings of its road, nor because the owner of a majority of its stock also owns a majority of the stock of the lessee.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 24.*]</p> <p>7. Carriers (§ 24*) — Interstate Commerce Act — “Common Carrier” — Stock-hording Company.</p> <p>A holding company is not a “common carrier,” within the meaning of Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as'amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), because of the fact that it owns all of the stock of a corporation which is such a common carrier.</p> <p>LEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 60-66; Dec. Dig. § 24.*]</p> <p>8. Carriers (§ 34*) — Discrimination in Kates — Suit to Restrain.</p> <p>Elkins Act Feb. 19, 1903, c. 708, § 3, 32 Stat. 848 (TJ. S. Comp. St Supp. 1909, p. 1140), authorizes a suit in equity by the United States to restrain a violation of the act by discrimination or the giving of rebates only If a common carrier subject to its provisions is charged with the violation thereof and is sought to be enjoined.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 34.*</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p> <p>9. Carriers (§ 34*) — Interstate Commerce Act — Annual Reports kbom Carriers — Mandamus to Compel.</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1163), which authorizes the Interstate Commerce Commission to require annual reports from common carriers subject to the act, and to maintain suits to compel compliance with its provisions by mandamus, an order requiring such a report, is a condition precedent to a suit for a mandamus to compel it to be made.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 34.*]</p>

<p>Libel by the United States of America against Seventy-Five Barrels of Vinegar, claimed by the Spielman Bros. Company. On exceptions to claimant’s answer.</p>

<p>At Daw. Action by one Symonds against the St. Douis & Southeastern Railway Company. On motion to remand to state court.</p>

<p>In the matter of Neis P. Johnson, bankrupt. On motion for leave to file amended specifications of objection to discharge.</p>

<p>In Equity. Action by the Review of Reviews Company against Frank II. Hitchcock and another. On motion for injunction pendente lite.</p>

Action by Kamilla Sedlacek against William Bryan. From a clerk’s order refusing to tax certain disbursements paid by defendant for taking testimony on a jury trial resulting in a verdict for defendant, he appeals.

<p>1. Equity (§ 373*) — Submission on Pleadings — Rights of Defendant— Failure.of Complainant to Take Testimony.</p> <p>Where a complainant has failed to /take any evidence in .support of his bill within the time limited by the rules, or to move for an extension, defendant is entitled to have the case submitted on the pleadings.</p> <p>[Ed. Note. — For other cases,, see Equity, Dec. Dig. § 373..*]</p> <p>2. Equity (§ 359*) — Dismissal Without Pukjttmck — 1Time f;oe Making Motion.</p> <p>A complainant is not entitled to dismiss without prejudice after replication filed, and after the expiration of the time for taking testimony.</p> <p>LEd. Note. — For other cases, see Equity, Cent. Dig. §§ 749-755; Dee. Dig. § 359.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. United States (§ 67*) — Contractor's Bond — Discharge op Surety — Extension op Time op Payment.</p> <p>A corporate surety in a contractor’s bond given pursuant to tbe act of Congress of August 13, 1S94 (28 Stat. 278,-e. 280 [U. S. Comp. St. 1901, p. 2523]), as amended by act of February 24, 1905 (33 Stat. 811, e. 778 [U. S. Comp. St. Supp. 1909, p. 948]), is not discharged from liability to a sub-contractor for default of payment by the contractor for materials supplied by the sub-contractor and used in the prosecution of the work provided for in the contract, by reason of a binding extension by the sub-contractor without the knowledge of the surety, of the time of payment notwithstanding resulting loss to the surety, where the extension is bona fide and not in excess of a reasonable, usual or customary credit.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. United States (§ 67*) — Contractor’s Bond — Discharge op Surety — Extension oil Time op Payment.</p> <p>Loss to the surety by reason of the binding extension cannot be found where both the sub-contractor and the surety have been during the whole period of the extension without knowledge or notice of the circumstances injuriously affecting the interests of the surety, and the latter has remained in ignorance of the fact of the extension, and has not for its own protection made any application to the United States or the contractor or in any other quarter, or in any manner been led to change its position or omit action.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>3. Principal and Surety (§ 156*) — Remedies op Creditors — Pleading.</p> <p>Loss to the surety is not sufficiently set forth in the pleadings where recourse is had solely to hypothetical inferences, contingencies or possibilities of damage.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 423-426; Dec. Dig. § 156.*]</p>

At Raw. Actions by Kline Bros. & Co. against the Royal Insurance Company, Limited, against the London & Lancashire Fire Insurance Company, against the Liverpool & London & Globe Insurance Company,'Limited, and against the Insurance Company of North America. On motions for directed verdict.

In the matter of bankruptcy proceedings of the Kornit Manufacturing Company. On petition to review two orders, one directing Charles E. Ellis and Erwin R. Graves to pay over to the trustee $395,-130.77, money alleged to be held by' them belonging to the bankrupt, and the other to pay over $273,110, the amount assessed against them for unpaid shares of stock.

In Equity. Bill by the People’s Gaslight & Coke Company against the City of Chicago. On motion for an injunction in limine, restraining the defendant city from enforcing, or attempting to enforce, an ordinance fixing the price of gas, until the further order of the court.

<p>.Bankruptcy (§ 61*) — Ooeporations—“Act of Bankruptcy” — Authority op •Directors — Admission of, Inability to Pay Dkbts.</p> <p>Civ. Code Cal. § 305, provides that the corporate powers, business, and property of all corporations formed under the title shall be controlled by a board of not less than three directors. Section 308 declares that a majority of the directors may transact business, and that every decision of a majority of the directors forming the board, made when duly assembled, is valid, as a corporate act; fcut section 361 declares that no sale, lease, assignment, transfer, or conveyance of the business, franchise, and property as a whole yf any corporation shall be valid without the consent of stockholders, holding two-thirds of the issued capital stock, such consent to be expressed in writing, executed and acknowledged by the stockholders, and attached to the sale, lease, assignment, transferror conveyance, or by vote at a stockholders’ meeting of the corporation called for the purpose, etc. Code Oiv. Proc. Oal. § 1227, provides that the dissolution of a corporation can be had only on an application signed by a majority of the board of trustees, directors, or other officers, reciting that at a meeting of the stockholders or members called tor that purpose a dissolution of the corporation was resolved by a two-third vote of the stockholders. Held, that a resolution passed by the directors of a corporation and the stockholders, reciting that it was unable to pay its debts and was willing to be adjudged a bankrupt on that ground, being properly made by the governing body of the corporation, was sufficient to constitute an “act of bankruptcy,” under Bankr. Act July 1, 1898, c. 541, § 3a, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), providing that an act of bankruptcy may consist in the admission of the alleged bankrupt in writing of his inability to pay his debts and of his willingness to be'adjudged a bankrupt on that ground.</p> <p>I Ed. Note. — -For other cases, see Bankruptcy, Deb. Dig. § 61.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.]</p>

<p>1. Insotance (§ 349*) — Life Insurance — Construction of Policy — Time for Payment of Premiums.</p> <p>A provision of a life insurance policy, giving the insured a month of grace for payment of each annual premium, after it becomes due by the terms of the policy, does not 'apply to notes given for a past-due pre- . mium, after the month of grace for payment of such premium has expired.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 897; Dec. Dig. § 349.*]</p> <p>2. Insurance (§ 349*)- — Forfeiture—Nonpayment on Premium.</p> <p>Under the rule of the federal courts, failure to pay at maturity a note given for a past-due premium on a life insurance policy, containing a provision for forfeiture in such case, works an absolute forfeiture of the policy.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 897; Dec. Dig. § 349.*]</p> <p>3. Insurance (§ 310*) — Forfeiture—Nonpayment of Premium — Waiver.</p> <p>Where a premium on a life insurance policy is by the contract subject to a deduction equal in amount to a dividend to which the insured is entitled, it is the duty of the company to give him notice of such amount a reasonable time before the premium is due, and failure to give such notice is a waiver of the right to declare a forfeiture for nonpayment.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 703; Dec. Dig. § 310.*</p> <p>Notice of premiums, dues, and assessments, see note to Ferrenbaeh v. Mutual Reserve Fund Life Ass’n, 59 C. C. A. 317.]</p>

In the matter of Fishel, Nessler & Co., bankrupts. Qn report of referee as special master. Before petition filed the bankrupts had borrowed, on assigned accounts, from-three concerns; i. e., National Discount Company, Traders’ Commercial Oom-pany, and Bloomingdale Bros. In several instances, either by inadvertence or design, the same account was assigned to more than one lender.

<p>CORPORATIONS (§ 440*)-CHATTEL MORTGAGES — AUTHORITY TO GIVE.</p> <p>Act Pa. April 22, 1905 (P. L. 280), authorizing a corporation to mort-. gage its real or personal property, rights, privileges and franchises, etc., does not authorize a manufacturing corporation to mortgage raw materials and finished product to be bought and made in the future.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1775-1777 Dec. Dig. § 440.*]</p>

<p>Petition by W. K. Bass for writ of habeas corpus.</p>

In Equity. Suit by James Brann against L. A. Bell and others to remove cloud from title, and cross-bill by defendants to recover the land in question.

<p>At Raw. Action by E. L. Casey against the Barber Asphalt Paving Company; On motion by defendant for judgment notwithstanding the verdict.</p>

Prosecution by the United States against the Standard Oil Company of New York for violation of the Elkins act, in accepting rebates on various shipments of oil. On plea of former conviction.

<p>Indictment against the Pacific Live Stock Company for unlawfully inclosing public domain.</p>

In the matter of the estate of the Eyons Beet Sugar Refining- Company, bankrupt. On review of an order of the referee disallowing claim of William H. Egan.

<p>Landlord and Tenant (§ 25*) — Lease— Execution — Meeting of Minds.</p> <p>Defendant proposed to execute a lease for ten years, with an option of renewal for a similar period, the option to be exercised by plaintiff not more than two years before the end of the first term. Plaintiff submitted a counter proposal that the option should be extended not later than one year before 1he end of the term, and this counter proposal was never accepted in writing, though it was so required to be by” the Pennsylvania statute of frauds. If old, that the lease and the option to renew were mutually interdependent, and not independent proposals, and hence there was no contract, for want of a meeting of minds.</p> <p>JEd. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ <>0-75; Dee. Dig. § 25.*]</p>

In the matter of W. E. Wardlaw, bankrupt. On petition to renew an order of the referee directing sale of the bankrupt’s reversionary-interest in homestead property.

Action by William W. Wishart for the use of certain others against the Supreme Council of the Royal Arcanum. Judgment for plaintiff, and defendant brings- error.

Habeas corpus proceeding by Johan Tiberg, also known as Edwin Johansen, against Joseph F. Warren, Special Agent of the Department of Justice, and another. From ⅛ judgment remanding petitioner to custody, he appeals. This is a proceeding by habeas corpus instituted by Johan Tiberg, also named Edwin Johansen, to procure his rele'ase from custody.

<p>Aliens (SS 54*) — Order of Deportation — Kevtisw by Courts.</p> <p>Immigration Act March 3, 190.'!, c. 1012, § 21, 32 Stat. 1218, and Act Feb. 20, 1907, c. 1134. § 21. 34 Stat. 905 (U. S. Comp. St. Supp. 1909, p. 459), which is similar, each authorizing the Secretary of Commerce and Dabor, if he shall be satisfied that an alien has entered or is found in the United States in violation of the act, to cause him to be deported at any time within three years after his landing or entry, vest in such executive ‘ officer during the period of probation exclusive power to determine the facts and to enforce the provisions of the act, and neither his findings nor the order based thereon is subject to judicial review on writ of habeas corpus or otherwise, except for a denial of the hearing intended by tlie act.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 54.*]</p>

<p>Aliens (§ 54*) — Order of Deportation — Review ry Courts.</p> <p>• A finding by the Secretary of Commerce and Labor, based on evidence, that an alien who entered the United States less than three years previously had been convicted of a crime involving moral turpitude in the country from, which he came and was thererore ineligible to entry under Immigration Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898 (U. S. Comp. St. Supp, 3909, p. 448), and an order of deportation based on such finding are both within the powers vested in the Secretary by such act and are not reviewable by the courts.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 54.*J</p>

<p>1. Aliens (§ 32*) — Deportation op Chinese — Appeal.</p> <p>An appeal will lie to the Circuit Court of Appeals from a judgment of the District Court affirming an order of deportation.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*) — Deportation op Chinese — Evidence.</p> <p>A deportation proceeding is civil in its nature, and therefore to be decided by the preponderance of the evidence.</p> <p>I Ed. Note. — For other cases,, see Aliens, Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 32*) — Deportation of Chinese — Evidence or Citizenship.</p> <p>In a Chinese deportation proceeding, evidence held to require a finding that the alleged alien is a native-born citizen of the United States.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see notes to Wong You v. United States, 104 C. C. A. 538.]</p>

Suit by the Mitchell Coal & Coke Company against the Pennsylvania Railroad Company. From an order of dismissal (183 Fed. 908) for want of jurisdiction, plaintiff brings error. On motion to dismiss.

Action by Charles P. Allen, executor, against the Seaboard Air Line Railway and another. Judgment for plaintiff, and defendants bring error. This cause comes here upon appeal from, a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below.

Deportation proceedings by the United States against Chin Tong. From an order reversing a deportation order made by a commissioner for want of jurisdiction, the United States appeals.

. Criminal prosecution by the United States against Wiilliam Matthews, Jack Shelton, and others for robbery of the mail. Judgment of conviction and said named defendants bring error.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Frank N. Thomas against Conrad H. Matthiessen. Judgment for defendant, and plaintiff brings error.</p>

In the matter of bankruptcy proceedings of M. Folander. From an order overruling a motion to set aside an 'adjudication on an involuntary petition of Dick Hart and others, the Sidney L,. Bauman Diamond Company and others appeal.

<p>In Error to the District Court of the United States for the District of Nebraska.</p> <p>Criminal prosecution by the United States against Theodore Khar-as. From a judgment of conviction, defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>. Suit in equity by William C. Wood and Fred S. Rowe against Edward H. Jennings.</p>

■ Action by Walter H. Couch against the Dane Bros. Company. Judgment for plaintiff, and defendant brings error. Lane Bros. Company, a contracting corporation, was engaged in building a railroad, and the deceased, Couch, was in its employ as a locomotive fireman on a construction train. A bridge structure being ready for the ties, this locomotive undertook to haul them from the loading siding to the bridge site.

Action by Peter McGough, as administrator of the estate of Peter Fulirman, against B. A. Worthington, as receiver of the Wheeling & Lake Erie Railroad Company. Prom an order granting- plaintiff's motion for a nonsuit before submission, defendant brings error.

Bill by the Rinen Thread Company and another against A. Booth & Company. From a decree dismissing Henry S. Robbins’ petition for an allowance of counsel fees, he appeals adversely to William J. Chalmers, Receiver, and others. This appeal is from a decree in the principal case, dismissing for want of equity tlio appellant’s petition for allowance of counsel fees out of the estate in Die custody of the court.

Suit by the Chicago & Alton Railroad Company against the Pressed Steel Car Company. From an interlocutory order staying prosecution of defendant’s suit at law against complainant until further order of the court, defendant appeals. This appeal is from an interlocutory order, entered in the suit of appellee against the appellant, in equity, and the appellee moves for dismissal of the appeal, for want of appealable subject-matter.

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>Action by Anthony Reebusch against the Cincinnati Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.</p>

Action by John Smoke against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error. On writ of error to review a judgment for costs entered in favor of the defendant upon a verdict directed by the court at the close of plaintiff's testimony.

