Volume 93 — Federal Reporter

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

<p>1. Appeal prom District Court — Jurisdictional Amount.</p> <p>Rev. St. § 631, allowed an appeal in certain cases from the district to thé circuit court, where the amount in controversy exceeded 3>50. Act March 3, 1891, I 4, abolished such appeals, and provided (section 6) that the circuit court of appeals should have jurisdiction of appeals from the district court “in all cases other than those” wherein an appeal to the supreme court was provided. The act expressly repealed Rev. St. § 691, fixing the jurisdictional amount On appeal from the circuit to the supreme court, did not refer to section 631, and provided (section 31) that all acts then in force concerning appeals should apply to appeals to the circuit court of ■ ■■ ¡appeals. Held, that the act of March 3, 1891, did not repeal Rev. St. § 631, ■:: and the provision thereof as to jurisdictional amount remains applicable , . to appeals to the circuit court of appeals.</p> <p>2. Same — Repeal of Statute.</p> <p>Such repeal was not affected by Act March 3, 1891, § 14, repealing all : acts inconsistent with sections 5 and 6 of such act.</p>

<p>On Motion to Dismiss for Want oí Jurisdiction.</p>

<p>In Equity. On motion for preliminary injunction.</p>

In Equity. On application for appointment of a receiver. . The original' bill sets out the will of one George P. Cooper as the source of title to the real estate involved; the plaintiff Iris C. Ryder claiming a life •estate under that, will, and the plaintiff Pauline A. Ryder, who is her daughter, claiming the reversionary fee in the property under the will of her grandfather.

<p>On Motion to Require the Production of an Exhibit for Inspection.</p>

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

<p>1. Judgments — Parties—Vacation—Receivers.</p> <p>Though not a party to a suit against the bank in a state court, the receiver of a national bank may appear in that court, and contest the validity of the judgment.</p> <p>2. Same — Equitable Relief — Laches.</p> <p>A judgment was fraudulently obtained in a state court against a national bank without making a receiver thereof a party. The receiver learned of it a few days later, but took no action in the state court to contest the judgment for nearly two years, the time expiring in the meanwhile within which he might move that court to vacate the judgment for fraud, and his application therein was denied. Held, that he was guilty of laches, and equity would not annul the judgment.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>This suit was brought on the equity side of the circuit court of the United States for the Western division of the district of Washington to obtain a decree adjudging the invalidity of, and canceling of record, certain taxes levied by the county of Pierce and the city of Tacoma, respectively, upon certain property now owned by the complainant Carr. The property upon which the taxes were levied consists of a power house and power plant used in operating certain street-railway lines in the city of Tacoma, in Pierce county, state of Washington, and a suburban line connecting ilie town of Steilacoom, in that county, with the city of Tacoma. On March 20, 1897, all of the property mentioned, including the street-railway lines, was sold as an entirety by a master of the court below, In pursuance of a decree entered by that court in a suit brought: therein by the New York Guaranty & Indemnity Company, trustee, for the foreclosure of a trust deed of the property made to it for the security of certain bonded indebtedness, at which sale the property was .purchased by one Levis, who afterwards conveyed it to the complainant Carr. Of the proceeds of that foreclosure sale, there remained in the registry of the court, when this suit was instituted, an undistributed balance of $13,451.88; and the taxes here in question, standing delinquent against the power house and power plant on the tax records of the county of Pierce and the city of Tacoma, respectively, and it being the duty of the receivers appointed in the foreclosure suit to discharge all valid taxes against the property, and the complainant in that suit being entitled, as trustee, to receive, for distribution to the bondholders, any surplus of the fund in court remaining after the discharge of all the receiver’s obligations, this' suit was instituted jointly by the trustee, complainant in the former suit, and the present owner of the property under the sale In that suit, to contest the validity of the disputed taxes. By an amendment ol the bill, certain taxes on lots in the Ridgedale addition to the city of Tacoma, included in the railway property acquired by the complainant Carr, and the validity of which was not disputed by the complainant’s hill, was included in the subject-matter of the present suit, to the end that the decree to he entered therein, directing the payment of the fund in court of such taxes as should he adjudged valid, might extend to the taxes on those lots. No review-of the decree of the court below in respect to the taxes on those lots, however, is here sought. The taxes levied upon the trackage of the Steilacoom Line were held by the court below to be invalid, and their cancellation was directed. To this part of the decree no objection was taken in any form. The remaining taxes controverted by the bill were held by the court below to be valid, and it is to reverse that part of the decree that the present appeal is brought. Those taxes were levied on the power house and. power plant, together with the site thereof, by the county of Pierce in the-years 1891, 1892, 1893, and 1895, and by the city of Tacoma in the years 1892 and 1893. The power house and power plant are situated upon a tract of land in the city of Tacoma, the westerly portion of which (that is to say, the part lying west of the east boundary of Cliff avenue produced) was, during the years of the contested tax levies, owned in fee by the Tacoma Railway & Motor Company, while the easterly portion of the tract (that is to say, all that part lying east of the east boundary of Cliff avenue produced) was during: those years held by the motor company under a lease of date April 18, 1889, from the Northern Pacific Railroad Company for a term of 25 years from May 1, 1889; reserving an annual cash rental, and providing for the payment of the taxes by the lessee during the term of the lease. The motor company’s part of the tract was formerly a part of Cliff avenue, a platted street of the city of Tacoma, and prior to the building of the power plant the city of Tacoma, at the instance of the Northern Pacific Railway Company, passed an ordinance, approved May 11, T889, vacating that part of Cliff avenue now embraced in, and constituting the whole of, the part of the tract owned in fee by the motor company. Another street, in the city, known as “A Street,” adjoined the vacated portion of Cliff avenue on the west; and under the law of the state of Washington, and the provisions of the vacating ordinance, the title to the whole of the vacated strip passed to the Northern Pacific Company, as owner in fee of the whole land adjoining the vacated strip on the east, and the railroad company shortly afterwards, to wit, May 1, 1890, conveyed it in fee to the motor company. The Northern Pacific Railroad Company’s ownership in fee of the leased part of the power-plant site was a matter of public record. That part of the power-plant site owned in fee by the motor company is about two-fifths, and the part leased from the Northern Pacific Company is about three-fifths, of the area of the whole site. The relative value of the two portions of the site is not made to appear. The improvements, which consist of a power house, power plant, and car barn, together with' certain machinery, stand in about equal portions upon the two parts of the site; and the respective portions' of the improvements are alleged in the bill, and found by the master, to be of about' equal values. They are also alleged in the bill, and admitted by the answers thereto, and found by the master, to be “one entire and inseparable aggregation of buildings, structures, plant, and machinery, covering the whole of said tract, and neither the use nor the valuation thereof have been, or are, capable of segregation.” For the years 1891, 1892, and 1893 .the power-plant site was assessed as an entirety by the county of Pierce at 839,330, 827,500, and 827,500, respectively, and “improvements” thereon at 815,000, during each of those years. For the year 1895 the site was assessed by the county at 812,300, no assessment being made for improvements thereon. For each of the years 1892 and 1893 the site, as an entirety, was assessed by the city of Tacoma at 854,080, and improvements thereon at 818.000. The city taxes for the year 1892 having become delinquent, a portion of the property was sold therefor to the defendant Gove, to whom a tax certificate therefor was issued. The other taxes in question still stand delinquent on the rolls.</p> <p>The sixth, eighth, eighteenth, nineteenth, twentieth, and part of the twenty-first findings of the master are as follows: “(6) That portion of said land upon which said power plant stood during said years, east of Cliff avenue, and described on said plat, Exhibit E, by the lines B-E, C-B, C-F, and F-E, was •embraced within what was designated by the Northern Pacific Railroad Company, and listed by the county of Pierce, as the right of way of the Northern Pacific Railroad Company; but it was in the actual use and occupation of the Tacoma Railway & Motor Company for the purposes of the power plant.” “(8) That during all the years from 1891 to 1896, inclusive, the Northern Pacific Railroad Company and its receivers paid all of the taxes assessed and charged against the right oí wa.y of said Northern Pacific Railroad Company in the city of Tacoma.” “(18) That the personal property of the Tacoma Railway & Motor Company was assessed during each of said years 1891 to 1896, inclusive, by the assessor of Pierce county, for the purpose of taxation, after having been duly returned to said assessor, and the same was duly equalized by the board of equalization; and said assessment included all of the personal property of said company, and, among other things, the power plant of said company, including buildings and machinery, as an entirety, and the line of street railway between Eleventh street, in the city of Tacoma, áhd a point in the town of Steilacoom, — being about twelve miles of track, substructures, and superstructures, — known as the ‘Steilacoom Line.’ That said Tacoina Railway & Moior Company and Its receivers have heretofore paid all taxes levied and assessed against it as personal property. (19) That the taxes standing charged on the tax rolls of Pierce county for the years 3893, 1894, 1895, and 3.896, on what is termed the ‘Tacoma & Steilacoom Line,’ were entered on the real-estate assessment rolls of said county, and embraced the same property entered upon' the personal property assessment rolls of the Tacoma Railway & Motor Company, on which payment was made by sa,id company. That the city of Tacoma in the years 1892 and 1893, added to the real-estate assessment on the property described on page 4 of this report the sum of «$18,000 for improvements. That there were no improvements upon said lands that year, or any other year, other than the building, power plant, and ma.cliinery, which was an inseparable aggregation of building, machinery, car barn, etc., incapable of separate segregation or valuation; and all said power plant, and everything situate upon said land, was assessed by the city of Tacoina in the years 1892 and 1893, and by the county of Pierce in the years 1891. to 1896, inclusive, as personal property, and the taxes were paid on the same as personal property. (20) That all of the taxes described in the hill and in the evidence as having been charged and levied upon improvements upon the land described in the bill constitute a double assessment, in that said assessment on what is designated therein as on improvements is a duplication of the assessment of personal property returned and assessed for each and all of said years. That the taxes and assessments charged on account of right of way, substructures, and superstructures on the real-estate rolls of Pierce county on what is known as the ‘Tacoma & Steilacoom Line,’ and the taxes levied thereon by the authorities of Pierce county, are a. double assessment, in that they are a duplication of the same property assessed and taxed under the head of ‘Track Belonging to the Tacoma Railway & Motor Company,’ and upon which payment liad heretofore been made by the Tacoma Railway & Motor Company. (2.1) That during all of the year 1892 there was situate upon the lands above described, on page 4 of this report, a power house, power plant, and car barn belonging to and owned by said Tacoma Railway &'Motor Company, which together constituted one entire and inseparable aggregation of buildings, structures, plant, and machinery, covering the whole of said tract, neither the use nor the value of which were or are capable of segregation, and which was so situated partly upon the portion of said land leased from said Northern Pacific Railroad Company and partly upon the land owned by said Tacoma Railway & Motor Company, as aforesaid, in about equal portions and values, upon said two parts of said tract, respectively. 'That in the year 1892 the defendant, city of Tacoma, by its authorized officers, undertook io, and did, assess the above-described lands as one tract, to and in the name of the Tacoma Railway & Motor Company, for purposes of municipal taxation of said city for said year, and so assessed the value of said tract at the sum of $54,080, and so assessed the value of the improvements on said tract, apart and separate from the land, at the sum of $18,000, and thereupon entered said assessments upon its assessment roll for purposes of its municipal taxation for the year 1892. That thereafter said city levied and extended on its tax rolls for said year 1892 the sum of $864.96, as taxes of said year charged against said tract, and the improvements thereon for municipal purposes of the city for said year. That the taxes so extended and entered in said tax rolls being unpaid a.t the date when, by force of the provisions of the charter of said city, the city taxes levied for the year 1892 became delinquent, said sum was entered by the authorized officer of said city as delinquent taxes against said premises for the year 1892; and thereafter said land, together with the power plant, power house, and car barn thereon, was sold by said city of Tacoma, at a tax sale held in said city, pursuant to the provisions of its charter, on February 6,1893, to the defendant Royal A. Gove for the sum of $999.48, which sum the said Royal A. Gove then and there paid to said city therefor, and thereupon a certificate of such sale was issued and delivered to said defendant Royal A. Gove by the authorized officer of said city, pursuant to the provisions of the charter of said city, and said defendant is now the owner and holder of said certificate.”</p> <p>The trial court sustained exceptions filed by the county of Pierce and the city of Tacoma and the defendant Gove, respectively, to that part of paragraph 6 of the master’s findings which reads as follows, “And listed by the county of Pierce,” and to that part of paragraph 19 which reads as follows, “And all said power plant, and everything situate upon said land so assessed by the city of Tacoma in the years 1892 and 1898, and by the county of Pierce in the years 1891 to 1896, inclusive, as personal property,” and to that part of paragraph 20 of the master’s findings which reads as follows, “That all of the taxes described in the bill and in the evidence as having been charged and levied upon improvements upon the land described in the bill constitute a double assessment, in that said assessment on what is designated therein as on improvements is a duplication of the assessment of personal property returned and assessed for each and all of said years.”</p> <p>All other exceptions to the findings and report of the master were by the court below overruled.</p>

Appeals from tlie Circuit Court of the United States for the Southern District of Florida. Bill in equity by the Pennsylvania Company for Insurance on Lives and for Granting Annuities against the Jacksonville, Tampa & Key West Railway Company to foreclose a mortgage. The American Construction Company intervened. Also, a hill in equity by the American Construction Company against the Jacksonville, Tampa & Key West Railway Company for the appointment of a receiver.

This is an application for an injunction, on a bill filed in the circuit court of the United States for the Eastern district of Virginia: The case set forth is substantially this: That the defendant railroad company, under a charter acquired under the laws of the states of Virginia and North Carolina, was engaged in constructing- a line of railway near Richmond, in the state of Virginia, to a point near Ridgeway, in the state of North Carolina; that on or about the 11th of…

This is a bill by the Silver Peak Mines, a corporation, against L. J. Hanchett. An injunction issued as prayed, and defendant now moves to dissolve the same.

<p>1. Partnership — Commissioner to Settle Partnership Estate — Costs of Accounting.</p> <p>A commissioner was appointed in a suit for the settlement of a partnership, and empowered to take charge of all the partnership property, collect the assets, pay the debts, and divide the remaining property between the partners. On the making of his final report, after nearly 10 years, a reference became necessary to state his accounts. Held; that the costs of such reference, including the fee of the master, should be borne by the commissioner.</p> <p>2. Same — Powers of Commissioner.</p> <p>A commissioner appointed by the court to settle a partnership estate, which consisted of a large amount of real estate and over $25,000 of bills receivable, has power to employ and pay the necessary assistants to enable him tó properly look after and handle the property, as well as to procure such legal services as are reasonably required, although he is himself a lawyer; and his employment of his partner'as attorney is not objectionable.</p> <p>3. Receivers — Liabilities—Embezzlement by Clerk.</p> <p>A receiver, or a commissioner with the powers of a receiver, is peí. sonally liable for the embezzlement or misappropriation of the funCj of the trust estate by his clerk or employe.</p>

<p>Appeals from the Circuit Court of the United States for the Northern District of Georgia.</p>

This is an appeal by one of the special masters from an order of the circuit, judge entered May 19, 1898, determining the final compensation of the special masters appointed in the consolidated causes of Clyde and others against the Richmond & Danville Railroad Company and others, and the Central Trust Company of New York against the same defendants. By an order entered August 16, 3892, Messrs.

<p>Power of Federal Court to Direct Verdict — Failure of Plaintiff to Appear.</p> <p>Involuntary nonsuits not being allowed in the federal courts where a plaintiff fails to appear when his case .is called for trial and the state practice in such case is to enter an involuntary nonsuit, the proper procedure is to impanel a jury, and to direct a verdict for defendant for want of evidence to sustain plaintiff’s cause of action.</p>

This was a suit in equity by Henry Holmes, Julius C. Sheldon, and others, brought on behalf of themselves and the other heirs of the stockholders of the Connecticut Land Company, to recover a parcel of land iu the city of Cleveland.

This was an action of ejectment by the city of Cleveland against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, the Lake Shore- & Michigan Southern Railway Company, the Cleveland & Pittsburgh Railroad Company, and the Pennsylvania Company, to recover possession of ground claimed as a street, and accretions thereto, which was occupied by defendants, with their terminal build-ings and tracks.

The plaintiff in error, Oarrie E. Converse, sued the Knights Templars’ & Masons’ Life Indemnity Company in assumpsit upon a policy of insurance upon the life of her husband, Charles S. Converse, who, at the date of the policy, April 12, 1889, resided at Koscommon, Mich. The policy contains the following clause, upon the construction of which the controversy turns: “Fifth.

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

<p>3. Accident Insurance — Construction of Policy — Sufficiency of Proof of Accidental Death.</p> <p>Under an accident policy requiring the claimant thereunder, in case of the death or disability of the insured, to furnish direct and positive proof that the death or disability resulted proximately and solely from accidental causes, the testimony of eyewitnesses to the death of the insured is not required, where there was no witness, but the furnishing of such circumstantial evidence as was afterwards sufficient to satisfy a jury that the death resulted from one of the causes insured against must be deemed to have been a sufficient compliance with the requirement.</p> <p>2. Judgments — Pleading as Adjudication.</p> <p>Under the prescribed practice in Louisiana, a defense of res judicata must be specially pleaded to be available.</p> <p>3. Jurisdiction of Federal Courts — Citizenship—Admissiblity of Evidence.</p> <p>Testimony in reference to the citizenship of the parties is only admissible in support of allegations properly made in the pleadings.1</p>

<p>1. Insurance — Brokers— Authority.</p> <p>An insurance broker was employed to obtain $40,000 additional in- - surance on property which was insured for $00,000, and thereafter, on being notified that defendants desired to cancel the policies purchased,' procured other insurance to be substituted therefor, the policies for which had been mailed, but not received, at the time of the loss. Held, that the broker had no authority to increase the total insurance beyond $100,000, and hence that both sets of policies were not in force at the time of the loss.</p> <p>3. Same — Ponieras—Assured’s Possession — Effect.</p> <p>Mere .possession of policies by assured at the time of loss is not conclusive evidence that they were in force at that time.</p> <p>3. Same — Broker—Agent of Assured.</p> <p>The fact that an insurance broker was authorized to procure insurance does not make him the agent of assured to receive notice of cancellation of the policies.</p> <p>4. Same — Authority to Substitute.</p> <p>An insurance broker was authorized to procure certain insurance, and given discretion in the selection of the companies. At various times previous to the loss, he procured substituted insurance, selecting new companies, without objection from assured. Previous to the loss, defehdants notified the broker that they desired to cancel the policies, whereupon he, with knowledge of assured, procured other insurance. The new policies had not been delivered at the time of the loss, nor had assured surrendered the old ones, hut he made claim under the substituted policies, and received moneys thereon, and afterwards surrendered the old policies. Held, that the substitution was authorized, and that defendants’ liability on the old policies had ceased before the loss.</p>

<p>Death by Wrongful Act — Bight of Action under Colorado Statute-Nonresident Aliens.</p> <p>Nonresident aliens are not entitled to the benefit of the Colorado statute giving a right of action for death by wrongful act to the next of tin of the deceased, and cannot maintain an action thereunder.</p>

The La Salle and the Stilwell lode mining claims joined each other. The Durant Mining Company, a corporation, the plaintiff in error, and thd owner of the Stilwell claim, removed some ore from a slope many hundred feet beneath the surface of the earth, which proved to he on the line between the two claims, so that about 43 per cent, of the ore taken from it was on the La Salle claim.

