Volume 193 — Federal Reporter

Action .by W. D. Malone against H. G. Hastings and another. Judgment for defendants, and plaintiff brings error. This was a suit brought by the plaintiff in error, who was a-resident of Hays county, Tex., against the defendants in error, .who were residents of Atlanta, Ga., in a state court.

William J. Keliher was convicted of aiding and abetting a national bank clerk in misapplying the bank’s funds in violation of Rev. St. U. S. § 5209, and he brings error.

In the matter of bankruptcy proceedings of Albert O. Brown and others. Petition by the First National Bank of Princeton, 111., and others, to revise an order of the District Court' of the Southern District of New York, dismissing claims in reclamation of the several petitioners, alleging a prior claim to the same fund.

In the matter of bankruptcy of A. O. Brown & Company. On petition to revise an order directing Charles E. Littlefield as trustee in bankruptcy, etc., to pay $9,600 to a firm doing business under the name of Schuyler & Company out of funds and credits of the bankrupts which came into the hands of their receiver.

In the matter of Herschel Martin Bacon, bankrupt. From an order of discharge, the bankrupt appeals, so far as the order excepts debts due the Buffalo Cold Storage Company. This is an appeal from an order of the District Court for the Northern District of Texas granting the bankrupt his discharge.

Bill by William Starr Miller against the Chicago & Alton Railroad Company. From a decree (176 Fed. 379) sustaining a demurrer to its cross-bill, defendant appeals.

Suit in equity by the Farmers’ Loan & Trust Company, as trustee, against the Metropolitan Street Railway Company, Pennsylvania Steel Company, John I. Waterbury, and others, as a committee, Adrain H. Joline and Douglas Robinson, receivers, and William W. Ladd, receiver. Appeal from supplemental decree of sale.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by John G. Bright against the Hurricane Gold Mining Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in admiralty by Mabelle B. Cook against the Moran Towing & Transportation Company. Decree for libelant (188 Fed. 846), and respondent appeals.

<p>In Error to the District Court of the United States for the Southern District of Florida.</p> <p>Morris R. Glickstein was convicted of an offense, and brings error.</p>

Condemnation proceedings by the United States against a quantity of tomato catsup, alleged to be adulterated, in which William Henning & Co. appeared as claimants. From a judgment of condemnation, claimants bring error.

<p>On reargument.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Vincent Wyss-Thalman and another against the Maryland Casualty Company of Baltimore. Judgment for defendant (193 Fed. 55), and plaintiffs bring error.</p>

At Law. Action by Vincent Wyss-Thálman and another against the Maryland Casualty Company of Baltimore. A verdict was directed for defendant, and plaintiffs move for a new trial.

<p>Patents (§ 328*) — Infringement—Electric Motor Controller.</p> <p>The Knight and Darley patent, No. 554,276, for a controller for a dynamo electric machine, claim 6, the chief element of which is a blowout magnet for the purpose of extinguishing arcs which are formed whenever the electric circuit is broken, and the invention if any residing in the particular place of the location of the magnet and its armature, in view of the prior art is limited to the very form of construction shown. As so limited, it is not infringed by the device of the Stull patent No. 873,805, which shows a different organization of the magnetic •system.</p>

<p>Patents (§ 328*) — Validity and Infringement- — Subaqueous Rook-Breaker.</p> <p>Tbe Rowland reissue patent, No. 12,933 (original No. 907,107), for a subaqueous rock-l>realcer, comprising the combination of a vertically disposed tube baring closed side walls, a rock-breaking chisel fitted to more through tbe bottom thereof and baring an inner beaded end, means for maintaining air pressure under tbe head of the chisel to exclude water, a hammer adapted to be reciprocated in the tube, and means for raising-tlie hammer and dropping it upon the chisel, was not anticipated and discloses invention of a meritorious character, being more effective than any device; of tbe prior art; also, held infringed.</p>

In Equity. Suit by the Rose Manufacturing Company against the E. A. Whitebouse Manufacturing Company and the Re Compte Manufacturing Company. On demurrer. Suit to restrain infringments of four patents: No. 883,973, an improvement in lamp brackets; No. 962,220, an improvement in number plate support for vehicles; Nos. 41,388 and 41,389, designs for vehicle number plate support.

<p>'ATKNXS (§ ÍÍ2S*) — VAHDTTY AND INFRINGEMENT — WARPING MACHINE.</p> <p>The Hover patent, No. 922,144, for a warping and beaming machine, claim,? 1, S. and 9 are void for lack of invention. Claims 2 and 3 held not infringed.</p>

<p>Patents (§ 328*) — Infringement—Automatic Weighing Machine.</p> <p>Certain modifications of machines, previously found to infringe the Thomas patent, No. 766,004, for improvements in automatic weighing machines, brought in by supplemental bill, held not to avoid such infringement, and the decree for injunction and accounting extended to such modified machines.</p>

<p>In Equity. Suit by Greeuwald Bros., Inc., against Henry S. Wiest and Kate C. Wiest, administratrix, trading as P. Wiest’s Sons, and others. On motion for preliminary injunction.</p>

<p>Petition of the Pennsylvania Railroad Company against the Interstate Commerce Commission, the United States and others interveners. On demurrers to petition.</p>

In the matter of bankruptcy proceedings of the Elletson Company. On petition to revise an order denying the application of the Ritchie County Bank for the allowance of a claim against the bankrupt’s estate.

<p>In Equity. Suits by the Tacoma Railway & Power Company, the Puget Sound Power Company, and the Old Colony Trust Company against the County of Pierce and others.</p>

<p>In Equity. Bill by the East St. Louis. & Suburban Railway Company against the City of Belleville.</p>

<p>1. Bankruptcy (§ 330*) — Glaims—Proof—Evidence.</p> <p>Where claimant in bankruptcy proceedings chose not to rely on the presumption oí correctness of his claim, raised by the formal proof thereof, hut attempted to strengthen it by the testimony of himself and another, which was relevant to the issue, and such testimony overthrew the presumption of correctness, he took the risk of his undertaking, and was bound by the result.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 330.*]</p> <p>2. Bankruptcy (§ 340*) — Glams—Money Loaned — Evidence.</p> <p>Evidence held sufficient to sustain hut a small part of a claim for money alleged to have been loaned to the bankrupt by his son.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 340.*]</p>

<p>In re William T. Tomlinson, Bankrupt. On motion to vacate a restraining order and to strike a claim from the schedules. Order modified.</p>

<p>In the matter of one Fisher, bankrupt. On certificate of the referee on review of the election of a trustee.</p>

<p>1. Evidence (§ 157*) — Suit for Forfeiture of Coal Lease — Royalties—Ev- ■ idenoe of Quantity Mined.</p> <p>In a suit by tlie lessor of coal mines against tbe lessee to enforce a forfeiture of tbe lease on the ground ol' underpayment of the royalties reserved, the tipple weights, made by a weigher for the lessee company and checked by one representing the miners, who as well as the lessor were pai(l on such weights, held to constitute the best evidence of tlie quantity of coal rained and on which royalties were due in preference^o estimates made by engineers from insufficient and Inaccurate data, which also differed widely and were at best only approximations with liability to substantial error.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 157.*]</p> <p>2. Manes and Minerals (§ 70*) — Forfeiture of Coal Lkase — Grounds-Insufficient Payment of Royalties.</p> <p>A lessor is not entitled to enforce a declared forfeiture of a coal lease because of the payment of insufficient royalties, even if shown, where the lessee paid each installment in good faith in the belief that it was paid in full, and it was so accepted by the lessor, and whore the lessee is solvent and willing to pay the amount of any shortage found by the court.</p> <p>[Ed. Note. — For other eases, see Mines and Minerals, Dec. Dig. § 70.*]</p> <p>3. Minks and Minerals (§ 64*)--Construction of Coal Lease-Covenant Against Subleasing — ‘‘Assignmf.nt’’ —‘‘Sublease.’’</p> <p>A covenant; in a coal lease against assigning or subleasing without the consent of the lessor, when relied on as a ground of forfeiture, will be given a strict construction in equity, and a contract between such a lessee and a mining company, by which the latter was given possession of the lessee's plant and equipment and agreed to mine the property and load the coal in ears for the lessee, which retained the ownership and paid for the work, was merely a working contract, and not an “assignment” or “sublease” within the meaning of such a covenant.</p> <p>[lid. Note. — For other eases, see Mines and Minerals, Dec. Dig. § 64.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 5(5(5-571; vol. 8, pp. 7584, 7807.J</p> <p>4. Mines and Minerals (§ 62*) -Construction of Coal Lease.</p> <p>Coal lands of complainant and another owner, which adjoined and could only be effectively mined together, were leased at the same time and through the same person acting Cor both lessors to defendant’s predcessor in interest. The lease of complainant’s land provided that the lessees might use the entries and passageways thereon for the purpose of mining “on any other lands which they may lease or buy, provided said lands are within 2.500 feet of the main slope opened on the land embraced in the lease.” Held that, in view of the requirement of the leases and evident intention of the parties that ail the land embraced in both leases should he mined, which could not he done without going more than 2,500 feet from the main slope of the mine, such provision must bo construed as giving the lessee's the right to use the narrow work on complainant’s land to transport coal mined on any land, the nearest boundary of which was within that distance.</p> <p>[Ed. Note. — For other eases, see Mines and Minerals, Dec. Dig. § 02.*]</p> <p>5. Mines and Minerals (§ 66*) — Co.vr. Mining Lease-Forfeiture.</p> <p>Where defendant as lessee used the narrow work on complainants land to transport coal mined from other land, for which no authority was given by the lease, hut complainant suffered no substantial injury therefrom, such use is not ground for enforcing a forfeiture of the lease in equity nor for the granting of an injunction to restrain such use as a trespass, the effect of which would be to cause serious loss to defendant and to prevent the mining at all of certain of the land ; but in such, case complainant will be left to its remedy by the recovery of damages. unless such use should be extended beyond a reasonable time.</p> <p>[Ed. Note. — For other cases, see Minos and Minerals, Dec. Dig. § 60.*1</p> <p>6. Minks and Minerals (§ 68*) — (’oal Mining Lease — Construction.</p> <p>Where adjoining coal lands of different owners, which could only be practically developed together, were leased together as a single transaction to the same lessees, the lease providing also that the lessees should have the right to use the entries and narrow works for the transportation of coal mined on other lands they should acquire within 2,500 feet of the main slope of their mine, a provision of the leases requiring the “mines” to be worked continuously, with reasonable diligence, and for their best development, cannot be construed to require the lessee to work the mine for the best and most rapid development of the land of that particular lessor alone under penalty of a forfeiture of the lease, but as requiring the proper and symmetrical development of all the property, worked together as a single mine.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dee. Dig. § 68.*]</p> <p>7. Mines and Minerals (§ 68*) — Coal Mining Lease — Forfeiture—Failure to Properly Develop.</p> <p>A forfeiture of a coal mining lease for breach of a covenant to properly develop the property will not be enforced, where the lessee has acted in good faith, and the proper manner of development was largely a matter of judgment.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 188-191; Dec. Dig. § 68.*]</p> <p>8. Mines and Minerals (§ 68*) — Coal Mining Lease — Construction.</p> <p>A lease, which demises and lets for a term of 20 years the right of “mining coal” on the land described, must be construed, in the absence of any reservation or limiting words, as giving the right to mine any coal under the leased land, and a further provision that in case a seam of coal, which was known and had been opened by prospecting, should fail or be worked out, the lessee might be released from payment of royalty, was one entirely for his benefit by giving him an option, but did not limit his right at his election to open other veins.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dec. Dig. § 68.*]</p>

In Bankruptcy. In the matter of John Geiver, bankrupt. On certificate of the referee to review an order holding invalid certain mortgages given by the bankrupt to secure an indebtedness of the Henderson State Bank.

<p>Bankruptcy (§ 138*) — Personal Property — Beclamation—Leases.</p> <p>Where petitioner, a manufacturer of moving picture films under a patent license, leased a quantity of films to the bankrupt, a film exchange which furnished films to moving picture shows, the title at all times remaining in petitioner, it was entitled to recover from the bankrupt’s trustee a quantity of films leased to the bankrupt more than four months before bankruptcy.</p> <p>Tied. Note. — For other cases, see Bankruptcy, Dec. Dig. § 138.*]</p>

In Bankruptcy. In the matter of Tanius Basha and Najeeb Basha, individually and as members of the firm of Tanius Basha & Son. On motion for leave to file proof of claim more than one year after date of adjudication. The temporary receiver in bankruptcy, on an application to the court for leave to sell the property of the estate, filed his preliminary report containing a schedule of the bankrupts’ creditors with amounts and addresses.

In Equity. Action by Henry Alter, trustee in bankruptcy of W. E. Wallace and another, individually and as partners under the name of Wallace & Blaisdell, and Wallace & Blaisdell, a copartnership, against A. J. Clark.

<p>Bill by Annie C. Field and another against Sarah A. Camp and others. Demurrers and pleas to the bill sustained.</p>

<p>1. Bankruptcy (§ 229*) — Contempt Proceedings — Referee’s Order — Conclusiveness.</p> <p>In proceedings against a bankrupt' for contempt for disobeying an order of the referee requiring him to turn over m¡oney or property, the order may be given the weight to which it is entitled under all the circumstances, but the court should make an independent investigation and consider all material evidence relating to what preceded as well as what followed the referee’s report, and from such investigation and from such evidence determine whether the order was justified, whether the bankrupt’s disobedience is willful and contumacious, and whether he can comply.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 229.*]</p> <p>2. Bankruptcy (§ 229*) — Contempt by Bankrupt — Power to Imprison.</p> <p>The federal District Court alone, and not a referee, can imprison a bankrupt for contempt of an order.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 229.*]</p> <p>3. Bankruptcy (§ 229*) — Contempt by Bankrupt — Evidence—Sufficiency.</p> <p>Evidence in a contempt proceeding against a bankrupt held insufficient to establish his ability to pay over an amount ordered paid by the referee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 229.*]</p>

<p>1. Railroads (§ 173*) — Mortgages—Accounting—Necessity fob Foreclosure.</p> <p>A mortgagee of electric railroad property is entitled to an accounting under an agreement, supplemental to the mortgage, requiring the mortgagor to pay 5 per cent, of the gross earnings to create a sinking- fund to redeem the mortgage bonds, without foreclosing the mortgage, applying for a receiver, or taking possession of the mortgaged property.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. g 173.*]</p> <p>2. Damages (§ 3*) — Contracts—Breach.</p> <p>Generally for a default in paying money at a time and place agreed upon, or for any other breach of a contract, damages may be recovered against tlie obligor in an action at law.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 3.*]</p> <p>3. Mortgages (§ 209*) — Trustee—Duties.</p> <p>A trustee under a trust deed, independently of its provisions, can, and must whenever necessity arises, invoke the aid of a court of equity to preserve the trust estate; and this power cannot be restricted, even by agreement of the parties.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 209.*]</p> <p>4. Railroads (§ 173*) — Mortgages—Sinking Funds — Duty to Maintain.</p> <p>Under a mortgage of electric railroad property requiring the mortgagor to 'maintain and improve property so that service might be furnished, as well as to pay to the trustee 5 per cent, of the gross earnings as a sinking fund to redeem the mortgaged bonds, the latcer obligation is not canceled by exhausting the income under the first obligation.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 173.*]</p>

<p>Action by Edward H. Emmons against the Marbelite Plaster Company. On motion to quash summons and set aside service thereof.</p>

<p>At Daw. Action by Dennis Scully against the United States of America. On demurrer to the complaint.</p>

At Law. Action by J. E. Reardon, as administrator, etc., against the Balaklala Consolidated Copper Company and others. On demurrer to and motion to strike a substituted complaint from the files.