Petition to Review an Order of the District Court of the United States for the Southern District of Ohio. Action by J. D. Barnes, as trustee in bankruptcy of the Gernian-American Bank, and another, against John P. Pampel and others. From a judgment denying an application to dissolve a lien in favor of one Kimpton on property alleged to have been fraudulently conveyed by the bankrupt, petitioners filed a petition for review. On motion to dismiss.

<p>Master and.Servant (§ 217*) — Assumption op Risk — Unsafety op Place op ' ‘ ’Work. ‘</p> <p>" A paper mill énrployé assumed tbe risk of being injured through his foot slipping.on a slimy floor, causing his hand .to be caught between un-.'guarded, revolving rolls of a nearby machine, where be had worked at the place for a year, and was familiar with the surrounding conditions, and where it was his duty to keep the floor free from slime.</p> <p>|R(i. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Suit in equity by George W. Darr and another against the Amarillo Water, Light & Power Company, in which R. D. Wood & Co. intervened as against Frank A. White, receiver of defendant’s property. From a judgment in favor of the receiver, intervener appeals.</p> <p>The appeal in this case is taken from a decree ol' the Circuit Court overruling appellant's exceptions to the report of the special master and confirming his report. The question at issue arose in the course of the administration of the property of the Amarillo Water, Light & Power Company through a receivership under a bill in equity filed in the Circuit Court by certain of its stockholders. During the progress of the administration it became necessary for the receiver to purchase of appellant certain cast iron pipe, hydrants, valves, and other material for the completion of a contract. The dispute arose concerning the construction of the contract of purchase as to the proper scope of the discount allowable by it. The receiver applied to the Circuit Court for instructions as to the payment. The court referred the matter to a special master, to report his conclusions ef fact a.nd law, which he did adversely to appellant, and his report was confirmed by the Circuit Court, by the decree from which this appeal is taken.</p> <p>On August 30, 1910, appellant submitted to the receiver two separate written proposals, one for the sale of pipe and specials, and another for the sale of hydrants, valves, and valve boxes. The proposal for the sale of pipe and specials, after quoting prices, contains this language: “The above tender is based on our regular terms of net cash 30 days from date. If you should elect to settle on cash against shipping documents, we would be pleased to name a discount of 1¼ per cent.’- The proposal to sell hydrants and valves, about which the dispute relates, reads as follows:</p> <p>“New York, August 30, 1909.</p> <p>“Frank A. White, Esq., Receiver Amarillo Water, Light & Power Co., Amarillo, Texas — Dear Sir: In company with our proposal of this date, we are pleased to quote as follows on fire hydrants and gate valves, including boxes:</p> <p>80 4-in. double nozzle 3-ft. hydrants. $23.85 each</p> <p>34 4rin. Bell end gate valves and boxes. 11.00 each</p> <p>19 6-in. Bell end gate valves and boxes. 15.75 each</p> <p>7 8-in. Bell end gate valves and boxes. 21.40 each</p> <p>2 10-in. Bell end gate valves and boxes. 29.75 each</p> <p>“The above prices include delivery f. o. b. cars Amarillo. Same terms to apply in case of cast iron pipe. We regret your expectation of delay in placing order for this material; but, if you find that you are able to order witn pipes, we would be willing, owing to our ability to avail ourselves of present opportunity for shipping at favorable rates, to quote4 you a. discount of 6 per cent, from the above prices. In this case the goods would be invoiced at the above figures, and the discount allowed from the face of the entire invoice of pipe, hydrants, etc.</p> <p>“In making this offer we trust that the quality of our hydrants and valves may receive your greatest consideration, as in these goods we Claim . distinction in minimum dost of maintenance. Our long experience in making a specialty of supplying materials for fire protection has led us to adhere strictly to a type of tools which are thoroughly dependable at a critical fire. These goods are fully brass-mounted, made and tested in. accordance with the best of practice, and our metals are mixed chemically, supervised by our laboratory for the special strains to which they are sure to be subjected.</p> <p>“Yours very truly, R. D. Wood & Co.,</p> <p>“Diet. E. J. L. Per E. J. Lame.”</p>

Bill by the Holeproof Hosiery Company against Wallach Bros. From a decree for complainant (190 Fed. 606), defendants appeal. Appeal from a final decree enjoining the defendant from using or employing a certain package for hosiery and from supplying “Knotair” hosiery in response to requests for “Holeproof” hosiery. This is the second time this case had been before this court.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Habeas corpus by the United States, on the relation of Demitrius Elliopulos, against William Williams as Commissioner of Immigration, to test the legality of a warrant of deportation issued by the' Acting Secretary of Commerce and Labor. From an order dismissing the writ, relator appeals.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by Catherine Kennedy against the Mason City & Ft. Dodge. Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Action by Eewellen Bros, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Teial (§ 340*) — Verdict—Amendment—Power to Make.</p> <p>Where the jury returned a verdict for plaintiff on a specified cause of action without finding on other causes of action submitted, the trial judge properly refused, after the jury had been discharged, to amend the verdict to show a finding for defendant on the other causes of action, no attempt having been made to have the jury interrogated as to their finding on thorn.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795-799; Dec. Dig. § 340.*]</p> <p>2. Fraud (§ 58*) — Sale—Misrepresentations—Value op Property — EvM-DICNCE — SUPPICIENCY,</p> <p>In an action for inducing plaintiff to purchase bonds under false representations, evidence held to sustain a finding that the bonds were not worth what plaintiff paid for them.</p> <p>[Ed. Note. — For other cases, see Fraud, Dec. Dig. § 58.*]</p> <p>8. Fraud (§ 59*) — Sale—Misrepresentations—Measure op Damage.</p> <p>In an action for inducing plaintiff to purchase bonds under false representations, it was error to instruct .that plaintiff’s measure of damages was the difference between the actual value of the bonds and what their value would have been if the representations had not been untrue and to refuse to instruct that the measure was the difference between the contract price and the actual price.</p> <p>[Ed. Note. — For other eases, see Fraud, Dec. Dig. § 59.*]</p>

<p>Bakes akd Banking (§ 189*) — Drafts—Improper Issuance — Notice—Pay- • ment in Due Course,</p> <p>Plaintiff bank, doing business at Mt. Vernon, Wash., mantained a deposit with defendant as its New York correspondent, and, having elected L. as its president, notified defendant of his signature, and that he had authority to sign drafts against balances held for the credit of plaintiff bank. Thereafter L., for an unauthorized purpose, drew a draft against plaintiff’s account with defendant, which was regular in every way, except that it was dated at “Billings, O. T., dime 6, 1902,” instead of at Mt. Vernon, and this draft, being received in due course and being for less than the amount of plaintiff’s deposit, defendant paid. Held, that the fact that the draft was on a blank intended for the customers of the payee, a Billings bank, and was dated at Billings, was not so indicative of fraud as to put defendant on inquiry; and lienee plaintiff could not recover the amount of the draft from defendant.</p> <p>|Ed. Note. — For other cases, seo Banks and Banking, Oont. Dig. §§ 729-7112; Doc. Dig. § 189.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Albert B. Cameron was convicted of perjury, and he appeals.</p> <p>On writ of error to review a judgment convicting the defendant of perjury committed in the course of bankruptcy proceedings instituted against the Knickerbocker Piano Company. The defendant was sen-tSnced to one year’s imprisonment in the penitentiary at Blackwell’s Island, N. Y.</p>

<p>1. Appeal and Error (§ 260*) — Exceptions to Evidence — Sufficiency.</p> <p>Sufficient exceptions were taken to a notice of personal injury offered in evidence under an employer's liability act (Laws N. Y. 1902, c. COO), where the trial court, after having the notice marked for identification, reserved any ruling as to its sufficiency, where, when the notice was offered in evidence just before summing up by plaintiff’s counsel, it was objected to ns being insufficient, where the trial court granted “exception to the admission of testimony as to the service of that exhibit or as' complying with the statute,” and where defendant excepted to refusal to direct a verdict in its favor.</p> <p>FEd. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. § 260*1</p> <p>2. Master and-Servant (§ 252*) — Employer’s Liability Act — Notice oe Injury — S UFF10IEN CY.</p> <p>A notice to a navigation company, that an employe was injured because “certain material was caused and permitted to fall upon and injure” him while he was at work on a pier, is insufficient, under ihe employer’s liability act (Laws N. Y. 1902, c. 600), requiring a notice of injury to set forth the circumstances thereof.</p> <p>[Ed. Note. — For oilier cases, see Master and Servant, Dec. Dig. § 252.*]</p> <p>3. Master and Servant (§ 278*) — Injury to Employé — Negligence—Evidence — S ufficiency.</p> <p>In an action against a navigation company for injury to employé, caused by a bale ol cotton falling upon him while he was trucking bales on a pier, evidence hekl insufficient to show negligence of the company.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 278.*]</p>

Action by Jane Baldwin, administratrix of the estate of Henry Baldwin, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.

<p>Bankruptcy (§ 214*) — Coixatehai Seccrities — Riguts on Creditor.</p> <p>A bankrupt’s creditor is not entitled to modification of an injunction against disposition of the bankrupt’s assets, so as to permit sale of unsecured debenture bonds of the corporatioiqheld by the creditor as collateral to the bankrupt’s note, the bankrupt “having received no consideration for the bonds; but the creditor is entitled to relief as to other bonds, also held as collateral, which have been sold by the bankrupt to third persons upon consideration.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 214.*j</p>

Petition by Warren Ozro Kyle and others against John C. Hammond and others to review a decision in bankruptcy. On application by petitioners for leave to appeal to the Supreme Court.

<p>1. Criminal Daw (§ 1166½*) — Review—Haemless Error — Ruling as to-Peremptory Challenges.</p> <p>A preliminary ruling in a criminal prosecution restricting the number of defendant's peremptory challenges, if erroneous, was harmless, where defendant makes no complaint that any juror that tried him was unfair or partial, or that any particular juror who tried him was objectionable to him, or would have been peremptorily challenged but for the ruling complained of.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Dec. Dig. § 1166½.*]</p> <p>2. Jury '(§ 135*) — Peremptory Challenges — Nature oe Right.</p> <p>The right of peremptory challenge of jurors is one to reject, and not to select.</p> <p>[Ed. Note.- — For other cases, see Jury, Cent. Dig. §§ 599-006; Dec. Dig. § .135.*]</p> <p>3. Banks and Banking (§ 257*) — Misapplication oe Funds — Evidence— Contents op Books.</p> <p>The cashier of a national bank is chargeable with knowledge of the books of the bank, and on a prosecution for willful misapplication of funds it was not error to allow the contents of the books to be proved. [Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257. *]</p> <p>4. Banks and Banking (§ 257*) — Misapplication oe Funds — Evidence-Intent.</p> <p>•'On a prosecution of the cashier of a national bank for misapplication of the bank’s funds by discounting worthless and unsecured notes for his own use, the only intent necessary to be proved was that he did the acts complained of purposely and designedly.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>5. Banks and Banking (§ 257*) — Misapplication of Funds — Evidence— Solvency oe Defendant.</p> <p>On such prosecution, it was immaterial whether the defendant believed himself solvent or insolvent: the real 'issue being whether he applied the funds to discount unsecured notes that he knew, or should have known, to be worthless.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p> <p>6. Banks and Banking (§ 257*) — Misapplication oe Funds — Evidence— Reputation of Makers oe Discounted Taper.</p> <p>The general reputation of the parties who made the worthless notes- or paper discounted was irrelevant. ></p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 257.*]</p>

<p>Appeal from the District Court of the United States for the District of Minnesota.</p> <p>In the matter of the estate of Josiah I,. Robinson, bankrupt. From an order granting the bankrupt a discharge, the Fidelity Trust Company, a creditor, appeals.</p>

Suit in equity by the Wagner Electric Manufacturing Company and others against the Century Electric Company and Edwin S. Pillsbury. Decree for complainants, and defendants appeal.-

<p>In Equity. Suit by Joseph B. Bong against the Noye Manufacturing Company. On final hearing.</p>

<p>In the matter of Knacy L-. Tanner and wife, bankrupts. On application for discharge.</p>

<p>In the matter of James H. Smith, bankrupt. On petition of Baltimore Pulverizing Company to reclaim property.</p>

<p>1. Aliens (⅜ 32*) — Chinese Laborers — Deportation- Proceedings — Bait.— Power to Grant.</p> <p>Though Chiuese Exclusion Act May 5, 1892, e. 60, 27 Stat. 25 (U. S. Comp. St. 1901. p. 1319), as amended hy Act Nov. 3, 1893, c. 14, 28 Stat. 7 (U. S. Comp. St. 1901, p. 1322), does not. specifically authorize admission to bail of one ordered deported pending an appeal from the order of deportation, such bail may be granted, in the .sound discretion of the court.</p> <p>TEd. Note. — For other cases, see Aliens. Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*) — Ciunese Laborers — Deportation Proceedings — Bate— Power to Grant — "Order oe Deportation.”</p> <p>The requirement of Chinese Exclusion Act May 5, 1892, c. 00, 27 Stat. 25 (ü. S. Comp. St. 190J, p. 1319), as amended by Act Nov. 3, 1893, c. 14, 28 Stat. 7 (U. S. Comp. St. 1901, p. 1322), that an order of deportation be executed by the marshal, and that the person to he deported shall not be admitted to hail, refers to the final order of deportation, and does not prohibit bail pending an appeal.</p> <p>TEd. Note. — For other eases, see Aliens, Dee. Dig. § 32.*]</p> <p>3. Aliens (§ 32*) — Chinese Laborers — Deportation Proceedings — Bail - Power to Grant.</p> <p>If necessary, a bail bond given in a deportation proceeding imder Chinese Exclusion Act l\Iay 5, 1.892, e. 60, 27 Stat. 25 (U. S. Comp. St. 1901, p. 1319), as amended hy Act Nov. 3, 1893, c. 14, 28 Stat. 7 (U. S. Comp. St. 1901, p. 1322), pending an appeal from an order of deportation, should be treated as voluntary and enforceable, though not authorized by law, since it does not violate any statute, and is not contrary to public policy or otherwise illegal.</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. 53.8.]</p>

<p>Aliens (§ 22*)- — Chinese Laborers — Deportation Proceedings — Nativity— Evidence — Weight.</p> <p>Evidence in a deportation proceeding held to show that defendant is an American citizen, and not a Chinese laborer unlawfully in the country.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. §§ 93-95; Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]</p>

<p>At Law. Action by Joseph Behrens, as administrator, etc., against the Illinois Central Railroad Company. On defendant’s motion for direction of verdict.</p>

<p>Aliens (§ 32*) — Guíñese Persons — Seamen—Deportation.</p> <p>A Chinese seaman, having been landed and taken to a,hospital for medical treatment, after his recovery tried to ship as a seaman, hut, being unsuccessful, obtained employment on shore as a laborer. Held thyl, even if the necessity of hospital treatment dispensed with the necessity of his giving a bond to depart within 30 days, he was nevertheless bound to depart within that time after his discharge from the hospital, and, not having done so, was subject to deportation.</p> <p>I Ed. Note. — For other cases, see Aliens, Dee. Dig. § 32.*</p> <p>What Chinese persons aro excluded from the United States, see note to Wong You v. United States, 104 O. C. A. 538.]</p>

