Volume 92 — Federal Reporter

This is a suit commenced in a state court by Dora H. Nichols, by her next friend, against Frank B. Nichols, the parties being husband and wife. The cause was removed by the defendant.

<p>Jurisdiction — Service of Process — Foreign Corporation — Local Agent.</p> <p>The Mexico Central Hallway Company, a Massachusetts corporation, having its principal office in Boston and its railroad operations in Mexico, had a local agent for many years in New York City, where it maintained continuously a local office, and where a portion of the regular business of the company was conducted by the agent in making rates for through freight, and procuring business contracts. Held, that service of process upon the local agent was sufficient to give this court jurisdiction for the purpose of making the corporation a third party defendant, upon a petition on the antilogy of the fifty-ninth rule in admiralty.</p>

<p>1. Circuit Court op Appeals — Right op Appeal.</p> <p>An appeal may be taken to the circuit court of appeals from an order appointing- a receiver for a corporation, and granting an injunction restraining its officers from interfering with him.</p> <p>2. Same — Questions Presented for Review.</p> <p>An appeal to the circuit court of appeals from an order appointing a receiver 1'or a corporation, and enjoining its,officers from interfering with him, carries up the entire order and merits of the case for review.</p> <p>8, Corporations — Insolvency—Receivers—Appointment-— Preferred Stockholders — Right to Apply.</p> <p>Preferred stockholders of a corporation are not entitled to the appointment of a receiver pending an action for its dissolution, etc., in the absence of a clear showing that it is insolvent, and that its affairs have been, and are likely to be, mismanaged, to the detriment of stockholders and creditors.</p> <p>4. Same.</p> <p>In the absence of statutory authority, a court of equity should not appoint a receiver, with a view to the dissolution of a corporation, at the instance of a stockholder, unless the corporation is insolvent, or its affairs are being fraudulently mismanaged.</p> <p>6, Same — Application by Creditor.</p> <p>In United States courts a creditor of a corporation, whose claim has neither been reduced to judgment nor admitted, has no standing in equity to apply for the appointment of a receiver therefor, though the coiporation is insolvent.</p>

This is a suit in equity by Henry W. Bartol, individually and as trustee, against the Walton & Whann Company, a corporation, and James P. Winchester and Francis N. Buck, as receivers of said company, for the rescission of a contract of subscription to the stock of the defendant company.

This was a petition by G-eorge H. Earle, as receiver of the Chestnut Street National Bank, for an order authorizing him to sell certain collaterals.

<p>1. Judgment — Effect as Adjudication — Suit on Different Cause of Action.</p> <p>While a judgment is an absolute bar to a second suit between the parties on the same cause of action as to all matters which were, or which might have been, litigated in the suit, where the second suit is on a different cause of action, a different rule applies, and the effect of the former judgment as an estoppel is limited to matters which were actually liti-ga led and determined.</p> <p>2. JuRisdiction op Federad Courts — Enjoining Suits m the State Courts.</p> <p>Under Rev. St. § 720, a federal court lias no power to enjoin the maintenance of an action in a süne court on tlie ground that it has in a former action between the same parties adjudicated the questions involved, where the state suit is on a different, cause of action; the effect of the federal judgment as an estoppel in such case being- a matter of evidence which the state court has the right to determine, its judgment, if it fails to give due faith and credit to the federal judgment, being reviewable by the supreme court of the United States.1</p>

• This was a suit in equity by Josiah B. French and others against the Union Pacific Railway Company, its receivers, and others. Heard on demurrer of the receivers to the bill.

<p>Equitable Jurisdiction — Enjoining Actions at Law.</p> <p>An insolvent corporation cannot maintain a bill to restrain creditors from prosecuting actions on their respective claims, on the ground of preventing a multiplicity of suits, when such creditors are seeking to reach equitable assets of the Corporation, to do which it is necessary that they should obtain judgments on their claims.</p>

This was a suit in equity by the Reymann Brewing Company against Harry Bristor, treasurer of Jefferson county, Ohio, to restrain the collection of certain taxes.

This was a suit in equity by Cyrus Hall and Ray 0. Coulter against J. H. Gambrill and another for the specific enforcement of a contract to convey land. From a decree dismissing the bill (88 Fed. 709), the complainant Hall appeals.

This was a suit in equity, by James W. Oakford. against Mrs. Frances A. Hackley, to enforce the specific performance of an agreement to enter into a lease of certain coal lands owned by defendant.

This was a suit in equity by James Boyd, Martin Lane, and William H. Castle against Luther H. Hankinson and Owen Alderman. Prom .a decree dismissing the hill (83 Fed. 876), complainants appeal.

Kavanaugh & Brennan shipped a car load of bananas from Savannah to Chattanooga. Held: in effect, that the defendant had made a contract to carry the goods through to destination, and to be liable for them beyond the terminus of its own line, whereas the bill of lading under which the bananas were shipped specifically provided against this in the following paragraphs, taken from the bill of lading, which is attached to…

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

This was an action by David P. Miller and Ann E. Percy, executors of William R. Percy, deceased, against the Fidelity Mutual life Association of Philadelphia, Pa., on a policy of life insurance. There was judgment for plaintiffs on the verdict of a jury, and defendant brings error.

<p>1. Foreign Corporations — Regulation by State — Doing Business in State.</p> <p>■ A petition by a foreign corporation, setting up as a cause of action certain foreign bills of exchange drawn on, and accepted by, defendants, residents of Texas, and also an account for goods sold and delivered by plaintiff to defendants, does not show that plaintiff was engaged in business in Texas, within the meaning of the statute of that state, so as to require, to enable plaintiff to maintain the action, an allegation that it had previously filed a copy of its charter with the secretary of state and obtained a permit to engage in business.2</p> <p>2. Same — Foreign Commerce.</p> <p>An answer in sneli action, alleging that defendants, as agents for plaintiff, solicited orders in Texas for merchandise to he shaped by plaintiff from England to tlio purchasers, would not show such facts as would render plaintiff subject to the slate statute requiring foreign corporations to file a copy of their charter and obtain a permit before engaging in business in the state, as the business shown would constitute commerce between a foreign country and the United States, not subject to state regulation.</p> <p>3. Conthact — Consideration.</p> <p>An answer alleging that plaintiff agreed to fill orders for merchandise obtained by defendants, but afterwards, after defendants had obtained certain orders, notified them that it would not fulfill such agreement, there being no allegation of any agreement on the part of defendants to obtain orders, nor that they had presented any to be filled prior to such notification, does not show' a contract resting on any‘ consideration, for the breach of which damages are recoverable.</p>

This was an action by August Nein against the La Crosse City Railway Company for personal injury. The court directed a verdict for defendant, and plaintiff brings error. This suit is brought to recover for personal injuries sustained under the following circumstances: Caledonia street, in the city of La Crosse, runs north and south, is about 50 feet in width, from curb to curb of the sidewalk, and at the time of the injury was a smooth macadamized street.

This was an action at law by William E. Stowe and others against the Belfast Savings Bank, involving the validity of an attachment, and a sale thereunder of certain land claimed by plaintiffs as trustees under a general assignment for the benefit of creditors, made by the attachment debtor.

This is an action at law by William E. Stowe and others against the Belfast Savings Bank, and involves the validity of an attachment and sale thereunder on certain land claimed by plaintiffs as trustees under an assignment for the benefit of creditors. In the court below, the case was submitted on an agreed statement of facts, and the court held that the assignment took precedence over the defendant’s attachment. 92 Fed. 90. Defendant thereupon sued out this writ of error.

<p>Postmasters — Rental of Office — Accountability as Agent. •</p> <p>The allowance made by the department to a postmaster for the purpose of renting an office is not an absolute allowance, ■ but is to be disbursed by him as agent of the United States, and must be accounted for .. under the strict law of agency. If he secures an office for less than the allowance, he is entitled to retain therefrom only the amount actually expended. If he contracts to pay more than the allowance for a building or room, and sublets a portion for a sum which, together with the allowance, exceeds the rent paid, he must credit the excess to the government, to be deducted from the allowance.</p>

This was an action by Martin O’Malley against the New Orleans Ice Company to recover for personal injuries. There was judgment for plaintiff on the verdict of a jury, and defendant brings error.

. Tiis was an action on a policy of fire insurance. There waslt verdict and a judgment for plaintiffs, and defendant brings error. On the 3d day of April, 1895, the plaintiff in error, the Palatine Insurance Company, issued its policy of insurance in the sum of .83,000 to Gersfle Bros., on their stock of merchandise at Pulaski, Term.

<p>On Petition for Leave to File a Bill in the Nature of a Bill of Review'.</p>

<p>Parties — Effect of Intervention — Pleading.</p> <p>An intervener cannot enlarge the scope of a suit by setting up a defense not open to the defendant, on the ground that, if he had been sued, such defense would have been available to him.</p>

<p>On Motion for New Trial.</p>

<p>On Motion for ¡New Trial.</p>

<p>Pleading— Amendments — Departure .</p> <p>Where a petition on which plaintiff obtained .an attachment against property of defendant, a nonresident, counted on judgments which were-deseribed, the dates, amounts, and parties being given, plaintiff will not be permitted to file an amended petition, after defendant has appeared, setting up judgments of different dates and amounts, and between different parties, such amended petition not being a continuation of the original action, but the substitution of a new cause of action.</p>

<p>1. Insurance — Agency op Broker — Notice to Company.</p> <p>Aii insurance broker was employed by an owner of property to effect insurance thereon in such companies as he should approve. He went to the general agents of an insurance company, and made and signed an application in behalf of the property owner for a part of the amount, on which a policy was issued and delivered to him; and, on his collection of the premium from the insured, he was allowed by the general agents a share of their commissions thereon. He was not otherwise employed either by them or the company. Held, that he was not either in fact or law an agent of the company in the transaction, so as to-charge it with his knowledge that other insurance on the property was effected at the same time, in violation of a condition of the policy.</p> <p>2. Same — Construction op Statute.</p> <p>Bev. St. Ill. c. 73, § 40, relates to the regulation of foreign insurance companies doing business in the state, and prescribes that they shall appoint an attorney, file a copy of their charter, and obtain a permit, and in certain cases deposit security. It imposes penalties, not only on the companies, but on their agents, for doing business in the state without a compliance with such requirements. Section 40 provides that “the term ‘agent’ or ‘agents,’ used in this section, shall include an acknowledged agent, surveyor, broker or any other person or persons who shall, in any manner, aid in transacting insurance business of any insurance company not incorporated by the laws of the state.” Held, that such provision relates solely to the matter of agency as between foreign companies and the state authorities, and does not change the rules of law as to principal and agent as between the company and a policy holder.</p> <p>8. Same — Condition against Other Insurance.</p> <p>Other insurance, though effected at the same time, is within -a condition of a policy making it void “if the insured now has or shall hereafter make or procure” other insurance on the:, property without the consent of the insurer.</p>

In Bankruptcy. On petition of certain creditors for an order requiring the assignee of the bankrupts, under a previous general assignment for the benefit of their creditors, to surrender the assets and estate in his hands to the receiver of the court of bankruptcy.

This was an application by A. Steinhardt & Bros, for a review of a decision of the board of general appraisers in respect to the classification for duty of certain imported black-headed pins.

These were applications made both by the United States and by the importers, Naday & Fleischer, for a review of a decision of the board of general appraisers in respect to the classification of certain imported goods.

This is an appeal from a judgment of a United States commissioner ordering the deportation of the defendant to the empire of China. On the 6th of December, 1898, the defendant was arrested and taken before the United States commissioner at Malone, N. Y., charged with being a Chinese person unlawfully in the United States, under section 12 of the act of May 6, 1882, as amended by the act of July 5, 1884.

Appeals from tbe Circuit Court of the United States for the District of Massachusetts. This was a suit in equity by Fred H. Beach against Clarence W. Hobbs and others for alleged infringement of a patent. From the decree entered (82 Fed. 916) both parties have appealed.

This was a suit in equity by the Patent Button Company against the Scovill Manufacturing Company for alleged infringement of patent No. 429,530, to W. E. Jackson and L. A. Platt, for a button.

This was an action at law by Edwin T. Earl against Robert Graham to recover damages for infringement of a patent relating to ventilators for refrigerator cars. In the circuit court there was a verdict and judgment for plaintiff for nominal damages, in the sum of one dollar, and the defendant brings error.

<p>Patents — Invention—Improvement in Car Couplers.</p> <p>The Janney patent. No. 234,093, for an improvement in car couplers especially designed for use on freight cars, and applicable to the hook or Janney type of couplers, covers a meritorious and patentable device, which was not anticipated or obviously suggested by anything in the prior art.</p>

This was a suit in equity by George V. Wilson and Elmore A. Barnes, surviving co-partners trading as the Ilnssey Manufacturing Company, against the McCormick Harvesting Machine Company, for the alleged infringement of a patent. From a decree dismissing the bill, complainants appeal.

This was a suit in equity by the Western Electric Company against the Western Telephone Construction Company, James E. Keelyn, Madison B. Kennedy, and Jsador Baumgartl, for the alleged iim-inge-inenf of a patent for an improved telephone switch. Prom a decree dismissing the bill, complainant appeals.

This was a suit in equity by Deere & Co. against O. M. Arnold for alleged-infringement of a patent for improvements in harrows. Final hearing.

<p>Pa.tf.Nts — Assignment of Future Inventions — Construction of Grant.</p> <p>An employe of a manufacturing company granted to it all Ms “patents, inventions, and improvements,” now existing and used by it “in tlie manufacture and sale of said hereinafter mentioned machinery"; also “all inventions and improvements in said machinery hereafter made” by him; also “all new designs of such machinery hereafter made by him” “while in the employ” of the company. The machinery referred to included, among other things, the “New Peerless Threshing: Machines.” <1{eld, that the improvements mentioned in the second clause of the grant were to pass, even if made after the grantor ceased to be in the company’s employ, while tlie “now designs” mentioned in the third clause were only to pass if made while his employment continued, and that such “improvements” included every invention not so divergent from the existing machine as to be radically distinctive or to constitute a new typo.</p>

<p>This was a libel by Cornelius Callahan against the steamship J. W. Taylor to recover damages for personal injuries.</p>

<p>1. Attachment — Levy of AYrit — Texas Pboobdure.</p> <p>Under the procedure in Texas it is not necessary for the sheriff in attachment cases to require an agent of the attachment defendant, where the latter is a nonresident, to point out property to be levied on, nor to levy first on personal property.</p> <p>2. Execution Sale — Gkounds for Setting Aside in Equity — Inadequacy of Price.</p> <p>Inadequacy of price alone will not authorize a court of equity to set aside a sale of land on execution, where such inadequacy was caused by the action of the execution defendant or his agent in deterring persons from bidding by making unwarranted statements at the sale as to the invalidity of the judgment.</p>

This is an appeal from a final decree of the district court for the Eastern district of Texas, entered June 9, 1897, adjudging that the libelant (appellee herein) is not entitled to recover as prayed for, and that its libel be dismissed; and, further, that respondents (appellants herein) are not entitled to recover upon their cross libel, and each party should pay all costs herein. The libel was filed May 7, 1897, by the Reliance Lumber Company.

This was an action by William A. McLean, master of the schooner William Jones and the tug Eva Wall, against the steamer City of Macon, to recover damages for collision. There was a decree for libelants (85 Eed. 23(5), and the respondent appeals.

<p>Removal ok Causes — Sufficiency ok Petition — ■Juhtsdiottonal Facts.</p> <p>Where a petition for removal shows that the requisite amount is involved, and alleges that plaintiff and defendant are citizens of different states, it contains sufficient to give the federal court, jurisdiction of the cause, and may ho amended, hy leave of court, by supplying more specific allegations going to establish the same jurisdictional facts, such as the citizenship of the parties.1</p>

In Equity. The court finds the following facts from the pleadings, depositions, and admissions of parties: That the plaintiffs ar@ residents and citizens of Massachusetts, and defendants are residents and citizens of North Carolina. That the matter in dispute in this action, exclusive of interest and costs, exceeds the sum of $2,000.

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

<p>On Application for Preliminary Injunction.</p>

<p>National Banks — Taxation—Discrimination.</p> <p>The fact that evidences of debt and shares of stock in foreign corporations, owned by residents of Maryland, cannot he taxed for county and city purposes at a greater rate than 30 cents per $100 of actual market value, as provided by Act Md. 1896, c. 143, '§ 201, does not constitute an Illegal discrimination against national banks, the shares of which might be taxed at a higher rate, within Itev. St. § 5219, prohibiting the taxation of national banks at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of a state, in the absence of proof that the securities taxed at a less rate belonged to a class of investments which directly compete with the business of national banks.</p>

<p>Judgments — Grounds for Setting Aside in Equity — Fraud.</p> <p>A court of equity,will not set aside a judgment rendered by a court of competent jurisdiction, on the ground of fraud, because of false statements made by the defendants to the court as to their financial condition, by which the court was induced to render, and the plaintiff to accept, a judgment for less than the amount sued for or than was actually due.</p>

This is a hearing on interventions by the executors of Amos C. Ba-rstow, deceased, in a foreclosure suit against the Stuttgart & Arkansas Kiver Bailroad Company, claiming preferential liens on the property of the defendant, or the proceeds of its sale.

This is an appeal from a decree refusing to confirm the sale of a certain railroad, made by a commissioner acting under the order and direction of the circuit court. The same decree ordered a resale, beginning at a price tendered under an advanced bid made after the original sale had been reported. The appeal is by the original bidder, to whom the sale was made by the commissioner.

<p>1. Irrigation Bonds — Bill to Cancel — Sufficiency op Allegations.</p> <p>Allegations in a bill to cancel bonds of an irrigation district, which could not legally be issued for labor, though they might ha.vo been in payment for materials, that they wore issued for labor and materials, sniilciently show the invalidity of the bonds, as against a general demurrer, without specifying to what extent either labor or materials entered into the consideration.</p> <p>2. Irrigation District — Validity op Organization — Who May Attack.</p> <p>Where a reputed irrigation district is acting under forms of la.w, unchallenged by the state, the validity of its organization cannot be attacked, either directly or collaterally, by a private individual.</p> <p>3. ¡Same — Suit por Cancellation op Void Bonds — Return op Consideration.</p> <p>In a suit by a landowner of an irrigation district against the district and its bondholders, to restrain the levy and collection of assessmenls for the payment of void bonds issued by the district, and for the cancellation of such bonds, the complainant is not required to allege or tender the restoration of the consideration received by the district therefor, which restoration would be beyond his power. While the court, In case of the cancellation of the bonds, might order the consideration restored by the district in a proper case, it is incumbent on the bondholders, if they desire such relief, to allege and prove the facts which en title them to it.</p>

<p>Appeal irom the Circuit Court of tire United States for the District of Colorado.</p> <p>This is an appeal from a decree which sustained demurrers to and dismissed the amended bill of John W. Schofield, as receiver of the Union National Hank of Denver, because the court below held that his bill did not show that the complainant was without an adequate remedy at law. These are the material facts alleged in this bill: On and prior to March 31, 1896, the appellee the Ute Coal & Coke Company,. a corporation, was indebted to the receiver of the Union National Bank of Denver on Its promissory notes in tlio sum of §7,700, and the receiver was pressing it for payment. The only property the coal company had was certain real estate in La Plata county, in the state of Colorado, which was worth less than §20,000. Thereupon,’ on March 31, 1896, the coal company and the appellee O. M. F. Boyle entered into a conspiracy to defraud the receiver out of his credit; and pursuant thereto the coal company made its several promissory notes to the aggregate amount of §20,000, payable to the order of Boyle, and made and recorded a trust deed of all its property to the appellee J. L. Parsons for the pretended purpose of securing these notes. The company was not indebted to Boyle, and the notes and the trust deed were made without consideration, for the purpose of defrauding the receiver of the bank. After these notes to Boyle were made, he assigned one of them to each of the appellees the First National Bank of Alamosa, the First National Bank of Durango, Frank W. Stubbs and Louis C. Jackway, co-partners as Stubbs & Jackw'ay, and Adair Wilson and Reese McCIoskey, co-partners as Wilson & McCIoskey; but there was no consideration for these assignments, and each of the appellees took them with knowledge of the purpose for which the notes and deed had been made, and with intent to aid in its accomplishment. On September 4, 1896, the receiver of the Union National Bank recovered a judgment in the court below for $8,112.73 against the coal and coke company upon its promissory notes which he held prior to March 31, 1896, issued an execution thereon, and on July 6, 1897, caused a transcript of his judgment to be properly filed with the register of deeds of La Plata county. The circuit court dismissed the bill because it failed to show that the execution issued upon this judgment had been levied or returned unsatisfied.</p>