<p>At Law. Action by J. D. Finley against the New Brunswick Fire Insurance Company.</p>

<p>In Equity. Suit by Frank A. Seufert against George Olney.</p>

<p>In Equity. Suit by Willis P. Dickinson against Isaac H. Kempner and others. On demurrer to bill.</p>

<p>In Equity. Action by the American Einseed Oil Company against Andrew French, as Dairy and Food Commissioner of Minnesota, to restrain defendant’s enforcement of Rev. Laws Minn. 1905, § 1772, relating to the sale of linseed oil.</p>

In the matter of bankruptcy proceedings of M. P„ Dunn & Co., in which Scott-Mayer Commission Company intervened, to enforce an alleged constructive trust. This is an intervention by the Scott-Mayer Commission Company for some funds now in the hands of the receiver in bankruptcy in this cause, claiming that they are trust funds equitably belonging to the intervener.

<p>1. Master and Servant (§ 283*) — Action for Death of Servant — Mattf.rs to re Proved.</p> <p>To subject a master to liability in an action for the death of an employ?, it is incumbent on the plaintiff to show not only negligence on the part of defendant, but causal connection between that negligence and the injury of the deceased.</p> <p>[Ed. Note. — For other cases, see "Master and Servant, Cent. Dig. §§ 877-881; Dec. Dig. § 265.*]</p> <p>2'. Master and Servant (§ 276*) — Action foe Death of Servant — Sufficiency of Evidence.</p> <p>Evidence considered, in an action against a railroad company to recover for the death of an engineer whose body was found with the neck broken lying on the floor of a bridge over which his engine had just passed, and held insufficient to warrant a recovery on the theory of the complaint that his death was caused by striking his head against the uprights of the bridge alleged to have been negligently placed too close to the tracks, where lie was last seen alive by his fireman and was then setting the hand brake on the tender in a place of apparent safety, and there was no evidence whatever to show how he fell from the engine or what caused Ms fall.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-954; Dec. Dig. § 276.*]</p>

In the matter of bankruptcy proceedings of the Empire Cork Company. Motion by A. S. Gouvea & Company for the reclamation of goods sold to the bankrupt and for the payment of collections beyond what was already in their hands.

Habeas corpus proceedings by the United States of America, on relation of Francesco D’Amato, against William Williams. In this case the relator obtained the writ of habeas corpus to relieve his brother from detention by the immigration authorities at Ellis Island. He alleges that his brother is detained as an alleged stowaway and is about to be deported to Italy, from which he came, without any hearing by the board of special inquiry or appeal to the commissioner.

In the matter of bankruptcy proceedings of the National Mining Exploration Company. On petition to review a Referee’s order confirming a trustee’s sale of real estate.

<p>At Taw. . Action by C. W. Cummins, as administrator, etc., against the Chicago, Burlington & Quincy Railroad Company and others. On motion to remand.</p>

<p>In Equity. Suit by the L. E. Waterman Company against the Modern Fen Company.</p>

At Law. Action by P. L. Lamphere, as administrator of the estate of C. Roy Lamphere, deceased, and as the personal representative of said deceased, against the Oregon Railroad & Navigation Company and the Oregon-Washington Railroad & Navigation Company. On demurrer to complaint.

<p>Action by J. W. Turk, suing for the use and benefit of the Insurance Company of North America, and the Insurance Company of North America, against the Illinois Central Railroad Company. On motion to remand to state court.</p>

<p>Action by Bertha Smith against the National Bank of D. O. Mills & Co. On petition to punish one Taylor for contempt.</p>

George C. Waite was convicted of falsely making and forging' an indorsement on an obligation of the United States, and he applies for time to prepare and present a bill of exceptions.

In the matter of the estate and effects of A. Holmberg, a deceased seaman. On application of the Swedish consul to have the decedent’s moneys and effects delivered to him.

Criminal prosecution by the United States against Joe Domingos. On demurrer to information. It appears from the admitted facts that the defendant, Joe Domingos, is the proprietor of a sailors’ boarding house in the city of Pensacola, and by trade or profession what is commonly known as a “sailor runner,” or “crimp,” and from time to time furnishes to vessels in port seamen engaged in the foreign and domestic trade.

<p>In the Matter of the McAllister-Newgord Company, Bankrupt. On claim of Charles J. Parker to enforce a lien for tire casings furnished for certain automobiles.</p>

At Daw. Action by Paul R. Stevenson and others against the Tennessee Copper Company. On defendant’s motion for a new trial. This was a suit by the plaintiffs to recover damages for the destruction of trees upon their tract of land by gases and smoke exhaled in the roasting and reduction of copper ores by the defendant. There was a trial by jury.

<p>1. Bankruptcy (§ 397*) — Exemptions—Partnership Assets.</p> <p>Where there is no transfer of partnership property, but mere abandonment by one partner of liis interest, an exemption will not be allowed out of the partnership assets to the other partner.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 397.*]</p> <p>2. Bankruptcy (§ 351*) — Partnership Property — Iren of Creditors.</p> <p>Under the express terms of Bankr. Act July 1, 1898, c. 541, § 5f, 30 Stat. 548 (U. S. Com]), irlt. 1901, p. 8424), partnership creditors have a lien upon partnership property for the payment of partnership debts.</p> <p>[Ed. Note. — For other cases, §ee Bankruptcy, Dec. Dig. § 351.*]</p> <p>3. ' Bankruptcy (§ 1S3*>--Partnership — Pretended Dissolution--Effect.</p> <p>A protended dissolution of a partnership, with fraudulent intent to place the continuing partner so that he could claim individual exemptions in bankruptcy from the firm assets, is ineffectual as against partnership creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 282; Dec. Dig. § 183.*]</p> <p>4. Exemptions (§ 61*) — Partnership—Statutes—Validity.</p> <p>Code Civ. Proc. S. D. § 863, suhd. 5, providing that a partnership can claim but one exemption, and not a several exemption for each partner, is inoperative, since there is no law granting partnership exemptions upon which it can operate.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 83-87; Dec. Dig. § 61.*]</p>

<p>In Equity. Suit by the Samson Cordage Works against the Puritan ■Cordage Mills. On motion for temporary injunction.</p>

<p>In the matter of Mimms & Parham, bankrupts.</p>

<p>1. Specific Performance (§ 70*) — Corporate Stock — Sale.</p> <p>Where a bill for specific performance of a contract for the sale of mining stock did not show that the stock could not be purchased in the market, and that its pecuniary value was not readily ascertainable, or that it had a peculiar value to plaintiff, it did not state a case for specific performance.</p> <p>I Ed. Note--For other eases, see Specific Performance, Cent. Dig. § 208; Dec. Dig. § 70.*]</p> <p>2. Pleading (§ 8*) — Conclusions—Contracts—Ratification.</p> <p>Tn a suit for specific performance of an employment contract for services rendered, an allegation in the bill that defendant corporation ratified the acts of T)., who employed plaintiff, and ratified the contract of employment between plaintiff and D., was a mere conclusion of law, and insufficient to show that the corporation was bound by the contract, under the rule that, if the corporation ratified the contract of the promoter, the facts constituting such ratification must be pleaded.</p> <p>I Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28 It.; Dec. Dig. § 8.*]</p>

In the matter of Pincus Kolber, bankrupt. On certificate of the referee oti an order setting aside personalty as exempt.

In Equity. Action by Samuel McMullen against the Halleck Cattle Company and others. The Halleck Cattle Company caused the suit to be removed on the ground of diversity of citizenship as involving a separable controversy between itself and plaintiff, and plaintiff moves to remand.

<p>1. Bankruptcy (§ 143*) — Assets oe Estate — Insurance Proceeds.</p> <p>Where involuntary proceedings were brought against a bankrupt in April, after he had been stricken with paralysis in the preceding January, and he died therefrom the following June, the trustee is entitled to the proceeds of a policy insuring the bankrupt against permanent disability from paralysis; the widow not being entitled to retain the proceeds on the theory that the disability did not necessarily appear to be permanent, so as to warrant a claim under the policy until the bankrupt’s death, or because the insurer was entitled to one year from the date of claim in which to pay the policy, since the insurance was paid under the widow’s claim that permanent disability was caused by the illness in January.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 143.*]</p> <p>2. Bankruptcy (§ 143*) — Assets—Reduction—Expenses.</p> <p>Whatever expense has been involved in collecting the money from the insurance company and in settling a suit therefor brought by the widow as administratrix, including attorney’s fees, should be paid out of the fund.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 143.*]</p>

Receivership proceedings by the Pennsylvania Steel Company and •others against the New York City Railway Company and another, and by the Central Trust Company against the Third Avenue Railroad Company and others. Applications by the United States for orders requiring the receivers to make and file returns under the corporation tax law.

In the matter of bankruptcy of Ferdinand W. Miers. On motion of the bankrupt for taxation of costs against an unsuccessful objecting creditor.

<p>In Equity. Bill by Clarence Carey against J. M. Sherwood and another.</p>

<p>1. Words and Phrases — “Penad.”</p> <p>An obligation is “penal” in substance when its amount is measured neither by the obligee’s loss nor by the valuation placed by him upon what he lias given in exchange.</p> <p>Did. Note. — For other definitions, see Words and Phrases, vol. 6, T». 52(>8.j</p> <p>2. Bankruptcy (§ 314*) — Claims Provable — Debts to United States— ‘ ‘Penalty’ ’ — ‘ ‘Forfeiture. ’ ’</p> <p>A claim of the United States on a forfeited recognizance for bail in a criminal case is a “penalty” or a “forfeiture,” within Bankr. Act July 1, 1898, c. 541, § 57j, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3444), which provides that debts due the United States as a penalty or forfeiture shall not he allowed in bankruptcy, except as to the pecuniary loss actually sustained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2893-2899; vol. S, p. 7665; vol. 6, pp. 5272-5276; vol. 8, p. 7750.]</p>

<p>Removal or Causes (§ 3*) — Federal Jurisdiction — Employer’s Liability Act.</p> <p>Einjiloyer’s Liability Act Cong. April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), as amended by Act April 5, 1910, c. 143. 36 Stat. 291, providing that actions brought thereunder shall be within the jurisdiction of state courts, and prohibiting removal of causes brought thereunder, does not limit the prohibition to cases where the removal is based on the ground that the action is 'brought under such act, but also prohibits removal for diversity of citizenship, local prejudice, etc.</p> <p>[F.d. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5: Dec. Dig. § 3.*]</p>

<p>Bankruptcy (§ 348*) — Preferred Claim — Bookkeeper Acting as Officer.</p> <p>Claimant was a bookkeeper for a bankrupt corporation at a salary of $75 a month. The treasurer of the corporation having resigned, she was elected a director and treasurer, and held such office during the throe months prior to the bankruptcy, continuing to act as bookkeeper. She received no compensation as director or troasurer, and her only duty as treasurer was to sign checks when directed to do so by the president. 1¡(id, that she was entitled to priority as a preferred claimant.</p> <p>[Ed. Note. — Ifor other cases, see Bankruptcy, Ilec. Dig. § 348.*]</p>

<p>Libels by Peter Eriksson against William J. Grandfield, and by the latter against the former. Appeal from taxation of costs.</p>

<p>Bankruptcy (§ 345*) — Claims—Priority—Water Tax.</p> <p>A lessee covenanted to pay bills for water rent duo the city within five days after they became due. The lease further provided that such bills, if paid by the lessor, might be recovered or distrained for in the same manner as rent, and that all property on the demised premises should be liable to distress for rent, field not to entitle the lessor to priority for an unpaid city water tax on the ground that it was part of the rent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 345.*]</p>

<p>1. Limitation of Actions (§ .173*) — Operation of Bar — Personal Nature of 1ÍEFENKE.</p> <p>Under tile general rule that the right to plead limitations is personal to the debtor, one creditor cannot ordinarily compel the debtor to urge such defense against; another creditor.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 658; Dec. Dig. § 173.*]</p> <p>2. Limitation of Actions (§ 173*) — Operation of Bar — Personal Nature of Defense.</p> <p>The privilege of a bankrupt to plead limitations passes to his trustee. and the bankrupt cannot waive his right to jilead limitations after the filing of a petition in bankruptcy against him and before adjudication. by acknowledging "his obligation in writing to the creditor.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Dee. Dig. § 173.* J</p>

<p>1. Bankruptcy (§ 269*) — Sams—Refusal to Confirm — Grounds.</p> <p>Sale by a trustee in bankruptcy should be set aside only for cause properly shown, and sufficient to move the conscience of the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 269.*]</p> <p>2. Bankruptcy (§ 2G9*) — Sales—Refusal to Confirm— Grounds.</p> <p>That an offer of $20,000 has been received in bankruptcy for property which sold at $17,000 does not show such inadequacy of price as to warrant setting aside the sale.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 269.*]</p> <p>3. Bankruptcy (§ 269*) — Sales—Refusal to Confirm — Review.</p> <p>Generally review of a referee’s refusal to approve a sale on the ground of inadequacy of price should be deferred until the resale, since, if the bidder buys at the second sale for less than his first bid, he is not injured.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 269.*]</p>

<p>Aliens 68*) — Naturalization—Petition—Commerce and Labor Certificate.</p> <p>Where an alien immigrated subsequent to the passage of Act June 29. 1900. c. 3592, § 4, 34 Stat. 597 (TJ. S. Comp. St. Supp. 1909, p. 479), a petition for naturalization, failing to include a certificate from the Department of Commerce and Labor stating the date, place, and manner of the applicant's arrival in tlie United States, required by such act, is insufficient, and will be dismissed.</p> <p>[Ed. Note. — For oilier cases, see Aliens, Dec. Dig. § 08.*]</p>

<p>Removal of Causes (§ 42*) — Employer’s Liability Act — Amendment.</p> <p>Act Cong. April 5, 1910, c. 143, § 3, 30 Stat. 291, amending Employer’s Liability Act April 22, 1908, c. 149, § 6. 35 Suit. «<i (U. S. Comp. St. Supp. 1909, p. 1373), provides that the jurisdiction of the courts of the United States over an action under such act shall be concurrent with that of the courts of the several states, and that no case arising thereunder and brought in any state court of competent jurisdiction shall be removed to any court of the United States. Held, that such act repealed so much of Removal Act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 508), as authorized removal of causes brought under the employer's liability act, and that such an action involving more than $2,000 could not l:e removed for diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dee. Dig. § 42.*)</p>

In the matter of bankruptcy proceedings of Nathan B. Blum. Proceedings to determine the amount of attorney’s fees allowable for the collection of certain judgments in favor of the bankrupt.

