Volume 95 — Federal Reporter

<p>In Equity. On motion to dismiss for want of jurisdiction.</p>

<p>Í. Mortgages — Recovery—Failure of Register to Index.</p> <p>The title of a mortgagee in North Carolina, who had complied with the registration laws, and filed his mortgage for registry, is not affected by the fact that the officer, after copying the mortgage on his books, failed to index it; and a subsequent purchaser from the mortgagor takes only the right of redemption, though without actual knowledge of the mortgage, his remedy, if misled by the failure to index, being by an action for damages against the register.</p> <p>2. Jurisdiction of Federal Courts — -Administering Assets of Decedent.</p> <p>A federal court has jurisdiction of a suit brought by a creditor to administer the assets of a deceased person, where the necessary diversity of citizenship exists between the parties.</p>

<p>1. Railroad Mortgage — Duties and Liabilities of Trustee.</p> <p>Tlie duties assumed by a trustee to whom a railroad mortgage is made for the benefit of bondholders are not those only which are defined by the instrument, but others are superimposed on the trustee, created by the’ relations of the parties and tlie situation of the irust fund. Tlie trustee, while selected by the mortgagor, represents as well those who may become the holders of the bonds, and is bound to act in good faith, and exorcise reasonable care and prudence for the protection of Iheir interests. Where, at the time a mortgage is made, tho company is without substantial property aside from its franchises, and the security is practically to be created by the use of the proceeds of the bonds which are to be issued by the trustee to the company from time to time, the proceeds to he used for specified purposes, and the company notably fails to comply with the requirements of the mortgage, diverting the proceeds of bonds received, a further issuance of bonds to it without taking measures to see that they are properly applied is a breach of the trust for which the trustee can he held liable by tlie bondholders,</p> <p>2. Parties — Suit against Mortgage Trustee.</p> <p>In a suit by holders of railroad bonds against the trustee in tlie mortgage to recover for negligent administration of the trust, the mortgagor is' not a necessary party.</p> <p>3. Same.</p> <p>Such a suit must be brought on behalf of all the bondholders similarly affected, and who may choose to come in, and cannot be maintained by individual bondholders in their own behalf alone.</p> <p>4. Limitation of Actions — Suit against Trustee.</p> <p>A suit, against a trustee for a breach of implied duties, and which is not brought to recover property or funds in his hands, is subject to the bar of limit alien, and a federal court of equity in such case will follow the statute of limitations which would govern state courts having concurrent jurisdiction of the suit.</p>

<p>Railroad Mortgage — Duties axd Liabilities of Trustee.</p> <p>In a bill by railroad bondholders against the trustees in the mortgage to recover for negligent management of the trust, an allegation that defendant permitted to go undefended a suit brought against the mortgagor company to forfeit its right in a land grant to which it was entitled on the payment of |600,000, and that the property was thus lost to the bondholders, does not state a cause of action where it is not alleged that defendant was a party to the suit, or that it had any funds with which to make the payment necessary to protect the grant.</p>

<p>These are suits in equii.y to foreclose a mortgage on the property of the East Side Railway Company.</p>

Petition of Samuel M. Felton, receiver of the defendant railroad company, against the Toledo & Ohio Central Kailway Company. On motion for preliminary injunction. This is a railroad foreclosure suit. Samuel M. Felton, as receiver, is engaged in operating the railroad of the defendant, the Columbus, Sandusky & Hoclcing Railroad Company, under orders of this court. He now files an intervening petition against the Toledo & Ohio Central Railway Company.

This suit was instituted by the First National Bank of Hailey, in the state district court of Idaho, against the 6. Held: at which were present only said Field and Aplington, who elected themselves chairman and secretary of the meeting, and the following officers of the corporation were then elected, viz.: Nancy Thurber president, 11. K. Thurber treasurer, general manager, and superintendent, and Aplington secretary, of the company.

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

This case was first argued at the May session, 1898, and at the commencement of the present term of the court, on October 8, 1898, an opinion was handed down, reversing the decree in favor of the appellees upon their bills for foreclosure, but denying the appellant the relief sought upon her cross bill. CO U. S. App. C47, 32 C. G. A. 238, 89 Fed. 410.

<p>Principal and Surety — Suit by Surety to Compel Indemnity.</p> <p>A surety on an undertaking given to procure a temporary injunction cannot maintain a suit in equity against the principal in the nature oí a hill quia timet, to require indemnity against the risk assumed, where he lias paid nothing on account o£ it, and the suit in which the undertaking was giren is still pending- on appeal and undetermined, until which time there is no liability on the bond on the part of either principal or surety.</p>

Suit iu equity by creditors against an insolvent steamship company. Hearing on application of the receiver of the defendant cor poration for an order to disburse money collected upon an insurance policy covering a steamship lost while prosecuting a voyage upon which she was dispatched by the receiver.

<p>On Rehearing as to- the Issue between Complainants and Defendants Hayes, Jones & Company. For former opinion, see 89 Fed. 774.</p>

<p>Final Hearing upon Pleadings and Proofs.</p>

On motion of the receiver to compel H. D. Turney to deliver to him the books of the firm of Turney & Jones on the ground that they are the property of the Turney & Jones Company.

<p>Municipal Corporations — Assessments for Improvements — Validity of Lien.</p> <p>Act Pa. Feb. 24, 1871 (P. L. 120), provides for the making and keeping in the office of tlie engineer of the city of Pittsburg of books of plans showing the situation and dimensions of property in the city, and also containing the names of the owners, and a record of transfers. It makes it tlie duty of owners to have their property registered in such books, requires grantees to have their conveyances entered thereon before they shall be eligible to record, and prothonotaries and clerks of courts in which proceedings for partition shall be had to make reports thereof to the engineer showing the divisions and transfers of property therein made, and provides that property shall not be subject to sale for taxes or other municipal claims except in the name of the registered owner. The purpose of the act, as declared by the supreme court of the state, is to facilitate the assessment and collection of taxes and municipal claims on real estate, and to protect the registered owners against the sale of their property for taxes or assessments without notice to them. A conveyance made in 1837 of what was then a rural tract of land, but later became a part of the city, was entered on the books of the engineer. In 1871, after the death of the grantee, the land was partitioned among her heirs, but the proceedings were not reported to tlie engineer by the clerk as required by law. Subsequently one of the heirs to whom a portion had been allotted subdivided tbe same, the plan thereof being approved by the engineer, and entered on his books in the name of tlie heir. Held that, as to the lots shown by such subdivision, the heir, and not her ancestor, was the registered owner for the purposes of municipal assessment, and. that liens for such assessments filed thereon in her name when she was in fact the owner, and which were otherwise regular, were valid as against a subsequent incumbrancer claiming through her.</p>

<p>1. Municipal Corporations — Mod® of Procedure to Refund Indebtedness —Kentucky Statutes.</p> <p>There is nothing in the statutes of Kentucky relating to cities of the third class which requires that the city council, in making provisions for the refunding of an indebtedness of the city, shall proceed by ordinance, rather than by resolution, and in the absence of such requirement a resolution is a proper method of procedure in such case.</p> <p>2. Same — Resolutions of Council — Mode of Passage.</p> <p>Ivy. St. § 3304, relating to cities of the third class, and providing that every ordinance, resolution, or measure involving an appropriation or expenditure Of money shall, within three days after its “final passage,” bo engrossed and presented to the mayor for his approval, does not require, by implication, that such a resolution shall be passed at two separate meetings of the council, as is provided in case of ordinances.</p> <p>3. Same — Contract for Sale of Bonds — Validity.</p> <p>Ky. St. § 3263, which requires that, in all issues of bonds by a city, provision shall be made for their redemption at the option of the city after five years, does not render a contract by a city lor a sale oí bonds to be issued invalid on its face, as in excess of the power of the city, because of a provision therein that the bonds shall run for BO years; the presumption being that the statutory requirement was an implied condition of the contract.</p>

<p>Trial — Judgment Notwithstanding Verdict.</p> <p>Where there is any evidence creating a conflict as to a material question of fact, the case cannot be withdrawn from the jury, nor can a judgment be rendered notwithstanding the verdict.</p>

<p>' 1. Constitutional Law — Impairment of Contracts — Life Insurance Policies.</p> <p>The statute of Missouri (Rev. St. 1889, § 5855), providing that suicide shall not be a defense to any policy of life insurance unless it was contemplated by the insured at the time of his application, is not one relating to the remedy, but enters into tbe consideration, and becomes a constituent part of every policy of insurance to which it applies; heneo such policies are within the provision of the federal constitution against the impairment of contracts, and cannot be affected by a subsequent repeal of tlie statute.</p> <p>2. Life Insurance — Missouri Statutes.</p> <p>The act of 1887 (Rev. St. Mo. 18S9, § 58(39), relating to foreign insurance companies, which provided that life insurance companies doing business on the assessment plan, and which complied with the act, should not be subject to the general insurance laws of the state, did not repeal the prior statute (Rev. St. 1889, § 5855), cutting off defenses on the ground of suicide, nor was it retroactive, but it merely exempted assessment companies from the operation of such statute as, to policies thereafter issued and while section 5869 remained in force.</p> <p>8. Same — Assessment Companies — Effect of Change in Constitution.</p> <p>A policy of life insurance issued by an assessment company provided for the payment to the widow or heirs of the insured, on his death, of a certain sum, together with the amount of all assessments paid by him during liis lifetime. The application, which was made a part of the policy, contained this provision: “I further agree, if accepted, to abide by the constitution, rules and regulations of the company as they now are or may by the constitution be changed hereafter.” Held,, that such provision could not be construed to authorize the company to reduce the amount payable, under the terms of the policy, by an amendment of its constitution striking out the provision for paying back the assessments paid by a policy holder on his death, but that such an amendment could have.only a prospective operation.</p>

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

<p>Constitutional Law-^-Statute Impairing Obligation of Contracts — Wisconsin Insolvency Law.</p> <p>The provision of the Wisconsin insolvency law (Laws 1897, c. 334, § 3) which dissolves an attachment or levy on the property of an insolvent debtor on his making a general assignment within 10 days thereafter is unconstitutional and void as to all debts incurred previous to its taking effect, as taking away the remedy for their collection, although such debts were included in a note executed by the debtor subsequent to the taking effect of the act</p>

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

• This suit is brought by Harriet E. Hunger, the defendant in error, to recover of the National Bank of Oshkosh, the plaintiff in error, a claimed balance of $14,4.35.00 of moneys deposited to her account in that bank. Prior to the 1st day of Hard*, 1891, she had a deposit account with the hank, and on that day had a balance to her credit of $822.35.

Action by the receiver of an insolvent national bank to recover an assessment made against defendant as a stockholder. The facts agreed upon by the parties appear in the following case stated: ‘‘The. Chestnut Street National Bank was duly incorporated and organized in the year 1887 as a national bank under the laws of the United States, and was located in Philadelphia. Prior to the 13th clay of February, 1894, tlio decedent, I).

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

<p>Insurance — Action on Policy — Limitation on Time within Wmcn Action may be Brought.</p> <p>A provision of an insurance policy that “all claims under this policy shall be void, unless prosecuted by snit at law within twelve months from the date of the loss,” is satisfied by the bringing of a snit on the policy in good faith within the 12 months, although such suit is dismissed, on an objection of defendant, on the ground of misjoinder, and a new suit, which is practically a continuation of the first, may be maintained, though brought after the expiration of the 12 months.1</p>

This is a writ of error, to review a judgment of the circuit court for the Southern district of New York, in favor of tlie Carrollton Furniture Manufacturing- Company, a Kentucky corporation, against the American Credit Indemnity Company, a New York corporation, upon a policy of insurance, dated July 2. 1895, which insured the plaintiff against business losses from the insolvency of debtors on sales and deliveries of goods to be made between July 1, 1895, and July 31, 189(5.

<p>In Bankruptcy. Review of an order of the district court of the United States for the Eastern district of Wisconsin.</p>

<p>Bankruptcy — -Voluntary—Filing Fees — Poverty Affidavit.</p> <p>When the petition of a proposed voluntary bankrupt is accompanied by an affidavit stating that he is without and cannot obtain the money with whibh to pay the filing fees required by the act, the clerk will file the petition and docket the case, without exacting the deposit of such fees; but as the case progresses the petitioner must pay the necessary expenses, and, before a final discharge will be granted, he must also pay the fees allowed to the clerk, referee, and trustee, or else make a showing to the satisfaction of the court that, by reason of ill health or circumstances of peculiar misfortune, he is a worthy object of charity.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Construction op Statute — Fees and Costs.</p> <p>The obvious policy of the bankruptcy act of 1898, manifest in all its provisions respecting fees and commissions, is to reduce to a minimum the expense of administering estates; and the courts are hound to give the statute such a construction and application as will fulfill the intention of congress In this regard.</p> <p>3. Same — Attorney’s Fees in Involuntary Cases — Drawing Petition.</p> <p>A fee of §100 is allowed to the attorneys of the petitioning creditors in a case of involuntary bankruptcy, payable out of the estate, for their services in preparing and filing the petition, where adjudication was made thereon without contest or trial; such services having been rendered before the adoption of a general rule of the court fixing the fee for such services at a sum “not exceeding $50, in the discretion of the court.”</p> <p>8, Same — Preparing Petition for Injunction.</p> <p>Where attorneys for the petitioning creditors, in a ease of involuntary bankruptcy, prepared and presented to the court a petition for an injunc.tion restraining a mortgage trustee of the bankrupt from disposing of the property affected pendente lite, which was granted without contest, they may be allowed a fee of $25 for such services, payable out of the estate.</p> <p>4. Same — Sending Notices to Creditors.</p> <p>Attorneys for the petitioning creditors, in a ease of involuntary bankruptcy, are not entitled to charge the estate with a fee for their services in sending out notices of the first meeting of creditors; this being a duty imposed by law upon the referee. But money advanced by such attorneys to the referee, to cover the expense of sending such notices, will be refunded to them out of the estate.</p> <p>5. Same — Attending Creditors’ Meetings.</p> <p>No allowance can be made out of the estate of a bankrupt to the attorneys of the petitioning creditors for their services in attending meetings of creditors and resisting the allowance of nonprovable or exaggerated claims .against the estate, or opposing the claim of other creditors to Drioritv of payment.</p> <p>6. Same — Attending Sales.</p> <p>Attorneys for the petitioning creditors against'a bankrupt are not entitled to be compensated out of the estate for their services in attending sales of the bankrupt’s property and inducing bidders to be present.</p> <p>7. Same — Filing Fee Advanced.</p> <p>Where the attorneys for the petitioning creditors, in a case of involuntary bankruptcy, deposit with the clerk, on filing the petition, the $25 required by the act as a filing fee, they are entitled to have the same refunded to them out of t{ie estate.</p>

<p>1. Customs Duties — Action eok Drawbacks — Parties.</p> <p>liev. St. § 3477, relating to assignments of claims against the United States, affects only perfected daims, and does not apply to a claim for drawbacks on re-exported goods, made in the name of one to whom the outward bill of lading is indorsed with authority to act for custom-house purposes, since the regulations of the treasury department provide that the person producing the bill of lading so indorsed shall he deemed the exporter for the purpose of making entry, and receiving the drawback or refund.</p> <p>2. Same — Right to Drawback.</p> <p>No right of drawback arises under liev. St. i 3019, when bags made of imported materials are leased to steamers for foreign voyages with the understanding that they are to be brought back again to the United States.</p>

These were suits to recover internal revenue taxes paid. Heard on points reserved after verdict directed for the plaintiffs, subject to such reserved questions.