<p>1. Waters and Water Courses (§ 222*) — Reclamation Act — Construction oe Works by United States.</p> <p>In the construction of works for the irrigation of arid public lands under Reclamation Act June 17, 3902, c. 1093. 32 Stat. 388 (U. S. Comp. St. Supp. 1909, p. 590). the United Stales is not exercising a governmental function nor even a strictly public function, but is promoting its proprietary interests, and such, advantage as arises therefrom to the public at large is material, and not governmental.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 222.*] ■</p> <p>2. Removal of Causes (§. 21*) — Suits Against ok foe Acts of United States Officers — “Revenue Daw.”</p> <p>Reclamation Act June 17, 1902, c. 1093, 32 Stat. 3S8 (U. S. Comp. St. Supp. 1909, p. 59G), by which the government advances the cost of reclamation works, and collects from purchasers .of the lands benefited. only sufficient to reimburse it for the expenditure, is not a “revenue law” within the meaning of Rev. St. § 643 (U. S. Comp. St. 1901, p. 521), which provides for the removal of suits brought in state courts “against 'any officer appointed under or acting by authority of any revenue law of the United States” on account of any act done under color of his office, and a suit against the officer in .charge' of reclamation work to determine water rights in a stream is not removable by him thereunder. Nor is there any reason of public policy why such suit should be transferred to the federal 'courts, as by the terms of the act the rights of the government as an appropriator* of water are governed by the laws of the state and are no greater than those of any other user.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§. 49, 51; Dec. Dig. § 21.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6209-6211.]</p>

<p>1. Removal oe Causes (§ 21*) — Suits Against Federal Officers — “Revenue Law of United States.”</p> <p>Reclamation Act June 17, 1902, c. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1909, p. 596), providing for the construction of irrigation works on the public land by the United States, the cost to be repaid to it by purchasers of the lands irrigated, is not a “revenue law of the United States” within the meaning of Rev. St. § 643 (U. S. Comp. St. 1901, p. 521), authorizing the removal of any suit brought in a state court against any officer appointed under or acting by authority of any revenue law of the United States, and such section does not apply to a suit against the officer in charge of a reclamation project because of acts done under color of his office.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 49, 51; Dec. Dig. § 21.*</p> <p>■ For other definitions, see Words and Phrases, vol. 7,. pp.. 6209-6211.]</p> <p>2. Removal of Causes (§ 21*) — Courts (§ 296*) — Federal Question — Defense Based on Law of United States.</p> <p>The fact that the defendant is an officer of the United States, and claims to have been acting under a law of Congress when he did the acts complained of, does not give a federal court jurisdiction of the cause either original or by removal under Judiciary Act March 3, 1887, c. 373, §§ 1, 2, 24 Stat. 552 (U. S. Comp. St. 1901, pp. 508, 509).</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 49, 51; Dec. Dig. § 21;* Courts, Cent. Dig. § 838; Dee. Dig. § 296.*</p> <p>Jurisdiction of federal courts in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. O. C. & S. Mining Co., 35 O. C. A. 7; Earnhart v. Switz-ler, 105 C. C. A. 262.]</p>

<p> (Syllabus hy the Court.) </p> <p>1. INDIANS (§ 8*) — Allotments—Authority of Congress.</p> <p>The state of Oklahoma, by the terms of the enabling act (Act June 16, 1906, e. 3335, 34 Stat. 207), under which it was admitted, expressly consented that the federal government should reserve to itself and exercise its power of regulation and control over the disposition of allotted lands of members of the Five Civilized Tribes, to the exclusion of the power possessed by the state over the property and persons of its other citizens.</p> <p>fEd. Note--For other cases, see Indians. Doc. Dig. § 8.*1 ’ ...</p>

<p>1.Removal op Causes (§ 49*) — SEPARABLE Controversy — Joint Liability op Railroad and Engineer.</p> <p>A complaint in an. action against a railroad in which the engineer was joined as a codefendant, alleging that the collision in which plaintiff was injured resulted from disobedience of orders by the engineer, the only negligence of the railroad alleged being the acts of the engineer- and other' employés, does not show a separable controversy so as to be removable to the federal court.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. § 97; Dae. Dig. § 49.*]</p> <p>2. Removal op Causes (§ 36*) — Separable Controversy — Purpose op Join-der — Eppect.</p> <p>Where, on the face of the record plaintiff appears to have a cause of action against each of the defendants joined, one of whom is a resident of the same state as plaintiff, it is not material that the actual purpose of plaintiff in joining the resident defendant was to prevent removal to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig.' § 79; Dec. Dig. § 36.*</p> <p>Separable controversy, ground for removal of cause, see notes to Robbins v. Ellenbogen, 18 C. C. A. S6; Meeke v. Yalleytown Mineral Co., 35 C. C. A. 155; Pollitz v. Wabash R. Co., 100 C. C.- A. 4.]</p> <p>3. Removal op Causes (§ 107*) — Motion to Remand.</p> <p>For the purpose of passing on the question whether there has been a fraudulent joinder of defendants to prevent removal to the federal court, the motion to remand may be regarded as a- demurrer to the petition as not stating sufficient grounds for removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 227; Dec. Dig. § 107.*]</p> <p>4. Removal op Causes (§ 86*) — Fraudulent Joinder op Resident Depend-ant-Petition por Removal — Sufficiency.</p> <p>In an action against a railroad in which the engineer was joined as . ■ a codefendant, the complaint alleged that such codefendant was the engineer on the train on which plaintiff was a passenger; that, as such engineer, he had received orders to hold his train at a certain point until a'certain hour, or until a certain other train had passed; that he did not hold his train as ordered; and that a collision resulted in . which plaintiff was injured. The petition for removal to the federal ■ court alleged that plaintiff knew when she started the suit that she had no cause of action against the engineer, and that he was not a proper party to the action. It was further alleged that said engineer was in no way responsible for plaintiff’s injuries and that he had been joined as a defendant for the sole purpose of preventing removal by the railroad.. There was no allegation that plaintiff had refrained from stating any facts showing the engineer’s negligence. Held, on motion to remand, that the petition for removal did not state sufficient facts to show that the joinder of the engineer was fraudulent.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 80.*</p> <p>Fraudulent joinder of parties to prevent removal, see nóte to Oft'ner v. Chicago & E. R. Co., 78 C. C. A. 362,]</p> <p>5. Removal of Causes (§§ 8i), 107*) — Joinder of Resident Defendant-Good Faith — Burden of Proof.</p> <p>On an issue of fact raised by a petition for removal to the federal court and a motion to remand, as to the good faith of plaintiff in joining employe as a codefendant, the burden of proof is on the petitioning defendant.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 198, 230; Dec. Dig. §§ 89, 107.*]</p> <p>6. Process (§ 163*) — Amendment.</p> <p>A summons directed to the sheriff of one county and served by the sheriff of another is not void, but may be amended under Kirby’s Dig. Ark. § 0145, which provides that a court may, ¡it any time, in the furtherance of justice, amend any pleading or process by adding or striking out tlie name of any party, or by correcting a mistake in any other respect, or by inserting other allegations material to the case.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 224-238; Dec. Dig. § 103.*]</p> <p>7. Removal of Causes (§ 49*) — Nonservice on Resident Defendant. ,</p> <p>The mere fact that a resident defendant in a joint suit is not served does not entitle the nonresident defendant to a removal to the federal court as for a separable controversy.</p> <p>[Ed. Note. — For other cases, see Removal of Canses, Cent. Dig. § 98; Dec. Dig. § 49.*]</p> <p>8. Removal of Causes (§ 08*) — Local Prejudice — Ground for Removal.</p> <p>A suit against two defendants, one of whom is a nonresident and the other a resident of t|je state, is not removable to the federal court on the ground of prejudice and local influence against the nonresident defendant in the county in which the suit is brought and in adjoining counties.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 122, 123; Dec. Dig. § 68.*</p> <p>Removal of cause for prejudice or local influence, see note to P. S. Schwenk & Co. v. Strang, 8 C. C. A. 95.]</p>

<p>3, CORPORATIONS (§ 644*) — Foreign Corporation's — Statutory Regulation-Validity.</p> <p>Act Ill. 1905 (Hurd’s Rev. St. 1905, c. 32, §§ 67b-G7j), prohibiting foreign corporations, with certain exceptions, from transacting business in the state without filing a copy of their articles under penalty of disqualification to sue in Illinois and a fine, is a valid exercise of the Legislature’s power.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2512, 2539; Dec. Dig. § 644.*</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J, &'G. Meakin, 33 C. C. A. 585; Ammons v. Brunswick-Balke Collender Co., 72 C. C. A. 622.]</p> <p>2. Coiners (§ 366*) — State Court Decisions — Effect.</p> <p>Decisions of the Supreme Court of a state construing a statute of that state do not bind a federal Circuit Court sitting in another state, if the decisions were announced after rights of the parties before the Circuit Court became fixed under contract.</p> <p>I Ed. Note. — for other cases, see Courts, Cent. Dig. §§ 954-968; Dec. Dig. § 360*</p> <p>Conclusiveness of judgment, between federal and state courts, see notes to Kansas City, l^t. S. & M. R. Co. v. Morgan, 21. C. G. A; 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>3. CORPORATIONS (§661*)-FOREIGN CORPORATIONS — STATUTORY REGULATIONS— Effect of Disobedience.</p> <p>Failure to comply wilh Act Ill. 1905 (Hurd’s Rev. St. 1905, e. 32, §§ 67b-07j), prohibiting foreign corporations, with cerlain exceptions, from transacting business in the state without filing a copy of their articles, under a penalty of disqualification to sue in Illinois and a fine, does not invalidate a contract made by a foreign corporation to furnish work and materials in building construction, so as to prevent suit in another jurisdiction.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 661.*]</p>

Ill Equity. Bill by Ebenezer J. Foster-Eddy against Henry M. Baker, executor, and others. On demurrer to the bill and on application for leave to amend the bill.

<p>Prosecutions against Edward G. Lewis and against H. B. Gardner and others. On plea in abatement to the indictments.</p>

<p>Mtjnioipat, Corporations (§ 7*) — Ports—‘‘Drainage Basin.”</p> <p>Under tlie Oregon act (Laws 1909, p. 78) which provides for incorporation of ports, and that where the limits of a port do not include an entire county they shall not extend beyond the natural watershed of any drainage basin whoso waters flow into another bay, estuary, or navigable river, the drainage basin of a hay comprises all its arms and inlets, and land situated on the watershed of a slough constituting an arm of the bay was properly included in the territory of a port established on the bay.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 7.*]</p>

<p>Chinese deportation proceedings by the United States against L,im Jew. From a deportation order, defendant appeals.</p>

<p>In Equity. Suit by James M. Wright against: E-. J. Amann for dissolution and settlement of a partnership.</p>

<p>At L,aw. Action by Elizabeth Lewis against the Cincinnati, New Orleans & Texas Pacific Railway Company. On plaintiff’s motion to remand cause to state court.</p>

In Equity. Bill by Will T. Barker and others against Edwin G. Eastman, trustee, and others, to establish rights, and for relief in respect to a will.

At Law. Action by Louis Simon and others against the American Tobacco Company and others. On motion to compel plaintiff to accept an unverified answer.

<p>At" Eaw. ' Action by the Warsaw-Wilkinson Company against the Exchange Mtítuaí Fire Insurance Company.</p>

Action by the Mine Hill & Schuylkill Haven' Railroad Company against William McCoach, Collector of Internal Revenue, to recover corporation taxes paid for the years 1909 and 1910. On rule for judgment for want of sufficient affidavit of defense.

In Admiralty. Suit by Harvey Granger and Charles E. Lewis against the Providence-AV;ashington Insurance Company. This is a libel in personam against the underwriters for the value of part of a cargo of dressed yellow pine lumber shipped on the schooner Wellfleet from Savannah, Ga., on October 23, 190S, bound for Norfolk News, which was jettisoned on October 30, 1908, through stress of weather.

In Admiralty. Ribel by Nina Dangelo, administratrix, against the John W. Danforth Company and others. This is a libel in, personam to recover damages against the John W. Dan-forth Company, Benjamin L. Cowles, and the O. H. Starke Dredging Company for negligently causing Hie death of Nicolo Dangelo by the capsizing of a mud scow on September 1(>, 1910, in Buffalo Harbor near the north entrance to the river.

In the matter of bankruptcy proceedings of Augustus S. Downing. Appeal from and petition to review an order of the referee in bankruptcy, authorizing and directing the trustee to sell the bankrupt’s interest, if any, in certain real estate which he once owned, but transferred to his wife more than four months prior to the institution of bankruptcy proceedings.

In the matter of bankruptcy proceedings of James Carothers & Co. On petition for rule on the trustee to show cause why he should not be removed, and why certain orders for the sale of assets should not be revoked, and certain persons compelled to make restitution to the bankrupt’s estate.

<p>In the matter of bankruptcy proceedings of James Carothers & Co. On certificate of referee and petition to review an order of distribution.</p>

<p>In the matter of Frank W. Currier, bankrupt. On review of an order of the referee refusing to expunge a claim of Walter Foucks.</p>

<p>1. Emksahd B a memo (⅜ (71*) — T> ioposit of Checks — Failukis. to Forward.</p> <p>Wliere defendant, after depositing a check in the bank of which ho was president, acquiesced in the bank’s retention thereof, and the check would not have been paid, if forwarded sooner, because the maker had not sufficient funds in the bank on which it was drawn to meet it, it was no defense to the defendant’s liability on the check, after it had been forwarded and protested, that it was not forwarded in time.</p> <p>LEd. Note. — For other cases, see Banks and Banking, Cent. Dig. § 616; Dec. Dig. § 171.*]</p> <p>2. Banks and Banking (§ 54*) — Checks—Obligation to. Pay™Loans.</p> <p>The II. Bank, from which a corporation in which defendant was interested borrowed large sums of money, having suffered an impairment of capital, it was arranged that the bank should draw a draft on defendant individually to cover .such impairment, and that the draft should be made good by the check of the corporation. The draft was drawn, accepted, and paid through the D. Bank, of which defendant was president. the charge being offsel by a credit of a deposit of: the corporation’s check for the same amount which, when presented to the >1. Bank for payment, was protested for lack of funds of the drawer to pay it, and on its return defendant directed that it be carried as a cash item of the D. Bank instead of being charged back to his account. Held, that the draft not having been intended to be a bona fide loan of .money, but a mere pretense to repair the reserve of the M. Bank until danger of governmental examination was over, and the effect of the transaction being to withdraw the amount of the draft from the D. Bank's assets, defendant was bound to make good that amount-to the D. Bank.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Dee. Dig. § 54.*,J</p> <p>3. Banks and Banking (§ 54*) — Insolvency—Officer’s Contract or Employment-Breach.</p> <p>Where the contract of a bank president to serve in such capacity was terminated by no act of the bank, but by its suspension, which disabled both the bank and the president from continuing its affairs, the president’s salary ceased when the bank went but of business, and he ceased to preside without any liability of the bank for an unexpired term of the contract.</p> <p>[Ed. Note.- — For other cases, see Banks and Banking, Dee. Dig. § 54.*]</p> <p>4. Set-Off and Counterclaim (§ 8*) — Equitable Defenses — Set-Off—Federal Courts.</p> <p>An equitable defense is not available as a set-off in an action at law in the federal court.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent Dig. §§ 9-11; Dec. Dig. § 8.*]</p> <p>5. Banks and Banking (§ 77*) — Receivers—Claims—Set-Off.</p> <p>In an action by a receiver of a bank against its former president on an indebtedness, the receiver’s alleged misappropriation of a certificate of deposit was not available as a set-off, where there was not sufficient evidence to show that such certificate belonged to defendant and not to a construction company of which the defendant was also president and for whose benefit it was issued.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 77.*]</p>

In the matter of the Jackson Stores, bankrupt. Application of D. H. Riley, trustee of the Jackson Stores, bankrupt, for authority to compromise suits pending in Uaurens superior court against certain stockholders of bankrupt.