<p>Action by the United States against Theodore Davenport and others. Defendants move to strike out part of the complaint. .</p>

<p>Tn Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>This action was brought by the defendants in error, Louis Mayaud and Theofile Hunte, citizens of France, and co-partners in business at Paris under the firm name of Mayaud Freres, against the plaintiffs in error, Joseph C. Hoffmann and Bernard Hoffmann, citizens and residents of Wisconsin. The action is upon a contract of guaranty. It is alleged in the declaration: That between July 1, 1893, and December 81, 1895, the plaintiffs sold and delivered to the Hoffmann Bros. Company “religious goods and articles” to the amount and value of 135,549.65 francs, of which there remained due on the last named date 95,492.40 francs. That subsequently the plaintiffs refused to extend the time of payment, or to give further credit, unless guarantied payment for goods sold and to be sold; and thereafter, on February 24, 1896, “to induce the plaintiffs to extend credit upon future sales to said Hoffmann Bros. Company, and to extend the credit upon the goods theretofore sold and delivered to said Hoffmann Bros. Company, the said defendants, Joseph C. Hoffmann and Bernard Hoffmann, who were the managers and principal stockholders of said company, did personally guaranty, in writing, the payment of all bills contracted by said Hoffmann Bros. Company for goods theretofore and thereafter sold and delivered by these plaintiffs to said Hoffmann Bros. Company, which contract of guaranty was in the words and figures as follows, to wit:</p> <p>“ ‘Milwaukee, Wisconsin, Feb. 24, 1896.</p> <p>“ ‘Messrs. Mayaud Freres, Paris, France — Gentlemen: In consideration of your extending credit to Hoffmann Bros. Company, we hereby personally guaranty the payment of all bills contracted by Hoffmann Bros. Company.</p> <p>“ ‘[Signed] Joseph C. Hoffmann.</p> <p>“ ‘Bernard Hoffmann. ”</p> <p>It is further alleged that, relying upon the guaranty, the plaintiffs “extended credit or time of payment of all bills for goods theretofore sold ánd delivered to said Hoffmann Bros. Company, and extended the credit or time of bills for goods thereafter sold and delivered by them to said Hoffmann Bros. Company”; that between February 24, 1896, and September 23, 1896, the Hoffmann Bros. Company made payments to the plaintiffs on account, and the plaintiffs, relying upon the guaranty, made further sales of goods to the company, as set out in an exhibit attached to the declaration, “so that on October 1, 1896, said Hoffmann Bros. Company was indebted to the plaintiffs for goods sold and delivered * * * in the sum of 94,425.40 francs,” for which sum, with interest, judgment is demanded. The answer of Joseph C. Hoffmann contains a general denial of the averments of the declaration, and that of Bernard Hoffmann is, in substance, the same. Fách party, at the close of the trial, moved ,for a peremptory instruction. The court sustained the motion of the plaintiffs, and accordingly a verdict was returned and judgment entered for the plaintiffs in the sum of §18,119.21 with costs. Frror is assigned upon this instruction of the court, and also upon the exclusion of evidence. The contention of the appellants is that the defendants in error did not accept, nor give notice of their acceptance of, the guaranty, and did not perform the consideration thereof by giving new credit to Hoffmann Bros. Company, or by extending the time for the payment of the accrued indebtedness of that company. The evidence, which it is important to consider, consists mainly of correspondence subsequent to the execution of the guaranty, and presents no conflict. The inferences to be drawn from it are disputed.</p> <p>A letter from Hoffmann Bros. Company to the plaintiffs, dated January 10, 1896, contained the following postcript: “We think you better make a draft on us each month anyway for frs. 1,000. Make the drafts payable at ten days’ sight, and send them on regularly, and we will pay them as they come; and, besides, we will send you remittances as best we can.” By a letter of January 31,1896, Hoffmann Bros. Company canceled all prior orders, and sent a new order' for. goods to the approximate value of 2,328.10 francs. The contract of guaranty was delivered on the day of its date to Alfred Beck, a traveling salesman of the plaintiffs, whose habit it was to make annual visits to customers, and who, in this instance, had arrived at Milwaukee as early as February 20, 1896, and on that day had received from Hoffmann' Bros. Company an order for goods to the amount of $2,500. In a letter of February 28, 1896, Beck wrote to his employers as follows: “You will find inclosed herewith the two orders from Milwaukee, nine and ten, and the accounts. I secured a guaranty from the two Hoffmann brothers of the sum due and to become due in the future from the company, Hoffmann Bros. Joseph Hoffmann is worth individually $200,000 and the other $150,000, and there is no danger whatever for our money, but they cannot make any remittance at the present' moment, —‘voila le maheur,’ — they cannot pay at this moment. If affairs shax>e themselves with this individual so that he can, when he returns he will pay us between now and the month of July. Bet us hope that matters will arrange themselves thus. He has paid the first draft of 1,000 francs on the 24th of February.” On March IT, 1896, the plaintiffs wrote to “Hoffmann Brothers, Milwaukee,” as follows: “We have j.ust received the order you kindly gave to our representative when he called upon you recently. We must let you know, before putting in hand this order, that, although it is our intent to favor you, and give all satisfaction, that our financial state would not allow us neither to increase nor maintain the uncovered balance of your account. Be sure, gentlemen, it is not the fear towards your debt which cause this matter, but the necessity in which we are to make the due entry of our accounts for ■ the needs of our industry, and so avoid that the welfare of our trade does not suffer on account of that. We' beg you eagerly to cover us, in order that your shipments be dispatched in time required, and favor us, besides the draft of frs. 1,000 we draw on you monthly, with a remittance on account of frs. 20,000 at least. We hope that you would appreciate the equity with our request, and grant it, what we thank you very much beforehand. -Waiting for your answer, we beg to remain.” On April 11, 1896, Hoffmann Bros. Company answered as follows: “We beg to acknowledge receipt of your letter of the 17th ult., and we regret very much that you have taken this stand. As we have informed Mr. Beck, we will do our utmost to reduce the old account, and we will not increase it, as you seem to think. If it was not reduced during the past year, it was due to the condition of business in this country, which made it impossible for us to do so. But we have every hope that things will improve soon, and our first endeavor. will be to pay you up. We are doing our best to accomplish this, and we are sure that you will be.satisfied, as we will send you remittances to reduce the old account besides the monthly drafts you are now making. It is impossible for us to send anything at the present time yet, as most of our customers do not make any remittances until after Easter, and we expect now that we will soon receive enough to send you remittances regularly. We hope, therefore, that you will reconsider your decision not to fill the order given Mr. Beck, as we would only be compelled to order goods-from other manufacturers, and we would not like to do-this, for the reason that we consider it our duty to place all orders with you. You can readily see this, as we must have goods, in order to do business, and without these goods we simply could do nothing at all. If. therefore, you should not fill this order we gave, we would be no better off financially, and would have to get our other manufacturers besides, which would only complicate matters more. We hope, therefore, that you will consider these things, and fill this order for us. We positively promise you that we will not increase the amount of our indebtedness, and will, in addition, reduce the old account all we can. In order to-satisfy you, and to show that we intend to do all we can, we gave Mr. B.eck a guaranty to absolutely protect you, and to induce you to furnish us such goods as we might need. You will also see that we have ordered only such goods as we actually needed, and only in small quantities. Please let us' hear - from you, therefore, by return of mail, so-that we may be sure of getting these goods for fall. In the meantime we beg to accept-our thanks for the favors and the consideration shown us in the past, and we hope that you will extend the same to us for the future also. Awaiting an early reply.” On April 28,. 189(5, the plaintiffs responded as follows: “Your favor dated 11th inst. came duly to hand. With regard to the express promise you make to send us next remittances besides the monthly drafts, we forward you the goods ready on your order of January 13th, and we put in hand the one you gave to our representative, Mr. Beck. We hope to send it towards the beginning of August. =:•. í. * Hoping to hear from you shortly, we remain.” Again, on August 7, 1.89(5, they wrote: “The month of July is over, and you did not send remittances in spite of the promises you positively stated in the contents in your last letters. We regret very much you take this stand to settle the due bills, because we are just now in a great embarrassment, and get to our credit on the spot, being compelled to borrow to onr bankers when we have ever been obliged to do so. We have lately inform them that we shall reimburse ourselves in August, and therefore we are at a loss on account of your indebtedness. We cannot wait any longer, and beg you earnestly to be able to send us 50,000 frs. within the end of September, and the balance of your account in December prox. Hoping that you will understand these reasons, and waiting to hear from you, we beg to remain. * * I*. S. We hurry on orders given by your favor of the 25th ulf.., but we will not send any goods before you send us a very large remittance.” On August 22, 189(5, Hoffmann Bros. Company answered: “Gentlemen: Your letter of the 7th inst. has just been received. We are very sorry that we have been unable to send you any remittance beyond the drafts we have paid up to now, but it was simply impossible for us to do so, as the present financial condition of affairs is such in our country that money is simply not to be had. We have large amounts outstanding, and could easily send you the entire amount of our indebtedness if we could but succeed in getting our money from our customers, but we cannot get it, although we have tried everything, and as a. result we have been unable to meet our promises to you. We therefore ask you to kindly have a. little patience with us, and we will do our best to pay up just as soon as we can possibly manage to do so. We are sorry to learn from your letter that you do not wish to ship any goods until you have received a large remittance from us. This would result in great loss to us, as we would be unable to fill orders we have taken for some of these articles, and we hope you will reconsider this, and ship the goods ordered, if you have not yet. done so. If, however, you decide not to ship these goods at present, we would request you to kindly cancel the order given Mr. Beck entirely, as it would be of no use to us to receive these goods after the fall season is over, for the reason that we would then bo obliged to- hold the goods over until spring. We hope, however, as we have stated above, that you will ship our order, as we would very much like to have these goods for our fall trade, and especially as the blil of goods is not very large, on account of our having ordered only what we absolutely needed. Kindly let us know by return wbat decision you have come to, and, if you will ship the goods, please do so at onee, as it is even now very late for them to come here. Awaiting your kind early reply.” On September 18, 189(5, llie plaintiffs replied: “Dear Sirs: Your favor dated 22nd of August, came duly to hand. We regret very mucli to say that we can but to confirm the terms of our letter of the 7ih same month. We repeat again, we cannot, and it is quite impossible for us to increase, and even to maintain, the actual outstanding debt, because our resources would not allow us to do this. We hope that you understand the reasons which compel us to write you again, and we are certain that you will do all it is in your power to reduce your account. * * * Hoping to hear from you shortly, we beg to remain.” On September 23, 189(5, a creditors’ bill was brought against Hoffmann Bros. Company in the circuit court of Milwaukee county, and a receiver appointed, and in that proceeding a dividend of $1,218.31 was paid to the plaintiffs, leaving $17,192.90, with interest from May 1, 1897, duo them.</p> <p>During the progress of the trial below the court refused to permit ihe defendants, each, when testifying in their own behalf, to answer a number of interrogatories, one of which was the following: “Q. What conversation did you have with Mr. Beck in reference to the giving of this guaranty by you-self and your brother? Please state fully all the conversation, and all the circumstances connected therewith.” In the specification of error it is stated that the witness was expected to answer that question as follows: “That, Mr, Beck came'to the' city of Milwaukee in February, 1896, and stated that the plaintiffs were not satisfied with the condition of their account against Hoff- ■ mann Bros. Company; that they did not like to deal with corporations, but, if Joseph Hoffmann and Bernard Hoffmann would guaranty the. indebtedness to be incurred by Hoffmann Bros. Company, the plaintiffs would fill and ship promptly the order given at the time the guaranty was given by the Hoffmann brothers, and would fill all further orders given by Hoffmann Bros. Company .in the usual course of business promptly; that a remittance of 1,000 francs should be made monthly, and that Hoffmann Bros. Company should make such remittances as they might be able to do, but in no event were the plaintiffs to press the Hoffmann Bros. Company for a larger remittance than the 1,000 francs monthly during the year 1896; that, relying on Mr. Beck’s agreement that the plaintiffs would do as stated above, the guaranty was executed by the Hoffmann brothers, and delivered to Mr. Beck, with the order for goods, which .was accepted by Mr. Beck as a part of the agreement of the guaranty.”</p> <p>The brief for the defendants in error concludes as follows: “On February 24, 1896, when the guaranty was written, Hoffmann Bros. Company had al- ■ ready (1) contracted bills for 95,792.50 francs which were past due; (2) had given an order for goods in January for 2,328.10 francs, which had not yet .been accepted; (3) had given an order at the same date as the guaranty - for goods to be manufactured and shipped the following August, which had 'not yet been accepted. The matter was thus in fact submitted to Mr. Beck. It •was a mere ‘projet’ until ratified by Mayaud Freres. When the matter was submitted to Mayaud Freres, they were not satisfied with the arrangement, and on March 17, 1896, write Hoffmann Bros. Company, ‘That our financial state would not allow us neither to increase nor maintain the uncovered bal•ance of your account,’ and that they will not ship the January order, or start ithe manufacture of the February order, unless they received a remittance of •20,000 francs. Upon receiving this letter, Joseph C. Hoffmann, one of the guarantors, on April 11, 1896, with the knowledge and consent of his co-surety, •Bernard Hoffmann, -writes a letter in the name of the company to Mayaud Freres, and suggests a modification on their part of the arrangement, and agree that they will, in the near future, make a substantial remittance, and agree to the proposition of Mayaud Freres that in no event shall the account be increased. What the contract was between the parties is thus shown in these •letters. If, on February 24, 1896, it had been the intention of the parties that the words ‘extending credit’ should mean that Mayaud Freres would unconditionally ship the goods ordered in February, the correspondence shows that ;this arrangement, by agreement of all the parties, including the two sureties, was modified so that Mayaud Freres agreed to ship the goods in August only on condition that such Shipment would not increase the account, and on condition that in the meantime a substantial payment would be made. The correspondence thus shows the consideration of the guaranty to have been the extension of the time of payment of the 95,000 francs past-due bills, the sale on credit of the January order, and a further additional agreement to ship in August the goods ordered in February, if, in the meantime, a substantial remittance were made, and that such shipment would not increase the account. The substantial remittance and the agreement not to increase the account -were conditions precedent to be performed before Mayaud Freres were obliged to ship the goods. Upon the failure of Hoffmann Bros. Company to perform these conditions precedent, Mayaud Freres were released from making the shipment.”</p>

<p>On Demurrer to Petition.</p>

In Bankruptcy. Petition in involuntary bankruptcy by Goldman, Beckman & Go. and other creditors against Newton M. Smith, with petition by A. G. Pranks, an alleged preferred creditor, for leave to intervene and be made a defendant.

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Acts of Bankruptcy — Suffering Preference.</p> <p>Under Bankrupt Act 1898, § 3, cl. 3, providing that it shall be an act' of bankruptcy if a debtor shall have “suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings,” and not vacated or discharged such preference “at least five days before a sale or final disposition of any property affected,” where a creditor actually obtains a preference by entering judgment on a warrant of attorney previously given by the debtor, and levying execution on his stock in trade, the debtor being then insolvent, such debtor commits an act of bankruptcy if he fails to discharge such preference by filing his voluntary petition in bankruptcy (having no valid defense against the debt or the lien obtained by the levy), although he does not in any degree procure the-entry of the judgment, or even know of it.</p> <p>2. Same — Preference—Warrant of Attorney.</p> <p>Within the meaning of the bankrupt act, a creditor obtains a preference by entering judgment on a warrant of attorney, and levying an execution thereunder on the debtor’s stock in trade, within the time limited by the act, the debtor being then insolvent,- notwithstanding that the warrant of attorney was given more than four months before the filing of the petition in bankruptcy against such debtor, and at a time when he . was solvent.</p>

<p>In Bankruptcy. On question certified by referee.</p>

<p>In Bankruptcy.</p>

<p>1. Customs Duties — Classification—Crocus.</p> <p>Crocus, produced from the dross or residuum of bum pyrites, principally used as polishing powder, but to a considerable extent as a painter’s color, is not dutiable under Tariff Act 1890 (26 Stat. 567, c. 1244) par. 183, as the dross or residuum from burnt pyrites, or as a nonenumerated .article, under section 4, since it has been improved by manufacture, but is included, under paragraph 61, within the classification of paints or colors, whether dry or mixed.</p> <p>2. Same — 1Test—Predominant Use — When Applied. '</p> <p>The test of predominant use, as applied to the classification of an article for duty under Tariff Act 1890 (26 Stat. 567, c. 1244), is only resorted to where necessary to properly classify an article falling within two or more classifications, either of which, standing alone, would adequately describe it, and where the article is enumerated by reference to its use.</p>

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

<p>These were two suits in equity, brought by the Lalance & Grosjean Manufacturing Company and the St. Louis Stamping Company against the Haberman Manufacturing Company and against Matthai, Ingram & Co., respectively, for alleged infringement of a patent for an invention.</p>

<p>L. Patents — Infringement—Violation of License.</p> <p>Where the owner of a patent on a machine for setting lacing studs licenses the use thereof on condition that the licensee shall only use studs manufactured by the licensor, such studs not being patented, it is an infringement for the licensee to use the machine for setting studs obtained from others in violation of the license.</p> <p>2, Same — Contributory Infringement.</p> <p>In such case, a third person who sells to the licensee studs of his own manufacture, knowing that they are to be used in the patented machine ■in violation of the terms of the license, and intending that they shall be so used, is guilty of contributory infringement, and will be enjoined.</p>

<p>1. Patents — Construction of Claims — Looper or Overseaming Device for Sewing Machines.</p> <p>Claims 2 and 5 of the Willcox & Borton patent, No. 472,094, for a sewing machine, relate to a looper or overseaming 'device. The looper consists of a single part, having an upper and a lower jaw, which always remain in the same relative position, the part moving in a vertical plane, while the needle of the machine, in making the stitches, moves in a direction oblique to such plane; so that the looper, when seizing the needle thread below the cloth, is on one side of the needle, and, when presenting the loop above for the completion of the stitch, is on the other side. The device, by reason of its greater simplicity and the shorter distances traveled by its respective parts, which enable it to be operated at twice the speed of any prior device, is an ingenious and meritorious invention, of utility and novelty, which entitles the claims to a broad construction, and which is applicable to both single and double thread machines.</p> <p>2. .Same.</p> <p>Claim 2 of the Willcox & Borton patent, No. 472,095, for a sewing machine, which claim is for a looper for overseaming, does not disclose patentable invention, the device being the same described in patent No. 472,094, to the same parties, with slight mechanical changes, which were obvious in view of the prior state of the art, to adapt it for use on machines using a double thread.</p> <p>8. Same — Infringement.</p> <p>The Willcox & Borton patent, No. 472,094, for a sewing machine, as ; to claims 2 and 5, which cover a looper for overseaming, held infringed. by a device having similar parts, and operating in substantially the same manner, though adapted for use on a' double-thread machine, .while the special kind of seam shown by the drawings of the patent is made with ' a single thread.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>This cause was submitted upon oral argument May 17, 1898, and an opinion reversing decree of the circuit court and directing the usual decree as to claims 2 and 5 of United States letters patent No. 472,-094 was filed October 26, 1898. 93 Fed. 206. An application for rehearing was made by defendants November 18,1898, and reargument was allowed upon the single “question of similarity of equivalency of defendants’ hook looper to complainant’s double-jawed looper.” After rehearing upon briefs and oral arguments (January 30, 1899), the following memorandum of decision is now filed.</p>

<p>Master and Servant — Injury to Seaman — Mate’s Negligence — Fellow Servants — Liability.</p> <p>Where the mate of a vessel, after giving an order to certain seamen, proceeded to assist in its execution, and by their negligence another seaman was injured, the mate, while so engaged, was not acting as a master or vice principal, but as a co-employé; and hence the ship is not liable for the injuries so received.</p>

<p>These are two libels by the Columbia & Willamette River Opposition Stevedore Company for breach of contract, — one against R. W. Leyland 8c Co., and the other against the ship Allerton and the same respondents.</p>

<p>Lien for Towage — Chartered Boat.</p> <p>A boat cannot be subjected to a lien for towage services rendered under a contract with a charterer in the usual course of his business, the tower having knowledge that it was chartered, unless by a previous understanding to that effect with the owner.</p>

<p>Shippins — Charter Party — Construction—Voyage—Discharge.</p> <p>A schooner was chartered at the port of New York “for as many voyages as vessel [could] make from Fernandina to New York between” November 8, 1897, and June 30, 1898. This period was ordinarily sufficient for five trips, including discharges, which were an important factor. The vessel was to “receive on board during the aforesaid voyage the merchandise hereinafter mentioned.” The charterer engaged to furnish a cargo of ties each trip, and to pay “for the use of said vessel during the voyage aforesaid, fifteen cents for each * * * tie delivered, * * * payable in cash on proper delivery of cargo at port of discharge,” and also agreed “to pay vessel’s wharfage, if any [should be] incurred while discharging under this charter.” It was agreed that “the lay days for loading and discharging Lshould] be as follows: * * * Commencing from the time the vessel is ready to receive or discharge cargo, at least 75,000 feet per running day * * * to be furnished the vessel for loading, and customary dispatch for discharging at port of discharge,” — and that a certain sum should be paid per day for detention by fault of the charterer. On one trip, at the charterer’s instance, the vessel went up the river to Bush’s Bluff, though it involved a delay. Held, that the’ term “voyage” included the discharge of the cargo, and therefore the vessel was not bound to undertake a fifth trip, where she could not have completed it and have discharged her cargo by June 30th.</p>

<p>In Admiralty. Demurrage.</p>

<p>This was a libel by D. Springer and others against the steamer Lakme to recover extra wages as seamen.</p>

<p>1. Maritime Liens — Vessel, in Esse — Repairs.</p> <p>Where, after a vessel had been launched and navigated, it was discovered that her engine was inadequate, and it.became necessary to supplant it with another, the contract to furnish such new engine is a maritime contract for the repair of a vessel in esse, and hence creates a maritime lien on such vessel for the price of the engine, under Rev. St. Mo. § 770, providing that all boats shall he subject to a lien for repairs, and admiralty rule 12, permitting suits in rem by material men for supplies or repairs, etc., against the ship.</p> <p>2. Same — Repairs to be Completed on Land.</p> <p>Where a new engine was specially manufactured at libelant’s factory for a vessel then in port, to which it was shipped on completion, and it was agreed that the libelant should retain title in the engine until it had been set up, and found to work satisfactorily, the delivery was not complete until after the engine had been placed and operated on the vessel, and hence was not a contract for repairs to he completed on land, so as-to prevent the attachment of a maritime lien therefor.</p> <p>8. Same — Waiver.</p> <p>The owner of a vessel, on contracting for repairs, agreed to pay cash on delivery, hut thereafter, being unable to no so, agreed that libelant should have a lien on the repairs and vessel for the same. After the repairs had been delivered, the owner refused to give notes in form agreed, and thereupon libelant objected to the note offered, and offered to return it, and waive security on the vessel, if the owner would divide the payments as requested, to which no reply was made. Held not to constitute a waiver of libelant’s maritime lien on the vessel.</p> <p>4. Same — Burden oe Proof.</p> <p>Since a maritime lien for repairs attaches to the vessel by operation of law, the burden is on the one claiming a waiver thereof to show affirmatively that the lien was waived as part of the contract.</p> <p>5. Same— Notes Taken in Payment.</p> <p>The mere giving of notes in payment of repairs on a vessel does not of itself create a waiver ol' the contractor’s maritime lien therefor. The notes not being paid, he may return them, and enforce his lien.</p> <p>6. Same- — Equitable Mortgage.</p> <p>The lien was not lost by the acceptance of a note containing a provision rendering it an equitable chattel mortgage.</p>

. Appeal from the District Court of the United States for the Eastern District, of North Carolina. This is a libel in rem in admiralty instituted by McCollum, the appellant, against the British steamship Anaces to recover damages.for injuries received by the libelant while working, as a stevedore, stowing cotton in the hold of the steamship.