<p>Federar Courts — Habeas Corpus by State Prisoner.</p> <p>The rule applied that a federal court will not review the proceedings of a state court on a writ of habeas corpus procured by a state prisoner on the ground of a violation of Ms constitutional rights, where the petitioner’s remedy in the state courts has not been exhausted, and the construction and effect of local statutes must be determined before it is clear that any constitutional right is involved, but will leave him to such remedy, and to a final appeal to the supreme court to determine any constitutional question raised and adversely determined by the state tribunals.</p>

<p>This was a suit in equity for infringement of trade-mark, and unfair competition. On final hearing.</p>

<p>Motion for preliminary injunction against sellers of alleged infringing goods; the action being defended by the Ward-Mackey Company, of Pittsburg, Pa., makers of the same.</p>

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

. Letters patent No. 501,537, dated July 18, 1893, were issued to Amos II. Perkins, assignor to the Western Paving & Supply Company, for an improved method of repairing asphalt pavements. The patent was subsequently assigned to the United States Repair & Guaranty Company, which gave an exclusive license to the co-complainant, the Barber Asphalt Paving Company.

<p>Patents — Construction and Infringement — Typewriting Machines.</p> <p>The Brooks patent, No. 45-4,845, for improvements in typewriting machines, if valid at all, in view of the prior state of the art, must be limited, as to claims 5, 6, 7, 8, and 9, to the specific construction shown and described, and said claims are not infringed by the Williams typewriter.</p>

<p>1. Patents — Combinations.</p> <p>A combination of old elements is patentable when, by a novel arrangement thereof, these devices, by their joint action, produce a useful result, which has never before been successfully accomplished.</p> <p>2. Same — Molds fob Casting Type.</p> <p>The llochstadt, Wenzel, and Heinebach patents, Nos. 352,869 and 354,060, for improvements in molds for casting type, were not anticipated by the Mason patent, No. 187,880, for a type-casting mold. In the former patent claims 1, 3, and 4 are valid, but claim 6 is void for want of invention; in the latter, claims 1, 2, 3, and 4 are valid.</p> <p>8. Same.</p> <p>The Ret tig patent, No. 354,935, for improvements in molds for casting type, construed, and held not anticipated, valid, and infringed as to claims 6 and 7, and void as to claims 4 and 5. 91 Fed. 418, modified.</p>

This was a suit in equity by S. Bauh & Co., a corporation, against Edwin A. Guinzburg, for alleged infringement of a patent for a combined bathing shoe and stocking.

This was a suit in equity by the Western Electric Company against the Millheim Electric Telephone Company, J. C. Spiegelmyer, and W. L. Gfoodhart for alleged infringement of the Carty patent for telephone circuit and apparatus. In the circuit court the patent was held valid and infringed, and decree entered accordingly. 88 Fed. 505. From this decree the respondents have appealed,

<p>L Patents — Invention—Hat Boxes.</p> <p>In the construction of ladies’ bat boxes or trunks there is no invention in substituting, for tbe fragile gauze frames previously used, a frame of buckram and coarse cloth, on which the hat may be securely fastened by a hat pin or other similar device,</p> <p>k Same.</p> <p>The Lyons patent, No. 573,789, for an improvement in hat boxes or trunks, is void on its face for want of patentable invention.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>. This was a suit in equity to enjoin infringement of a patent and for an accounting.</p> <p>In the circuit court the following opinion was rendered by BUF-FINGTON, J.:</p> <p>The present bill in equity is filed by Mrs. Anna E. Mueller, administratrix d. b. n. of the estate of Henry E. Mueller, against Emil E. Mueller and Andrew Stock, co-partners doing business as the Oriental Glass Company, to enjoin infringement of letters patent No. 382,105, issued to said decedent May 1, 1885, for a method of coloring glassware. An accounting is also sought. In the process the glassware is painted with a pigment, and is then burned in a muffle or kiln of a peculiar construction, by methods and means set forth in the patent. The muffles or- kilns are of a substantial character, and are built or imbedded in foundations on the ground. On argument several questions were raised, bearing upon the assignments of proportionate interests made by the patentee to different persons pending the original application; of the effect upon those assignments of the substhrution of a second application, and the issue of the patent to the applicant on this second application, without mention of his assignees; of the failure of the patentee to record the reassignments made to him by such assignees, and the alleged granting of a license by one of such assignees to one of the respondents, while the ownership of the assigned interest was presumptively in him. In the view we take of this case we have not felt called on to determine these questions, and will pass on to wliat we regard as the controlling issues, and in doing so will merely state the facts which wo deem pertinent thereto. In the fall of 1885 the patentee seems to have perfected the patented process of ruby-staining glass at the glass works of Bryce Bros., in this city, where he worked upon it in connection with liis father, C. W. E. Mueller. In the spring of 1880 the Muellers left the employ of Bryce Bros.,'and, in connection with Elorcnee Werling and Daniel Werling, formed the firm of Mueller, Werling & Go., which firm was exclusively engaged in ruby-staining glass by the method afterwards embodied in the patent. Subsequently the Werlings withdrew from the firm, and thereafter the remaining partners, G. W. E. Mueller and Henry E. Mueller, carried on exclusively the same ruby-staining work under the name of the Oriental Glass Company, each partner carrying a one-half interest. On July 19, 1890, Henry Edward Mueller and 0. W. E. Mueller purchased, as tenants in common, certain real estate, which was thereafter used by the firm in its operations. An old building-stood on it, and a new one was erected, and ten muffles or kilns, specially adapted to carry out the process shown in the patent, were built In the factory by the firm. The patentee took an active interest in the business of the firm (which, as we have said, consisted solely of ruby-staining glass by the patented process), and so continued to do until his death, January 10, 1891.</p> <p>What were the rights of such firm on the death of the patentee partner? Did his death terminate all rights on the part of the firm, or its surviving member, to use the muffles which had been constructed by the firm’s money with the active participation of the patentee? Were,these muffles, the sole use and purpose of which depended on the patented process, and the use of which process and muffles alone constituted the business of the firm, — were they, by the death of the patentee, shorn of their usefulness, and resolved into valueless heaps of brick, mortar, and iron hands? ■ Were the business, good will, and assets of the firm to he practically annihilated by a denial of the right to use the apparatus which the firm had built, paid for, and used, with the consent and active participation ot tho. patentee? The statement of the facts would seem to answer such a comention. Assuredly, if Mueller had withdrawn from the firm during his life, he could not have successfully pursued such an Inequitable course, and thus have deprived his partners of a proper use of that which he had induced them to construct. To such a contention the language of Judge Lowell, in Wade v. Metcalf, 16 Fed. 132, might well be applied: “There is another way of staling’ ih(> case. It is admitted that these machines were the property of the firm. It follows, without reference to section <1899,_ that all the members of the firm had an equal proportionate right in them. No partner can, by dissolving this connection, acquire a disproportionate share in the joint property. This is a fundamental rule of justice, which does not need to rely on the written law. * * * The plaintiff admitted in thal contract [referring to the contract of dissolution in the case by which the plaintiff withdrew], very properly, as 1 think, that whatever right the firm had would survive to the defendant. That the firm might use the machines which were built by and operated under tho supervision of the plaintiff, and used by them for some years with his consent, is clear.” In Keller v. Stolzonbach, 20 Fed. 49; Judge Acheson, while' deciding that the nonpatenting partner had, after the dissolution of the firm, no right to make, use, and vend the patented machine generally, conceded his right to continue after dissolution the use of such patented invention on a steamboat which had become the property of Pfeil, the nonpatenting partner, on a division of the assets. If Henry Mueller could not have pursued such an inequitable course, had he voluntarily withdrawn, the law will not accomplish the same inequitable results in administering his estate.</p> <p>On the death of Mueller the patent right was vested in, his administrator. His father acted as such administrator, and there is no allegation, or even suggestion, of bad faith or unfair dealing on his part in the. administration of his trust. The administration of that trust evidences the assumption by those interested in it of the right of the firm to continue its operations, which, as we have seen, consisted wholly of ruby-staining glass. An appraisement was made of the personal effects of the decedent, and with this was returned a statement of the condition of the Oriental Glass Company, and a valuation of decedent's interest therein. An examination of this statement discloses the fact that the value of decedent’s interest in the firm, and therefore the amount, to be realized for his estate from a purchaser, consisted very largely in its continuance as a going business. Us liabilities were then almost all due, and an immediate, winding up of its affairs could not but have resulted in depreciation. That such a view was taken by the administrator and acted on by the court, and that, on (he faith of it, Stock, the respondent, and the purchaser of the decedent’s interest, paid Ms money to the patentee’s ('State, is to our mind quite clear. In the first place, the patent was not included or appraised among decedent’s assets. Did this imply that it was of no value, or that its value .was «'cognized and counted in the business and plant of the firm, whose entire business was the working of its process? The latter would seem to be the correct view. In the assets of the firm are included the ten mufiies or kilns constructed by the firm, and these were appraised at $1,676. The purchase of Stock was based on this valuation, and it is clear that he bought, and the representa rive of Mueller’s estate sold, with a view to (lie continuance of the firm’s operations. Stock testified that, when he purchased, he did not know that a patent had been granted; and before the purchase G. W. E. Mueller, the surviving partner, wlio was also administrator, entered into an agreement with Stock which evidences a contemplated partnership, and the giving of “all the instructions necessary to carry on our business,” viz. the methods and the full disclosure of ihe details of the ruby-staining process covered by the patent. Manifestly, what was intended to be conveyed, and what was thought to be purchased, was not tlio bare right of the deceased partner to call upon his surviving partner to wind up the affairs of the firm and account for the balance, if any. To attribute such a purpose to the parties would be contrary to the ordinary rules and motives on which business affairs are conducted. Indeed, the fact that the court required Stock to give a bond of $10,000 to indemnify the estate of the decedent against the liabilities of the firm shows that a continuance, a,nd not an immediate liquidation, of the business of the firm was contemplated.</p> <p>On April 23. 1891, the orphans’ court of Allegheny county, on petition of the administrator, setting forth that Andrew Stock, one of the respondents, had offered the appraised value of $2,498.82 for decedent’s interest in the real estate and business of the firm, directed a private sale to him, which sale was made by deed of May 2, 1891, and the purchase money was received for the patentee’s estate. After this sale Emil F. Mueller purchased an interest, and the business was conducted by Stock and the two Muellers under the same name as before, viz. the Oriental Glass Company, until March 10, 1893, when G. W. E. Mueller died. On June 27, 1893, his interest was purchased by the survivors, who had continued the same line of work, under the same firm name, up to the time this suit was brought. The present plaintiff did not take out letters d. b. n. on the patentee’s estate until February 20, 1895, almost two years, after the death of the former administrator, and there is no evidence that, during all these years of the use by the Oriental Glass Company of these muffles as their sole and only business, the decedent in his lifetime, or any one after his death, ever questioned the right of the firm to so use them, or demanded any royalty on account of'their use, until this suit was brought, June 3, ISOS; nor did the plaintiff, when on the stand, give any reason for the delay in prosecuting her' ■claim, or allege that she did not know the patent was being infringed. In analogy to the principle, laid down in Prince’s Metallic Paint Co. v. Prince Mfg. Co., 6 C. C. A. (147, 57 Fed. 943, that a trade-mark could become so localized and identified with a mine and place of manufacture that it would pass to the purchaser of such mine, factory, and business, it may well be here contended that the sale of the real estate and factory carried with it the right to use the muffles then built. The firm of which the patentee was half owner having built, paid for, and used the ten muffles with the full knowledge, consent, and participation of the patentee, we think the firm must be deemed to have the license, permit, and consent of the patentee to the full and continued use of them for the purpose for which alone they were built. They constituted the physical means for ruby-staining glass. They were the only basis on which the business of the firm rested, and their value, apart from the use for which they were purposely constructed, was relatively nothing. To say that, a sale of them, and the receipt by the deceased patentee’s estate of a substantial sum of money for decedent’s interest in them, — and that, too, from a stranger, who had no knowledge of the existence of a patent, — carried nothing but a right to the brick, mortar, and iron composing them, is to overlook and ignore the substance of the entire proceedings, and is to defeat the real purpose of what was done, and from the doing of which the decedent’s estate reaped a material advantage.</p> <p>So far as the muffles constructed at the time of the sale were concerned, wo are clear that their construction, under the surrounding circumstances and the situation of the parties, carried with it an implied license from the patentee, and that such right did not cease with the patentee’s death. But we go a step further. We think the license conferred upon the firm, whose sole and only business was the making of ruby-stained glass in that particular establishment., coupled with the manner in which the assets and business of the firm were treated by the decedent’s representative (and presumably acquiesced in by his heirs), and sold, evidences the fact that the license conferred, and intended to be conferred, carried with it the right to such reasonable extension and enlargement, in the way of further muffles, as were heeded to treat the output of that particular shop. We have here no question of an attempted extension beyond the factory which the firm owned. The three muffles built did not necessitate an enlargement of the factory, nor is it shown to what, if any, extent they were used. Under the peculiar facts of this case, we feel that the building of the three additional muffles cannot be deemed unwarranted and made the ground of infringement. In addition to these facts, we have, as noted, the significant and unexplained silence, inaction, and apparent acquiescence on the part of the patentee and his personal representatives in the use by the respondents and their predecessors of the original muffles. The patentee actively acquiesced in it, the patentee’s administrator made no objection, and for his omission to do so neither his good faith has been questioned nor has he been called upon to account for his failure to assert such right. After his death almost two years elapsed before any attempt was made to assert any such claim. Nor, indeed, was such attempt finally made mil 11 it was seen iliat the purchasers, by their own efforts, had lurned a feeble!, precarious business into a thriving one. Under such circumstances a court of equity is not inclined to strain its powers to afford relief to those who have been so singularly negligent in a seasonable and timely assertion of their claim. Godden v. Ivimmell, 99 TI. S. 201; l.ansdale v. Smith, 106 U. S. 391, 1 Sup. Ot. 350; Beard y. Turner. 13 Law T. (N. S.) 747.</p> <p>A decree, will be drawn dismissing this bill.</p>

This was a suit in equity by Franz J. Maier, Robert P. Stoll, and Thomas A. Btoll against Jacob C. Bloom and John F. Godley for alleged infringement of a patent for a spring bed bottom.

<p>This was a suit in equity by the Consolidated Fastener Company against Daniel Hays and Lewis A. Tate for alleged infringement of a patent for an improvement in buttons. The cause was heard on a motion for preliminary injunction.</p>

<p>1. Patents — Anticipation—Harrows.</p> <p>The Barley patent, No. 256,619, for improvements in harrows, held not anticipated as to its iiftii claim by the Wiard & Bullock patent, No. 229,-217, for improvements in plows.</p> <p>2. Same — Conclusivenkss of Proceedings in Patent Office.</p> <p>It seems !hat a paten! regularly issued and valid on its face cannot bo declared void by the courts because of a clerical error of an examiner in failing to follow the rules of practice in the patent office.</p>

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

<p>In Admiralty. This was a suit in admiralty against the steamship Bt. Georg to recover damages for injury to cargo.</p>

Libel in rem to recover wages under a contract to serve as able seamen on a voyage from Tacoma to Honolulu; thence to San Francisco, the port of final discharge, either direct, or via one or more ports on the Pacific Coast, for a term of time not exceeding nine calendar months. The vessel proceeded on said voyage from Tacoma to Honolulu, where cargo was discharged, and returned in ballast from Honolulu to Seattle, where cargo was taken on for San Francisco.