<p>Taxation op National Banks — Powers op State.</p> <p>The personal property of a national bank cannot be directly assessed for taxation by state authorities.</p>

<p>1. Banks — Officers as Agents — Acts against Interests of Bank.</p> <p>A casliier of a bank, who was also a director of a manufacturing com' pany, and as sucb director assisted in promulgating false statements as to the financial condition of tlie company, for the purpose of defrauding all of its creditors, including the bank, was not the agent of the bank in such matter so as to affect the validity of its claims against the company.</p> <p>2. Fraudulent Conveyance — Bill of Sale as Security — Change of Possession.</p> <p>A bill of sale made by a debtor to a creditor, where no change of possession takes place, but the property is permitted to remain in the possession of the debtor, and to be sold by it, is void as to other creditors.</p> <p>8. Insolvent Corporations — Power of Officers — Transfer of Property.</p> <p>A general manager of a corporation, though given by its by-laws the entire charge of its business and affairs, subject to the order and approval of its board of directors, has no power, after he knows the corporation to be insolvent and about to be placed in the hands of a receiver, to transfer the bulk of its property to one of its creditors in payment of a preexisting debt; and such a transfer, not authorized nor ratified by the directors, is void as to its other creditors.</p> <p>4. Attachment — Validity—Assignment of Clatm for Suit.</p> <p>A colorable transfer of a just cause of action against a foreign corporation by a nonresident to a resident of the state of New York, for the purpose of enabling the assignee to maintain an action by attachment thereon in the courts of the state of New York for the real benefit of the assignor, does not render an attachment obtained by the assignee void, and it cannot be attacked by junior attaching creditors of the common debtor.</p> <p>5. Same — Validity as against Subsequent Attaching Creditors.</p> <p>An attachment cannot be defeated by junior attaching creditors unless there has been some element of unfair dealing which entered into the conduct of the plaintiff in taking his judgment.</p> <p>■6. Promissory Notes — Effect of Renewal.</p> <p>The giving of a renewal note to a bank, where it retains the original, does not discharge the precedent debt for which it is given, unless such is the agreement and intention of the parties.</p> <p>7. Attachment — Validity—Setting Aside in Equity.</p> <p>A corporation had been for a number of years becoming more and more heavily indebted to a bank of which one of its directors was cashier. Notes given by the company were from time to time renewed, merely as a matter of form, and without expectation of payment, as the company was hopelessly insolvent. Finally, both the' company and the bank went into the hands of receivers. Held, that an attachment thereafter obtained on behalf of the bank against the company based on such notes would not be held invalid by a court of equity, merely because the renewal notes taken for a portion of the indebtedness lacked a few days of maturity.</p> <p>•8. Same — Unfair Practice as between Creditors</p> <p>The removal and secretion of goods of a debtor by one creditor, who had an invalid bill of sale for the same, until he could obtain and levy an attachment thereon, is an unfair attempt to gain an advantage over a second creditor, who had procured an attachment, and served it on the custodian of the goods, and was engaged in securing an indemnity bond, required by the sheriff, before levying on the goods, when they were removed by the other creditors, who knew of such attempted attachment, and, as to such goods, the attachment of the second creditor will be given preference.</p>

<p>Appeal and Error —Time fob Taking — When Writ of Error is “Sues Out.”</p> <p>Within the meaning of the provision of the act of March 3, 1891, creating the circuit courts of appeals (26 Stat. 826, 829), that no writ of error shall he sued out except within six months after the entry of the order, Judgment, or decree sought to be reviewed, a writ of error is “sued out” by being obtained and issued, and not by the filing of the petition and bond and obtaining its allowance from the judge of the court rendering the judgment. If the writ is not issued within the six months, the circuit court of appeals is without jurisdiction; and whether the failure to issue it in time is through the negligence of the plaintiff in error or the fault of the clerk appears to b.e immaterial.</p>

<p>1. Carriers — Nondelivery—Goods not Received — Liability.</p> <p>The mere fact that goods were receipted for by the carrier’s agent, who had no knowledge of their delivery, except a slip signed by the boatman, will not create liability for their nondelivery, where they were not in fact delivered to the carrier.</p> <p>3. Bill of Lading — Receipt—Contradiction—Estoppel.</p> <p>A bill of lading acknowledging receipt of goods for transportation is not conclusive as to the amount of goods delivered to the carrier, and does not estop it from showing that the goods were not in fact received.</p> <p>•3. Same — Burden of 'Proof — Evidence.</p> <p>While the burden is on a carrier to show that goods receipted for were not in fact received, yet where, in an action for their nondelivery, there was no evidence that a particular lot of sugar in barrels was actually loaded on a vessel, and no part of the lot was on board at the first: port, and the evidence was inconsistent with the theory that it was lost or stolen, the carrier will not be liable.</p>

<p>1. Contracts — Action nor Breach.</p> <p>It is error, in an action for damages for breach of contract, to permit a recovery without proof of a contract and a breach.</p> <p>2. Same — Offer to Confess Judgment — Effect when Unaccepted.</p> <p>An offer by a defendant to confess judgment for a part of the amount claimed, if unaccepted, cannot be permitted to affect the issues, or the rights of the parties, and will not support a recovery without proof of the cause of action alleged.</p> <p>8. Damages — Breach of Contract to Sell Goods.</p> <p>Under the rule that damages which may be allowed for breach of contract must be the natural and probable consequences of the breach, the damages recoverable for the breach of a contract to sell and deliver merchandise, in the absence of allegation and proof of special circumstances Known to the seller, are limited to the difference between the contract price and the market value of the goods at the time and place of delivery, with interest, and incidental expenses of the purchaser in connection with the contract cannot be considered.</p>

<p>1. Breach op Contract-Lost Profits as Damages.</p> <p>The recovery of lost profits, as damages for the breach of a contract, is governed hy the same rules as the recovery of other damages.</p> <p>2. Same — Damages Reasonably Anticipated.</p> <p>Those damages which are the natural and probable result of a breach of a contract, those which the parlies may reasonably anticipate as the effect of the breach under the particular circumstances of the case which are known to them when the contract is made, and those only, may be recovered in action upon a contract.</p> <p>S. Same — Knowledge oe Defaulting Party.</p> <p>In the absence of proof aliunde of knowledge by the defaulting party, at the time the contract is made, of special circumstances which make other damages the natural and probable effect of a breach, such damages only as are implied by the contract itself, such as would naturally flow from its breach in the usual course of things, such as would reasonably be anticipated by the parties to such contracts in the great multitude of such cases, and such damages only, may be recovered.</p> <p>4. Same.</p> <p>Proof of knowledge by the defaulting party, at the time he makes the contract, of special circumstances which make damages other than those implied by the contract, and naturally flowing from it, the natural and probable effect of its breach, will warrant the recovery thereof.</p> <p>5. Same — Speculative Damages.</p> <p>Damages which are the natural and probable result of a breach of a contract, and which may be reasonably anticipated therefrom, but which are so speculative and so dependent upon numerous and changing contingencies that their amount is not susceptible of proof with any reasonable degree of certainty, may not be recovered.</p> <p>6. Same.</p> <p>Plaintiff’s assignor contracted to deliver a gear wheel and pinion to a street-railway company on January 3, 1893, but failed to deliver it until May 14, 1893. The wheel and pinion were purchased to replace worn and broken machinery, and because of the delay the company was able to operate its road at only three-fourths its normal capacity, and sustained a loss of $181 per day during such time. Held, that in the absence of proof that plaintiff’s assignor had knowledge, at or before the making of the contract, that the wheel and pinion were wanted to replace old machinery, which was liable to break, and thereby prevent the regular operation of the road, the loss sustained from the delay could not have been within the contemplation of the parties, or reasonably anticipated, when the contract was made; was not the natural and probable effect of the delay; and was too remote and inconsequential to be recovered.</p>

. This is an action by tbe United States on tbe bond of a contractor for tbe construction of a dry dock at the Brooklyn navy yard.

<p>1. Railroads — Injury at Crossing — Questions for Jury.</p> <p>In an action for an injury at a railroad crossing, where the evidence shows that the crossing was on one of the principal business streets of a city, constantly traveled by large numbers of people, and on which was a street-car line, the question whether the railroad company was negligent in failing to maintain a flagman or gates at the crossing is one of fact for the jury.</p> <p>2. Negligence — Injury to Infant — Contributory Negligence of Parents.</p> <p>In an action by an infant in its own right for personal injuries resulting from the negligence of a third party, the fault or negligence of its parents, contributing to the injury, cannot be imputed to the child.</p>

The writ of error in this case challenges a judgment of revivor (77 Fed. 665) upon a writ of scire facias on a judgment against the county of Lafayette, in the state of Missouri, rendered on October 81, 1885. The writ was issued on October 25, 1895. It was in the usual form.

<p>1. CARRIERS — Injury to Passenger— Riding- in Freight Car.</p> <p>A contract made by a railroad company for the carriage of a fine marc gave free transportation for a part of the distance for an attendant, in' consideration of which it was provided that the mare should be in his sole charge, and the company should not be responsible for her protection, whether from theft, heat, jumping from the car, or injury she might do herself. It was the custom on that road for a person in charge of fine stock to ride in the same car with such stock, and the person in charge of the mare so rode, with the knowledge of the train officials, and without objection from them. While so riding, the car was derailed through the negligence of those in charge of the train, and the attendant was injured, though the caboose remained on the track. Held, that the contract must be construed as one for the carriage of the attendant in the car where he was, and that he was therefore not guilty of negligence, in not riding in the caboose, which would defeat his recovery for the injury.</p> <p>2. Same — Payment of Fare.</p> <p>The fact that a passenger on a railroad train had not paid his fare at the time he received an injury will not affect his right to recover therefor, when the fare had not yet been demanded by the conductor.</p> <p>3. Same — Contract Exempting Carrier from Liartrity.</p> <p>A minor riding on a contract made by his father, by which the person traveling thereon was given free transportation for a portion of the distance, and which provided that he should assume all risk of personal injury, except from gross negligence of the carrier, is not bound by such provision.</p>

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

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

<p>1. BANKKUI’TOY — JSl'J’EOT ON ASSIGNMENT EOR CREDITORS.</p> <p>Under Bankruptcy Act .1898, § 3, declaring’ that it shall be an act of bankruplev if a person shall have “made a general assignment for the benefit of ids creditors,” such an assignment is voidable at the instance of creditors; and, if proceedings in bankruptcy are instituted against the assignor within four months thereafter, an adjudication therein will avoid tlie assignment, and flip trustee in bankruptcy may recover the assigned estate-, or its proceeds, from the assignee.</p> <p>2. Same — Property in Possession op Voluntary Assignee.</p> <p>Where a debtor has made an assignment of his property for the benefit of his creditors, and a petition in bankruptcy is filed against him, alleging such assignment as an act of bankruptcy, and his assignee is in possession of the estate, has had the same appraised, and is about to make sale thereof, the court of bankruptcy has jurisdiction to enjoin such assignee from proceeding further with the administration of the estate, and to appoint the marshal to take charge of the proxterty assigned, and to hold the seme until the dismissal of the petition or the appointment of a trustee.</p>

<p>1. Bankruptcy — Suspension oe State Insolvency Laws.</p> <p>Tlie enactment by congress of a national bankruptcy law suspends the operation of state insolvency laws.</p> <p>2. Same — Appointment op Receiver Pending Adjudication.</p> <p>Where proceedings in bankruptcy are instituted against a corporation, on the ground of its having made a general assignment for the benefit of creditors, and the answer admits the insolvency of the company and the making of the assignment, and tlie assignee is in possession of the estate, and is proceeding to administer the same under the direction of a state court, in accordance with the insolvency law of tlie state, the court of bankruptcy has jurisdiction to appoint a receiver to take charge of the estate pending the adjudication in bankruptcy.</p> <p>8. Same.</p> <p>On an application to tlie court of bankruptcy for the appointment of a receiver of the property' of an insolvent corporation, against which proceedings in involuntary bankruptcy are pending, the act of bankruptcy charged being the making of a general assignment for creditors, where it appears that the assignee is a creditor of the corporation, and desires the appointment of a receiver, and that he is perfectly solvent, is in possession of the assigned property, and has had the same inventoried and appraised, such assignee may himself be appointed receiver, upon giving a bond, to be approved by the court, .for the faithful performance of his duties as such receiver.</p> <p>4. Same — Pleading—Answer.</p> <p>In proceedings in involuntary bankruptcy, the allegation of the petition that the petitioning creditors have provable claims which amount, in the aggregate,' in excess of the value of securities held by them, to $500, is not met by an answer that they had not provable claims to the required amount at the time of the commission of the act of bankruptcy charged.</p> <p>5. Same — Intervention—Creditors Joining in Petition.</p> <p>The requisite number of creditors having filed a petition in involuntary bankruptcy, other creditors of the respondent, having provable claims, may intervene and join in the petition.</p>

<p>In Bankruptcy. Petition in involuntary bankruptcy against the defendants, individually and as co-partners.</p>

<p>1. Bankruptcy — Fraudtiuent Transfers — Assignment for Creditors.</p> <p>A voluntary general assignment for tlie "benefit of creditors, with or without preferences, made by au insolvent debtor within four months prior to the filing of a petition in bankruptcy against him, is a fraud upon the bankruptcy act, and made with intent to “hinder, delay, and defraud his creditors.” since its necessary effect is to defeat .the operation of the bankruptcy act, and the right of creditors to such an administration of the assets as that act provides, and is therefore void, as against his subsequently appointed trustee in bankruptcy, under section (57 of the "bankruptcy act (30 Stat. 561).</p> <p>2. Sami: — Jurisdiction—Unjoining Assignee.</p> <p>"Where an insolvent debtor makes a general assignment for the benefit of creditors, and within four months thereafter a petition in bankruptcy against him is filed, the court of bankruptcy has jurisdiction, pending the hearing on such petition, to enjoin the assignee from disposing of or interfering with the property transferred to him under the assignment.</p>

<p>Bankruptcy — Production of Bankrupt’s Books — Privilege against Self Criminating Evidence.</p> <p>A voluntary bankrupt cannot refuse to deliver the books of account kept by him in his business, and necessary to an investigation of his affairs, to his trustee, on the ground that matter contained therein might tend to criminate him. If the constitutional privilege extends to civil proceedings, the filing of a voluntary petition in bankruptcy operares both as a waiver of such xirivilege, in relation to the bankrupt’s books, and as a transfer of the right of custody of the same to the court and its officers.</p>

<p>Customs Duties — Reimportation or American-Mad® Baos — Identification —Treasury Rrgui.ationk.</p> <p>Tinder paragraph 493 of I ho tariff act of October t, 1890, which permits the free reimportation of certain articles of American manufacture, including hags which hare boon exported filled with American products, or exported empty and returned filled with foreign producís, but requires proof of identity to he “made under general regulations to he prescribed by the secretary of the treasury,” the provision as to the manner of proof is of the essence of the exemption; and, the secretary having promulgated such general regulations, reasonable in their requirements, an importer cannot ignore them, and obtain the exemption by substituting other evidence satisfactory lo the customs officers. Bags claimed to have been exported filled fiom another port, but of which fact no certificate of the. collector is furnished, as required by article 331 of the treasury regulations, are properly dutiable.</p>

This cause comes here upon appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers which had affirmed a decision of the collector of the port of New York touching the classification of certain merchandise for customs duties.

Augustus F. Leovy and Robert S. Leovy were indicted on May 19, 1897, under Act Hept. 19, 1890 (2G Stat. 454), as amended by Act July Í8, 1892 (27 Stat. 110, c. 158, § 3).

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

<p>1. Postmaster — Emiíbzzuement OB' Money-Order Funds.</p> <p>That a postmaster who issued money orders without receiving the money therefor, and failed to account for such money, did not intend to defraud the government, but to collect and account for the money on his settlement, constitutes no defense to a prosecution for embezzlement of money-order funds under Itev. St. § 4016.</p> <p>- 2. Samic — Verdict---Harmless Error.</p> <p>Where an indictment against a postmaster contained two counts, one charging him with the embezzlement of money-order funds, under Itev. St. § 4046, and one with failing to deposit the same amount of postal-revenue funds, under section 4053, and the verdict found him guilty as charged, without specifying on which count, a sentence imposing the minimum sentence under either charge renders the error, if any, without prejudice to the defendant. '</p>

On the 8th day of November, 1897, the Proctor & Gamble Company (the appellant here) filed its bill in the circuit court for the district of Kentucky against the Globe Refining Company, complaining that the latter was infringing a trade-mark belonging to the complainant, impressed upon a wrapper or label used for covering cakes of washing soap alleged to be known to the trade as “Every Day Soap,” by using on soap manufactured by the defendant a wrapper or label containing the…

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal from an order of the circuit court for the Southern district of New York (90 Fed. 824) which granted an injunction pendente lite against the infringement of claim 21 of letters patent No. 341,214, to Bell & Tainter, for the instrument called the “Grapho-phone.” The instrument- which was found to infringe is known as the “Berliner Gramophone,” and is described in letters patent Nos. 372,786 and 564,586.</p>

This was a suit in equity by Isaac E. Palmer against Abraham 0.. Knight for alleged infringement of a patent for an improvement in hammocks or bed bottoms.

<p>This was a suit in equity by John E. Gaitley against William F. Greene for alleged infringement of a patent for a kettle bail.</p>

<p>Patent Suits — Scope of Injunction — Persons not Parties.</p> <p>In a suit against dealers in an infringing article, tbe manufacturers thereof, assumed tbe defense, but without becoming technical parties. The injunction' granted ran against the dealers, by name, and their officers, etc., workmen, “and manufacturers.” Hold, that the injunction bound the latter only as agents and manufacturers of the defendants, and, they were not in contempt for manufacturing for other dealers having no connection with defendants. In re Lennon, 17 Sup. Ct. 658, 166 U. S. 548, distinguished.</p>

This was a suit in equity by Stephen A. G-inna and Bichard A. Donaldson against the Mersereau Manufacturing Company for alleged infringement of a patent for an improvement in machines for manu-factoring tin cans.

This was a suit in equity by Jolm Rood and others against Robert Evans and others for alleged infringement of a patent for improvements in machines for shaving skins or hides.

This was a suit in equity by William E. Elliott and the Elliott Button-Fastener Company against Abraham M. Harris and Nicholas Flemming for alleged infringement of three patents.

This was a suit in equity by tiie Risdon Iron & Locomotive Works against L. 0. Trent for alleged.infringement of a patent for an ore crusher.

<p>1. Patents — Invention—Process and Product — Patents for Cops.</p> <p>The Wardwell patents, No. 480,158, for a method of winding cops, and No. 480,745, for a cop which is the product of such process, held void for want of patentable novelty.</p> <p>2. Same — Machine for Winding Cops.</p> <p>The Wardwell patent, No. 480,157, for a machine for winding cops, construed, and held not infringed.</p>

<p>This was a rehearing on supplemental bill filed by defendants.</p>

Libel by Edward Morris, by August Rieser, his next friend, against the British steamship Oranmore, to recover for 07 head of cattle which died and were thrown overboard, and for depreciation in value of others^ during their transportation from Baltimore to Liverpool in 1885.

<p>In Admiralty.</p> <p>This is a libel in personam to recover damages from respondent, as charterer, for an injury to a scow.</p>

This is a libel, filed by the Deering Harvester Company and Emile Thiele, as owners of the cargo of the canal boat Niobe, to recover damages for the loss of the cargo alleged to have been occasioned by the negligence of the steamer Lady Wimett while towing the canal boat from Black Bock Harbor to the harbor of Buffalo.