Action by McEwen Bros., a corporation, against John E. Davis. Judgment for plaintiff, and defendant brings error. In an action at law upon two separate causes of action, the Circuit Court for the District of Montana rendered a Judgment in favor of the plaintiff, a Xew York corporation, now the defendant in error, for the sum of S3,933.67.

<p>1. Taxation (§ 827*) — Invalid Tax Title — Rights of Holder.</p> <p>Under the Michigan statutes, the holder of a fax title which has been found to be invalid can enforce his lien, as for taxes paid, only in equity, and on the foot of the adjudication against the tax title.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1635-1042; Dec. Dig. § 827.*]</p> <p>2. Taxation (§ 824*) — Invalid Tax Title — Sights of Holder.</p> <p>The present holder of a tax title, which has been held invalid, can have no lien, as for taxes paid, on account of taxes accruing while the original tax title purchaser ivas the owner of the life estate.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1632; Dec. Dig. § 824.*]</p> <p>3. Tenancy in Common (§ 30*) — Payment of Taxf.s — Duty of Cotenant.</p> <p>The duty which one tenant in common may owe to the state to pay the entire taxes assessed against the whole estate as a unit is to be distinguished from the duty he owes in the same subject-matter to his co-tenant. To the state he may owe the duty to pay the whole; to his co-tenant his duty is measured by the benefits received or iiresuined from his possession of the property.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Dec. Dig. § 30.*]</p> <p>4. Tenancy in Common (§ 30*) — Payment of Taxes — Contribution.</p> <p>When a tenant in common, in actual possession, is claiming from his co-tenant contribution on account of the payment of taxes assessed on the entire interest, his right to contribution is measured by bis benefits received. if his possession has been under claim of exclusive title, and of a character adverse to his cotenant, he will be conclusively presumed to have received benefits equal to the taxes paid, and he cannot have contribution; but if his possession is not of such adverse character, he may have contribution, in the absence of proof that he received benefits equal to the taxes paid.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 96; Dec. Dig. § 30.*]</p> <p>5. Tenancy in Common (§ 30*) — Taxation—Payment of, Taxf.s — Contribution.</p> <p>Complainant’s mesne grantor took title under a deed purporting to convey eight-twentieths of the fee. The grantor in such deed was the widow of the deceased owner of such eight-twentieths, and claimed to be his successor in title, but was in fact orfly life tenant, because of the existence of heirs unknown to the grantee. The grantee then had a good title to the remaining twelve-twentieths. After the death of the life tenant, 'such grantee and his successors for 18 years maintained a custodian in charge of the premises, which were wild, unproductive lands, did occasional acts otherwise indicating possession, and paid the entire taxes as assessed on the unitary title, in good faitli believing that they owned the whole title. Tn an ejectment suit later brought against complainant by one claiming through mesne conveyance from the heirs owning the eight-twentieths, the complainant set up his possession as adverse and as constituting an ouster of the heirs owning the eight-twentieths, supporting the statute of limitations; but it was held otherwise, and the ejectment plaintiff recovered. Held, that complainant, in an equitable proceeding at the foot of the ejectment judgment, was entitled to contribution from ejectment plaintiff with regard to the taxes paid during this 18-year period.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 96; Dec. Dig. § 30.*]</p> <p>6. Tenancy in Common (§ 36*) — Contribution—Bona Fide Purchaser from Cotenant.</p> <p>In an equitable proceeding in the nature of one for contribution between cotenants, defendant’s liability for such contribution cannot be escaped by him upon the theory that he is a recent bona fide purchaser of his interest, while ignorant of the claim now sought to be enforced against him, where it appears that he paid only a trilling consideration, and was to share with his grantor whatever might he recovered by establishing his title.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 105; Dec. Dig. § 36.*]</p> <p>7. Tenancy in Common (§ 30*) — Rights of Cotenant — Payment of Taxes— Lien. '</p> <p>A tenant in common, who is in nominal possession of the entire premises, and who has paid the taxes assessed against the entire title, hut who has not ousted his cotenants, and who has not received rents or other benefits from the possession, and who has thus removed' an incumbrance on the common estate, has an equitable lien, without statute and without contract, of the general character of the lien removed, against the title of his cotenants, which he has thus preserved from forfeiture; and he has this lien, even though, when paying, he believed he owned the entire title and has since unsuccessfully endeavored to assert this entire title against his cotenants.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Dec. Dig. § 30.*]</p> <p>8. .Tenancy in Common (§ 30*) — Removal of Incumbrance — Lien—Transfer.</p> <p>Where one tenant in common has. removed an incumbrance from the common estate, and so is entitled to a lien against his cotenant’s interest of the same character as. that removed, the right to such lie ■ passes by his quitclaim deed and by an execution sale, which by statute ! Comp. Laws Mich. 1897, § 9167) covers “all the rights and interests that the debtor had.”</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 96; Dec. Dig. § 30;*]</p>

Bill by John W. Patterson and others against Samuel S. Dickinson. Judgment for defendant, and plaintiffs appeal.

Charles Franklin and. Gilbert B. Perkins were convicted of using the mails in executing a scheme to defraud, and of conspiring to commit an offense against the United States, and they bring error.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania. ,,</p> <p>Action by Sophia Y. Miller against the Maryland Casualty Company. Judgment for defendant, and plaintiff brings error.</p> <p>Reversed.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa.</p> <p>Petition by the Nauman Company against Charles S. Bradshaw, as trustee in bankruptcy of the Des Moines Department Store Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Pleading (§ 236*) — Amendment—Discretion.</p> <p>Where, in an action for breac-h of contract, the original complaint contained no allegation of performance on the part of plaintiff’s assignor, It was within the discretion of the trial court to permit an amendment on the trial to cure the defect.</p> <p>[Ed. Note.- — For other eases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236.*]</p> <p>2. Appeal and Error (§ 263*) — Instructions—Exception.</p> <p>Where no exception was taken to an instruction withdrawing the issue of the right of plaintiff’s assignor, a foreign corporation, to do business in Oregon where the contract sued on was made, from the jury, the question was not reviewable on writ of error.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-3532; Dec. Dig. § 263.*]</p> <p>3. Contracts (§ 176*) — Instructions—Sale of Lumber.</p> <p>A contract for the sale of the cut of defendant’s lumber mill provided that defendant agreed to deliver to plaintiff’s assignor and the latter agreed to receive at W. station, J. county, Or., the defendant’s entire cut of lumber for the season of 1906, etc., all to be delivered by defendant on or before November 35, 1906, at such station under specified terms and conditions, and that defendant's assignor was to pay for the lumber within 10 days after delivery at W. station on siding subject to 2 per cent, discount. Held, that the court properly construed the contract itself, and charged that all the lumber embraced by it was to be delivered by defendant free on board cars at the railroad siding at W. station, and that payments were to be due 10 days thereafter.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 176.*]</p>

<p>Sales (§ 420*) — Action tor Breach of Contract — Question for Jury.</p> <p>In an action for breach of a contract for the sale of rubber, evidence examined, and held not 'to justify a submission to the jury of the question whether the contract had been so modified as to eiiminate a requirement of strict conformity to samples.</p> <p>FEd. Note. — For other cases, see Sales, Cent. Dig. § 1202; Dec. Dig. § 420.*]</p>

Suit in equity by Henry D. Laughlin against the North Wisconsin Lumber Company and John H. Savage. From the decree (176 Fed. 772), complainant appeals. On February 1, 1908, appellant brought his bill in the Circuit Court of the United States for the Western District of Wisconsin to restrain a forfeiture of his rights in and to certain real estate in Wisconsin held under and by virtue of a certain agreement in writing, and for other relief.

<p>In Equity. Suit by the Vehicle Apron & Hood Company against the American Tire & Rubber Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit by Thomas W. Jackson, trustee for creditors of the United Syndicate Buyers, against Henrietta A. Sedgwick. On exceptions to master’s report.</p>

<p>In Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Action by George H. Stone against Lewis R. Speare. Judgment (175 Fed. 584) for plaintiff, and defendant brings error.</p>

<p>Collision (§ 100*) — Tug and Tow Laid Up in Fog — Failure to Give Signals.</p> <p>A tug with 8 boats in tow in two tiers of 4 boats each, the whole extending from 230 to 300 feet from her stern, passing down North River in -the evening, on account of the dense fog, tied up with her starboard side along the end of Pier 1, North River, the tow trailing downstream or perhaps swung somewhat toward the shore by the tide. A helper tug tied up outside her where they lay through the night without sounding any signals. In the morning, the fog still continuing, a large fire boat lying at a wharf some GOO feet below received an alarm, and starting up the river near the pier ends came into collision with and sunk the outer boat in the rear tier of the tow, which, although she had a good lookout, she could not see until only a few feet away. Held, that the tug was. in fault for lying with her tow where she did, without giving warning of her presence to other vessels by signals, and that the fire boat, considering the nature of her business, was not in fault.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 213-215; Dec.</p> <p>Dig. § 100.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p> <p>Before RACOMBE, COXE, and WARD, Circuit Judges.'</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit by the J. B. Williams Soap Company against the Williams Soap Company and others. Decree for complainant, and defendants appeal.</p>

<p>1. Contracts (§ 285*) — Stipulation eor Arbitration — Premature Suit.</p> <p>Where a contract between a construction company and a’railroad provided that in order to prevent litigation or dispute, and to provide for the prompt settlement of all questions that might arise relating to the execution of the work provided for by the agreement, and to the measurement, classification, and estimates for the same, it was thereby mutually agreed that the decision, arbitrament, classification, and estimates of the railroad’s chief engineer should be final and conclusive as to both parties, a suit brought by the construction company for breiwh of the contract before an arbitrament of the chief engineer was premature.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1290, 1291, 1303, 1304; Dee. Dig. § 283.*]</p> <p>2. Contracts (§ 285*) — Stipulation for Arbitration — Premature Suit— Effkct.</p> <p>Where a construction company and a railroad had agreed that disputes as to the work should be arbitrated by the railroad’s chief engineer, a suit brought by the construction company for breach of the contract before he had an opportunity to act did not affect his power as arbitrator.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1290, 1291, 1303, 1304; Dec. Dig. § 285.*]</p> <p>3. Contracts (§ 285*) — Stipulation for Arbitration — Disqualification of Arbitrator.</p> <p>The fact that when such suit was brought the chief engineer signed and swore to the railroad’s affidavit of defense did not disqualify him from thereafter acting as arbitrator.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 285.*]</p> <p>4. Contracts (§ 284*) — Stipulation for Arbitration — Construction.</p> <p>A contract providing that the decision, arbitrament, classification, and estimates of the chief engineer of one of the parties should be final and conclusive as to both parties did not mean the person who filled the position when the contract was entered into, but the person who was chief engineer when the decisions contemplated were made.</p> <p>[Ed. Note. — For other cases, see Contracts, Dee. Dig. § 284.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 98*) — Unfair Competition — Accounting — Profits.</p> <p>Where unfair competition consists in the use of a trade-mark in fraud of complainant’s rights, affixed to or covering packages sold by defendant, complainant is not bound to show the amount defendant’s profits were actually enhanced by his unlawful use of the trade-mark, but is entitled to recover by way of damages the whole profit realized by defendant from the sale of articles under color of the infringing trademark, under the rule that the infringer cannot complain, as ho is suffering the consequences of his own wrong.</p> <p>IKd. Note. — For other cases, see 'Trade-Marks and Trade-Names, Gent. Dig. | 112; Dec. Dig. § 98.*j</p> <p>2. Trade-Marks and 'Trade-Names (§ 98*) — Unfair Competition — Remedies.</p> <p>In a suit for unfair competition, an accounting of profits will not be ordered, where an injunction will satisfy the substantial equities of the case.</p> <p>[Kd. Note. — For other cases, see Trade-Marks and Trade-Names, Gent. Pig. § 112; Dec. Dig. § 98.*</p> <p>Unfair competition in use of trade-mark, see notes to Soheuer v. Muller, 20 C. G. A. Ivio; Lare v. Harper & Bros., 30 G. G. A. 370.]</p>

<p>1. Bankruptcy (§ 314*) — Claims—Sale—Illegality—Intoxicating Liquors —Burden of Proof.</p> <p>One wbo pleads illegality of the contract as a defense against an action for the price of intoxicating liquors bought by and delivered to him has the burden of proving that the sales were in fact illegal by the law of the place where they were made, which burden rests on the buyer’s trustee in bankruptcy, objecting to a claim for liquors sold to the bankrupt on the ground that the sale was illegal.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 314.*]</p> <p>2. Intoxicating Liquors (§ 329*) — License--Form—-Person Licensed — Description.</p> <p>Rev. Laws Mass. c. 100, § I, provides that no person shall sell intoxicating liquors without a license; and section 10 states how licenses may be granted, and after providing' in what cities and towns and by whom they may be granted, and how every license shall be signed, and for the record thereof, directs that it shall name the person licensed. It was the custom of the licensing board of Boston to insert in licenses to corporations the names of two or three individuals with whom it might more conveniently deal, and in pursuance of this policy, on the application for license by the “Ballantine Breweries Company,” a license was issued to “Charles Bradley and Frank H. Adams as Ballantine Breweries Company”; Bradley being the president and Adams an employe of the corporation. Held, that such license did not authorize the individuals to sell liquor independent of the corporation, and hence sales made by the corporation were not illegal, as unauthorized.</p> <p>‘ rFd. Note. — -For other cases, see Intoxicating Liquors, Cent. Dig. §§ 474-481; Dec. Dig. § 329.*]</p>

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Proceedings in admiralty by Jeremiah Smith & Sons, Incorporated, owner of the gasoline screw oyster boat Jennie L,. Smith, for limitation of liability. Decree for petitioner, and Edward O’Neill, a damage claimant, appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by Elmer A. Keeler as owner of the tug Gladwish against Transfer No. 18. Decree for libelant, and claimant appeals.</p>

Suits by James C. Robinson against the Mutual Reserve Rife Insurance Company and Reuben O. Scovill against the same defendant, and by William Hepburn Russell and another, as receivers, against Ruel W. Poor and another, as executors of the will of Horace H. Brockway, deceased. From a decree overruling a demurrer to the bill and granting judgment in favor of complainant for $11,067.-33, the executors of Brockway appeal.