<p>Public Lands (§ 120*)- — Suit for Cancellation of Patents — Fraudulent Entries.</p> <p>Defendant, who was a large owner of sheep which he pastured- on the public lands, procured different persons to file homestead and stone and • • timber claims on lands within his range, paying their filing fees, the expenses of their residence and improvements, the purchase price of the land on commutation of entries, and a further suni to each entryman, all of whom conveyed their lands to him on obtaining title. The homestead entrymen did not comply with the law as to residence, and improvement, and their proofs were fraudulent. Held, that such facts were sufficient lo show that the entries were made under an agreement or understanding, express or implied, with defendant that they were for his benefit, and that the United States was entitled to a cancellation of the patents for fraud.</p> <p>[Ed. Note.- — For other cases, see Public Lands, Dee. Dig. § 120.*</p> <p>Rights acquired by homestead settlements and entries, see note to Module v. Essig, 59 O. O. A. 434.‘|</p>

<p>Remo vat, oe Causes (§ 26*) — Dj\ekse Citizenship — Residence.</p> <p>Plaintiff, having been injured in Nevada by the operation of defendant’s railroad train, brought suit in that state under a law of Nevada requiring prosecution of the action for damages against defendant in a Nevada state court, alleging that he was a citizen of Idaho, and that defendant was a Kentucky corporation. Defendant, believing the allegation of residence to be true, proceeded to trial, and at the close of plaintiff’s case removed the cause on the theory that the evidence showed, that plaintiff was a resident and citizen of Nevada. The proof showed that plaintiff in 1903 went to Idaho and remained there for three years, after which he wandered around in search of work, without definite plans, intending, however, to return to Idaho in case he could not find work, and at the time of the accident he was on his way to T., Nev., in search of work. lie had no home in Nevada or fixed intention to make 'a koine there, but was only remaining for the prosecution of the' action. Held, that plaintiff was not a resident of Nevada, but of Idaho as alleged, arid that the suit was not therefore removable.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 60-63; Dec. Dig. § 26.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

<p>1. Evidence (§ 213*) — Admissions—Offer to Compromise — Corporate Resolutions.</p> <p>■ Where the vice president of a corporation was claiming compensation for extra services rendered for it, and the corporation in an effort to compromise passed a resolution admitting the rendition of the services and instructing the secretary and treasurer to pay him $1,000 out of the funds of the company, such resolution was admissible' in an action against the corporation for such services as an admission, under the rule that the admission of any distinct fact made eo animo is competent though made in the course- of proceedings for compromise.</p> <p>LEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-753; Dec. Dig. § 213.*]</p> <p>2. Corporations (§ 308*) — Officers—Rendition of Services.</p> <p>Where services rendered by plaintiff to a corporation of which he was a director or vice president were within the scope of his official duties, he could not recover therefor without proof of an express contract of employment with an agreement for compensation, hut as to services rendered outside the scope of his official duty he was entitled to recover on an implied promise if such promise could be inferred from the facts and circumstances in the case.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334^-1349; Dec. Dig. § 308.*]</p> <p>3. CORPORATIONS (§ 308*) — Officers—Services—Compensation—Evidence.</p> <p>Evidence held 1o warrant a finding that emergency services rendered by a corporation’s vice president were without the scope of his official duties, and that lie was entitled to recover compensation therefor, without an express contract to pay for them.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. § 308.*]</p> <p>4. New Trial (§ 157*) — Grounds—Waiver.</p> <p>A ground of motion for new trial not urged will not be considered. [Ed. Note. — For other cases, see New Trial, Dec. Dig. § 157.*]</p>

<p>1. Vendor AND Purchaser (§ 186*) — Defective Titee — Purchase Price.</p> <p>Where a contract for the sale of an interest in real and personal property provided that, if the title to any part thereof not conveyed by quitclaim deed should he found defective, the vendors should perfect the same as soon as possible, and that all payments thereafter to be mad» as well as the delivery of certain stock should he delayed until such titles were perfected, the vendee was excused from a failure to tender the purchase price, etc., by the fact that there was an apparent defect in the title to certain mining claims comprising a part of the property due to a failure to perform or a failure to furnish proof of performance of the annual labor on the claims required by law.</p> <p>lEd. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. § 373 ; Dec. Dig. § ISC.*]</p> <p>2. Specific Performance (§ 97*)- — Tender of Purchase Price.</p> <p>Where vendors by placing a mortgage on property and by conveying it to another had put it out of their power to perform their contract of sale, the vendees were not bound to tender the remainder of the purchase price or to allege such tender as a condition precedent to its right to maintain a suit for specific performance, and this though a demand was made for the deeds.</p> <p>fFd. Note. — For other cases, see Specific Performance, Dec. Dig. § 97.*]</p> <p>3. Specific Performance (§ 114*)- -Assignment of Contract — Pleading.</p> <p>In a suit by the assignee of a contract for the sale of real property for specific performance, it was not necessary that the bill should allege'that the assignment was in writing.</p> <p>I Ed. Note. — For other eases, see Specific Performance, Dec. Dig. § 114.*]</p>

<p>'George Graham Rice (alias Herzog) and others having been indicted for felony, he applies for bail during his trial.</p>

<p>Aliens (§ 28*) — Deportation Proceedings — Chinese—Exclusion.</p> <p>Chinese Exclusion Act (Act May 6, 1882, c. 126, 22 Stat. 60 [U. S. Comp. St. 1901, p. 1307] as amended) § 6, provides that a Chinese person, other than a laborer, entitled by the treaty to enter the United States, shall obtain the permission of and be identified as so entitled by the Chinese government, the certificate to be viséed by the United States diplomatic representative in the foreign country from which such certificate is issued, which certificate shall be prima facie evidence of the facts set forth therein. Defendant was a member of a Mexican mercantile firm having a capital of $50.000 American money, defendant’s interest being $10,000, which he inherited from his father. The firm’s business amounted to $150,000 a year. Defendant was sent into the . United States with instructions to report as to advisability of opening branch stores in the United States, and, before leaving Mexico, secured a certificate required by section 6 in proper form, on which he was ad,-mitted at the .port of New York. He received remittances from his firm aggregating $400 iu January, February, and March, 1911, but while he was visiting a friend or relative who operated a laundry he was arrested as unlawfully in the country, and there was evidence that at times he assisted in th.e laundry. Held, that defendant was not a laborer, but that, pursuant to the certifícate, ho was entitled to remain in the United States.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 88-90; Dec. Dig. § 28.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong Yon v. United States, 104 O. C. A. 538.]</p>

<p>In Equity. Action by J. A. E. Pyle, as trustee in bankruptcy of Steele, Miller & Co., against the Texas Transport & Terminal Company and others.</p>

<p>1. Courts (§ 489*) — Concurrent Jurisdiction — State and Federal Courts.</p> <p>Where there is diverse citizenship, a federal court had the same authority and the same duty to dispose of the assets of an insolvent street railway that the state courts would have.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324r-1341; Dec. Dig. § 489.*</p> <p>Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v.' City of Cincinnati, 22 C. G. A. 356.]</p> <p>2. Street Railroads (§ 55*) — Foreclosure ojt Mortgage — Sale of Property.</p> <p>A court of equity having possession of the res, with the parties before it, including the proper representative of the state, has the power, in a suit to foreclose a mortgage upon the property of a hopelessly insolvent street railway company, to dispose of the property involved in any reasonable way which may be for the best interests of the mortgagee, and, if necessary, to order sale in the alternative.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 134; Dee. Dig. § 55.*]</p>

<p>1. Bankruptcy (§ 413*) — Discharge—Specifications of, Grounds of Opposition — Verification.</p> <p>Though Bankr. Act July 1, 1898, c. 541, § 18c, 30 Stat. 551 (U. S. Comp. St. 1901, p. 3429), and a local court rule require specifications of grounds of opposition to a bankrupt’s discharge to be verified, a creditor was properly permitted to verify specifications which were filed without verification, where counsel for the objecting creditor was advised by the referee that verification was not necessary, and it was made as soon as objection was raised for want thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 413.*]</p> <p>2. Bankruptcy (§ 407*) — Objections to Discharge — Grounds—-Misrepresentations.</p> <p>Under Bankr. Act July 1, 1898, § 14b(3), as added by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1310), making it ground for refusal of a discharge in bankruptcy that the bankrupt obtained property on. credit on a materially false statement in writing, a discharge was properly refused to a retail merchant who obtained goods worth $2,200 on credit, upon a written statement showing that his assets exceeded his liabilities by about $26,000, where he failed to pay for the goods, excepting a payment of $270, and where he omitted from the statement two items of indebtedness for borrowed money, aggregating $7.000: the statement being recklessly made and knowingly false.</p> <p>Hid. Note. — For other cases, see Bankruptcy, Bee. Dig. § 407.*]</p> <p>3. BANKRUPTCY {§ 407*) — DISCHARGE—llEFTJSATV—EFFECT.</p> <p>Refusal of a discharge in bankruptcy under Bankr. Act July 1, 1898, g J41>(8), as added by Act Feb. 5, 1903, e. 487, § 4, 32 Stilt. 797 (ü. S. Comp. St. Supp. 1909. p. 1310), on tbe ground that the bankrupt obtained property on credit on a false statement in writing as to his assets, operates as to all claims, not being limited merely to the claim of the objecting creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Bee. Dig. § 407.*]</p>

<p>Don Kee, having been indicted for an offense, demurs to the indictment.</p>

In the matter of bankruptcy proceedings by Paul R. Pritchard. On certificate to review an order of the referee sustaining- the priority of a judgment lien on the proceeds of certain real property.

<p>Ill the matter of Abraham Finklestein, bankrupt. On certificate to review an order of the referee allowing the bankrupt’s exemption.</p>

<p>1. Bankruptcy (§ 314*) — Claims—Security—Merger.</p> <p>Where claimant accepted a conveyance in lieu of Lei* secured claim against the bankrupt’s estate, a mortgage was merged in the deed, and she could not thereafter file a claim on the bond secured by the mortgage or have the value of her security determined pursuant to bankruptcy Act July 1, 1898, c. 541, § 57, 30 Stat. 560 (U. S.. Comp. St. 1901, p.' 3443).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p> <p>2. Bankruptcy (§ 346*) — Taxation—Sale of Property — Payment of Taxes by Purchaser — Subrogation.</p> <p>While ordinarily taxes legally due and owing by the bankrupt must be paid by his trustee before the assets are apportioned among the creditors, yet when property is sold under order of court and the purchaser subsequently pays the taxes, he is not subrogated to the rights of the taxing power to priority of payment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. § 3-46.*J</p> <p>3. Bankruptcy (§ 346*) — Claims—Taxes—Sale of Property Subject to Taxes.</p> <p>Where a bankrupt’s trustee transfers property subject to payment of taxes, there is a legal obligation on the grantee’s part to pay the taxes. and, if the property is by him sold, the purchaser having knowledge of the outstanding taxes cannot be subrogated to the rights of tile taxing power for preferential payment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 316.*]</p> <p>4. Insurance (§ 328*) — Change in Title — Bankruptcy.</p> <p>At the time of bankruptcy adjudication, the bankrupt owned a building on which were fire policies having several years to run, which contained a provision that they should be void if any change occurred in the title, interest, or possession of the premises, other than by death of the insured, whether such change was due to legal process or otherwise. The appointment of receiver in bankruptcy and the vesting of title in him had been noted on the policies at the request of a, mortgagee, hut no such notation or change was made in the policies after the election of a trustee; he considering that the general creditors had no substantial insurable interest in the property. Held, that the policies were void as to the trustee.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 809; Dec. Dig. § 828.*]</p>

<p>In the matter of Morris Marcus and Emilius W. Scherr, bankrupts. On application for discharge.</p>

<p>In the matter of G. A. Goodrich, bankrupt. Intervening petition by P. B. McKenney.</p>

<p>1. Damages (§ 112*) — Injury to Land — Injury to ob Destruction of Growing Trees.</p> <p>In an action for injuries to or destruction of growing trees having a prospective value yet to be gathered in part from the soil, the measure of damage is the difference in the value of the land before and after the injury on the theory that such injury is an injury to the freehold; but, if the trees have reached their maturity so that it may be an advantage to remove them, the measure of damages is the value of the trees apart from the land.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. . Dig. § 112.*]</p> <p>2. Damages (§ 174*) — Injury to Trees — Evidence.</p> <p>In an action for injury to or destruction of growing trees, evidence of the value of the trees was admissible, though it did not actually afford a measure of the injury to the freehold.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 174.*]</p> <p>3. Damages (§ 146*) — Destruction on Growing Trees — Complaint.</p> <p>In an action against a mining company for the destruction of plaintiff’s growing trees by.sulphur fumes emitted from defendant’s smelters, the complaint charged that there was growing on plaintiff’s land a large quantity of vigorous and healthy pine, cedar, oak, and other timber of varying sizes and age, including a large number of saplings and young trees which were constantly growing and increasing in quantity and value, and that the same were poisoned, crippled, injured, and many actually killed by the fumes from defendant’s smelter, all to plaintiff’s damage in the sum of $76,200. Held, that the complaint indicated that the natural growth of the trees on the land as a part of the realty was of the value of $76,200, and not that such was the value of the trees severed from the soil.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. § 411; Dec. Dig. § 146.*]</p> <p>4. Action (§ 38*) — Causes oe Action — Single Tort — Separate Injuries.</p> <p>Where trees growing on several noncontiguous tracts of land belonging to plaintiff, some valuable for timber and some only for wood, were injured by fumes from defendant’s smelter, such injuries constituted a single tort, and but one cause of action.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]</p>

<p>BANKRUPTCY (§ 242*) — DISCOVERY OF ASSETS — EXAMINATION OF THIRD PERSON — “Concerning- the Property of a Bankrupt.” . ></p> <p>Bankr. Act July 1, 189S, c. 541, § 21a, 30 Stat. 052 (U. S. Comp. St. 1901, p. 3430), provides that a court of bankruptcy, on application of any officer, bankrupt, or creditor, may by order require a designated person, including the bankrupt, to appear before a referee or nudge of any state court to be examined concerning the acts, conduct, or property of the bankrupt whose estate is in process of administration under the act. Held,, that the words “concerning the property of a bankrupt” limit the examination to the discovery of the existence, whereabouts, or disposition of property, and hence did not authorize the court to compel an officer of a corporation in which the bankrupt had stock, which was admittedly in the bankrupt’s possession, to give evidence as to his opinion concerning the value of the stock, and to produce in support thereof- the records relating to the financial condition of the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 399-401; Dec. Dig. § 242.*]</p>

<p>In the matter of bankruptcy proceedings against Harry Cohen. On exceptions to the report of a referee recommending the bankrupt’s discharge.</p>

Action by William S. Lovell, as trustee in bankruptcy of Knight, Yancey & Co., against Isidore Newman & Son and others. From a judgment for defendants (188 Fed. 534), plaintiff brings error. It appears from tlie record that Knight, Yancey & Co., who had been for ■ several years largely engaged in exporting cotton from the United States, were adjudicated bankrupts April 20, 1910.

