Volume 213 — United States Reports

Held: in this case, tó be the proximate cause of injury to the child notwithstanding such attempt was made as the result of the child’s mother having been prevented from getting off the car by the negligenc'e of the railway employes.

This case comes herb on writ of certiorari, which brings up-the record from the Circuit Court of Appeals for the Second Circuit, reversing the decree of the Circuit Court for the Southern District of New York-, which sustained the petitioner’s demurrer to the plaintiff’s bill and dismissed the same. The opinion of the Circuit Court is reported in'142 Fed. Rep. 835, and that of the Circuit Court of Appeals, 151 Fed. Rep. 1.

<p>ERROR TO THE CORPORATION COURT OF THE CITY OF RADFORD, STATE OF VIRGINIA.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The statute of the Territory of New Mexico herein interposed was a valid and.subsisting law at the time of the occurrences stated, and, as such, was entitled to respect and consideration in the courts of a sister jurisdiction, and the failure to so respect said statute was a violation of Art. IV, § 1, of the Constitution of the United States. ■ In the absence of disapproval by the Congress it must be assumed that the act in question is a…

<p>ERROR TO THE SUPREME COURT OP THE STATE OP UTAH AND THE DISTRICT COURT OP JUAB COUNTY, STATE OP UTAH.</p> <p>The facts 'are stated in the opinion.</p>

<p>The boundary line between, Missouri and Kansas is and remains, notwithstanding its shifting position by erosion, the middle of the Missouri River from a point opposite the middle of the mouth of the Kansas or Kaw River.</p> <p>The act of June 7,1836, c. 86, 5 Stat. 34, altering the western boundary of Missouri, is to be construed in the light of extrinsic facts; and, as so .construed, its object was not to add territory to the State but to substitute the Missouri River as a practical boundary, so far as possible, instead of an ideal line along a meridian.</p> <p>The result of this decision is that an island in the Missouri River west of the centre of its main channel, as that channel now exists, belongs to Kansas, notwithstanding such island is east of the original boundary line of Missouri.</p>

The facts are stated in the opinion. There can be no reasonable doubt of the existence of a Federal question in this case. But whether there is a Federal question, or not will be determined by this court for itself upon an examination of the record. Freeland v. Williams, 131U. S. 405; Davidson v. New Bfleans,-98 TI. S. 97. The Supreme. Court of'Arkansas having denied a constitutional right this court has jurisdiction to review the judgment". Boyd v. Thayer,. 143 U. S. 135.

Held: on great consideration, that the right of review given by that provision of § 5, so far as it related to criminal cases, must be limited to review at the instance of the defendant after a decision in favor of the Government.

The facts, which involve the right of a trial' judge to direct a.verdict in favor of the Government in an action for penalty for violation’ of the Alien Immigration Law, are stated in the opinion.

The facts, which involve the construction of §§ 5508 and 5509, Rev. Stat., are stated in the opinion. The facts presented in the special plea do not bring the case within the second jeopardy provision of the Fifth Amendment. This provision applies only to proceedings in United States .courts. The first ten Amendments operate on the. National Government alone.

<p>Coder v. Arts, post, p. 223, followed as to the jurisdiction of this court of appeals from the Circuit Court of Appeals in bankruptcy proceedings, where the amount in controversy exceeds $2,000 and the '■ question involved is one which might have been taken on writ of error from the highest court of a State to this court.</p> <p>.Equity looks at substance and not at form. An advance payment for coal yet to be mined may be a pledge on the coal and, in that event, as in this case, the trustee in bankruptcy takes the mine subject to the obligation to deliver the coal as mined to the extent of the advancement.</p> <p>153 Fed. Rep. 503, affirmed.</p>

Held: “We think that in all cases of this, nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would' otherwise be defeated.

Held: unconstitutional as to one harboring such a prostitute without knowledge of her alienage or in connection with her coming into the United States, as a regulation of a matter within the police power reserved to the State and not within any power delegated to Congress by the Constitution.

The facts/are stated in the opinion The commission, as individuals, have no interest in the fund. They are mere agents holding a fund, with the power, after they shall have determined what is a just liability, to pay the same over out of the fund. The assets are still the assets of the State.