This was a libel filed by the Memphis & Cincinnati Packet Company, owner of the steamer Longfellow, to obtain exemption from, or limitation of, liability for damages to passengers and cargo resulting from the sinking of the vessel through a collision with the pier of a bridge.

<p>In Admiralty. Collision.</p>

<p>Courts — Act Decreasing Jurisdiction — Effect on Pending Cases.</p> <p>Act June 27, 1898, repealing so much of Act March 3, 1887, § 2, as conferred on the district court concurrent jurisdiction with the court of claims of actions by United States officers for compensation, and providing that no person shall recover in the court of claims for such compensation who has not complied with Act July 31, 1891, requiring monthly and quarterly accounts of officers to bo sent to the proper authority at Washington within 10 and 20 days, respectively, after 1he expiration of the period to which they relate, does not, though containing no saving clause as to pending suits, apply to such suits.</p>

<p>1. Jurisdiction of Federal Courts — Place of Bringing Suit — Residence of Parties.</p> <p>A failure by a plaintiff to comply with the provision of the act of August 13, 18SS (25 Stat. 433), requiring that suit shall be brought only in the district of the residence of either the plaintiff or the defendant, where the jurisdiction is founded only on diversity of citizenship, does not affect the general .jurisdiction of the court over the cause, and is waived by a general appearance without objection.</p> <p>2. Death hi Wrongful Aot — Actions for Damages — What Law Governs.</p> <p>Under a statute giving a right to sue for the recovery of damages resulting- from injury occasioned by negligence, unlawful violence or a wrongful act, the tort constituting the gist of the action is not the resulting death, but such negligence, violence or a.ct, although death must result before ilie statutory cause of action accrues. The right of action under such a statute depends upon the lex loci of the injury, and not the lex fori, and it is immaterial whether the death occurred within or outside of the state in which the injury was received.</p> <p>8. Same — Action in Another State.</p> <p>Where a right to maintain an action l'or damages for.such death has become vested under a state statute, the action may be prosecuted in another state, unless contrary to its policy, in any court having jurisdiction of the subject-matter and of the parties.</p> <p>4. Amendment of Pleading — Changing Capacity in Which Plaintiff Sues.</p> <p>Where a plaintiff who is both widow and administratrix of the. decedem, in bringing an action under a statute to recover damages for his death, sued in the wrong capacity, the court should, in furtherance of justice, on seasonable application, allow an amendment changing the capacity in iNhich suit was brought in order to conform to the statute, where such amendment will not change the issues, the measure of recovery, nor in any way prejudice the defendant.</p> <p>5. Same — Powers of Circuit Courts — Conformity to State Practice.</p> <p>The several provisions of the law now embodied in Rev. St. §§ 914, 918, 954, being in pari materia, and included in the codification of June 22, 1874, must be construed together, and full effect should, as far as possible, be given to each of them, and, when so construed, section 914 does not compel a circuit court to conform in subordinate details to state practico as to the allowance of amendments to pleadings, where such conformity would result in substantial injustice to litigants; nor, where such result would follow, are its powers limited or affected by a judicial interpretation by a state court of a. state statute relating to such matters, though it has by rule adopted the state practice, but not such judicial interpretation, as its own.</p> <p>6. Same — Power to Permit Amendment after Final Judgment.</p> <p>A circuí; court has no power to allow an amendment to a declaration ' not applied for until after the close of the term at which a demurrer to ' such declaration was sustained and final judgment rendered for defendant.</p> <p>7. Appeal — Disposition of Cause on Reversal.</p> <p>Where a declaration in a circuit court in a case in which the decision of the circuit court of appeals is final was perhaps fatally defective on one ground, but was amendable, and a demurrer, which under the practice of the court was confined to the causes specified, did not assign such ground, but was erroneously sustained and judgment rendered for the defendant, the circuit court of appeals will reverse the judgment and permit the plaintiff to apply to the circuit court for leave to amend.</p> <p>8. Action for Death from Negligence, &c. — Defect of Parties.</p> <p>Wile (her the declaration in this action, brought by the administratrix of the decedent in the circuit court in New Jersey, is fatally defective because under the statute of Pennsylvania, where the injury occurred, the action was required to be brought by the widow — quaere.</p>

<p>Jurisdiction of Federal Courts — Federal Question.</p> <p>To give a court of the United States jurisdiction of a cause, on the ground that it presents a federal question, such question must appear from plaintiff’s statement of his own cause of action, and his right to the relief sought must depend directly upon the construction of some provision of the constitution or laws of the United States. Jurisdiction cannot be sustained upon allegations that defendant does or may assert some right under such constitution or laws as a defense.</p>

<p>Xi Jurisdiction of Federal Courts — Injunctions Staying Proceedings m State Court.</p> <p>Rev. St § 720, prohibiting the granting of an injunction by a court of the United States to stay proceedings in any court of a state, except where authorized in bankruptcy proceedings, applies to injunctions directed to parties engaged in proceedings in the state court.</p> <p>2. Same.</p> <p>A Circuit court of the United States cannot enjoin the further prosecution of a suit in a state court on' the ground that such suit has been removed to tbe federal court, from which the injunction is sought, where', though a petition and bond for removal have been filed, no action thereon has been taken by the state court, nor has any copy of the record been entered in the federal court.</p> <p>3. Removal of Causes — Nature of Suit — Ancillary Proceedings.</p> <p>A petition to a state court, asking the appointment of a receiver in aid of execution, as authorized by a state statute, and that a judgment previously obtained in such court be declared a first lien on.property as against others claiming an interest therein, is purely an ancillary proceeding for the enforcement of the judgment, and is not removable.</p>

<p>1. Federal and State Courts — Jurisdiction over Property — Appointment of Receiver.</p> <p>The filing of a hill In a federal court against a corporation for the foreclosure of a mortgage on its property, and, as a necessary incident, the appointment of a receiver therefor, together with the entry thereon of an order by the court to show cause against the appointment of a receiver, and enjoining any transfer of the property, or any similar order tending towards possession of the property by the court, give the court jurisdiction over the mortgaged property, even before the service of process on the corporation, of which it cannot, he deprived by the appointment of a receiver by a state court in a suit, commenced subsequently, to which another corporation in actual possession of the properly was not made a party, 1</p> <p>2. Receivers-Constructive Possession op Property.</p> <p>Whether the appointment of a receiver for the property of a corporation, vests him with constructive possession of property in the actual possession of an adverse claimant, dei>ends on whether such claimant is a party to the suit, and his rights are subject to adjudication therein.</p> <p>3. Same — Foreclosure Suit — Property in Possession op Adverse Claimant.</p> <p>While a claim of paramount title adverse to the mortgagor cannot be tried in a suit to foreclose the mortgage, yet, where such claim rests upon a tax title subsequent to the mortgage, derived from an officer of the mortgagor, a corporation, who occupied such a fiduciary rela Hon to the property that the acquisition of the title by him amounted to a payment of the tax, such relation alone renders the claim subject to inquiry and adjudication in the foreclosure suit; and an allegation and showing of such facts, without contradiction, are sufficient to authorize the court to appoint a receiver for the property, though in the possession of the claimant, which authority will be exercised where it is further alleged, and fairly appears from the showing made, that, through collusion with the mortgagor, the claimant, for the comparatively insignificant amount of the taxes, has obtained possession of the entire property and franchises of the mortgagor corporation, and is receiving the income therefrom.</p>

<p>1, Judsment — Collateral Attack — Defect of Parties.-</p> <p>A railroad company executed a mortgage by which it conveyed certain lands it had received from a county in payment of a stock subscription to three trustees, and “to the survivor and survivors, successor and successors, of them,” as joint -tenants, to secure the payment of bonds. The mortgage further provided for the filling of vacancies in the office of trustee. The county subsequently brought: a suit to cancel dts conveyance of the lands to the company and the mortgage thereon, making the company and the original trustees defendants; service on the trustees being made by publication as nonresidents. Prior to the commencement of the action one of the trustees had died, and another died before the order for publica tion was returnable. Action was taken purporting to fill the vacancies so caused, blit no record thereof was made in the county where the mortgage was recorded; nor did the pleadings, which were filed on behalf of all the defendants, suggest either the deaths of the original trustees or the new appointments, although one of the appointees appeared of record as counsel, and such facts were not known to the county or its counsel until after final decree, which was rendered three years after the suit was commenced, and which sot aside and canceled the conveyance from the county and the mortgage, as to the lands in suit. Held that, conceding the regularity and validity of the appointment of the new trustees, it must be presumed, in support of the jurisdiction of ihe court, when collaterally attacked, that such appointments had not become effective by the acceptance of the appointees, and that the title under the mortgage remained in the survivor of the original trustees, and the decree was therefore a conclusive adjudication of the invalidity of the title of the company and its trustees.</p> <p>2. Corporations — Dissolution by Salk of Property — Validity of Service.</p> <p>Where a legislative act directing the sale of a railroad to satisfy a lien of the state especially jirovided that it should not be. construed to authorize the conveyance to the purchaser of any lands which had been conveyed io the railroad by counties, of which the company held a. large amount, the sale cannot be held to have worked a dissolution of the railroad corporation, so that a service upon its officers did not give a court jurisdiction over the company in a subsequent suit relating to such lands, especially where it appeared and contested the suit, and continued to exercise the powers of a corxioration for years thereafter.</p> <p>3. Laches — Attacking Validity of Decree.</p> <p>A delay of nearly 30 years by a claimant of land out of possession, before bringing suit, constitutes such laches as will preclude him from attacking the validity of a decree which adjudged the title to be in the defendant county, and under which it and its grantees have claimed ever since.</p> <p>4. Estoppel — Collection op Taxes by County.</p> <p>Where a claimant of lands adversely to a county and its grantees, pending litigation as to his rights, and with knowledge that he did not have the legal title, voluntarily procured the land to be assessed in his name, and paid the faxes thereon for a number of years, the acceptance of such taxes will not estop the county, nor its grantee having knowledge of such facts, from asserting title to the lands.</p> <p>6. Adverse Possession — Requisites—-Wild Lands.</p> <p>Acts of ownership exercised over wild and unoccupied lands, to constitute adverse possession as against the owner of the superior title, must be of a character so open, notorious, and unequivocal that they cannot fail to lie known to the true owner, and to advise him of the claim made; and loose testimony as to occasional acts by a claimant, such as the making of surveys or driving off trespassers, while at the same time the owner of the legal title of record was exercising similar acts, and was offering for sale and selling portions of the lands, is insufficient to establish such adverse possession as will ripen into title, and in such case the rule must be applied that possession follows him who- has the better title.</p>

<p>1. County — Power to Make Contract — Sale of Swamp Lands.</p> <p>A Missouri county, having power, under the statute, to sell its swamp lands, the proceeds to be devoted to their reclamation, and any surplus to- he paid into the school fund, entered into contraéis with a railroad company by which the latter, in consideration of the conveyance to it of certain swamp lands, agreed to construct levees for the drainage of swamps. No right in such levees, or to their use when compleled, was reserved to the railroad company. As constructed, they were continuous embankments, without culverts, bridges, or trestles, wore fairly well constructed for the purpose of drainage, and were accepted by the county officers, and a conveyance of the lands made. Held, that fhe transaction was not ultra vires on the part of the county, though its real purpose may have been to secure the construction of a railroad along such embankment.</p> <p>3. Same — Laches—Acquiescence in Conveyance.</p> <p>A county acquiesced in a conveyance of certain swamp lands made by its officers, for 20 years or more, without objection, recognizing the gran-' tee as the owner, and collecting taxes from the lands. Held that, though the transaction by which the, lands were disposed of may have been voidable, such acquiescence amountéd to a ratification, and the county was barred by its laches from asserting title, as against its grantee.</p> <p>3. Estoppel — Grantor in Defective Deed.</p> <p>A vendor who undertook to deliver a sufficient conveyance cannot take advantage of a defect in his own deed.</p> <p>4. Quieting Title — Equitable Jurisdiction of Federal Court — Possession of Complainant.</p> <p>A circuit court of the United States may entertain a suit in equity to quiet title to lands, where the complainant is in possession.</p>

<p>1. United States Courts — Following State Decisions.</p> <p>Decisions of a state court of last resort, which have become rules of property as to land titles within its limits, will be followed by the United States courts sitting therein.</p> <p>2. Same.</p> <p>Decisions of a state court of last resort construing a state statute will be followed by United States courts.</p> <p>8. Mortgages — Validity—Estoppel—Laches.</p> <p>Where the validity of a mortgage of land by a county to secure payment of a railroad stock subscription was not. questioned for more than 30 years after its issuance, and until after the property had been sold under foreclosure and passed to bona fide purchasers, the county is estopped by such laches from thereafter claiming that the mortgage was -invalid.</p> <p>4. 'Quieting Title — Purchaser with Notice.</p> <p>Where the holder of the legal title to swamp lands had such actual possession as the lands were susceptible of, he is entitled to a decree quieting his title, as against a subsequent purchaser from the common grantor, with notice of the record title.</p>

<p>Equity Practice — Final Record in Federal Courts — When Required.</p> <p>The final record in equity and admiralty causes, provided for by Rev. St. U. S. § 750, is intended to answer the purpose of the enrollment of the decree under the former chancery practice, which was primarily to provide a peismanent memorial of the rights of the parties as adjudicated; and no final record is required where there has been no adjudication inter partes, except in cases where there has been an adjudication of costs to officers when the record should he made. When a bill has been dismissed voluntarily or by stipulation of the parties, and the costs are paid, no final record is required. The special enrollment provided for by rule 15 of the United States courts for the district of Michigan, to be made on request of the solicitor of either party, is in addition to the final record directed by The statute.</p>

<p>Samo or Mortgage- — 'Transfer or Property by Debtor to Creditor — Presumption.</p> <p>When a mortgagor transfers to his mortgagee by the same transaction large portions of his real and personal property, by a deed of the real estate and by a bill of sale of a part and a pledge as collateral security of another portion of his personal property, and the considerations recited in the deed and the bill of sale are less than one-half of the value of the property described in them, (ho presumption is that the relation of mortgagor and mortgagee continued, and that the conveyances were made by wray of security; and the burden rests upon a creditor, who claims that the deed and the hill of sale evidence absolute sales, to overcome this presumption, and establish that fact by substantial and persuasive evidence.</p>

<p>1. Judgment — Equitable Relief against — Sufficiency of Bill.</p> <p>A bill to enjoin the construction of a drainage ditch established by a judgment of a circuit court of Indiana in proceedings for, that purpose, on the ground that such proceedings were void for want of notice to com-.-. plainant, is insufficient, unless it sets out the facts shown by the record in regard to such notice.</p> <p>2. Drainage — Proceedings under Indiana Statute — Jurisdiction.</p> <p>In proceedings under the Indiana statute for the establishment of a drainage ditch, the statute (2 Bums’ Rev. St. 1894, §§ 5628, 5624) requires the filing of a petition, which shall describe the lands which it is believed will be affected, and give the name of the owner of each tract, if known, and, if unknown, shall so state, but shall be sufficient to give jurisdiction if the land is described as belonging to the person who appears to be the owner on the last tax duplicate or transfer of record. It further provides, after prescribing the notice to be given the owners named in ihe petition, for a reference to the drainage commissioners, who shall locate the ditch, assess benefits and damages, and report the same, and that as respects lands embraced in the report, but not in the petition, notice of the report and hearing thereon shall be given in the same manner as required on the filing of the petition. Held, that the requirements of the petition as to the description of lands and the naming of the owners, as well as to the notice required, apply equally to the report of the commissioners as to lands mentioned therein for the first time, and that where such a report for the first time described lands over which the ditch was located, naming as the owner one who- was not the owner, and was not shown to bo by the last tax duplicate or records, and no notice to the real owner was given as required, and he had no- actual notice of the proceedings-, such proceedings, as to his lands, were void for want of jurisdiction.</p> <p>3. Same — Notice—Construction of Record Entry.</p> <p>A court record, in drainage proceedings, which sets out the evidence on which a finding as to service on the parties was1 made, may properly be construed as excluding any other or different notice than that shown by sucli evidence.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>The appellant filed in the circuit court a bill in equity, the substantial averments of which are as follows:</p> <p>That on September 2, 1891, the Columbia National Bank of Tacoma, Wash., was incorporated as a banking association, with a capital stock of $200,000, all of which was subscribed before January 12, 1892. That on January 12, 1892, a meeting of the shareholders was held, at which a resolution was adopted proposing to increase the capital of the association from $200,000 to $500,000, and authorizing the president or cashier, as soon as money should be paid in on said increased stock to the amount of $50,000, to certify the same to the comptroller of the currency. That on July .17, 1892, the complainant subscribed 50 shares of said proposed increase of capital, and paid to the association $5,000 on account, and received from the association an ordinary stock certificate, reciting that he was the owner of 50 shares. That on or about January 2, 1894, the complainant received from the association $200 dividend on his stgck. That on July 25, 1895, the board of directors adopted a resolution, reciting that whereas $150,000 of the increase of capital authorized by the resolution of January 12, 1892, had been paid in, and the remaining $150,000 of said proposed increase had not been paid, it was resolved that the unpaid portion be canceled and rescinded, and the paid-up capital of the association be fixed at $350,000, and that the comptroller of the currency be notified of the increase of $150,000, and that the same had been paid, and he be required to approve and issue a certificate of such increase, according to law. That thereupon the officers and directors of said association applied to the comptroller of the currency to approve an increase of the capital of the association in the sum of $150,000. That on August 9, 1895, the comptroller of the currency wrote to the cashier of the banking association a letter, as follows: “Sir: You are respectfully informed, after a careful investigation into the question of the increase of the capital stock of your bank, that I have determined to approve an increase in the sum of $150,000, upon the following condition: A meeting of the shareholders must be called for the purpose of considering the question of increasing the capital stock, and the notice of said meeting must be given to the shareholders, by mail or publication, thirty days prior to the date of holding the same, and must specifically state that the matter of increasing the capital stock in the sum of $150,000, making the capital, after increase, $350,000, will be considered at such meeting, and such other business as may properly come before it. If, at such meeting, a two-third’s stock vote is obtained in favor of said increase, and the leg-al requirements are fully met, the increase will receive my approval; it being my understanding that therd'is at present $150,000 which has been paid into the bank for the purpose of increasing the capital stock, and which has hitherto been reported as uncertified capital stock. The present assessment of 25 per cent, upon the present shareholders of the bank must stand and be collected. If necessary, after the increase of capital has been approved, a further assessment may be ordered, but this is a matter that will be determined later. All necessary blanks and instructions in the matter of the increase of capital stock aro herewith.inclosed.” That the articles of the banking association provided that meetings of its stockholders should be called by it s board of directors, or by three of its shareholders, by publishing noiice for 30 days in a newspaper published in the city of Tacoma, or by mailing to each shareholder notice in writing SÓ days before the time fixed for the meeting. That on August 9, 1895, the president and cashier of the association caused a notice, signed by them only, to be published in a daily newspaper at the city of Tacoma, of which the following is a copy: “A special meeting of the stockholders of the Columbia Na tional Bank of Tacoma, Washington, is hereby called for Monday, the 9th day of September, A. I). 1895, at 10 o’clock a. m., at the office of said bank, to take action in regard to the increase of the capital stock in the sum of $150,000, making- the capital, after increase, $350,000, which will be considered at said meeting, and to attend to any other business that may properly come before the meeting.” That the notice -was not published for 30 days continuously prior to the time fixed for the said meeting, or for any more than 20 of the days intervening between August 9, 1S95, and September 9, 1895, and no other notice of the proposed meeting was given to the stockholders, and that the complainant had no knowledge of said meeting, or of any intention to hold the same, until some time in August, 1897. That 58 shareholders of said association, owning in the aggregate .1,472 shares of the original capital of the association, purported to" be represented by proxies to vote their stock at said meeting. That on September 9, 1895, T. W. Bean, who held said proxies, and 9 stockholders of the association, who held 106 shares of the stock, held a meeting, and assumed to cast the vote of such shareholders In favor of the resolution to increase the capital stock as proposed. That thereafter, at the request of the directors and officers, but without the assent of the shareholders, one Charles P. Corbit applied to the comptroller of the currency for his approval of the increase; and on October 21, 1895, said Corbit, who was one of (he hoard of directors, delivered to the comptroller of the currency a letter in which he reviewed the financial condition of the association, stating- that its original capital was greatly Impaired, and that it was absolutely necessary, if the business of the association were to be continued, not only that its capital he increased as proposed by him, but that an assessment of from 30 to 50 per centum he levied upon all the capital of the association, including the increase of capital. That on October 23, 1895, the comptroller of the currency signed a certifícale, reciting that the capital stock had been increased in the sum of $150,000, and that said increase had been paid into the association as part of its capital, and that said increase was approved by him. That at the time when said instrument was so signed the comptroller had fully determined and then intended to appoint a receiver for said association, • and to wind up its affairs as an insolvent national hanking association, and that he signed said certificate solely for the purpose of making the subscribers to said increased capital liable to assessment by him to pay the debts of the association. That, after signing said certificate, the comptroller caused the same to be deposited in the post office at Washington, addressed to the association at Tacoma, but the certificate never reached its destination, never came into the possession of the association nor any of its officers, but was intercepted and retained by a bank examiner acting under instructions of the comptroller, and was afterwards turned over to the defendant, the receiver of the hanking '-association. That the complainant never assented to transfer'his subscription ■to the -increase of capital voted at the meeting of January 12, 1892, to that proposed or voted at the meeting of September' 9, 1895, and that the increase ■Of capital so proposed at the meeting of January 12, 1892, was never submitted to the comptroller for his approval or considered by him. That on October 24, 1895, Charles Cleary, a bank examiner, acting under instruction of ■the comptroller of the currency, took possession of the bank of said associa■tiohj.ahd all its books, records, and assets, and was, on October 30, 1895, appointed receiver by said comptroller, to wind up its affairs as an insolvent ■national bank, until he was succeeded by the defendant as such receiver. That until August 25, 1895, the complainant erroneously believed he was the ■•owner of 50 shares of stock of said association, and that proper proceedings had been taken to render valid the increased capital to which he had subscribed aS aforesaid, and that while under such erroneous belief, in August, 1895, :hé paid tb said association, at the request of its officers, $1,250, as an assessment upon the 50 shares of the capital. That on June 22, 1S96, the comptroller ■of the currency made an assessment of $G1 upon each of the shares of said .stock, and the defendant, under the same erroneous belief and mistake, paid, on-September 2,1896, to the defendant, $3,050 in compliance with said demand. That on or about August 1, 1890, the comptroller declared and paid to the ; creditors of said association whose claims had been allowed a dividend of 20 per .centum upon the amount of their several claims. That no debt of any kind was incurred by said association subsequent to the time of signing the certificate approving an increase of the capital. On October 23, 1895, the complainant in his bill offered to return to the association the money received by . him as dividend, or to credit the same upon his claim, as the court should direct. The prayer of the bill vas that the increase of capital to which the complainant subscribed be adjudged to have been abandoned by the association, and that the certificate issued by the comptroller be decreed null, and that the complainant be decreed to be a creditor of the bank to the amounts he had paid on assessments.</p>