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>Action by William S. Lovell, trustee, etc., against Henry Hentz & Co. and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Bankbottcy (§ 440*) — Review of Proceedings.</p> <p>The Circuit Court of Appeals will not refuse to supervise on- petition bankruptcy proceedings had in the District Court, though appeal would have been the proper procedure, in the absence of objection by the parties or controlling determination by the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §■ 915; Dec. Dig. § 440*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p> <p>2. BANKRUPTCY (§ 188*) — EIGHTS OF CREDITORS — LlENS WAIVER.</p> <p>A bankrupt’s creditor does not waive lawful security for his claim by merely accepting additional security.</p> <p>[Ed. Note. — Nor other cases, see Bankruptcy, Dec. Dig. § 188.*]</p> <p>^’Bankruptcy (§ 188*) — Property—Mortgage—Loss of Security. ■</p> <p>Title to goods is not lost by mixture with other goods where they do not lose their identity, and hence a bankrupt’s creditor who was secured by mortgage on a stock of furniture and the incidentals thereof, did not lose his security through allowing the property to be mingled with the bankrupt’s general stock.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 188.*]</p> <p>4. Bankruptcy (§ 188*) — Creditors—Surrender of Security.</p> <p>A bankrupt's creditor does not ordinarily surrender the security of a chattel mortgage by permitting the receiver to take possession of the goods, since the receiver represents all interests.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 188.*]</p> <p>5. Bankruptcy (§ 188*) — Mortgages—Varidity.</p> <p>A renewal chattel mortgage given a bankrupt’s creditor may be good so far as the renewal debts were previously validly secured, though the renewal mortgage be otherwise invalid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 188.*]</p> <p>6. Bankruptcy (§ 470*) — Review of Proceedings — Costs.</p> <p>Though a decree in bankruptcy be reversed on review in the Circuit Court of Appeals, no costs should bo allowed when the petition for review was delayed nearly six months, and the estate had probably deteriorated through the delay, and where further proceedings are necessary.</p> <p>[Ed. Note.--For other eases, see Bankruptcy, Cent.. Dig. § 901; Dec. Dig. § 179.*]</p>

Action by John A. Jones as administrator of the estate of Herman Winters, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant brings error. This action was brought by .Tones, as administrator, to recover damages for the alleged negligent killing of Winters while in the employ of the railway company as brakeman.

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>Ejectment by Gilbert C. Goodlett and others against the Goodman Coal & Coke Company and others. Judgment for defendants, and plaintiffs bring error.'</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Michigan.</p> <p>Action by Luden V. Ripley against the Sage Land & Improvement Company. Judgment for plaintiff, and defendant appeals.</p>

the Eastern District of Oklahoma. Action by Annie Jackson for herself, and as next friend of her minor children, against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for plaintiffs (182 Fed. 342), and defendant brings error.

Suit in equity by Daniel G. Reid against-the Star Publishing Company, the AVestern Trust & Savings Bank, and the American Trust & Savings Bank, in which John C. Shaffer was admitted as a co-complainant and George P. McCulloch filed a cross-bill. From the decree defendant Star Publishing Company, Shaffer, and McCulloch appeal.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Kentucky.</p> <p>Suit in equity by the Stearns Coal Company against J. O. Tunstall and others. From an order granting a preliminary injunction, defendants appeal.</p>

<p>In Error to the District Court of the United States for the District of South Dakota.</p> <p>. Action at law by Samuel W. Huntington, trustee in bankruptcy of Otto Jordan, against M. R. Baskerville. Judgment for defendant, and plaintiff brings error.</p>

Suit by R. M. Lee and another against E. F. Brown and another. Judgment for complainants, and defendants bring' error.

<p>Sales (§ 22*) — Contract—Oefeb and Acceptance.</p> <p>Defendant authorized a produce broker to sell “five ears storage packed eggs. Shipment prior April 10th.” The broker sold the eggs as “fancy storage packed” for shipment April 15th, and required that they should be chilled at a fixed temperature never before mentioned; that the cars should be iced’ to their full capacity, whether necessary or not; and that the cases should be racked. Held, that the acceptance was not in the terms of.the offer, and that there was no contract.</p> <p>[Ed. Note. — Eor other eases, see Sales, Cent. Dig. §§ 39-43; Dec. Dig. § 22.*] . ' ’</p>

In the matter of ‘the estate of William T. Hill, Noble G. Hill, and Ellen Hill, individually and as copartners trading as William Hill & Sons. From a judgment affirming a referee’s order refusing to allow the claim of Thomas W. Young as a creditor against the separate estate of Ellen Hill, for which Alfred Lowry was substituted trustee and filed 'objections, claimant appeals.

Petition to Revise Proceeding's of the District Court of the United States for the District of Massachusetts. In the matter of Ira M. Clay, bankrupt. Petition by George K. Kellar and others to review the appointment of a trustee.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings of Alfred M. Judson and others, individually, etc. On petition of A. Leo Everett, as trustee in bankruptcy, > turn over to the executor of the bankrupt Judson’s will, the sum of $8,611.34, as the proceeds of certain policies of insurance on his life.

In the matter of the Dong Deaf Dumber Company, bankrupt. From a decree of the District Court affirming an order of the referee directing certain payments, W. A. Bell and others appeal adversely to E. C. Arledge, trustee, and others.

<p>1. Evidence (§ 129*) —Relevancy in General.</p> <p>In an action against an attorney for claimed fraud in professional dealings, it was proper to exclude the record in another suit in which plaintiff recovered judgment against the attorney for independent matters and other evidence not involving the relation of attorney and client</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 388-398; Dec. Dig. § 129.*]</p> <p>2. Appeal and Error (§ 1067*) — Harmless Error — Refusal oe Instructions.</p> <p>In an action against an attorney for claimed breach of duty, any error in refusing to instruct that a client has the right to direct the course to be pursued by his attorney, was harmless where failure to correct the attorney’s act complained of was due to plaintiff’s own indifference, after the attorney offered to have it corrected.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 8 4229-Dec. Dig. § 1067.*]</p> <p>3. Trial (§ 260*) — Instructions—Refusal—Matter Covered.</p> <p>In an action against an attorney,, for breach of professional duty, it was not error to refuse to instruct that defendant was bound to truthfully inform plaintiff of the terms of an arrangement made in plaintiff’s behalf, where the court instructed that defendant would be liable for any advantage derived from the transaction unless plaintiff knew about it and did not object.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Removal of Causes ((§ 82*) — Right oji' Corporation — Dissolution—1Capacity.</p> <p>Tinder the New Jersey statute (R. L. 1896. p. 295, § 53), which continues the corporate existence of a dissolved corporation to prosecute or defend suits by or against it, on suit against a corporation, a defendant corporation can remove the cause to a federal court notwithstanding dissolution.</p> <p>¡Ed. Nolo. — For other cases, see Removal of Causes, Dec. Dig. § 82.*]</p> <p>2. Courts (§ 493*) — Conflicting Jurisdiction — Receivership Proceedings by Stockholders.</p> <p>A Texas stockholder of a New Jersey corporation caiinot maintain a bill in Texas to wind up the corporation and distribute its assets through a receivership, where voluntary proceedings for dissolution have been previously brought under the laws of New Jersey (P. L. 1896, p. 295, § 53), which preserve Hie corporation's existence to wind up its affairs, and which makes the directors at the time of dissolution trustees In liquidation, etc.</p> <p>LEd. Note. — For other cases, see Courts, Dee. Dig. § 493.*</p> <p>Conflict of .-jurisdiction of federal courts with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. O. A. 356.J</p> <p>3. Abatement and Revival (§ 12*) — Another Action Pending — State and Federal Courts.</p> <p>Generally a plea of another action pending is good only when both suits are pending in court s under the same governmental jurisdiction; and hence the pendency of a prior suit in the state court will not abate a suit in the federal court, unless there is something to except it from the general rules.</p> <p>LEd. Note. — For other eases, see Abatement and Revival, Cent. Dig. §§ 87-91; Dee. Dig. § 12.*</p> <p>Pendency of action in state or federal court as ground for abatement of action in the other, see notes to Hunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 O. C. A. 205; Barnsdall v. Waltemeyer, 73 C. C. A. 521.J</p> <p>4. Courts (§ 18*) — Jurisdiction—Conveyance of Lands.</p> <p>A court of equity in cases of contract, trust, fraud, etc., has jurisdiction when it has the parties before it acting on their persons to compel execution of a conveyance of lands beyond its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 50-68; Dee. Dig. § is.*]</p> <p>5. Courts (§ 357*) — Federal Courts — Costs—Attorney’s Fees.</p> <p>Though a bill brought in Texas for dissolution of a corporation was dismissed through pendency of previous dissolution proceedings in New Jersey, where the corporation was organized, it was proper to refuse to allow defendant counsel fees.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. § 938; Dee. Dig. § 357.*]</p>

<p>1. Criminal Law (§ 881*) — Tbial—Verdict—Definiteness. .</p> <p>Two United States weighers attached to tlie customhouse were indicted in three counts for , conspiracy to defraud the United States of its lawful duties on certain importations, etc., each of the counts relating to the same transaction and stating the same facts in different forms. After each count 50 overt acts were scheduled and alleged, the same acts after each count. By the verdict the jury found one of the defendants not guilty; another “guilty of overt act No. 21 only,” and another “guilty of overt act No. 46 only.” Held, that such verdict, in so far as it related to the defendants intended to be convicted, indicated an intention to cpnviet them, of conspiracy to defraud the United States, which was evidenced by the overt act referred to, and was therefore not fatally defective.</p> <p>[Ed. Note. — Eor other eases, see Criminal Law, Dec. Dig. § 8S1.*]</p> <p>2. Criminal Law (§ 696*) — Reception of Evidence — Striking Opt.</p> <p>Evidence of one of several conspirators to defraud the United States by false customs weights that at various times after a certain December 15th one of the defendants collected from the weighers of the dock bribe money, etc., should have been stricken on defendants’ motion, where the witness immediately followed with a statement that he did not see such defendant collect any of the money from the weighers.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Dec. Dig. § 696.*]</p> <p>3. Criminal Law (§ 1168*) — Appeal—Rulings on Evidence — Prejudice.</p> <p>In a prosecution for conspiracy to defraud the United States out of customs duties, one of the defendants was not prejudiced by the court’s improper refusal to strike out evidence of one of the conspirators that such defendant had collected bribe money, on its appearing by the witness’ next answer that he did not see the money so collected, and therefore could not have known anything about it.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Dee. Dig. § 1168.*]</p>

<p>In Error to the District Court of the United States for the District of Massachusetts.</p> <p>Eouis Bean was convicted of willfully concealing- assets from his trustee in bankruptcy, and he brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio.</p> <p>Jacob Frank, Charles Frank, and Emil Frank were convicted of violation of the food and drugs act, and bring error.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Frank T. Wells, Rufus J. Ireland, Wilberforce Sully, and George W. Dalfy were indicted for conspiracy to defraud the United States in obtaining a quantity of coal land in Wyoming, and from an order discharging defendants on habeas corpus the United States appeals.</p>

In the matter of Robert Raphael, bankrupt. From a decree requiring C. Ü. Haffenberg to make a payment to Chicago Title & Trust Company, trustee, Haffenberg appeals.

Mandamus by the Gardiner Savings Institution against J. N. Hog-sett and others. Judgment denying the writ, and plaintiff brings error.

<p>Petition for Revision of an Order of the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>In the matter of Morris Magen and another individually and as the Magén Bros. Company, bankrupts. On petition by the bankrupts to review an order refusing to dismiss specifications of objections by the McKee Refrigerator Company and others for the bankrupts’ discharge.</p>

<p>Aliens (§ 57*) — Deportation—1Time—Cost—Liability of Steamship Company.</p> <p>Act Eel). 20, 1907. c. 1134, § 20, 34 Stat. 898 (ti. S. Comp. St . Supp. 1909. p. 459), provides that any alien enteritis the United States in violation of law shall be taken inio custody and deported, at any time within three years after the date of his entry, from the port of entry, at the expense of the owner or owners of the vessel or transportation line by which he came into the country, and section 21 declares that in case the Secretary of Commerce and Labor shall lie satisfied that an alien lias been found in the United States in violation of law, or that an alien is subject to deportation, he shall cause such alien within three years after landing or entry to be taken into custody and returned to the country from whence he came as provided by section 20. and provides punishment for failure or refusal of the masters, agents, owners, or consignees of a vessel to comply with such order of deportation. Held, that where an alien unlawfully in the country was arrested before the expiration of three years from the date of his entry, but was not offered to the steamship company for deportation until after the three years had expired, though within a reasonable time after 1ns arrest, the steamship company was not bound to deport him at its own expense.</p> <p>¡Ed. Note. — -Eor other cases, see Aliens, Cent. Dig. § 114; Dec. Dig. § 57.*]</p>

■ Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. Bill by Hayward & Clark and others against J. C. McDonald, administrator, and another. Decree dismissing the bill, and complainants appeal. The appellants, a commercial partnership, each member a citizen of Louisiana, brought their bill against the appellees, one of whom is a citizen of Georgia and the other a citizen of Texas.

Suit in equity by John O. Ulrich and Harry P. Joslyn, receivers of the International Finance & Development Company, against the Fairview Fluor Spar & Dead Company, and the Fairview Transportation Company. Defendants appeal from an order appointing receivers and granting an injunction.

<p>1. Gopyki6HTs (§ 38*)- — Statute—Construction—Component Parts.</p> <p>Copyright Act March 4, 1909, c. 320, § 3, 35 Stat. 1076 (U. S. Comp. St. Supp. 1909. p. 1290), provides that the copyright provided for shall protect copyrightable component parts of the wort copyrighted, and all matter therein, in which copyright is already subsisting, but without extending the duration or scope- of such copyright, and that the copyright on composite works or periodicals shall give to the proprietor all the rights in respect thereto which he would have if each part were individually entitled under the act. Held, that a copyright on a periodical protects the pictures therein as component parts of the periodical.</p> <p>[Ed, Note. — For other cases, see Copyrights, Dec. Dig. § 38.*]</p> <p>2. Copyrights (§ 69*) — Infuinoemekt—Damages—Assessment—•'“Court.”</p> <p>Copyright Act March 4, 1909. c. 320, § 25, 35 Stat. 1081 (U. S. Comp. St. Supp. 1909, p. 1297), provides that an infringer of the copyright laws shall be liable to pay the proprietor such damages as he -suffered by the infringement, as well as all profits which the infringer shall have made from such infringement, and in proving profits plaintiff shall be required to prove sales only, and the defendant every element of cost which he claims, or in lieu of actual damages and profits, such damages as to the court shall appear to be just, and in assessing such damages the court in its discretion may allow the amount thereinafter stated, but, in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200, nor be less than $50, and such damages in no other case shall exceed $5,000, nor be less than $250. and shall not be regarded as a penalty. Held, that the statute, by using the word “court,'-’ did not require that the judge acting by himself should assess the damages when a case was presented calling for an award under the minimum damage clause, and that the court, under such circumstances, properly directed the jury that, if they found for plaintiff, they must award at least $250 for each infringement.</p> <p>[Ed. Note. — For other cases, see Oopyrights, Cent. Dig. §§ 65-85; Doc. Dig. § 69.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1672-1682; vol. 8, p. 7622.]</p>

Action by Michael Colasurdo against the Central Railroad Company of New Jersey. From a judgment awarding plaintiff $7,000 damages for injuries sustained by him while in defendant’s employ in repairing a switch in defendant’s switchyard, defendant brings error.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Henry Von Bremen and others, doing business as Von Bremen, MacMonnies & Co., were convicted of violating the food .and drugs act, and they bring error.</p>

<p>- I’abtnebsiiip (§ 345*) — Judicial Dissolution — Earnings Pending Appeal— Distribution.</p> <p>Where a decree dissolving a partnership fixed an amount payable by defendant to complainant, and provided for equal division of the surplus and both parties appealed, defendant executing a supersedeas bond, complainant is not entitled to share in the profits which accrued to assets of the firm under receivership pending the appeal in proportion to his share of the assets, since that would in effect modify 'the original de-, cree.</p> <p>[Ed. Note. — For other cases, see Partnership, Dec. Dig. § 345.*]</p>

Petition for Revision of Order of the District Court of the United States for the Western District of Pennsylvania. Action by Irwin N. Loeser, as trustee of the estate of Wender Bros., against Charles E. Dallas, ancillary receiver of the estate of Wender Bros., bankrupts. On petition to review an order settling the ancillary receiver’s account.