Suit in admiralty by John E. Clancey, receiver of the Merchants’ Transportation Company, and the Home Insurance Company, against' the steam wrecking tug William E. ■ Chapman; the Merritt & Chapman Derrick & Wrecking Company, claimant. Decree for libelants, and claimants appeal.

Action by the Columbian Reinforced Concrete Company, for use of the Monongahela National Bank of Pittsburgh, Pa., against Harry R. Rose and another, doing business as Rose & Fisher. Judgment for plaintiff, and defendants bring error.

<p>Master and Servant (§ 21*) — Contract of Employment — Construction— 'Termination.</p> <p>Where a contract of employment provided that it should be for a term of five years from the date thereof, but contained another provision that either party might terminate the agreement, if not otherwise concluded by its own conditions, on giving the other party notice in writing, either personally or by mail, such provisions were not in conflict, and hence the employer was entitled to terminate it by giving the notice prescribed, subject only to liability for services rendered up to the date of cancellation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. § 21.*J</p>

Suit in equity by the American Automatic Railway Switch Company against the Shepherd Automatic Switch Company and others for infringement of letters patent No. 531,782 for a railroad switch, issued to Stewart H. Crampton January 1, 1895. Decree for defendants, and complainant appeals.

<p>Patents (§ 328*) — Validity and Infringement — Locking Device fob Pedestal Tables.</p> <p>The Tyden patent, No. 675,577, for a locking device for pedestal tables, was not anticipated, and discloses invention; also held infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — 'Knuckle Joint foe Room.</p> <p>Tiie Crutchlow patent, No. 625,150, for a knuckle joint for a Jacquard loom, held not anticipated to disclose invention of a meritorious character, and infringed.</p>

Suit in equity by William M. Decker, doing business under the firm name of the Hygeia Nursing Bottle Company, against the Western Bottle Manufacturing Company. From an order granting a preliminary injunction, defendant appeals.

<p>In Equity. Suit by William M. Decker, trading as the Hygeia Nursing Bottle Company, against the Western Bottle Manufacturing Company. On final hearing.</p>

<p>Patents (§ 328*)' — Inekingement—Tie-Plates.</p> <p>Tbe Wolbaupter patents, No. 538,809, claim 8, No. 691,322, claims 1, 2, and 3, No. 721,644, claims 7 and 9, each, for a railroad tie-plate, narrowly construed, as they must be in view of the prior art, held not infringed.</p>

In Equity. Suit by the National Electric Signaling Company against the Telefunken Wireless Telegraph Company and others for infringement of letters patent No-. 706,736 for a system of transmission of energy by electromagnetic waves, granted to Reginald A. Eessenden August 12, 1902. On motion for preliminary injunction.

Application to punish Louis Rubin for a criminal contempt of court. This proceeding originated in the Circuit Court, and was based upon an alleged violation of an order of that court forbidding the sale of lamps of a pattern known as “Solar Light.”

<p>1. Bankruptcy (§ 166*) — Voidable “Preference” — Intention of Debtor.</p> <p>To constitute a voidable preference by transfer under Bankr. Act ,Tulv 1, .1898, c. 541, § 601), 80 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as ¡¡mended by Act Feb. 5. 1903, e. 487, | 13, 32 Stat. 799 (U. S. Comp. St. Snnp. 1009, p, 1315), the transfer must have been suck as to (‘reate a “preference,” as defined in section 60a, and have been made with an actual, and not an attributed, intent on the part of the debtor to give a preference, and the creditor must have had reasonable cause to believe such preference was intended. It is not sufficient to establish such acrual intent on the part of the debtor that he was insolvent when the transfer was made or that a preference in fact resulted.</p> <p>[Ed. Koto. — For other cases, see Bankruptcy, Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5498, 5499; rol. S, p. 7759.)</p> <p>2. Bankruptcy (§ 161*) — Voidable Preference — Recordable Transfers.</p> <p>The amendment of Bankr. Act July 1, 1898, c. 541, §§ 60a, 60b, 30 Stat. 562 (ü. S. Oomp. St. 1901, p. 3445), by Act Fel>. 5, 1903, e. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Snpp. 1909, pp. 1314, 1315), by adding the provision that, “where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required,” has the effect of making recordable transfers. which were in fact preferential and so intended by both parties, voidable under subdivisión “b,” although they were made more than four months before the bankruptcy, where they were not recorded until within that time; but the transfer is still to be judged, in determining the question whether or not it constituted a voidable preference, as of the time when it was made, and not as though it first came into being at rhe time it was recorded, and unless when it was made the debtor was insolvent and actually intended a preference, and tbe creditor then bad reasonable cause to believe it was so intended, it is not voidable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 101.*]</p> <p>3. Bankruptcy (§ 303*) — Voidable Preference — Intention to Give Preference — Evidence Considered.</p> <p>Bankrupt was a man of large business affairs, both on his own account and through three corporations, of which he was principal stockholder and an oflieer; their aggregate business in one of the years just prior to the bankruptcy amounting to $300,000. At about that time lie contracted to sell a lot for $1,500, accepting as part payment a note given to the purchaser by one of his corporations and indorsed by him. For legitimate reasons the deed was not made until more than a year after the contract, and within four months prior to the bankruptcy. The sale was made at the instance of the purchaser who desired the lot and expected to pay cash for it; the application of the note toward the purchase price being at the suggestion of the bankrupt. At the time of the transfer the bankrupt and the corporations were all in fact insolvent; but such condition had existed for some years, and during that time the bankrupt had kept the business of all going and had substantially reduced their indebtedness. He testified that until 10 days before be filed his petition, when certain creditors began to crowd him, he expected to pay out in full, and circumstantial evidence tended to support the statement. No claim was made of any other transfer which was either fraudulent or preferential, and no reason existed why he should prefer the purchaser of the lot, who was not pressing for payment. Held that, conceding that the bankrupt knew of the insolvency, the evidence was not sufficient to show that he intended a preference, or that the purchaser had reasonable cause to believe such preference was intended, so as to render the transfer voidable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p>

<p>1. Corporations (§ 264*) — Stockholder’s Liability — Accrual of Cause of Action.</p> <p>A stockholder’s liability under a judgment against the corporation for negligent death accrued not on the date of judgment, but when the accident occurred, within Code Civ. Proc. Cal. § 359, requiring an action to enforce a stockholder’s liability to be brought within three years after discovery of the facts upon which the liability was created.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 10S4-109S; Dec. Dig. § 264;* Limitation of Actions, Cent. Dig. §§ 327, 343, 347, 349.]</p> <p>2. Bankruptcy (§ 314*) — “Debts Provable” — Outlawed Claims — “Provable Claim.”</p> <p>A debt barred by limitations is not a “provable claim” within the bankruptcy act.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.* For other definitions, see Words and Phrases, vol. 6, p. 5746; vol. 2, p. 1882.]</p> <p>8. Corporations (§ 340*) — Indebtedness—Statutory Limitation — Operation — “Debt.”</p> <p>A judgment against a corporation for negligent death is not a “debt” within Civ. Code Cal. § 309, making directors of a corporation jointly and severally liable, without the benefit of limitations, on debts created beyond the amount of the subscribed capital stock of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1473-1478; Dee. Dig. § 340.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1202-1211, vol. 8, p. 7604.]</p> <p>i Bankruptcy (§ 315*) — “Debts Provable” — Judgments for Tort.</p> <p>A judgment for negligent death is a debt provable in bankruptcy under Bankruptcy Act July 1, 1898, c. 541, § 63a(l), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), as a fixed liability evidenced by judgment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 315.*]</p> <p>5. Bankruptcy (§ 318*) — “Debts Provable” — Stockholder’s Liability.</p> <p>A stockholder’s liability for an unpaid stock subscription is a debt provable in bankruptcy under Bankruptcy Act July 1, 1898, c. 541, § 63a(4), 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), as a debt founded on contract.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 31S.*]</p> <p>6. Pleading (§ 214*) — Admission by Demurrer.</p> <p>Where a petitioner in an involuntary bankruptcy proceeding relies on a judgment, and the petition states that the judgment is in full force, on demurrer to the petition the debtor cannot claim that the judgment is not final because a motion for new trial is pending, since the demurrer admits the truth of the allegations of the petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 525-534; Dec. Dig. § 214.*] .</p> <p>7. Corporations (§ 260*) — Unpaid Subscriptions — Creditors’ Suits.</p> <p>A final judgment against an insolvent corporation though founded on tort is sufficient, to sustain a creditor’s suit to reach whatever remains unpaid on stock subscriptions.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1051, 1052; Dec. Dig. § 260.*]</p> <p>8. Corporations ( 259*) — Stockholders—Liability to Creditors.</p> <p>There being no privity between a stockholder and the creditors of the corporation, the corporation, but not a creditor, can sue at law to recover unpaid stock subscriptions.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. |§ 1050-1067; Dec. Dig. § 259.*]</p> <p>9. Corporations (§ (55*) — Stock—Nature.</p> <p>The stock of each shareholder in a California corporation merely represents his proportional interest in the corporation; fixing the amount which he has paid or must pay as his contribution to the corporate assets.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 163-171; Dec. Dig. § 65.*]</p> <p>10. Corporations (§ 247*) — Stockholders—Individual Liability.</p> <p>The governing officers of a corporation cannot release a stockholder from liability to pay his subscription to the prejudice of creditors, except by fair dealing and for a valuable consideration.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 983-997; Dec. Dig. § 247.*]</p> <p>11. Bankruptcy (§ 814*) — “Debts Provable” — Equitable Claims.</p> <p>Under Bankruptcy Act July 1, 1898. c. 541, § 2, 30 Stat. 545 (U. S. Comp. St. 1901, p. 8420), giving courts of bankruptcy jurisdiction at lajv and in equity, equitable claims are provable if within the purview of the general rules of equity, even though they have no status at law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 814.*]</p> <p>12. Words and Phrases — “Creditor.”</p> <p>A “creditor-’ is one who has a right to require the fulfillment of a contract or obligation; one to whom any obligation is due.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7622-7623.]</p> <p>13. Bankruptcy (§ 70*) — Involuntary Proceedings — Who may Institute.</p> <p>One holding a judgment against an insolvent corporation for negligent death has an equitable right to enforce payment of a stockholder’s unpaid stock subscription, and for that purpose is a creditor who may bring involuntary bankruptcy proceedings against the stockholder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 76.*]</p> <p>14. Bankruptcy (§ 59*) — Acts oe Bankruptcy — -“Legal Proceedings.”</p> <p>Attachment proceedings are “legal proceedings” within Bankruptcy Act July 1, 1898, e. 541, § 3a(3), 30 Stat. 546 (U. S. Comp. Si-. 1901, p. 3422), which makes ii an act of bankruptcy for an insolvent person to permit a creditor to obtain a preference through legal proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 5, pp. 40(57, 4068.]</p> <p>15. Bankruptcy (§ 59*) — “Act oe Bankruptcy” — Permitting Attachment.</p> <p>By failing to file a voluntary petition in bankruptcy to vacate an attachment Hen before expiration of four months after the attachment one commits an “act of bankruptcy” within Bankruptcy Act July 1, 1898, e. 541, § 3a©), 30 Stat. 546 (U. S. Comp. St. 1901. p. 3422), making it an act of bankruptcy for an insolvent person to permit a creditor to obtain a preference through legal proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. £ 59.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 1.18; vol. 8, p. 75(52.]</p>

At Law. Action by M. T. McEldowney, Trustee in Bankruptcy of the estate of Clairfiekl Lumber Company, against A. H. Card and others. Verdict for plaintiff, and defendants move for arrest of judgment and dismissal.

<p>In Equity. Bill by the United States against the Board of County Commissioners of Osage County, Old., and others. On demurrer to the bill.</p>

<p>At Law. Action by the Noel Construction Company of Baltimore City against George W. Smith & Company, Incorporated. On motion to quash summons.</p>

<p>1. Criminal Daw (§ 984*) — Punishment—Different Offenses — Breaking and Entering — Daroeny—Cumulative Sentence.</p> <p>Rev. St. § 5478 (TT. S. Comp. St. 1901, p. 3690), provides that any person who shall forcibly break into or attempt to break into any post office with intent to commit larceny therein shall be punishable by fine and imprisonment, etc. Section 5450 (page 3083) declares that any person who robs another of any kind or description of personal "property belonging to the United States or feloniously takes and carries away the same shall be punished by a fine and imprisonment. Held, that the offenses created by such sections were separate and distinct, and hence, where petitioner was charged in one count of an indictment with breaking into a certain post office with intent to commit larceny therein, and in another count with larceny of postage stamps from such post office at the same time, and was convicted on both counts, the court had jurisdiction to impose a cumulative sentence on each count.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§’2504 -2509; Dec. Dig. § 984.*]</p> <p>2. Criminal Daw (§ 984*) — Punishment—Different Offenses — Burglary and Larceny.</p> <p>Where burglary and larceny are charged in one count of an indictment. the whole being one transaction and there is a general conviction, the court can only sentence for the higher offense, to wit, burglary.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2504-2509; Dec. Dig. § 984.*]</p> <p>3. Courts (§ 383*) — United States Supreme Court — Certiorari—Refusal— Effect.</p> <p>Since certiorari will be issued by the Supreme Court to review a determination of a Circuit Court of Appeals only when a writ of error will not lie, and then only where the case is one of gravity or there is conflict between decisions of state and federal courts or between federal courts of different circuits, or the case is one affecting the relation of this nation to foreign nations or of general interest to the public, the Supreme Court’s refusal to issue a writ of certiorari to review a determination of a Circuit Court of Appeals does not necessarily imply an affirmance of such determination.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 383.*]</p>

Ill Equity. Bill by the Finance Company of Pennsylvania, against ilie Trenton & New Brunswick Railroad Company and others, and against the New Jersey Short Line Railroad Company and others.