<p>1. Contracts — Coercion—Threat of Legal Proceedings.</p> <p>A declaration by tbe agent of a tug company that be would commence legal proceedings against a foreign vessel, unless a charge made for towage was acceded to and approved by tbe captain, doss not constitute coercion.</p> <p>2. Towage — Contract—Tonnage of Vessel.</p> <p>Tbe amount due for tbe towage of a French vessel in and out of port depended, under tbe contract, on tbe tonnage of the vessel. Her French papers gave tbe net tonnage as 1,709 tons; but tbe United States customs authorities refused to accept such measurement, and bad her remeasured, which gave her a net tonnage of 3,106 tons. No proof of tbe method by which she was measured in France was given, but it appeared from her carrying capacity and gross tonnage that the net tonnage stated in her papers could not have been reached by any rule of ordinary maritime measurement. Held, that the measurement made here would be accepted as correct, and governed the contract for towage.</p>

These three causes come here upon appeal from decrees of the district court, Southern district of New York, holding the tugs Victoria, Pocahontas, and Komuk liable for damages received by certain canal boats in tow of the tugs in a storm on August 29, 1893, in the Hudson river, about off Tarrytown.

<p>Collision — Liability of Tus for Injury by Tow.</p> <p>A tug with three Larges in tow, singled on hawsers 175 fathoms in length, which -without excuse passed dangerously near an anchored vessel, against which one of the barges was swept by the tide, cannot shift the burden of responsibility for the collision on the tow, merely because she herself passed in safety, as it was her duty to make due allowance for the effect of the tide on her tow, and her own fault was the proximate cause of the injury, though there may ha,ve Irneu error of judgment in the management of the barge in extremis.</p>

<p>1. Indians — Suit fob Allotment of Lands — Special Jurisdiction of Circuit Courts.</p> <p>Under the act of August 15, 1891 (28 Stat. 305), giving any person of Indian blood who claims to be entitled to land under any allotment act or grant made by congress, or to have been unlawfully denied or excluded from any allotment or parcel of land, the right to maintain a suit therefor In the proper circuit court of the United States, and giving such courts jurisdiction to try and determine such suits, their judgments in favor of a claimant, when certified to the secretary of the Interior, to have the same effect as if the allotment had been allowed by him, the jurisdiction of a court over such a suit Is not defeated because the title to the land involved remains In the United States, nor is an adverse decision on the claim by the land department conclusive against the legal rights of the claimant.</p> <p>2. Same — Lands of Omaha Tribe — Allotments in Sf,veraltv.</p> <p>Act Aug. 7, 1882 (22 Stat. 341), relating to the lands of the Omaha tribe of Indians In Nebraska, and providing for allotments therefrom in sev-eralty, superseded all prior acts and treaties on the subject, and all subsequent allotments are governed solely by its provisions, both as to the right to allotment and the quantity of land.</p> <p>8. Same.</p> <p>Under said act, which provided for allotments “to the Indians of said tribe,” no distinction can be made as to whether they were of full or mixed blood, or on account of the length of their residence on the reservation; and it is immaterial that an applicant for an allotment was not residing with the tribe in 18(i5, at the time of the treaty under which previous allotments were made. Neither is the right of an Indian who was a member of the tribe when the act was passed, and residing on the reservation, to an allotment, affected by the fact that allotments had been made to his ancestors under previous acts or treaties.</p>

<p>1. Jurisdiction of Federal Courts — Amount in Controversy.</p> <p>It is sufficient to sustain the jurisdiction of a circuit court, whore the requisite jurisdictional facts are shown by the complaint, that It does not at any lime thereafter satisfactorily appear to the court that the suit does not really and substantially involve the jurisdictional amount.</p> <p>2. Same.</p> <p>A suit to enjoin the defendant from destroying a flume where it crossed his land involves the value of the flume as an entirety, and where such value is admitted to be $2,000, and it is further admitted that defendant had, prior to tito suit, partially destroyed the flume on his land, rendering Its repair necessary, damages for which injury the plaintiff might recover in tlie suit, the jurisdictional amount satisfactorily appears.</p> <p>3. Equity -Submission of Cause-Right of Reargument.</p> <p>Where a cause has been fully argued and submitted on all the questions involved, and the court enters an order of dismissal for want of jurisdiction, which order it afterwards sets aside, the defendant is not entitled to reargue the case upon the other questions involved.</p> <p>4. Right of Way over Public Lands.</p> <p>Where an appropriation of a right of way for a flume, such as congress has authorized upon unoccupied public land, is made upon granted, but unearned, railroad land, and subsequently the land so occupied is forfeited to the government, the appropriation is effective, so far as the government is concerned; and a homesteader, whose settlement was begun before the forfeiture, but subsequent to the location and construction of the flume, takes subject to the burden at such flume.</p>

<p>1. Jurisdiction of Federal Courts — Suit to Determine Rights in Public Lands.</p> <p>A suit to determine conflicting claims to the right of entry of public lands is one arising under the laws of the United States, and a federal court has jurisdiction without regard to the citizenship of the parties.1</p> <p>3. Public Lands — Right to Entry — Review of Decision of Land Depart-TVIENT.</p> <p>Under Act March 3, 1887 (21 Stat. 556, § 4), which provides that purchasers in good faith from a railroad company of lands which have been erroneously certified or patented under a grant, if citizens of the United Slates, shall be entitled to such land, and which commits the determination of the question of their good faith to the land department, the finding of such department in favor of the good faith of a purchaser will not be disturbed, unless clearly shown to have been based on an erroneous construction of the law. 2</p> <p>3. Sams — Railroad Grants — Rights of Purchaser on Forfeiture of Grant.</p> <p>The fact that, at the time a contract was made for the purchase of land from a railroad company, its road was not completed, and its grant not fully earned, though it was built beyond the point where the land was situated, and that it was subsequently determined that the land purchased did not pass to the company, because it had previously received and disposed of as much in quantity as it had earned, cannot charge the purchaser with knowledge of facts which would, as a matter of law, affect the good faith of his purchase.</p>

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

<p>1. Promissory Notes — 'Validity— Note Payable after Death of Maker. An instrument in the form of an ordinary promissory note is not testamentary in character, nor is it rendered invalid as a note because the date of payment is a specified length of time after the death of the maker.</p> <p>2. Jurisdiction of Federal Courts — Suits against Estates of Decedents— State Statutes.</p> <p>The courts of the United States have jurisdiction to entertain suits on claims against estates of decedents, brought against the executor or administrator, where the amount in' controversy is sufficient, and the requisite diversity of citizenship appears; and such jurisdiction camiot be affected by a state statute requiring claims to be filed in a particular court.1</p>

<p>Mineral Lands — Suit to Establish Adverse Claim — Jurisdiction—Amount Involved.</p> <p>In a suit brought in a circuit court, under Rev. St. § 2326, by an adverse claimant to establish his right of possession to a mining claim, it is essential that the hill should show the value of the property in controversy to he sufficient to bring the suit within the requirements of the general statute prescribing the jurisdiction of the court. It is better practice, also,, to show affirmatively in the bill whether the ground in controversy is a. lode or placer claim.</p>

<p>Federal Courts — Rules of Decision — Opinion of Supreme Court as Precedent.</p> <p>Where the questions arising in a suit in a circuit court are the same as those involved in a suit between other parties which has been determined by the supreme court, and the evidence material to such questions is substantially the same, the decision of the supreme court, while it does not render the questions res judicata, constitutes a precedent which should be followed by the inferior court.</p>

<p>Removal of Causes — Amendment by Plaintiff Afteb Remand — Right to Renew Awlication.</p> <p>In an action in a state court against officers of a national bank, the parties being citizens of the same state, defendants filed a petition and bond for removal, on the ground that the action was based on the laws of the United States. The application was denied, and, on the filing of the record in the federal court, that court sustained a motion to remand, on the ground that plaintiff’s petition did not count upon the statute, but upon the common law. Subsequently plaintiff amended his pleading by adding allegations showing that he in fact relied on a violation by defendants of their duty as officers of the bank. Defendants answered, challenging the jurisdiction of the state court on the ground that the cause had been removed. On ihe making of a second amendment by plaintiff, and within the time allowed for pleading thereto, defendants filed a second petition for removal. Held, that the right of removal was not lost by the lapse of time since the first application, nor was it waived by failing to file a re-' newod application on the making of the first amendment, since the first petition which remained on file in the case became effective as soon as It appeared of record that the cause was removable.</p>

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

The defendant in error, being the plaintiff below, sued to recover from the defendant below the sum of $6,700, and interest thereon, being the amount of a promissory note dated April 14, 1893, executed to the plaintiff by her father, George L. Dunlap, the action being founded upon the undertaking of the defendant, Emma Blanche Dunlap, to guaranty the payment of the note.

<p>On Demurrer by Defendant Independence National Bank.</p>

This cause has once previously been before this court on writ of error. It was then very fully stated. 23 U. S. App. 319, 9 O. O. A. 487, and 61 Fed. 259.

This suit was brought by the Weir Plow Company, the defendant in error, upon the written contract hereinafter fully set out in the findings of fact by the court below to recover the sum of $50,000 as damages provided for by the contract for a breach by either party.

<p>1. Bankruptcy — Preferences—Dissolution of Liens.</p> <p>Where the sureties on the official bond of an insolvent and defaulting town treasurer paid the amount of his defalcation, and received from him, with knowledge of his insolvency, a judgment note for the amount so paid, and caused judgment to be entered thereon and execution issued and levied, upon learning that there were other judgment notes of the debtor outstanding, and five days thereafter the debtor filed his voluntary petition, and was .adjudged bankrupt, held, that the judgment and levy were void, under section 67f of' the bankruptcy act of 1898, and that the property levied op, or the proceeds of its sale, should go to the trustee in bankruptcy for the benefit of the general creditors of the estate.</p> <p>2. Samis — Voluntary and Involuntary Cases.</p> <p>Bankruptcy Act 1898, § 67f, providing that liens obtained through legal proceedings against an insolvent debtor “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,” is to be construed as applying to voluntary as well as involuntary cases, inasmuch as section 1, cl. 1, declares that “ ‘a person against whom a petition has been filed’ shall include a person who has filed a voluntary petition.”</p>

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

<p>In Bankruptcy.</p> <p>Julins Altman and Henry Altman filed a petition in bankruptcy, praying that an adjudication in bankruptcy might be made against themselves as individuals, and also against a certain partnership of which they had been members, and which had previously been dissolved. An adjudication was made that the two petitioners, “as co-partners and as individuals, are hereby declared and adjudged bankrupt.” The other members of the late partnership did not join in the petition, and had no notice of the proceedings, but subsequently a paper was filed, signed by the attorneys of such other partners, and purporting to embody their consent to the filing of the petition. This was dated as of the same day on which the adjudication was made, but it was not presented to, or filed in, the district court until several days after the adjudication. Certain creditors having moved that the adjudication should be vacated, on the ground that the court had no jurisdiction to make an adjudication against the partnership, or against the petitioners as partners, for the want of notice to the other members, and no jurisdiction to adjudge the petitioners bankrupt as individuals, their'joinder in one petition being unauthorized, the referee held that the adjudication should be vacated and set aside, and from this ruling the bankrupts bring this petition for review.</p>

<p>Bankruptcy — Set-Off of Claims.</p> <p>Where the trustee of a bankrupt corporation is prosecuting an action against another corporation for goods sold, a creditor of the bankrupt can- ' not have ,the value-of the property credited on his claim against the bank- • rupt, and have the action dismissed, on the contention that the goods were bought by him from the bankrupt, and sold by him to the other corporation, when it appears that lie was an officer of the bankrupt corporation, and in charge of its sales, and at the same time an officer and agent of the purchasing corporation.</p>

<p>Bankruptcy — Fraudulent Transfers — Payment of Money.</p> <p>Tinder Bankruptcy Act 1898, § 67, cl. e, providing that “all conveyances, transfers, assignments, or incumbrances of liis property, or any part; thereof, made or given hy a person adjudged a bankrupt * * ♦ within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, shall be null and void,” the payment of money by a debtor, on a valid pre-existing debt, under circumstances which do not make it technically a preference, is not a “transfer of i>roperty,” in such sense that the trustee or receiver of the debtor in bankruptcy may recover back such payment from the creditor receiving it, on proof of the fraudulent intention of the debtor.</p>

<p>In ‘Bankruptcy. Tills is a proceeding for the review of the decision of Clay C. Hunt, a referee in bankruptcy, brought by Loeb & Koch, H. & I. Loeb, the Kentucky Jeans Clothing Company, Stearns & Packard, Louis Btix & Co., B. L. Weiler, the Alto Bhirt Company, Isaac Pallor Bous & Co., Hendrickson Leller & Go., Mendel & Co., and Meyer, Wise & Kaichen, creditors of the late co-partnership of H. J. Foutty & Co., of which firm the bankrupt was a member. The referee's findings of fact and conclusion of law are as follows:</p> <p>(1) The bankrupt, Elizabeth A. Mills, is indebted to claimants for goods and merchandise sold and delivered by claimants to H. ,T. Poutty & Co.,-a partnership composed at the time of said sales of H. .T. Poutty and said bankrupt. (2) Said partnership was dissolved by a decree of the Fayette circuit court in the state of Indiana, being a court, of competent jurisdiction both of the persons and of the subject-matter, and the affairs of said partnership were finally settled In said court. (3) There are no assets of said partnership. (4) Said H. J. Foutty, the other member of said partnership, is insolvent. (5) All the above claimants filed their claims against said partnership with the receiver of the state court, and received a dividend of 55 per cent, thereon. (6) The assets of the said bankrupt will probably be insufficient to pay her individual debts.</p> <p>Conclusion of law: The claimants are not entitled to share pari passu with the individual creditors of the bankrupt, but are only entitled to participate in the general distribution of the surplus of the assets of said bankrupt’s estate after all claims filed and proved by individual creditors against the individual estate of the bankrupt shall have been paid in full.</p>

<p>In Bankruptcy. On petition for adjudication in involuntary bankruptcy.</p>

<p>1. -Bankruptcy — Priority of Claims — Taxes—Iowa “Mulct Tax.”</p> <p>The “mulct tax” imposed by Code Iowa 1897, § 2432, on all persons carrying on the business of selling intoxicating liquors, although it is expressly denominated an “annual tax,” and is assessed, certified, and collected in substantially the same manner, by the same officers, and for the same governmental uses, as taxes in general, is nevertheless merely a charge or license exacted for the privilege of carrying on the business described (following Smith v. Show, 66 N. W. 893, 97 Iowa, 640), and is therefore not a “tax,” -within the meaning of Bankruptcy Act, § 64, cl. a, requiring trustees in bankruptcy to pay “all taxes legally due and owing by the bankrupt” in advance of the payment of dividends to creditors.</p> <p>2. Same — Following State Decisions.</p> <p>In determining whether a charge or mulct imposed by a state statute upon liquor sellers is a “tax,” within the meaning of that term as used in the bankruptcy act, a court of bankruptcy will follow the decisions of the highest court of the state construing the statute.</p>