<p>Murray v. Wilson Distilling Co., ante, p. 151, followed as to the Federal . questions involved in this proceeding.</p>

The Louisville and Nashville Railroad Company, hereinafter called the company, filed its bill July 25, 1906, . in the Circuit Court of the United States for the Eastern District of Kentucky, to enjoin the. enforcement of a certain' order made by the railroad commission of Kentucky (hereafter called the commission), providing what, are termed, maximum rates on the transportation of all commodities upon the railroad of the company to and from all points within the State.

<p>APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.</p> <p>These eases involved the same questions as were involved the preceding case and were argued simultaneously' therewith.1</p>

<p>Where the case goes more than once to the highest court of the State only the last judgment is the final one.</p> <p>Where the highest court of the State reverses an order of an inferior state court removing a cause and remands the case to the state court for trial, and, after trial and verdict, for plaintiff, the judgment is sustained by the highest court, the last judgment is the only final one to which the writ of error will run from this court? defendant cannot prosecute a writ of error to the judgment remanding the cause. Schlosser v. Hemphill, 198 U. S. 173.</p> <p>The United States Circuit Court has jurisdiction to determine for itself the removability of a cause and may take jurisdiction thereof and protect such jurisdiction even though the state court refuse to make the removal order; and a final judgment, rendered by and under such conditions by the Circuit Court, cannot be reviewed by the state court, but such judgment is binding on the state court until reversed by this court.</p> <p>While a petitioner,, if the state court denies his petition for removal, may remain in that court and bring the case here for review; on writ of error after final judgment, he is not obliged so to do, but may file the record in the Circuit Court, and that court has jurisdiction to determine the question of removability and, notwithstanding § 720, Rev. Stat., it may protect its jurisdiction by injunction against further proceedings in the state court. Traction Co. v. Mining Co., 196 U. S. 239.</p> <p>A judgment rendered by the Circuit Court under such conditions is not void even if jurisdiction be improperly assumed and retained, as the jurisdictional question can be reviewed by this court, and, until reversed, the judgment is binding on the state court and cannot be treated as a nullity. Dowell v. Appelgate, 152 U. S. 327.</p>

Held: are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.

Held: in this case, to be doing business within that State,l1 so as to render it liable to an action, and that service, according to the law of the State, on a doctor sent to investigate .the loss and having power to adjust the same is sufficient to.give the state court jurisdiction. *246 While service of process on one induced by artifice or fraud to come within the jurisdiction of the court will be set aside, this court…

<p>Where the issue is whether a person is of sound or unsound mind, a lay witness, who has had an adequate opportunity to observe the speech and conduct of that person, may, in addition to relating, the significant instances of speech and conduct, testify to the opinion formed at the time of observation as to the mental capacity of such person.</p> <p>While- a general rule cannot be framed for all cases, and in clear cases of abuse the appellate court should reverse, the determination of whether a witness is qualified to state his opinion as to the mental condition of a testator is for the trial judge who has all the evidence and the witness before him, and in this case the trial judge does not seem to have abused his discretion as to the admission of testimony.</p> <p>Evidence as to an alleged delusion of testator thirty years before execution of the will held to be properly excluded both because of remoteness and of the tendency to raise a collateral issue as to whether the statements connected therewith were or were not actually false.</p> <p>Where the wife as caveator attacks testator’s soundness of mind because he referred to himself at times as a widower and at times as divorced, an agreement of separation and a deed referring to himself as widower admitted solely to explain why testator so referred to himself held competent for that purpose, but evidence by the wife as to her reasons for signing the agreement and other instruments, in which she joined with her husband as his wife, were properly excluded.</p> <p>The admission of incompetent evidence is not reversible error if subsequently it is distinctly withdrawn from the jury, and so held in this case where a letter was erroneously admitted but the presiding judge, at request of the party objecting to its admission, instructed the jury that nothing in such letter was to be taken as evidence of truth of •the statements therein or even to be used for purposes of cross-examination.</p> <p>29 App. D. C. 460, affirmed.</p>

The facts are stated in the opinion. The claim of plaintiff in error is based not alone upon the treaty with Italy, but upon the treaty and the Pennsylvania statute. The error committed in the Pennsylvania court was by wrongly interpreting the meaning of this treaty and its effect upon the Pennsylvania law. Deni v. Penna. R. R.} 181 Pa. St. 521. The purpose and effect of fatal accidents acts is to protect human life.