<p>On Demurrer to Bill.</p>

<p>•On Petition for Rehearing. Denied.</p> <p>■For former opinion, see 84 Fed. 737,</p>

<p>On Application for Leave to Intervene.</p>

<p>On Application for Approval of Appeal Bond.</p>

<p>Receiver — Distribution of Fund of Receivership — Claim against Receiver for Conversion.</p> <p>A claim by an unsuccessful defendant, in an action to recover tbe possession of land, that a receiver appointed to harvest and sell the crops from the land pending the action trespassed on other land, and took possession of and sold crops therefrom owned by defendant,, cannot be heard and determined on distribution of the fund in the hands of the receiver.</p>

<p>1. Public Lands Reservations in Patent — Right op Way por Ditches or Canals.</p> <p>To bring a right of way for a flitch or canal within a reservation in a patent for public lands in pursuance of Roy. St. § 2339, in favor of such rights, when they have accrued and vested under local customs, laws, and decisions, it is not necessary that a local custom in the immediate vicinity be shown, but it is sufficient if such custom is established with reference to the state as a whole.</p> <p>2. Sauk.</p> <p>When land included in a railroad grant reverts to the government, a subsequent patentee under the homestead laws takes the title subject to the rigid of way for a ditch or cana! over it which was acquired prior to his entry; and it is immaterial whether the appropriation was made prior or subsequent to the time the government was reinvested with title.</p> <p>3. Eminent Domain — Appropriation op Eight op Way — Subsequent Conveyance op Land.</p> <p>When a company having the power of eminent domain has entered into possession of land necessary for its corporate purposes, whether with or without the consent of the owner, a subsequent vendee of such owner takes the land subject to the burden placed upon it, and the right to pay - ment or damages from the company belongs to the owner at the time it took possession.</p> <p>4. Same — Public Use — Flume por Carrying Lumber.</p> <p>The construction of a flume to convey lumber from mills to a city is a work of such a public character as will authorize the condemnation of right of way therefor under 1he statutes of Oregon.</p> <p>5. Injunction — Interference with Use op Easement.</p> <p>Defendant acquired the ownership of land over which a flume had previously been constructed by a mill company, and continued to reside upon it for a number of years, without making any objections to the maintenance of the flume, until he sought to collect a claim from the mill company for wages. It appeared that his damages from the existence of the flume were merely nominal. Held, that the company was entitled to a preliminary injunction to restrain him from committing a threatened injury to the flume.</p>

In January, 1837, Stephen D. Bayer filed his, creditors’ bill in the court below against the Englewood & Chicago Electric Street Railway Company to enforce payment of a certain judgment by him recovered against that company. Subsequently a suit was brought for the foreclosure of a mortgage given upon the railway to secure certain bonds.

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

<p>Insolvent Corporation — Claim for Attorney’s Services.</p> <p>A finding by the court, in sustaining exceptions to a master’s report, that services rendered by an attorney who was a stockholder and creditor, and had been one of the officers of a corporation, were not for the benefit of the corporation, but in furtherance of a plan to wreck it, and therefore would not support a claim for compensation from the receiver, iheld to be supported by the evidence.</p>

.This was an action to recover damages for a breach of the following contract: “Agreement made this 29th day of April, Anno Domini one thousand eight hundred and ninety-three, between J. B. Ford, first party, and John Robert Watson, second parts'-, witnesseth: Whereas, said first party is the owner of certain property and improvements situate at Wyandotte, Michigan, and contemplates the use and operation thereof for the purpose of manufacturing soda ash and other chemicals;…

This was an appeal by the defendant from the decision of a commissioner ordering Ms deportation as a Chinese laborer unlawfully in the United States.

<p>.The plaintiffs, who are commission grain merchants at Kansas City, Mo., brought action against the defendant, a shipper of grain from Otis, Ka,n., on a contract calling for the sale of 15,000 bushels of Ko. 2 hard wheat, at 57 ceuts per bushel on the cars at Otis, Kim., to he inspected by the state inspector and weighed at Kansas City, Mo., after deducting the expenses of weighing and inspection.</p> <p>The second count of the petition upon which the court rendered judgment claimed as damages a shortage in the quantity shipped ÍJby the defendant; and also for damages in the difference in the quality of the wheat shipped; also for profits which would have been realized by the plaintiffs on the quantity and quality of the wheat called for by the contract, had the same been delivered; and also for an excess of drafts paid over and above the correct quantity of the wheat shipped. A jury being waived, the cause was submitted to the court on the pleadings and the evidence. The court made a special finding of facts, and declared the law to be that plaintiffs are entitled to recover of the defendant the sum of S494.08 on account of draffs paid over and above the correct quantity of wheat shipped; also the sum of $166.95, difference in the market value of No. 2 hard wheat, which should have been shipped, and No. 3 hard wheat, actually shipped; and also $41.90, damages for the failure of the defendant to deliver the full quantity of 15,000 bushels of wheat called for by the contract. And the court also found against the defendant on Ills counterclaim for damages based upon the alleged conversion by plaintiffs of flic No. 3 hard wheat shipped by defendant to plaintiffs; which defendant, in his counterclaim, asserted the plaintiffs were unauthorized to appropriate under the contract. The further essential facts sufficiently appear from the following opinion of the court.</p>

<p>1. Carriers — Construction of Contract of Carriage.</p> <p>A carrier under a contract for the carriage and delivery on a dock of heavy castings weighing several tons each constituting a part of machinery to he erected by the shipper is not bound to turn the eastings over ■ on delivering them, so as to leave them in position for placing together, in the absence of a special agreement to that effect.</p> <p>2. Same — Injury to Goods in Shipment — Presumption of Negligence.</p> <p>The fact that a easting was shipped in good order and was found cracked on delivery is presumptive evidence of negligence on the part of the carrier, and casts upon it the burden of proving in what manner the breakage occurred.</p>

<p>1. Review — Motion for Nonsuit — Denial—Exception—Waiver.</p> <p>Introduction of evidence by defendant after the overruling of his motion for nonsuit is a waiver of any exception to the ruling.</p> <p>2. Same — Motion for New Trial — Denial.</p> <p>Denial of a motion for a new trial cannot be reviewed on appeal in United States courts.</p> <p>3. Mines and Minerals —Vendor and Purchaser — Recovery of Price— Pleading.</p> <p>Where, in the sale of a mine, it, and not the stock of the corporation owner, was the subject of the transfer, and the stock was transferred as a mere incident and means of conveying the mine, a complaint in an action to recover the money paid for fraud, alleging that the mine was of no value, was not insufficient for failure to state that the stock was also worthless.</p> <p>4. Trial — Defective Complaint — Cured by Verdict.</p> <p>After verdict and judgment, it will he presumed that facts necessary to support it were proved, and in all formal and technical matters the complaint will he treated as amended to conform to the facts.</p>

<p>1. United States Commissioners in Indian Territory — Jurisdiction.</p> <p>1 Sand. & H. Dig. Ark. § 4317, provides that justices of the peace shall have concurrent jurisdiction with the circuit court in matters of contract where the amount in controversy does not exceed $300; and United States commissioners in Indian Territory have the same jurisdiction as justices of the peace in Arkansas. Held, that an action to recover the value of goods lost through the negligence of a carrier was an action for breach of contract, and hence -a United States commissioner of Indian Territory had jurisdiction thereof, the amount claimed not exceeding the statutory limit.</p> <p>2. Witnesses — Husband and Wife — Competency.</p> <p>Under Sand. & H. Dig. Ark. § 2916, declaring that a husband shall be ■allowed to testify for his wife in any business transacted as her agent, a husband acting as his wife’s agent in the shipment of goods was competent to testify in an action against a carrier by the wife for their loss.</p> <p>3. Trial — Motion to Strike — Evidence.</p> <p>Where part of a witness’ testimony is competent, a motion “to strike out all of his testimony” is too broad, and was properly overruled.</p>

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

<p>1. Review — Appeal or Error.</p> <p>Where a federal court, on the sale in foreclosure proceedings of railroad property which has been operated by its receivers, makes it a condition of the sale that the purchaser shall pay, An addition to the amount bid, as a part 'Of the purchase price of the property, all claims which may be legally established against the receivers growing out of their operation of the road, and retains jurisdiction of the cause for the purpose of enforcing such conditions, and subsequently grants leave to a claimant . to bring an appropriate action on his claim, which he does on the law side of the court, while any judgment recovered is required to be brought into the equity suit to be fixed as a lien on the property, and enforced under the decree, the action itself is a separate action at law, and is properly reviewable by writ of error.</p> <p>2. Parties — Action on Claim against Receivers after Their Discharge— Purchaser of Property.</p> <p>Under a decree in a railroad foreclosure suit, which requires the purchaser of the property, as a part of the consideration therefor, to pay all valid claims against the receivers growing out of their operation of the road, and reserves 'the right to the court to enforce such claims against the property, the purchaser is a proper party defendant to an action on such a claim, being entitled to defend, and, in an action commenced after the property has been conveyed to it and the receivers have ' been discharged, it may properly be made sole defendant. '</p> <p>3. Railroads — Injury to Person on Track — Contributory Negligence.</p> <p>Plaintiff was walking in the daytime on defendant’s railroad track, across a bridge about 100 feet long, which was customarily used by thepublic as a footway, with the knowledge and acquiescence of the defendant. When at about the center of the bridge plaintiff was struck and injured by an engine, which approached him from behind. The evidence showed that those in charge of the engine were negligent in failing to give any signal or warning of its approach. Both plaintiff! and a companion testified that, on going upon the bridge, they looked back along the track, which could be seen for six or seven hundred feet, and that no engine was in sight. There was room upon the bridge for the plaintiff to have stepped aside and avoided injury, field, that plaintiff could not be said, as a matter of law, to have been guilty of contributory negligence, but, under the circumstances shown, the question was one for the jury, under proper instructions.</p>

On June 11, 1898, the Postal Telegraph Gable Company, a. corporation of New York, filed in the office of the clerk of the superior court of Guilford county, N. O., a petition, making the Southern Railway Company the sole defendant, to obtain by condemnation the right to construct, maintain, and operate a telegraph line along and upon the right of way of the Southern Railway Company, from a point on the state line between the states of North Carolina and Virginia south to…

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

This is an action in the name of the United States, for the use and benefit of Ellen Sica, against Charles U. Kimpland, impleaded with others, on a bond given by contractors for public work. Heard on demurrer of the defendant Kimpland to the complaint.

<p>1. Contract — Delay in Performance — Waiver. ,</p> <p>Where plaintiff agreed to furnish certain, machinery by a fixed time, but failed to perform his contract in time, and defendant did not cancel the contract; or release plaintiff from its obligation thereunder, or reject the machinery and material, when tendered, as coming too late, but accepted them and put them into use, the stipulation as to time was waived, and the obligation to pay the agreed price was complete, subject to the right to recoup the damages, if any liability therefor had been incurred by plaintiff.</p> <p>2. Same — Damages—Measure.</p> <p>Plaintiff agreed to furnish certain machinery within 90 days from the approval of the contract; foundation and material therefor to be put in place, ready for. machinery, by defendant, the purchaser, but to be constructed under plans furnished by plaintiff, who was to furnish experts to superintend the erection of the plant. Shortly after the execution of the contract, plaintiff demanded a modification thereof so as to make the notes given for the price payable in gold. The delay consequent on this desired change resulted in failure to perform the contract within the specified time. The plan for the construction, of the foundation was not supplied'promptly by plaintiff, and defendant did not put in the foundations ready for the apparatus until after the 90 days had expired within which the contract was to be performed. Defendant alleged that its failure to construct the foundations was the result of the failure of plaintiff to furnish the plans, and of plaintiff’s announcement that it would not perform the contract unless the alterations in the contract were made. Held, that as the failure of defendant to furnish the foundations in due time was, to a certain extent, the fault of defendant, in that, if it had performed on its part, the damages alleged to have resulted to it from the delay would have been in part reduced, defendant will not be allowed the entire amount of damages which it claims to have suffered by reason of the delay in the completion of the contract, but the amount of interest that it would have paid on the notes that it was to give for the purchase price, but which it failed to give, from the time the work was accepted until the time of bringing suit.</p>

This is a proceeding for tbe disbarment of defendant as an attorney. Heard on motions and demurrer attacking tbe sufficiency of tbe petition.

<p>Bankruptcy — Examination of Witnesses — Wife of Bankrupt.</p> <p>Whore, by the law of the state in which the proceedings are had, a wife cannot be a witness for or against her husband, she cannot bo required, in proceedings in bankruptcy against the husband, to testify concerning property in her possession alleged to have been conveyed to her in fraud of ihe bankrupt’s creditors. The trustee in bankruptcy, seeking to recover such property, should proceed by bill of discovery against the wife.</p>

<p>1. Bankruptcy — Proof of Debt — Statement of Consideration.</p> <p>In a proof of debt in bankruptcy, tbe statement of the consideration must be sufficiently full and specific to enable other creditors to pursue proper and legitimate inquiries as to the fairness and legality of the claim. If too meager or general to serve this purpose, it will be held insufficient, and the proof of debt will be expunged, unless amended on leave.</p> <p>2. Same.</p> <p>In a proof of debt by attorneys at law against the estate of a bankrupt, a statement that “the consideration for said debt is for legal services performed for said bankrupt during the year 1898” is insufficient. Unless itemized -and made specific, on leave given to amend, the claim will be expunged.</p>

<p>1. Bankruptcy-Assets — Proceeds oe Execution Sale.</p> <p>Where a judgment has been recovered in a state court, execution issued, and levied on personal property, and sale thereunder made by the sheriff, bolore the commencement of proceedings in bankruptcy against the debtor, the proceeds oí sale, remaining in the hands of the sheriff, are beyond the jurisdiction of the court of bankruptcy, and lie will not be enjoined from paying the same to the execution creditor; and it is immaterial that the time'limited hy law for the sheriff to make his return has not yet expired, the creditor’s title’to the money being eonqilete from the sale. «</p> <p>2. Same — Dissolution of Liens.</p> <p>Bankrupt Act 1898, § 67, subsec. c, providing that “a lien created by or bbtained in or pursuant to any suit or proceeding at law or in equity * * * which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person, shall be dissolved by the adjudication of such person to be a bankrupt,” if fraudulent or preferential, does not affect the lien of an execution issued and levied within the four months, but founded on a judgment recovered two years before.</p> <p>3. Same — 'Voluntary and Involuntary Oases.</p> <p>Bankrupt Act 1898, § 67, subsec. f, providing that “all levies, judgments, ■ attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months. prior to the filing of a petition in bankruptcy against him, shall be deemed null’and void in ease he is adjudged a bankrupt,” applies only to cases of involuntary bankruptcy.</p>

<p>In Bankruptcy. On review of decision of referee.</p>

<p>In Bankruptcy. On petition of the Birmingham Dry-Goods Company, a proving creditor, for review of an order of the referee in bankruptcy in the matter of the allowance of exemptions to the bankrupt.</p>

In Bankruptcy. On application for injunction. This petition for involuntary bankruptcy was filed on the 8th of November, 3898.

<p>1. Bankruptcy — Costs of Administration — Fees of Bankrupt’s Attorney.</p> <p>In a case of voluntary bankruptcy, an attorney’s fee for legal services rendered to tbe bankrupt bimself is not entitled to priority of payment out of the estate; but an allowance may be made to the attorney of the bankrupt for services rendered in preserving the estate pending the appointment of a trustee.</p> <p>2. Same — Fees of Attorney for Trustee.</p> <p>. ■ A trustee in bankruptcy may employ counsel when the situation of the estate is such that he requires legal assistance; and the fees of such counsel, to a reasonable amount, for services properly and actually rendered to the trustee, may be allowed as part of the cost of administering the estate.</p> <p>3. Same — Allowance by Beferee — Notice to Creditors.</p> <p>The question of allowing counsel fees as part of the cost of administering a bankrupt’s estate may be determined by the referee ex parte; notice to creditors of the hearing thereon is not a prerequisite to the validity of his action in the matter.</p>

<p>In Bankruptcy. On application of bankrupt for discharge.</p>

This is an application by the United States for the review of a decision of the board of general appraisers as to the classification of certain merchandise imported by Chee Chong & Co.

This cause comes here upon appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the boárd of general appraisers which sustained a decision of the collector of the port’of New York classifying a certain importation of tobacco for customs duty. 87 Fed. 201. .The importation consists of those portions of the leaf tobacco which break off in handling the tobacco before it is stemmed, or in the process of stripping.