<p>Bankruptcy — Exemptions—Partnership Assets.</p> <p>Under a statute (Rev. St. Wis. § 2982, subd. 8) exempting from execution “the stock in trade of any merchant, trader, or other person, used and kept for the purpose of carrying on his trade or business, not exceeding $200 in value,” in case of the bankruptcy of a mercantile partnership, where the firm has stock in trade, but there are no individual assets, each partner, with the consent of the other, is entitled to have the statutory exemption set apart to him out of the firm property.</p>

<p>1. Criminal Law — Proceedings to Remove Offenders — Conclusiveness of Decision of Commissioner.</p> <p>The action of a commissioner in discharging a person in proceedings for his removal to another district for trial on a criminal charge, after a full hearing, should be conclusive on the government, especially where the testimony offered is that upon which the indictment was found.</p> <p>2. Same — Cory of Indictment as Evidence.</p> <p>A certified copy of an indictment found in another district, if it contains allegations sufficient to show that a crime has been committed, is sufficient, as a prima facie showing of probable cause, to authorize the removal of the defendant to such district for trial;- but it is not conclusive, and the court may, in its discretion, require further evidence.</p>

<p>1. Patents— Jurisdiction of Federal Courts — Forfeiture of License;</p> <p>The federal courts have no jurisdiction, under the patent laws, oí a bill whicli seeks first to have a license declared forfeited for nonperformance of conditions, and then to have the acts of defendants declared an infringement, and the usual remedies of injunction and accounting decreed. The proper course would be to obtain a decree of rescission from a state court, and then sue for infringement in a federal court.</p> <p>2. Same — Forfeiture of License.</p> <p>A license does not become ipso facto void on a failure to pay royalties, even if it contain an express stipulation to that effect. It will remain in force, so as to defeat a suit against the licensee for infringement, until it has been rescinded by decree of a court having jurisdiction.</p>

<p>Costs in Admiralty— Suits in Rem — Expense of Procuring Release Bond. Whore the claimant oí a libeled vessel gives a bond for her release, and decree is evenluaily rendered in his favor, the expense actually incurred by him in procuring the execution of the bond for her release by a surety company is a legitima to item of costs, to bo taxed in his favor. The release of a vessel on bond is not merely an accommodation to the claimant, but inures to the benefit of other litigants by relieving them from ihe expense of her cuslody, and the court will exercise its discretion In awarding costs in a manner to encourage the substitution of bonds.</p>

<p>This was a suit in admiralty to recover damages for breach of a contract of employment as master of a vessel.</p>

<p>1. Towage — Negligence in Landing — Evidence.</p> <p>On a question whether a tug negligently swung the starboard comer of the bow of a scow against a pier with great force, the master of the scow testified that the contact broke a stringpiece in the pier, that he heard the wood cracking and breaking, and that a day or so later he visited the place, and found the timber broken and apparently sound within. Held, that the breakage of the timber by reason of the contact was not shown.</p> <p>2. Same.</p> <p>Nor was negligence shown by the fact that the assistant master of the scow, who was standing on the how, about a foot from the edge, lost his equilibrium upon the contact.</p> <p>8. Same.</p> <p>The scow was fastened at her stem, and was swinging around the end of some tugs lying at the end of the pier, lashed together. When her star-hoard bow was some 16 feet from the pier, she was stopped. She then started and swung against the pier. Held, that in such space she could not have gained sufficient headway to come into such violent contact with the pier as would show negligent operation by the tug.</p> <p>4. Same.</p> <p>Ik any event, the captain of the tug was not bound to anticipate the assistant master’s presence on the bow of tbe scow, the plan for making th® landing not requiring the assistant to be there.</p>

<p>In Admiralty. Libel for collision.</p>

<p>1. Jurisdiction of Federal Courts — Amendment of Pleading to Supply Jurisdictional Facts.</p> <p>When; the facts warrant the exercise of jurisdiction by a, federal court, but the pleader has failed to state them properly, as by omitting to allege a proper element of damages, which reduces the amount claimed below tbe jurisdictional limit, the court is not deprived of the usual power to permit him to do so by amendment, by the mere fact that the amendment will constitute a jurisdictional averment.</p> <p>2. Limitation of Actions — Amendment of Pleading — Relation to Beginning of Action.</p> <p>An amendment to a petition, which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running .of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, (loos not relate back to the beginning of the action, so as to stop the running of the statute, but is the. equivalent of a fresh suit upon a new.cause of action, and the statute continuos to run until Ihe amendment is filed; and this rule applies although the. two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only-required in his pleading to state the facts which constitute his cause of action.</p> <p>3. Same — Rule Aiu’lif.d.</p> <p>Whore plaintiff's original petition was for the recovery- of damages for an alleged broach of warranty in a contract of saie, an amended petition alleging a rescission of sueli contract, and seeking to recover the purohas-lírica paid, states a new and different cause of action, and does not roíate back to the commencement of the action, for the purpose of saving the case from the bar of the statute.</p> <p>4. Same — Second Suit -Iowa Statute.</p> <p>Code Iowa 1897, § 3155, which provides that, where a plaintiff fails in an action for any cause except negligence in its prosecution, a new action, commenced within six months, shall be deemed a continuance of the first, for the purpose of the statute of limitations, does not apply where the cause of action slated in the second action is different from that alleged in the firsi. though based on the same transaction.</p> <p>Caldwell. Circuit Judge, dissenting’.</p>

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

This was a suit in equity to set aside a judgment, and to enjoin issuance of execution thereon. Heard on pleadings and proofs.

This was a suit in equity brought to determine the validity of certain county bonds. On final hearing. Findings of Fact.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This was a suit in equity to redeem from a mortgage which had befen foreclosed in a prior suit. The circuit court sustained a demurrer to, and dismissed, the bill (88 Fed. 821), and complainant appeals.</p>

<p>1. Landlord and Tenant — Lease of Railroad — Liability of Lessor for Rebuilding.</p> <p>At common law, in the absence of express covenant in a lease, the lessor is not bound to make repairs, additions, or improvements to the leased property, or to rebuild structures thereon which have become unfit for use, nor is there any implied covenant that the property is fit for the purpose for which it is leased. The fact that the demised property is a railroad does not affect the application of those principles.</p> <p>2. Railroads — Receiver fok Lessee — Right tq Charge Lessor for Improvements.</p> <p>A receiver was appointed at the suit of creditors and stockholders for the property of a railroad company whose only interest in the road it. operates was a leasehold for a term of years. The lessor was not made a party to the suit, or sought to he affected in any way thereby. Held, that the principles upon which courts authorize expenditures by receivers of railroads in foreclosure suits for improvements necessary to keep the road in good condition, in the interests of both the public and the parties concerned, and to charge the cost thereof as a lien on the property superior to the mortgage and other vested liens, did not authorize a court in such case to charge the cost of bridges rebuilt by the receiver under order of the court upon the lessor’s interest in the property, where the lease gave the lessee no right to make such improvements at the lessor’s expense.</p>

This is an appeal from a decree of the circuit court, Southern district of New.York, which sustained demurrers to a bill in equity. The suit involved the disposition of a part of the estate left by Daniel B. Fayerweather.

On Application for Appeal. On the Oth of December, .1898, the plaintiff, describing himself as a “resident of San Joaquin county, California,” tiled this bill, describing the railroad company only as “defendant”; these descriptions, such as they are, being found only in the caption.

<p>J. Contracts — Construction—Effect of Statute.</p> <p>(Jen. St. Kan. 1889, par. 1098, providing' that all contracts which by the common law are joint only shall be construed to be joint and several, relates to the legal effect of contracts, and therefore to the right, and not merely to the remedy, and affects all such contracts made in the state and with reference to its laws, though sued on in another jurisdiction.</p>

<p>Corporations--Action to Enforce Statutory Liability of Stockholder— Effect of Kepe\l of Statute.</p> <p>Under Gen. St. Kan. 188», pur. GG87, prescribing rules for the construction of the statutes of the state, and which provides generally tha.t the repeal of a statute shall not affect any right accrued, nor any proceeding commenced, under such statute, Laws 1899, c. 10, repealing the prior statute which gave creditors of a corporation a right of action against stockholders to recover their debts, does not affect an action brought to reinforce such liability, and pending at the time of the repeal.</p>

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

This is an action commenced in a state court by O. C. Batey against the Nashville, Chattanooga & St. Louis Railway and the Pullman Palace-Car Company. The cause was removed into the federal court by the Pullman Palace-Car Company. On motion to remand.

This action was brought to recover damages for an injury received by I-Ceeve Jones, a minor, on the 10th day of September, 1898. The accident occurred in Eulton, Ky., where the tracks of the plaintiff in error, cross State Line street. This highway' is the dividing line between Kentucky and Tennessee, that part of the city south of this line being known as “South Eulton.” The minor is a colored boy, and at the time of the accident was 10 years and 5 months old.

<p>1. Contracts — Provision for Benefit of Third Person — Right to Sue in His Own Name.</p> <p>A provision of a coal lease by wMek the lessee, wlio is required to mine a certain quantity each year, agrees to pay from the royalties due the lessor, who is also the mortgagor of the leased premises, a specified sum quarterly to the mortgagee in payment of interest on the mortgage debt, is one for the benefit of the mortgagee; and he may maintain an action thereon in his own name, irrespective of the fact that the lease is under seal, under the system of procedure in the state of New York.</p> <p>2. Pleading — Sufficiency of Complaint.</p> <p>In an action against a lessee in a coal lease to recover payments thereunder, an allegation in the complaint that such payments had become due and payable under its terms is a sufficient allegation that the lease was still in force.</p> <p>8. Mining — Coal Lease — Construction.</p> <p>Where a coal lease requires the lessee to mine a certain amount each year, a provision that royalties are to be paid so long as coal to that amount is produced under the lease does not relieve the lessee from the payment of royalties, where lie arbitrarily and willfully refuses to mine such amount.</p>

<p>Appeal — Necessary Parties.</p> <p>Railroad subcontractors bave an interest in a decree holding them liable jointly with the principal contractors and the railroad company for the purchase price of the materials supplied for their use in constructing the road, and establishing a lien on the road therefor; and an appeal from such decree cannot.be entertained unless they are joined, or an order of severance obtained.</p>

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

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

<p>Appealable Decrees — Violation of Injunction.</p> <p>An order imposing a fine for violation of a preliminary injunction cannot be reviewed except upon an appeal from the final decree in the cause.</p>

<p>In Bankruptcy. On- review of rulings of referee in bankruptcy.</p>

<p>Bankruptcy — Exemptions—Toons op Artisan.</p> <p>Where the statute of the state (Code Civ. Proc. Cal. § 690) exempts from execution “the tools or implements of a mechanic or artisan necessary to carry on his trade,” a bankrupt baker may claim, and have set apart to him as exempt under the bankruptcy act, the implements used by himself and his journeymen assistants in carrying on the business of a bakery, and reasonably necessary thereto.</p>

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

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Partnerships—Infant Partner.</p> <p>Where proceedings in involuntary bankruptcy are instituted against a firm, and it appears that one of the partners is a minor, an adjudication should be made against the adult partners and against the firm as such, but as to the infant partner the petition should be dismissed.</p> <p>2. Same.</p> <p>Bankruptcy Act 1898, § 5, cl. h, providing that, “in the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt,” does not apply to a ease where the infancy of the partner not adjudged bankrupt was the only ground for dismissing the petition as to him.</p>

<p>In Bankruptcy.</p>

<p>Deportation of Chinese — Claim of Unintentional Entry.</p> <p>Wliiie a court, in its discretion, on appeal, may permit a Chinese laborer arrested on the Texas side of the Eio Grande, and ordered deported by a commissioner, to return to Mexico, where he formerly resided, when satisfied of the truth of his claim that he entered the United States unintentionally, it will not interfere with the order of deportation where it appears more probable from the evidence that his entry was intentional.</p>

<p>1. Injunction — Conspiracy.</p> <p>It is settled law that the court had jurisdiction of the case in which the original injunction was granted. Wire’ Co. v. Murray, 80 Fed. 811; Mackall v. Ratehford. 82 Fed. 41; U. S. v. Dehs, 64 Fed. 724; In re Dehs, 15 Sup. Ct. 900, 158 Ú. S. 573.</p> <p>2. Contempt — Procedure. .</p> <p>There is no settled practice in contempt proceedings. The proceedings in this case conform to the practice elsewhere, but, if irregular, no question of irregularity has been raised. For practice in contempt proceedings, see Fischer v. Hayes, 6 Fed. 76; U. S. v. Memphis & L. R. R. Co., Id. 237; U. S. v. Wayne, 28 Fed. Cas. 504.</p> <p>8. Same — Denial of Acts Alleged.</p> <p>Parties cannot conclusively purge themselves of contempt by filing answers denying acts alleged against them. U. S. v. Debs, 64 Fed. 7 ¡5; In re Debs, 15 Sup. Ct 900, 158 U. S. 594.</p> <p>4. Same — Violation of Injunction.</p> <p>That the court has the power, and that it is its duty, to punish a person violating its injunction, is a principle universally recognized, and as old as equity jurisprudence. Wire Co. v. Murray, 80 Fed. 811; In re Debs, 15 Sup. Ct. 900, 158 U. S. 595.</p> <p>5. Same.</p> <p>“To render a party amenable to an injunction, it is not necessary that he should have been a party to' the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.” Ex parte Lennon, 17 Sup. Ct. 658, 166 TJ. S. 549.</p> <p>6. Injunction — Protection of Property.</p> <p>Injunction, protecting property and persons engaged in lawful business enterprises, In proper cases, and where the remedy at law Is Inadequate and the injury irreparable, is not new, nor is it a modern invention of the federal courts. Wire Go. v. Murray, 80 Fed. 811.</p> <p>7. Contempt — Trial by Jury.</p> <p>A person who violates an injunction is not entitled, under the constitution, to a trial by jury. In re Debs, 15 Sup. Ot. 900, 158 U. S. 599.</p> <p>8. Same — -Punishment.</p> <p>“A court enforcing obedience to its orders by proceedings for contempt is not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to.” In re Debs, 15 Sup. Ct. 911, 158 TJ. S. 599.</p> <p>9. Constitutional Law — Pursuit of Livelihood.</p> <p>The fourteenth amendment to the constitution of the United States se-t eures, not only the right of the citizen to be free from mere physical restraint of his person, but to be free In the enjoyment of all his faculties; to use them in all lawful ways; to live and work where he will, and earn his livelihood in any lawful manner; to pursue any livelihood or avocation, and for that purpose to enter Into all contracts that may be proper, necessary, and essential to his carrying out the purposes above mentioned. Butchers’ Union Slaughter-House Co. v. Orescent City Live-Stock Landing Co., 4 Sup. Ct. 652, 111 U. S. 757; Allegeyer v. Louisiana, 17 Sup. Ct. 427, .165 U. S. 589.</p> <p>10. Conspiracy — Parties.</p> <p>Where two or more persons combine with the intent to . do an unlawful thing, and, in the prosecution of the unlawful enterprise, commit some crime not originally contemplated, all are equally guilty, under the law. U. S. v. Kane, 23 Fed. 751.</p> <p>(Syllabus by the Court.)</p>

<p>1. Habeas Corpus — Questions Arising on Hearing — Constitutionatuty op Act op Congress.</p> <p>.V circuit court of the United Slates, on the hearing upon writ of habeas corpus, will not hold an act of congress unconstitutional.</p> <p>3. Lotteries — Carrying Tickets prom One State to Another — Construction op Statute.</p> <p>In Act March 2, 1805 (28 Stat. 963), which makes it an offense to cause lottery tickets to bo carried or transferred “from one state to another,” the word “state” must be held to have been used in a constitutional sense, which does not include a territory of the United States; hence a complaint charging- a person with having caused lottery tickets to he carried and transported from a state to a territory does not charge an offense within a statute.</p>