The facts are stated in the opinion. An injunction should have been issued by the court below restraining the city from enforcing the ordinances, and from interfering with. plaintiff’s use, according to its franchises, of the streets and alleys. The bill made out a proper case for the interposition of a court of equity.

<p>APPLICATION POR WRIT OP ERROR TO THE CIRCUIT COURT OP APPEALS POR THE THIRD CIRCUIT.</p> <p>The facts are stated in the opinion.</p> <p>I. Whether or not a writ of error to this court may now be had for the purpose of reviewing the judgment of the Circuit Court of Appeals, is controlled by the Judiciary Act of March 3, 189T.</p> <p>The interpretation of this act has been before this court in several instances; see Robinson v. Caldwell, 165 U. S. 359, in which case appellant attempted to avail himself of independent and simultaneous appeals; See also CaYter v. Roberts, 177 U. S. 496, in which appellant, after having appealed to the Circuit Court of Appeals from the Circuit Court, attempted to appeal from the Circuit Court directly to this court.</p> <p>. For an elaborate interpretation of the Judiciary Act see Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 408, discussing whether the judgment of the Circuit Court of Appeals was so far final, within § 6 of the act of 1891, that it could not be reviewed here as of right by writ of error and whether the judgment of that court can be reexamined here in any way, except upon certiorari.</p> <p>The Spreckels case arose under the revenue laws, and the case at bar arose under the criminal-laws; both are within the same provision of the Judiciary Act, and consequently the conclusions of this court on the subject of its jurisdiction relative to one, are equally applicable to the other.</p> <p>In the Spreckels case, Robinson v. Caldwell, 165 U. S. 359, was distinguished, as in the latter case appeals were taken from the Circuit Court both to the Circuit Court of Appeals and to this court.</p> <p>The case before the court was one in which the jurisdiction of the Circuit Court is unquestionably established, and the case is within § 5 of the act of 1891. The judgment of the Circuit Court of Appeals is not final within the meaning of § 6 of said act, as it involves the construction of the statute relating to the use of the mails — a criminal law — and also involves “from the outset . . . the construction or application of the Constitution, or the constitutionality of an act of Congress.” Under the facts and conditions stated it would appear that the decision in the Spreckels case (supra) controls the jurisdiction to review the judgment in the case at bar, a right the reason for which in this case appears in the fact that the construction of the section of the act in question, 3893, Rev. Stat.^ by the courts was opposed to the construction of it established by ‘this court in the case of Dunlop v. United States, 165 U. S. 486, and United States v. .Swearingen, 161 U. S. 451, and that the courts avoided or ignored the constitutional question; the exactness of both of these statements are obvious upon reference to the record.</p> <p>II. A constitutional question does actually exist in this case. The question arising does not refer to the admitted right of Congress to regulate the mails, but to the uncertainty of some of. the laws in this regard. The act in question is so framed that its administration contravenes constitutional rights. See Ex parte Jackson, 96 U. S. 727; Public Clearing House v. Coyne, 194 U. S. 507; United States v. Comerford, 25 Fed. Rep. 902; United States v. Morris, 14 Pet. 464; United States v. Wilt-berger, 5 Wheat. 76.</p> <p>The statute is uncertain, being expressed in abstract terms which depend for construction Upon the ever varying personal standards of the court or jury in each particular case. Certain standards have been established by this court, but the examination of the reports show that the lower courts are so divided as to their meaning that the greatest uncertainty still exists, and no man may tell from reading the statute or from studying the varying decisions, what he may not do under it; a single instance illustrates this fact, viz.: the opinion in Hanson v. United States, 157 Fed. Rep. 749, follows Dunlop v. United States, 165 U. S. 486, and is directly opposed to Macfadden v. United States, 165 Fed. Rep. 51, 52, which is based on the case of Rosen v. United States 161. U. S. 29,</p> <p>Criminal laws cannot be framed in uncertain terms. James v. Bowman, 190 TJ. S. 127; United States v. Brewer, 139 U. S. 288; 12 Myer, Fed. Dec. 86, § 346.</p>

The facts are stated in the opinion. Congress clearly intended to give the United States a right of appeal in criminal cases, after verdict. The statute seems to be free from doubt or ambiguity. 31 Stat-1189,1341 (§ 935, Code D. C.). The policy or wisdom of a statute is for the determination of the legislature, not of the courts.