The libel was filed December 2, 1896, alleging that the schooner Horace W. Macomber in October, 1896, at Newport News, took on board 1,600 tons of coal, to be delivered at Galveston, Tex., to respondents, Flood & McRae, under a charter party duly signed, stipulating for a discharge of 250 tons of coal per daV, and for $90 per day for every day’s detention; that on the 4th day of November, 1S96, at 9 o’clock a. m., the master of the schooner notified Flood & McRae of arrival…

<p>Towage — Loss of Tow — Liability of Tug for Negligence.</p> <p>A tug is responsible for tbe loss of a tow, a barge laden with coal, wbicb sbe anchored in tbe evening in an exposed place, proceeding to another port, where, by reason of not keeping a watch during tbe night, her master was not advised of an approaching storm in time to reach and save the barge before it was sunk.</p>

<p>Admiralty — Jurisdiction.</p> <p>A court of admiralty has no jurisdiction to try the title to a vessel, whore the petitioner’s claim is based on an equitable interest merely, and not on the legal title, especially where the parties holding such title are not parties to the suit.</p>

This was a libel by William H. H. Curtis, as master, etc., against the steamboat Mary Powell, for collision. ' The libel was dismissed by the district court

<p>Collision — Steam and Sail — Fog—Insufficient Lookout — Excessive Speed —Fog Horn not Heard — Privileged Vessel to Give Way-Maneuvering Power.</p> <p>Upon a collision at sea in thick fog about 20 miles off Fire Island between tlie steamer P., going at “half speed,” and a four-masted schooner, dosehauled, going ai a speed of about 3 knots, It being found upon the testimony, as well as upon the maneuvering power of the steamer, that her speed was about 7 knots, or about two-thirds of her full speed, held excessive, when the schooner could he seen only 600 or 700 feet distant, and not justified by her failure to hear the schooner’s horn earlier; and that a lookout on the bridge, without any at the bow, was insufficient. It further appearing that the steamer was approaching upon the schooner’s lee beam, and that the master of the schooner had notice of the imminence of collision and that the steamer was backing, about two minutes before collision, held, that it was his duty to luff, as he might have done in order to aid in avoiding collision; since tills was clearly a safe maneuver and could not possibly do harm, and was one of the “ordinary practices of seamen” within articles 21, note, 27 and 29, and that the damages should therefore he divided.</p>

<p>1. Jurisdiction of Federal Courts — Action by Receiver of National Bank — Transfer of Plaintiff’s Interest.</p> <p>When the jurisdiction of a federal court in an action by the receiver of a national bank depends solely on Uie official character of the plaintiff as such receiver, such jurisdiction is lost by a sale and transfer by the plaintiff of all his interest in the subject-matter of the litigation.</p> <p>2. Dismissal — Want of Actual Controversy — Purchase of Plaintiff’s Interest by a Defendant.</p> <p>A receiver of a national bank brought an action in a federal court to recover land against defendants, each of whom claimed a, separa to. interest in tlio land. The defendants made a compromise of their claims between themselves, and entered into a written contract by which they agreed to consolidate their interests, join in the defense of the suit, and, if successful, to divide whatever land was recovered on a basis therein fixed. Aftenvauls one of them purchased the interest of the plaintiff in the land, and immediately conveyed the same to a third person, who claimed to hold it adversely to the other defendants. Held that, on such facts being shown, the court should have refused to permit the suit to continue for the benefit of one of the original defendants, or of ids grantee pendente lite, who stood on no better ground, against his co-defendants.</p>

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

<p>Removal of Causes — Diversity of Citizenship — Joinder of Separate Causes of Action.</p> <p>The right of a sole defendant sued in a court of another state hy a citizen of such stale on a cause of action existing in favor of the plaintiff, upon which lie claims more than í¡!2,000, to remove the canse into a federal court, is not defeated because the plaintiff, as permitted hy a state statute, has joined in his complaint a separate canse of action hold hy him as assignee of a third person, whose citizenship does not appear, and of which the federal court would not have jurisdiction; and in such case the removal carries the entire suit, so that the defendant is not required in his petition to set forth the existence of a separable controversy.</p>

Appeals from the Circuit Court of the United States for. the District of Nebraska. On October 30, 1893, the Manhattan Trust Company, the appellee, as trustee in a deed of trust or mortgage executed by the Sioux City, O’Neill & Western Railway Company, one of the appellants, exhibited its bill of complaint in the circuit court of the United States for the district of Nebraska, against the mortgagor, for the purpose of foreclosing said mortgage.

This is an appeal from a decree of the circuit court of the Eastern district of Michigan, denying the relief prayed by the attorney general of Michigan in a bill in equity filed by him in a Michigan state court against the Granite State Provident Association, a corporation of New Hampshire. The bill was removed from the state court to the court below on the ground of diverse citizenship.

<p>United States — Bond of Contractor' for Public Work — Freight Charges on Material.</p> <p>A bond required by the United States from a contractor for public work, under the act of August 13, 1S94 (2S Stat. 278), conditioned that the contractor shall promptly pay all persons who supply labor and materials in the prosecution of the work, does not cover a charge by a railroad for freight on materials which are loaded and unloaded by the contractor, such charges being neither for labor nor materials, within the meaning and purpose of the act.</p>

The International Loan & Trust Company, a Missouri corporation, filed its petition in the United States circuit court at Dallas, Tex., against J. J. May, Sr., a citizen of Texas, to recover from liim on two notes executed, on September 1, 1S90. Tiie petition alleged that tlie notes were secured by a deed of trust, and set forth so much of the deed of trust as provided for an option to declare the principal of the debt due in case of default on the interest.

<p>In Error to (.lie Circuit Court of the United States for the If or them District of Texas.</p>

<p>1. Municipal Cobfoeations — Ratification of Unautiioeized Contbact.</p> <p>A city council having authority to enter into a contract, or to authorize its board of public works to enter into it, on behalf of the city, may legally ratify such a contract made by the board without previous authority,- — the performance of the contract by the second party being a sufficient consideration, — and a ratification is equivalent to authority originally given, and renders the contract valid from its date.</p> <p>2. Same — Action to Enfokce Claim against — Effect of Injunction against OB'FICEKS.</p> <p>An injunction against officers of a city restraining them from paying a claim, issued in a suit to which neither the city nor the owner of the claim is a party, constitutes no defense by the. city to an action against it on the claim.</p>

This action was brought, under a statute of Tennessee giving a remedy in such cases, by Rhocla Newport, the widow of J. H. Newport, deceased, in behalf of herself and her children, who were also the children of the deceased, against Samuel M. Felton, as receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company, to recover damages arising from the death of her husband, resulting from alleged negligence in the operation of the railroad of said company while it…

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

<p>In Error to tbe Circuit Court of the United States for the Southern District of Ohio.</p> <p>Charles Cravens, plaintiff in error, a citizen of Indiana, doing business at Paducah, Ky., under the name of Charles Cravens & Co., brought this action against the Carter-Crume Company, a West Virginia corporation, the National Mercantile Company, an Ohio corporation, and the Crume & Sefton Manufacturing Company, another West Virginia corporation, to recover the sum of $9,000, which he claimed had inured to him under the guaranty of the Carter-Crume Company that the dividends upon certain stock, sold to him by contract between the National Mercantile Company and himself, should amount to the sum of $9,000 for the year then next ensuing. The National Mercantile Company demurred to the petition, and, the demurrer being sustained, the case was dismissed as to that company. The Crume & Sefton Manufacturing Company dropped out of the case by consent of parties. The Carter-Crume Company answered the petition, and the plaintiff replied. As no question arose upon the pleadings, and none of the errors assigned has relation thereto, it is unnecessary to give any detailed statement thereof. The only questions involved are such as arose upon the trial of the case, and they are based entirely upon the testimony. The facts as they appeared upon the trial were substantially these:</p> <p>The plaintiff, Cravens, was, and for some time had been, engaged in manufacturing wooden dishes and dish machines at Paducah, Ky., at the time of the making of the contract of guaranty, ■yhich was the 28th day of August, 1896. At that time there were also a number of parties engaged in the same kind of business at various other places scattered throughout the United States, principally in the northern portion thereof. One of these was the Carter-Crume Company, which, by its charter, was required to establish its principal office at Niagara Palls, N. Y. The president and secretary kept their offices at that place, but the vice president and manager had offices at Dayton, Ohio. Another of such manufacturers was the Crume & Sefton Manufacturing Company, the locality of whose principal office is not stated, but it appears to have been doing business at Dayton, Ohio. The National Mercantile Company was an Ohio corporation, having its principal office at Dayton, the majority of the stock in which was owned by parties largely interested in the other two companies just, mentioned. William E. Crume', of the Carter-Crume Company, and John C. Crume, of the Crume & Sefton Company, were charter members thereof. William E. Crume was the secretary, and appears to have been largely influential in the direction of the management of the National Mercantile Company. He was also vice president of the Carter-Crume Company, and managed its affairs at Dayton, Ohio. The business for which the National Mercantile Company was incorporated is thus set forth in the third article of incorporation: “Said corporation is formed for the purpose of buying and selling and dealing in wooden ware and grocers’ novelties.” It was not a manufacturer. This corporation appears to have been formed for the purpose of creating a common controlling head, into connection with which the various manufacturers of wooden dishes throughout the country should, as far as possible, be brought, whereby the output and sale of their manufactures should be controlled in respect to quantity and price. The plaintiff, Cravens, after some preliminary negotiations with the parties representing the corporations doing business at Dayton, as above stated, went there on the date above mentibned, August 28, 1896, for the purpose of meeting and conferring with those parties and others Interested in the manufacture of wooden dishes and dish machines. A considerable number of such persons from different places in the country, representing about 80 per cent, of the entire output of wooden dishes in the country, convened there that day, and a meeting was held, which the plaintiff attended, for the purpose of effecting a combination whereby the output of their goods should be restricted and prices maintained. This plan involved the making of contracts by the manufacturers with the National Mercantile Company of a kind similar to that hereinafter stated between the plaintiff and the National Mercantile Company. Having taken some of the stock, the plaintiff was made a director of that company on that day.</p> <p>The following is an extract from his testimony, as found in the bill of exceptions: “Q. Mr. Cravens, you were contemplating that, deal before Unit? A. I was contemplating a deal -with the National Mercantile Company. Q. You went down to Dayton for the purpose of getting into that deal? A. I didn’t know. 1 was asked to go and attend a meeting. Q. In what way? A. A meeting of the different manufacturers. Q. How much of the output of the country was represented at 1hnt time? A. I could not say. Q. Have you no idea? A. (No response.) Q. What was the object of the meeting, as stated to you? A. Mr. Online had been to see me; wanted me to go into the National Mercantile Company. He wanted mo to put my factory in. My factory would represent so much stock. My dividend, lie said, would amount to six thousand dollars or more. I refused to do it. 1 told him that I would if Carter-Onuue Company would guaranty me nine thousand dollars. I would close my factory, and not ran it a.fc all. Q. You were made director of the National Mercantile Company? A. Yes, sir. Q. What was the object of that company, as you understood as a director? A. Well, I saw that they were then working to get all these factories in-line. Q. For what purpose? A. They -wanted to close my factory. Q. For what purpose? A. To get the factories all in line. Q. As you understand that, as a director of the company? A. They were to maintain prices. Q. And nuylhing else, sir? A. What they wanted to do was to control the business at that time. Q. And that was the object of that meeting, was it not? A. That was the object of that meeting; yes, sir. Q. And you were director of the company? A. I was director of the company. I will state, though, before I went into that company I had the guaranty— 1 had Mr. Crume’s word that Oarter-Crnme Company would guaranty me nine thousand dollars a year, if I did this. Q. You knew what you were going into? You made the proposition, that, if they would guaranty this nine thousand dollars, you would close your factory? A. 1 was leasing them my machinery. Q. Didn’t you know what the Mercantile Company was buying your factory for, — what you were going into it for? A. To get rid of my machinery; to get this nine thousand dollars. Q. Didn’t Mr. Orume tell you what he wanted to do? A. That he wanted to get me in line. Q. What for? A. To maintain prices.”</p> <p>On the occasion of that meeting, the following contracts were entered into between the plaintiff and the other parties named therein;</p> <p>“Contract.</p> <p>“This agreement, entered into by and between the National Mercantile Company, a corporation by virtue of and under the laws of Ohio, with cilice at Dayton, Ohio, their successors or assigns, party'of the first part, and Charles Cravens & Go., a co-partnership, of Paducah, Ky., parties of the second part, wituesseth:</p> <p>“(1) That party of the first part being desirous of leasing all the wood-dish machines now owned or controlled by the party of the second part, and the party of the second part being desirous of renting said machines* to the party of the first part, it is hereby agreed that, for the sum of one dollar (ípLOO) and other valuable considerations, the party of the second part agrees to lease, and does hereby lease, .to the party of the first part, all the wood-dish machines now owned or controlled by it, and all the wood-dish machines that may, during the continuance of this contract, come into the possession or control of the party of the second part.</p> <p>“(2) It is also agreed and understood that the said machines shall remain. in the possession and control of the party of the second part, and it agrees to operate and keep in repair the said machines, and proceed to make wood dishes for the party of the first part, on the following terms and conditions:</p> <p>“(8) The wood dishes shall be made of gum and maple wood, all light in color, all first quality, and satisfactory to the general trade, and they shall he securely packed in good, substantial crates, containing 250 or 500 dishes, as may be, from time to time, specified by first party. If packed in crates, the crate heads shall he planed, branded, and stenciled as instructed by the party of the first part.</p> <p>“(4) The party of the first part agrees to take wood dishes per year during the continuance of this contract, which shall be distributed as near as may he to dishes daily.</p> <p>“(5) It is hereby agreed that the price to be paid f r said wood dishes shall he: No. 1-2’s, 65c.; No. l’s, G5c.; No. 2’s, 75c.; No. 3’s, 85c.; No. 5’s, $1.05, — per thousand, f. o. b. cars at factory point, and shipped as per instructions from party of the first part; shipping bill, together with invoice, to he promptly mailed to party of the first part. Terms: Cash ten days after date of bill of lading.</p> <p>“(6) In consideration of the large quantity of wood dishes purchased by the party of the first part, the party of the second part agrees that it will not make for or sell wood dishes, directly or indirectly, to any other person, firm, or corporation.</p> <p>“(7) The dishes purchased by, and to be made for, the party of the first part shall not become the property of the party of the first part until they are loaded on board ears or vessel, and receipted for by the transportation company.</p> <p>“(8) It is further agreed that the party of the second part shall make a weekly factory report to the party of the first part; said report to be made out on the Monday following the close of each week, and mailed to the office of the first party. This report to contain a record of the quantity of each size dish made and shipped for the week, and quantity on hand at the end of each week. These reports to be made out on report blanks furnished by the party of the fii;st part.</p> <p>“(9) The party of the second part agrees to furnish wood dishes additionally in proportion to above-named quantity, at the same prices, and upon the conditions, herein named, if called to do so by the party of the first part.</p> <p>“(10) Where the words ‘wood dishes’ are used herein, it is understood that wire-end wood dishes are meant.</p> <p>“August 28, 1895. The National Mercantile Company,</p> <p>“By W. B. Crume, Sec’y.</p> <p>“By Charles Cravens & Co.”</p> <p>“Supplementary Agreement.</p> <p>“Between the National Mercantile Company of Dayton, Ohio, party of the first part, and Charles Cravens & Go., party of the second part, to he attached to and become a part of an original agreement between the above parties, dated August 28, 1895:</p> <p>“(1) Party of the second part, being desirous of obtaining forty-nine shares of the capital stock of the.National Mercantile Company,. hereby agrees to pay for the same five hundred dollars ($500), to be paid for in wood dishes shipped to the order of the party of the first part, all to be of first quality, and at the prices named in the original agreement of August 28, 1895.</p> <p>“(2) The value of said dishes to be placed to the credit of the second party on the books of the company, representing its shares in the capital stock of the company.</p> <p>“(3) Said quantity of dishes in value to be furnished by the party of the second part before the party of the first part shall be required to pay cash for dishes, as specified in section 5 of the original agreement.</p> <p>“(4) It is agreed, upon the expiration of this agreement or any renewal thereof, that the share of assets of the company, as represented by the shares of stock held by the party of the second part, shall be paid over to the party of the second part.</p> <p>“(5) This agreement to remain in force paid effect during' the continuance of the contract between the parties hereto of even date herewith.</p> <p>“The National Mercantile Company,</p> <p>“By W. E. Grume, Secretary.</p> <p>“By Charles Cravens & Co.”</p> <p>“It is hereby agreed, by the parties hereto, that the Carter-Crume Company, a corporation under the laws of West Virginia, agrees to assume, and does hereby assume, to make the above quantity of wood dishes at the prices and upon the conditions above named.</p> <p>“Dated August 28, 1895. The Carter-Crume Company,</p> <p>“By W. E. Crume, Vice President.</p> <p>“By Charles Cravens & Co.”</p> <p>“Memorandum of agreement made this 28th day of August, 1895, by and between the Carter-Crume Company, a corporation organized under the laws of the state of West Virginia, party of the first part, and Charles Cravens & Co., of Paducah, Kentucky, parties of the second part, referring to a contract and supplementary agreement made this day between the National Mercantile Company, Dayton, Ohio, and Charles Cravens & Co., of Paducah, Kentucky, parties of the second part: Inasmuch as, under the agreement above referred to, Charles Cravens & Co. have become owners of fifty shares of stock in the National Mercantile Company, parties of the first part guaranty to parties of the second part that the dividends paid by the National Mercantile Company to Charles Cravens & Go., on said fifty shares of stock, shall amount to seven hundred and fifty dollars ($750) per month, or a total of nine thousand ($9,000) dollars for the year, ending one year from to-day, or, in the event of such dividends not amounting to such amount, then parties of the first part agree to pay to parties of the second part, on or before one year from to-day, the difference in money between tbe total amount of dividends paid on said fifty shares of stock and the sum of nine thousand ($9,000); it also being a condition of this agreement that party of the second part is not to manufacture the dishes for the National Mercantile Company, as specified in llieir contract of this date, referred to above, but: such dishes are to be made in fulfillment of said contract by the party of the first part. Party of the first part to receive all money paid by the National Mercantile Company for such dishes.</p> <p>“Signed August 28, 1895. The Carter-Crume Company,</p> <p>“By W. E. Grume, Vice President.</p> <p>“By Charles Cravens & Co.”</p> <p>Typewritten minutes of the proceedings at a meeting of the directors of the National Mercantile Company attended by the plaintiff' on that day, which a witness testified were taken at the time, were offered in evidence by defendant, and, against objection on behalf of the plaintiff, received, which, among other things, stated that it was resolved: “That it is the iwlicy of this company to hold the price on machine-made wire-end wood butter dishes firm at $1.(50 basis, and that the secretary he, and is hereby, instructed to use his best endeavor to stop all attempts to manufacture dishes, or the making of machines for the manufacture of wood dishes, and to use coercive measures, if necessary, to accomplish this result.” These minutes had never been entered in any record book of the company.</p> <p>The plaintiff executed his part of the above agreements, and in due time demanded the $9,000, no part of which had been, or was at any time, paid to him. Numerous other contracts between manufacturers of wooden dishes and the National Mercantile Company or the Carter-Crume Company of a similar character, made about the same time, were offered in evidence, and received, against Hie objection of counsel for plaintiff, who, however, assigned no reasons or grounds for his objection. Some other incidental facts were shown, but the foregoing is the sitbstance of the ease as it appeared upon the trial. The trial judge held, at the conclusion of the evidence, that the contracts between the plaintiff, the National Mercantile Company, and the Carter-Crume Company, were not, standing by themselves, unlawful, but that when taken in connection with the other facts, which had been shown, it appeared that they formed part of an unlawful combination in restraint of trade; that they were therefore contrary to public policy, and could not be enforced. He therefore directed a verdict for the defendant. Counsel for plaintiff duly excepted thereto, and, the verdict and judgment having passed in accordance with the instructions of the court, the case is brought here on writ of error.</p>

<p>Damages — Breach of Contract of Sale — Goods to be Manufactured.</p> <p>The measure of damages for breach of a' contract to purchase goods to be manufactured'by the seller, where the goods are not manufactured and ready for delivery at the time the seller is notified that they will not be accepted, if no materials have been purchased, and 'no labor expended towards their manufacture, is the difference between the cost to the seller of their manufacture and delivery and the contract price, if such price is greater than their cost. If materials have been purchased, the difference between their market value and their cost, if ■ the cost is greater, is to be added. If materials liave been purchased, and labor has been expended towards their manufacture, the difference between the market value of the partly finished articles and the cost of the materials and the labor expended thereon, if the cost is the greater, is to be added.</p>

<p>1. Master and Servant — Rules for the Protection of Employes from Injury.</p> <p>Where a railroad company, through its superintendents in charge, had made and enforced a rule in its car-repair shop that employés working on or along any of the tracks in the shop should he given personal notice when cars were to be moved on such track, it cannot be charged, by an employs who is injured by moving cars, and who had knowledge of such rule, with negligence in failing to establish proper regulations for the protection of the men, merely because the rule was not printed.</p> <p>2.. Same — Fellow Servants — Vice Principals.</p> <p>The foreman of a freight-car repair shop of a railroad, who Is a subordinate of the master car builder, who alone employs and discharges men in his department, which itself is a branch of the mechanical department of the road, under the control of the master mechanic, is not a vice principal, as to another employ® in such shop, but a fellow servant, for whose negligence, resulting in an injury to such employs, the railroad company is not liable.1</p>

The plaintiffs, on the 23d day of October, 1895, owned, in the village of Thompsonville, in the state of Michigan, a large quantity of lumber, which lajr near the track of the Toledo, Ann Arbor & North Michigan Railway Company. About 1 o’clock in the afternoon of that day, the lumber was destroyed by fire.