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

<p>This was a suit in equity by the Westingbouse Electric & Manufacturing Company against the Beacon Lamp Company and others for alleged infringement of a patent for a process of manufacturing carbon conductors for incandescent lamps.</p>

<p>L Patents — Construction of License.</p> <p>A licensee was authorized to “deal In, import, use, and sell the knitted fabric” covered by the patent, at a royalty of two cents per yard; and the licensee covenanted not to handle or deal in any goods like those covered by the patent which were made in this country by any party “not 'licensed under the above-mentioned patent, unless he pays the royalty thereon himself, it being understood, however, that but one royalty shall be paid in such goods, or any fabric coming under this license, whether paid by manufacturer or seller.” Held that, while this provision created no privity between the licensor and any third person who might make such goods In this country and sell them through the licensee, yet, if the licensee paid the royalty on such goods, this was a waiver of the monopoly as to them, so that the licensor could not sue the manufacturers for infringement.</p> <p>2. Same — Annulment of License — Breach of Covenant.</p> <p>The mere breach of a covenant by the licensee does not ipso facto annul a license. There must be some proper proceeding and a rescission in equity.</p>

<p>Patents — Infringement—Crushing Mills.</p> <p>An essential feature of the machine covered by the Huntington patent, No. 277,134, for a crushing mill having the rollers suspended from above, is that the suspending mechanisin shall be constructed and arranged so that the rollers may swing radially, and in operation be thrown outward against the interior surface of the die by centrifugal action; and the patent is not infringed by a mill having a single roller suspended over the center of the pan by a shaft depending from a universal joint, and positively rotated by the driving pulley, and which is not thrown outward by centrifugal force, hut would remain in its position in the center if it were not drawn outward by the workman.</p>

<p>1. Patents — Infringement—Imperfect Operation.</p> <p>When the essential features of the patented device are appropriated, infringement is not avoided by the fact that defendant’s device works imperfectly, or is not so practical as that of the patent.</p> <p>2. Same — Machines for Removing Hairs from For Skins.</p> <p>The Sutton patent, No. 383,258, for a machine for removing hairs from fur skins, construed, and held valid as to claim 8, covering a combination of which the essential feature is a removable revolving brush to brush down the fur and leave the hairs standing so as to be clipped off by the cutters; and said claim held infringed by the device of the Jenik patent, No. 557,129.</p> <p>8. Same.</p> <p>The Hedbavny reissue, No. 11,079 (original No. 408,879), for a machine for removing hairs from fur skins, is void, as to claims 1 and 2, for want of invention. Claim 3, if valid at all, must be limited to the precise construction shown; and neither it nor claim 4 is infringed by the device of the Jenik patent. No. 557,129.</p>

<p>1. Design Patents — Anticipation.</p> <p>If two designs ard so much alike that one may readily be taken for the other by an ordinary observer, the earlier constitutes an' anticipation of the later, notwithstanding differences in detail and in non-essential matters.</p> <p>2. Same — Metallic Sidhng for Buildings.</p> <p>The Sagendorph jiatent, No. 17,235, for a design for metallic siding for buildings, which cojvers a representation of raised brickwork with intermediate depressed grooves curved in cross section, is void, because of anticipation by the Hajray patent, No. 103,991, for a covering for the exterior walls of buildings! ’ '</p>

<p>1. Patents — Construction and Infringement — Buttons.</p> <p>The Williams & Lade patent, No. 439,920, for an Improvement In buttons, analyzed, construed, and held not infringed.</p> <p>2. Same — Amendment to Answer.</p> <p>Where written instruments in the nature of an assignment were filed in the case subsequent to the original answer, and long before the cause was submitted, held, that it was proper to allow an amendment to the answer to conform to these proofs.</p>

<p>This was a suit in rein in admiralty to enforce a lien claimed by libelants on the barge Enos Soule.</p>

<p>This was a suit in personam in admiralty by the owner of a vessel to recover for its loss from the charterer and Ms guarantor.</p>

<p>Marine Insubance — Construction of Policy — Master’s Draft.</p> <p>An open policy ol marine insurance provided for insurance from time to time “on advances and for disbursements, secured by master’s draft, pledging vessel and freiglit.” A certificate was issued thereunder, covering advances by the insured on a master’s draft, which did not itself pledge the vessel or freight, but, when negotiated by the insured, the managing owner of the vessel gave a writing, which was attached to the draft, making it payable from first freights received at port of destination, and pledging vessel, owners, and freight for such payment. Held, that such draft was within the terms of the policy, the pledge made being within the authority of the managing owner.</p>

<p>1. Shipping — Construction op Charter Party — Provision por Quick Dts-JjIVKRY.</p> <p>A provision of a charter for quick delivery on board should be given a reasonable interpreiatlon with reference to the character of the cargo, as well as its destination and the manner of stowage required, in order to facilitate its discharge. A requirement that the cargo shall be delivered as fast as the ship can receive it, does not render the charterer liable for demurrage, because all her hatches are.not used at the same time, where the size and weight of the packages and the facilities of the wharf are such as to render sucli use inconvenient.1</p> <p>2. Same — Time kor Loading — Knci.uston op Hoi.tdays.</p> <p>'l'he Pennsylvania statute relating to holidays (Act 1893; P. L. 188) does not make them obligatory, and, where it is not shown that the stevedore or men engaged in loading a vessel refused to work on holidays, such days are not to he excluded in computing demurrage.</p>

<p>Collision — Car Bloat — Duty to Carry Sears Lines.</p> <p>Wluw a car float was equipped with mooring lines adequate to resist the effect of wind and rough weather, the failure to have spare lines sufficient to withstand both tlie force of the wind and the impact of a steamer that drifted against her was not a negligent omission on the part of tlie float, rendering- her liable for damages done while adrift.</p>

Appeals from the Circuit Court of the United States for the Northern District of Ohio.

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

<p>Municipal Corporations — Contract -with Water Company — Construction.</p> <p>A contract between a city and a water company, chartered and given the right to lay its mains in the streets ol the city by an act ol the legislature, which merely bound the company to maintain a certain number oi! fire hydrants, for which the city agreed to pay a specified rental for a term ol years, and fixed a maximum price, beyond which the company agreed it would not charge for water furnished for domestic use during ihe term, but which contained no grant of any privilege to the company, and no„ contract for the furnishing of water to the inhabitants of the city, nor •agreement that the city should not do so, is not violated by the erection or purchase of waterworks by the city for the supplying of water to its inhabitants and for its own use, and affords no ground for an injunction to restrain the city from so doing in pursuance of authority contained in its charter; the city not having refused to pay the stipulated rentals.</p>

On Exceptions by James 8. McCartney, Administrator, to Report of Special Master.

<p>1. Public Lands — Forfeiture of Railroad Grant — Bona Fide Purchasers.</p> <p>The effect of the acts of March 3, 1887 (24 Slat. 55(5), and of March 2, 1890 (29 Stat. 42), providing for the adjustment of railroad land grants, was to confirm in bona fide purchasers from a railroad company the title to lands which, when certified under the grant,, were public lauds of the United Stales, and not subject to individual claims, although at the time the grant attached they had been withdrawn from its operation, whete they were subsequently restored to the public domain, were within the limits of the grant, and were earned by the company.</p> <p>2. Same — Who ark Bona Fide Purchasers — Effect of Sale tn Foreclosure.</p> <p>Where a. railroad company to which a land grant was made, and to' which lands were certified thereunder as earned, conveyed the legal title to such lands in trust for its bondholders, and on the foreclosure of a subsequent mortgage its equity of redempiion was sold, leaving the title in the trustees, and subject to the rights of the first bondholders, such sale operated to extinguish all title and interest of the original grantee in the lands, and look the trustees out of the proviso of the act of March 3, 1887 (24 Stat. 55(5), excepting mortgagees from the provision in favor of bona fide purchasers, and the trustees and purchaser of the equity of redemption became liona fide purchasers, within the meaning of such provision and of section 1 of the act of March 2, 189(5 (29 Stat. 42).</p> <p>3. Mortgages — Conveyance of Equity of Redemption to Mortgagee — Consideration.</p> <p>A deed made by a railroad company to trustees, to whom it had previously conveyed the legal title io lands to secure its bonds, purporting to convey to such trustees the equity of redemption for the benefit of the bondholders, but for which no consideration was received, is ineffectual to devest the company of such equity.</p>

In the year 1889 the Central Trust Company of Now York instituted a suit in the circuit court of the United States for the Western division of the Eastern district of Arkansas against the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri, for the foreclosure of a mortgage executed by the railway company.

<p>Costs — Amendment of Decree — Estoppel.</p> <p>Where a state railroad commission repealed resolutions it had previously adopted relating to freight rates, for the declared purpose of removing the cause of litigation then pending commenced by a railroad company to enjoin the reduction of rates contemplated by such resolutions, and asks that the suit be dismissed without costs to either party, which is done on motion of the complainant, the commission is estopped to ask an amendment of the decree so as to allow it costs as the successful party, on the ground that the resolutions repealed were not in fact the subject of the controversy, but were merely preliminary to subsequent action taken by .the hoard, which was not repealed; nor will the decree be modified to allow costs to the complainant which were not asked for in its motion, no claim of mistake or inadvertence being made.</p>

<p>1. Railroads — Equipment Sold to Lessee — Lies on Earnings op Road.</p> <p>The seller of equipment to ihe lessee of a railroad with knowledge that it is to he used on the rolling stock of such leased road is entitled to look to. the earnings of such road for payment, and, in the absence of counter-railing facts, the price is a charge upon such earnings in the hands of receivers for the lessor, to whom the road has been surrendered by the lessee, although, as between the lessor and lessee, it was ihe duly of the latter under the lease to furnish such equipment.</p> <p>2. Same — Equitable Rights op Seller — Laoiies.</p> <p>Certain equipment purchased by a lessee for use on a leased railroad, but not paid for, had not been used when the road was surrendered by the lessee to receivers appointed for the lessor, and with tixe approval of the court was purchased by the receivers with other materia] on hand. The claim of the original seller for the price of such equipment was then due. but was not presented against the lessee, which was also insolvent, for more than a year thereafter, and meantime the receivers of the lessor, without any knowledge of such claim, paid the lessee for the equipment. Hdd, that the seller was guilty of laches, which deprived it of its equitable right to enforce its claim against the earnings of the road in the hands of the receivers.</p>

<p>On Motion to Compel Beceiver to Pay Money to Judgment Creditor.</p>

This is a writ of error to review a judgment for the defendants in an action to recover real estate lying in Williams county, Ohio. William L. Smith was the common source of title. The defendants claim under deeds made by Margaret Smith, the widow of William L. Smith, during her widowhood, and after she became the wife of her second husband, Alexander Miller.

<p>•Sheriffs — Liability on Bond — Kentucky Statutes.</p> <p>ISy. St. §§ 4129, 413S, 4134, provide that the sheriff, by virtue of his office, shall be collector of all state, county, and district taxes, unless otherwise ordered, that he shall give a bond conditioned that he “shall faithfully perform his duties,” that the county court may require him to give an additional bond or bonds whenever it may deem it for the interest of the state and county, and that the sureties on all the bonds shall be jointly and severally liable for any default of the sheriff during the term for which such bonds were given. Sections 1882-1884, which were prior •enactments, require the county court to take a bond from the sheriff or other person charged with the collection of county taxes annually before he enters upon such collection. Held, that such bond was an “additional bond,” within the meaning of section 4134, and that the sureties on a sheriffs general bond, given under section 4133, were liable for defaults in respect to state and county revenue alike, although no additional bond was required or given.</p>

<p>This was an action on negotiable bonds issued by the defendant,, the city of Manning, Iowa.</p>

This is an action at law instituted by the United States of America, the defendant in error, against; Hugh Conway, the plaintiff in error, to recover the value of certain pine logs alleged to have been by him unlawfully cut and removed from certain lands belonging to the United States.

' This is a writ of error to a judgment in favor of the defendant A. W. Com-stock m a suit brought by Swain T. Chick and William T. Chick, co-partners as Chick Bros., citizens of Massachusetts, against Henry S. Robinson, Richard G-. Elliott, and Andrew W. Comstock, co-partners as H. S. Robinson & Co., on a note of the firm for $2,10(5.70. A verdict and judgment were entered against Henry S. Robinson and Richard Gt. Elliott without controversy.

This was an action on notes given in payment for the construction of an ice plant. The defense was a breach of warranty as to the capacity of the plant.

<p>1. Bahkruptct — Opposition to Discharge — False Oath.</p> <p>Where the bankrupt, more than four months before the commencement of the proceedings, had transferred a stock of goods to his wife, and his schedule in bankruptcy stated that he had no assets of any kind, held, that such transfer, although it may have been void as to creditors, was valid as to the bankrupt, and, therefore, in the absence of evidence of intentional wrong on his part, his oath to the schedule was not such a false oath as would forfeit his right to a discharge.</p> <p>2. Same — Schedule of Debts.</p> <p>The bankrupt’s omission of a debt from his schedule of creditors will not make his oath to such schedule a false oath, such as to be ground for refusing his discharge, if the omission was caused by mere mistake or inadvertence, or unless it is shown to have been willful and intentional.</p>

<p>In Bankruptcy. Separate petitions in involuntary bankruptcy were filed against Ulysses Mercur and Janies Watts Mercur, as individuals, and without reference to the fact that they were also partners under the firm name of J. W. Mercur & Co. Petitions having been filed by certain creditors of the partnership asking for leave to-join in the petitions against the individual partners, the cases came up for hearing on these applications and on the question of adjudication in bankruptcy.</p>

<p>In Bankruptcy.</p>

This is an appeal in bankruptcy, brought by the Leidigh Carriage Company, the adjudged bankrupt, and Henry Coleman, a preferred creditor.

<p>On Petition of P. W. Tinsman for a Writ of Habeas Corpus.</p>

<p>Hearing on a Writ of Habeas Corpus Issued on Petition of T. Yamasaka.</p>

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

<p>1. Patents — Anticipation—Buffer Spring for Trolley Arm.</p> <p>A patent for a buffer spring so constructed as to come into operation when the upwardly pressed trolley arm of an electric railway car has assumed a vertical position, and, by engaging therewith, prevent damage being done to the trolley, or by it to the car on which it is placed, was anticipated by the prior use of similar springs as recoil buffers tó receive the shock of the projector arm in devices for throwing glass balls as targets.</p> <p>2. Same.</p> <p>The Baker patent, No. 437,961, for an improvement in trolley devices for electric railways, was anticipated by the Holden patent, No. 244,897, and the Bloom patent, No. 313,804, covering analogous devices in traps for throwing glass balls, and also by the Van Depoele patent, No. 405,750, for an improvement in trolley devices!</p>

This was a suit in equity by the Cushman Paper Box Machine Company against Harry W. Goddard and others for alleged infringement of claim 1 of letters patent No. 364,161, issued May 31, 1887, to George H. Cushman, for an improvement in paper-box machines. The circuit court found that the defendants were not guilty of infringement, and accordingly dismissed the bill. 90 Fed. 727. From that decree the present appeal was taken.