-District Court of the United States for the Eastern District of Pennsylvania. Bill by Hibberd B. Worrell, as trustee of the estate of Joseph R. Claussen and William H. Claussen, individually and as copartners trading as J. R. Claussen & Son, bankrupts, against Mahlon S. Kem-merer and others, copartners trading- as Whitney & Kemmerer, and another. From a decree (185 Fed. 1002) dismissing the bill, complainant appeals.

In Error' to the District Court of the United States for the Southern District of New York. Proceeding by the United States to forfeit one trunk of imported merchandise, claimed by Mrs. N. S. Gannon. From a judgment for claimant (175 Fed. 1012), the United States brings error.

<p>1. Trade-Marks and Trade-Names (§ C4*) — Registered TRADE-MARK — INFRINGEMENT.</p> <p>When; one of tlie defendants was a lineal descendant of the original “Davids” who established complainant’s business, such defendant was entitled to engage in the manufacture and sale of ink and use his own name in that business, notwithstanding complainant was previously engaged in selling inks under the name “Davids” as a registered trademark.</p> <p>[Rd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 75; Dec. Dig. § 04.* •</p> <p>Right to use one’s own name as trade-name, see notes to It. W. Rogers Co. v. Wn, Rogers Mfg. Co., 17 C G. A. 579; Kathreiner’s Malzkaf-fee Fabriken Mit Beschraenkter Hnftran v. Pastor Kneipp Medicine Co., 27 C. C. A. 357.]</p> <p>2. Trade-Marks and Trade-Names (§ 59*) — Use of Individual Name — Liabilities.</p> <p>Where one of the defendants, who was a lineal descendant of the original “Davids” who established complainant's business, was entitled to nse his family name in his business, notwithstanding it had been copyrighted by complainant, his use thereof at the top of a label placed on his goods, and the use by defendants of the name “Davids Manufacturing Company” on the bottom of their labels, was not an infringement of complainant’s registered trade-mark “Davids.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 59.*J</p> <p>Noyes, Circuit Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Action by the American Chewing Gum Company against T. C. Williams. Judgment for plaintiff, and defendant brings error.</p>

<p>Indictment and Information (§ 79*) — Sufficiency—Clerical Mistake.</p> <p>An ^ndictment charging perjury under oath before “a competent tribunalj to wit, before the said Upited States District Clerk for the Northern District of Texas,” is not vitiated by the obvious clerical mistake in using the word “clerk,” instead of “court.”</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§.209-214; Dec. Dig. § 79.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Action by Mrs. Sallie C. Wulf against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Proceeding by the United States to condemn certain alleged mis-branded extract claimed by the Hudson Manufacturing Company. Judgment for plaintiff, and claimant' brings error.

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>Bill by Walter Baker & Co., Limited, against Sydney C. Gray and another, partners as the Gray Mercantile Company. Decree dismissing the bill, and complainant appeals.</p>

<p>1. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition.</p> <p>Sale of women’s shoes with the words “Hamilton-Brown Shoe Company, Makers,” or “Hamilton-Brown Shoe Company.” and “American Lady,” stamped on the soles, did not constitute unfair competition as to a manufacturer of shoes known as the “American Girl.”</p> <p>|Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. ⅛⅛. § 81; Dec. Dig. § 70.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 105; Lare v. Harper & Bros., 30 C. C. ■A. 370.]</p> <p>2. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition.</p> <p>Sale of shoes known as “American Lady” was not unfair competition against a competing brand known as “American Girl,” where the manufacturer’s name was plainly marked on the carton containing each pair of shoes sold, where the brand was extensively advertised as the manufacturer's product, and where it does not appear that defendant’s product was ever sold as complainant’s.</p> <p>fEd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*J</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>' Suit in equity by John P. Carmichael against Harvey N. Jackson. Decree for defendant, and complainant appeals.</p> <p>The appeal is from a decree dismissing the bill for want of equity. The bill was to restrain infringement of letters patent issued to appellant October 9, 1900, for a new and useful improvement in a process of forming an attachment for and connecting the same to a natural tooth. The object of the patent is stated as follows:</p> <p>“The primary object of the invention is to provide an improved process and construction wherein provision is made for forming an attachment and connecting the same to a natural tooth, the said attachment being so molded and shaped to the part of the tooth to be covered and so fitted in the grooves of said tooth that it is mechanically held firm in position upon the tooth and is adapted for building up any broken or decayed portion of the tooth or is adapted to be connected with bridge-teeth, plates, regulating appliances, fillings, inlays, &e.”</p> <p>Claim one, which, with some variations (claim two adding as a further step a staple in the grooves) embodies all the claims, is as follows:</p> <p>• “1. A process of forming an attachment for and connecting the same to a natural tooth, which consists in cutting, grinding, or drilling one or more grooves in a natural tooth; shaping and fitting a base of suitable material to the tooth, and to the groove or grooves in said tooth, and thereby conforming tbe base 'to tbe shape of tbe portion of tbe tootb to which it is applied, and also forming a rib or ribs in the base; removing the base from the tooth; next stiffening and building up the base with a suitable material; and finally applying the complete attachment to the tooth and cementing or otherwise securing said attachment to the tooth.”</p> <p>■If the patent is valid, infringement is not denied.</p> <p>Other patents cited are the following:</p> <p>No. 6,924, G. K. Murray, Dec. 4, 1849.</p> <p>No. 238,940, J. E. Low, Mar. 15, 1881.</p> <p>No. 319,829, X K. Low, June, 9, 1880.</p> <p>No. 347,544, J. L. Williams, Aug. 17, 188G.</p> <p>No. 375,107, C. H. Land, Dec. 20, 1887.</p> <p>No. 377,248, D. Genese, Jan. 31, 188S. '</p> <p>No. 377,970, T. S. Waters, Feb. 14, 1888.</p> <p>No. 402,352, A. Itobinson, Apr. 30, 1889.</p> <p>No. 403,597, O. II. Land, May 21, 1889.</p> <p>No. 432,737, O. H. Land, July 22, 1890.</p> <p>No. 452,533, O. S. Wiggins, May 19, 1891.</p> <p>'. Nor 454,560, 0. II. Land, June 23, 1891.</p> <p>No. 558,133, J. B. Wells, Apr. 14, 1S9G.</p>

In the matter of bankruptcy proceedings of the American Vacuum Cleaner Company. On review of a referee’s order disallowing the claim of .Ralph II. llealan for breach of an executory contract for personal services.

<p>At Law. Action by Theodore R. Converse, as receiver, against John A. Stewart.</p>

<p>1. Stipulations (§ IS*) — Judgment by Stipulation — Vacation—Grounds— ■ ■ Mistake.</p> <p>Where it was stipulated by a collector of internal revenue, in. a suit against liim to recover taxes paid under War Revenue- Act .Tune 1.9, 1898, c. 448, 30 Stat. 448 (U. S. Comp. St. 1901. p. 2286), that the cause should abide the event of another action for taxes of another year, and plaintiff recovered in the other action, the collector is not entitled to vacation of a judgment entered under the stipulation, because he was misled in making the stipulation by a statement in a letter from plaintiff’s attorney that all the cases were governed by the same state of facts, though plaintiff had really lost the right to maintain the particular suit through having taken no appeal from the assessment, where the collector had ample opportunity to have discovered from his pleadings that no such appeal had been taken.</p> <p>LKd. Note. — For other eases, see Stipulations, Dee. Dig. § 18.*]</p> <p>2. United States (§124*) — Suits By and Against — Rights as Litigant.</p> <p>When the United States sues or consents to be sued, ev.en in its own courts, it becomes a litigant, and is to be treated like any other litigant, except where it has otherwise provided by law.</p> <p>TEd. Note. — For other cases, see United States. Cent. Dig. § 112; Dec. Dig. § 124.*]</p>

<p>Trade-Marks and Trade-Names ,(§ 95*) — Unfair Competition — Prediminart Injunction-Conditions.</p> <p>Where defendant will be required to go to further expense in changing the wrappers on his goods, which would have been avoided if complainant had described the defendant as an alien in his original bill, and had not expressed himself content with the changes first made, it will be a condition of granting further relief, hy way of' preliminary injunction, that complainant shall contribute to defendant’s expenses in making such changes.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dee. Dig. § 95.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare v. Harper & Bros., 30 C. O. A. 376.]</p>

<p>1. CORPORATIONS (§ 243*)-INABILITY OP STOCKHOLDERS— SUBSCRIPTIONS — VALIDITY — liACIIES.</p> <p>A party to a stock subscription agreement, entered into by several persons on condition that it should be binding only when a specified sum should be subscribed, has lost by laches his right to claim a rescission after bankruptcy of the corporation on the ground that the full sum was not subscribed, where he paid for and received his agreed share of the stock, and continued as a stockholder until such bankruptcy without inquiring whether the full subscription had been obtained.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 943; Dec. Dig. § 243.*]</p> <p>2. Corporations (§ 40*) — Articles op Incorporation — Amendment—Consent op Stockholder^.</p> <p>One becoming a stockholder in a Minnesota corporation impliedly assents to any subsequent amendment of the articles of incorporation not fundamental, but designed to enable the corporation to conduct its authorized business more beneficially.</p> <p>[Ed.' Note. — For other cases, see Corporations, Cent. Dig. § 124; Dec-. Dig. § 40.*]</p> <p>' 3. Corporations (§ 40*) — Articles op Incorporation — Amendment—Consent op Stockholders.</p> <p>' Under Gen. St. Minn. 1894, §§ 2803, 2807, 3415, authorizing amendment of corporate articles on majority vote of the stock, an amendment of the articles of a manufacturing corporation adopted by such majority, authorizing an agreement whereby lenders of money should receive preferred stock possessing the sole voting power and control of the corporation until repayment in full, is valid, though all the existing stockholders did not assent to it.</p> <p>[Ed. Note.- — For other cases, see Corporations, Cent. Dig. § 124; Dec. Dig. § 40.*]</p> <p>4. Corporations (§ 40*) — Articles op Incorporation — Amendment—Objections — -Laches.</p> <p>Stockholders, who do not vote for an amendment authorizing issuance of preferred stock carrying with it control of the corporation, have lost ' by laches the right after bankruptcy of the corporation, to deny validity of the amendment, where they permitted stock to bo issued and the holders to assume control without objection.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 124; Dee. Dig. § 40.*]</p> <p>5. Corporations (§ 40*) — Articles op Incorporation — Amendment—Objections.</p> <p>Holders of preferred stock securing loans cannot deny the validity of an amendment, adopted under a statute authorizing amendment on vote of a majority of the stock, because all of the stockholders did not assent to the amendment, where It was not agreed that the amendment should be adopted by unanimous vote, and where control of the corporation was taken under the amendment and maintained until bankruptcy of the corporation, without objection.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 40.*]</p> <p>6. CORPORATIONS (§ 70*) — Stock Subscription Agreement--Right to Rescind — Mistake op Law. '</p> <p>A mistake of law furnishes no ground for rescission of a stock subscription agreement.</p> <p>[Ed. Note. — Eof other cases, see Corporations, Dec. Dig. §f 70.*]</p>

<p>1. Removal or Causes (§ 92*) — Proceedings—Filing Petition and Bond in State Court — Piling Transcript in United States Court.</p> <p>Where a petition ’ and bond for the removal of a cause is presented to ' a state court and the bond approved but the petition overruled, whereupon a transcript of the record is filed and the case docketed in the federal Circuit Court, the removal is complete notwithstanding the action of the state court,, unless the averments of the petition for removal, assuming them to be true and taken, in connection with the other parts of the refcord, showed a nonremovable case.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. § 190 -r Dee. Dig. § 92.*]</p> <p>2. Removal oe Causes (§ 49*) — Separable Controversy — Joinder op Corporation and Servants.</p> <p>Where plaintiff in good faith has elected to sue jointly in tort a foreign corporation and its citizen servants, whose misconduct caused' the injury complained of, such joinder does not present a separable controversy between plaintiff and the corporation which is removable as to the nonresident defendant, without regard to the citizenship of the residents.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dec. Dig. § 49.*</p> <p>Separable controversy, ground for removal of cause, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytqwn Mineral Co., 35 C. C. A. 155; Pollita v. Wabash R. Co., 100 C. C. A. 4.]</p> <p>⅝ Removal op Causes (§ 1Ó7*) — Fraudulent Joinder op Parties to Pel-vent — Burden op Proop.</p> <p>Where a petition for removal stated sufficient grounds and charged a fraudulent joinder of resident defendants to prevent a removal by a nonresident defendant, and issue was joined thereon, the burden of proving fraudulent joinder was on the removing defendant.</p> <p>,[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 230; Dec. Dig. § 107.*</p> <p>Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago & E. R. Co., 78 C. C. A. 362.]</p> <p>4. Removal of Causes (§ 107*) — Fraudulent Joinder of Parties to Prevent — D ETERMI N ATJ.0 N.</p> <p>Where resident servants of a noncitizen railroad corporation are joined in a suit to recover damages for an alleged joint tort, and the complaint states a joint cause of action against all the defendants and the corporation seeks to remove the cause to the federal court and alleges fraudulent joinder, the question of plaintiff’s fraudulent intent cannot be determined from the fact that, oñ the trial of such issue in the federal court, no cause of action is found to exist against any defendant, resident or nonresident; the case being one in which the negligence of the corporation can be established only by proof of the negligence of the servants alleged to have been fraudulently joined.</p> <p>|Kd. Note. — For other cases, see Removal of Causes, Cent. Dig. § 227; Dee. Dig. § 107.*]</p>