This case is fiere on certiorari to an interlocutory decree of injunction restraining the petitioner, Leeds & Catlin Company from manufacturing, using or selling sound reproducing apparatus or deyices embodied in claim No. 35 of letters patent No. 534,543, issued ito Emil Berliner, bearing date nineteenth of February, 1895, and also from manufacturing, using or selling or in any way disposing of apparatus or devices which embody the method specified-in' claim No. 5 of the…

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>The tacts are stated in the opinion.</p> <p>The sound record is a temporary element of the combination forming the machine of the patent in suit and it is intended that the sound record shall frequently be replaced. The machine has no other use. It is well settled law that purchasers of such combinations from the patentee or his licensees have the right to replace such temporary parts, and that any manufacturer has the right to sell such.parts to such purchasers for such purpose. The courts below, therefore, erred in holding that defendant violated the injunction by selling records with the intent that the samp should be used in combination with the other elements of claim 35, in machines sold by complainants or their licensees combined with such records. Morgan Envelope Co. v. Albany Paper Co., 40 Fed. Rep. 577; S. C., 152 U. S. 425.</p> <p>The Circuit Court of Appeals, following the decisions of this court, has held that the purchaser of a patented combination has the legal right immediately to substitute for an important or essential element of the combination one which he conceives to be better suited to his purposes, even though such element was intended to.be permanent; and that any one has an equal right to make and sell such elements to such purchaser for such purpose. Thomson-Houston Electric Co. v. Kelsey Co., 75 Fed. Rep. 1005. See also Chaffee v. Belting Co., 22 How. 217; Wilson v. Simpson, 9 How. 109; Mitchell v. Hawley, 16 Wall. 544, 548; Adams v. Burke, 17 Wall. 453, 456; Edison Light Co. v. Peninsular Co., 101 Fed. Rep. 831, 835, 837.</p> <p>No question of contributory infringement is here involved. Judge Shipman’s decision in Am. Graph. Co. v. Leeds, 87 Fed. Rep. 873, cited, by the Circuit Court, bears no analogy to the case at bar. Judge Grosscup’s opinion in Am. Graph. Co. v. Amet, 74 Fed. Rep. 789, supports petitioner’s contentions.</p> <p>Complainants and their licensees having sold the combination of the patent to purchasers without restriction as to the records to be used to replace those purchased, it is well settled law that defendant has the right to sell records to such purchasers for use in replacing records purchased with machines from complainants and their licensees. Heaton Co. v. Eureka Co., 77 Fed. Rep. 288; Cortelyou v. Johnson, 207 U. S. 196; Keeler v. Folding Bed Co., 157 U. S. 659, 666; Hobbie v. Jenni-son, 149 U. S. 355; Adams v. Burke, 17 Wall. 453; Bement v. Harrow Co., 186 U. S. 70; Hartell v. Tilghman, 99 U. S. 547; Bobbs-Merrill Co. v. Strauss, 210 U. S. 339.</p> <p>Defendant’s disc sound-records are unpatented articles of commerce of the prior art, which defendant could legally sell for use in the United States on mechanical feed-device machines, for export to foreign countries, concededly for repair of machines sold by complainants, and for other lawful purposes. There is no authority holding a party liable as an infringer solely because an article sold by him might be, or was, in fact, used by the purchaser as one element of a patented combination. The tendency of the later decisions is to do away with unwarrantable restrictions upon trade. Bullock Co. v. Westinghouse Co., 129 Fed. Rep. 105, 111; Cortelyou v. Johnson, 145 Fed. Rep. 933; Snyder v. Bunnell, 29 Fed. Rep. 47,48; Standard Co. v. Computing Co., 126 Fed. Rep. 639; Canda v. Michigan Co., 124 Fed. Rep. 486.</p> <p>Complainants and their licensees, by selling the sound reproducing apparatus of claim 35 of the patent in suit, impliedly licensed the purchaser thereof to combine' á suitable record therewith, in every case where the apparatus was sold without a' sound-record combined therewith, and for that purpose to purchase such a record from persons other than complainants or their licensees. Morgan Envelope Co. v. Albany Paper Co., 152 U. S. 425, 432; Heaton Co. v. Eureka Co., 77 Fed. Rep. 288, 300; Edison El. Co. v. Peninsular Co., 101 Fed. Rep. 831, 836; Thomson-Houston Co. v. Illinois Co., 152 Fed. Rep. 631; Roosevelt v. Western El. Co., 20 Fed. Rep. 724.</p> <p>The finding of the Circuit Court places an intolerable burden upon the defendant’s conceded right to make and sell the un-patented sound-records of the prior art. Thomson-Houston Co. v. Kelsey Co., 75 Fed. Rep. 1005; Cortelyou v. Johnson, .207 U. S. 196.</p> <p>The question raised in the Circuit Court upon the motion to punish defendant for contempt was an entirely new question. The act for which defendant was held to be in contempt was not included in the preliminary injunction or the decree therefor. Under such circumstances the. motion should have been denied and complainants left to raise the question by appropriate proceedings other than a motion to punish for contempt. Enterprise Co. v. Sargent, 48 Fed. Rep. 453, 454; Bate v. Eastman, 11 Fed. Rep. 902 (Blatchford, C. J.); Allis v. Stowell, 15 Fed. Rep. 242, 244 (Dyer, J.); Temple Pump Co. v. Goss Co., 31 Fed. Rep.'292.(Blodgett, J.); Truax v. Detweiller, 46 Fed. Rep. 117 . (Lacombé, C. J.); Bonsack Mach. Co. v. National Co., 64 Fed. Rep. 858 (Lacombe, C. J.); United States Co. v. Spalding, 93 Fed. Rep. 822 (Wheeler, D. J.).</p> <p>Complainants presented no proof whatever that the sound-records sold by defendant were in a single instance used or intended to be used in'any infringement of the claims in suit; no. proof whatever that the sound-records sold by defendant were used for the reproduction of sound on any machine of any construction. The mere making and selling of an unpatented article is not an infringement of a claim for a combination of which that article is an element.</p> <p>The record in the contempt proceedings includes the record in the injunction proceedings. The patent in suit.having expired before the suit was begun, the Circuit Court was without jurisdiction to entertain the suit. The claims-in suit, moreover, are void. Hence the judgment finding defendant in contempt was void, because beyond the jurisdiction of the court, and should be set aside, because, the claims being void, the injunction was improperly granted.</p>