Action on insurance policy. For former report, see 83 Fed. 807. This was an action by John Fischer, upon an insurance policy, to recover the value of a stock of goods in the city of Louisville, upon which the defendant insurance company had issued a policy of $3,-000. The defense of the company rested upon alleged violations of three conditions of the policy.

This is an action upon a policy of life insurance issued by the United States Life Insurance Company of New York upon the life of Joseph Smith; the beneficiary being- Minnie J. Smith, wife of the assured. The policy was for $5,000, issued April 1, 1895. The assured died September 25, 1895.

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On objections to application for discharge.</p>

This was a suit in equity by the American G-raphophone Company against Ellsworth A. Hawthorne, Horace Sheble, and others, for alleged infringement of letters patent No. 341,214, issued May 4, 1886, to C. A. Bell and S. Tainter, for an invention relating to devices for recording and reproducing sounds. The cause was heard on motion for preliminary injunction.

<p>This was a libel by Alice P. Egbert against the St Paul Fire & Marine Insurance Company to recover upon a tower's liability policy. On settlement of the decree for libelant.</p>

This was a libel by J. Downs against the steamer Alice Blanchard to recover damages for an alleged breach of a contract of employment as cook.

<p>This is a libel by Edgar Van Burén against the steam tug Defiance and the steam lighter Erin in Dayton, for collision.</p>

<p>Collision — Negligent Navigation.</p> <p>The schooner P. weighed anchor to the west of the channel of the Delaware river, and started to turn around, and proceed down stream with the tide, "before a strong wind. The schooner L. was sailing in full view down the east side of the channel, with a space of half a mile in width in a straight line between P. and the line on which L. was sailing. P, made a wide circle in turning, and, though L. bore off further to the eastward, the vessels collided. When the collision was imminent, nothing was done by the navigators of P. to avert it, though, if her main peak had been dropped, the collision would probably have beén averted. Experienced navigators testified that P. should have been turned in the space of less than a quarter of a mile. Beld, that the collision was the result of the bad navigation and negligence of the P., and that she could not recover for injuries sustained.</p>

<p>Collision — Tug- and Tow — Tnegijoknce op thk Tow- — PmasiiMPTroN.</p> <p>Where a tug, having a heavy schooner in tow, safely passed a schooner lying at anchor at a distance of at least 55 feet, and the officers of the tow admitted that none of them saw the anchored schooner until they were “right into her,” it will he presumed that the collision was the result of the negligence of the tow, and the tug will not he liable therefor.</p>

This was a suit in equity by Daniel W. Truax against Hardin W. Estes to reform a written contract, and to recover damages for its breach.

<p>Judgments — Persons Conoutjded — Parties.</p> <p>Whore, in a suit against one as administratrix, her individual rights in the subject of the action were directly involved, and she, residing- beyond the seas, executed a power of attorney to other defendants to represent her individually, and she was represented by counsel, who had previously-represented her personally, and who assumed to represent her individually as well as administratrix, in the case which was prosecuted to the United States supreme court on the theory that she was personally a parly, she cannot claim that she is not individually bound by the decree.</p>

This is a bill in equity iiled In the state chancery court at Knoxville, Tenn., by the Railroad Equipment Company, created under the laws of the state of New Jersey, complainant, against the Southern Railway Company, a corporation created under the laws of Virginia, the East Tennessee, Virginia & Georgia Railway Company, a corporation created under the laws of Tennessee, and Charles .Al. McGhee and E. J. Sanford, citizens of Knox county, Tenn.

<p>Judgment — What Constitutes — Record Entry.</p> <p>A memorandum on the minute book of the judge to the effect that an award of arbitrators in a certain sum is approved and accepted does not constitute a .judgment.</p>

This is an action by F. L. Keeler against the Atchison, Topeka & Santa Fé Railway Company for breach of a contract of employment. A demurrer to the complaint was sustained, and a final judgment was entered in favor of defendant, and plaintiff: brings error.

In Error )o (ho Circuit Court of the United States for the Eastern District of ^Missouri.

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

<p>GUARANTY BY MaRIUKD WOMAN — VALIDITY—CONFLICT OF LAWS.</p> <p>Where a married woman in Connecticut executed and delivered to her husband, there, a guaranty, to enable him to obtain credit from plaintiff, in Illinois, to whom the husband sent it by mail, the contract is to he governed by the Illinois law, and is therefore binding on her, though she was incapacitated from making it by the laws of Connecticut.</p> <p>Lacombe, Circuit Judge, dissenting.</p>

<p>1. Witnesses — Disagreement—Impeachment.</p> <p>While a litigant may not impeach the general character of his own witnesses, yet this rule does not prevent him from showing the verity of any fact which he wishes to establish. When wiinesses called in his behalf disagree as to a particular fact, the testimony of neither is conclusive; and this, 1 hough the party to the suit be one of the witnesses.</p> <p>3. Injury — Master and Servant — Contributory Negligence — Question for Jury.</p> <p>Plaintiff, who was ordered to take charge of defendant’s dynamo department, was injured by the detachment of a defective brake on one of the dynamos. He testified that he was ignorant of that kind of machinery, and had no knowledge of the defect,, while defendant’s witnesses testified that he knew of the defect, and superintended its repair on the day of the injury, and that he was told by the machinist that it had not been properly repaired. Held, that the case was properly submitted to the jury on the issue of defendant’s contributory negligence.</p> <p>S. Same — Respondeat Superior.</p> <p>Where plaintiff, superintendent of defendant’s dynamo department, was injured because of the defective repair of the machinery by other machinists in. defendant’s employ, which repair was neither done by plaintiff nor under his supervision, the rule of respondeat superior applies, and plaintiff is entitled to recover.</p> <p>4. Same — Instructions—Harmless Error.</p> <p>In an action- for injuries received by a superintendent of defendant’s dynamo department, by the detachment of part of the machinery, the court instructed the jury that if it was plaintiff’s duty to attend to keeping the machinery in a safe condition, or if he had knowledge before the injury that it was unsafe or dangerous, “and was at the same time conscious of his ignorance of that kind of machinery, how to operate and repair it,” and yet elected to run it, or to repair it, and take the hazard of injury, he could not recover. Held that, the charge as a whole not being misleading, the clause quoted in that instruction, if erroneous, was harmless.</p>

<p>1. Master and Servant — Dangerous Place to Work — Reciprocal Duties.</p> <p>An employé has a right to presume, when directed to work in a particular place, that reasonable care has been exercised by the employer to see that such place is safe, and is not negligent in relying on such presumption, unless a danger is obvious and should be known to a reasonably prudent employé; and for that reason the degree of care required of the employer is greater than that required of the employé, and the employer may be chargeable with negligence in failing to ascertain a danger, where the employé is not.</p> <p>2. Same — Action by Servant for Injuries — Assumption of Risk.</p> <p>Where the manner of using a machine with which an employé was required to work, and by which he was injured, appeared, in the light of facts disclosed after the injury, on the trial of an action by the employé for damages, to have been obviously dangerous, but the question of its safety had been called to the attention of the employer, who continued the use, and the machine had been so operated for some time without injury to any one, the question of whether the employé, who was a common laborer, had assumed the risk, was one for the jury.</p>

This is an action at law to recover $5,800, the amount of certain coupons of a series of $50,000 of bonds issued in 1882 by Lawrence county, Tenn.,… Held: and more than three-fourths of the votes cast were in favor of the subscription; that the subscription was made, stock was issued to the county, and bonds were issued therefor, payable to the Nashville & Florence Railroad Company, or hearer; that said company sold all of them on the market, and applied the proceeds to the…

<p>Tn Eitoi' to the Circuit Court of the United States for the Eastern District of Tennessee.</p>

Tn Bankruptcy. On exceptions to the allowance of the claim of O’Dwver & Ahern, proving creditors. The Little River Lumber Company is a corporation organized under the law of Arkansas. O’Dwyer & Ahern are merchants and partners doing business at Texarkana, Ark. ■ They were both stockholders of the Little River Lumber Company, and owned a large majority of the stock. In 1897 O’Dwyer was treasurer. In 1898 Ahem became president, and O’Dwyer 'continued as treasurer.

<p>In Bankruptcy. Rule to show cause why an injunction should not issue against L. J. Cohn.</p> <p>On February 22, 1899, Hoffman, Kothchild & Co., Greenebaum, Weil & Michels, and Brown Bros. & Co., creditors of M. Nathan, petitioned this court to have Nathan adjudged a bankrupt under the bankrupt law of 1898. On February 27, 1899, they filed a petition, in said proceedings, against L. J. Cohn, in which, among other things, it was alleged that; “On or about the 21st day of February, 1S99, your petitioners, being then and there qualified creditors of said M. Nathan, filed herein a petition praying that said M. Nathan be adjudged a bankrupt, within the true intent and meaning of the acts of congress relating to bankruptcy, upon the ground that the said M. Nathan transferred, while insolvent, all of his property to two of his creditors, with intent to prefer such creditors over the other creditors of said 11. Nathan. * * * That said M. Nathan is insolvent, and that, within four months next preceding the date of said petition, the said M. Nathan committed an act of bankruptcy, in that he did heretofore, to wit, on the 14th day of February, A. D. 1899, and on the 15th day of February, A. D. 1899, at the city of Keno, county of Washoe, state of Nevada, and within said district,: being insolvent, transfer all of his property to B. J. Cohn and Waslioe County Bank, then and there creditors of said M. Nathan, with intent to prefer such creditors over the other creditors of said M. Nathan. * * * That said transfer to said B. J. Colm * * * was made with a view to prevent said M. Nathan’s property from coming to his trustee in bankruptcy, and to prevent said property from being distributed ratably among his creditors, and to defeat the object of, and to hinder, impede, and delay the operation of, and to evade the provisions of, the acts of congress relating to bankruptcy. That said transfer to said If. ,1. Colm was a chattel mortgage, wherein and whereby it was intended by said M. Nathan to secure said B. J. Colm for a debt in said chattel mortgage alleged to he the sum of $4,807; ” and prayed for an order of this court enjoining and restraining said If. J. Cohn from disposing of or selling any of the said personal property until the further order of this court. Upon the presentation of this petition, the court made ari order upon said B. J. Cohn to appear and show cause, on March 0, 1899, if any he could, why the prayer of said petition should not be granted, and in the meantime issued a restraining order. On March 6th, in pursuance of said order, the said B. J. Cohn appeared and filed an answer to the petition denying that the transfer from Nathan to himself “was made with a view to prevent said Nathan’s property from coming or going to his trustee in bankruptcy, or to prevent said property from being distributed ratably,” or “that the said chattel mortgage was given by said M. Nathan or received by the said L. J. Colm through collusion or conspiracy between said M. Nathan aud said B. J. Colm, or with (lie intent or purpose to deprive the petitioning creditors, or other creditors, of said M. Nathan of their just or any rights in the premises, under the provisions of the acts of congress relating to bankruptcy.” And further alleged: “That on the ,‘ilst day of October, 1896, the said B. J. Cohn and the said M. Nathan had a settlement of tlieir accounts, and there was found due aud owing, from the said Nathan to the said Colm the sum of three thousand six hundred and fifty dollars, aud on the last-mentioned date the said M. Nathan made, executed, and delivered to the said L. J. Colm his promissory note, in writing, for the said sum of three thousand six hundred and fifty dollars, with interest thereon at the rate of eight per cent, per annum from date thereof until paid. That no part of the said principal sum, nor the interest thereon, had been paid up to the 14th day of February, A. D. 1899. That on the ilth day of Febiuary, A. If. 1899, the said M. Nathan and the said B. J. Colm had a settlement of all of their said accounts, and including the said note of three thousand six hundred and fifty dollars, and the interest thereon, and the balance due from the said Nathan to the said Cohn for services as a clerk in Ills said store, there was found due and owing from said Nathan to the said Cohn the sum of four thousand eight hundred and seven dollars. That on the said 14th day of February, 1899, the said M. Nathan made, executed, and delivered to the said B. ,T. Colm his promissory note for the sum of four thousand eight hundred and seven dollars, with interest thereon at the rate of eight, per cent, per annum from date until paid. That on the said 14th day of February, A. D. 1899, Hie said M. Nathan, to secure the payment of the said promissory note and the interest thereon, made, executed, and acknowledged and delivered to the said B. .1. Cohn a chattel mortgage on the stock of goods and book accounts described in said petition. That on the 15th day of February, A. D. 1899, under and by virtue of the said chattel mortgage, the said B. .1. Colm took possession of the said goods, wares, and merchandise and honk accounts, and between the 15th day of February and 23d day of February, A. If. 1899, both days inclusive, and before the restraining order, or any papers issued out of this honorable court, were served upon him, sold and delivered to divers persons the whole of said goods, wares, and merchandise and book accounts described in said petition, and set forth and described in the chattel mortgage from M. Nathan to the said B. J. Colm.” At the hearing the note and mortgage were introduced in evidence. The note was made payable “one day after date.” The mortgage contained the clause “that if the mortgagor shall fail to make any payment, as in the said promissory note provided, then the mortgagee may take possession of the said property, using ail necessary force so to do, and may immediately proceed to sell the same at private or public sale, and in the manner provided by law, and from the proceeds pay the whole amount in said note specified.” The testimony submitted at the hearing, among other things, shows that Cohn is the brotiier-in-Jaw of Nathan, and had been a clerk in Nathan’s store for several years, and lived at his house. That one day after the execution of the note and mortgage Cohn took possession of all the personal property mentioned therein, and disposed of the entire property, between the 15th and 23d of February. No notice of the sale was given. The greater portion of the goods (all but $96.25) was sold on February 23d, which was one day after the notice of the filing of the creditors’ petition to have Nathan adjudged a bankrupt was served upon Nathan, by leaving the same with his wife. Cohn denied having knowledge of the papers that were served upon Nathan, but admitted knowledge of the service of some papers, and that “he surmised what the papers were.” The sale of the goods amounted, in the aggregate, to $1,444.25. Other facts are stated in the opinion.</p>

<p>1. Bankruptcy — Trustee’s Petition to Avoid Preferences — Multifarious-nbss.</p> <p>A petition, toy a trustee in bankruptcy, against the bankrupt and one of bis creditors, to procure the setting aside of a mortgage on land, a chattel mortgage, and a lease of real and personal property, all made toy the bankrupt at different times to the defendant creditor, and alleged to be fraudulent as to other creditors, and to have been given and ac-copted with tlie intent to prefer the creditor receiving tlie same, is not demurrable for multifa-riousness.</p> <p>3. Same — .Effect of Adjudication.</p> <p>An adjudication in bankruptcy operates in rem, and places the bankrupt’s entire estate, including property previously transferred in fraud of creditors, in the custody of the law, and under tlie jurisdiction of the court of bankruptcy, in which court alone all persons claiming rights in the estate, or seeking to participate in it, must assert their claims.</p> <p>3. Same — Jurisdiction of Bankruptcy Court.</p> <p>A mortgage creditor of the bankrupt, though he does not prove his claim, is a party to the proceedings in bankruptcy, and subject to the jurisdiction of the court of bankruptcy; and the trustee, seeking to set aside the mortgage as a fraudulent preference, may proceed by petition or bill in the court of bankruptcy, and will not be compelled to resort to die state court, or federal circuit court, which otherwise would have jurisdiction of such an action against an adverse claimant.</p> <p>4. Same.</p> <p>Notwithstanding the provision of section 23b of the bankruptcy act (30 Slat. r>52), that “suits by tlie trustee shall only be brought or prosecuted in the courts in which the bankrupt might have brought or prosecuted them if proceedings in bankruptcy had not been instituted,” the court of bankruptcy has jurisdiction of a petition by the trustee against tlie bankrupt and a creditor to set aside alleged fraudulent preferences, for such a suit is not one which the bankrupt himself could have instituted or maintained.</p> <p>5. Same--Construction of Statute.</p> <p>On questions of tlie coins!ruction of tlie bankruptcy act, opinions expressed by individual members of congress in the debates on the passage of tlie act, as to tlie object and effect of Its particular clauses, are entitled, to little or no weight.</p>

<p>1. DEPOSmOSS — MANNER OF TAKING IN FEDERAL COURTS — STATE PRACTICE not Obligatory.</p> <p>Kev. St. § 721, making- the laws of the several states rules of decision in trials at common law, does not require the federal courts to conform to state laws as to the mere manner of executing commissions to take testimony, which may he regulated hy (he court, either by general rules, or by special directions accompanying the commissions1</p> <p>2. Same.</p> <p>Kev. St. § 911, conforming the federal to the state practice “in like causes,” does not require a federal court to follow a state statute as to the manner of taking depositions in,a proceeding in rem hy the United States for the forfeiture of merchandise under the customs revenue laws, (1) because there are no “like causes” in the state courts; and (2) because the provision does not apply to the evidence of witnesses, either as to ils character or competency, or the mode of talcing it.</p> <p>8. Same.</p> <p>The phrase, “according to common usage,” in Kev. St. § 86(>, authorizing courts of the united Stales to “grant a dedimus potestatem to take depositions according to common usage,” means according to the practice existo ing in 1871, when the section was enacted, and does not import that the federal courts must adopt .all subsequent new regulations that may he enacted hy stale legislatures or adopted by the state practice, though such courts are permitted b> Act March 9, 1892 (2 Supp. Kev. St. p. 4), to follow the mode prescribed hy the state laws, “in addition” to the former' method.</p> <p>4. Same — Informality of Certificate,</p> <p>The fact that a commissioner to take depositions in a foreign country fails to ceriify, as directed in the commission, that “the examination was subscribed hy the sworn interpreter,” is immaterial, and not ground for suppressing the deposition, where the certificate shows that the interpreter was sworn, and the deposition is in fact subscribed by him.</p> <p>5. Same — Failure to Attach Exhibits.</p> <p>Where exhibits are not identified and attached to a deposition n.s required hy the instructions, it is proper to order the deposition returned for that purpose; and the right of the adverse party to further examine as to the identity of such exhibits is waived, if no request therefor is made.</p> <p>6. Same — Manner of Transmission.</p> <p>It is immaterial that foreign depositions, directed to he addressed to the clerk and returned by mail, were forwarded through the embassy hag by mail to Washington, and thence to the clerk, to whom they were properly addressed, instead of being forwarded direct.</p>

<p>1. Trade-Marks — Patented Articles — Kxpiration op Patent.</p> <p>When a patented article becomes known by a particular name, though an arbitrary one invented by the patentee, such as “Oastoria.” such name becomes public property on the expiration o£ the patent: and no trademark right exists therein, or can be acquired by subsequent use. Centaur Co. v. Heinsfurter, 28 O. 0. A. 381, 84 Fed. 955, followed.</p> <p>2. Same — Preliminary Injunction — Inequitable Conduct.</p> <p>The owner of a patent for a medicine enjoyed the protection of the patent during its term, and asserted in litigation that it claimed under the patent. After expiration of the patent,, in order to claim a trade-mark ill the name by which the patented medicine was known, it asserted for the iirst time, in a bill for Injunction, that in the preparation of the medicine it varied from the formula of the patent, lldd, that this conduct was not such as 10 commend iiself to a court of equity, on a motion for preliminary injunction against alleged unfair competition.</p> <p>3. Same — Unfair Competition — Imitation of Labels.</p> <p>When tiie differences between the labels are so marked that it is hardly conceivable that even the casual observer who had been in the habit of purchasing complainant's goods, or who had acquired any knowledge of or preference for it, would mistake The one for the other, an injunction will be denied, especially when there is no proof that any purchaser was actually so misled.t 1</p> <p>4 Same.</p> <p>When complainant has no trade-mark right in the name under which an article is sold, and There is no misleading imitation of his labels or other indicia, he lias no standing to complain that defendant is palming off a spurious article upon the public, or is using “fake” testimonials in his advertising.</p> <p>5. Same.</p> <p>Plaintiff long sold medicine known as “Oastoria,” but without having any Ira do-mark right in that name. Afterwards defendant: began selling a medicine under the same name, with labels so different as to repel the charge of fraudulent or misleading imitation, but at the bottom thereof he placed conspicuously the words “New Label.” Held, that ho should bo enjoined >om so doing, as this inighi lead customary purchasers of complainant's article to think that complainant had adopted a new label.</p>

This is a bill in equity to enjoin the infringement of two patents issued to George .F. Green, assignor to Oliver S. Kelly, the complainant herein. The patents are numbered 465,407 and 465,432. The application for the first patent was filed September 15, 1879, and the second patent May 15, 1886. The first patent was issued December 15, 1891, to George F. Green, assignor to Oliver S. Kelly.