<p>1. Patents — Contributory Ineringkment — Electricity.</p> <p>The vendor of an article of common merchandise, having no special adaptation to an infringing use, but equally adapted to a lawful and proper method of use, is not responsible, as a contributory infringer, for an unlawful method of use by the vendee, when he knows that the vendee intends such unlawful use, but has no interest in, and makes no stipulation for, the employment of such method. Therefore a company engaged in generating electricity, which is conducts to the borders of a city, and there sells to another company, which furnishes it directly to consumers, is not liable merely because it knows that tlie distributing company will furnish some of the electricity to a party employing a method of use which infringes a patent. Neither is the distributing company liable where it has no interest in, and makes no stipulation for, the employment of such infringing method of use by its vendee.</p> <p>2. Same — Construction of License.</p> <p>A license to usé a patented tiling, in the absence of circumstances controlling the presumption, implies a license to make the thing to be used.</p> <p>3. Same.</p> <p>An electric company, which grants a license to a local company to produce and distribute electricity for use in the locality, thereby impliedly licenses the use of all methods and apparatus covered by its patents which are necessary to .make the use of such electricity available to the public. Hence where the'local distributing company, though not organized for the purpose of installing electrical apparatus to be used by its customers, yet, in the absence of other parties capable of putting in such apparatus, undertakes to do so merely at cost, and in fact receives only the actual expense thereof, this fact does not prevent a customer from acquiring an implied license to use the apparatus so installed.</p> <p>4. Same — Duration of License.</p> <p>A license to use a thing which one is authorized to make imports, in the absence of controlling circumstances, a license to use it during the full-term of the patent. If any restriction is intended, a stipulation therefor should be inserted in the contract. Hence, where a user of electricity acquires from the company furnishing such electricity a license to use a certain method or apparatus for employing the same in electric lighting, and purchases from the company the apparatus itself, it does not, in the absence of any stipulation to that effect, lose its right to employ suc-li method or apparatus when its licensor ceases to furnish electricity to it, and therefore does not become an infringer by continuing to employ such method or apparatus in utilizing electricity furnished by another party.</p> <p>5. Same — Rights of Purchaser.</p> <p>The sale and installation of an electric wire and lighting system in a building carries with it the right to use any subsidiary and co-operating elements necessary to the proper use of such system, such as transformers for reducing the voltage, without which the system cannot be advantageously and economically used.</p>

<p>1. Equity Pleading — -Plea and Duplication — Review.</p> <p>When, after a plea is set down for argument as insufficient in law, the court permits it to be amended, and a replication is then filed, and a hearing had upon evidence bearing on the issue thus made, and the court thereupon finds that the plea is supported, and dismisses the bill, the only question open for review is the question as to whether the plea is sustained by the evidence.</p> <p>3. Patents — Contbacts eoh the Assignment oe Inventions and Patents.</p> <p>The owner of a machine shop, who had invented a metallic snatch block, entered into an agreement with a company whereby it was to pay him “all the costs and expense's of making and perfecting such invention and obtaining patents,” in consideration whereof he was to have the right to manufacture at a reasonable profit all the snatch blocks, tackle, etc., which the company should put upon the market. Thereafter ho perfected one snatch block, and obtained a. patent therefor, and while so doing he presented weekly bills to the company for labor, material, and expenses incurred in working out his ideas, together with the cost of tools, dies, patterns, etc., and such bills were paid by it. Held, that lids was a practical construction of the contract by the parties, and the company could not thereafter, in respect to subsequent inventions, claim that it was only obligated to pay merely the cash outlay in obtaining the patent.</p>

<p>In Admiralty. Libel in rem by Franz Schwam, seaman, against the ship Marion Ohilcott, to recover damages for personal injuries.</p>

<p>In Admiralty. Libel to recover extra compensation for the use of a vessel after the expiration of the charter period.</p>

This is a proceeding by the owners of the schooner Jane Grey for limitation of their liability growing out of the sinking of the vessel. Heard on exceptions fco cross libels filed by the widows and heirs of passengers to recover damages for the death of such passengers.

<p>Shipping — Liability for Damage to Goods — Measure of Damages.</p> <p>Where goods damaged in shipment, for which damage the ship is liable (the invoice value being made the basis of settlement by the bill of lading), are sold on their arrival, the freight paid thereon or due should be deducted from the proceeds, and the remainder only credited to the carrier against the invoice value, to determine the amount of his liability.</p>

In Admiralty. Libel against the steaming Taurus to recover for injury to a tow. Dismissed. On the 9th day of May. 1897, the barge Templar, laden with coal and drawing- about K) feet, was being towed into Boston Harbor, from New York, by the mg' Taurus, in connection with two other vessels, the Escort and the Ireland. Before reaching the entrance to the harbor, the hawsers had been shortened, under directions from the tug, so that each was on a length of about SO fathoms.

<p>In Admiralty. Proceeding to limit liability on account of damages by collision. On distribution of proceeds of surrendered vesseL</p>

<p>Collision — Micakuek op Damacws — Dhmckkagp..</p> <p>Tlie owners of a vessel injured, in a collision during a voyage are not entitled to recover demurrage for tlie time tlie vessel was delayed for making repairs, where they suffered no actual pecuniary loss from the delay.</p>

<p>1. Jurisdiction of Federal Courts — Effect of State Statutes.</p> <p>The fact that a plaintiff is given a different remedy in the state courts cannot affect the jurisdiction of a federal court to entertain his action, where, by reason of his citizenship and the amount involved, he has the right to sue in that court.1</p> <p>2. Municipal Bonds — Action by Holder, fob, Judgment — Sufficiency of Complaint.</p> <p>A complaint filed in a federal court, in an action of which it has jurisdiction, alleging that plaintiff is the owner of coupons from negotiable bonds duly issued in conformity to law by a California irrigation district, and that such coupons are past due and unpaid, states a cause of action which entitles the plaintiff to a judgment against the district. The fact that such coupons are, under the statute, to be paid from a special fund, to be raised by the officers of the district in a special manner, does not impose on the plaintiff the necessity of alleging that such fund has been raised, or that the officers have failed to perform their duty to raise it, nor does the fact that payment can in either case only be enforced by means of a mandamus affect the plaintiff’s right to a judgment, since in a federal court such relief can only be afforded- after a judgment as a means for its enforcement.</p> <p>3. California Irrigation Districts — Right to Plead Illegality of Organization.</p> <p>The supreme court of California having in numerous decisions upheld the constitutionality of the Wright act (St. Cal. 1886 & Ex. Sess. 1887, p. 29), providing for the organization and government of irrigation districts, a district organized under its provisions, and which continues to exist, is at least a de facto municipal corporation, and its officers de facto- officers; and the legality of its organization cannot be collaterally attacked by an individual, or pleaded by the district itself for the purpose of defeating obligations which it incurred while acting as such de facto corporation.</p> <p>4. Same — Defense to Bonds — Character of Land in District.</p> <p>The question whether land embraced within an irrigation district is of a character which would be benefited by a system of irrigation is one of fact, which tiie statute of California commits to the determination of the board of supervisors of the county on the application for organization of the district; and, in the absence of allegations of fraud or bad faith, their decision is conclusive, and the question cannot be raised by the district a? a defense to bonds it has issued.</p> <p>5. Same — Failure to Review Benefits.</p> <p>Allegations in the answer of an irrigation district in a suit on its' bonds that the district has derived no benefit from the work constitute no defense, and are immaterial.</p> <p>6. Same — Exclusion ob’ Territory from District.</p> <p>'The exclusion of lands from an irrigation district after its organization under the provisions oi he California statute cannot affect the validity of bonds issued by the district.</p>

<p>These were suits in equity for injunctions.</p>

This was a suit in equity against the receiver of an insolvent national bank to recover the amount of a deposit alleged to have been fraudulently received by the officers of the bank with knowledge of its insolvency.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>On August 1(5, 1897, Laurence Minot and Charles F. Morse, the appellants, liled a petition or “bill,” as they termed it, in the clerk’s office of the circuit court of the United States for tlie Western district of Missouri, against Julia Mastín. Thomas H. Mastín, and Hugh C. Ward, as receiver, the appellees, wherein the appellants alleged, in substance, that on December 31, 1888, John J. Mastín and his wife, Julia Mastín, executed a deed of trust in tlie nature of a mortgage, hy which they conveyed to said appellants, as trustees, a largo quantity of real estate situated in Kansas City, Mo., to secure the payment of 150 principal notes in the sum of .81,000 each, and 150 sets of interest notes, each set consisting of l(i notes for the sum of ¡530 each, all of which notes were executed hy John .T. Mastín individually, for value received, and bore tlie same date as the deed of trust; that John J. Mastin died on August 9, 1890, leaving a will, wherein his wife, Julia Mastin, was named as his executrix and sole devisee and legatee; that thereafter default was made in the payment of those interest notes secured by tlie deed of trust which matured on July 1, 1891, January 1, 1895, and July 1, 1895. and that such default continued until on or about October 20, 1895, when said notes so in default were paid; that default was afterwards made in the payment of the remaining interest notes, being those that matured on January 1, 1896, July 1, 1896, and January 1, 1897, as well as in the payment of all the principal notes secured by said deed of trust which became due on January 1, 1897; that no payments had been made on any of the principal or interest notes secured by the deed of trust which became due as last slated; and that the grantors in said deed of trust had also failed and refused to pay a large sum of money which was due on account of taxes, general and special, that had been assessed against the mortgaged property, which the grantors in the deed were obligated to pay. In addition to the foregoing averments, the plaintiffs below further stated in their complaint that on July 21, 1894, the defendant Julia Mastin had commenced a suit against her co-defendant Thomas H. Mastin in the circuit court of the United States for the Western district of Missouri for the purpose of obtaining an accounting and the dissolution of an alleged co-partnership between herself and Thomas H. Mastin that had been formed, as it was claimed, some time during the year 1890, after the death of John J. Mastin; and with reference to said suit the plaintiffs averred that .in the hill which had been filed to secure a dissolution of said firm it was charged by the said Julia Mastin that prior to her husband’s death he and the said Thomas H. Mastin had ween co-partners in the banking and real-estate business under the firm name of John J. Mastin & Co.; that they had accumulated a large amount of property, which they owned jointly; that the assets of said firm at the time of her husband’s death consisted largely of real estate situated in the states of Missouri and Kansas, and embraced, among other property, the lands conveyed to said Charles F. Morse and Laurence Minot, as trustees, by the aforesaid deed of trust, which was in fact partnership property at the time of said conveyance, although the title thereto stood in the name of John J. Mastin; that after her husband’s death she had succeeded to his interest in the firm of John J. Mastin & Co., and had become a member thereof, and had thereupon intrusted the sole management of its affairs to Thomas H. Mastin, who had failed to conduct the business of the firm properly, and had been guilty of various derelictions of duty. The plaintiffs averred that by means of the aforesaid allegations contained in her hill of complaint the defendant Julia Mastin had succeeded, on July 23, 1894, in inducing the circuit court of the United States for the Western district of Missouri to appoint Hugh C. Ward, one of the appellees, as receiver of all the property and assets of the firm of John J. Mastin & Co., and that under and by virtue of such appointment he had taken possession of all the property of said firm, including the lands comprised in the aforesaid deed of trust, and that since the date of his appointment as such receiver he had continued to hold and manage the same, subject to the direction of the court by which he was appointed. The plaintiffs further represented to the court that, as trustees in the deed of trust executed by John J. Mastin and wife on December 31, 1888, they were desirous of obtaining- possession of the lands thereby conveyed to them in trust, to the end that they might sell the same, in pursuance of the power of sale conferred by the deed of trust, for the purpose of liquidating the mortgage debt, but that they had been hindered and obstructed in obtaining possession of the property by reason of its being in the custody of the receiver. They also alleged that the numerous notes which were secured by the deed of trust had been indorsed by the original payee thereof, without recourse, and had been, sold, and were then outstanding and unpaid in the hands of various purchasers. They further alleged that the defendants were asserting and pretending that the trustees in the deed of trust had ho right to the possession of the property thereby conveyed, for the alleged reason that the right to foreclose the deed of trust was barred by the provisions of a local statute of limitations. In view of the premises the plaintiffs prayed that the cottrt would require its receiver to surrender the possession of the lands conveyed by the deed of trust to their custody, to the end that they might he at liberty to proceed with the foreclosure of the deed of trust, or, if it should appear to the court that it was not expedient to grant such relief, that in lieu thereof it would ascertain the amount which was then due on the notes secured by the deed of trust, and direct a sale of the mortgaged property for the purpose of satisfying the mortgage debt. The complaint concluded with a prayer for a subpoena, which was duly issued and served. The defendants below each filed a plea to the jurisdiction, inasmuch as the complaint showed that Charles F. Morse, one of the plaintiffs, and Thomas H. Mastin and Hugh C. Ward, two of the defendants, were each residents of the state of Missouri. The defendants Ward and Thomas H. Mastin, in their pleas to the jurisdiction, further assigned as a reason why the proceeding should be dismissed that no leave of court had been obtained to make Ward a party thereto in his capacity as receiver. The pleas to the jurisdiction were each overruled after full argument, and üie defendants were required to plead further. The defendants next Interposed a demurrer to the complaint, one of the reasons which was assigned for such demurrer being that no leave of court had been obtained to make the receiver a party defendant. The demurrer was sustained, but the privilege was accorded to the plaintiffs of tiling an intervening petition in the suit to wind up the partnership estate oí John .T. Mastín. & Co., if iliey should so elect. The case comes to this court, on appeal from the order sustaining the demurrer and dismissing the complaint, the plaintiffs having declined to avail themselves of the privilege accorded to them of tiling- another petition or complaint</p>

<p>1. Money Received — Complaint—General Issue — Special Defenses — Evidence.</p> <p>The general issue in an action for money received, to the use of the plaintiff puls in issue all fads from which the legal inference arises that the money was received to the use of plaintiff, but it is proper for the plaintiff to allege the circumstances under which the money was received by defendant, and, when he does so, he is held in his proof to the transaction as pleaded, and no special defenses not applicable to such facts can be set up.</p> <p>S. Sale — Action for Price — Failure of Consideration.</p> <p>There is not a failure of consideration for a iiromise to pay the purchase price of stock in a corporation where the buyer receives the stock, though it proves to be worthless, nor will the fact that agreements made by the seller, which have not been fulfilled, constituted additional considerations for the purchase avail to defeat an action for the price of the stock, where the value of such considerations is unliquidated, and no particular part of the money to be paid under the agreements was apportioned to them.</p> <p>8. Same — Worthless Stock.</p> <p>The fact that stock in a corporation purchased by defendant proved to be worthless is no defense to an action for the price, in the absence of fraud or a specific warranty.</p>

<p>1. Sales — Fraudulent Representations — Pleading.</p> <p>To render representations made by a seller to the purchaser fraudulent, so as to avoid the sale, they must have been made with knowledge that they were untrue, or under circumstances from which the seller should have had such knowledge, and which necessarily impeach ills good faith; and a pleading alleging the fraud as a defense to an action for the price is insufficient unless it alleges such knowledge or circumstances in such manner that issue may be taken thereon.</p> <p>3. Same — Aotton isy Assignee.</p> <p>In an action by tlie assignee of a contract of sale to recover the, price, allegations in tlio answer that the seller, in mailing tlie sale, acted as agent for the plaintiff; that he made representations and statements which were false, and which were known to be false by plaintiff when he took tlie assignment of the contract, — do not state a defense, as they fail to siiow that either plaintiff or the seller knew the falsity of the representations at the time they were made.</p>

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

This was an action by a bondholder of an insolvent railroad company against the members of a reorganization committee for alleged breach of duty.