<p>On Demurrer to Bill.</p>

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

This was a suit in equity by the Adams & Westlake Company and others against the E. T. Burrowes Company for the alleged infringement of letters patent No. 513,307, issued to George H. Crissen January 23,1894, for window or curtain fixtures.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit in equity by Isaac E. Palmer against Cornelius C. Curnen and Edmund Steiner for alleged infringement of letters patent No. 272,311, granted February 13, 1883, to the complainant, for improvements in hammocks. The circuit court held that, even if the patent was valid as to the claims in issue (Nos. 4 and 8), they were not infringed by defendants’ devices. 84- Fed. 829. From this decision the complainant appealed..</p>

<p>This was a suit in equity by George L, Smith, individually and as administrator, etc., against Harry B. Maxwell, for alleged (infringement of a patent for improvement in bridles.</p>

<p>■ This was a, suit in equity by Thomas F. Moore against Thomas Marnell for alleged infringement of a patent for improvements in apparatus used in digging sewer trenches.</p>

<p>In Admiralty. Death claim. Pilot boat.</p>

<p>1 Admiralty — Charter Party — Breach — Action In Personam — United States District Court — Jurisdiction.</p> <p>A charter party for the transportation of lumber entirely by boat from the port of shipment to that of destination, is a maritime contract, and therefore the United States district court has jurisdiction of an action in personam in admiralty for its breach.</p> <p>2. Same — Defenses—Evidence.</p> <p>Where defendant, having received a lower rate from other shipowners, failed to ship lumber as agreed by a charter party with libelant, which defendant made with the master of the ship, who was an entire stranger to him, and whom he testified he believed was the owner of the vessel, and the entire, freight, not being passable until after delivery, was security for the performance of the contract, his defense to an action for its breach, that he was induced to make it by fraudulent representations that the master was the owner, and that, had he known that defendant was the owner, lie would not have chartered the vessel, was not sustained by the evidence.</p>

<p>1. Shipping — Discharge of Contraband Cargo.</p> <p>Although provisions in a hill of lading permit the discharge of cargo at other ports than that to which it is consigned in case of circumstances of war, w.nich, in the opinion of the master, render it unsafe to enter or discharge there, the master, as agent of all concerned, is hound to exercise prudence to protect the interests of the cargo as well as the vessel, and the discharge of cargo hy him at another port, as being contraband of war, is not justified unless the facts show that there was reasonable necessity therefor.</p> <p>2. Same — Facts Considered.</p> <p>The Austrian steamship Styria was loaded at an Italian port with a cargo of sulphur consigned to New York, and cleared on April 24, 1898. On the day before, a Spanish proclamation was issued, declaring the existence of a state of war between Spain and the United States, and in which sulphur was declared contraband. On April 27th, the master, who had not sailed, commenced the discharge of the cargo, which was completed May 7th. Almost immediately after the declaration of war the public prints contained statements of negotiations lor the purpose of having sulphur exempted from contraband goods, and repeatedly stated that such efforts would be successful, of which statements the master was aware, and also of the announcement of their success,,and he was also notified of such result by one of the shippers before the discharge of the cargo was conrpleted. At the next Italian port, to which he went for a new cargo on May 10th, he .heard read an official announcement to the same effect, though it had not been publicly proclaimed. Other vessels sailed at about the same time he cleared with cargoes of sulphur, and were not molested. Held that, under the circumstances, it was his duty to wait a reasonable time before discharging the cargo, and, as he had reasonable assurance of safety by May 10th, he was not justified in such discharge.</p> <p>3. Same — Transshipment of Cargo.</p> <p>If the vessel in such case was justified in discharging the cargo under a clause of the hill of lading permitting her to transship in case of emergency, rather than to subject .herself to a delay of unknown duration, such clause being- for the benefit of the vessel alone, on its being ascertained that she might have proceeded within a reasonable time, the cost of the discharge, storage, and reloading must he borne by her.</p> <p>4 Same — Construction of Bill of Lading — Measure of Damages for Injury to Cargo.</p> <p>A stipulation in a bill of lading limiting the liability of the vessel to the invoice or declared value of the goods does not authorize the carrier to deduct the freight from such value in ease of loss or damage.</p>

<p>Tins was a libel by John Anderson and others against the schooner A. M. Baxter to recover wages as searneu.</p>

<p>Maritime Liens — Brokerage Commissions for Procuring Seamen.</p> <p>Brokers employed to negotiate contracts incidental to commerce carried on by vessels navigating the seas, such as shipping agents employed to procure crews for vessels, are not entitled to a lien upon the vessels for their commissions.</p>

<p>On Application for Distribution of Fund Arising from Sale of Libeled Vessels.</p>

<p>This was a libel by William Spaulding and others against the steamship Aggi to recover damages for’ an injury to cargo.</p>

This was a libel by Eduardo Capitano against the steamship Baron Innerdale to recover damages for a personal injury, on the ground of negligence.

<p>Í. Admiralty Practice — Claimant's Bond.</p> <p>Where, on motion of a libelant in rem, the court makes an order setting asido a sale of the libeled vessel under a decree entered at the same term in another suit, unless a bond is. given by the claimant and-he furnishes an ordinary claimant’s bond, such bond is available to the libelant in ease of his recovery.</p> <p>2. Maritime Linns — Nature of Vessel — Barge.</p> <p>A barge, 1 hough without means of self-propulsion, is subject to a maritime lien for breach of a contract of hiring to tlie same extent as any other vessel.</p> <p>3. Same — Lien of Charterer for Damages Caused by Onseawortutness— Lease or Demise of Vessel.</p> <p>If a vessel be let to a carrier for a voyage, or for a day, or other time, at an agreed lírico per day, with a warranty of seaworthiness, anil with a, stipulation that the hirer shall provide crew and everything for 1he purpose of her navigation, and if by her unsea.wortlnne.ss a cargo received by the carrier for transportation is injured, and the damage is discharged by tlie carrier, he has a lien on the vessel for the amount of such damages, and may recover the same in an action in. rem against the ship.</p> <p>4. Shipping — Chartering of Vessel — Implied Warranty op Seaworthiness.</p> <p>Whore a vessel Is chaffered or let, there is an implied warranty on the part of (he owner that it is seaworthy, and sul’icieut for the use to which it is to be devoted.</p> <p>5. Maritime Liens — Effect of Provisions of Charter Party — Subrogation of Charterer to Lien of Cargo Owner.</p> <p>Where a charter party amounts to a demise or lease of the vessel, the owner surrendering to the charterer tlie entire possession and control, 1he latter takes the place of the owner, and becomes responsible as such, to shippers for (¡amagas for injuries to the cargo, though the vessel remains liable therefor; and where, in discharge of liis personal liability, he pays such damages, and they resulted from the fault of the ship, — as from her unseaworlliiiiess, — he is subrogated to the lien of the cargo owner therefor, his relation to the ship as to such damages being that of surety.</p> <p>6. Same — Injury to Cargo — Eight of Charterer to Enforce.</p> <p>A charterer, as carrier, is so far the representative of the owner of the cargo that he may sue in his own name for an injury thereto, and may maintain an action in rem for such injury against the carrying ship where the cargo owner could do so.</p> <p>7. Admiralty Jurisdiction — Maritime Contract.</p> <p>An action for damages growing out of the breach of a contract for the hiring of a barge by reason of its unseawortliiuess, which caused injury to the cargo while the barge ivas at sea on a voyage, is based upon a maritime contract, and is within the jurisdiction of a court of admiralty.</p>

<p>1. Collision.</p> <p>At the time of a collision in the Narrows, the channel had been mined 1 by the government, leaving an irregular passage, marked by buoys, which varied in width from 100 feet between the middle buoys to 1,100 and 1,230 feet between the upper and lower ones, respectively. Patrol boats were stationed at either end, and, on the steamer C. coming in, she was directed to go to the west side of the passage, and, on passing the middle buoys, changed her course to port until she was near the line of the west buoys, when she straightened. Tug G. with a tow, followed by the Ceres and tow, on coming down, were notified to keep to the east, and the G. signaled the C. that she would pass on the east side, which she did; but 1 lie Ceres, without signaling, passed diagonally across the passage, so that the Iasi scow of her tow swung close to Ilia west buoy, and was rim into by the O. Held, that the collision was caused by the failure of the Oeres to keep to the eastward as directed, and that the O. was not liable for the injury.</p> <p>2. Same- AIaníeuvke tst Extbemts.</p> <p>II ho fad that the O. stoppied her engines three minutes before the col lisiou, and backed one minute, thereby canting her head slightly to the starboard, nearer the scow, being a manoeuvre “in extremis,” and in comnliauce with the rule requiring reversal in imminent danger, did not render her at fault.</p>

<p>This was a libel in rem against: the steam tug Mars to recover damages for collision.</p>

<p>In Admiralty. Collision.</p>

<p>This is a libel for collision filed by James Hughes against the Pennsylvania Bailroad Company and another.</p>

<p>On Mo don for Preliminary Injunction.</p>

<p>1. Circuit Court or Appeals — -Jurisdictional Questions.</p> <p>The circuit court of appeals lias no authority, under its appellate powers, 1o adjudge whether the court below erroneously determined that it had jurisdiction of the person of defendant Act March 3, 1891, §§ 5, 6.</p> <p>2. Administration — Nonresidents—Decree—Collateral Attack.</p> <p>Code Civ. Froc. N. Y. § 2476, authorizes the surrogate’s court to grant letters of administration “where the decedent, not being a resident of tlio state, died without the state leaving personal property within” the county, “or leaving personal property which has since his death come into” the county, “and remains nnadminisiered.” Held, that where the petition for letters alleged that decedent, a nonresident, died possessed of personalty which since his death had come into the county, and there was no allegation that the property remained unadministered, and no evidence of that fact, and the decree recited no jurisdictional fact, but was bared on the petition, and the letters recited that decedent died intestate, not being an inhabitant of the county, “but leaving assets therein,” but there was no evidence of the latter fact, the grant of letters was without jurisdiction, and hence subject to collateral attack.</p>

This is a libel in rem to recover for material and supplies furnished the schooner'yacht Presto.

<p>On Motion to Remand.</p>

<p>1. Voluntary Associations — Validity of Agreement for Community of Property.</p> <p>Written agreements, signed by the members of a voluntary society from time to time, which form the constitution of the society, and which provide for the community of property, and that neither a withdrawing member nor the representatives of one deceased shall have any claim on the society or its property on account of the contributions of sucli member thereto, constitute valid contracts, and no claim so arising is enforceable so long as tbe society continues in existence.</p> <p>2. Same — Rights of Withdrawing Members — Limitation.</p> <p>Claims against tbe property of a voluntary society or community in favor of withdrawing members, if legal and enforceable, are barred by lapse of time where no attempt is made to enforce them for nearly 70 years after the withdrawal.</p>

<p>In the matter of the intervening petition of the Rhode Island Locomotive Works.</p>

<p>On Petition of Alice Barrett for Leave to Intervene as Co-Plaintiff.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This is an appeal by each defendant from a decree of the circuit court for the Northern district of New York (85 Fed. 325) upon a bill in equity which prayed for the specific performance of a contract by one of the defendants for the sale of real estate, and that the legal title to a portion of the land that was conveyed by one defendant to the other should be declared to be held in trust for the complainant.</p>

The Land, Mortgage, Investment & Agency Company of America, Limited, —an English corporation, — owned a tract of land in Lowndes county, Miss. This tract of land was sold by said company on June 4, 1894, to. the county of Lowndes, for the sum of $6,000. The county of Lowndes paid $1,000 cash, and the board of supervisors gave obligations of the county for payment of balance of purchase money, — 10 notes, of $500 ea&h, payable January 1, 1895, to January 1, 1904, inclusive.

<p>Appeal from the Circuit Court of the United States for the District of South Carolina.</p> <p>The Carolina, Cumberland Gap & Chicago Railroad Company was a corporation formed by the consolidation and merger of various railroad companies chartered by the state of South Carolina with a view to the construction • of a railroad from the town of Aiken, in South Carolina, to a point in the valley of the Ohio river; and 24 miles were constructed, extending from the town of Aiken to the town of Edgefield. A mortgage was executed November 1, 1S82, to the Farmers’ Loan & Trust Company of New York, to secure bonds to the amount of $550,000; and upon the construction of this section, in the year 1888, 550 bonds, each of the value of $1,000, were issued. On May 1, 1890, the road was leased to the receiver of the South Carolina Railway Company, at an annual rental of $18,750, less taxes, for the period of the receivership, which continued until May 15th in the year 1894, when, the South Carolina Railway Company having been sold, the South Carolina & Georgia Railroad Company became its successor. On November 27, 1893, Neil McDonald, claim- ' ing to be the holder of a large amount of the first mortgage bonds, commenced proceedings in the court of common pleas for Aiken county, in the state of South Carolina, alleging that coupons of said bonds to the amount of $3,210 were past due and unpaid, that the corporation was insolvent, and that its equipment ivas totally inadequate to pay its first mortgage bonds, and praying the appointment of a receiver; and on December 1, 1893, Wilbur F. Herbert was appointed by the presiding- judge of that court receiver of the company, with the usual powers of receivers, and gave bond, filed an inventory, and took charge of the road. In this proceeding there were no parties except the plaintiff and the defendant company. On April 27, 1894, an order was entered giving plaintiff leave to amend his proceedings by bringing in as defendants T. G. Croft and others, holders of a small amount of bonds and stock, and also giving leave to join as party plaintiff the Farmers’ Loan & Trust Company. Leave was also granted to plaintiff to amend his complaint by adding such allegations as might be necessary to obtain a decree of foreclosure. On November 28, 1894, the Farmers’ Loan & Trust Company filed a petition in said cause, setting forth that it is one of the plaintiffs in that suit, that it is a nonresident, that the matter in dispute exceeded in amount the sum of $2,000, that the order making it a party plaintiff had only come to its knowledge since the last term of-the court, and praying that the cause be removed to the United States circuit court. A removal bond was filed with the petition, but no order of removal was entered. On November 30, 1894, the Farmers’ Loan & Trust Company filed a bill in the United States circuit court for the foreclosure of the mortgage; and on the same day Wilbur If. Herbert was appointed receiver, with the usual powers of receivers, and he was directed to' take possession, and to operate the road. There was no reference, either in the bill or in the order appointing the receiver, to the proceedings in the state court. On January 17, 1895, an order was entered in the United States circuit court, in a cause entitled "Neil McDonald, Plaintiff, v. The Carolina, Cumberland Gap & Chicago Railway Company and others, Defendants,” reciting the consent of all the counsel therein to the removal from the state court, and ordering that the same be removed, and that the cause be consolidated with the suit of the Farmers’ Loan & Trust Company. Thenceforth all the orders entered were entitled in. both causes. When the South Carolina Railway was sold, and .the receivership terminated, the agreement for the operation of the road from Aiken io Edgefield by said receiver was, by its terms, ended, and a new agreement between the South Carolina & Georgia Railroad Company, its successor, and Wilbur E. Herbert, was entered into, by a correspondence which is as follows:</p> <p>“June 4th, 189-1. ■</p> <p>“Mr. W. If. Herbert, Jr., Receiver Carolina, Cumberland Gap & Chicago Railway Go., No. G Wall Street, N. Y. City — Hear Sir: Referring to our conversation this morning, I write to make the following proposition for the operation of your railroad, viz.: The old arrangement with the receiver of the South Carolina Railway Company, to pay a fixed rental, to continue until May loth, J89-L Erom May 35th, 1894, to July 15th, 3894, the South Carolina and Georgia R. R. Co. to operate the Carolina, Cumberland Gap & Chicago Ry., wi'liout making any charge, under the head of general expenses, for the auditing of and keeping of its accounts. The present basis of divisions of earnings between the two roads to remain in force. The South Carolina and Georgia R. R. Co. to turn over to the Carolina, Cumberland Gap & Chicago ■Railway Co. all net revenue earned by s,aid road, after deducting the actual cost of operation; the said cost of operation to consist of the maintenance of way and the structures for the road, cost of conducting transportation, and the cost of maintaining the machinery and equipment used in its operation. The terms, viz. ‘general expenses,’ ‘maintenance of way and structures,’ ‘maintenance of equipment,’ and ‘conducting transportation,’ being used as now applied to the distribution of expenses of the South Carolina and Georgia R. R. Co., or as applied by the interstate commerce commission in the distribution of expenses in 1893-91. Settlements of accounts to he made monthly, within thirty days after the close of each month, based on the monthly report of the operation of the road. The proportion of coaches used in running trains between Edgefield and Augusta to be furnished by each company on the basis of mileage. The South Carolina & Georgia R. R. Co. not to be responsible for any taxes or assessments of any character, either state, county, or municipal; nor is it to be responsible for any of the exi)enses which have been, or may hereafter be, incurred by Hie receiver of the Carolina, Cumberland Gap and Chicago R. R., or any of its officers, agents, or employes, nor for any of the expenses of the Carolina, Cumberland Gap & Chicago Ry. Co., or its officers, agents, or employes. The South Carolina & Georgia R. R. not to be, held responsible to the said Carolina, Cumberland Gap & Chicago Ry. Co., or its receiver, or accountable in any way, for any accident or damages to either persons or property that may occur on the line of the Carolina, Cumberland Gap & Chicago Ry. in iis operation, and to be held harmless and be indemnified from any suits, actions, or damages against said South Carolina & Georgia It. R. Co. by reason thereof. This letter (pending negotiations for a more permanent agreement), with your reply confirming the same, to constitute a temporary agreement or contract to July 45th, 3894. Yours, truly,</p> <p>“(Signed] ' Charles Parsons, President.”</p> <p>“Carolina, Cumberland Gap & Chicago Railway Company.</p> <p>“Office, 6 Wall Street, New York.</p> <p>“Wilbur E. Herbert, Jr., Receiver.</p> <p>“June 5th, 1894.</p> <p>“Charles Parsons, Esq., Pres. S. O. & G. R. It. Co., No. 90 Broadway, N. Y. - Hear Sir: Your proposition for the operation of this road, dated the 4th inst., is received; and the same is accepted, subject to the approval of the court, and to one or two minor provisions, to wit: That charges for labor, material, and supplies should be made at rates not to exceed those paid by your road; that extraordinary repairs to roadway, bridges, and rolling si;oek shall not be made until 1 have been advised thereof; and, lastly, that this company’s accounts, as kept by your auditor, shall at all times he open to the inspection of the writer. I would request a statement: of earnings and expenses for tlie month of May at as early a, date as possible, and that a statement of the gross earnings be rendered to me weekly thereafter. Yours, truly,</p> <p>“ISigned] Wilbur E. Herbert, Jr., Receiver.”'</p> <p>“Carolina, Cumberland Gap and Chicago Railway Company.</p> <p>“Office, G Wall Street, New York.</p> <p>“Wilbur E. Herbert, Jr., Receiver.</p> <p>“July 9th, 1894.</p> <p>• “Mr. W. E. Herbert, Jr., Receiver Carolina, Cumberland Gap & Chicago Ry., No. 6 Wall St., City — Dear .Sir: Referring to our conversation of this day, and to agreement with you by this company for the operation of the G., C. G. & C. Ry., as set forth in letter of our president to you under date of June 4th, 1894, and in your letter to our president dated June 5th, ’94, I beg to state my understanding of the agreement which we made, which was that the agreement covered by the above-mentioned letters shall continue after July 10th, 1894, subject to termination by written notice made by either party to the other at least fifteen days prior to the termination under such notice; such notice to be made by you in behalf of the C., C. G. & C. Ry. Co., and by either the president of this company or myself in behalf of the S. C. & G. Ry. Co. Will you kindly reply; such reply, with this letter, to constitute the agreement? Yours, truly, . Charles Parsons, Jr., Vice President.”</p> <p>“No. 6 Wall St., Room 127.</p> <p>• “July 11th, 1894.</p> <p>“Charles Parsons, Jr.,7Esq., V. P. S. C. & G. Ry. Co., 96 B’way, N. Y. — Dear Sir: Your favor of the 9th inst. is received, and the proposition therein contained for the further continuance of our present agreement concerning the operation of this road is accepted, subject to the approval of the court; your letter, with this reply, to constitute an agreement which may be terminated upon 15 days’ notice by either of the parties therein. Yours, truly,</p> <p>“[Signed] . Wilbur E. Herbert, Jr., Receiver.”</p> <p>And thereupon the receiver filed his petition in the state court, setting forth the correspondence, and praying that he be allowed to enter into the agreement therein set forth. An order was entered by the judge of that court, August 22, 1894, authorizing him to enter into said agreement, and ratifying and approving his actings and doings under said agreement up to that date. It appears from the report of receiver, filed April 1, 1894, that the gross earnings of the road for the year ending December 31, 1893, were $40,215.84, and the expenses $41,350.2.0.</p> <p>On January 4, 1895, shortly after his appointment as receiver in the United States court, Wilbur E. Herbert filed his petition in that court, setting forth his previous appointment in the state court in the suit of Neil McDonald, the agreement with the receiver of the South Carolina Railway Company, and the termination thereof, and that thereafter he had entered into an operating agreement with the South Carolina & Georgia Railway Company, as of date May 1, 1894, a copy of which he annexed to his petition, praying that it be taken as a part thereof. The petition stated that the' principal business of his road was the transportation of rock quarried along its line, and that during the past three months that business had decreased to about one-fourth of its usual volume, and greatly reduced the revenue of the road; and. a statement was filed exhibiting the gross earnings and operating expenses for the seven months preceding, showing a considerable deficit, and that he needed “for present disbursement the sum of $6,274.27, which included a deficit of $524.27, due the S. C. & Ga. R. R. Co., which is the result of the operation of the defendant road by said S. C. & Ga. R. R. Co. for the four months ending November 30, 1894.” The petition stated that one of the trestles over Pace’s branch was in an unsafe condition, and set forth the proceedings in the state court wherein the judge of that court had ordered the receiver to obtain estimates and make contracts necessary for its repair and reconstruction; and authority was asked to issue notes to pay for such repairs, and to pay a deficit of $524.27 due the South Carolina & Georgia Railroad Company, which was the result of the operation of the road by said company for the four .months ending November 30, 1894. Upon this petition an order was entered in the United States circuit court authorizing the receiver to borrow $7,500 upon his notes for the payment of the work done on Pace’s trestle, and other expenses necessary to lie paid by the receiver; said notes to be payable out of tlie earnings of the road. Subsequently, upon petition of receiver, reporting that the notes in that form could not he negotiated, and after notice to counsel for the. trustees, an order was entered allowing the notes to be issued, and to be first liens upon tlie road; the trustee filing an answer submitting the matter to the discretion of the court, and stating that it had no suggestions in opposition. The form of certificate, which slated that the money was borrowed for the payment of repairs on tlie Pace’s trestle, and other expenses necessary to be paid for by the receiver, as set forth in his petition, was approved by tlie circuit judge May 23, 1895. On August 31, 1895, a petition was filed by the receiver stating that the roadbed was in such condition that further operation would be dangerous to life, limb, and property, unless several thousand new cross-ties were laid to replace those that were old and decayed. With this petition were filed the affidavits of the general superintendent and road master of the South Carolina & Georgia liailroad Company, which company, as therein stated, was “operating the Carolina, Cumberland Gap & Chicago Bailroad for the receiver of said road,” and thereupon an order was entered allowing the receiver to purchase 7,000 cross-ties. On September 0, 1895, the receiver filed a petition stating that on .lime 25, 1895, an engine was wrecked upon the line of the defendant road by means of a spike driven between two rail joints by some person unknown, whereby the engineer, Parker, and fireman, Cherry, were badly injured, and asked leave of the court to compromise, for an inconsiderable sum, which had been agreed upon, the claims of said engineer and fireman, which, as stated in the petition, would “relieve said defendant road and the receiver from any further claim for damages by reason of said accident”; and an order was entered allowing the receiver to make the compromise, which order was on September 17th, vacated. Oil October 20, .1895, the South Carolina & Georgia Bailroad Company filed a petition reciting the terms of the operating agreement, claiming that it was entitled to be indemnified against any suits, actions, or damages, and asking that provision for its proper protection be made in tlie decree of sale; the petition setting forth in detail the nature of the claims and suits against it growing out of tlie operation of the road. A decree for sale was entered September 7, 1895, and on October 30th the master commissioner reported the sale of the road to John D. Koynolds, for and on behalf of a committee of bondholders, for the sum of .807,000; and to the report of sale was attached a copy of a notice given on the day of sale by the general manager of the South Carolina & Georgia Bailroad Company, that that company had claims against the receiver for the amount of about $5,000, and had also claims for reclamation, if his company should be hold responsible for certain damage claims then pending. On January 16, 1896, the circuit judge, passing upon a motion for a distribution of a part of the 'proceeds,of sale among the counsel in the cause, which was resisted by counsel for the South Carolina & Georgia Railroad until the suits then pending against it were determined, held that these actions, being based solely upon the negligence of the petitioner, its servants and agents, any contract with the receiver intended to indemnify it against its own negligence would be void on the ground of public policy, and therefore there was no sufficient reason to withhold the distribution of the fund until the pending suits were decided. He accordingly ordered the payment of $5,000 1o counsel for the trustee's, and $3,950 to other counsel in the cause; and with respect to so much of the petition as claimed that, by the terms of the operating agreement, the expense of operating the road over and above the income thereof was to be borne by the receiver, this decree provides as follows.; “The amount due to tlie South Carolina & Georgia Bailroad Company on its contract for operating the road must be paid. Bet that account be adjusted, and when so ‘adjusted be paid.” Oil January 18th the circuit judge ordered that so much of the opinion'as adjudged the contract to'be void on fhe ground of public policy be modified, and granted leave to the petitioner to make the question as to its right of indemnify under the contract made with the receiver, and ordered that the funds be held by tlie special master subject to the decision of that question. On April 13, 1890, the deed for the road was executed by the master to the purchaser upon a condition that the conveyance should be subject to the payment of any claims against the proceeds which might be legally estabfished, to the extent of $42,000, the balance of the purchase money unpaid; and the purchaser subsequently organized the Carolina & Cumberland Gap Railway Company, which is the respondent in this case. On June 3, 1897, the South Carolina & Georgia Railroad Company filed its petition in accordance with the order of January 18, 1896, stating that three suits growing out of the accident on June 25,-1895, had been prosecuted against it, and although they were defended by counsel of the highest standing, and by counsel selected by the receiver, verdicts to the amount of $9,500 had been recovered against it in the court of common pleas for Edgefield county, which had been affirmed by the supreme court, and that certain other claims, of which a detailed statement was given, had not yet been adjusted. A committee of bondholders, upon their petition filed, were allowed to intervene and contest this claim. On June 3, 1897, counsel for the Carolina & Cumberland Gap Railway Company gave notice of a motion to dismiss this petition, and, after the hearing thereof, a decree was entered dismissing the same; and the appeal from this decree brings the cause here.</p>