<p>Patents — License to Sell and Manufacture--Construction.</p> <p>The complainant, toeing the owner of letters patent of the United States No. 264,586, for an improvement in soda-water apparatus, executed a license to a lirm, conferring upon it, among other filings, the exclusive right to make, use and sell rhe patented invention as applied to new' soda-w'ater apparatus “of their own manufacture only,” and providing that the license “shall toe binding on the parties hereto, their heirs, successors, administrators or assigns, and shall be valid until the 19th day of September, 1899, or unless sooner terminated toy the written consent of both parties hereto.” Held, on consideration of all the provisions in the license, that in imposing the restriction “of their own manufacture only” the complainant intended that the right to make, use and sell the patented invention as applied to new apparatus should only he confined to such person or persons as should hold the license from time to time during its term and manufacture such apparatus, and not exclusively to the firm, and that therefore the license was assignable.</p> <p>(Syllabus by the Court.)</p>

The following is the opinion of the court below (Severens, District Judge): In this case the claims in the complainant's patents which have been made the basis of tbe suit are very numerous, and have required and received prolonged attention.

This was a suit in equity by the Hart & Hegeman Manufacturing Company against the Anchor Electric Company and its officers for alleged infringement of a patent for an electric snap switch. The circuit court held that the patent must be construed narrowly, and consequently was not infringed. 82 Fed. 911. The complainant thereupon appealed to this court.

This was a suit in equity by Hugo Loewenbach against the Hake-Stirn Company and others for alleged infringement of a patent,for improvement in receipt and record books. The circuit court dismissed the bill, and the complainant appealed.

<p>1. Shipping — Damage to Cargo — Seaworthiness.</p> <p>A stipulation in a contract of affreightment exempting the vessel from liability for loss and damage to the cargo occasioned by any latent defects in the hull of the vessel does not extend to such as were In existence at the commencement of the voyage; nor does the provision of section 3 of the Harter act, by which, if the owner lias exercised due diligence to make the vessel in all respects seaworthy, neither he nor the vessel is liable for losses arising from the dangers of the sea, relieve the owner or vessel from the consequences of unsea worthiness at the inception of the voyage, though due diligence he shown.</p> <p>2. Same.</p> <p>A vessel is not required to be impregnable to the assaults of the elements, to he seaworthy, hut the test is whether or not she is reasonably fit for Hie contemplated voyage. The fact that a single rivet, among many thousands used in the construction of her hull, was not as strong as the average, and parted under the stress of extraordinarily stormy weather, does not raise a presumption of unseaworthiness, rendering the owner liable for a resulting damage to the cargo.</p> <p>3. Sami; — Presumption oe Seaworthiness.</p> <p>A steel steamship was of first-class construction and rating. She was new, and had been thoroughly surveyed by the Lloyds within a year preceding the voyage In question. She had thereafter made a number of voyages without injury, and two weeks after she entered upon that ' voyage she was uninjured. After that, the testimony of the crew showed, she encountered the worst weather they ever experienced, and she received much injury. During such time one of the rivets fastening the steel plates to the frame of the hull broke, and sea water entered through the space, and injured the cargo. It was shown that the holes through the piale and the frame were not exactly true, and that. In driving the rivet when hot, it had received a cam which perhaps weakened it somewhat, but uot to any substantial extent. Meld, that such facts were insufficient to raise a presumption of unseawortliiness at the inception of the voyage.</p> <p>4. Same — Management of Snip — Neglect to Open Sluices.</p> <p>The opening of a sluice gate designed to empty the bilges was neglected for 20 days, during heavy weather. The accumulating water overflowed the bilges, and damaged the cargo properly stowed in the hold. Held, that the neglect to open the sluices, if a fault, was one pertaining to the “management of the ship,” within section 3 of the Harter act, and that the ship and owners were exempted thereby from liability for the resulting damage.</p>

<p>This was a libel by Frederic Marx and others against the steamship Frey for damage to cargo.</p>

<p>1. Shipping — Damage to Cargo — Seaworthiness.</p> <p>The beams of the main hatch of a vessel had been cracked some time previous to a voyage, and on the discharge of her cargo, at the end of the voyage, were found to be in worse condition and her deck to have sunk in consequence. Held, that such fact, where the vessel encountered a hurricane during the voyage, which would account for' her condition at its end, did not overcome the presumption of her seaworthiness when she sailed, arising from the fact that the beams had been repaired and strengthened, and that her classification had been kept up thereafter on repeated surveys, and had not expired.</p> <p>2. Same — Management of Ship — Kepairs in Port of Distress.</p> <p>When a ship is obliged, during a voyage, to -put into a foreign port for repairs, owing to injuries received in a storm, an error of judgment of the master, as to the extent of repairs necessary, where he exercises diligence and care, and acts in good faith, pertains to the management of the ship, within section 3 of the Harter act (2 Supp. Eev. St. p. 81), and does not render.the owners liable for an injury to the cargo which might have been prevented had more extensive repairs been made.</p>

<p>Seamer — Penalty for Detaining Clothing — Proceeding to Enforce,</p> <p>A criminal information will not lie for the violation of 28 Stat. 667, c. 97, which exempts the clothing of a seaman from attachment, and provides that any person who shall detain such clothing when demanded by the owner shall be liable to a penalty, as a penalty imposed by an act of congress is a debt, to be recovered by a civil action, and for which, in a state where imprisonment for debt has been abolished, imprisonment by a federal court is prohibited by Rev. St. § 990.</p>

This was a libel by Benjamin F. Gray and others against the steamship President to recover damages for breach of contract to carry libelants as passengers, and for alleged mistreatment on the voyage.

<p>1. Collision — Steamer Aground — Carrying Sailing Lights.</p> <p>Under the navigation rules on tlie lakes (Act Feb. 8, 1895 [28 Stat. 645] Rules 1, S), a steamer should not carry sailing lights when aground, and is in fault for a collision resulting from her misleading an approaching vessel by such lights.</p> <p>2. Same — Signals.</p> <p>A passing steamer, having the right of way, is not in fault for a collision because she failed to give the signal to indicate which side she expected to take, when the other vessel was aground, and her movements could not have been influenced by such signal.1</p> <p>8. Same — Error of Judgment — Act in Extremis.</p> <p>One of two passing vessels cannot be held in fault for a collision merely because of an error on the part of her master, where he acted in an emergency, and upon a reasonable judgment, in view of the circumstances as they were presented to him at the time.</p>

<p>1. COLLISION — Tug axd Tow — Lookout.</p> <p>A tus cannot be exonerated from fault for a collision in the night, where she failed to keep a lookout at the how of the float she was towing, which projected about 100 feet beyond the tug, and it is not shown that the maintenance of such lookout would not have prevented the collision,</p> <p>a. Samk —Lights.</p> <p>A tug, in charge of a tow consisting of a tier of canal boats; which left the low adrift in the night for upwards of an hour without proper lights' at the bow and stern of the outside boats of the tier, as required by the inspectors’ rules (rule 11), promulgated under 80 Slat. 102, is in fault for a collision occurring during snch time, by which the tow was injured, both on the ground of the abandonment of the tow, and of towing without proper lights on the tow. ‘</p> <p>3. Samk — Liability of Tows.</p> <p>The requirement of inspectors’ rule 11 (30 Stat. 102), that “barges and canal boats when towed at a hawser, two or more abreast in one tier,, shall carry a white light on the bow and a white light on the stern of each, of the outside boats,” imposes a duty on the tow, as well as on the tug, to see that sucli lights are maintained, and not only on the outside boats, but on each one in the tier, since the requirement is for the benefit of all; and for a collision resulting when such requirement is not being observed each boat injured should be held in fault.</p>

<p>This was a libel by Edward- E. Hatchings and others against the steamship Cheruslia to recover damages for collision.</p>

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

This is an application by the county of Travis, Tex., for a writ of certiorari to bring up for review from the United States circuit court for the Western district of Texas the cause of Travis county against the King Iron Bridge & Manufacturing Company, in which suit, on July 13, 1893, a final judgment was rendered by that court against the county of Travis, plaintiff in the cause.

<p>This was a suit brought by Mary Quinlan against the city of blew Orleans to recover on certain certificates of indebtedness, executed and issued by the city of New Orleans, and made payable to bearer. The city of New Orleans excepted to the jurisdiction of the court, on the ground that “plainHit’s petition contains no averment that this suit could have been maintained by the assignors of the claims or certificates sued upon by Mary Quinlan, and which form the basis of this action.” On the argument of the exception, the counsel for the city of New Orleans contended that the plaintiff should have alleged that the assignors of the certificates could have sued in the United States circuit court; and the further contention was made, on behalf of the city of New Orleans, that, even if, under section 1 of the act of March 3, 1887, a suit may be brought in the United States circuit court on a chose in aid ion payable to bearer, and made by a corporation, without alleging that the assignor could have brought such suit, this suit should be dismissed for want of jurisdiction, because the statute just mentioned refers to nonresident, and not to resident, corporations. City of New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905, was relied upon by the counsel for the city of New Orleans as sustaining his contentions. The exception was overruled by the court.</p>

<p>1. Equity .Jurisdiction of Federal Courts — Source—State Restrictions.</p> <p>Subject to the Constitutional and statutory limitations imposed on the chancery jurisdiction of the courts of the United States, and in the absence of a special act of congress, the jurisprudence of the high court of chancery in England furnishes the chancery law which is exercised by the federal courts, and this law is administered uniformly throughout the several states of the Union, free from restraint of state legislation.</p> <p>2. Same — Adequate Remedy at Law.</p> <p>The adequate remedy at law, which is the test of equitable jurisdiction in the courts of the United States (Judiciary Act 1789, § 16), is that which existed when the judiciary act was adopted, unless subsequently changed by act of congress.</p> <p>3. Same — Fraud—Waiver—Effect.</p> <p>When a purchaser of real estate, either by election or laches, waives fraud of the vendor as a ground of rescission, he thereby loses also the right to urge the fraud as a ground of any other equitable relief.</p> <p>4. Same — -Retention of Jurisdiction — Rescission—-Compensation.</p> <p>Under the seventh amendment to the constitution, which declares that, in suits at common law, when the value in controversy exceeds $20, the right of trial by jury shall be preserved, and section 16 of the judiciary act of 1789 (Rev. St. § 723), which provides that suits in equity shall not be sustained in the courts of the United States in any ease where a plain, adequate, and complete remedy may he had at law, where a contract of sale of real estate has become executed by a deed of conveyance with the usual covenants, and the purchaser files a bill in a circuit court of the United States to rescind on the ground of fraudulent misrepresentations of the vendor concerning his tillo, and it appears on the hearing that the purchaser has lost his right to rescind by election or laches, compensation for the price of portions of the land to which the vendor’s title has failed cannot be decreed as alternative or secondary relief, on the ground that when equity once acquires jurisdiction it will award complete relief.</p> <p>6. Same — Intricate Issues and Complicated Facts.</p> <p>Jsor will such relief be granted on the ground that intricate Issues, with complicated facts, in suits at law, will be thereby avoided, since the purchaser may institute one suit against the vendor, or his personal representative if he be deceased, and recover on the covenants in the deed for all the land to which there is a failure of title.</p> <p>6. Same — Vendor and Purchaser — Failure of Title.</p> <p>Where a purchaser of land has taken a deed with covenant of warranty, and has been let into possession, he cannot, before eviction, in the absence of insolvency of the vendor or fraud on his part, obtain a rescission in equity or resist payment of the price, merely because of defect of title in the vendor.</p>

<p>William R Dinsmore, C. Gray Dinsmore, and William 1!. Dinsmore, G. Gray Dinsmore and Dumont Clarke, as executors of and trustees under tbe will of William E. Dinsmore, deceased, stockholders of the Southern Express Company, filed their bill, with the recitation of facts following:</p> <p>The Southern Express Company is a Georgia corporation. The plaintiffs are its shareholders, to tiie amount of ¡¡¡¡30,000. They are citizens of New York. The railroad commission of Georgia, by order passed the 2d of August, 1898, directed that the Southern Express Company pay the war stamp tax on its manifests and bills of lading required by the act of congress of the 13th day of June, 1898 (30 Stat. 418). By the same order the Southern Express Company was directed to conform therewith without making- any demand on shipper's for the payment of the tax, and to notify the commission of its compliance in five days from that date, and in default thereof the penalties of the Georgia statute were threatened. The complainants desired that the express company should refuse to pay the tax, and have the question of its liability settled by the courts, and formally requested the company to take this action. The company, however, declined to comply with this request; giving as the reason therefor that it was advised not to subject itself to the risk of incurring the severe penalties imposed by the state legislation, and which could be enforced by the commission as threatened, and for the further reason that the charter and franchises of the company might be impaired by state action. The bill is filed against the Southern Express Company, the railroad commission of Georgia and its members, and the attorney general of 'the state. The-prayers are that the express company be enjoined from paying the tax, and that the railroad commission and the attorney general of the state be enjoined from proceeding to enforce the penalties of the state statute. The attorney general, representing himself and the railroad commission, demurred to the bill, and the cause was heard upon bill and demurrer.</p> <p>Other facts essential to an understanding of the case may be gathered from the opinion of the court.</p>

<p>Equity Practice — Taking Testimony — Power of Court to Limit.</p> <p>In the taking of proofs in equity in a circuit court, a witness cannot be excused from answering a question because deemed immaterial by the court, as the party is entitled to have the testimony in the record for use on appeal.</p>

This is an appeal from a decree of the circuit court of the Northern district of Ohio, Western division, perpetually enjoining the Lake Erie & Western Railroad Company from constructing a solid embankment of earth, in place of the trestle upon which its track is now laid, across an island in the San-dusky river, within the corporate limits of the city of Fremont, Ohio.

The facts of this case are voluminous, and somewhat involved, but, for an understanding of the grounds upon which the opinion proceeds, may be summarized as follows: The East St. Louis Connecting Railway was organized under the general railroad law of Illinois, in the year 1877, to construct a railroad from Venice, in Madison county, to- the track of the Illinois & St. Louis Railroad & Coal Company,- in St. Clair county, a distance of about four miles, with power to connect…

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

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

<p>1. Creditors’ Suit — Deceased Debtor, — Necessity of Administration.</p> <p>Laws N. Y. 1891, c. 740, authorizing a creditor of a deceased insolvent debtor to bring an equitable action in the nature of a creditors’ bill for the benefit of himself and other creditors to recover assets.fraudulently convoyed by such debtor, without the previous recovery of a judgment and issuance of an execution, does not depend on the existence of a legal representative of the deceased, or of his refusal to act, but may be brought independent of such representative.</p> <p>2. Fraudulent Conveyances — Action to Vacate — Subsequent Creditors.</p> <p>Where a voluntary conveyance is made and received with an actual intent to defraud the grantor’s existing creditors, and the grantee participated in the fraud, it is immaterial whether creditors attacking it are prior or subsequent creditors.</p> <p>8. Creditors’ Bill — Accountins — Credit Claims — Master’s Decree — Allowance.</p> <p>Where a fraudulent grantee of an insolvent’s assets fails to prove that a credit claim was actually applied to a judgment against his grantor, and there was evidence that the grantee had converted it, a master’s report charging him with such sum in an accounting on a creditors’ hill against him was correct.</p>

<p>Parties — Misjoinder — Right op Bondholder to Join with Mortgage Trustee.</p> <p>As the holder of Bonds of a corporation, secured by a trust deed on its propel ty, is represented, as to such property, by the trustees, and cannot maintain a suit for its protection in his own name, except on a showing that the trustees refuse to bring it, he cannot join with the trustees in such a suit</p>

<p>1. Trust Deeds — Construction—Reservations.</p> <p>A trust deed executed by a land company reserved “such lands as may be occupied by, and used in connection with, such hotel as may be built thereon.” At that time the company contemplated the erection of an hotel in addition to others already built. One of the latter was after-wards burned, and another was erected in its stead. The contemplated hotel was never built. Held, that the ground occupied by the hotel erected to replace the one burned was not within the reservation.</p> <p>2. Same — Covenant to Rebuild in Case of Fire.</p> <p>A trust deed securing bonds required the g'rantor to keep the property fully insured for the benefit of the trust, and to preserve the buildings, with the rigid, however, of changing them, provided that the aggregate value of the improvements should not be diminished. Held, that the provision was not a covenant of the grantor to rebuild in ease of fire.</p> <p>8. Receivers — Contracts of Debtor — Performance—Mechanics’ Liens.</p> <p>Where a receiver is appointed with the usual injunction order pending-performance of a contract of the debtor for the erection of a building on his land, the contractor cannot finish the uncompleted part, and obtain a mechanic’s lien therefor, in the absence of order of court.</p> <p>4. Same — Notice of Appointment.</p> <p>All persons having contract vial relations with a debtor are bound by an order appointing a receiver of his property, whether or not they have notice thereof.</p> <p>6. Mechanics’ Limns — Claim— Sufficiency of Account.</p> <p>Codo Ya. 1887, § 2476, provides that, to perfect a lion, a contractor must file “an account showing the amount and character of the work done or materials furnished, the prices charged therefor, the payments made, if any. and the balance due.” Held, that an account for $12,000, for “labor performed and materials furnished” between certain dates, in the construction of a certain building, “as per contract,” was insufficient to create a lien, where the erection of the building was contracted for as an entirety, and the contract price was $17,945.</p>

<p>1. Reformation op Instruments — Cüanging Date op Insurance Poutcy.</p> <p>A policy of life insurance was dated as of the day when the application therefor was first made, and on which a part of the written application was filled out, and forwarded to the company. Another part of the application was filled out, signed, and dated on a subsequent day, and the policy did not take effect by delivery and the payment of the first premium until some time thereafter. By the terms of the policy, the times for the payment of subsequent premiums were fixed with reference to the date it bore. There was no evidence of any special agreement as to when the policy should be dated, and it was accepted and retained without objection by the insured, who also received notice of the date on which the second premium payment would be due. Held, that such facts did not establish either fraud or mistake which would authorize a court of equity, after the death of the insured, to reform the policy by changing its date' to that on which the application was completed, or on which the policy was delivered.</p> <p>8. Life Insurance — Forfeiture for Nonpayment of Premium — New York Statute.</p> <p>The requirements of the New York statute, providing that no insuranca policy shall be declared forfeited or lapsed for nonpayment of a premium when due, unless a notice, as therein prescribed, shall have been duly addressed and mailed to the person whose life is insured, are fully complied with by the proper addressing and mailing of such notice; and the fact that it is not received by the insured is immaterial.</p> <p>3. Same — Waiver op Forfeiture op Policy.</p> <p>Where a premium on a policy of life insurance was paid by a friend of the insured, to a local bank holding the receipt therefor for delivery, on the day after it was due, and the day on which the insured died, a delay of three months before tendering the payment back will not estop the company from insisting on the forfeiture of the policy by reason of the default, where it appears that such delay was no longer than necessary to give it a reasonable time to investigate after being informed of the circumstances under which the payment was received.</p> <p>4. Same — Construction op Policy — Term op Insurance.</p> <p>A life policy insuring the holder during the term of one year in consideration of a stipulated annual premium, but which also provides that such premium may be paid in quarterly installments, and that the insurance' shall terminate on a failure to promptly pay any such installment, is a contract which binds neither party beyond the quarter for which payment has been made, except at the option of the insured; nor is such construction changed by a further provision that, in case of the death of the insured within the year, the installments of the annual premium remaining at the time unpaid shall be deducted from the amount of the policy.</p>

This was a suit in equity by tlxe Gorham Manufacturing Company against the Emery-Bird-Thayer Dry-Goods Company and others for unlawful competition in trade.