<p>In Equity. Action by the Fidelity & Deposit Company of Maryland against the Washington Life Insurance Company of New York.</p>

<p>1. Mines and Minerals (§ 18*) — Mining Claims — Validity—Effect of Excessive Location.</p> <p>In the absence of fraud, a mining claim in excess of the maximum allowed by law is not void, and the locator may remedy the defect by abandoning the excess.</p> <p>[Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. §§ 29-36 ; Dec. Dig. § 18.*]</p> <p>2. Mines and Minerals (§ 18*) — Boundaries of Mining Claims — Discrepancy Between Location Notice and Marked Boundary.</p> <p>AVhere there is no evidence of fraud in the location of a mining claim, and there is a variance between the calls of the location notice and the boundaries of the claim as actually staked upon the ground, and the monuments and stakes fully comply with all statutory requirements and are in place, the locator is not limited to the claim as described of record, unless a subsequent locator has knowledge of such description and acts thereon, but may claim according to the boundaries as marked.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 29-36; Dec. Dig. § 18.*</p> <p>Extent and boundaries of mining claims or locations, see note to Jones v. Wild Goose Mining & Trading Co., 101 O. O. A. 355.]</p>

<p>In Admiralty. Suit by Henry Bartholomew, owner of the canal boat C. .W. Woodford, against the steamship Joseph W. Fordney and John J. Brady and Michael Gioe.</p>

<p>1. Bankruptcy (§ 326*) — Set-Off of Mutual Debts.</p> <p>In order that mutual debts may be set off as provided by section 6S of tbe bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450)), four things must concur: Tbe debts must be mutual; they must be in the same right; they must be debts provable in bankruptcy; and they must not have been purchased after the filing of tlie petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig.'§ 826.*]</p> <p>2. Bankruptcy (§ 326*) — Set-Off of Mutual Debts — Stock Subscriptions.</p> <p>Under such section, a debt due for stock in a corporation cannot be set off against a debt due from it, as such debts are neither mutual nor in tbe same right.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 326.*]</p> <p>3. Bankruptcy (§ 342*) — Reconsideration of Claim.</p> <p>An allowed claim against a bankrupt corporation should not be reconsidered on the ground that the claimant owed the corporation for unpaid stock.</p> <p>. [Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 342.*]</p> <p>4. Bankruptcy (§ 288*)' — Enforcement of Unpaid Stock Subscription— SUMMARY FrOCEEDINQ.</p> <p>i A trustee of a bankrupt corporation cannot enforce a liability for an unpaid stock subscription in a summary proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 288.*]</p>

<p>In Equity. Suit by the United States against Pierce County, Wash., and another, to cancel a purported tax lien.</p>

In the Matter of Bankruptcy Proceedings of the Jules & Frederic Company. On petition for review of an order by the referee avoiding a, mortgage of personal property given by the bankrupt to James H. Duffy.

<p>In Admiralty. Suit by the Independent Pier Company against the steamship Rassell; McCaldin Brothers, claimants.</p>

In Equity. Suit by the State of Kansas against George Beal and others, with eight other cases. On motions to remand to state court.

Action by Helen Puld Dwelle against Nathan Allen. On motion to vacate a summons. Motion to vacate summons served upon defendant while in attendance by virtue of a subpoena on the grand jury of the Circuit Court of the United States for the Southern District of New York. The defendant, a citizen and resident of the stare of Montana, was indicted by the grand jury of the Circuit Court for the Southern District of New York for smuggling-.

<p>Salvage (§ 31*) — Salvage Services — Oompexsation.</p> <p>An award of $500 made to a tug for salvage services rendered to city-scows which wore on fire, and had drifted from their moorings in East River, the services of the tug having been commenced before the arrival of the fireboats, and when there was some danger to.other shipping and under circumstances of danger to herself.</p> <p>¡Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 75-77; Doc. Dig. § 31*</p> <p>Salvage awards in federal courts, see note to The Lamington, 30 O. C. A. 280.1</p>

<p>1. Maritime Liens (§ 25*) — Life-Saving Apparatus.</p> <p>A maritime lien does not exist for lifeboats, life rafts, life preservers, and releasing hooks for lifeboats, furnished for the equipment of a passenger steamer as required by law, although such articles were furnished subsequent to her launching.</p> <p>[Ed. Noté. — For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*]</p> <p>2. Maritime Liens (§ 25*) — Life-Saving Apparatus.</p> <p>Section 1 of the maritime lien law (Act June 23, 1910, e. 373, 30 Stat. 604), which provides that any person furnishing repairs, supplies, or other necessaries to a vessel on order of the owner shall have a maritime lien, which may be enforced by a proceeding in rem, does not create such a lien for life-saving apparatus furnished a passenger steamer, which was a part of her original equipment and essential to her completion.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*]</p> <p>3. Maritime Liens (§ 17*) — Statutes—Soop-e.</p> <p>Section 5 of the maritime lien law (Act June 23, 1910, c. 373, 30 Stat. 605), which supersedes state statutes for liens for supplies and other necessaries, does not enlarge the scope of the act, which is limited to maritime liens arising out of contracts for supplies or other necessaries furnished to vessels already completed in. structure and equipment to transact the business for which they were built.</p> <p>[Ed. Note.- — For other eases, see Maritime Liens, Cent. Dig. §§ 20, 22; Dec. Dig. § 17.*]</p>

<p>In Bankruptcy. In the matter of the Spalding'' Cotton Mills, bankrupt. On review of order of referee.</p>

In the matter of Louis B. Fabacher, bankrupt. On appeal by the trustee. From an order of the referee ordering him to amend his account.

<p>1. Equity (§ 130*) — Bill—Dismissal.</p> <p>Where a bill, when fairly read, fails to state a ease which confers jurisdiction, it is the duty of the court of its own motion to dismiss it, [Ed. Noto. — For other cases, see Equity, Cent. Dig. § 316; Dee. Dig. § 136.*]</p> <p>2. Courts (§ 268*) — Federal Courts — Jurisdiction.</p> <p>Act Cong. March 3. 1S75, e. 137, § 8, IS Stat. 472, provides that when, in any suit commenced in any Circuit Court of the United States to enforce any legal or equitable lien oil or title to real or personal property within tlie district where tlie suit was brought, one or more of the defendants therein shall not be an inhabitant of or found within said district, or shall not voluntarily appear therein, the court may by specified means acquire jurisdiction over such absent defendant. Held that, where ft., not an inhabitant of the district, and who had not been found within it, had a transitory cause of action on an insurance policy issued by a company within the district, and she was a necessary party to a suit by complainant with reference to such insurance, R..’s claim against the insurance company had no such situs within the district as to justify tlie court in. talcing jurisdiction of the bill.</p> <p>[lid. Note. — For other cases, see Courts, Cent. Dig. §§ 806-807, SI2; Dee. Dig. § 268.*]</p>

A. H. Hedderly and others were convicted of a conspiracy to defraud) the United States, and they bring error. Criminal prosecution by the United States upon an indictment charging a number of persons with the crime of conspiracy to defraud the United States of tbe possession, use, and title to large tracts of the public lands belonging to the United States. Upon this indictment A. H. Hedderly, Richard Hynes, and William H. Smith were tried and convicted, and bring error.

<p>.1. Removal of Causes (§ 25*) — Grounds—Determination.</p> <p>Whether a cause is removable under Act Cong. Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), must be determined from plaintiff’s initial pleading, without any aid from defendant’s petition for removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 58, 59; Dee. Dig. § 25.*]</p> <p>2. Removal oe Causes (§ 4*) — Causes Removable — “Suit.”</p> <p>A proceeding, termed “executory process” in Louisiana, to seize and sell a vessel under a mortgage, is a “suit” within Act Cong. Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), which provides for the removal of certain suits</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 11-20; Dec. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6769-6778; vol. 8, p. 7809.]</p> <p>3. Removal oe Causes (§ 25*) — Suits Arising Under Federal Laws — Petition.</p> <p>A petition to seize and sell a vessel under a mortgage given by a third person, does not show a controversy removable under Act Cong. Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), as one arising under a federal law, because it states that a federal marshal, who is not a party to the proceeding, disregarding a state law, sold the vessel to defendant without reading the notice of the mortgages thereon, though they were properly recorded in the office of the collector of the port where the vessel was enrolled.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 25.*]</p>

Libel by the United States against Four Hundred and Forty-Three Cans of Frozen Egg Product, to declare a forfeiture for violation of the pure food act. Judgment for claimant, and plaintiff appeals.

Action by Philip Ringling against the City of Hempstead. Judgment for defendant, and plaintiff brings error. Held: purporting to be had under article 615 et seq. of the.Revised Statutes of Texas for the disincorporation of the defendant, and, the returns of the election showing that a majority had voted for disincorporation, the county judge on February 13, 1899, made an order abolishing the corporation, except as to its right to levy and collect…

Action by Joseph Kmetz, by John Kmetz, his guardian ad litem, against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant brings error. On writ of error to review a judgment for $31,175.45 entered upon the verdict of a jury for $31,000 in favor of the plaintiff for personal injuries sustained by him while crossing the defendant’s tracks near Stratford, Conn., on April 27, 1909.

<p>In Error to the Circuit Court of the United States for the Southern Division of the Southern District of California.</p> <p>Action by Alice M. Gilliland against the Atchison, Topeka & Santa Eé Railway Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of bankruptcy proceedings of the Herman Keck Manufacturing Company. A petition of the Mitchell Storebuilding Company was filed for an order requiring the trustee, R. De V. Carroll, to set aside $6,500 from the assets of the Duhme Jewelry Company, out of which to pay an unliquidated claim under a lease to that company, the assets of which belong to the bankrupt.

In the matter of bankruptcy proceedings of the Brown Hotel Company. Proceeding by the Detroit Trust Company as trustee against Jerome A. Brown to compel a surrender of certain rooms in a hotel occupied by defendant, and to punish him for contempt for refusal to surrender the same. From the judgment Brown appeals, and brings error.

Action by Emil R. Schoeffler against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error at its shops in" Tacoma had six tracks which were used exclusively for the purpose of repairing cars. The tracks all turned off from a track called the “house track.” The switches for each track were provided with locks, the keys of which were carried by the foreman and the assistant foreman of the repair work.

Action for newspaper libel by Gabriel Astruc against the Star Company. There was a judgment of the Circuit Court (182 Fed. 705) for defendant, entered on a verdict for defendant, anti plaintiff brings error. This cause comes here upon appeal from a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error, who was defendant below.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. Petition in involuntary bankruptcy by creditors of Sig. H. Rosenblatt & Co., alleged bankrupt, in which James Phillips filed an intervening petition in bankruptcy. Prom an order dismissing the proceedings on sustaining demurrers to the petitions, the intervener brings petition to revise orders. This cause comes here upon petition to revise certain orders.

<p>1. Appeal and Ekkob (§ 1195*) — Formes Appeal — Decision—Daw of the Case.</p> <p>The decision of the Circuit Court of Appeals on a prior writ of error is the law of the case on retrial.</p> <p>[Ed. Note. — For other cases,* see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*]</p> <p>2. Append and Error (§ 3097*) — Second Writ op Error — Scope on Review.</p> <p>Where, after reversal on a prior writ of error, the same evidence is introduced and relied on, none of the questions which were before the court on the first writ of error can be reheard or re-examined.</p> <p>I Ed. Note. — For ot her cases, see Appeal and Error, Cent. Big. §§ 4358-4308; Bee. Big. § 1007.* i</p>

<p>Petition to Revise an Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Sol. Aarons & Co., bankrupts. Petition by Julius C. Wolff & Co. to revise an order of the District Court confirming an order dismissing a petition to set aside a sale of goods to the bankrupt.</p> <p>The petitioners filed a petition in the District Court for an order re-, scinding and setting aside a sale to the bankrupt of 385 rolls of matting and for authority to take possession of said matting from James Talcott, to whom it had been consigned, on the ground that the bankrupt corporation was insolvent at the time of the purchase of such matting, that this insolvency was known to its president and genera! manager at the time he gave the order for the matting, and that the bankrupt concealed its insolvency and had no bona fide intention of paying for the matting. The referee, as special master, dismissed the petition, and the District Court confirmed the order of dismissal. This petition is brought to revise such action.</p>

<p>Petition to Superintend and Revise an Order of the District Court of the United States for the Northern District of Florida.</p> <p>Petition by the W. Hayward Export Company against William F. Lee.</p>

<p>Bills and Notes (§ 534*) — Action Against Indorser — Attorney’s Pees.</p> <p>Plaintiff brought suit against an indorser of a note secured by a mortgage which provided, in the event the note was not paid at maturity and foreclosure was resorted to, that the holder was entitled to collect attorney’s fees to the amount of 10 per cent, on the amount involved. .The indorser was no party to the mortgage, and no proceedings had been instituted to foreclose the same. Bold, that a judgment in favor of plaintiff, in so far as it awarded attorney’s fees, was erroneous.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1946; Dec. Dig. § 534.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Suit in equity by the Pope Manufacturing Company against Arnold, Schwinn & Company. Decree for defendant, and complainant appeals.</p> <p>This cause comes here upon appeal from a decree dismissing a bill of complaint, in common form, alleging infringement of claims 1 and 6 of United States patent No. 392,973; granted to William E. Smith on November 13, 1888, on an applicátion filed February 16, 1888, for improvements in bicycles.</p>

Action by the American Sulphite Pulp Company against the De Grasse Paper Company for infringement of patent. From a decree of the Circuit Court (190 Fed. 39) awarding complainant nominal damages only, it appeals.

<p>1. Patents (§ 311*) — Suit for Infringement — Issues.</p> <p>In a suit for infringement of a patent, a charge of unfair competition also, in that defendant has imitated complainant’s device in form and design, is but a phase of the issue of infringement, and not a separate cause of action.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 541, 542; Dec. Dig. § 311.*]</p> <p>2. Injunction (§ ño*)- — Subject of Injunction — Circular Intended to Affect Rights Involved in Pending Litigation.</p> <p>A trade circular, issued by tbe defendant in a pending suit for infringement, asserting that its device is not an infringement, and that complainant’s patent is not valid, and containing cuts of prior devices claimed to anticipate, is an unwarranted attempt to influence the trade in advance of the court’s decision, and will be enjoined.</p> <p>[Ed. Note.- — For other cases, see Injunction, Gent. Dig. §§ 108,’ 109; Dec. Dig. § 55.*]</p> <p>3. Patents (§ 294*) — Suit fob Infringement — Motion for Injunction -to Restrain Multiplicity of Suits.</p> <p>The intervention of equity by injunction to prevent a multiplicity of suits cannot be invoked by motion in a patent suit, except in so far as the threatened litigation might interfere with the jurisdiction of the court in the pending suit itself, but is a matter for a separate suit.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 473; Dec. Dig. § 294.*]</p> <p>4. Patents (§§ 296, 297*) — Suits fob Infringement — Preliminary Injunction.</p> <p>Where complainants’ case is not apparently complete to the point of reasonable certainty from any line of attack, a preliminary injunction should not be granted in an infringement suit without prior adjudication or complete recognition by acquiescence-equivalent to estoppel.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 476, 477, 481-488; Dec. Dig. §§ 296, 297.*</p> <p>Grounds for denial of preliminary injunction in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 O. O. A. 123.]</p> <p>5. Patents (§ 328*) — Validity and Infringement — Automobile Horn.</p> <p>A preliminary injunction against infringement of the Hutchison patents, Nos. 923,048, • 923,049, and 923,122, relating to automobile horns, denied on the ground that the showing made did not establish validity or infringement with sufficient certainty in view of the defenses pleaded.</p>

Petition by the Southern Railway Company and others against the United States, respondent, and the Interstate Commerce Commission, intervening respondent. On motion to dismiss for want of jurisdiction.