<p>1. Escrow — Delivery of Deed in Violation of Agreement — Purchaser with Notice of Escrow.</p> <p>A prospective lender of money on a real-estate mortgage, who is advised that the intending borrower is without title, but that a deed conveying the property to him is deposited in escrow, is put upon inquiry as to the terms of the escrow; and il' he neglects to ascertain them, when means are within his rehch, but accepts the statement of the depositary, and makes the loan, and the deed is delivered by the depositary in violation of the escrow agreement, he cannot claim to be an innocent purchaser, as against the rights of the vendor secured by such agreement, but takes his mortgage subject thereto.</p> <p>2. Estoppel to Assert Rights under Escrow Agreement — Subsequent Mortgagee.</p> <p>A vendor, whose deed, deposited in escrow, together with a mortgage back for purchase money, was delivered by the depositary in violation of the escrow agreement, and who has the right to assert the priority of his mortgage over another given by the purchaser, and first recorded, is not estopped to insist on such priority by accepting and recording liis mortgage, nor by any subsequent acts which in no way prejudiced the rights of the other mortgagee.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>The case made by the pleadings and sustained by the testimony is as follows: On August 5, 1896, the appellees, regular depositors in the American National .Bank at New Orleans, deposited therein, a few minutes after the bank closed at 3 o’clock p. m., the following checks:</p> <p>“No. 8,935. New Orleans, July 30, 1896.</p> <p>“New Orleans National Bank, pay to the order of J. P. Blair, Esq., forty-one and eo/100 dollars. R. E. Craig, Vice President.</p> <p>“Fergus G. Lee, Secretary.</p> <p>“$41.66.”</p> <p>On end: “Sun Mutual Ins. Co., 52 Camp St.”</p> <p>Indorsed: “Pay Denegre, Blair & Denegre. J. P. Blair.</p> <p>“Pay to American National Bank for collection and deposit. Denegre, Blair & Denegre.”</p> <p>“No. 655. Citizens’ National Bank of Louisiana,</p> <p>New Orleans, August 5, 1896.</p> <p>“Pay to tlio order of Hess. Denegre, Blair & Denegre, Attys., twenty-one Iran-dred and twenty-two is/ioo dollars. Clias. .1. Theard.”</p> <p>Indorsed: “Dor deposit. Denegre, Blair & Denegre, Southern Pacific Company, Atlantic System.”</p> <p>“New Orleans, August 5, 1890.</p> <p>“Pay to the order of .1. P. Blair five hundred dollars.</p> <p>“Jno. B. Richardson, Local Treasurer.</p> <p>“To the Citizens’ Bank, New Orleans.</p> <p>“$500.00.”</p> <p>Indorsed: “Pay to Denegre, Blair & Denegre. J. P. Blair.</p> <p>“Pay to American National Bank l'or collection and deposit. Denegre, Blair & Denegre.”</p> <p>These deposits were made in the usual course of business, for the purpose of having the checks collected, and the proceeds placed to their credit. At the time the deposits were made, while credit was given upon the bank book of appellees, the checks themselves were set aside like all other deposits received that day, and kept separate and apart from the funds of the bank, until after the meeting of the directors in the evening, at which meeting the said separation of that day’s deposits was affirmed and ratified. Appellees were not indebted to the bank, but had over $2,000 to their credit on deposit. The bank never opened its doors again for business after the receipt of the said checks, but was taken charge of by the bank examiners, and subsequently placed in the hands of a receiver, the appellant heroin. Dor a long time the hank had been in such a condition, of insolvency as must have been known to its managing officers. The appellees subsequently stopped payment of ilio checks, and they were never collected, and are still in the hands of the bank’s receiver. Demand was made for their return, which was refused. The present suit was brought to recover possession of said checks in the court below, which gave judgment for the complainants, and perpetually enjoined Drank L. Richardson, as receiver, from making any other disposition of the said checks than to return the same to complainants; from which judgment said receiver appealed, and assigned said ruling as error, and contended: (1) The court erred in rendering a decree in favor of complainants; (2) in not holding that the relations of the complainants to the bank, as a depositor of checks in controversy, was that of debtor and creditor; (,"5) in holding that the check for $2,122.76 drawn by Charles Theard, and then indorsed “Dor deposit,” did not vest in said bank; and (4) that the court erred in holding ihat it appeared from the evidence that the bank was hopelessly insolvent, to the knowledge of its officers, at the time of the deposit of the checks in controversy.</p>

<p>Wharf — JUiability of Owner — Negligence.</p> <p>A wharf constructed in 1S(35 was from time to time thereafter repaired, and in the fall of 1893 some of the old posts were replaced, and all the new posts and those that were reset were fastened and braced in the wharf. The evidence was uncontradicted that the wharf, as repaired, including the mooring posts, was considered by wharf builders staunch and strong. After a storm of unusual violence had prevailed for several days, the river on which the wharf was situated became much swollen, and its current vei-y rapid. Two ships moored side by side at the wharf broke adrift, by the pulling out, under the stress of the wind and' tide, of mooring posts to which they were fastened, and struck a ship as she lay moored in the river, causing the damage sued for. Eeld, that the owners of the wharf were not negligent nor liable for the injuries received.</p>

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

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

By an act approved February 22, 1890, the legislature of the state of Mississippi granted a charter to the Greenville, Nashville & Chattanooga… Held: in pursuance of an order of this board bearing date the 14th day of April, 1890, and the further authority authorizing the same under the act of incorporation creating said railway company, passed by the legislature of the state of Mississippi, and approved the 22d day of February, 1890, that two-thirds of the legal and duly…

Application of Receiver io Compel Payment of Taxes. Samuel M. Felton, the receiver appointed in this case, and now engaged in the operation of the railroad of the defendant company, has tiled his intervening petition herein against tlio trustees of the Cincinnati Southern Railway.

This cause comes here upon appeal from a decree of the district court, Eastern district of Yew York, awarding to the libelant $5,-000 for personal injuries received by him on board the appellants’ steamer Cleveland in the port of Yew York, July 1, 1897,

This was a petition in the district court, sitting as a court of bankruptcy, by John Lloyd, as assignee in bankruptcy of James Linforth, John Hensley, and L. B. Bencliley, co-partners under the firm name of Lhtforih, Kellogg & Co., against E. W. Chapman, a creditor of the bankrupts, to have the claim of such creditor expunged. From an order denying the petition, the assignee appeals.

<p>Removal of Causes — Time for Filing Petition.</p> <p>Under rule 24 of the general rules of practice of New York adopted January 1, 1898, which provides for the extension of the time for serving a pleading “hy stipulation or order,” a stipulation extending the time to answer until a date named may be regarded as fixing the time when the defendant is required to answer “by the rule of the state court” within the meaning of the removal act, and a petition for removal filed previous to that date is in time.</p>

<p>Limitation of Actions — Avoidance of Bar — Pleading.</p> <p>A mere allegation that plaintiff “had no1 knowledge or notice” of an alleged fraudulent conversion of property, on which the action is based, until a later date, is insufficient to avoid the bar of limitation; no facts-showing either concealment by defendant or diligence on the part of plaintiff being alleged.</p>

This (‘ase grows out of the following facts: On January 12, 1891, Ed. Hogaboom, who was the. owner of 400 shares of stock in the Bark Hotel Company, an Arkansas corporation, of the par value of $25 per share, assigned the certificate therefor to Grace Masury, the appellant and the complainant below, as collateral security for a loan of $10,000 which was that day made by her to said Hogaboom. The pledge of the stock was made in the state of New York.

<p>1. Mines and Minerals— Conflictin q Claims — -Venue.</p> <p>Under Const. Utah, art. S, § 5, requiring all actions to he tried in the county where they arose, an action to try title to a mining claim, located on land included in another claim on which defendant entered, arose in the county where the land was situated and the entry made, and not in that where the land office in which the defendant’s claim was filed was situated.</p> <p>2. Actions to Try Title — Complaint.</p> <p>An averment, in an action to try title, that plaintiff was the owner of the land from a date prior to the commencement of the action, is sufficient to warrant proof of his ownership at any time within that period.</p> <p>3. Mines and Minerals — Claims—Location.</p> <p>Rev. St. §§ 2319, 2320, 2324, require that, before the locator of a mining-claim on public lands shall be entitled to same, -he shall have discovered on unappropriated land a mineral-bearing- lode, and shall have distinctly marked the boundaries of his claim, so that they may be readily traced. Held, that the finding of the lode need not precede the staking of the claim, and hence, where a claim was located, and the locator thereafter discovered a lode thereon before the claim had been appropriated by another, he had a valid claim thereto.</p> <p>4. Same.</p> <p>That part of land oil which a minor located a claim was patented to another without liis objection did not prevent him from including the part unappropriated in another claim located on adjoining land, and obtaining a valid title to the claim so established.</p>

<p>On Motion to Bet Aside a Verdict and for aSew Trial.</p>

<p>1. Circuit-Court of Appeals — Amendment of Bill of Exceptions.</p> <p>The circuit court of appeals has no power to amend the hill of exceptions.</p> <p>2. Same — Record on Appeal — Exhibits.</p> <p>Exhibits marked on the trial are theoretically filed with the clerk, and become a part of the record; and, if they are omitted from the transcript, the circuit court of appeals will direct them to be returned, under Rule 14, subd. 3 (81 O. G. A. elvii.; 90 Fed. elvii.), providing that no case will be heard, except on a record complete in itself.</p>

This cause comes here upon writ of error to review a judgment of the circuit court, Southern district of New York, in favor of defendant in error, who was plaintiff below. The action was on a bond conditioned to pay for labor and materials furnished in the erection of a lighthouse in Portland harbor. The cause was tried at circuit, and a verdict rendered by the jury (June 24, 1898) for $11,525.38.

<p>Directing Verdict.</p> <p>In an action by a corporation against its late president to recover a sum alleged lo be due, defendant pleaded a set-off and counterclaim, but died before trial. Plaintiff, to establish its claim, produced an account rendered by defendant after he had ceased being president, showing a balance due him to a large amount. The account had been voluntarily furnished, and was the only evidence offered to support the claim of plaintiff, or to impeach the items claimed by defendant. Held, that it was the duty of the jury to act upon and consider the whole account, as they could not arbitrarily discredit the part showing a balance due defendant; and an order of the court directing a verdict for defendant, where the counterclaim was not urged, was not error.</p>

This cause comes here upon a writ of error to review a judgment of the circuit court, Northern district of New York, entered upon the verdict of a jury in favor of defendants in error, who were plaintiffs below. The action was brought by beneficiaries under a policy of insurance, to recover §5,000 for tlie death of Thomas K. Fulton. The cause has been twice tried. The opinion of this court reviewing the first trial will be found reported in 24 C. C. A. 654, and 79 Fed. 423.

This action was brought by Cheri E. Sarrazin, a citizen of Mississippi, against the W. R. Irby Cigar & Tobacco Company, Limited, a corporation organized under the laws of the state of Louisiana, and domiciled in the city of New Orleans, to recover damages for the alleged infringement of a trade-mark (“King Bee,” etc.) for smoking tobacco. The infringement is alleged to have been committed in the years 1896, 1897, and 1898.

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

<p>1. Money Paid — 'Vohjkttsbr—Payment Made jjy Claimant to Protect Property during Litigation.</p> <p>A decree adjudged that the defendant In the suit held certain mining stock as trustee for the complainant, and directed its transfer on payment by complainant of a sum found due the defendant for disbursements, and which was made a lien on the stock. The defendant appealed from the decree to the supreme court, claiming the stock as absolute owner. Pending the appeal, assessments were made on the stock, the payment of which was necessary to prevent the stock from being sold, and which the defendant paid. The decree below was affirmed, after which, for the first time, the complainant tendered payment of the sum thereby found due the defendant. Hold, that the appeal taken by the defendant was only an exercise of a legal right, and could not be regarded as wrongful, although a repudiation of the trust; and as, in any event, he was entitled to protect his lien on the stock, his payment of the assessments was not officious nor the act of a volunteer, and that on the complainant’s taking advantage of the decree after Its affirmance, and obtaining from the court a transfer of the stock, he at once became liable as upon an implied promise to repay to the defendant the amount of such assessments, as having been made to his use and benefit.</p> <p>2. Limitation or Actions — Accrual or Cause or Action.</p> <p>A cause of action to recover the money paid on such assessments did not arise until the complainant in the suit availed himself of the decree by talcing a transfer of the stock, and thus obtaining the benefit of such payments; and an action thereon would not be barred under the California statute until two years from that time.</p> <p>3. Evidence — Admissions by Record.</p> <p>When it appears from the bill of exceptions that the evidence upon the-trial consisted of admissions of fact made by the parties in open court, the-circuit court of appeals will treat such admissions as equivalent to a formal case agreed, and thereupon direct the circuit court to render a proper judgment upon such undisputed facts.</p>

<p>Judgments — Parties Estopped — Assuming Defense.</p> <p>If one not a party of récord, nor in privity with a party of record, desires to avail himself of the judgment as an estoppel on the ground that he in fact defended the action, he must not only have defended it, but must have done so openly, to the knowledge of the opposite party, and for the defense of his own interests. That he employed the attorneys for the defendant, and paid all the expenses of the defense, will not avail him, where this was not known to the plaintiff.</p>

<p>Bankruptcy — Foreclosure of Mortgage — Sale by State Court.</p> <p>Where a mortgagee has obtained a judgment for foreclosure and sale in a state court before the institution of proceedings in bankruptcy against the mortgagor, and the court of bankruptcy is satisfied that the' mortgaged property will not sell for enough to pay the mortgage debt, whether sold under authority of the state court or by the trustee in bankruptcy, and that the mortgagee has no intention to delay the sale unreasonably or prevent the property bringing a fair price, proceedings in the state court will not be stayed, nor will the bankruptcy court take control oí the property for the purpose of a sale by the trustee.</p>

<p>1. Bankruptcy — Acts of Bankruptcy — Preference.</p> <p>Under Bankruptcy Act 1898, § 3, providing that it shall be an act of bankruptcy if a person shall have “transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors,” the payment and discharge of a debt, by an insolvent debtor, by a conveyance to the creditor of personal property of greater value than the debt, the debtor receiving the difference in cash, is a preference of such creditor, and an act of bankruptcy.</p> <p>3. Same — Intent to Prefer.</p> <p>Where an insolvent debtor transfers to one of his creditors, in payment of his debt, personal property sufficient in value to satisfy the debt in full, his “intent to prefer such creditor over his other creditors,” necessary to make such transfer an act of bankruptcy, will be presumed; the preference being the natural result of the transfer.</p>

<p>1. Bankruptcy — Assets—Liquor License.</p> <p>Under the laws and regulations in force in the city of Boston, the right to apply for the renewal of a license to sell liquor, held hy the bankrupt, passes to his trustee as assets in bankruptcy, and may be disposed of by the latter for the benefit of the estate.</p> <p>2. Same — Jurisdiction in Summary Proceedings — Bights of Third Persons.</p> <p>On a petition by a trustee in bankruptcy, alleging that the bankrupt and another jointly held a license for the sale of liquor, that the bankrupt was the solo beneficial owner of such license, and that the other party liad no financial interest in the same, and praying the court to enjoin the latter from applying for a renewal of the.license, and to require him to join the trustee in transferring the license to a prospective purchaser, by application to the licensing board, held, that the .court had no jurisdiction to determine the rights of the respondent in a summary proceeding of this character, but that the trustee might apply for leave to modify his petition so as to make it a bill in equity.</p>

In Equity. This was a bill in equity by complainant, as trustee in bankruptcy of the Buntrock Clothing Company, asking for an injunction to restrain the defendants from further prosecuting iu a state court a suit brought by them for the foreclosure of a chattel mortgage executed by the bankrupt,

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

<p>Customs Duties — Haircloth Goods.</p> <p>Women’s and children’s dress goods manufactured of hair imported between April 30, 1874, and June 24, 1874, were dutiable under Tariff Act, July 14, .1870, § 21, as amended January 30, 1871, prescribing the duty on “hair-cloth known as crinoline clolh, and all other manufactures of hair not otherwise herein provided for.”</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>The relator, J. McD1. Scott, sued out a writ of habeas corpus in the circuit court, directed to John McAleese, as warden of the prison of Allegheny county, Pa., alleging that he was unlawfully restrained of his liberty by the respondent under certain commitments from the court of common pleas of said county. From an order of the circuit ■ court discharging the writ and remanding the prisoner, the latter appeals.</p>

<p>Habeas Corpus. Immigrants.</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>These three appeals relate to two bills in equity, known in the case as suits 1 and 2, brought before the circuit court for the Southern district of New York by George O. Bateheller, of the city of New York, against William S. Thomson, of London, England, with respect to the title and use of a trademark. In suit No. 2, Thomson tiled a cross bill, in which he prayed for an injunction against the use by Bdteheller of the same trade-mark. The circuit court decreed for complainant in the two hills, and dismissed the cross hill. 86 Fed. 630.</p>

On ipotion to set aside the verdict, which found the defendant guilty, and assessed the damages of the plaintiff at $10,000, in an action charging piracy of an unpublished play called “Congress,” of which plaintiff is the author.

This was a suit in equity by the Pentucket Variable Stitching Sewing-Machine Company against the Jones Special Machine Company for alleged infringement of patent No. 354,499, issued December 14, 1886, to Era si ns Woodward, for a sewing machine. The patent contains eight claims, of which, however, only 4 and 0 are here involved.