<p>1. Appeal — Final Decree — Decrees Ordering and Confirming Sales of Property.</p> <p>A decree which orders a judicial sale of specific property, under which the title may pass beyond the control of the court, is final, and it cannot be reviewed, unless it is challenged by a direct appeal from it, although it contains a provision referring'the case to a master to state the account between the parties preparatory to the application of the proceeds and the adjudication of the costs; and an order which absolutely confirms such sale is equally final, and reviewable only by a direct appeal from it.</p> <p>I. Same.</p> <p>Complainant, who was the owner of the equity of redemption in property which had been sold under deeds of trust, filed a bill alleging the irregularity of such sales, and praying for a resale, that the purchaser be held a mortgagee in possession, that an account be taken of the amount due on the mortgages, and that the surplus proceeds be paid to complainant. He did not offer to redeem, nor question the validity of the mortgage debt. . A decree was entered ordering a resale, and referring the case to a master to state an account between the parlies, conditioned on the filing of a bond by complainant for the payment of the costs and expenses in. case sufficient was not realized on the sale. Complainant filed the bond, the property was resold, and an orden made confirming the sale. Subsequently the master filed his report, which was confirmed, and from stieh order of confirmation complainant appealed. Jlehl that, as the main object of the bill was to procure a resale of the property, the decree ordering the sale, and the order confirming the same, were final, and not interlocutory, and neither could be reviewed on (lie appeal from the subsequent order, which was taken more than six months after the sale was confirmed.</p> <p>3. Equity Practice — Suit to Obtain Resane under, Mortgage — Requiring Rond for Costs.</p> <p>Where the owner of the equity of redemption in property which has been sold under a mortgage files a bill to obtain a resale, without offering to redeem, but merely in the hope that a surplus will be realized from such sale, it is within the power of the court, on ordering- such resale, to require the complainant, as a condition, to file a bond for the payment of the costs and expenses of such proceeding in case a sufficient surplus is not realized from the sale. '</p> <p>4. Aw'Kai, — Kstorfen.</p> <p>One who accepts the benefits of a decree or judgment is thereby estopped from reviewing it or from escaping from its burdens.</p>

<p>1. Equitable Asshwmkniv — Priority.</p> <p>Alter the recovery of a judgment by a. debtor he. executed ail irrevocable power of attorney, authorizing tlia grantee to collect the judgment and apply tlie proceeds in payment of the grantor’s indebtedness to plaintiff blink, in pursuance of a previous oral agreement which he had made with the bank’s officers. Prior to the execution of the power, and pending (lie suit, he, being also indebted to defendant, wrote numerous letters to him, in which he expressed his willingness to transfer the claim on which judgment was recovered to him, but no transfer was ever made, and defendant thereafter sued the debtor, and attached the claim in suit, making no claim of assignment. Held, that the letters, in the absence of evidence that defendant assented and acted on them, did not constitute an equitable as-ignment of the claim, and dial plaintiff was entitled to the fund.</p> <p>2. Same — Agreement between Attorneys.</p> <p>An agreement between attorneys for a debtor prosecuting a suit in hit? favor and the attorney for the debtor’s creditor, that any recovery should be for the creditor’s benefit, docs not constitute an assignment of the recovery to such creditor as against a prior assignee of the recovery from the debtor, who had no knowledge thereof, and was not a party to the agreement.</p> <p>8. Same — Effect.</p> <p>An irrevocable power of attorney authorizing the grantee to collect a judgment, and apply its proceeds to the payment of the debt of the holder, and stipulating that it shall in no wise affect the conduct of the suit by the grantor’s attorneys, vests an interest ill the creditor in the funds ultimately to be recovered from the judgment, which is not impaired by the vacation thereof ill a subsequent suit, but which at once attaches to another judgment in the debtor's favor subsequently recovered on such claim.</p>

<p>1. Corporations — Insolvency—Fraudulent Conveyance.</p> <p>Where a corporation was a going concern at the time it executed a conveyance to secure certain creditors, evidence that at that timo it had not sufficient cash to meet its matured obligations is not sufficient to show that it was insolvent, so as to render the conveyance fraudulent as to creditors.</p> <p>2. Same — Directors—Trustees for Creditors.</p> <p>Directors of an insolvent corporation are trustees for its general creditors, and hence.a .mortgage by a corporation to directors by which a preference would be created in their favor over general creditors is invalid.</p> <p>3. Same — Mortgage to Director — Receiver’s Sale — Effect.</p> <p>Where a receiver of an insolvent corporation took no steps to have a mortgage of its assets to a director declared void as an illegal preference, but sold such assets subject thereto, the lien of the mortgage is not de-vested by the sale.</p> <p>4. Same — Purchaser’s Right to Vacate.</p> <p>Where, by a receiver’s sale of a corporation’s assets subject to a mortgage in favor of a director, general creditors of the corporation were deprived of their right to receive any part of the fund which would follow the invalidating of such mortgage as a preferential conveyance in fraud of creditors, the purchaser at a sale who was also an officer of the corporation has no standing in equity to maintain a suit to set it aside.</p> <p>5. Same — Judgment Creditors — Surkogatton.</p> <p>Where judgment creditors of a corporation permit a receiver’s sale of its assets subject to a mortgage to a director, creating fraudulent preferences, to be confirmed without objection, they have no rights, as against the mortgagee, to which the purchaser at the sale could be subrogated under an assignment of their claims.</p>

This was a suit in equity by tbe Columbia Avenue Saving-Fund, Safe-Deposit, Title & Trust Company of Philadelphia against the prison commission of Georgia, the city of Milledgeville, and others, for an injunction against a threatened public nuisance.

<p>1. Charities — Favorable Construction of Charitable Trusts.</p> <p>Trusts for public charitable purposes are favored in equity, and will be upheld where, under the same circumstances, private trusts would fail.</p> <p>2. Same — Validity op Trust — Rule against Perpetuities.</p> <p>A provision of a will creating a trust for public charities, which directed the trustees to invest the fund, and permit the income to accumulate for a term of 10 years, or more, in their discretion, is not void ■as in violation of the rule against perpetuities, where the entire fund is an absolute and unconditional gift to charity, and there is no gift meanwhile to or for the benefit of a private person, as any unreasonable exercise of the discretion given the trustees would be corrected by the courts.</p> <p>8. Same — Definiteness as to Purpose and Beneficiaries.</p> <p>A bequest in trust for the establishment of a public library in a town and a Roman Catholic protectory or asylum for boys in the diocese, both being charities of a well-known and general character, is not void for indefiniteness, either as to the charities or the beneficiaries, because the making- of the rules by which the charities are to be governed, and for the selection of the persons to be benefited, is left to the discretion of the trustees.</p>

<p>Appeal from tbe Circuit Court of the United States for the Western District of Missouri.</p>

This is a writ of error to a judgment rendered by the circuit court in favor of the plaintiff, administrator of J. W. Lebow, deceased, against the Atlanta, Knoxville & Northern Railway Company. The declaration was filed in the circuit court of Knox county, Tenn., November 15, 1897.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by the Continental Construction Company against the city of Altoona for damages for breach of a contract between plaintiff and the city, by its board of commissioners of the water department, for the construction of an impounding reservoir. There was a compulsory nonsuit at the close of the plaintiff’s case. A motion to strike it off was denied, and plaintiff brings error. Affirmed.</p> <p>The following is the opinion of the court below (AGIIESON, Circuit Judge):</p> <p>Under the provisions of the act of Pennsylvania of May 23, 1889, for the incorporation and government of cities of the third class, the power to enter into such a contract as the one declared on is not vested in the board of commissioners of the water department, without the previous consent and direction of city councils. There is, I think, no evidence of the previous consent of councils to the contract here in question, or of any subsequent ratification of it. Neither tlie ordinance of April .14, 1891, for an election to authorize an increase of the city debt and for the issue of water bonds, the resolution of August 1, 1892, for the preparation of plans and specifications for the contemplated work, nor the ordinance of October 17, 1892, directing the water commissioners to advertise for bids, conferred authority upon the board of water commissioners to enter into a contract for the construction of an impounding reservoir. Nor did all these ordinances, taken together, confer such authority on that board. To advertise for bids is one thing, but to bind the city by the acceptance of one of several bids is quite a different tiling-. I am of opinion that the city of Altoona was not bound by the contract which the water commissioners undertook to eider into with the plaintiff, for lack of legal authority in the commissioners to make such contract.</p> <p>Moreover, there is an entire want, of any certificate by the city controller, as prescribed by (lie act of May 23, 1889, and declared by the supreme court of Pennsylvania, in the case of City of Erie v. Moody, 176 Pa. St. 478, 35 Atl. 136, to be essential to the validity of such a contract as that here in question. I do not see that such a certificate was dispensed with by anything that was done by the councils or the electors of the city. Indeed, the prescribed certificate by the controller could not thus lie dispensed with.</p> <p>The plaintiff company did no work whatever under the alleged contract. This suit is wholly for the recovery of damages for a breach by the city of the alleged contract, set up by the plaintiff. The complaint is that the city councils would not permit the plaintiff to do the work, but repudiated the contract that the water commissioners had undertaken to enter info. I am of opinion that the plaintiff lias failed to show any right of adion, and the defendant’s motion for a nonsuit must be allowed.</p>

James N. Edmunson filed ^lis suit in the district court of El Paso county, Tex., against the- Pullman Palace-Car Company, claiming- damages in the sum of $15,000. The suit was removed by the defendant company to the United States circuit court for the Western district of Texas.

<p>In Error to the Circuit Court of the United States for the District of Kentucky. ,</p> <p>This' was an action at law upon a promissory note executed for the purchase price of certain machinery.</p> <p>The maker of the note was a street-railway corporation, called the Park City Railway Company, and I<\ D. Kister, Jr., was an accommodation security. The suit was against the street-railway company and its surety, Kister. The latter, after pleading jointly with his principal, obtained leave to plead separately, and in his defense pleaded among other defenses not now important: (1) That the obligation, though signed by him, was never accepted by the payee, and no credit was given on the faith of his undertaking; (2) that, if the note was accepted, and if he over became bound as surety, ho was released by the negligence of the payee in failing to defend a replevin suit brought by the street-railway company against the vendor company, through which the street-railway company obtained possession of the machinery for which the note was improperly and illegally given; (3) that, if he was ever bound as surety, he was released by the negligence of the payee in consenting to the attachment of the machinery, for which the note was given, to the realty of the railway company, before recording said note, whereby the machinery became a fixture, and subject to a previously existing mortgage and other existing liens in favor of mechanics and contractors; (4) that there had been a variation in the contract, to which he had not consented, and by which a material part of the machinery had been returned to the vendor, “he having the right to look to such property as indemnity.” By stipulation a jury was waived, and the case submitted upon the law and the facts to the court. The findings of fact and law were as follows:</p> <p>Findings of Fact.</p> <p>(1) That on June 22, 1805, the Commercial Electric Company, of Indianapolis, entered into the following contract with the Park City Railway Company:</p> <p>“We, the Commercial Electric Company, of Indianapolis, Ind., agree to furnish you two of our standard 100 K. W. generators, with switch board, instruments, and equipments complete, for the sum of (§3,400) thirty-four hundred dollars, delivery to he made f. o. b. cars, Bowling' Green, Ky., on or before August 25th, and payment of the said thirty-four hundred dollars to be made on or before October 1, 1805, or thirty days after date of delivery, if delivery is delayed beyond August 25th, provided they fulfill the following specifications: The generators shall be capable of generating 100 K. W. capacity for sixteen consecutive hours, with a rise in temperature not to exceed 70 Fall, above the surrounding air, and shall carry full rating without sparking, and fulfill all our claims as set forth in the accompanying catalogue. We moreover guaranty the apparatus to be free from all electrical and mechanical defects, and agree to repair any such defects, free of charge, as may develop through normal usage within two years from date of acceptance.</p> <p>“Accepted, June 22,1895. Commercial Electric Company,</p> <p>“Per M. O’. Southworth.</p> <p>“Park City Railway Company,</p> <p>“Per M. H. Crump, Managing Director and Secty.”</p> <p>(2) That there were some delays in delivering this machinery, and some correspondence in regard thereto, which caused the railway company to send to the electric company a note for the amount agreed upon, which note is in the following words and figures:</p> <p>“§3,400. Dated--, 18 — .</p> <p>“On or before the first day of November, 1895, for value received, in two one-hundred Killowatts street-railway power generators, I promise to pay to the order of the Commercial Electric Company of Indianapolis. Ind., three thousand four hundred and no-100 dollars, negotiable and payable at Potter Bank, Bowling Green, Ky., without any relief whatever from valuation or appraisement laws until paid, and 5 per cent, attorney’s fees. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note. The express condition of the sale and purchase of the said machinery above named is such that the title and ownership of said machinery does not pass from the said Commercial Electric Company until this note and interest, and all other notes and interest given in pursuance of such sale and purchase, are paid in full; and it is further agreed that the above property shall not he attached to, so as to become a part of, any real estate, but shall remain personal property until paid for.</p> <p>“P. O. Address: Park City Kailway Company,</p> <p>“By I. B. Wilford, Prest.</p> <p>“M. I-I. Crump, Seety.</p> <p>“F. L. Kister, Jr.”</p> <p>Subsequently indorsed: “Pay to the order of J. R. Evans, without recourse on us. Commercial Electric Co., by S. D. Hadley, Secy.”</p> <p>(3) That on the 17th of September, 1895, the electric company sent a letter, which it wrote, but did not sign, to the railway company, declining to accept said'note with the single surety, and suggesting the name of another party as additional security, and also stating that it returned the note; that the note was not returned in said- letter, nor at all. Thereafter the railway company, on September 19th, after its receipt of said letter, telegraphed the electric company to ship the generators immediately, with bill of lading attached, and to return note indorsed without recourse, which telegram the electric company received, and on the next day telegraphed the railway company that the generators were being loaded, and would be forwarded same night, with bill of lading and note attached.</p> <p>(4) On the same day, September 20th, the electric company sent said note to J. L. Potter & Co., at Bowling Green, Ky., together with the following letter:</p> <p>“Gentlemen: We inclose note of the Park City Railway Company, indorsed by F. L. Kister, attached to which you will find bill of lading for the apparatus, for which the note is given. • The railway company wire us that they will discount the note without recourse. We have indorsed the note, leaving blank for the name of the party who will discount it, and we request that you deliver the bill of lading to them at such time as they pay you the $3,400, less 7 per cent, interest per annum, until November 1st. Upon the mailing of the amount to us, kindly wire us at our expense, so that we may send tracer" after the goods, and oblige.</p> <p>“P. S. Deliver bill of lading only at such time as note is paid.”</p> <p>Potter & Co. notified the railway company, on September 22d, of the receipt of the note, and that it could be discounted.</p> <p>(5) Subsequently, under the authority of a letter from the electric company, dated October 8th, Theodore Varney, an employe of the electric company, filled the blank indorsement on the note with the name of J. R. Evans, the plaintiff herein.</p> <p>(6) The defendant Kister was notified by Vaughn, the vice president of the railway company, — but when, the reco-rd does not disclose, — that said note had been “rejected” by the electric company; but Kister took no action in the matter, and gave notice to no one that he regarded himself as riot bound on the note, until the January following the bringing of this suit, when, in the following letter to the plaintiff, he seemed to recognize his liability:</p> <p>“The railway company owe me [Kister] nearly as much as the note you hold, which I have brought suit on, and as our court is now in session, and as the parties who bought Vaughn’s interest are responsible men, I don't expect any costs on account of the note, but expect they will settle with me, and release me from loss on your note before my case against them is reached.”'</p> <p>(7) The plaintiff and the electric company both had knowledge that Kister was only a surety on the note sued on at the time the same was executed.</p> <p>(8) On the 30th of September the railway company sued out a writ of delivery against the electric company, and a large part of the machinery, which had been shipped to Bowling Green, was seized by the sheriff of Warren county, and, after being retained for the statutory two days by the sheriff, was, on October 5, 1895, delivered by the sheriff to the railway company. This action thus brought in the Warren circuit court was dismissed in the following May, without prejudice, and a judgment for costs entered in favor of the defendant.</p> <p>(0) That the electric company thereafter directed Varney, its agent, to have the note sued on recorded, for the purpose of saving, by this constructive notice, its rights retained on the face of the note; that Varney was told that said note could not ho recorded, except it were acknowledged by the railway company, so as to entitle it to he recorded; that said note was not recorded as required by the Kentucky Statutes. Said note had no acknowledgment upon it, nor was any application made by the electric company to have such a cknowledgment.</p> <p>(10) That, when the machinery came to Bowling Green, it was placed upon and fastened to stone foundations, which had been prepared for it in the railway company’s power house; that it was absolutely necessary that this machinery should be fastened to such foundations in order to use it for the purpose for which it was intended; that defendant Kister knew, at the lime he signed the note, of this necessity; that he knew, at the time it was being put into the building and fastened to the foundations, that it was being so put in and fastened; that the electric company aided and assisted in thus attaching tlie machinery to the realty; that it was so attached before the maturity of tlie note; and that at said time there was upon the property of tlie railway company a mortgage for some §550,000.</p> <p>(11) That tlie machinery thus delivered and attached to the freelxold was the entire consideration for which the note was given, and was of equal value to the note.</p> <p>(12) That the action of the electric company in thus aiding, assisting, directing, and controlling the putting in of the machinery in the railway company’s power house, and attaching it to the freehold, before and without perfecting its lien security thereon by recording said note, as required by the Kentucky Statutes, was negligence; and that said Kister had no knowledge of said negligence, and did not acquiesce therein or consent thereto.</p> <p>(13) That the railway company was not in a condition to receive and use the machinery oil August 25, 1805, nor until very near the time it was actually received, and acquiesced in the delay of the electric company in delivering the same, and the time of delivery was modified by the consent of the parties, and the delivery was made and the machinery accepted, set up, on October 28. 1895, and no damage accrued to the railway company by reason of this delay.</p> <p>(14) The electric company guarantied the machinery to he free from mechanical and electrical defects, and agreed to repair any such defects as might accrue within two years, and guarantied the capacity of the machinery, as stated in finding 1 hereof. The defendants have failed to sustain their claims to damages for failures in these particulars.</p> <p>(15) The electric company agreed that it would send the railway company, without further costs to the latter, a new armature, if the old armature was shipped back to them, in accordance with the letter from tlie electric company of April, 1890. The price of a new' armature was. $(>00. The old armature returned was damaged by lira in transit to the extent of §¡300. The new armature was not shipped, and therefore the note should have a credit of $000, the price of a new armature, less tlie §5300 damage done to the old armature, or a net credit of $300 on this account.</p> <p>(10) Tlie plaintiff is not a hona fide holder for value without notice of the note sued upon, and tlie note is subject to the same defenses as though no transfer had been made of it from tlie electric company to the plaintiff.</p> <p>Conclusions of Law.</p> <p>(1) The note sued upon, as a matter of law, was executed hy Kister, as surety of the railway company, and so accepted by the electric company, and is a binding obligation, even though it lie conceded that it was accepted because of tlie telegram of tlie J9th of September, 3895.</p> <p>(2) That the suing out of the writ of delivery in the Warren circuit court, and the proceedings thereunder, did not affect the title and ownership of the machinery for which the note was executed, and the rights of the parties in that regard remained the same as if said action had not been instituted, and by reason of said action the rights and liabilities of Kister have not been affected in any way whatever.</p> <p>(3) That the agreement in the note as to the title of the property by the laws of Kentucky is, in effect, a sale with a mortgage back, but, in order to be effective, as against subsequent purchasers or lienholders for value, it must be acknowledged and recorded pursuant to the provisions of section 2496 of the Kentucky Statutes; that the omission to have said note so recorded released-the defendant Kister from liability as surety on said note, he having the right to rely upon the exercise of due diligence by the electric company to perfect its title, thus retained, as against subsequent purchasers and creditors, and Kister is entitled to his costs as the plaintiff</p> <p>(4) That the railway company is not entitled to damages for any delay in the delivery of the machinery, It having consented to such delay, and subsequently accepted the machinery.</p> <p>(5) That the railway company, having failed to show a breach of the guaranty contained in the contract, is not entitled to damages upon its counterclaim therefor.</p> <p>(6) That the railway company is entitled to recover, as a credit upon said note, the sum of $300 on account of the shipment of the old armature to the electric company in April, 1896.</p> <p>(7) That the plaintiff, Evans, is not a bona fide holder for value of the npte sued upon, but stands as the representative of the electric company in this litigation.</p> <p>(S> That the plaintiff, as the representative of the electric company, is entitled to Judgment against the railway company for $3,400, with interest from November 1, 1895, at 6 per cent, per annum, subject to a credit of $300 as of April, 1896, and his costs; that the suit be dismissed as against Kister, and that he recover his costs from the plaintiff.</p> <p>Upon the facts thus found there was a judgment in favor of plaintiff below for the amount of the note and interest, less $300, the value of an armature returned, and a judgment in favor of the defendant F. L. Easter, Jr. The plaintiff alone has sued out this writ of error.</p>

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

<p>1. Carriers — Injury to Passenger — Contributory Negligence — Failure to Look and Listen.</p> <p>Where a carrier so operates its trains at a station that a passenger is impliedly invited to cross an intervening track in going to or leaving his train, he is chargeable only with the exercise of reasonable care to avoid danger, and is not necessarily guilty of contributory negligence in failing to look and listen for an approaching train before crossing such track.</p> <p>2. Same — Implied Invitation to Cross Tracks — Evidence — Question for Jury.</p> <p>Deceased left a train, at a station, on the side opposite to the platform provided, — it being nearer to his residence, — and attempted to cross an intervening track, eight feet distant from the train, when he was struck and killed by another train, running in the opposite direction. Rain was falling at the time, which obscured vision; and deceased, as he left the car, pulled his hat over his face to shield it. The company’s rules required trains to approach that station under full control, and prohibited trains from passing that station while other trains were receiving or discharging passengers. These rules were habitually disregarded, and the train which struck deceased was running at 15 miles per hour at the time. When the road was first built, ears were equipped with gates to prevent passengers from leaving, except on the platform side of the cars; but these had been taken off some time before the accident, and there was no notice or other warning forbidding passengers from alighting away from the platform. Deceased uniformly, and other passengers generally, without objection of the company, got off on either side, at their con-vonience. held, that the company liad impliedly invited passengers to alight on either side, and that the question of deceased’s contributory negligence was for the jury.</p>