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF Hawaii.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. Riparian rights once vested are property rights and cannot be taken away except by the exercise of the right of eminent domain. Long on Irrigation, § 12; Black’s Pomeroy on Water Rights, § 9; Lux v. Hoggin, 69 California, 255; Sturr v. Beck, 133 U. S. 541; 1 Famham on Water Rights, 282; Éenton v. Johncox, 17 Washington, 277; S. C., 39 L. R. A. 107; 61 Am.

The facts are stated in the opinion. The Circuit Court should have taken jurisdiction of this action. ' Section 7 of the Sherman Act expressly provides for the bringing of suits like the present one, “in anyCircuit Court of the United States in the district in which the defendant resides or is found.” See also § 2, Art. VI, Const. U. S. The suit at bar is a civil suit, arising under the laws of the United States and a treaty made under its authority.

Held: in this case; not to depend on whether profits were or were not realized by a subcontractor but only on whether such profits were realized by the party making the contract. 29 App. D. C. 571 , affirmed. The facts are stated in the opinion. Mr. A. S. Worthington, with whom Mr. Charles L. Frailey was on the brief, for appellant.

This action was commenced on the twelfth day of January, 1904, in the Court of First Instance of the city of Manila, Philippine Islands, by the plaintiffs in error, Eleanor Erica Strong and Richard P. Strong, her husband, against the defendant in error.

The facts, and the questions certified, are stated in the opinion. Before a shareholder “is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to. the satisfaction of the court that he has exhausted all the means within his reach to obtain within the corporation itself the redress of his grievances or action in conformity to his wishes.

Held: that the capital belonged to the firm and that those who contributed time were bound to make good their proportion of the loss. Whitcomb v. Converse, 119 Massachusetts, 38. Moreover, when James went into the business a thousand dollars belonging to him were deposited in his name undistinguished from. the deposits on the business account.