<p>Petition by the Arkansas Fertilizer Company against the United States, respondent, and the Interstate Commerce Commission intervening respondent. On final hearing.</p>

<p>Commerce (§ 88*) — Excessive Freight Charges — Reparation—Baches.</p> <p>The Interstate Commerce Commission, finding, on- complaint made to it by shippers alleging the exaction of excessive rates by carriers, that the rates were excessive, and fixing lower rates as maximum, rates for the future, must give the shippers reparation for the amount of the gross overpayments not barred by the limitation imposed by Interstate Commerce Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 384 (U. S. Comp. St. 1901, p. 3165), as amended by Act June 29, 1906, c. 3591, § 5, 34 Stat. 590 (U. S. Comp. St. Supp. 1909, p. 1159), and it is error for the Commission to deny reparation for anything preceding the filing of the complaint on the ground of laches predicated only on delay.</p> <p>(Ed. Note. — For other cases, see Commerce, Dec. Dig. § 88.*]</p>

<p>1. Commerce (§ 88*) — -Rates—Unreasonableness—Reparation—Laches.</p> <p>Where the Interstate Commerce Commission determined that a rate of 12 cents on hardwood lumber from Memphis to New Orleans for export was unreasonable and should be reduced to 10 cents, laches was not a sufficient reason for denying complainants reparation with reference to shipments made prior to the filing of the complaint.</p> <p>[Ed. Note. — For other eases', see Commerce, Dec. Dig. § 88.*]</p> <p>2. Evidence (§ 584*) — Weight—“Conclusive Evidence.”</p> <p>. “Conclusive evidence” is that which .is incontrovertible, that is to say, either not open or.not able to be questioned, as, where it is said that a thing is conclusively proved, it means that such result follows from the facts shown as the only one possible; the term conclusive proof meaning either a presumption of law or evidence so strong as to overbear everything to the contrary.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2424r-2427; Dec. Dig. § 584.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1388.]</p> <p>3. Evidence (§ 596*)-«-Weight and Sufficiency — Burden of Proof.</p> <p>In a civil action complainant is not bound to do more than sustain his case by a preponderance of credible testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2446-244S; Dec. Dig. § 59G.*]</p> <p>4. .Commerce (§ 8S*) — Interstate Commerce Commission — Unreasonable Rate — Proof of — Reparation.</p> <p>It was improper for the Interstate Commerce Commission, after having determined that a hardwood lumber rate was unreasonable, to refuse complainant’s reparation because the record did not conclusively disclose that the rate was unreasonable prior to the date it was so held; % complainants only being hound to show by a preponderance of proof that the rate in the past had not been a just and reasonable rate as it was found by the Commission that it would be if maintained in the future.</p> <p>[Ed. Note. — For other cases, see Commerce, Dee. Dig. § 88.*]</p>

<p>Removal of Causes (§ 3*) — Cases Arising Under Employer’s Liability Act.</p> <p>Under section 28 of tbe Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091), which defines removable eases, and concludes with the proviso that no case arising under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St Supp. 1909, p. 1171), or any amendment thereto, shall be removed to a federal court, the right of removal does not exist in cases arising under the act mentioned in the proviso.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 3.*]</p>

<p>Bankruptcy (§ 201*) — Pi.Encusn SecuritieS'-Sai.e — Notick to Creditor.</p> <p>Banter. Act July 1, 1898, e. 541, § 2 (15), 30 Slat. 515 (U. S. Comp. ■ St. 1901, p. 3121) authorizes courts of bankruptcy to make such orders, issue such process, ami enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of the act; and General Order No. 18 contení]ilutes the immediate sale, without notice, of certain property. Held that, while the act requires notice to lie given to creditors of sales by trustees, it does not require notice to be given of sales by pledgees, and hence a trustee, while acting as receiver, was not chargeable for a sale of- pledged col-laterals under an order authorizing a public or private sale thereof, without notice to creditors.</p> <p>[Ed. Note - Cor other cases, see Bankruptcy, Cent. Dig. §§ 361, 362; Dec. Dig. § 261.*J</p>

Action by J. A. Loughmiller against the St. Louis & San Francisco Railroad Company, tried in the District Court, Oklahoma County, Territory of Oklahoma. Judgment for plaintiff, and defendant brought error to the Supreme Court of Oklahoma Territory. From thence it was removed to the Circuit Court of the United States for the Western District of Oklahoma, and by operation of law transferred to this court.

<p>In Equity. Bill' by the Southern Pacific Company against the Railroad Commission of the State of California.</p>

In the matter of bankruptcy proceedings against the Senoia Duck Mills, an alleged bankrupt. An answer denying insolvency or the commission of an act of bankruptcy having been filed, the matter was submitted to a special master. On exceptions to the master’s report. Anderson, Felder, Rountree & Wilson and W. S. Dillon, for excepting creditors.

IÁbel by the United States against One Distillery and Fixtures and 433 Barrels of Corn Whisky, the property of claimant, D. C. Foster.

At Law. Actions by Frank G. Bogue against tbe Chicago, Burlington Quincy Railroad Company, now pending in the Ottumwa division, and by Fdward D. Richey against the Atchison, Topeka & Santa Fé Railway Company, now pending in the Eastern division, of the Southern district of Iowa. On motions to remand.

<p>1. Bankruptcy (§ 72*) — Involuntary Proceedings — “Moneyed, Business, ob Commercial Corporation.”</p> <p>A corporation engaged in leasing its own property and collecting rents therefor, with' power to sue and be sued, to contract debts, and to dispose of its property, is a “moneyed, business, or commercial corporation,” against which involuntary proceedings in bankruptcy may be had under Bankruptcy Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 (TJ. S. Comp. St. 1001, p. 3423), as amended by Act June 25, 1910, c. 412, § 4, 36 Stat. 839.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 17; Dec. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7724; vol. 2, p. 1301.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Bankruptcy (§ 81*) — Involuntary Proceedings — Petition—Sufficiency.</p> <p>A petition by a foreign corporation in an involuntary bankruptcy proceeding is not insufficient for failing to show compliance with the laws of the state where the bankruptcy proceeding is pending.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 81:*]</p> <p>3. Bankruptcy (§ 84*> — Petition—Amendment—Time for Filing.</p> <p>An amended petition, filed within the time granted by an order extending the time for filing, will not be stricken for failure to file the order within the time allowed under the first order for filing the amended petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig. § 84.*]</p> <p>4. Bankruptcy (§ 81*) — Involuntary Proceedings — Petition—Sufficiency —Limitations.</p> <p>A petition in involuntary bankruptcy, setting up a claim based upon a contract for labor and material furnished “within four years immediately before the filing of the petition herein,” does not affirmatively show that the claim is barred by limitations.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 113-118: Dec. Dig. I 81.*]</p> <p>5. Bankruptcy (§ 59*) — “Act of Bankruptcy” — Suffering Execution Levy.</p> <p>Merely suffering an execution to be levied is not an act of bankruptcy within Bankruptcy Act July 1. 1898, c. 541, § 3a, 30 Stat. 546’ (U. S. Comp. St. 1901, p. 3422), making it an act of bankruptcy to permit, while insolvent, any creditor to obtain a preference through legal proceedings; failure to discharge the lien of the execution before it becomes an indissoluble preference and an imminent probability that the lien will ripen into such preference being essential.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. § 59.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.1</p> <p>6. Bankruptcy (§ 81*) — Involuntary Proceedings — Petition—Sufficiency.</p> <p>A petition in involuntary bankruptcy, stating that claims due the bankrupt were assigned without consideration, that suits have been commeneed thereon by the assignee, and that the assignments were made to hinder and defraud creditors, is insufficient to exclude a theory that the assignment was made for purposes of collection.</p> <p>[ICd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 113-118; Dec. Dig. § 81.*]</p> <p>7. Bankruptcy (§ 81*) — Involuntary Proceedings — Petition—Sufficiency —Acts of Bankruptcy.</p> <p>A petition in involuntary bankruptcy showed an act of bankruptcy under Bankruptcy Act July 1, 1898, e. 541, § 3a, subd. 1, 30 Stat. 546 (Ü. S. Comp. St. 1901, p. 3422), by transferring- assets to hinder or defraud creditors where it alleged that, within four months before the petition was filed, the bankrupt permitted its sole stockholders to appropriate portions of its property to their own use.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 59; Dec. Dig. § 81.*]</p> <p>8. Bankruptcy (§ 81*) — Involuntary Proceedings — Intervening Petition-Sufficiency.</p> <p>In an involuntary bankruptcy proceeding, the petition of an intervening creditor will be stricken, where he counts merely upon a judgment from which an' appeal has been taken, and where the nature of the original claim is not set forth.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 81.*</p>

At Law. Action by A. S. Benner, as administrator of the estate of Clarence J. Benner, deceased, against the Truckee River General Electric Company. Judgment for plaintiff, and defendant moves for a new trial.

<p>Sales (§ 340*) — Manufactured Articles — Breach of Contract by Buyer-Remedies of Seller.</p> <p>Where tbe buyer refuses to accept goods manufactured on bis order, the; seller, not being at fault in tbe matter, may store or retain tbe goods for tbe buyer and sue for the entire purchase price, or be may seli the goods, and recover tbe difference between tbe contract, price and tbe price obtained on resale, or be may retain tbe goods as bis own, and recover the difference between tbe market- value at the time and place of delivery and the contract price.</p> <p>[Ed. Note. — For other cases, see Sales', Dec. Dig. § 340.*]</p>

In the matter of bankruptcy proceedings of Morris Alexander. On motion to set aside a former summary order vacating a sale of the bankrupt’s assets.

<p>In Bankruptcy. On petition to declare Michael Donnelly an involuntary bankrupt.</p>

In Equity. Bill by Edward N. Carpenter, as Trustee in Bankruptcy of S. Williams & Brother, against Naaman Karnow and others, to recover certain personal property alleged to have been transferred by the bankrupt in fraud of creditors.

At Law. Action by Elizabeth A. Ullrich, as administratrix of the goods, chattels, and credits of John F. Ullrich, against the New York, New Haven & Hartford Railroad Company. On motion to remand. The above-entitled action was commenced on the 5th day of January, 1912, by a summons and complaint in the Supreme Court of the state of New York for the county of Westchester. On petition of the defendant it was removed to this court oil January 25, 1912.

In the matter of the American National Beverage Company, a bankrupt. There was a judgment of the referee denying the right of H. T. Daniel to prove a claim against the bankrupt, and he brings petition for review.

In the matter of bankruptcy proceedings against Andrews & Simonds. Petition by William A. Simonds for payment of exemptions in cash out of the proceeds of a sale of partnership property. Prom a referee's order denying the petition, the petitioner filed a petition to review.

<p>In the matter of the Iron Clad Manufacturing Company, bankrupt. On review of a Commissioner’s report.</p>

In the matter of bankruptcy proceedings of Louis Zehner. Application of Joseph Burnstein for leave to foreclose his mortgage in the state court. '

In the matter of bankruptcy proceedings of Henry G. Stewart. Application by mortgagee, after having purchased the property at a sale by a trustee, to compel a transfer of the title.

Habeas corpus by the United States, on the relation of Bertha Reinmann, against Isaac Martin, to obtain the release of relator from custody under a deportation warrant.

<p>Application by the United States for a warrant to remove William E. Reddin and another to another state for trial.</p>

<p>In Equity. Suit by the United States of America against Albert M. Murphy and others.</p>

lu Admiralty. Suit for collision by John Kennard, master of the schooner Edward ,P. Martin, against the steamer Manna-Hata, • and cross-libel by claimant of steamer.

<p>In Admiralty. Suit by Martin J. Kent, as master and part owner of the schooner J. H. G. Perkins, against the Eastern Dredging Company.</p>

In the matter of bankruptcy proceedings against the Pressed Steel Wagon Goods Company. On demurrer to a petition in involuntary bankruptcy for failure to sufficiently allege an act of bankruptcy.

In the matter of bankruptcy proceedings of the Verdón Cigar Company. On petition for an order requiring referee to certify for review an order disallowing a claim for services rendered and expenses incurred by claimant as attorney for petitioning creditors in involuntary proceedings.

<p>Bankeitptcy (§ 258*) — Moktgaged Assets — Sale—Disposition.</p> <p>Where personalty of a bankrupt was mortgaged to Its full value, $30.-68, it was proper for the trustee to negotiate with the mortgagee to see if he would take the property in satisfaction of his claim, and not proper to direct him to take possession of the property and sell it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 358; Dec. Dig. § 258.*]</p>

<p>In Error to the Circuit ’ Court of the United Stales for the Western District of Pennsylvania.</p> <p>Action by Robert Lyons, receiver of the Cosmopolitan National Bank of Pittsburgh, against James Westwater. Judgment for plaintiff, and defendant brings error.</p>

Suit by William N: Allen, suing in his own behalf and on behalf of all other stockholders similarly situated, of the Francisco Sugar Company, against the Francisco Sugar Company and another. From a judgment sustaining a demurrer to the bill and dismissing the same, complainant appeals.

In the matter of bankruptcy proceedings of T. J. Atkins. Petition by Arthur Y. Martin, trustee of the bankrupt, to review an order-providing for the distribution of certain assets for the Globe Bank & Trust Company of Paducah, Ky., and certain other creditor banks of the bankrupt. From an order of the District Court, affirming the referee’s order, the trustee appeals.

Petition for Revision of Proceedings of.the District Court of the United States for the Southern Division of the Western District of Michigan. In the matter of bankruptcy proceedings of Ottenwess & Huxoll, bankrupts. From an order of the District Court reversing referee’s order of. distribution on a petition to revise by postponing the claim of Clemons Huxoll to those of creditors who became such between the giving and filing of a mortgage to petitioner, he appeals.