<p>1. Estoppel — Recitals in Bond.</p> <p>Where an underwriting' hond recited the due execution of a bond by the obligees as sureties for a third person, and was conditioned for their indemnification from loss by reason of the obligation so incurred, the obligors are estopped by its recitals 1o set up the invalidity of the original bond by reason of formal defects after there has been a recovery thereon against the sureties.</p> <p>2. Bonds — Construction—Recitals.</p> <p>There is no variance in a recital in an underwriting bond that the original bond was given to a county, because it runs to the state as obligee, where it is in fact, and by its terms, for the benefit of the county.</p> <p>3. Principal and Surety — Rtght of Action on Indemnifying Bond.</p> <p>A bond recited that one L. had entered into a contract with a county to construct certain buildings, by which he was required to pay for all materials furnished and used in their construction, and that the obligees had become his sureties for the performance of such contract. The bond was conditioned that L. should well and truly perform and fulfill “said contract,” and should save the obligees harmless from their obligation as such sureties. Hold, that such bond was more than a bond of indemnity to the obligees, being, in addition, one for the due performance by L. of his contract, including the payment for materials, and that it was not essential, to give a right of action thereon, that a judgment for materials, obtained against the obligees as sureties for the contractor, had been paid, but that there was a breach of the bond when the obligees were subjected to such judgment, as well as by the failure of X,. to pay for such materials, either of which gave the obligees a right of action thereon.</p> <p>4 Same — Release cf Burettes by Alteration of Contract.</p> <p>Such bond created a direct obligation in favor of subcontractors who furnished materials, which entitled them to maintain an action thereon in case of default of the contractor in making payment for such materials; and no subsequent alteration of the contract by agreement between the county and the contractor, though with the consent of his sureties, the obligees in the bond, could affect the rights of such subcontractor thereunder.</p> <p>5. Subrogation — Right of Creditor to Enforce Security Held by Sureties. i</p> <p>Where the sureties on the bond of a contractor for a public building, which is conditioned for the payment by the contractor for all materials purchased, have become insolvent, so that a judgment recovered on the bond by a subcontractor for materials furnished cannot be collected, the judgment plaintiff is entitled to be subrogated to any security held by the sureties, and may maintain a suit in equity to enforce for his benefit an underwriting bond taken by the sureties to indemnify them from loss or liability.</p> <p>6. Judgment as Evidence — Prima Facie Proof of Defendant’s Liability.</p> <p>A judgment against the sureties on a contractor’s bond, rendered in a contested ease and without collusion, is prima facie evidence of the validity of the bond, and of the liability of the defendants to the plaintiffs thereon, in a subsequent suit on an underwriting bond taken by such sureties.</p>

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

<p>Insurance — Accidental Death of Assured — Evidence—Question for Jury.</p> <p>In an action on an accident policy exempting insurer from liability for an accident to assured while getting on or off a moving conveyance using steam as a motor, or walking or being on the roadbed of any railroad, etc., defendant’s evidence tended to show that deceased was killed while attempting to board a freight train, while plaintiff offered evidence from which it appeared that deceased intended to take a train going in the -opposite direction from that of the freight, and that it was impossible for deceased to have boarded the freight train as testified to by defendant’s witnesses, testimony of some of whom was contradicted. Held, that the manner of decedent’s death was for the jury, and that a peremptory instruction for defendant was error.</p>

These were actions brought in the state court, and consolidated after their removal into the circuit court. The plaintiff has sued out two writs of error, — -'the first from an order dissolving an attachment issued by the state court in one of the actions, which is submitted on a motion to dismiss; and the second from the final judgment after trial, which is disposed of on the merits.

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This is an action by William Murray against the Chicago & Northwestern Railway Company. A demurrer to an amended petition was sustained (62 Fed. 24), and plaintiff brings error.</p> <p>This is an action to recover damages for overcharges on freight. The material allegations in the petition are that commencing in 1875, and continuing to March, 1887, plaintiff was engaged in buying and shipping live stock and grain purchased in the state of Iowa for shipment to Chicago, Ill.; that he made large shipments during that time over the defendant’s road from Belle Plaine and Chelsea, Iowa, to Chicago; that defendant demanded and plaintiff paid to it for these services the regular published tariff rates of freight; that in selling these articles in- Chicago the plaintiff was compelled to come into competition with the sale of like articles shipped over defendant’s line from said stations and others in the vicinity shipped over defendant’s line; that, at the time these various shipments were made by plaintiff, defendant was engaged in making and paying drawbacks, rebates, and concessions of freight charges to others shipping like character of freight, and under the same circumstances and conditions, over the same line of road, as were shipped hy plaintiff, and from the same stations, to an amount equal to $32 per car load; that the freight carried hy defendant for others was carried under the same circumstances and conditions as that transported for plaintiff; that defendant, at the time these shipments were made by plaintiff, kept posted at its siations freight tariff lists showing the tariff rates of-freight for the transportation of such articles from its stations to Chicago, and informed plaintiff at the time he made his shipments that no deviations were made from these rates, and no rebates, drawbacks, or concessions from the posted rates were made to any shippers, and that plaintiff had equal rates and proportions of rates with other shippers from its stations to Chicago, and that no discriminaiions were made against him; that plaintiff believed these statements and relied on them, but that they were untrue and fraudulent, and that defendant was In fact at that time making such discriminations in favor of other shippers; that defendant, fraudulently concealed, that fact as to the giving of relia tes; that plaintiff only ascertained the facts within 38 months before bringing suit. The circuit court sustained the demurrer to the petition upon the ground that the action was barred by the statute of limitations. On fhis point Judge Shiras, who heard the case at the circuit, said: “The ordinary rule Is that the statute begins to run when the right of action is completed. Does the case fall within any exception to this rule? The provision of the statute applicable to the case is the general one, to wit, ‘and all other actions not otherwise provided for in this respect, within five years.’ Code Iowa, § 2520. By Id. § 2530, it is declared that, ‘in actions for relief on the ground of fraud or mistake, and in actions for trespass to property, the cause of acción shall not be deemed to have accrued until the fraud, mistake or trespass complained of shall have been discovered hy the party aggrieved’; hut it, is settled that this statutory exception is not applicable to cases of the character of that now under consideration. Boomer Tp. v. French, 40 Iowa, 601: Carrier v. Railway Co., 79 Iowa, 80, 44 N. W. 203. It is, however, claimed by plaintiff that, under the principles of the common law, it will not be held that the cause of action has accrued until actual discovery of the fraud or concealment has been made. In Boomer Tp. v. French, supra, the supreme court of Iowa held that where a treasurer of the district, by false and fraudulent entries upon his books, concealed the fact of a misappropriation of a sum of money coming into his hands, the statute did not begin to run until discovery of the fraud tints practiced. In Carrier v. Railway Co., supra, the supreme court of Iowa held the common-law exception applicable, upon the authority of Boomer Tp. v. French; stating, however, that, ‘if the question was before us for the first time, we might hesitate to declare the rule announced in Boomer Tp. v. French.’ The conclusion reached in Carrier v. Railway Co. Is followed and affirmed in Cook v. Railway Co., 81 Iowa, 551, 46 N. W. 1080. These decisions are based, not upon a construction of the provisions of the Iowa statute, but upon the view therein taken of the rule of the common law; and the conclusion reached is not, therefore, binding upon the courts of the United States when they are called upon to construe the common law, and apply Its principles to cases arising between citizens of different states. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914 62 Fed. 21, 44.”</p>

In July, 1890, J. A. Green, the plaintiff in error, made a written contract with the Chicago & Northwestern Railway Company, a corporation, and the defendant in error, to perform the labor and furnish the materials to construct the masonry for the bridges and culverts on its line of railroad between Clinton and Lisbon, in the state of Iowa.

<p>In Error to (be District Court of the United States for the Eastern District of Arkansas.</p>

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

<p>Bankruptcy — Possession of Property — Mortgagee.</p> <p>Where personal property, scheduled as part of the assets of a bankrupt, passed into the possession of creditors holding' mortgages thereon, before the commencement of the proceedings in bankruptcy, and is field by them as such mortgagees, they cannot be ordered to surrender such property to the trustee in bankruptcy, on his petition, in a summary proceeding in the court of bankruptcy. Yeatman v. Institution, 95 U. S. 764, followed.</p>

<p>1. BANKRUPTCY — ATTORNEYS’ FEES IN VOLUNTARY CASES.</p> <p>Under Bankruptcy Act 1898, § 64, par. b, providing that “the debts to have priority and to be paid in lull out of bankrupt estates shall be * * * one reasonable attorney’s fee * * * to the bankrupt in voluntary cases as the court may allow,” the allowance of such fee in a voluntary case, and its amount, rest in the discretion of the court.</p> <p>2. Same.</p> <p>In a caso oí voluntary bankruptcy, an attorney’s fee for legal services rendered to the bankrupt in preparing and filing the petition and schedule, and during the proceedings, is not entitled to priority of payment out of the estate, such services being for the benefit of the bankrupt himself, is a proceeding instituted by him for his own advantage; and a claim for such fee is only provable as a general debt against the estate. But an allowance may be made to the attorney of the bankrupt for services of such a nature, and rendered under such circumstances, as to constitute a special benefit to the estate generally, as where the same were necessary to preserve the estate ponding the appointment of a trustee.</p> <p>8. Samis.</p> <p>In a case of voluntary bankruptcy, where the amount realized for creditors was about 8200, and the amount of proved debts over $2,000, and it appeared Unit, before the appointment of the trustee, the bankrupt’s attorney had made several trips to neighboring cities to attend to litigation in respect to pending attachments and attempted judgments against the bankrupt in the state courts, his services therein resulting in benefit to the estate, held, that $50 should be allowed to tbe attorney, and paid out of the estate, as compensation for such services and for his personal expenses connected therewith; his claim for fees for legal services rendered to the bankrupt before the filing of the petition in bankruptcy and after tbe appointment of the trustee being disallowed.</p>

■ In Bankruptcy. Submitted on application for a review of the ruling of the referee on petition of trustee for order directing sale of certain property, and establishing priority of lien.

<p>1. Bankruptcy — Partners—Acts of Bankruptcy.</p> <p>Wliere the liquidating partner of an insolvent firm makes a general assignment of the firm’s property for the. benefit of its creditors, the other partner making no attempt to prevent such assignment, it is an act of bankruptcy, upon which the firm, as such, may be adjudged bankrupt.</p> <p>2. Same.</p> <p>Where an act of bankruptcy has been committed by an insolvent partnership, as such, it may be adjudged bankrupt on the petition of its creditors, although neither of the partners has done any act upon which he, as an individual, could be adjudged bankrupt.</p> <p>3. Same.</p> <p>Where the liquidating partner of an insolvent firm makes a general assignment of the firm’s property for the benefit of its creditors, it is an act of bankruptcy upon which such partner, as an individual, may be adjudged bankrupt, being a conveyance or transfer of a portion of his property with intent to hinder, delay, or defraud his individual creditors.</p> <p>4. Same.</p> <p>Where the liquidating partner of an insolvent firm makes a general assignment of the firm’s property for the benefit of its creditors, and thereupon an adjudication in bankruptcy is made against such partner and the firm, the other partner, though he made no attempt to prevent the assignment, should not be adjudged bankrupt if he has not individually committed an act of bankruptcy; but he is within the jurisdiction of the court, and is a proper party to the proceedings, and entitled to the rights of a party.</p>

<p>Bankruptcy — Stay—Suppdemkntary Proceedings.</p> <p>Where proceedings supplementary to execution against the bankrupt, in a state court, begun within four months before the commencement of proceedings in bankruptcy, are pending at the time of the adjudication therein, the court of bankruptcy, by injunction, will stay all further proceedings in the action ixi the state court.</p>

In Bankruptcy. On petition by the trustee for an order restraining the commencement of foreclosures by mortgagees, and for authority to sell the various parcels of real estate free of incumbrances, preserving the rights of all lien claimants against the proceeds.

<p>1. Bankruptcy — Pleading—Time to Answer — Unauthorized Extension.</p> <p>Under Bankrupt Act 1898, § 18, subsec. b, providing that, in cases of involuntary bankruptcy, “the bankrupt or any creditor may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow,” the time to plead cannot be extended for two months from the return day by an agreement between counsel for the petitioning creditors and counsel for the bankrupt, without leave of the court, and without the consent of other creditors, especially in a case where, the allegations of the petition being simple and easily answered, the court, if applied to for that purpose, would not have extended the time.</p> <p>2. Same — Defenses—Agreement to Compromise.</p> <p>It is not a defense to a petition in involuntary bankruptcy that the petitioning creditors had previously agreed to compromise with the debtor on receiving half the amount of their claims, where it appears that such agreement was not founded on any valuable consideration, and was not carried into effect, and it is not alleged that the agreement of one creditor was made the basis for the agreement of any other creditor.</p> <p>3. Same — Petitioning Creditors — Estoppel.</p> <p>Where a debtor makes a general assignment for the benefit of his creditors, and certain creditors appear in the state court having jurisdiction to administer the estate under such assignment, and there prove and assert their claims, they are not thereby estopped to file a petition in involuntary bankruptcy against the debtor, alleging- such assignment as an act of bankruptcy.</p> <p>4 Same — Defenses—Motive of Creditors.</p> <p>Where creditors had agreed to compromise with their debtor on the basis of receiving half the amount of their claims, but the agreement was not carried into effect, and afterwards the debtor made a general assignment, and tlie proper state court took jurisdiction of the assigned estate, and thereupon the creditors filed a petition in involuntary bankruptcy against the debtor, and the latter, for answer thereto, averred that the petition was not brought in good faith, but for a sinister motive, and to enable the creditors to obtain a larg-er proportion of their debts than they</p> <p>. had agreed to accept under the compromise arrangement, or would recover in the proceedings in the state court, held no sufficient defense; the motive of the creditors being immaterial.</p> <p>5. Same — Verification of Petition — Waiver of Objections.</p> <p>If the respondent to a petition in involuntary bankruptcy does not seasonably object to tlie petition on the ground of any informality or insufficiency in its verification, but files a plea and answer on the merits, he will be deemed to have waived such objections, and cannot afterwards have the proceedings dismissed on account of such defective verification. .</p> <p>6. Same — -Sufficiency of Verification.</p> <p>Quaere, whether a petition in involuntary bankruptcy can properly be verified by the affidavit of the attorney for the petitioning creditors, deposing partly on information and belief, and not showing, in such affidavit, express authority to make the verification.</p>

<p>In Bankruptcy. Application of bankrupt for discharge. On certificate of S. S. Ethridge, Esq., referee in bankruptcy.</p>

<p>Customs Duties — Silk Fabrics — Interpretation of Statute.</p> <p>Tariff Act July 24, 1897, par. 387, reads: “Woven fabrics in the piece * * * weighing not less than 1% ounces per square yard and not more than eight ounces per square yard, and containing not more than 20 per cent, in weight of silk, if in the gum, 50 cents per pound, and if dyed in the piece, 60 cents per pound; if containing more than 20 per cent, and not more than 30 per cent, in weight of silk, if in the gum, 65 cents per pound, and if dyed in the piece, 80 cents per pound; if containing more than 30 per cent, and not more than 45 per cent, in weight of silk, if in the gum, 90 cents per pound, and if dyed in the piece, $1.10 per pound; if dyed in the thread or yarn and containing not more than 30 per cent, in weight of silk, if black * * *, 75 cents per pound, and if other than black, 90 cents per pound; if containing more than 30 and not more than 45 per cent, in weight of silk, if black * * *, $1.10 per pound, and if other than black, $1.30 per pound; if containing more than 45 per cent, in weight of silk, or if composed wholly of silk, if dyed in the thread or yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if black * * *, $1.50 per pound, and. if other than black, $2.25 per pound; if dyed in the thread or yarn, and the weight is not increased by dyeing beyond the original weight of the raw silk, $3.00 per pound; if in the gum, $2.50 per pound; if boiled off, or dyed in the • piece, or printed, $3.00 per pound; if weighing less than 1% ounces and more than % of an ounce per square yard, if in the gum, or if dyed in the thread or yarn, $2.50 per pound; if weighing less than 1% ounces and more than % of an ounce per square yard, if boiled off, $3.00 per pound, if dyed or printed in the piece, $3.25 per pound; if weighing not more than ys of an ounce per square yard, $4.50 per pound.” Held, that the last-named percentage of the silk per yard (more than 45 per cent.) was to be carried forward, and applied to the subdivision relative to fabrics weighing less than 1% ounces and more than ys of an ounce per yard, and that where the weight of the fabrics was not more than % of an ounce per yard.</p>

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

<p>Internal Revenue — Stamp Act of 1898 — Stamps on Heeds of Conveyance.</p> <p>A deed to real estate, under Schedule A of the war revenue stamp act of 1898. requires stamps in proportion to the “consideration or value” of the interest transferred, and not to the entire value of the property, where it is conveyed subject to incumbrances.</p>

This was a suit in equity by the Duff Manufacturing Company against Arthur O. Norton for alleged infringement of letters patent No. 455,993, issued July 14, 1891, to Josiah Barrett, for a lifting jack. Only claims 1, 2, and 6 of the patent were in issue.