<p>Bankruptcy — Proof of Debts — Bights of Bankrupt’s Surety.</p> <p>Under Bankruptcy Act 1898, § 57, subd. i, where a creditor has received partial payment of his debt from a surety of the bankrupt, the right to prove the claim, for its entire amount, against the estate in bankruptcy, is in the creditor, in preference to the surety.</p>

<p>1. Bankruptcy — Property Vesting in Trustee — Estate by Curtesy.</p> <p>In Massachusetts, under the statutes of that state, a husband’s interest in the real estate of his wife, during her lifetime and after issue born, is not property which he could convey or assign, and consequently it will not pass to his trustee in bankruptcy as assets of his estate.</p> <p>2. Same — Powers.</p> <p>A husband’s interest in his wife’s real estate during her life is not a “power,” within the meaning of Bankruptcy Act 1898, § 70(3), vesting in a bankrupt’s trustee “powers which he might have exercised for his own benefit.”</p>

<p>Bankruptcy — Costs—Fee to Attorney op Involuntary Bankrupt.</p> <p>Under Bankruptcy Act 1898, § 64, authorizing the allowance of a reasonable attorney’s fee “to the bankrupt in involuntary cases while performing the duties herein prescribed,” a reasonable fee may be allowed to the attorney ol' an involuntary bankrupt, for his services in drawing the schedules and making copies of the same, and also for attending, the bankrupt upon the latter’s examination before the referee.</p>

In Bankruptcy. On review of decision of referee in bankruptcy. Held: the debt was provable in bankruptcy, unless it were shown to be barred throughout the United States.” This ease is followed by Judge Hall in Re Perry, 1 N. B. R. 221, Fed. Cas. No. 10,998, and in Re Shepard, 1 N. B. R. 439, Fed. Cas.

<p>In Bankruptcy.</p>

In Bankruptcy. This was a voluntary petition, filed by Moses Levy, asking for an adjudication of bankruptcy against himself, and also against the firm of Richman & Levy, of which he was a member. The other partner, Louis L. Richman, filed an answer to the petition, objecting to the adjudication of the firm.

<p>In Bankruptcy. On review of an order of the referee in bankruptcy requiring the amendment of the petition 'and schedule of the bankrupt.</p> <p>The order was as follows:</p> <p>“An adjudication and order of reference having been certified herein to the referee, upon examination of the petition and schedules, I find them insufficient in the following particulars: 1. The verifications thereof being made before a notary public are defective in the statement of the venue, such statement not showing the verifications to have been made within the jurisdiction of the notary public taking the same. -2. The verifications of the schedules recite that the petitioner was ‘duly sworn (or affirmed).’ The form of verification should state definitely how the verification was made. 3. The three verifications are defective and unavailing because made before a notary public who is one of the attorneys for the bankrupt. 4. A number of the creditors are recited in the-schedules as residing in large cities, as Boston and New York; no address being given by street and number or other such designation as would afford reasonable evidence tliat the notices to be mailed to such creditors would reach them, nor do the papers disclose facts showing a diligent effort to ascertain the definite post-oilice address to which notices should be sent, and a failure upon such reasonable effort to ascertain the same. While the statute requires the residences to be stated, I think in order to further insure the purpose of the statute, the papers should, in addition, state also the posi-office address with reasonable certainty, or contain allegations showing fads upon which it may be concluded that after reasonable effort, such addresses cannot be ascertained. Ordered, that the application for an order appointing a first meeting of creditors be withheld, and that the petition be amended or a new one filed correcting the errors above indicated. Charles D. Stone, Iteforoe in Bankruptcy.”</p> <p>Bankruptcy Hule No. xx. of the district court for the Northern district of New York provides that:</p> <p>"When a petition referred to a referee is insufficient upon its face to confer jurisdiction, he shall return the same to the clerk with a statement of the,' defects noted thereon, and no further proceeding shall be had thereon until a now or amended petition remedying such defects is filed -with the clerk. The referee may, upon his own motion, direct that the schedules be made more definite aiul certain by requiring the street and number to be given where a creditor resides in a city, and the referee may direct that the bankrupt furnish any other information regarding his property or his creditors which the referee may deem essential.”</p>

1, Bankruptcy — Examination of Bankrupt — Privilege against Selií-Crimi-nating Evidencio. Held: that his constitutional privilege did not exempt him from being sworn, that such reservation was unnecessary, and that he must take the oath as prescribed by the referee. In Bankruptcy. On certificate of referee in bankruptcy.

<p>Unfair Competition — Imitation of Labels — Form and Coi,or of Packages.</p> <p>Complainant is the American branch of a German firm that manufactures a substitute for coffee from chicory, that has had an extensive sale in the United States for many years. Its goods have for 25 years been put up in packages of cylindrical form, inclosed in red . paper, labeled as “Franck” chicory, and familiarly known as “Franck’s Red Roll Chicory.” In 1892 defendant commenced the manufacture and sale of a similar article under the name of “Frank Chicory,” put up in packages of the same form, color, and general appearance as complainant’s, and which were evidently intended to, and did in fact, deceive purchasers familiar with complainant’s goods. Defendant afterwards omitted the name “Frank” from some of its packages, hut continued to use the same form and color of package and general design of label. Eeld, that the use of such packages, even as changed, was a continuance of the deception, which constituted unfair competition, and entitled complainant to an injunction restraining defendant from using not only the word “Frank,” hut also red wrappers or labels substantially identical in color with complainant's.1</p>

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>Where the question of infringement is a doubtful one, and to sustain the claim requires a broader construction of the claims of the patent than has been given in prior adjudications, such question should not be determined on a motion for preliminary injunction.</p>

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

<p>Patents — Invention—Bean-Hakvestkks.</p> <p>Tlie Rulii'son patent, No. 3<S4,(>03, for improvements in bean-harvesters, construed, in view of tlie prior state of the art, and held void for want of invention as to claims 1, 8, 4, 7, 8, and 9.</p>

<p>Suit in rem against the schooner Fred E. Sander to recover wages earned as cook on a voyage from Seattle to St. Michael, and for damages for abusive treatment and neglect while the libelant was in a disabled and suffering condition at St. Michael. On final hearing.</p>

<p>This is a suit in rem in admiralty to enforce a lien upon a dredge.</p>

<p>In Admiralty. Libel against tbe steamship Ekliptika to recover damages for delay in fulfilling charter. Dismissed.</p>

<p>1. Shipping — Freight—Portion op Cargo Undelivered.</p> <p>As a general principle, freight is payable only on so much of a cargo as is delivered, and there is an equitable presumption that such is the contract of the parties, to overcome which a contrary intent must be expressed with reasonable clearness and certainty.</p> <p>2. Same — Construction op Charter — Freight Payarle on Quantity Intakes —Jettison.</p> <p>A charter of a. ship to be loaded entirely with coal for a given port, which provides for the payment of freight at so much per ton on the “quantity intalien,” is in 1he nature of a lump-sum charter, and binds charterer for the payment of freight on the entire cargo intaken whore any part of it is delivered, though a portion was jettisoned during the voyage. This construction is not affected by the agreement of the ship for delivery of the cargo, sea perils excepted, nor by a provision that the freight shall be payable on proper evidence of “right delivery of the cargo,” since that means no more than delivery in accordance with the charter, by which losses by sea perils are excepted.</p> <p>8. Same — Genio ral Average Adjustment.</p> <p>Where the charterer is, by the terms of the charter, required to pay the freight on goods lawfully jettisoned during the voyage, the consignee is entitled to allowance therefor in the general average adjustment, but is assessed only on the foreign value of the goods, less the freight, which is assessed to the vessel.</p>

<p>. In Admiralty. On exceptions to libel to recover damages for collision.,</p>

<p>In Admiralty. Libel in rem for collision.</p>

<p>1. Constitutional Law — Due Process op Law.</p> <p>The provision of the. fourteenth amendment to the constitution against depriving a person of his property without due process of law is a prohibition upon the states, and not upon individuals; and a suit to enjoin a threatened taking of complainant’s property, which it is alleged will be without any authority of la w, does not involve a federal question.1</p> <p>2. Jurisdiction op Federal Courts — Federal Question.</p> <p>A suit to obtain a construction of a state law, which complainant alleges is being misinterpreted and misapplied in violation of his constitutional rights, does not involve a federal question.</p>

<p>Appeals from tlie Circuit Court of the United States for the Eastern Division of the (Northern District of Ohio.</p> <p>This is an appeal from a decree awarding priority over several pre-existing railroad mortgages to a debt due from the mortgagor company to the appellee for the construction of the pier and abutments of a railroad bridge over the Cuyahoga river in the city of Cleveland, Ohio. This claim was asserted by an intervening petition filed by the appellee in the case of Cleveland, C. & S. Ry. Co. v. Knickerbocker Trust Co., 86 Fed. 73, a cause pending in the circuit court, under which a receiver had been appointed who was in possession and exclusive operation of the railroad against which the intervener’s claim was asserted as a preferential lien. The only complainant In the bill under which the receiver was appointed was the Cleveland, Canton & Southern Itail-road Company, a corporation of Ohio. The only defendants named in the bill were the Knickerbocker 'Trust Company of Kew York, trustee under the-junior mortgage upon the property, the appellant, the International Trust Company, a corporation of Massachusetts, trustee under five distinct mortgages, all senior to that represented by the Knickerbocker Trust Company, and Clara, William, and Morgan Itotch, executors of William J. liotch, and citizens of Massachusetts. The object of this bill was to place the property of the railroad company in the custody of the court, that ifs operation might be continued, and the property, held together, and preserved for the benefit of its creditors. To this end it confessed its inability to meet its floating indebtedness, and provide for its interest obligations, and at the same time meet its ordinary expenses of operation. Its property is described, its mortgages enumerated, and its other liabilities, matured or about to mature, tabulated. Some of its mortgages are stated to cover the entire railroad, while others rest upon parts of the railroad which had been acquired by the complainant subject to existing mortgages. The dismemberment of the railroad is alleged to be threatened, and the consequences to creditors and stockholders averred to be most disastrous. Taxes are said to be due, and mechanics’ lien claims are said to threaten immediate disruption of the property. The present inability of the corporation to meet its current operating expenses is averred as necessitating either a stoppage of its operation or the protection of the property by the appointment of a receiver. While no default in the interest of the bonds secured by the mortgages represented by the trustees named as defendants had occurred, the complainant avowed its inability to pay the interest about to accrue. The complainant therefore prayed the court to appoint a receiver for the purpose of preserving the property for the benefit of creditors and continuing the operation of the railroad; that, after paying current expenses, the income be applied to the payment of past-due operating expenses, for labor, material, supplies, rentals, etc., and that “the court will fully administer the trust fund In which the creditors and stockholders of your orator are interested, consisting of its railroad and its properties and assets of every kind, and will, for such purpose, marshal all its assets, and ascertain the several respective liens and priorities existing upon it, and every part thereof, and the amount due upon each and every part of said mortgages or other liens, and enforce and decree upon the rights, liens, and equities of all parties, as the same may be finally ascertained and adjudicated by This court.”</p> <p>Gonnsel representing the Knickerbocker Trust Company and the executors of Botch appeared, and consented to the appoinnueut of a receiver, who at once took possession of the railroad, and operated same until the road was sold under decree in separate foreclosure suits begun and prosecuted as independent suits in the same court. When the receiver was appointed, the court authorized him ‘‘to pay and discharge out of the net income of said railroad all unpaid trafile balances, and the indebtedness of said company to its servants and employes, and for materials and supplies accruing within six months last past, and also the unpaid coupons, amounting in all to $1,000, due July 1, 18!):!, on the Coshocton & Southern Bailroad line, and mentioned in the said bill of complaint.” The International Trust Company was never served with process, or brought before the court through publication or constructive service of any kind. But, shortly after the bill was filed, a general appearance for it was entered upon the rule docket by its counsel, though no answer was ever filed. Thereafter it specially appeared for the purpose of consenting to a decree ordering the issuance of receivers’ certificates for the purpose of paying off certain alleged preferential claims adjusted by agreement. Still later it appeared, and answered, and defended the intervention of the appellee, who was seeking to obtain a preference over all the mortgages. Oil May 1G, 1891, the appellee filed the intervening petition upon which the present decree was obtained. This petition alleged that the railroad company, in 1892, had entered into a verbal contract with the T. B. Townsend Brick & Contracting Company for the furnishing of the materials and performing the work and labor for the building and construction for the railroad company of a stone pier for a drawbridge over the Cuyahoga river. The terms and conditions of the contract, as averred, were that the said brick company was to be paid' by measurement an agreed price for the work and materials, the quantity to be estimated the first of each month as the work progressed by the engineer of the railroad company, and payment of each estimate made on the 20th of each month. That the work was done and materials furnished and estimates made as follows: On December 1, 1892, estimates for $4,758.46; on January 1, 1893, estimates for $2,770.53; on February 1, 1893, estimates for $5,688; on March 1, 1893, estimates for $4,992; on April 1, 1893, estimates for $1,417.50; on July 1, 1893, estimates for $1,327. Under the contract the amounts for which each estimate was furnished was due and payable upon the 20th of the month following the month in which the work was done. None of these estimates were in fact paid, and, when due, the brick company accepted the notes of the railroad company for the amount of each, due six months after date, except in the case of the March estimate, for which a note was made payable in five months. None of these notes were paid. The petition then averred that on the 16th of August, 1893, the said brick company had recorded its account, and claimed a mechanic’s lien under the lien law of Ohio “on said structure and the land on which the same is situated, and the railway line and its branches, of which said bridge and appurtenances constitute a part.” The petition concluded by praying an enforcement of the mechanic’s lien thus fixed, and for such other and further relief, etc.</p> <p>The International Trust Company appeared, and asked leave to answer and defend this petition, and did file an answer traversing every claim to any lien prior to the pre-existing mortgages under which it was trustee. There was a reference to a master to hear proof and report what was due upon this claim, how much “was done or furnished within six months next prior to the appointment of the receiver, and which should be allowed as one of the six-months claims.” The master reported that there was due $20,610.19 on account of the construction of the stone pier, and $1,327 due and payable on account of certain work done in June, 1893, upon certain abutments of the same bridge, done under a subsequent agreement. He also reported that of this work done and materials furnished $6,072.50 was done or furnished within six months prior to the appointment of a receiver. This report was filed February 29, 1896. On June 30, 1896, an amended petition was filed by the said brick company, in which, among other things, it was averred: “That upon the location and site of the said Independence Street Bridge, described in its original intervening petition, — for the erection and construction of the substructure, pier, abutments, masonry, foundations, and approaches thereof and thereto, this intervening petitioner, under the provisions of its said contract with the Cleveland, Canton & Southern Railroad Company, furnished the materials and performed the work and labor set forth and described in its original intervening petition, — there was formerly, and at the time of the making of said contract for the furnishing of said materials and performing said labor, a stationary wooden bridge or structure, which was erected about the year 1880, and had been used continuously since that time by the said the Cleveland, Canton & Southern Railroad Company and its predecessors as a part of its railroad, and to enable it and them to have entrance into the city of Cleveland. That said original bridge, its approaches, abutments, and supports, had become and were weak, decayed, insufficient, and unsafe, and it was hazardous and dangerous for the railroad company’s cars and engines to approach or pass over the same; said structure and its approaches, abutments, and supports having been condemned and pronounced unsafe by the engineers of said railway company several years before the making of said contract with this intervening petitioner, and very expensive repairs had been made thereon from time to time, in order to render it at all safe or suitable for railroad purposes. Furthermore, thé properly constituted authorities of the city of Cleveland, some time previous to the making of said contract, had formally condemned said bridge, its approaches, abutments, and substructure, on account of its interference with navigation of the Cuyahoga river, said old bridge having no swing or draw, and no central or pivotal pier, but being supported by piling driven in the river bed, upon which the structure stood fixed and stationary, thus obstructing the channel of the river at this point. Said authorities of the city of Cleveland had therefore directed and required that a bridge with a draw or swing should be constructed, which should not interfere with navigation, and which necessitated, from the nature of ihe case, the erection and construction of the central pier, abutment work, superstructure, and approaches of and for said swing bridge furnished and constructed by this intervening petitioner as set forth and described in its original intervening petition; said pier and substructure of said bridge, being new structures, and a 'betterment to and on said railroad. That by reason of the premises it became and was absolutely necessary that said railroad should be improved, bettered, and tepaired by constructing said bridge across said river, with its draw pier, abutments, superstructure, and approaches, and by reason of said necessity the. contract with this intervening petitioner was entered into, and thereby and thereunder the materials furnished and work dono and performed as aforesaid.” Thereupon the report of the master was recommitted, with direction to report upon the matters averred in Hie amended petition. After the master had again reported, — which report was unsatisfactory, as not including a finding touching the character of the old ¡nidge replaced by the new structure, and Hie necessity for the new structure. — counsel for the parlies, to save a re-reference, entered into the following stipulation as to the facts upon which a report was sought, namely:</p> <p>“The old bridge at Independence street was built in 1880, and was a wooden structure. In 188-3 it was re-enforced by overhead trusses. Hater it was necessary to support it by piling. In <832. because of the age and.worn-out condition of the bridge, it became necessary, in order to safely operate the road, lo replace Hie oíd bridge with a new one. On application to the city for permission to put a. new bridge over the river, Hie city required a draw to be put in the new bridge', and refused to permit the old bridge to be replaced by anything but a drawbridge, and thereupon the new bridge, for which the pier was built by the intervener, was constructed, and took the place of the old one. it is stipulated by all the counsel in this case that, in order to avoid a re-reference of tills case to the special master, that the foregoing are facts in tiie case, and may be incorpora led by said master in ills last report, and have Hie same force and effect as if this agreement of facts had been made at the hearing before him, and found by him as facts in said case in his said report.</p> <p>“The T. 15. Townsend Brick & Contracting Company,</p> <p>“By if. A. Durban, C. E. Panne well and Amos Denison, Its Attorneys.</p> <p>“Tiie International Trust Company,</p> <p>“Trustees for First Mortgage Bonds of the Cleveland & Canton It. It. Co.</p> <p>“The Cleveland, Canton & Southern It. It. Co.</p> <p>“The Coshocton & Southern R. R. Co.</p> <p>“The Cleveland, Chagrin Falls & N. R. It. Co.</p> <p>“The Waynesburg & Canton R. R. Co.,</p> <p>"By Garfield & Garfield, Its Attorneys.</p> <p>“The Knickerbocker Trust Co.,</p> <p>“By Williams & Cushing, Its Solicitors.</p> <p>“This statement is attached to and made part of my report of October 5, 1893, upon Hie information from Amos Denison,, attorney for plaintiff, that all parties in interest have consented thereto as stipulated.</p> <p>“II. F. Carleton, Special Master.”</p> <p>On January 25, 1897, the report of the master was confirmed, there being no exceptions thereto by appellants, and only certain formal exceptions by appellee. January 4, 1899, a decree was entered upon the petition as follows: (1) That the amount due, with interest, to the intervener, was $28,337.45. (2) That of tliis gross sum $3,072.50 was due for work and materials furnished within six months prior to Hie appointment of receiver, and that tiie sum thus duo for work clone and ma terials furnished, with interest to ihe first day of the term, was $7,852.08. (3) That no valid mechanic’s lien existed for tlio security of any part of the work and materials so done or furnished. (4) The court held that the whole of said claim, amounting to $28,637.45, was for work and materials done and furnished to “replace an old, worn-out and unsafe bridge, and that tiie same was necessary to be done in order that the railroad of the complainant could be safely operated, and continue to transact business in the city of Cleveland, and that said work and materials materially increased the' security of the mortgages held by the said International Trust Company and the said Knickerbocker Trust Company”; that the said claim was, therefore,, “a superior, prior, 'and paramount lien to the lien of each of the mortgages,” and “is entitled to be paid in full from the net income of said property coming-into the hands of said receiver, and under the prior orders of this court, properly applicable thereto; and that, if said income be insufficient to pay the said intervener’s lien in full, that then the same is entitled to be paid in full from the proceeds of any foreclosure or other sale of the said mortgaged property before any part of said income or proceeds are applied to the payment of any of the bonds or coupons secured by any of said mortgages.”</p> <p>It is conceded that there is no net income in the cause in which this decree-was rendered which can be applied to its satisfaction. None of the mortgages were ever foreclosed under that proceeding, but under separate and independent foreclosure suits, filed long after the filing of the administrative suit by the insolvent railroad. No receiver was appointed under these foreclosure suits, nor were they ever consolidated with the suit of the railroad company. Under these independent foreclosure suits the said railroad has been sold under decrees which are stated at the bar to be such as to give the court control over the proceeds of sale and enable it to apply the proceeds first in satisfaction, of any claim entitled to preference over the foreclosed mortgages. To prevent the decree in favor of the T. B. Townsend Brick & Contracting Company from being allowed in the foreclosure suits as a preferential claim, this appeal has-been prosecuted.</p>