<p>1. Patents — Infringement—Repair and Reconstruction.</p> <p>The purchaser of a patented machine may repair the same by replacing worn-out parts which, in their relation to the whole structure, are temporary in their nature, so long as the identity of the machine is not destroyed, though such parts may be among the novel or valuable features covered by the claims. But this right to repair does not include the right to reconstruct or rebuild the machine.</p> <p>3. Same — Preliminary Injunction.</p> <p>A preliminary injunction will not be granted to prevent tbe replacing of a part of tbe patented machine wbicb wears out very quickly, though such part is one of tbe elements specially 'protected by tbe patent</p> <p>3. Same — Can-Pilling Machines.</p> <p>The Jensen patent, No. 281,767, for an improved can-filling machine, held infringed, on motion for preliminary injunction.</p>

This appeal is from a preliminary injunction against infringement of letters patent of the United States No. 408,800, granted on March 6, 1800, to .John Ewig, assignor of the complainant, for improvement in waistband fasteners, of which the one part now in controversy is illustrated by Fig. 2 of the drawings here reproduce^, together with another diagram showing the plate with the loop unturned, and drawings showing the corresponding parts of the fastener used by the…

This was a suit in equity by William Pelzer against Newhall and others to enjoin the alleged infringement of reissued letters patent, No. 11,476, granted March 12, 1895, to Luther Stieringer, for an improvement in electrical fixtures, which covers a device for attaching electric lighting fixtures to gas- pipes by an insulated connection. The original patent, No. 259,235, was granted to said Stieringer June 6, 1882.

<p>1. Stipulations — Construction—Admissions—Shipping.</p> <p>A stipulation reciting that prior to the departure of a vessel on a voyage claimants made advances to her owners, and that upon her return the .cargo was taken by claimants in payment of the advances, admits that the owners of the vessel owned the cargo up to the time when claimants took it, and that no freight has been paid therefor.</p> <p>3. Seamen — Lien for Wages — Liability of Cargo for Freight.</p> <p>For their wages, seamen have a lien upon the cargo for the freight, or . a reasonable charge therefor, though the vessel and cargo belong to the same person.</p> <p>3. Same — Loss of Lien.</p> <p>A lien in favor of seamen on the cargo for the freight is not devested by a delivery of the property to one who made advances to the owners of the vessel in fitting her out and furnishing her with supplies before she set out on the voyage.</p>

This cause comes on for hearing on demurrer to the bill and an amendment thereto. The hill seeks to foreclose two liens on the railroad of the defendant, the Columbus, Sandusky & Hocking Railroad Company.

<p>1. Federal Courts — Jurisdiction of Parties — Suits Relating to Property.</p> <p>A suit brought in a' circuit court of the United States by a purchaser of real estate in the district at execution sale, to cancel and set aside a prior conveyance made by the judgment debtdr as a cloud on his title, is essentially a suit in rem, and within the provisions of section 8 of the act of March 3, 1875 (18 Stat. 472), authorizing the bringing in by order of parties defendant who reside without the district in such cases.</p> <p>2. Same — Equitable Jurisdiction — Adequate Remedy at Law.</p> <p>A circuit court of the United States, as a court of equity, cannot entertain a suit by a purchaser of real estate at execution sale who is not in possession, to set aside a prior conveyance made by the judgment debtor as a cloud on complainant’s title, on the ground that such conveyance was in fraud of creditors, although such a suit is permitted by a state statute. If the conveyance sought to be set aside was fraudulent, it was ■ void as to creditors, and the complainant, by his purchase, acquired the legal title, and has a plain, adequate, and complete remedy at law, by an action in ejectment.</p>

<p>Appeal from (lie Circuit Court of the United States for the Western District of North Carolina.</p>

<p>Application of receiver for instructions as to interest on mortgages assigned by defendant to trustees for debenture series.</p>

<p>This is a railroad foreclosure bill. The complainant, in seeking a sale under its mortgage, has brought in all persons claiming a lien on the railroad, or any part thereof, for the purpose of a sale of the road free from incumbrance. Among the defendants thus brought in is the Railroad Equipment Company. The Railroad Equipment Company claims about $40,000 on certain so-called “lease warrants,” issued to. evidence the rentals due upon equipment furnished to the defendant company either by the Railroad Equipment Company or its assignors.</p> <p>In each of the equipment contracts under which these lease warrants were Issued the company furnishing the equipment agreed to lease It to the railway company for the period of 60 months from a certain date. The value of the equipment was stated. A cash payment of 25 or 30 per cent, was to bo made upon delivery, and the balance was to he provided for in 60 consecutive monthly payments of a certain amount each, making the total agreed to be paid a sum exceeding the stated value of the equipment and 80 per cent, interest thereon. The deferred payments were to be represented by so-called “lease warrants,” dated in Ohio (with two exceptions, where they were dated New York), made by the railway company to the order of the equipment company, and all payable at the city of New York, with one exception, and referring to a contract of lease of even date therewith. In case of default in payment of any of the lease warrants, the lessor was to have the right to take immediate and exclusive possession, and to sell the same at public or private sale, and apply the proceeds to the payment of any and all Installments of rent for the whole, of said term of 60 months, whether the installments had fallen due or not, less interest at 5 per cent, per annum. If the proceeds were more than sufficient to pay the unpaid installments of rent, with interest and expenses, then the surplus was to go to the railway company, but, if there was a deficit, the railway company was liable therefor. If the Installments were all paid, then the equipment, without further conveyance or transfer, was to become the absolute property of the railway company. The company defaulted on a number of the lease warrants, and in December, 1893, an extension agreement in regard to them was made. This agreement recites the failure of the railroad company to pay the lease warrants under the contracts, the forbearance of the equipment company to take possession, and its willingness to accede to the request of the lessee, and to grant, upon certain terms and conditions thereinafter set forth, an extension of time for the payment of all the said lease warrants outstanding and unpaid under said contracts, including those past due and in default. The agreement provided that the equipment company would take up the outstanding- lease warrants, amounting to 5116,338.39, that the railway company would pay the equipment company at its office in the city of New York, as rentals or otherwise, for the equipment, a cash payment of $5,857, and, in addition thereto, 60 consecutive monthly payments of $2,347.52 each, beginning February 20, 1894, and ending January 20, 1899; making, in all, for the deferred payments, $140,851.20. The new lease warrants were dated “Columbus, Ohio,” and referred to the contract. The lease warrants, under the earlier contracts, were to be taken up and acquired by the equipment company, and held as security for the payment of the new one, and were to continue in existence, with all the rights under them, until the new contract was completed. If the contracts .and warrants are valid, $40,000 is still due on them; if invalid, because of usury, the lawful amounts have been paid. The equipment company has not offered to refund 50 percent. of the amount paid by the railway company, or any sum. In the fourth of the original contracts, dated April 21, 1890, between the Ohio Falls Car Company and the railway company, the lease warrants -were executed at Columbus, Ohio, and no place of payment Is named in them. By the law of Ohio, 8 per cent, interest can be stipulated for, but, in case more than 8 per cent, is stipulated for, the interest exceeding 6 per cent, is to be credited as a payment on account of the principal. Eev. St. Ohio, § 3183. The issue arises upon the bill, answer, and replication, and evidence including a stipulation as to certain facts.</p>

This was a suit in equity by the Southern Pacific Railroad Company against Otto Groeck and others to recover certain laud, claimed under a grant made by congress, aud held by defendant Groeck under a patent subsequently issued to him by the land department therefor.

<p>1. Mortgage — Foreclosure—Evidence.</p> <p>In a suit to foreclose a mortgage given to secure certain bonds, where the mortgage recited that defendant company had an indebtedness, and the treasurer testified that the bonds were issued in exchange for the notes of the company, that the notes had been issued for cash received, that the notes passed through the hands of the witness, that a number of the bonds had been pledged to parties who made demands on the witness for payment of the coupons due, and that the demand had not been complied with, in the absence of evidence to the contrary, this is sufficient to show that the bonds were issued for value, and the holders were entitled to their rights under the mortgage. •</p> <p>2. Chattel Mortgage — Description of Property.</p> <p>Under Gen. St. Conn. § 3016, providing that when any manufacturing establishment, with its machinery, shall he mortgaged, and a particular description of the personal property executed and recorded, the retention of such personal property shall not impair the title of the mortgagee, a mortgage was given to secure “all machinery, apparatus, tools, appliances, and other plant', materials, fuel, devices, patents, patent rights, and all other property, real, personal or mixed, of any name or nature whatsoever,” of the party of the first part, situated iu the town, “whether now owned or hereafter acquired by such party.” Meld not the particular description required by the statute, so as to render the mortgage valid where the mortgagor remains in possession.</p> <p>8. Receiver in Foreclosure.</p> <p>The appointment of a receiver in a foreclosure suit does not constitute the taking possession of the property by the chattel mortgagee, as against other creditors, so as to cause a surrender and delivery of the property by the owner to the mortgagee, and perfect his rights before the intervention of other claims then made, but the receiver holds for all parties interested.</p> <p>4. Premature Foreclosure.</p> <p>Where a mortgage provides that until default for six months the party of the first part shall he permitted to possess and enjoy and operate the property, and that the trustee named therein, on written request of the holders of the bonds, at his option, and whenever entitled to do so by the terms thereof, may institute proceedings to foreclose this mortgage, a suit to foreclose for unpaid interest is prematurely brought unless the default has continued for six months.</p> <p>5. Same — Objections Waived.</p> <p>A provision in a mortgage that on default an action to foreclose shall not be brought within six months is for the benefit of the mortgagor, and creditors cannot object where foreclosure is sought within that time.</p>

This is an action by the United States, at the relation and to the use of David D. Stewart, against Frederick Howard and others on a bond given to the United States.

<p>Continuance — Sufficiency of Application.</p> <p>An application for continuance by a plaintiff on account of the absence of a witness, in addition to showing the diligence of the party to obtain the attendance of the witness, should disclose the substance or effect of his testimony, that it may appear not only that it is material, but that it will tend to support plaintiff’s cause of action, and also that the personal presence of the witness is necessary.</p>

<p>On appeal from an order of the clerk taxing costs.</p>

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

<p>This is an action on a policy of insurance against fire. Heard on demurrer to petition.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>This cause comes here upon a writ of error by plaintiff below to review a judgment of the circuit court, Eastern district of New York, entered upon a verdict of a jury in favor of defendant below. The facts sufficiently appear in the opinion.</p>

<p>1. Trial — Objection to Evidence — Statement of Grounds.</p> <p>The rule applied that all objections to the admission of evidence must be so specific as to give the oilier side full opportunity to obviate them at the time, it’ it can be done.</p> <p>2. Master and Servant — Action for Personal Injuries — Instructions.</p> <p>In this action by a servant against the master to recover for personal injuries, as the request for an instruction as to contributory negligence was based on an incomplete statement of the facts in issue and bearing on the question, it was properly refused.</p> <p>3. Federai, Courts — Rules of Decision — Following State Decisions.</p> <p>The rule applied that questions arising under a common-law count for negligence in a declaration by a servant against the master for personal injuries are not governed, in a federal court, by the decisions of the courts of tlio si ate, but are to be determined upon a consideration of all the authorities, and of the principles underlying the general law of master and servant.</p> <p>4. Master and Servant — Safety of Appliances — Care Required of Servant.</p> <p>Railway Co. v. Archibald, 18 Sup. Ct. 777, 170 U. S. 665, applied, to the effect that an employe has a right to assume that the employer will use reasonable care to make appliances safe, and is not required to exercise ordinary care to ascertain their condition, but assumes the peril only from defoci s known to him or plainly observable by him.</p> <p>5. Same — Responsibility of Master for Acts of Agents.</p> <p>The rule of Railway Co. v. Barrett, 17 Sup. Ct. 707, 166 U. S. 617, applied, to the effect that, so far as relates to the safety of machinery and appliances furnished "by a master for use by the servant, the neglect of the master’s agent is his neglect.</p> <p>6. Review — Harmless Error.</p> <p>It is settled that errors in the giving or refusal of instructions which, under the verdict rendered, could not have prejudiced the plaintiff in error, art; not ground for a reversal of the judgment.</p> <p>7. Master and Servant — Action by Servant for Injuries — Review.</p> <p>A declaration by a servant against a railroad company, to recover for personal injuries, contained three counts, — the first two based on statutes of the state, and the third a common-law count for negligence. The allegations of facts contained in each of the first two counts were sufficient, if established, to support a recovery under the third count. A general verdict for plaintiff was rendered, in an amount within that recoverable under either count. Held, that it was immaterial to defendant to which count the verdict was ascribed, or whether there was error in the giving or refusal of instructions relating to the statutory counts, as the facts necessarily found supported a judgment for plaintiff on the third count.</p> <p>8. Appeal — Harmless Error.</p> <p>Where the whole case relating 1o any particular question is expressly stated as such on a writ of error, as in the case at bar, it will be held that exceptions taken at the trial before the jury with reference to any particular question, by the party against whom the verdict was rendered, will not avail ihat pari y if it is apparent that a verdict in his favor on that question would have been required by the rules of law to have been set aside by ihe court below.</p>

<p>Sale — Performance of Contract — Place of Delivery.</p> <p>Defendant railroad company purchased from plaintiff rails to be used in the construction of its road, to be delivered, at- its option, at either one of two points on its road; the freight to be paid by defendant, and deducted from the purchase price. One of the points of delivery was further from the place of shipment than the other, and could be reached by either of two railroads, while but one of them reached the nearer point. Defendant made a private contract with the latter road, by which it agreed to bill the rails to the further point at a fixed rate, but to actually deliver them at the nearer point, the defendant to trail sport them the remainder of the distance on its own road, and to receive a portion of the freight. Defendant then notified plaintiff to ship the rails to the nearer point, which it did. Held, that when the rails reached such point, and were there delivered to defendant, their delivery under ¡he eon tract was complete, and defendant was not entitled to credit m 'Ue price for any freight beyond that actually paid to such point. If <b livery was to be made at the further point, plain® had the right to ship by either road, and to whatever benefit it might have secured through the competition, of which right it was deprived by the direction given.</p>

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

<p>1. Appeal — Reversal—Decision as Law of Case</p> <p>Where a case lias been once before an appellate court, and reversed, the decision becomes the law of the case, and the same questions will not be again reviewed on a subsequent appeal or writ of error.</p> <p>3. Life Insurance — Action on Policy-Evidence.</p> <p>On an issue as to whether a life insurance company had by its course of conduct waived the right to insist on a forfeiture of a policy because the assured failed to pay an assessment within the time stated in the written notice, the fact that the assured had not been financially able at all times to meet the payments promptly is immaterial.</p> <p>3 Bankruptcy — Effect of Discharge — New Promise.</p> <p>Though the remedy for the 'enforcement of a debt is lost by the discharge of the debtor in bankruptcy, the moral obligation to pay remains, and is a good consideration for a new promise, and such new promise may be oral. .</p>

<p>Usury — Mortgage.</p> <p>When a mortgage on real estate, not usurious on Its face by the lex loci rei Bib*;, is foreclosed, the conveyance to the purchaser cannot be attacked tor usury in the mortgage.</p>

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

On December 12, 1898, the following petition was presented to the district court of the United States for the Middle district of Alabama, in bankruptcy: ¡ “Tour petitioners, the undersigned creditors of D. Abraham, the bankrupt in this cause, respectfully show unto your honor that heretofore, to wit, on the 12th day of December, 1898 (same day), upon a petition heretofore filed by them in this cause, the said D. Abraham was fay this court adjudicated a bankrupt, within the…

<p>In Bankruptcy.</p>

In Bankruptcy. In the voluntary bankruptcy of the firm of Stevenson & King, each of the partners claimed to have set apart to him, out of the partnership assets, (there being no individual assets), the personal property exemption allowed by Const. N. C. art. 10, § 1. The referee in bankruptcy, on a hearing, decided in favor of the claim of the bankrupts, and, on exceptions by certain creditors, this decision was certified to the court for review.

<p>In Bankruptcy. On review, of finding of referee.</p>

<p>On Application by Emil Stevens for a Writ of Habeas Corpus.</p>

<p>In Error to the District Court of the United States for the District of Oregon.</p> <p>This was a proceeding for the deportation of the defendants, two Chinese boys, aged, respectively, 13 and 15 years, horn in the empire of China, and brought to this country in May, 1896, landing at Port Townsend, in the district of Washington, as students, upon the presentation of the following certificates* *</p> <p>“Consulate of the United States, .Hong XCong, April 9, 1896.</p> <p>“I, Wm. E. Hunt, consul of the United States of America for the colony of Hong Kong and its dependencies, hereby certify that two Chinese youths, namely, Chu How and Chu Chee, appeared before me this day, and presented a letter, addressed to me by Messrs. Kinsey and Markley, hereto appended, and requested for a certificate of identity, as they are going to the United States, in response to a call, as alleged, of their father, a resident of Eugene, Oregon, for the purpose of acquiring an English education.</p> <p>“And for the better identification of these boys, tlieir photographic likenesses are hereto appended, and their descriptions are as the following:</p> <p>Chu How, arrived May tl, 1896, on board Br. Str. Tacoma, from Hong Kong, China.</p> <p>Walter Bowen, Special Agent.</p> <p>Name: Chu How. Height: 4 feet inches. Age: 11 years. Physical peculiarities: A scar on forehead; a mole front of right ear. Native of Sun Hui, Kwongtung.</p> <p>(Photograph.) U. S. Consulate, Hong Kong, China. Chu How.</p> <p>Chu Chee, arrived May 11, 1896, on hoard Br. Str. Tacoma, from Hong Kong, China.</p> <p>Walter Bowen, , Special Agent.</p> <p>Name: Chu Chee. Height: 4 feet, 114 inches. Age: 13 years. Physical peculiarities: A mole on inner end of 1. eyebrow; a scar on outer end of r. eyebrow.</p> <p>(Photograph.) U. S. Consulate, Hong Kong, China. Chu Chee.</p> <p>“Given under my hand and seal of office, at Hong Kong, the day and year aforesaid. ■ W. E. Hunt, U. S. Consul.”</p> <p>“Eugene, Oregon, December 23, 189 — . “United States Consul, Hong Kong, China — Dear Sir: There are two boys-coming from the country into Hong Kong to take the steamer to Portland, Oregon, U. S. A. The father of these hoys is living at Eugene, Oregon, and has been living there for three years last past. , The object of the father of these boys, in bringing them to the U. S.,' is for the purpose of educating them in the schools of this state. The younger one is named Chu How, and is eleven years of age. The other, Chu Chee; age, thirteen. We inclose with photographs of the two hoys.</p> <p>“Yours, respectfully, Kinsey and Markley.”</p> <p>The defendants did not present, or appear to possess, any other certificates entitling them to land. On April 20, 1898, nearly two years after the defendants were permitted to land, the United States attorney for the district of Oregon filed an information against them, charging that they were Chinese laborers, without the certificate of residence required by law, and therefore •unlawfully within the United States. It was shown upon the trial of the case that the defendants were then, and had been since their arrival in this country, students in the English schools of Eugene City, Or., having no other vocation; that the father of the defendants came to this country a number of years before the arrival of the boys, and had been engaged in the labor of a laundryinan jn gaid city. The court held that the occupation of the father could not be imputed to the children against the status of students which they bad acquired in this country. The application to remand was accordingly denied, and the defendants ordered discharged. From this judgment the United States appeals.</p>

<p>This was a suit in equity by Brackett G. Corser against the Brattleboro Overall Company for alleged infringement of a patent for an improvement in overalls.</p>

<p>1. Patents — Validity—Suggestion op Invention by Others.</p> <p>A merely oral and casual suggestion by another to the patentee of a part of Hie improvement covered by the patent is not sufficient to make the same invalid.</p> <p>3. Sauk — Metallic Buckle and Button Holder.</p> <p>The Om'scr patent. No. 372,0(>2i, for a combined metallic buckle and button holder or hole, discloses patentable invention, and is valid.</p>

This was a suit in equity by Brackett G. Corser against the Brattleboro Overall Company for alleged infringement of a patent for improvements in coats and the methods of making them.

■ This was a suit in equity by the Tannage Patent Company against John É. Donallan for alleged infringement of certain patents for a process of chrome tanning. On final hearing.

<p>Patents — Suits for Infringement — Violation of Injunction.</p> <p>Where the question of the violation by a defendant of an injunction issued in a suit for infringement of a patent depends on whether or not a new article sold, by defendant since the granting of the injunction is an infringement of complainant’s patent, which is an intricate question, dependent on -structure, and requiring a comparison of the article with others, and a consideration of other patents, the court will not undertake to determine it on a motion for an attachment, but, no intentional Violation being claimed, will deny the motion, and leave the complainant to his remedy by a new bill. i</p>

<p>1. Patents — Infringement—Roller Coasters.</p> <p>A patent for a roller-coasting structure, claiming tracks “running parallel with each other, and having the starting and terminal stations at the same elevation,” is infringed by a similar structure in which the terminal station is only from six inches to a foot lower than the starting station.</p> <p>2. Same — Mechanical Equivalents.</p> <p>In a roller-coasting structure, having parallel tracks, the use of turntables or pivoted switch tracks, instead of fixed switch tracks, does not avoid infringement, since these devices are well-known equivalents.</p> <p>3. Same.</p> <p>The Thompson patent, No. 310,966, for an improved roller-coasting structure, construed, and held valid, and infringed as to claim 1.</p>

<p>1. Patents — Preliminary Injunction.</p> <p>Where infringement prior to the suit clearly appears by the use of an infringing attachment, which may be easily disconnected and as readily connected again to the other parts of the device, the mere fact that a few days before the suit was commenced defendant disconnected such attachment, and informed complainant that he would no longer use it, is not sufficient ground for refusing a preliminary injunction. Under such circumstances complainant is entitled to greater security than the mere statement of defendant that he will not further infringe.</p> <p>2. Same — Improvement in Water Filters.</p> <p>The Hyatt patent, No. 293,740, for an improvement in the art of filtering water, held infringed on motion for a preliminary injunction.</p>

This was a suit in equity by James Gr. Eichardson against D. M. Osborne & Co. and others for alleged infringement of a patent for an improvement in machines for bundling grain. In the circuit court the bill was dismissed because of complainant’s laches (82 Fed. 95), and the complainant has appealed.