Action by H. D E. Meyer and others, doing business as Meyer, Wilson & Co., against the Everett Pulp & Paper Company. Judgment for defendant (184 Fed. 945), and plaintiffs bring error. This is an action to recover for certain China clay sold and delivered by ihe plaintiffs to the defendant. The character of the questions involved necessitates setting forth the pleadings with some particularity.

Action by Christina A. Sandidge, as administratrix of the estate of William W. Sandidge, deceased, against the Atchison, Topeka & Santa Fé Railway Company, to recover for the alleged wrongful death of her intestate. Judgment for defendant, and plaintiff brings error.

Erank N. Chaplin and another were convicted of conspiracy to defraud the United States of the use and possession of the title to certain desert lands, and they bring error.

Joseph Stern and others were convicted of crime. There was a judgment of the District Court (186 Fed. 854), denying motions in arrest and for new trial, and they bring error.

Suit in equity by the Fred Bredel Company against the Natural Carbon By-Products Company and the American Trust & Savings Bank, with the Natural Carbon Paint Company as intervening defendant. Decree for complainant, and the Paint Company and the Bank appeal.

<p>lu Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action by the Buffalo Pitts Compauy against the United States. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Equity (§ 65*) — Maxims—Clean Hands.</p> <p>It is a fundamental principle of equity jurisprudence that a court of equity will exercise its powers only to enforce the requirements of conscience, and that he that eometh into equity must have clean hands.</p> <p>LEd. Note. — For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 05.*</p> <p>lie who comes into equity must come with clean hands, see note to Knapp v. S. Jarvis Adams Co., 70 C. C. A. 543.]</p> <p>2. Appeal and Error (§ 109*) — Review—-Reversal—Grounds—Public Policy-Questions Not Raised at .Trial.</p> <p>Where, in a suit in equity to enforce an alleged trust and for an accounting, it appeared to the Court of Appeals that the parties had knowingly engaged in a fraudulent joint enterprise for the sale of fraudulent mining stock to the public, and that to decree ail accounting would require an investigation of continuous fraudulent transactions and an ascertainment of tiio profits derived therefrom, the appellate court would reverse a decree for complainant and direct a dismissal of the bill on its own motion on the ground of public policy, irrespective of the fact that such question was not raised by the pleadings nor urged by either party in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3038-1034; Dee. Dig. § 1(59.*]</p> <p>3. Equity (§ 05®) — Maxims—Fraudulent Joint Enterprise.</p> <p>In a suit to declare a trust and for an accounting, evidence held to require a finding that complainant and defendant were engaged in a fraudulent joint enterprise for the sale of fraudulent mining stock to the public, and that the granting of relief to complainant would involve an investigation of various connected fraudulent transactions in furtherance of the scheme, requiring a dismissal of the bill on the theory that complainant did not come into equity with clean hands.</p> <p>[Ed. Note. — For other cases, see Equity, Dee. Dig. § <;.5.*]</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the District of Idaho, in Bankruptcy.</p> <p>In the matter of Prank M. Pindel, bankrupt. On petition by Sarah E. Pindel, and cross-petition by Norman J. Holgate, trustee, to review an order relating to land claimed as a homestead.</p> <p>This is a petition for review of the order and judgment of the District Court sitting in bankruptcy, made and entered in the matter of the estate of Frank M. Pindel, bankrupt. Pindel, the husband of Sarah E. Pindel, was adjudged a voluntary bankrupt February 14, 1910, and on October 7, 1910, Norman J. Holgate was appointed trustee. Among other assets of the bankrupt was a certain tract of land, upon which the home of the husband and wife was situated, described as follows:</p> <p>“Lots numbered 1, 2, 3, and 4 of section 34, and lots numbered 29, 39, 31 and 32 of section 27, in township 34 north of rango 3, west of the Boise Meridian, Nez Perce county, Idaho, containing 160 acres, more or less.”</p> <p>This land was included in his inventory and appraisement of the bankrupt's estate by the trustee, who reported that it, was claimed as a homestead by Mrs. Pindel, hut ivas of the probable value of 89.000, and that a homestead of the value of $5,000 only could not be segregated and set apart without material injury to the tract. Thereupon the referee appointed three appraisers to appraise the real and personal property of the estate. Two of the appraisers made return (the third refusing to join with them) fixing the value of the land at $9,000.</p> <p>Long prior to the institution of the proceedings in bankruptcy and the adjudication therein, namely, on February 15. 1909. the Bank of Nez Perce recovered judgment in the state court of Idaho against Pindel and wife for the sum of $5,382.28, under which an execution was issued and levied upon the laud in question. Prior, however, to the entry of this judgment, the wife declared a homestead for herself and husband upon the premises, estimating that the value thereof did not exceed $5,000, and claiming the same as exempt from execution. The Bank of Nez Perce, contesting the rigid, of Mrs. Pindel to claim the whole of said tract as exempt, filed in the district court of the Second judicial district for the state of Idaho, in and for Nez Perce county, a petition alleging that the premises were worth more than the lawful amount of a homestead exemption, and prayed the appointment of apju-aisors to report the value, and also whether the same could be divided without injury to the estate. The appraisers reported on December 30, 1999, appraising lots 29, 30, 31, and 32, section 27. and lots 3 and 4, section 34, at $5,000, and sotting aside the same as the homestead of Mrs. Pindel and husband, but failed to report as to whether the land ‘could be divided without material injury. Another report was made January 1.7, 1910, which with the erasure's shows merely the description of the land and the value of lots 1 and 2 at $1,500. with no determination relative to the divisibility of the land. Without the erasures in this report, it would show the land except lots 1 and 2 appraised at $5,000, lots 1 and 2 at $1,500, aggregating $6,500, and a determination that lots 1 and 2 could be set off without material injury'to the property. Why the erasures wore made does not appear by the record. Objections were filed to these reports. While the same were pending. and before the state court had finally determined the matter of such homestead exemption, the bankruptcy proceedings were instituted, and Pindel was adjudged a bankrupt’. About December 17, 1010. Pindel obtained leave to file an amended schedule B-2, by which was included additional personal property, consisting, among other tilings, of stock, horses, nmles, cattle, and hogs, and at the same time filed an amendment to schedule B-5 claiming ail of such additional property as exempted under section 4479 Revised Codes of Idaho, which exemption is in favor of the wife. Later, about January 5, 3911, Mrs. Pindel, alleging that she had duly made her declaration of homestead claiming all of said land therefor and as exempt, and that it had been duly appraised at $5,000, petitioned the District Court to stay the proceeding before the referee, and to have the matters in dispute heard and determined by the court. The court, after hearing the matters and things presented for its consideration, found :</p> <p>(1) That the hogs referred to in the petitions were exempt.</p> <p>(2) That the crops referred to in the evidence and argument of counsel did not become a part of the estate.</p> <p>(3) That certain horses and cattle referred to and described in the pleadings are the separate property of Mrs. Pindel.</p> <p>(4) That the 160-acre tract of land is of the value of $9,000. “That the same is the homestead of the bankrupt and his wife, Sarah E. pindel, the latter of whom filed a declaration of homestead thereon prior to the commencement of these proceedings. That the value thereof has never been adjudicated or determined by the probate court of Nez Perce count}-, Idaho, or by any other tribunal. That the lands embraced in said homestead cannot be segregated or divided without material injury, and that therefore it is for the best interests of ail concerned that the same he held as a single tract.”</p> <p>Thereupon the court made decree as follows:</p> <p>“It is therefore ordered that, if, within 30 days from the date hereof, the bankrupt shall pay or cause to be paid to the trustee in bankruptcy herein, for the benefit of the creditors of the estate, the sum of $4,000. said entire tract be set apart as the homestead of the bankrupt, and that the same be free and exempt from all further claims of the trustee in bankruptcy. If the bankrupt fails to make the payment of said amount within the time specified, the trustee is authorized to take the necessary steps, and to sell, in the maimer provided by law, and under the direction of the referee in bankruptcy, the entire tract, for not less, however, than the sum of $5,000, and that, out of the proceeds of such sale, the trustee pay over to the bankrupt and to his wife, Sarah B. Pindel, the sum of $5,000 and account for the balance, if any, of such proceeds as a part of the assets of the estate, to be distributed in due course of administration.”</p> <p>■ Revision of the order and decree thus rendered is sought by petition of Mrs. Pindel and cross-petitions of the Nez Perce Bank and the trustee.</p>

<p>1. Commerce (§ 88*) — Interstate Commerce Commission — Bowers—Orders.</p> <p>Tbe Interstate Commerce Commission has power to determine the reasonableness of rates and may award reparation, and in both respects, where tbe reparation arises from' a re-establisbment of rates, its conclusions, being administrative, are final and conclusive unless tbe .commission has, in some particular material to the controversy, exceeded its prescribed functions.</p> <p>[Ed, Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.*]</p> <p>2. Commerce (§ 88*) — Interstate Commerce Commission — Railroad Rates— Reparation.</p> <p>Where the Interstate Commerce Commission, in readjusting freight rates, awarded reparation in certain cases involving rates on the Pacific Coast, but omitted to award reparation in another case for the reason that it involved an initial adjustment of territory or a very material readjustment of territory from points within which it was deemed proper that differentials should be allowed on shipments eastward over the coast rates, such readjustment of territory constituted a sufficient reason for the Commission’s action, which was therefore conclusive.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.*]</p> <p>8. Carriers (§ 32*) — Rates—Interstate Commerce — Discrimination.</p> <p>Where an order o.f the Interstate Commerce Commission, readjusting territory and providing for additional differentials, merely awarded that Pacific Coast rates with their differentials as fixed _by the Commission continue until the new schedule from the particular zones should be-comp operative, and that the zone shippers were not entitled to the additional reparation on account of shipments made previous to the order establishing the new differentials, such order, in so far as it denied reparation, did not constitute real discrimination.</p> <p>[Ed. Note.' — For other eases, see Carriers, Cent. Dig. §§ 88-85; Dee. Dig. § 32.*</p> <p>tVhat constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Camble-Robinson C. Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p>

<p>1. Sales (§ 1*) — Essentials of Contract — Mutuality.</p> <p>A contract obligating one of the parties to sell to the other in case the latter chose to buy was void for want of mutuality.</p> <p>TEd Note. — For other eases, see Sales, Cent. Dig. §§ 1, 3-5; Dee. Dig. § 1-*]</p> <p>2. Sales (§ 78*) — Contract—Construction—Price.</p> <p>A circular letter was sent out by a refining- company to a customer offering to pay a rebate on all glucose bought during a certain period on condition that the customer bought exclusively from the refining- company all such glucose required. The customer wrote back, accepting this offer on condition that the prices of competitors would he met. The refining company replied that it would make no condition as to competitive prices, and that (he proposition was purely a voluntary ad on the part of the buyer. Held, that the refining company’s offer did not imply a condition that the glucose would be sold at a reasonable price.</p> <p>[Ed. Note. — -For other cases, see Sales, Gent. Dig. § 200; Dec. Dig. § 78.*]</p>

<p>1. Usury (§ 115*) — Evidence.</p> <p>A debtor and bis privies may always plead usury as a defense, though they thereby contradict a written instrument.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 326; Dec. Dig. § 115;* Evidence, Cent. Dig. § 2029.)</p> <p>2. Bankruptcy (§ 467*) — Reclamation Proceedings — Jurisdiction.</p> <p>The Circuit Court of Appeals will not inquire into the jurisdiction of the District Court or the power of a receiver in bankruptcy in reclamation proceedings instituted by bankrupt’s creditor where the receiver assented to the proceedings and to the creditor's invitation to the court to pass upon his rights.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 467.*] .</p> <p>3. Usury (§ 113*) — Burden of Proof.</p> <p>In reclamation proceedings by a bankrupt’s creditor to recover the proceeds of accounts assigned to the creditor under an agreement with the bankrupt, the burden was on the trustee in bankruptcy to prove usury in the contract.</p> <p>[Ed. Note. — For other eases, see Usury, Cent. Dig. §§ 308-323; Dec. Dig. § 113.*] „</p> <p>4. Usury (§ 117*) — Evidence—Sufficiency.</p> <p>In proceedings by a bankrupt’s creditor to reclaim the proceeds of accounts assigned by the bankrupt to him, evidence held insufficient to show usury in the contract for assignment.</p> <p>[Ed. Note. — For other eases, see Usury, Dec. Dig. § 117.*]</p>

<p>1. Mines and Minerals (§ 78*) — Oil and Gas Lease — Implied CovenAnt fob Reasonable Diligence.</p> <p>Where an oil and gas lease granted for a nominal expressed consideration gives the lessee the right to explore and develop the property and operate wells thereon without limitation as to time, but provides for substantial royalties to be paid the lessor in kind or money for all oil or gas removed from the premises, although it fixes no definite time within which a well must be completed and réquires the payment of but a small sum per acre annually so long as the work is deferred, there is an implied covenant on the part of the lessee to develop the property and operate the wells drilled thereon with reasonable diligence and in good faith, which is manifestly the real consideration for the contract.</p> <p>[Ed. Note.' — Eor other cases, see Mines and Minerals, Gent. Dig. §§ 205-207; Dec. Dig. § 78.*]</p> <p>2. Mines and Minerals (§ 78*) — Oil and Gas Lease — Breach of Implied Condition — Right of Lessor to Enforce Forfeiture.</p> <p>Where the lessee in an oil and gas lease under which it agreed to pay royalties took no steps to develop the property for nearly six years and until more than two months after a notice of forfeiture from the lessor, aud then drilled a well which it immediately capped and did not operate, although it found gas in paying quantity, and had during the preceding time operated wells on three sides of the land, the lessor was entitled in equity to a cancellation of the lease notwithstanding the payment by the lessee of small stipulated annual rentals for the delay.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 203-207; Dpc. Dig. § 78.*]</p>

Suit in equity by Florence A. Harper against Douis U. Taylor. Decree for defendant, and complainant appeals.

<p>In Error to the Circuit Court of the United States for the Western District of Louisiana.</p> <p>Action by John Jackson and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appeal and Error (§ 1195*) — Law of the Case.</p> <p>Where the Circuit Court of Appeals decided that the trial court should have submitted an issue to the jury, the trial court on a subsequent trial on substantially the same facts must submit the issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1195.*)</p> <p>2. Parties (§ 59*) — Amendments—Change op Parties.</p> <p>Where plaintiff, who was the sole heir and administrator of decedent, sues in his representative capacity for decedent’s death instead of in his individual capacity as required by statute, the court should, under Rev. St. § 954 (U. S. Comp. St. 1901, p. 696), in furtherance of justice, permit him to amend the declaration changing the capacity in which the action is brought.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 94, 165; Dec. Dig. § 59.*]</p> <p>8. Judgment (§ 262*) — Arrest op Judgment.</p> <p>A defendant in an action for negligent death brought by decedent’s administrator, who is the sole heir, must raise the point at the beginning that the action should be prosecuted by plaintiff in his individual capacity, and, where the point is not raised until after an adverse verdict, he cannot by motion in arrest of judgment raise the objection.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 463, 464; Dec. Dig. § 262.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>Suit in equity by William II. Thomas against Elizabeth O. Rodgers and others. Decree for complainant, and defendants appeal.</p>

Suit in equity by the Berwind-White Coal Mining Company against the Metropolitan Steamship Company and American Trust Company against the same (consolidated cause). On intervening petition of Jacob F. Brown and others against William T. Cobb and others, receivers for defendant. Decree for interveners, and receivers appeal.