<p>In Equity. Bill by the Chicago Title & Trust Company, as trustee in bankruptcy of Earl H. Prince, bankrupt, against the Federal Trust & Savings Bank and W. P. Anderson & Co. The case was submitted to a master, who advised a decree in favor of plaintiff for part of the relief demanded, after which exceptions were filed to the report.</p> <p>. The following is the report of Master in Chancery Charles B. Morrison, in which (because of references thereto in his “Findings of Law”) the paging thereof is here shown as far as necessary by figures in brackets:</p> <p>Findings of Fact. ■</p> <p>The undersigned master finds the facts to be: ...</p> <p>(1) About the parties to the suit: ::</p> <p>That on February 15, 1005, and for several years before that date,.Earl .H. Prince was a member of the Board of [4] Trade of Chicago, engaged in the buying arid selling of commodities, subject to the rules of the Board of Trade in that regard. ' :</p> <p>That during the same period the defendant the Federal Trust & Savings Bank was engaged in the general banking business in the city of Chicago, and Earl I-I. Prince was transacting his banking business with said bank, and had a general deposit and checking account therein.</p> <p>That during the same period the defendant W. P. Anderson & Company, through its officers who were members of said Board of Trade, was also engaged in the business of buying and selling grain and other commodities on said Board, on trine contracts, and otherwise.</p> <p>(2) The rules of the Board of Trade:</p> <p>That the rules of the Board of Trade are intended to, and do, facilitate settlement between the members by obviating the necessity of adjusting- each particular trade between the parties thereto, and by furnishing a way commonly known as ringing up trades, by which each member makes one settlement through the Board which covers all of his transactions. :</p> <p>That on time contracts, the rules provide that [5] purchasers shall have the right to require of sellers, as security, a deposit of 10 per cent., based upon the contract price pf the property bought, and further security from time to time as the market advances, and that sellers shall also, have the .right to require, as security from buyers,, a deposit of 10 per cent, on the contract price of the property sold, and, in addition, any differences that may occur between the estimated value of the property and the price of sale.</p> <p>The rules also provide that banks may be authorized to issue margin certificates to be used in such cases and become authorized depositories for securities on giving bonds for the proper disposal of deposits handled by them, and, when such banks are so authorized, they are known as “Board of Trade depositories,” and the rules require that certificates must be issued by such banks in duplicate, and made nontransferable, for all deposits made. with them. These certificates so issued must state by whom the deposits are made and for whose account they are held, and that the same are payable upon the return of the certificate, or the duplicate thereof duly indorsed by the parties to the contract, or on the order of the president of the Board of Trade. The rules prescribed the form in which the certificate shall be issued, ánd the memoranda thereof that shall be kept, and all certificates when issued are |0J required to be placed in the office of the clearing house of the Board, and all business pertaining to the issuance and use of said certificates are required to be carried on in accordance with the rules of the Board. .</p> <p>(3) About Prince’s transactions with the Federal Trust & Savings Bank:</p> <p>That, the Federal Trust & Savings Bank was from August 20, 1902, up to, and including the month of February, 1905, a Board of Trade depository.</p> <p>That on, and for several years prior to. February 10, 1905, .Earl H. Prince Rad a deposit and checking account with the Federal Trust & Havings Bank, and on said 10th day of February was largely indebted to the bank on demand notes and otherwise, and on that day the bank called the said loans, and they were not paid, and thereupon the bank applied, as a payment upon the same, $3,095 then on deposit in Prince’s checking and deposit account in the bank, which left to the credit of Prince in that account only the sum of $3.25. On the same day the bank agreed with Prince that, if he would thereafter make deposits to cover the same, it would pay certain salary and pay roll checks of employes of Prince and checks issued to the Board of Trade clearing house. That pursuant to said agreement the hank did pay such checks issued on the 4th, 7th, 10th, 11th, and 11th days of [7] February, 1905, amounting to $>2,006.46, and the said Prince did deposit with the bank on February 10th after closing hours $1,450, on February 11th, $310, and on February 14th he made two deposits, one for $820 and the other for $499, making a total of $3,079. All of these items were entered on the books of the bank under date of February 14, 1905. It will be seen that the amount deposited under that arrangement exceeded the amount paid on checks in the sum of $572.54. This amount, which with the $3.25 remaining to the credit of Prince when the application of the $3,095 was made on February 10th, left a balance due Prince of $575.79, which balance the bank on February 14th applied on Prince's general indebtedness to the bank.</p> <p>After Uie application and the arrangement of February 10th, the bank paid a clearing house check of $056.25, which on ihe close of business on that day left Prince’s account overdrawn to the extent of $653. This however, was made pursuant to said agreement and was more than covered l»y deposits made by Prince after the close of business on the same day.</p> <p>The other checks drawn by Prince on February 10th, and prior thereto, not included in the said arrangement between him and the hank, were presented to the bank for payment, and payment thereof was refused.</p> <p>(81 (4) The margin certificates; Prince’s trades, and how they were handled;</p> <p>That on various days from September 15, 1904, to February 9, 1905, the Federal Trust & Savings Bank issued to Prince margin certificates to be used by him in his trades, and which were by him placed in the office of the clearing house of said Board in accordance with the said rules of the Board of Trade, as follows:</p> <p>September 15, 1904. $ 300.00, Peavey Grain Co.</p> <p>19, 1901. 300.00, Peavey Grain Co.</p> <p>“ 23, 1904. 250.00, Keith & Co.</p> <p>October 1.7, 1904. 250.00, Peavey Grain Go.</p> <p>January 10, 1905. 500.00, Pringle, Fitch & Rankin.</p> <p>“ 20. 1905. 250.00, Peavey Grain Co.</p> <p>“ 31, 1905. 250.00, Finley Barrel! & Co.</p> <p>“ 31, 1905. 250.00, Ware & belaud.</p> <p>“ 31, 1905. 250.00, Ware & Behind.</p> <p>February 6, 1905. 300.00. A. J. White & Co.</p> <p>“ 6. 1905. 250.00, Walter Comstock.</p> <p>(i, 1905. 300.00, J. A. Edwards & Co.</p> <p>“ 7, 1905. 300.00, (Mghton & Co.</p> <p>“ 9, 1905. 250.00, Pringle, Fitch & Rankin.</p> <p>“ 9, 1905. 250.00, C. II. Canby & Co.</p> <p>Total amount. . $4,250.00.</p> <p>That to procure said certificates, Prince drew his check against his checking account with the Federal Trust & Savings Bank, or deposited with it the requisite sum of money. Each of said certificates evidenced a liability of the bank to Prince for the amount stated in the certificate payable to him, unless required to be paid to the other parties named therein, because of a default by Prince on ihe contract for [9] which the certificate was held by the other party as security.</p> <p>That a record of the issuance of margin certificates was kept in the bank in a "Margin Register,” and the total of each day’s margin certificates issued was entered in the ledger of the bank in an account called the “Margin Account,” and the total of all unpaid margins appeared on the bank’s ledger as one of the items constitpting its total liabilities.</p> <p>(5) Transactions among Prince, the Federal Trust & Savings Bank, and. Anderson & Oo.:</p> <p>That on the 14th day of February, 1907, Charles S. Castle, who was then vice president of the Federal Trust & Savings Bank, and Earl H. Prince had a conference at the bank in reference to the financial affairs of the said Prince, and while together Mr. Castle telephoned to W. P. Anderson, who was then president and treasurer of the said AY. P. Anderson & Co., a corporation, asking him to come to the bank, which he soon thereafter did. and Air. Castle informed Mr. Anderson that Prince was in financial troubles; that he had quite a number of open trades, and asked Mr. Anderson’s advice as to the best way to close them. Mr. Anderson suggested that Prince transfer them to some other dealer and close them up in that way. Prince asked Mr. Anderson if his company would take them, and he agreed [10] that it would, if after examination the trades showed a profit. Investigation was made by Mr. Anderson, and he was satisfied with conditions, and on the same day, February 14th or the day following, Prince transferred all of his open trades in accordance with the rules of the Board, and Anderson & Co. assumed and agreed to carry out the contracts with the various parties with whom they were made.</p> <p>That on the 15th day of February. 1905, the secretary of the Board of Trade, on the written request of Anderson & Co., notified members having trades with Prince to transfer them to Anderson & Co., and that Prince’s sheet would clear on that day as usual, but that rings made for the following day would be closed by Anderson & Co. Anderson & Co. was fully substituted in place of Prince, and his trades were afterwards settled between Anderson & Co. and the other parties according to the customs and rules of the Board. When Anderson & Co. took over these trades, it purchased or sold in its own name enough grain and other commodities to correspond with, or balance, the amount of the open trades so transferred by Prince, and paid to, and received from the several members the respective amounts due to, or from them on settlements through the clearing house of the Board. The settlements were made as a part of the other regular business of Anderson & Co., and 111] in all respects the same as if the trades had been originally made by that company.</p> <p>That on the substitution of Anderson & Co. for Prince on February 15, 1907, that company put up its own securities on all of Prince’s trades, and thereby released the said certificates deposited by Prince to secure the same trades, and they were taken up by Anderson & Co., and, with the possible exception of the certificate of C. II. Canby & Co. for $250,' were turned over to the Federal Trust & Savings Bank before the close of banking hours on that day. The certificate of C. H. Canby & Co., if not turned over to the hank before the close of hanking hours, was turned over within a few minutes thereafter.</p> <p>When the certificates were turned over to the Federal Trust & Savings Bank, Prince was indebted to that bank in a sum far exceeding the amount of said certificates so returned to the bank, but not in a sum exceeding $37,-000, and the Federal Trust & Savings Bank on the return of said certificates, which aggregated in amount the sum of $4,250, applied and credited the amount thereof on Prince’s indebtedness to the bank.</p> <p>That taking the said open trades so transferred as a whole, the condition of the market at the time of the transfer was such that the aggregate sum of the amounts due thereon [12] to Earl H. Prince from members of the Board of Trade, if he had then settled the trades, would have been greater than the aggregate sums of the amount then due thereon from Prince to others of said members of the Board. That among the open trades so transferred and settled were trades with the said members of the Board who held securities or margin certificates furnished by the said Prince.</p> <p>That on February 15, 1905, the market was constantly changing. If the trades with the members holding Prince’s margin certificates had been closed at the opening of the Board on that day by the members holding them, there would have been due from them to Prince in the aggregate a Balance of approximately one-third of the amount of the certificates after deducting therefrom tiie amount that would have been due to them from Prince. If the trades had been closed later in the day, the balance coming to Prince would have been considerably less. However, if Prince had carried out all of these contracts, the profits which he would have made upon some of them would have been about balanced by the losses which he would have sustained on others.</p> <p>[iaj ((>) Prince becomes a bankrupt:</p> <p>That on the 15th day of February, 1905, an involuntary petition in bankruptcy was filed against Prince in the District Court, and on the 30th day of March Prince was adjudged a bankrupt, and on tile 18th day of May the complainant, 1lie Chicago Title & Trust Company, was duly elected by the creditors, and appointed by the Honorable Frank D. Wean, referee in bankruptcy. as trustee in bankruptcy of said Earl H. Prince. That the trustee so appointed qualified as such and is still acting as trustee of said bankrupt.</p> <p>That at the time of the transfer of the said trades to Anderson & Co., Prince was indebted, as appears from his schedules in bankruptcy afterwards filed, in the sum of over §100,000 to numerous other creditors besides the Federal Trust & Savings Bank for balances due them for margins deposited with said Prince as a broker, and otherwise, besides $1,000 due for labor to various employes of said Prince, and the assets, as appears from his schedules in bankruptcy, aside from the amount Involved in this suit, were less than $50,000 in value, and it now appears that all of the assets of said Prince have been sold and converted Into cash under llie orders of the District Court, and that there is now in the hands of the trustee LI-11 a balance of only $1,-180.83 received from such sale. That no fees have been paid to the trustee, referee, or attorneys, and no claims have been paid, nor have any dividends thereon been paid by the trustee.</p> <p>That the plan adopted at the conference between Mr. Prince. Mr. Anderson, and Mr. Castle was doubtless the best plan that could have been adopted to avoid serious loss to Prince, or to his creditors. The condition of the market was such at that time that, had Anderson & Co. not taken charge of Prince’s trades and carried them through, a panic might have ensued on the Board, and the market so fluctuated that the amount of all of the margin certificates, and quite likely a considerable more, would have been lost to Prince and his creditors.</p> <p>(7) The Federal Trust & Savings Bank on February 10th. and from that time on, had reasonable cause to believe that Prince was insolvent, and that payments thereafter made to the bank were intended as preferences:</p> <p>In the preceding findings the master has staled his conclusions as to the condition of the account between Prince and the Federal Trust & Savings Bank from February 10th to February 15th inclusive, and some of the principal facts in the order of their chronology. To justly determine LI 5] the rights and liabilities of the parties under the bankruptcy law, it is necessary to consider in a more comprehensive way the relations of the parties, the business in which they were engaged, and all of the facts and circumstances disclosed by the testimony which may throw light upon, or give color to, the transactions which took place during the five days preceding the filing of the petition in bankruptcy against Prince.</p> <p>For several years prior to February 10, 1905, Prince did his banking business with the Federal Trust & Savings Bank. He not only had a checking and deposit account there, but the bank discounted his notes, and in other ways gave to him extensive credit. In 1902 the bank became a Board of Trade depository, gave Its bond as required by the rules of the Board, and Prince, at least for some time prior to his failure, and presumably for several years before, had in the bank a margin account in which he deposited funds to protect margin certificates issued by the bank to be used by him in his deals on the Board, so that the relations between Prince and the bank were of a close and confidential character, and the bank was in a better position than any other of Prince's creditors to know his financial condition.</p> <p>[1(>J On the 10th of February, Charles S. Castle, the vice president of the bank, and Prince liad a conference, and the relations that had theretofore existed were terminated. Practically all that Prince had on deposit in his general account on that day was applied on his indebtedness to the bank, regardless of the fact, which both Prince and Oastle must have known, that checks previously drawn by Prince were outstanding and would afterwards be presented to the bank for payment. The testimony does not show how many, or in what amount, cheeks had been previously issued by Prince; but it does show that checks were afterwards presented to the bank and payment was refused. Prince and Castle were both experienced business men, and both knew that, if payment of his checks was refused by the bank, a day of reckoning was not far off.</p> <p>The relations between Prince, the bank, and the Board of Trade were close. Under the rules of the Board, one or more of the executive officers of a bank which becomes a Board of Trade depository must be* members of the Board.</p> <p>The arrangement which was entered into at the bank on the 10th between Prince and Castle, by which it was agreed that clearing house and pay roll checks should be paid by the bank, and that Prince should deposit sufficiently to cover these payments, was calculated to keep Prince going [17] and to protect the clearing house, as well as the bank; but no provision whatever was made for other creditors. The reason for this arrangement is apparent, and it was made primarily in the interest of the bank. Had Prince failed to take care of his clearing house and pay roll liabilities, a failure would have immediately followed, and had he failed at that time, without transferring his trades so that they could be carried on to completion in the regular way, the result in all probability would have been that the amount of his deposits, $4,250, in the margin account, would have been wiped out, and the bank would have been compelled to pay out this money which it wanted to apply and afterwards did apply on Prince’s indebtedness.</p> <p>The 10th of February was on Friday. Prince was at the bank and in conference with Castle on every day from February 10th to February 15th. Monday, the 13th, was observed as Lincoln’s birthday, so that the bank was closed on Sunday, the 12th, and Monday, the 13th; but this matter was of such moment that a conference was held on the afternoon or evening of the 13th between Mr. Castle, Mr. Prince, and Mr. C. C. Wolf, of Parkersburg, Iowa. Wolf had been dealing on the Board through Prince for several years, and in the course of his dealings had turned over to Prince a certificate of deposit issued by the Parkersburg bank, of which Wolf was [18] then the cashier, for $24,000, besides certain certificates of the capital stock of the sam¡e bank. Prince telephoned, the testimony does not show at what time, to Wolf to come to Chicago; that he (Prince) was in financial trouble. Wolf’s train was delayed, and he did not reach Chicago until towards evening of the 13th. He went to Prince’s office and there met Prince and Castle. Prince’s financial difficulties were talked over, and Wolf was informed that Prince was indebted to the Federal Trust & Savings Bank to the extent, as Wolf understood, of $20,000 or $30,000, that his bank loans had been called, and that Prince must have help or quit business. Prince and Castle wanted Wolf to take up the certificate of deposit at its face value, $24,000, and help that much, and Wolf was under the impression that if that was done the bank would carry him along for the rest. Wolf for som,e reason failed to take up the certificate. Had Wolf taken up the certificate of deposit which the bank then held, the bank would have applied it on Prince’s indebtedness and might have carried him along, but subsequent developments show that Prince would still have been insolvent.</p> <p>No further effort seems to have been made by Prince or Castle to secure funds to continue Prince in business, and on the following day, the 34th, he transferred his trades [19] to Anderson & Co., and on the 15th notice was posted1 up on the Board of the transfer of Prince’s trades, and on the same day Anderson & Co. put up its own securities and took up Prince’s margin •certificates, procured the indorsement of the other parties to the trades up.on them and returned them to the bank, and the bank applied- them upon Prince’s- general indebtedness, and on the same day an involuntary petition JU bankruptcy was- filed against Prince, as has already-been-stated-in-this report. Tile testimony does not sliow whether the certificates were turned over to the bank before or after the filing of the petition; but, as both events occurred on the same day, they may be regarded as simultaneous.</p> <p>Conclusions.</p> <p>On February 30, 1005, Prince was insolvent, and the bank knew it. Prince then had $3,098.25 standing to his credit in his checking account at the bank. He also had a certificate of deposit for $24,000 issued to O. C. Wolf by the State Exchange Bank of Parkersburg, Iowa, which was then up with the .Federal Trust & Havings Bank as collateral. He also had other assets, which might be termed quick assets, the nature of which is not disclosed, upon which he could and did within the next few days realize $3,079. He also had on special deposit in idle Federal Trust & Savings Bank 120] $4,250 placed there by him to protect his outstanding margin certificates, and at the sarnie time he was so indebted to the bank that, had all of these assets been applied upon his indebtedness, there would still have been a balance due to the bank.</p> <p>On the same day Mr. Castle, the vice president of the B'ederal Trust & Savings Bank, and Mr. Prince, the insolvent, undertook to so shape and control Prince’s affairs and business that all of these moneys might be acquired by the bank and applied on Prince’s indebtedness, and this, too, with every reason to believe that bankruptcy would soon overtake Prince. From February 10th on until the involuntary petition was filed against Prince, Prince and Castle operated together to bring about this result, and this is shown by what they did. On February 10th they applied $3,095 of Prince’s balance on his indebtedness and entered into an arrangement by which pay roll and clearing house checks should bo paid by the bank, and these payments covered by deposits to be made by Prince. This arrangement they carried out between February 30th and 14th. The bank paid such checks to the amount of $2,506.46, and Prince deposited to the amount of $3,079, leaving in the bank's hands $572.54, which, together with the ¡53.25 remaining in the bank amounted to $575.79, was on February 34th applied on Prince’s indebtedness to the bank. On the 13th Prince and Castle had an [21] interview with C. C. Wolf, in which they tried to induce him to pay the face amount of the certificate of deposit, which he refused, to do. liad he complied with their wishes, this amount would doubtless have been applied on Prince’s indebtedness, as the bank held it as collateral. Oil the 14th of February Castle and Prince induced Anderson & Co. to take over Prince’s trades; the bank agreeing to take care of some costs and expenses which it was thought might be, and which were in fact incurred. On the 35th of February, Anderson & Co., pursuant, to the arrangement, did take over Prince’s trades in such a way as to release the margin certificates put up by him. These certificates were on the same day indorsed by Prince and by the other parties to his deals, and returned to the bank, and the bank applied the amount which they represented and which was then on deposit in the bank on Prince’s indebtedness to the bank.</p> <p>The conduct of Prince’s affairs for the five days preceding the filing of the petition against him is of such a character as to exclude every other conclusion, except that it was the intention of both Prince and Castle to reduce Prince's indebtedness to the hank as much as possible, by applying thereon all of his available assets and by so disposing of his business and open trades on the Board as to realize the greatest possible amount for the bank to the exclusion [22] of his other creditors.</p> <p>The transfer of the $575.79 and the $4,250 to the hank were made with knowledge on the part of the bank that Prince was insolvent, and with a view to use these amounts as set-offs against Prince’s indebtedness to the bank.</p> <p>(8) The trustee in bankruptcy lays claim/ to the moneys applied by the bank on Prince’s indebtedness:</p> <p>That on November 25, 1905, the Chicago Title & Trust Company, by its attorneys, wrote a letter to the B’ederal Trust & Havings Bank, asserting its right as trustee of Prince, bankrupt, to the amounts applied by the bank on Prince’s indebtedness during the few days before the filing of the petition in bankruptcy against him.</p> <p>Findings of Law.</p> <p>I find the law of the case to be that:</p> <p>I. This is a suit brought by the Chicago Title & Trust Company, trustee in -bankruptcy of Earl H. Prince, against the American Trust & Savings Bank, the successor of the Federal Trust & Savings Bank, to recover moneys placed in the bank by Prince which the trustee claims were transferred or paid to the bank in such a way and under such circumstances as to make them preferential payments within the meaning of the bankruptcy law.</p> <p>The complainant relies upon sections 60a and 60b, as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 709 (U. S. Comp. St. Supp. 1909, p. 1314), for its right to recover and its authority to prosecute this suit, which provide that:</p> <p>“Sec. 60a. A person shall be deemed to have given a preference if, being insolvent, he has * ⅜ ⅜ made a transfer of any of his property and the effect of the enforcement of * * ⅜ -such * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.</p> <p>“Sec. 60b. If a bankrupt shall have given a preference and the person receiving it ⅜ * ⅜ -shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. * * ⅜ ”</p> <p>[1] The defendant the American Trust & Savings Bank claims that the application of the moneys on Prince’s indebtedness to the bank was not preferential and was fully authorized by section 60a of the bankruptcy act, which provides that:</p> <p>“Tn all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor, the account shall be stated and one debt shall be -set off against the other, and the balance only shall be allowed or paid.”</p> <p>II. The application of $3,095, the balance, or practically -so, standing to Prince’s credit in the bank on February 10th, was not a preferential payment. The bank had the legal right to make the application under section 68a of the bankruptcy act, notwithstanding the fact that at the time the bank knew that Prince was insolvent. Bank v. Massey, 192 U. S. 138, 24 Sup. Ct. 199, 48 L. Ed. 380.</p> <p>The application of subsequent deposits sufficient to cover the $653 overdraft which existed at the close of business on February. 10th, mentioned on page 7 of this report, did not amount to a preferential payment. Tomlinson v. Bank, 145 Fed. 824, 76 O. C. A. 400. The overdraft arose out of the special arrangements made on that day and in contemplation of deposits to be made under the same, and it is quite clear that the bank did not intend to extend further credit to Prince, and it gained nothing whatever by the transaction.</p> <p>III. The application on February 14th of the $575.79, explained on page 7, and also on page 20, of this report, on Prince’s indebtedness to the bank, gave the bank a preference' over other creditors which it was not entitled to have. The dealings between Prince and the bank, which resulted in this balance, were carried on pursuant to special arrangements, and must be viewed in all respects as if no previous relations had existed between .them. Prince was insolvent at the time, and the bank knew it. It was impossible-for Prince and the bank to enter into or carry out any agreement or arrangement which would result in the payment of any part of Prince’s general indebtedness to the bank to the exclusion of other creditors without violating the law, and, whether the application was consented to by Prince or not, it was not authorized by the bankruptcy act and amounted to a preferential payment within the meaning of the act of such a character that the trustee has the right in this suit on that account to recover that amount.</p> <p>[2] IV. The application on February 15th of the $4,250 before then deposited with the Federal Trust & Savings Bank by Prince to protect margin certificates issued to him by the bank was a preferential payment or transfer as defined in sections 60a and 60b of the bankruptcy act, and the trustee has the right to recover that amount on that account in this suit. The facts upon which this finding of law is based, will be found in division 4, page 8. division 5, page 9, and under “Conclusions” commencing on page 19. of this report.</p> <p>The money deposited by Prince to obtain these certificates was deposited for a special purpose — that is, to protect whoever became entitled thereto on the return of the certificates. The money was not deposited in Prince’s general account. He liad none. It was not subject to check and could not be paid out to any one except on the return of the certificates bearing the in-dorsement of Prince and the other parties to the deals.</p> <p>Counsel on both sides made arguments,, and presented authorities on the question as to whether these deposits were general or special, and on other questions pertaining to the relations that existed between Prince and the hank in reference to them. It will 'serve no useful purpose to determine these questions. All will agree that these moneys were not deposited in any general checking and deposit account, and that after deposit they could not be withdrawn by Prince or by any one else until the certificates were returned, and that Prince did not become entitled to draw these moneys or use them, or make any application of them whatever until February 15th, when the certificates were returned to the bank bearing the proper indorse-ments, and that Prince then was entitled to the money which they represented.</p> <p>it is contended by counsel that the bank had the right under section 68a, already set out herein, to apply the $4,250, and that Bank v. Massey, 192 IT.. S. 138, 24 Sup. Ct. 199, 48 X,. Ed. 380, sustains their contention. The facts in that case clearly distinguish it from the case at bar. The court held that the bank had a right to apply the balance due one of its depositors on Ms general indebtedness to the bank, although the bank had received deposits from him and permitted him to check against his account after it knew of his insolvency. In a general checking and deposit account thfere are mutual credits and mutual debits; every deposit carries with it a corresponding credit. The ease lays down no new rule of law. It applied the general law of set-off as expressed in section 68a, and the rule ordinarily applied in cases where there are mutual accounts between the parties, and it is well settled that, unless there are mutual credits and debits arising out of a general course of business, the allowance of a set-off or counterclaim which results in giving a preference to one creditor over others is within the inhibition of the bankruptcy act. 'in re Lynden Mercantile Co. (D. O.) 156 Fed. 713; Irish v. Citizens, etc. (D. C.) 163 Fed. 888.</p> <p>The set-off section (68) of the bankruptcy act is divided into two paragraphs, “a” and “b.” So for this case has been considered under paragraph “a,” which is materially qualified by paragraph “b,” which reads as follows;</p> <p>“A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the petition, or within four months before such filing, witli a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy.”</p> <p>The facts as found under division 7, page 14, and conclusions on page 19, of this report, bring this case clearly within section 68b. The return of the margin certificates and the consequent release of the money which they represented was accomplished by the combined efforts of Prince and Castle. The inevitable result of their efforts was to bring about a condition' which would enable them to apply the money on Prince’s indebtedness, and the law will conclusively impute to them the intention to bring about the result necessarily arising from what they did. Wilson v. City Bank, 17 Wall. 473, 21 L. Ed. 723. The facts of this case bring it within the rule laid down in the case of Western Tie Company v. Brown. 196 U. S. 502, 25 Sup. Ct. 339, 49 L.- Ed. 571. See, also, In re White, 177 Fed. 194, 101 C. C. A. 364; In re Lynden Mercantile Co. (D. C.) 156 Fed. 713.</p> <p>Counsel for the bank contends that section 68a is not applicable to this case, that it only applies to a ease where a debtor of a bankrupt acquires the set-off, and the strict wording of the section supports this contention, i do not believe that so strict a construction is warranted. If it should prevail, the whole object of the act would be defeated in many cases. The bankruptcy act is designéd to prevent preferences in whatever form they may appear and to insure equality among all the creditors in the distribution of the bankrupt’s .estate. A creditor, when he acquires money belonging to a bankrupt, becomes a debtor, and is both debtor and creditor at the same time. Can it make any difference which is created first, the debit or the credit? The court, in Western Tie Oo. v.. Brown, supra, applied this section to a case on principle the same as this. Whatever may be said as to the application of this particular section, the facts of this case make it clear that Prince and the bank so shaped Prince’s affairs that the bank was enabled to obtain a payment out of Prince’s property of $4,250, in violation of the rights of other creditors. Such a transaction is within the condemnation of the' different sections of the law relating to preferences and contrary.to the wording and intent of the bankruptcy act.</p> <p>I find and report that the complainant, the Chicago Title & Trust Company, is entitled to a decree against the Federal Trust & Savings Bank, defendant, for the payment of $4,825.79, with interest thereon from November 25, 1905, the date of the written notification mentioned on page 22 of this report. On the question of interest, see Irish v. Citizens’ Trust Co. (D. C.) 163 Fed. 880, 892; Keady v. White, 168 Ill. 76-83, 48'N. E. 314; A., T. & S. F. R. Co. v. C. & W. I. R. Co., 54 Ill. App. 407; Deimal v. Brown, 136 Ill. 586, 27 N. E. 44; Steere-v. Hoagland, 50 Ill. 377; Chicago v. Mutual Ins. Co., 218 Ill. 44, 75 N. E. S03.</p> <p>It was agreed by counsel on the hearing that all questions as to the jurisdiction of the court are waived.</p>