<p>Patents — Distinct Inventions — Two Patents Held not fob Same Inventions — Machine bob Sewing- ok Quilting Fabrics.</p> <p>The Palmer patent No. 308,981, for a machine for sewing or quilting fabrics, compared with the earlier patent, No. 304,550, to the same inventor, for a "mechanical movement,” and field to be for a different, distinct, and- patentable invention; and also construed and held infringed as to claims 0, 10, 14, 16, 18, 19, 22, and 24.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree of the district court, Southern district of New York, holding both respondents liable for damage done to libelant’s car float. The car float was in tow of the tug Delaware, and lashed to her starboard side, and was in collision with the steamer G-uyandotte on the afternoon of April 30, 1897, in about the middle of the North river, near the upper White Anchorage Buoy, off the coal docks at Communipaw.</p> <p>The following is the opinion of the court below (BROWN, District Judge):</p> <p>A little after 3 o’clock in the afternoon of April 30, 1897, as the libelant’s float No. 3, 185 feet long, was going out of the East river in tow of the tug Delaware and on her starboard side and crossing the North river towards Harsimus cove, above the Pennsylvania Railroad ferry in Jersey City, she came in collision with the stem of the steamer Guyandotte going down the North river, which struck the float on her starboard side some 20 or 30 feet from her stern, causing the damage for which the above libel was filed.</p> <p>The collision was not far from the middle of the river and probably from 100 to 300 yards above the White Anchor Buoy, between Ellis Island and Castle Garden. The tug and float in crossing on the last of the ebb tide were headed a little up river. The Guyandotte, 205 feet long, was outward bound for sea. After leaving her pier at Beach street, she came down in about the middle of the North river. Ahead of her an Annex ferryboat was crossing from Jersey City towards tlie East river and tlie Guyandotte changed her course about a couple of points to starboard in order to pass under the stern of the ferryboat, which accordingly crossed the bows of the Guyandotte and passed several hundred feet to the northward of the tug and float below. The mate of the Guyandotte, who was on the bridge of the steamship with the master, observed the fug and tow before the ferryboat crossed their bow. The master did not observe them until the steamship passed behind the ferryboat and was in her wake. He then starboarded his wheel in order to straighten his course again directly down river, and soon after for the first time observed the tug and float a little on his port how, about two points according to his estimate, more or less. After starboarding more or less he steadied and gave to the tug a signal of one whistle, which was answered by the tug with one whistle. About a half a minute afterwards or less, fearing collision, he hard a-ported and reversed, but struck the float at an angle of about three or four points.</p> <p>The wheelsman on the tug states that he saw the Guyandotte coming down before the Annex ferryboat crossed her bows, and that she then seemed to be heading towards the stern of his float; and that he supposed the Guyandotte would go astern of him. When afterwards ho saw the Guyandotte apparently sheering to the westward in order to go astern of the ferryboat, he stopped his engines when the ferryboat was between the tug and the Guyandotte, and immediately on answering the signal of the steamship after she had passed the stern of the ferryboat, he reversed 'full speed. A few moments afterwards the captain of the tug, who had been temporarily absent from the wheel house, returned, and when the Guyandotte was about 400 to 500 feet away and apparently pointing for his midships, so that the float was lapping across her bows, believing collision imminent, he ordered the engines full speed ahead and put the wheel hard a-port hoping the steamer would go under his stern.</p> <p>All the evidence in the case shows that when the steamer crossed the wake of the ferryboat, she was only about 300 yards from the tug. She was going under one bell at the rate of six or seven knots an hour, and the tug at the rate of about three and one-half knots. It is not denied that the steamship had the right of way and that it was the duty of the tug to keep out of her way. On "behalf of the latter, however, it is claimed that the collision was brought about by the starboarding of the steamer aftér she got astern of the. ferryboat, and because the steamer had no lookout forward, and did not see the tug in time, and did not navigate properly in reference to her, either by keeping her original course, or the course two points to westward when she had changed to that course.</p> <p>I am inclined to the opinion that when the steamer was first seen from the tug she w^s more nearly directly up river from the tug and tow, and heading more nearly towards them, than might be inferred from some of the testimony of the steamer’s witnesses. She was probably but a little to the westward of the tug’s place in the river. This is not only the direct testimony of the wheelsman of the tug and the floatman, but seems to be borne out by the testimony of the master of the steamer, that when he first noticed the tug she was only about a couple of points on his port bow, although he had then changed the heading of his steamer by porting on account of the ferryboat, a couple of points to the westward, and as he says had come back but little. All agree that the angle of collision was about three or four points; and considering that reversal by the tug would at first swing her more to the southward and that her porting afterwards was of short duration, and that the steamer’s porting and subsequent reversal would both carry her head to the westward, tending to increase the angle of collision, it is difficult to see how the collision could possibly be at so small an angle as three or four points unless the Guyandotte had swung fully back to her original course under the influence of her starboard helm after passing astern of the ferryboat, before she could break her sheer by her port helm. And this agrees with the testimony of the Delaware’s witnesses as to the apparent heading of the steamer.</p> <p>If such was the true situation of the steamer before she crossed astern of the ferryboat, that is, pointing directly down river and being but little to the westward of the tug when from one-third to one-half a mile distant, it was as much the duty of the steamer to keep her course without change, unless something compelled the steamer to change that course, as it was the duty of the tug to keep out of the way; and the proper course of the tug was to keep on and to cross the Guyandotte’s bows, as there would evidently be abundant time and space to do so. It does not appear that the steamer might not have avoided the ferryboat sufficiently by slowing or reversing, as well as by changing her course to the westward. If, however, she preferred to change her course to the westward, as that_ would require the tug to change her course and go under the Guyandotte’s stern, I think it was specially incumbent on the steamer to signify l>y signal to the tug below that she was intending to go to the right, and to keep that course when once taken, so that the tug- could govern herself accordingly. No such signal was given; probably because the master, who was in charge of the navigation, did not at that time notice the tug. The tug, as I have said, when the ferryboat was between her and the steamer, prudently stopped her engines, uncertain apparently from the swing of the steamer to the westward, whether or not she meant to go astern of the tug as it was at first supposed she designed to do. The rule as to signals was designed to prevent just such uncertainties and miscalculations as this. But here" the giving of the necessary signals on both sides was delayed until the steamer had crossed the wake of the ferryboat and Cor about half a minute swung her head, under a starboard wheel, again somewhat to the eastward, towards the line of the tug and tow, when the vessels were perhaps 200 yards apart; so near that although they were both going a I moderate speed, yet both, being heavily loaded and not capable of quick handling, there was imminent danger of collision. It is possible that collision would have been avoided had the tug continued reversing. But this is doubtful, considering the fact that, as it turned out, the float nearly escaped by going ahead. However this may be, the blame should be ascribed to getting into that situation rather than to any mistake made when the situation became critical. Ead timely signals been given by either, it is evident that the embarrassment of the tug would have been avoided, and she would have avoided, the steamer.</p> <p>The primary causes oí the collision in my judgment were (1) the failure of both boars to signal, as required by the rules, when at a distance of one-half a. mile from each other, a rule which the presence of the ferryboat and the steamer’s chango of course made it specially necessary to observe; (2) the steamer's lack of timely attention to the tug, and her changes of course, which ente,massed the navigation of the tug: (3) her failure, to reversa at the time the signal was given, as she was then i:ol more than 300 yards away, and must have been pointing nearly for the tug and was probably still under some swing-le the southward from her previous starboard helm; (4) the failure of the tug to take timely, original and effective measures to avoid collision hy giving a signal either of one whistle or of two; and (5) her failure to reverse and give a signal of one whistle at the time when site saw the steamer change her course to ibo westward, to prevent the steamer from again swinging to the southward.</p> <p>The libelant is entitled to a decree against both steamers, with costs.</p>

<p>1. Collision — Steam Ferryboat and Steam Propeller.</p> <p>A steam ferryboat collided with a steam propeller in the East river, near the Grand Street Ferry slip on the New York side. The ferryboat gave a signal of two whistles when one-third across from the New York shore, to which the propeller immediately answered with one; and thereafter the ferryboat navigated in disregard of the propeller’s signal, and persisted in the effort to cross her bows, though the ferryboat had the propeller on her starboard hand. The ferryboat was not keeping an attentive lookout, and did not see the propeller until more than halfway across the river, and if she had reversed when she saw°the propeller, so as to go astern, as it was her duty, the collision would not have occurred. Held, that the ferryboat is liable.1</p> <p>2. Same — Mutual Fault.</p> <p>A steam propeller in the East river, required by law to navigate in mid-river, was going downstream, not more than 200 feet from the New York shore, near the docks, and with lights dim, if not out, when she collided with a ferryboat which was in fault for not keeping a lookout, nor obeying the propeller’s signal, nor reversing and going astern, according to the rules of navigation. Held, that the propeller contributed to the collision.</p>

This cause conies here upon appeal from a decree of the District court, Southern district of New York (92 Fed. 936), holding both vessels in fault for a collision between the steam ferryboat Columbia anti the steam propeller Eagle, in the East river, near the Grand street Ferry slip on the New York side.

<p>Collision— Steam and Sail — Yawing—Luffing Close — Shaving—Both Vessels at Fault.</p> <p>When a tug .was a mile from a schooner, going in opposite directions at night, the master of the tug saw the schooner’s red light a little on his port bow and changed his course a little to starboard; he kept that course, with the schooner’s red light at all times on his port bow, until he was within 400 or 500 feet from it, when the schooner luffed from three to four points across his bow, and was struck by the tug at an angle,-between the main and mizzen chains, and sunk immediately. The schooner was without a lookout forward, and the evidence tended to show that she was continually yawing to windward, and that her master had either not seen the tug when he gave the order to luff, or supposed her ahead, or on her port bow. Held, that the tug was guilty of negligent navigation in attempting to pass too near to the schooner, and that the schooner was also negligent in not maintaining a proper lookout and in luffing, and that both vessels contributed to the collision, and that the damages should therefore be divided.</p>

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

This action was instituted by the appellant against the appellees for an accounting- as to certain goods and properly alleged to have been wrongfully taken frorii an assignee, in which goods and property appellant claims to have had an interest or equity.

<p>On Motion to Betax Costs.</p> <p>This was a patent suit, brought for infringement of United States letters patent to -Robert 0. Ullrich, February 19, 1884, for improvement, in pawls and ratchets, in which a motion for injunction pendente lite was argued July 19, 1.898, before the circuit court, which on July 22d filed an opinion (88 Fed. 784) granting the motion as to claims 2 and 3 of the patent. From the decree authorized by this opinion an appeal was taken to Uie circuit court of appeals for the second circuit, which on the 15th of November, 1898, rendered a decision reversing the decree of the circuit court, with costs of the appeal. 92 Fed. 1021. Upon (he entry of the decree for costs in pursuance of the mandate of the court of appeals, the clerk of the circuit court taxed costs in favor of the appellants as follows, viz.: (1) Defendants’ costs of appeal transcript to court of appeals; (2) appellants’ costs in court of appeals, as indorsed on the mandate; (3) clerk’s costs in the circuit court for filing and recording mandate of the court of appeals, and the decree thereon; (4) attorney’s docket fee in the circuit court for the district of Connecticut, on the ground that a judgment for costs had been arrived at, which might be final. From this taxation complainant’s solicitor appealed as to the last item, and the parties were ’heard on briefs.</p>

<p>Costs — Pinal Hearing in Equity — Docket Fee.</p> <p>Where defendant demurred to a bill in equity on the ground that it did not connect her with the cause of action, and plaintiff filed a replication, and, before the issue of law was argued, plaintiff discontinued the suit pursuant to a stipulation whereby defendant agreed to such a course, there was no “final hearing,” within Rey. St. § 824, entitling defendant to a docket fee of $20. :</p>

<p>In Error to the Circuit Court oí tbe United States for the District of Oregon.</p> <p>This was an action of ejectment commenced by the plaintiff in error in the circuit court of the United States for (he district of Oregon on the 28th day of September, 1890, against T. J. Cole, ,T. L. Cole, and Emory Cole, to recover the possession of certain lands In Malheur county, Or., within what is known as the “Dalles Military Road Land Grant,” and for damages in the sum ot 83,600 for withholding (lie same. The plaintiff alleged ownership of the land in fee simple, derived under an act of congress entitled “An act granting lands to the state of Oregon to aid in the construction of a military wagon road from Dalles City, on the Columbia river, to Fort Boise, on tile Snake river,” approved February 25. 1867. 11 Siat. 409. It was further alleged: That the act of congress granted to the state of Oregon certain lands to aid in the construid ion of a military wagon road from Dallas City, on the Columbia river, by way of Waison, Canyon City, and Mormon or Humboldt Basin, to a point on Snake river opposite Ft Boise, in Idaho territory. That these lands consisted of alternate sections of public lands, designated by odd numbers, io the extent of Three sections in width on each side of said road. That the lands thereby granted to the state should be disposed of only in the foihnv-ing manner: “That is to say, that the governor of said state shall certify to the secretary of the interior that ten consecutive miles of said road are completed, then a quantity of land hereby granted, not to exceed thirty sections, shall be sold, and so on from time to time until the road shall be completed.” That on the 20th day of October, 1868, the legislative assembly of the stale of Oregon passed, and the governor of the state approved, an act entitled “An act dedicating certain lands to the Dulles Military Road Company.” Thai: this act set forth the act of congress, and granted to the Dalles Military Road Company all lands, right of way, rights, privileges, and immunities granted or pledged to the state of Oregon by said act of congress, and also granted and pledged to said the Dalles Military Road Company all moneys, lands, rights, privileges, and immunities which might thereafter he granted to the state of Oregon to aid in the construction of said road. That prior to the 23d day of dune, 1869, the Dalles Military Road Company surveyed and definitely located the line of its said wagon road between the points and upon the route designated in said act of congress and in the said act of the legislative assembly of the state of Oregon, and had fully constructed and completed said road, and filed in the executive office of the governor of the state of Oregon a plat or map of the said Dalles Military Road, upon which was traced and shown the definite location of said wagon road from its terminus in the city of Dalles, Or., to its termius on Snake river, and the lands of the grant of land in place made to the state of Oregon hy said act of congress. That on the 23d day of June, 1869, the governor of the state of Oregon certified that the plat or map of said Dalles Military Road had been duly filed in the executive office; that it showed the location of the line of the route upon which said road was constructed, in accordance with the requirements of the act of congress, and with the act of the legislative assembly of the state of Oregon; that he had made a careful examination of said road since its completion, and that the same was built in all respects as required. That the Dalles Military Road Company forthwith filed in the office of the secretary of the interior of the United States a map or plat of the said military road, showing the definite location thereof with reference to the public surveys so far as then made, and the said certificate of the governor of the state of Oregon certifying to the construction of said road, and that on the 13th day of December, 1869, the commissioner of the general land office of the United States, by an order of the secretary of the interior, withdrew from sale the odd-numbered sections within three miles from each side of said wagon road, as delineated and shown by said map, in favor of the Dalles Military Road-Company. That the lands described in the complaint are situated within three miles of the line of said road, as located and constructed and as shown upon said map. That they are parts of odd-numbered, sections, as shown by the public surveys, and are part of the lands granted to the state, of Oregon by the act of congress of February 25, 1867. That the Dalles Military Road Company during the year 1896, and prior to the commencement of the action, duly selected, as part of its land in place, the lands described in the complaint. That the plaintiff, by virtue of mesne conveyances from the Dalles Military Road Company, has succeeded to all the right, title, and interest of said the Dalles Military Road Company in and to said lands, and is now the owner thereof in fee simple, and is entitled to the immediate possession of the same. That the defendants are in possession of the premises, and wrongfully withhold the same from the plaintiff, and have wrongfully withheld the possession thereof from plaintiff for six years last past. In the defendants’ amended answer, the defendants T. J. Cole and J. L. Cole deny that they are in possession of the premises, and disclaim any interest therein. The defendant Emory Cole alleges that he was, and for a long time prior to the filing of the amended answer had been, the owner in fee and in possession of the land in controversy, through mesne conveyances fi'om the state of Oregon; that the' defendant and his predecessors in interest have held actual, open, notorious, continuous, adverse, and exclusive possession of said lands, under claim of ownership and color of title, at all times since July 1, 1869; that he and his predecessors in interest have made lasting and valuable improvements on said premises, and that the plaintiff has not been seised or possessed of said premises, or any portion thereof, within a period of more than 10 years last past before the commencement of this action. For a second defense the defendant Emory Cole alleges that the land in controversy was granted to the state of Oregon by virtue of the provisions of the swamp-land grant made by congress March 12, 1860, entitled “An act to extend the provisions of an act to enable the state of Arkansas, and other states, to reclaim the swamp lands within their limits, to Minnesota and Oregon, and for other purposes,” and that the state of Oregon sold said lands to defendant J. L. Cole under the provisions of the state swamp-land act ap-' proved October 26, 1870, entitled “An act providing for the selection and sale of the swamp and overflowed lands belonging to the state of Oregon,” by making, executing, and delivering to said J. D. Cole a deed dated March 8, 1883, a copy of which deed is set out in the amended answer. The amended answer was filed during the progress of the trial, and it was stipulated that plaintiff’s reply to the original answer should be taken and deemed as a reply to the- amended answer. In this reply, plaintiff admits that the defendant Emory Cole, at the time of the commencement of the action, and for six years prior thereto, had been in possession of the lands in dispute, but alleges that the possession was wrongful and unlawful, and that the defendant wrongfully and unlawfully withheld the same from plaintiff. Plaintiff further denies Uiat the lands were granted to the state of Oregon by virtue of the provisions of the ,swamp-land grant, and denies that the state of Oregon sold said lands to the defendant J. L. Cole under the provisions of the state swamp-land act, or oilier wise, by making, executing, or delivering to the said J. L. Cole a deed, a copy of which is set forth in defendants’ answer. Plaintiff also denies knowledge, or information sufficient to form a belief, as to whether or not the state of Oregon ever pretended to make, execute, or deliver to the said •T. L. Cole a deed, a copy of which is set forth in the answer, or whether J. I.. Cole ever conveyed all or any of his alleged right, title, or interest in or to said lands to the defendant Emory Cole. The cause was tried before a jury, and resulted In a verdict and judgment for the defendant Emory Cole.</p>

Joseph H. Wilder and his wife filed suit In the district court of Harrison county, Tex., against the Texas & Pacific Railway Co., for damages resulting from the killing of their son, Frank 6. Wilder. The son of the plaintiffs was in the employ of the defendant corporation as fireman on a switch engine.

This was an action at law, on certain accident insurance contracts, brought originally in the circuit court of Shelby county, state of Tennessee, by Robert JE. Lee, as administrator of the estate of P. P. Hudson, deceased, and after-wards removed by the defendant to the United States circuit court for the Western division of the Western district of Tennessee. January 0, 1890, Hudson died intestate.

This cause comes here upon writ of error to review a judgment of the circuit court, Southern district of New York, entered April 6, 1898, in favor of defendant in error, who was plaintiff below, for §88,084.80, against the Chicago, Milwaukee & St. Paul Railway Company, defendant below. The judgment was cmorod upon the report of Hon. George Headley, as referee. _ The complaint set forth six separate causes of action.

<p>.Bankruptcy — Collection of Assets — Property in Custody or Receiver or State Court.</p> <p>Where a state court, in a suit between insolvent partners for dissolution of the partnership and settlement of its affairs, had appointed a receiver pendente lite, who had collected the assets, but no distribution to creditors could be made, for the reason that no answer had been filed in the suit or decree made therein, and meanwhile both partners were-adjudged bankrupt and a trustee was appointed, held, tbat tbe court of bankruptcy could not order tbe receiver to surrender tbe property to tbe trustee,, but tbat tbe latter would be authorized to apply to tbe state court to be substituted as plaintiff in the action, and to move tbat court for the entry of a decree in tbe case, and for an order directing tbe receiver to transfer tbe assets to him.</p>

<p>Customs Duties — “Plateaux. ”</p> <p>“Plateaux,” which are braids or plaits of straw sewed or woven together into an oval form, and are used for making women’s hats, but have to be manipulated into the form desired, and pressed or wired so as to retain that form, and are then trimmed, are properly classified, not under Tariff Act Oct. 1, 1890 (26 Stat. 567) par. 460, § 1, “as manufactures of * * * not specially provided for in this act,” but under paragraph 518, § 2, exempting from duty “braids, plaits, laces, and similar manufactures composed of straw * * * suitable for making or ornamenting hats, bonnets and hoods.”</p>

This was a suit in equity by the Warren Featherbone Company against the Warner Bros. Company for alleged infringement of two patents for improvements in dress or garment stays.

This was a suit in equity by Isaac Blum and William S. Wheatfield against Herman Kerngood, trading as the Alma Button Company, for alleged infringement of patent No. 498,300, issued to John Ewig, August 6, 1889, for waistband fasteners.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This cause comes here upon appeal from a preliminary injunction order of the circuit court, Northern district of New York, restraining defendants from infringing claims 1 and 3 of the patent sued upon until final hearing. The execution of such order was, by the circuit court, stayed pending this appeal. The patent declared upon is No. 260,462, to Dodge and Philion (July 4,1882), for a separable pulley. The facts sufficiently appear in the opinion.</p>

This was a suit in equity by Prank W. Smith against the Meriden Britannia .Company for alleged infringement of a patent for a design for a vessel. The cause was heard on a motion for a preliminary Injunction.

<p>1. Patents — Invention—Substitution op Equivalents.</p> <p>The substitution of direct driving for indirect driving by counter shaft and gearing is the substitution of a well-known equivalent, and there is no invention in applying to the main shaft of a machine the same mechanism that was formerly applied to the counter shaft.</p> <p>2. Samis.</p> <p>The substitution of a heavy or “momentum” pulley for a light pulley, though it may be of advantage in the particular case, involves the exercise of mere mechanical skill, and not of inventive faculty.</p> <p>8. Same — Constbuction op Claims.</p> <p>The concluding words, “substantially as specified,” must be held to import into the combination claim of a narrow patent a device which the patentee, in the specifications, describes as "one of the most important features of my invention.”</p> <p>4. Same — Leatheb-Cut'j.tng Machine.</p> <p>The Parsons patent, No. 368,108, for a machine for cutting leather or other materials, construed, and held invalid as to claims 3 and 4, and not infringed as to claim 5.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>This is a libel in rem by William E. Woodall & Co. against the steamboat Havana and another, to recover a balance due for repairs. The libel was dismissed (87 Fed. 487), and libelants appeal. Affirmed.</p>

<p>1. Wharfage — Statutory Rates — Scows.</p> <p>Under Laws N. Y. 1882, c. 410, § 798, classifying vessels, and. fixing the rates for wharfage accordingly, a scow engaged in carrying stone should he classed with the description “market boats and barges.”</p> <p>2. Same — Custom.</p> <p>A customary.rate of wharfage for scows cannot control the rates fixed by Laws N. Y. 1882, c. 410, § 798, since it includes all vessels engaged in carrying freight or passengers.</p> <p>3. Maritime Liens — Domestic Vessels.</p> <p>A maritime lien is created by the furnishing of wharfage to a domestic vessel.1</p>

<p>Ill Admiralty. Collision.</p>

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

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

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

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

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

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

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

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

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

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

<p>Appeal Irom the Circuit Court of the United States for the Northern District of Ohio.</p>

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

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

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

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

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

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

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

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

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

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

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

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

<p>In Error to the Circuit Court of the United Stales for the District of Montana.</p>

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

This causo comes here upon appeal from a preliminary order of injunction made by the circuit court, district o-C Connecticut. The patent Is No. 293,957 (February 19, 1884, to Robert E. Ellrich), for an improved pawl and ratchet, the claims declared upon being Nos. 2 and 3.

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

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

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

<p>Carriers of Goods — Duties of Correcting- Lines Inter Se.</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 Tennessee.</p>

<p>In Error to the District Court* of the United States for the Eastern District of Michigan.</p>

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

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

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