<p>In Admiralty. On exception to libel.</p>

This cause comes here upon appeal from a decree of the district court, ¡Southern district of Yew York, dismissing the libel. 89 Fed. 879. The stilt was brought to recover damages alleged to have been caused by the said tugs in negligently towing- the libelant’s barge, Joseph H. lióse, upon a rock in the Harlem river, on September 4, 1897.

<p>1. Seamen — Exemption of Wages from Execution.</p> <p>Neither the general maritime law, nor Rev. St. § 4536, providing that “no wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court,” exempts wages due a seaman from seizure under an execution issued on. a valid judgment against him in a. state court; and a satisfaction of such execution by the employer, as authorized by the state laws, is a good defense to a subsequent action by the seaman to recover the amount.</p> <p>2. Same — Construction of Exemption Statute — Application to Prior Judgments.</p> <p>Act Cal. March 27, 1897, amending Code Civ. Proc. § 690, by exempting absolutely from execution wages of seamen, in an amount not exceeding $100, cannot be construed to apply to executions based upon judgments rendered in suits on contract prior to the passage of the act. Such a statute, if applied to judgments based on contracts made before its enactment, would conflict with the provision of the constitution which denies to a state the power to pass any law impairing the obligation of contracts.</p>

<p>1. Shipping — Damage to Cargo — Contract Limiting Ltarility of Carrier.</p> <p>A carrier by water, who accepts a cargo of frozen meat for transportation across the ocean, impliedly contracts that his vessel is provided with suitable and efficient apparatus to enable him to deliver the cargo in proper condition; hut it is competent for the parties, by express contract, to stipulate for the exemption of the carrier from liability for loss or damage to the cargo in consequence of latent defects in such apparatus which are not due to any fault or negligence on his part, or on the part of those for whom he is responsible.</p> <p>2. Same — Effect op Harter Act.</p> <p>Such a stipulation in a bill of lading is not in violation of section 2 of the 'Harter act.</p> <p>8. Same — Transportation of Frozen Meat.</p> <p>A steamship company contracted for the carriage of a consignment of fresh meat to a. European port; the bill of lading containing a provision express!y exempting The carrier from liability for loss or damage arising from any defect or insufficiency in the refrigerating apparatus of the vessel. The mea t became damaged on the voyage in consequence of the failure of the refrigerating machinery to work properly. The apparatus, as well as the vessel, was new, had been constructed by competent makers, and had been thoroughly tested, and found to work perfectly. Its failure to work properly on this voyage'" was caused by the presence in a suction pipe of a leather washer, which had been inadvertently left in the interior of the apparatus when it was put together by the makers, and had gradually worked into the pipe. Its presence could not be detected until the machinery was taken apart by an expert at the end of the voyage. Held, that due diligence was exercised by the owner of the vessel to provide suitable and perfect refrigerating machinery, and that the damage arose from a latent defect, for which it was not responsible under the terms of the bill of lading.</p>

<p>Appeal from the District Court of the United states for the Eastern District of Virginia.</p> <p>In Admiralty.</p>

<p>In- Admiralty.</p>

<p>1. Courts — Jurisdiction—Federal Question.</p> <p>A bill to annul a city ordinance iixing rates' to be charged by a water company, which are claimed to lie so unreasonably low as to amount to a practical taking- of the company's property mortgaged to complainant, without due process of law, etc., in violation of the United States constitution, presents a federal question.</p> <p>2. Injunction to Protect Mortgaged Property.</p> <p>In a suit by a mortgagee of the property of a water company to restrain the enforcement of a city ordinance fixing rates of charge for water furnished by it, on the ground that such rates were so unreasonably low as to amount to a taking of the company’s property without due process of law, the company is a necessary party complainant; its rights being- directly aifected by any decree which could be rendered therein.</p>

Appeals from the Circuit Court of the United States for the Southern District of Mississippi. These three cases were argued together. The purpose of each suit is to enjoin the assessment and collection of taxes. A temporary restraining order was obra inca! in eacli case, a motion made for an injunction, and a motion made by. the defendants to discharge the restraining order.

• In Equity. On the 2-1 tli of March, 1899, the complainant, John C. Humes, filed his bill in equiqy in this court, alleging that he is a citizen of the slate of Missouri, and that the defendant is a municipal corporation existing under the laws of Arkansas.

<p>1. Federal Courts — Power to Permit Amendments Affecting Jurisdiction.</p> <p>A federal court has power to retain jurisdiction of a suit by the dismissal of parties who are not indispensable, but whose presence would deprive the court of jurisdiction, or by permitting amendments to supply necessary allegations as to citizenship of parties.</p> <p>2. Foreclosure of Mortgage — Parties.</p> <p>A mortgagor who has parted with all his interest in the mortgaged property is not an indispensable party to a hill for the foreclosure of the mortgage.</p> <p>3. Federal Courts — Jurisdiction- -Local Suits.</p> <p>Under section 8 of the judiciary act of 1875 (Rev. St. § 738), expressly retained In force by the act of August 13, 1888, a suit to- foreclose a mortgage may bo maintained in the circuit court of the United States in the district where the property is situated, where the requisite amount is involved, and the parties are citizens of different states, though neither is a resident of (he district.</p> <p>4. Same, — Pi,ace of Bringing Suit — Waiver by Appearance.</p> <p>Exemption from being sued in any other district than the one of which defendant is an inhabitant is a personal one, which is waived by his filing-a general demurrer to the bill.</p> <p>5. Parties — Dismissal as to Unnecessary Defendants — Effect of Appointment of Receiver.</p> <p>The appointment of a receiver in a foreclosure suit to take charge of the mortgaged property, and collect the rents therefrom, does not affect the right of the court to permit the complainant to dismiss as to defendants who are not indispensable parties, and who have no rights in the property that will be affected by the receivership.</p>

<p>This was a suit in equity to cancel a patent to land.</p>

<p>Suit for injunction and accounting by the Proctor & Collier Company against John Lee Mahin and others.</p>

On March 4, 1892, Rowena, Clark, a stockholder of the Central Railroad & Ranking Company of Georgia, filed her bill in the circuit court, assailing the validity of a certain lease made by the Central of Its entire railroad and property to the Georgia Pacific Railroad Company, under which lease the Richmond & Danville Railroad Company was then operating and controlling the same.

<p>On Demurrer to Bill.</p>

<p>1. Pleading — Declaration in Assxjmrsit — Sreotalty.</p> <p>A declaration in assumpsit against a corporation, containing a, special count on a written instrument executed l>y defendant, is not subject to demuiu'er because (lie copy of the instrument set out discloses that the attesting clause is, “Witness our hands and seals,” and the wórd “Seal” follows, the signature; there being no allegation that it is a sealed instrument. Whether it is in fact a specialty under the seal of the corporation is a matter of evidence.</p> <p>2. Practice in Federal Courts — Following State Practice.</p> <p>Itev. St. § 911, which provides that the courts of the United Slates shall conform their practice, pleadings, and forms, and modes of proceeding, as near as may be, to siate practice in civil cases at common law. does not bind the federal courts to rigidly follow all subordinate requirements of a state practice, nor abridge tlieir right and duty, under section 954, to permit amendments, or to disregard niceties of form which, in their judgment, would unwisely incumber the administration of the law; and, although a state practice requires a court to decide on demurrer all questions which may be so raised, a federal court is not required to adopt such practice where no substantial right of the demurrant will be denied by a postponement of their determination until the trial.</p>

<p>1. Federal Courts — State Laws as Rules of Decision — Construction.</p> <p>State statutes of limitation are uniformly recognized by federal courts and given effect to as rules of decision, under Rev. St. § 721; and, in construing and applying them, such courts follow the decisions of the highest court of the state.</p> <p>2. Limitation of Actions — Construction of Statutes — New Promise.</p> <p>Statutes of limitation are regarded favorably as statutes of repose, and a writing to give a new cause of action or stay tlie bar of the statute for a renewed period must contain an express promise to pay a pre-existing debt or an acknowledgment of a present debt under such circumstances that a promise to pay may be inferred. A mere acknowledgment of the debt is insufficient.</p> <p>3. Same — Inference of Promise to Pay from Acknowledgment of Debt.</p> <p>A written acknowledgment of a debt before it has become barred by limitation, coupled with a statement by the debtor that he cannot pay, or that he does not see any chance to pay, unless he can sell some property, is not one from which a promise to pay can be inferred, unless it is shown that the stipulated condition has been reached.</p>

<p>1. Costs — Fees of Witnesses — Voluntary Attendance.</p> <p>A witness who in good faith attends the court, whether in obedience to a subpoena or at the request of a party, is to be considered as attending “pursuant to law,” within the meaning of Rev. St. § 8-18; and a successful party is entitled to recover as costs the legal amount paid a witness who attends voluntarily, the same as though he had been legally subpoenaed.</p> <p>2. Same — Mileage of Witnesses — Limitation as to Distance.</p> <p>Mileage is taxable for a witness in a federal court from any point or for any distance that could be reached by a subpoena, viz. from any point within the district, and for a distance of 100 miles if the witness comes from a point at a greater distance and without the district.</p>

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

<p>Insurance — Agency of Solicitor — Effect of Notice to Agent.</p> <p>One who, after he had ceased to he the regular agent for an accident insurance company, continued to solicit and procure renewals from patrons of the company whom he had previously insured, taking out a commission from the premiums paid, which, renewals were accepted by tbe company, must be considered an agent of tbe company in the transactions, and not of the insured; and his knowledge of the usages of the occupation in which a person insured is shown by his application to have been engaged is binding on the company.</p>

<p>1. Marine Insurance— Construction or Policv.</p> <p>A marine policy permitted a tug to navigate tlie waters of Long Island Sound and shores and “all inland and Atlantic Coast waters of the United States, and all waters adjacent, connecting, or tributary to any of the above waters.” Tlie policy also provided that any deviation beyond the limits named should not avoid the policy, but that no liability should exist during sneli deviations, and “upon the return of said vessel within the limits named herein” the policy should be and remain in full force and effect,. The tug went without the waters described to Mexico, thence with a tow she started for New York, and when off Charleston Bay, standing in for a supply of coal, was wrecked on a shoal about 1(4 miles from the nearest mainland. Held, that the place of loss was in tlie “Atlantic Coast waters of the United States,” and was covered by the policy.</p> <p>2. Same — Conditions—Overinsurance.</p> <p>A policy of marine insurance provided that it should be void if other insurance was -made on tlie vessel exceeding $50,000. The policy also provided that, in the event of a deviation from certain waters, the policy should be suspended, and take effect on return to such waters. The tug, desiring to go outside of the waters designated, applied to defendant company for permission and indorsement on the policy, which was refused. Thereafter it took out a policy in another insurance company, which, with the policies then existing, would have exceeded the prescribed limits. The latter policy provided that, if the assured had other insurance prior in date, the company should he liable only for so much as the amount of the prior insurance was deiicient towards covering the property insured. This prior insurance was to the total value of the vessel. Held that, as such latter policy could take effect only on the suspension of the other policies, and was at once suspended upon the revival of the other policies on a return within the limits, there was at no time insurance in effect more than the agreed amount, and the policy sued on was not void for overinsurance.</p>

<p>1 Corporations — Liability for Torts of Agents — Scope of Employment.</p> <p>A declaration, in an action against a corporation for personal injuries, which alleges that defendant employed certain detectives to investigate an alleged robbery, and that in the course of such employment such detectives, with other persons xirocured by them, committed an assault on plaintiff for the purpose of compelling him to confess to the commission of the robbery, and inflicted the injuries sued for, states sufficient facts to connect the defendant with the injury, and to charge it with liability therefor: the means employed by its agents in the investigation being left to their discretion, in the exercise of which they were within their authority. A ratification or repudiation of their acts by defendant after they were committed, and plaintiff’s right of action had accrued, would be immaterial.</p> <p>2. Same.</p> <p>Under the modern rule adopted hy the courts, a corporation is liable at common law for torts committed by its servants or agents, precisely as a natural person would be.</p> <p>S. Pleading — Declaration in Tort.</p> <p>A declaration to recover for an assault alleged to have been committed on plaintiff by representatives and agents of defendant in the course of their employment is not demurrable because it fails to state the names of some of the assailants, alleged to be unknown to plaintiff.</p> <p>4. Damages for Assault and Battery — Mental Suffering.</p> <p>Til an action of tort to recover damages for an assault and battery, where there is proof of substantial physical hurt and injury, the plaintiff is entitled to recover compensation for the mental pain and suffering that necessarily resulted from the original injury.</p> <p>5. Evidence of Agency — Acts of Alleged Agent.</p> <p>Acts ol' an alleged agent tending to show' the exercise of control and authority over the business of the. principal, and declarations and statements of agency made in the presence, of other known agents, are admissible to establish the agency.</p> <p>6. Pleading — Variance—Amendment During Trial.</p> <p>The action of a trial court in denying a motion for judgment on the ground of a variance, and in permitting the amendment of the declaration, after the conclusion of plaintiffs evidence, to conform to the proof, is not an abuse of discretion, where it is not claimed that defendant was misled by the variance to his prejudice.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy — Jurisdiction—“Principal Place of Business.”</p> <p>Where a petitioner in voluntary bankruptcy resides in one district, and is there employed as clerk in a store, but is engaged in trade on his own account, as a general merchant, in another district, the court of bankruptcy in the latter district has jurisdiction of the petition, the bankrupt’s principal place of business being within its territorial limits.</p> <p>2. Same — Who may Become Bankrupt — Infants.</p> <p>Where the law of the state (Code Iowa 1897, § 3190) provides that a minor may not disaffirm his contracts on reaching full age when, “from his having engaged in business as an adult, the other party had good reason to believe him capable of contracting,” if a minor engages in business as a merchant, and parties consequently assume that he is of full age, and deal with him in that belief, no inquiry or representation being made as to his minority, he becomes absolutely liable for the debts contracted in such business, and may be adjudged bankrupt on his own petition, though still an infant.</p>

<p>1. Bankruptcy — Provable Debts — Rent.</p> <p>A lease for a term of years, reserving rent payable in monthly installments, is terminated by the adjudication of the lessee as a bankrupt during the term; and the landlord has no provable claim against the tenant’s estate in bankruptcy for the rent which would have accrued under the lease after the date of such adjudication.</p> <p>2. Same- — Lessor’s Statutory Lien.</p> <p>A state statute giving to a lessor a lien on property of his tenant on the premises to secure the payment óf one year’s rent due or to become due does not entitle the landlord, when the tenant becomes bankrupt during the term, to priority of payment out of his estate for a year’s rent from the date of the adjudication. The lease being terminated by the bankruptcy, no rent can accrue thereafter.</p> <p>3. Same.</p> <p>A state statute providing that, in case a tenant’s property on the premises is levied on under execution or attachment, a year’s rent to accrue shall be paid out of the proceeds, as a prior claim, does not entitle the lessor to recover such future accruing rent on the bankruptcy of the tenant.</p> <p>4 Same — Occupation of Premises by Trustee.</p> <p>A trustee in bankruptcy, or the estate which he represents,.does not suc- ■ coed the bankrupt as tenant in a lease of property held by the latter at the time of the adjudication. The landlord is entitled to compensation for the use of the premises while 1he same are occupied by the trustee, the amount thereof being chargeable as part of the expense of administering the estate.</p>

<p>In Bankruptcy.</p>

<p>This is an application by Charles P. Coles for the review of a decision of the board of general appraisers relative to the classification for duty of a cargo of anthracite coal.</p>

<p>Appeals from the Circuit Court of the United States for the District of Maine.</p>

This was a suit in equity by Boy L. Warren against John Casey and other’s for alleged infringement of a patent for a new and improved case for eyeglasses. The circuit court held that the patent was void for want of invention, and was also not infringed, and accordingly dismissed the bill. 91 Fed. 653. The complainant appealed.

<p>1. Patents — Invention—Bicycle Saddles.</p> <p>There is no invention, in constructing a bicycle saddle top with vertical, walled depressions, adapted to receive two cushions or pads, and hold them firmly in place.</p> <p>2. Same — Evidence of Patentability — Large Sales.</p> <p>Large sales and increasing popularity cannot be accepted" as certain proofs of; novelty and invention, especially when the article, as made and sold by complainant, differs in many respects from the article shown in the specifications, and covered by the claims.</p> <p>8. Same — Bicycle Saddles.</p> <p>The Christy patent, No. 532,444, for a bicycle saddle having a solid top, with vertical, walled depressions, adapted to receive and hold in place two cushions or pads, is void for want of invention.</p>

<p>1. Patents — Infringement—Spring Mattresses.</p> <p>A patent for an improved spring mattress made in two parts, and in which a conspicuous feature is the manner of hinging the two sections together by means of a continuous unbroken, woven-wire facing, free from the ridge or hard unyielding hinge piece found in other hinged mattresses, is not infringed by a mattress in which the two sections have a central longitudinal iron brace or tie rod, which also acts as a hinge rod, running through the upper facing or web of the mattress from end'to end.</p> <p>2. Same.</p> <p>A patent for a bed bottom, in which the novelty consists altogether in connecting the ends of the transverse stiffening rods or strips to the side edges of the woven-wire fabric, is not infringed by a mattress in which there is no such connection, and which has its transverse tie wires attached at their outer ends to the frame.</p> <p>3. Same.</p> <p>The Gail patent, No. 399,867, for an improvement in woven-wire mattresses or bed bottoms, construed, as limited by the prior state of the1 art to the specific form shown and described, and held not infringed.</p> <p>4 Same.</p> <p>The Ryan patent, No. 403,143, relating to woven-wire mattresses or bed bottoms, construed, as limited by the prior state of the art to the specific constructions shown, and held not infringed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>This cause comes here upon appeal from a decree of the circuit court, district of Connecticut, dismissing the bill. 87 Fed. 479. The facts are sufficiently set forth in the opinion.</p>

<p>In Admiralty. On exceptions to libel.</p>

<p>Pleading in Admiralty — Action by Shaman — Vabiancb.</p> <p>A libel for damages, on the alleged ground that libelant was induced to visit a vessel by fraudulent pretenses, and there detained, and compelled to go on a voyage, sounds in tort, and a recovery cannot bo had thereunder for wages due the libelant for his services as seaman rendered under shipping articles, which he signed.</p>

<p>Admibalty — Action nob Repairs and Suppltkr — Costs.</p> <p>The record owner of a vessel during the timo repairs were made and supplies furnished to her is not entitled to recover his costs in an action brought against him to recover for such repairs and supplies, though he is successful in defeating recovery by showing that he was not in fact the owner.</p>

In Admiralty. Libel in rem against the Ashing schooner Carrier Dove by Joseph Williams and others, as members of the crew, to recover their lay.

<p>Shipping — Liability of Carrier for Shortage in Cargo — Effect of Bill of Lading Signed by Master.</p> <p>The rule that the master of a vessel has no authority by virtue of his • position, either actual or apparent, to sign a bill of lading for cargo not actually received on hoard, applies when there is only a deficiency in part through mistake, and the owner cannot be held liable, either by the original consignee or an indorsee of the bill of lading, for such a shortage, where the quantity actually received is delivered.</p>

<p>1. Salt a ok — -Nature op Skhvtoe — Rieiras op Crkw.</p> <p>A steamer towed a raft of lumber, found adrift on the sea, to a port, where', on communicating with the owners of the vessel, the master was directed to let go of it, and proceed on Ms voyage. He left the raft in a, comparatively safe place, in charge of third persons, who agreed to give him a part of -whatever they might receive for it. They sold the raft, and the purchaser had it towed to San Francisco, where he resold it to the claimant. Held, that the crew of the steamer had a claim for salt ago services which they were entitled to enforce against the lumber, their right not being affected by the action of the owners in abandoning the rail, nor by the agreement of the master for a share of its proceeds, though such agreement debarred the master from recovering.</p> <p>2. Sami-: — Amount—Recovery by Grew.</p> <p>The personal services of the crew having- been comparatively small, and rendered without danger, an allowance of $120 was made them, the value of the lumber after its delivery in San Francisco being about $7,200.</p>

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

<p>Maritime Liens.</p> <p>Appeals from the District Court of the United States for the Eastern District of New York.</p> <p>These causes come here upon appeals from decrees of the district court, Eastern district of New York, dismissing the lihels, which were filed to recover wharfage from the America for the period from December 3, 1890. to May 20, 1891, and from the Niagara for the period from March 27, 1891, to July 31, 1891. 80 Fed. 785. The district judge dismissed the libels, on the ground that no maritime lien for wharfage arose against the vessels while withdrawn from navigation.</p>

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

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

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

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

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

<p>Copyright — Infringement.</p> <p>In Equity.</p>

<p>Bankruptcy — Solvency.</p>

<p>Motion for Preliminary Injunction.</p>