In Equity. Bill by the American Baptist Home Mission Society and others against George M. Stewart, as executor of Eliza Stewart, deceased, and others. In April, 1907, Eliza Stewart died testate in Tyler county, W. Ya. By her will she devised her home house and lot in Sistersville to her nephew, George M. Stewart. This house and lot constituted all the real estate of which she died seised. Stewart was also bequeathed all her furniture and household effects.

Action by Walter E. Beer and another, as executors of Julius Beer, deceased, against Isaac Moffatt, Collector of Internal Revenue, to recover certain legacy taxes paid under the war revenue act of 1898.

<p>At Law. Action by the United States, for the Use of F. C. Wood, etc., against the United Surety Company.</p>

<p>In Admiralty. Suit by Reander Rebeck, as owner of a scow, against the launch Teddy Roosevelt.</p>

In the matter of bankruptcy proceedings of J. H. Jenkins, doing business as the Sharon Supply Company. On application to review an order of the referee allowing attorney’s fees as a prior claim on the proceeds of two chattel mortgages securing certain notes presented by the First National Bank of Sharon.

In the matter of Edward E. Loveland, bankrupt. On petition for review of referee’s order denying petition of trustee for the surrender to him by the bankrupt of a certain policy of life insurance.

<p>In "Equity. Suit by the Pacific Telephone & Telegraph Company against the City of Los Angeles. On complainant’s application for a temporary injunction.</p>

<p>1. Courts (§ 366*) — State Court — Decisions—Conglusiveness ox Federal Courts.</p> <p>A decision of tlie highest court of a state construing a statute of the state governing a domestic corporation binds a federal court sitting in the state on bankruptcy against the corporation.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-968; Dec. Dig. § 306.*</p> <p>Conelusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Contracts (§ 76*) — Corporations (§ 450*), — Excessive Debts — Validation.</p> <p>Though a Kentucky corporation’s debts exceeded its charter limit, the excess was validated by subsequent amendment of the charter enlarging the limit so as to include the whole debt and by tbe corporation then recognizing the debt as valid by giving a note therefor, entitling the creditor to participate equally with other general creditors in bankruptcy proceedings brought after the note was given.</p> <p>[Ed. Noté. — For other cases, see Contracts, Cent. Dig. §§ 357-381; -Dec. Dig. § 70;* Corporations, Cent. Dig. §§ 1793-1795; Dec. Dig. § 450.*]</p>

At Law. Action by William Kaiser against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. On application by defendant to compel plaintiff to produce in advance of a trial books and papers for defendant’s inspection.

<p>BANKRUPTCY (§ 130*)-PROPERTY OF BANKRUPT — TERMINATION OF DkASB — UNLAWFUL Detainer.</p> <p>Civ. Code Prac. ICy. §§ 452-469, provide for the recovery of real property by forcible entry and detainer proceedings; section 463 provides for ai>pellate proceedings by filing a traverse of the proceedings within three days thereafter; and section 461 declares that, if the party against whom the inquisition is found fails on or before the third day to file a traverse, the justice shall issue a warrant of restitution of possession. Held, that where, in unlawful detainer proceedings before a justice, a verdict was rendered in favor of a landlord, and the tenant did not exercise his right of appeal, but a few hours before such right would have expired by limitation filed a voluntary petition in bankruptcy, mid the trustee, when appointed, filed no traverse and took no steps to appeal, the lease was terminated, and the trustee had no rights thereunder which he could sell as assets of the bankrupt's estate.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dee. Dig. § 139.*]</p>

In the matter of Charles.?. Hayes, an alleged bankrupt. On motion to vacate an order appointing Edward M. Meek ancillary receiver of the alleged bankrupt’s assets in New York. This is a motion in the Southern District of New York to vacate an order appointing Edward M. Meek ancillary receiver of the assets of the alleged bankrupt.

<p>In the matter of Phillips & Goldman, bankrupts. On motion to open a discharge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Asheville.</p>

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

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

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

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