Suit in equity by the Farmers’ Loan & Trust Company, as trustee, against the Central Park, North & East River Railroad Company, the Metropolitan Street Railway Company, and others for foreclosure of a mortgage. From a decree of foreclosure (181 Fed. 595), the Central Park, North & East River Railroad Company, mortgagor, appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Eastern District of Washington.</p> <p>Ed Taylor was convicted of selling liquor to an Indian, and he' brings error.</p>

<p>1. Criminal Law (§ 395*) — Evidence Procured on Seizure — Admissibility. Letters are not inadmissible against accused, because unlawfully seized by authorities, where the search does not appear to hare been seriously resisted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § S77; Dee. Dig. § 395.*]</p> <p>2, Bigamy (§ 9*) — Evidence—Admissibility.</p> <p>In a bigamy trial, a letter to accused from his son, speaking of the latter’s mother as accused’s wife, and a reply letter acknowledging obligation to her, were admissible to show the former marriage.</p> <p>¡Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.*J</p>

<p>1. Appeal and Error (4*) — Proper Mode of Review — Set-Off of Judgments- — Intervention.</p> <p>A proceeding relating to the set-off of judgments, which proceeding was initiated by motion made in an action at law in the same court in which both judgments were entered, is of an equitable nature, and the proper way to bring up an order denying a petition to intervene is by appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. § 4.*]</p> <p>2. Appeal and Error (70*) — Decisions Reviewable — Set-Off of Judgments —Intervention.</p> <p>An order denying a petition to intervene in a proceeding relating to set-off of judgments is a final order.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 367-385; Dec. Dig. § 70.*</p> <p>Finality of judgments and decree for purpose of review, see notes to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 O. C. A. 379; Centra] Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. O. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.]</p> <p>8. Judgments (883*) — Set-Off—Intervention.</p> <p>B. assigned to appellant his rights against appellee for moneys due under certain contracts. Afterward B. recovered judgment against appellee on the same contracts. Meanwhile a judgment had been recovered against B. and assigned to appellee. Beld, that appellant should have been allowed to intervene in a proceeding brought by appellee to set off the judgments.</p> <p>I Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1669-1688; Dee. Dig. § 883.*]</p>

<p>Bankruptcy (§ 303*) — Collection op Assets — Action by Trustee — Evidence —Sufficiency.</p> <p>In an action by the trustee of a bankrupt corporation to recover moneys paid to stockholders on alleged indebtednesses after insolvency, evidence examined, and held to sustain a verdict for plaintiff.</p> <p>[Ed. Note.-^For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Actions by the American Bonding Company of Baltimore, Md., against R. O. Welts and others, against Patrick Halloran and others, and against George A. Plenson and others. Judgments for defendants, and plaintiff appeals.</p> <p>These appeals were argued and submitted together. Each of the suits was (onunonced in the court below by the appellant as complainant to recover a joint and several judgment against the defendants thereto in a sum exceeding the jurisdictional amount, the complainant being a surety company organized under the laws of the state of Maryland and authorized to do business in the state of Washington, of which latter state the defendants are citizens. In case* No. 1,989 the bill alleges, among other things, that on or about November 4, 1902, one Fred Blnmberg was elected county auditor and ex officio clerk of the board of county commissioners of Skagit county, Wash., and as such executed an official bond in the sum of 810,000, with the complainant as surety, and, having duly qualified, entered upon the discharge of Ihe duties of his office for the term to which he had been elected, commencing January 12, 1903, and ending January 9, 1905; that defendant to ihe suit It. O. Weils was the county treasurer, and the defendants Bessner, Henson, and Henry were the county commissioners of Skagit couniy during Blumberg's said term, and qualified as such officers and gave the official bond required by law; that Blnmberg as such auditor issued a large number of fictitious and fraudulent warrants, a detailed list of which is set out in the bill, made payable to the respective payees therein named, and, having so wrongfully issued such warrants, indorsed the same with the name of the payee therein named in substantially this form, ‘‘John Doc, by Fred Blumberg. Comity Auditor,” and thereupon inesented such warrants to the defendant Welts as such county treasurer, who paid the same, “except that in some instances the warrants were marked ‘presented, but not x)aid for want of money in tbe fund,’ and were thereupon sold hy Blnmberg to innocent third parties, who afterwards xiresented and received payment of said warrants from def(aidants B. O. Welts”; that in so paying the said fraudulent warrants the defendant Welts was guilty of gross negligence, and acted without inquiry or investigation as to the genuineness of the warrants or the authority of Blnmberg to indorse the name of the several payees or to collect the same, and thereby tbe said county of Skagit was defrauded of the amount so paid on the warrants; that the said warrants so paid by the treasurer were, in accordance with the laws of the state of Washington, listed in detail and presented with the said list to the commissioners of the county at each of their quarterly sessions on íhe first Monday of January, April, July, and October by the treasurer, and that it then became the duty of the commissioners to carefully examine and check the said warrants and lists with a view of allowing the treasurer credit for all proper and valid warrants; that the commissioners wholly failed to discharge that: and other statutory duties set out in the bill, “although even the most perfunctory performance of the same would have resulted in a full discovery of Blumberg's fraudulent practices as early as the first quarterly meeting of the commissioners in January, 1903,” at which time a number of fictitious warrants came before them with the treasurer’s detailed list, and as a consequence of that dereliction in duty the auditor was enabled to and (lid continue to issue and forge many other warrants described ill the bill, and that thereby the county lost the amounts paid thereon; that Blumberg was re-elected auditor of Skagit, county for a second term ending in January, 1907, during which he continued his peculations, and that shortly after the expiration of his term of office he committed suicide, whereupon his defalcation was discovered; that thereupon the county of Skagit commenced an action against the complainant as surety, in which action such proceedings were had that on the 10th day of June, 1910, judgment was rendered by the Supreme Court of the state of Washington against the complainant for a large sum of money, including the aggregate amount of the warrants described in the present bill of complaint, and that. Blumberg’s estate being insolvent, the complainant below was compelled to and did discharge the said state judgment by paying the full amount thereof with interest and costs; that in consequence of the alleged breach by the defendants to the present suit-of their official duties, and of the terms of their several official bonds, the county of Skagit had a cause of action against them and each of them, as well as and in addition to the cause of action against Blumherg, and that that county having elected to proceed against Blumberg, and complainant as Blumberg’s surety, having been forced to discharge an obligation for which the defendants were primarily liable, is equitably subrogated to all the rights and remedies of the county against the defendants to the present bill.</p> <p>The bills in suits Nos. 1,990 and 1,991 proceed upon similar grounds, and the court below having sustained a demurrer to the bill in each case, and the complainant declining to amend, final judgment was entered in each for the defendants, from which judgments the complainant brought the present appeals.</p>

<p>1. Sales (§ 179*) — Contracts—Waiter.</p> <p>A buyer of machinery, who accepts, retains, and uses the same, waives objections for delay in the delivery of the machinery and for defective workmanship as defenses to the seller’s claim for the price, and is entitled only to the damages sustained in consequence thereof.</p> <p>I Ed. Note. — For other cases, seo Sales, Cent. Dig. §§ 456-408; Dee. Dig. § 179.*]</p> <p>2. Sales (§ 418*) — Measure oe Damages.</p> <p>Where a contract of sale of a machine to make ice for sale by the buyer fixed the time for the completion of the machine, provided the buyer performed, within tile time limited, agreements to be performed by him, and made time of the essence, the seller, wrongfully delaying delivery, was liable for the buyer’s loss of profits during the delay, since ice was a staple article, and the profit lost was capable of reliable measurement.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1196; Dec. Dig. § 418.*]</p> <p>3. Sales (§ 413*) — Action for Price — Evidence—Admissibility.</p> <p>Where, in an action for the price of a machine to make ice for sale by the buyer, the buyer claimed damages for failure to deliver the machine on or about April 1st, as provided for in the contract, notice to the seller of the custom to contract in February or March for the annual output, and that the seller had actually contracted therefor, could not be proved, because not pleaded, and because no application to amend was made.</p> <p>[Ed. Note.' — For other cases, see Sales, Cent. Dig. §§ 1166-1169; Dec. Dig. § 413.*]</p> <p>4. Sales (§§ 279, 285*) — Conteacts—Wakbanty.</p> <p>A contract of sale of a machine, reciting that the seller guarantees workmanship and material for two years, and, in case any damage is caused by any parts of the machinery proving defective, the seller’s liability is limited to the furnishing of a duplicate of the defective parts free of charge to the buyer, limits the liability of the seller as to defective parts to the duty of replacing the same free of charge, and implies that the buyer will give .him notice of the defects and an opportunity to replace the defective parts,.but there is no limitation of liability for defective workmanship.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. §§ 279, 2S5.*]</p>

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action by Christopher Lyne against the Delaware, Lackawanna & Western Railroad Company. There was a judgment'for plaintiff, and defendant brings error.</p>

<p>1. Bankruptcy (§ 308*) — Olatms Brovable — Notes.</p> <p>Directors of a bankrupt corporation were properly permitted to prove a debt on account of notes wliicli they indorsed to relieve the company from pecuniary difficulties, which were discounted and the proceeds used by the corporation, and which were paid by the directors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 308.*]</p> <p>2. Bankruptcy (§ 336*)' — Pleading—Amendment—Judicial Discretion.</p> <p>It was discretionary with a federal District Court sitting in bankruptcy to permit an amendment conforming the proof concerning a claim to the rules and practice of the court; it being undisputed that the court’s own records showed a valid claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 523, 524; Dec. Dig'. § 336.*]</p> <p>3. Bankruptcy (§ 328*) — -Claims--Proof.</p> <p>Under Bailin'. Act July 1, 1898, c. 541, § 57n, 30' Stat. 561 (U. S. Comí). St. 1901, p. 3443), the trustee of a claim, before proving a claim based on indorsement of notes for bankrupt, had a right to wait until the question as to who was entitled to security claimed, by the indorsers was settled by litigation then pending.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. § 328.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of New York.</p> <p>Suit by the Frank Shepard Company against the Zachary P. Taylor Publishing Company for infringement of copyright. Judgment for complainant (185 Fed. 941), and defendant appeals.</p>

■ Appeal from the Circuit Court of the United States for the Northern District of Ohio. Suit in equity by the F. D. Cummer & Son Company against the Atlas Dryer Company and William M. Cummer. Decree for defendants, and complainant appeals.

<p>Patents (§ 328*) — Validity and Infringement — Cas Damp .Shades.</p> <p>Tlie Title patent Xo. 901,501 for a globe or shade for inverted gas lamps, having a metal neck for attaching the glass shade to the fixture to prevent its being broken by the extreme heat, discloses patentable invention; also held Infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Railway Switch.</p> <p>The Moxham patent, No. 539,878, for a railway switch structure, claims ■ 1 and 2, were not anticipated, and disclose patentable invention; also construed, and held infringed.</p>

In the matter of bankruptcy proceedings of the Champion Wagon Company, alleged bankrupt. On application for an order removing Wallis & Clifford as attorneys for the receivers and directing employment of other attorneys.

<p>Aliens (§ 57*) — Deportation—Escape fbom Vessel — Liability of Captain.</p> <p>Where an alien was placed on a vessel for deportation at a time when the captain was absent, and thereafter escaped before the captain’s return, either through the culpability of the watchmen or through lack of proper care by those in charge of the ship, but there was no proof of facts indicating that the captain deliberately or intentionally failed to take proper precautions, he was not subject to pirosecution for violation of the deportation laws.</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. § 114; Dec. Dig. § 57.*]</p>

<p>Costs (§ 304*) — Federal Prosecutions.</p> <p>The word “costs,” witbin Rev. St. § 974 (U. S. Comp. St. 1901, p. 703), providing for taxation of costs against a defendant on judgment against him for a fine or forfeiture, means taxable costs of tbe trial, within section 983 (page 706), which provides how bills of costs shall be taxed, excluding fees of trial jurors, fees and mileage of persons not examined as witnesses, and fees for service of subpoenas upon persons who did not testify, unless in the latter cases the adverse party is in default.</p> <p>[Ed. Note. — For other cases, see Costs, Dee. Dig. § 304.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1633-1040;-vol. 8, p. 7620.]</p>

<p>In Equity. Suit by the Saginaw Power Company against the City of Saginaw and others.</p>

<p>1. Trade-Marks and Trade-Names (§ 3*) — Words Subjects of Trade-Mark— “TTnion.”</p> <p>The word “Union” cannot be exclusively appropriated as a trade-mark for tobacco packages.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig.' §§ 4 -7; Dec. Dig. § 3.*]</p> <p>2. Trade-Marks and Trade-Names (§ 01*) — Infringement.</p> <p>The name “Union Leader” as a trade-mark for tobacco packages is not infringed by the name “Union World.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 76; Dec. Dig. § 61.*]</p> <p>3. Trade-Marks and Tradf.-Names (§ 70*) — Unfair Competition — Imitation of Packages.</p> <p>Equity will not interfere as between manufacturers of goods put up in similar packages, where ordinary attention by the purchaser would enable him to distinguish between the goods of the respective parties.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Schuerer v. Muller, 20 O. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>4. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition — Imitation of Packages.</p> <p>A defendant held not chargeable with unfair competition by the use of packages for tobacco similar to those of complainant where the principal similarity was in the use of a red color and the words “Union” and “Leader,” to none of which complainant had an exclusive right, and especially where complainant placed a distinctive highly colored red, white, and blue band around its packages, which was not used by defendant.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. | 81; Dec. Dig. § 70.*]</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

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

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

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

<p>In Error to the Circuit Court of the United States for the Southern District of West Virginia, at Charleston.</p>

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

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

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

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

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

<p>Petition for Review from the District Court for the Eastern District of Pennsylvania.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina, at Raleigh.</p>

<p>In Error to the Circuit Court of The United States for the Eastern District of North Carolina, at Wilmington.</p>