This is an appeal from a decree which dismissed a bill brought by the United States to avoid a patent to a tract of land which was issued to tlie Northern Pacific Railroad Company by the land department of the government “under the erroneous impression and mistaken belief,” as the appellant averred, that it was within the limits of the congressional grant to that company.

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

<p>This was a suit in aid of a contest of an application for a patent to a mining claim by the owners of a conflicting location.</p>

<p>On Plea to Jurisdiction.</p>

On petition of the receiver against the American Trust & Banking Company for an order requiring it to surrender possession of certain securities owned by defendant.

On Motion by Clerk for Taxation of- Costs. The Southern Building & Loan Association is a corporation organized under the -laws of Tennessee. It became insolvent, and D. A. Carpenter was appointed a receiver by the state court at Knoxville, Tenn. Subsequently an ancillary receiver was appointed in the Eastern district of Arkansas, and still later the same receiver (Bowman) was appointed ancillary receiver in this court.

<p>Railroad Receivers — Powers—Adoption of Prior Contracts of Company.</p> <p>A receiver for a railroad may fulfill contracts made by the company prior to his appointment, so far as they serve the purposes of his appointment, which are to pieserve the property and operate the road in the interests of the public, but no further; and he has no power, by the adoption of a contract by which the company agreed to retain in its employ one injured in its service, in settlement of a claim for damages for (he injury, to bind himself or the property for rlie payment of damages for a breach of the contract On the discharge of the employe, the contract being merely an unsecured obligation of the company, which he has no authority to mate a preferred claim.</p>

<p>1. Malicious Prosecution — Probable Cause — Reliance on Statements of Others.</p> <p>A person, in instituting a criminal prosecution, is justified in acting on the assumption that others who have given him information told the truth, unless there are facts or circumstances to put him on inquiry.</p> <p>2. Same — Statements of Accomplice.</p> <p>To constitute probable cause which will justify the institution of a criminal prosecution, it is only necessary that there should be evidence which reasonably warrants a belief in the guilt of the accused, — it need not be sufficient to insure a conviction; and the fact that a prosecution is based on evidence or statements of an alleged accomplice is not sufficient to establish a want of probable cause.</p> <p>3. Same — Advice of Counsel.</p> <p>The receiver of a railroad cannot be held liable for malicious prosecution because of a prosecution instituted by a detective employed by him on evidence and information which he had fairly submitted to the, superintendent of the road and its general counsel, and by direction of the latter to the county attorney within whose jurisdiction the alleged offense was committed, who deemed it sufficient and drew the complaint.</p>

This was an action against the United States to recover damages occasioned plaintiff, as a contractor for the building of a lighthouse, by reason of delay in furnishing certain materials required by the contract.

<p>This was an ad ion on two accident insurance policies to recover for the death of the insured.</p>

<p>Wrongful Death — Nature of Statutory Action — Contract with Deceased for Limitation of Liability.</p> <p>The statutes of Washington and Idaho, which in that respect are similar, and provide that, when the death of a person is caused by the wrongful act or negligence of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, create a new cause of action, in favor of the beneficiary named, to recover compensation for their own loss, independent of any right of action which the deceased may have had to recover for the injury had he survived; and hence a contract between a railroad company and a passenger by which the latter, in consideration of free transportation, agreed .that ■ the company should not be liable for any personal injury received by him, whether from negligence or otherwise, constitutes no defense to an action by the widow and child of such passenger, under the statute of either state, to recover damages for his death, alleged to have been caused by the company’s negligence.</p>

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

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

<p>1. Bankruptcy — Loins—Receivership.</p> <p>AVliero a creditor brings a suit to avoid a fraudulent sale of chattels by his debtor, and procures the appointment of a receiver therein, the lien, acquired thereby dates from the appointment of the receiver; but, if the action was begun more than four niomhs before the tiling of a. voluntary petition in bankruptcy by the debtor, the lien will be recognized and protected in the bankruptcy proceedings according to section 07, el. e, of the bankruptcy act, though the receiver was appointed within the four months, and did not qualify until after the institution of the proceedings in bankruptcy.</p> <p>2. Same — Voluntary and Tnvot.untary Casks.</p> <p>Bankruptcy Act 1.898, § 07, cl. 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 case he is adjudged a bankrupt,” applies only to involuntary proceedings against a debtor, not to proceedings on his voluntary petition.</p> <p>9. Same — Liens.</p> <p>AThere proceedings supplementary to execution against a debtor are suspended by his adjudication in bankruptcy on his voluntary petition, but their continuance is afterwards permitted by the bankruptcy court, and a receiver then appointed by the state court, the creditor acquires no lien upon, or specific interest in, the property of the bankrupt; for, the entire estate being under the control of the court of bankruptcy at the time of the appointment, of the receiver, no title vests in the latter -which could relate back to a time when the supplementary proceedings were begun.</p>

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

For opinion of the court below, see 92 Fed. 904. This is an appeal from an adjudication in bankruptcy against the three partners of the firm of Simonson, Whiteson & Co. The appeal is prosecuted by one of the partners.

<p>t. Bankruptcy — Exemptions—Method of Setting Apart.</p> <p>Courts of bankruptcy, in setting apart to bankrupts the exemptions allowed them by iho laws of the state, must proceed in accordance with such laws; and where the law of the state exempts from execution personal property of a certain value, to bo selected by the debtor, it is not permissible to allow the bankrupt to select a trifling amount of personal property, and receive the entire difference in cash from the trustee.</p> <p>3. Same — Costs—Fees of Marshal.</p> <p>Three dollars a. day, wüh actual and necessary expenses, is a reasonable and jiroper fee to be allowed to a deputy marshal for his services in taking an inventory, and otherwise assisting in the settlement of an estate in bankruptcy.</p> <p>«. Same — Fee to Bankrupt’s Attorney.</p> <p>Under Bankruirtey Act 1898, § (Mb, providing that the court may allow a reasonable fee to the attorney for the bankrupt in involuntary cases “while performing the duties herein prescribed,” no such allowance will be made in a case where it is not shown that the bankrupt has performed the duties laid upon him by the law, but where it appears, on the contrary, that he lias been actively engaged in trying to defeat or delay the proceedings.</p>

<p>Bankruptcy — Assets of Estate — Property Fraudulently Sold.</p> <p>Where a debtor makes a sale of certain of his personal property, but the • same is fraudulent as to his creditors, under the statute of the state, because there is no delivery or change of possession, and he is afterwards adjudged bankrupt, title to such property vests in the trustee in bankruptcy for the benefit of the estate, notwithstanding that the sale was made more than four months before the filing of the petition in bankruptcy; and he will not be ordered to deliver such property to the original purchaser or his vendee.</p>

<p>In Bankruptcy. On motion for adjudication in involuntary bankruptcy.</p> <p>The following are the report and opinion of the referee in bankruptcy (William H. Hotchkiss, Beferee);</p> <p>This is an issue referred to me by stipulation of all parties, on an order of the district court bidding me to report on the facts, with my opinion. There is practically no dispute as to the facts. Indeed, those that are essential to a decision of the main question at issue are stipulated. The alleged bankrupt is a manufacturing corporation organized under the laws of the state of New York. Finding itself to be insolvent, it on April 27, 1899, on the petition of its board of directors, began a proceeding, under section 2419 of the' New York Code, for a voluntary dissolution of such corporation, and, incident to such dissolution, under section 2423, asked and was granted the appointment of Edward C. Baynes, its president, as temporary receiver of all its property. At the time of the argument, the attorney for the alleged bankrupt seemed loath to admit that the corporation was “insolvent," in the sense given that word in section 1 of the act of 1898; but in his brief, filed subsequently, he asserts that the corporation does not deny its insolvency, and submits the broad question denuded of technicalities.' Even had he not done so, in view of Lea v. George JL West Co., 91 Fed. 237, and Bray v. Cobb, 91 Fed. 102, proof of the solvency of this corporation might not have availed in this proceeding. The petition, as filed, does not allege that this corporation is a manufacturing corporation, but the answer seems to admit that fact. The point was raised on the argument by the attorney for the corporation, but was overruled on the ground that, having admitted the character of the corporation in his answer, he could not later avail himself of the omission complained of.</p> <p>Aside from these two disputed matters, both of which seem now to be conceded by the attorney for the alleged bankrupt, there is no question of fact at issue. The inquiry can therefore be directed to the broad proposition whether when, in New York, an insolvent manufacturing corporation applies for its dissolution under-the state law, and, incident to such application, a temporary receiver is appointed to take charge of its property, such a transaction is, within the meaning or purpose of the bankruptcy act pf 1898, an act of bankruptcy, entitling its creditors, who make the petition within the statutory limitation as to time, to an adjudication of the bankruptcy of such corporation. The question raised is not only novel, but a solution of it is of great importance to the commercial world. It is probably within reason to say that a goodly proportion of the business of the country is now transacted by corporations which, under section 4, subd. b, may be adjudged involuntary bankrupts. It is doubtless equally true that in all the states the assets of these corporations, when dissolved, either at the instance of the sovereign power of the state, of a creditor, or of the officers of the corporation itself, are turned over to receivers appointed by the state courts, and by them distributed. If the contention of this alleged bankrupt is well grounded, all of these corporations may, without restraint, even though insolvent, insist that the interdiction against voluntary assignments for the benefit of creditors put on natural persons by the act of 1898 does not apply to them, and thus a vast majority of such cases be wound up in the state courts, ahd the bankruptcy act be, to this extent, rendered a nullity. So far as I have been able to learn,' this question was not passed on under any of the previous bankruptcy laws. It certainly has not until now come, up under the present statute. In re Etheridge Furniture Co., 92 Fed. 329, is a case where a corporation made a general assignment. I have therefore sought to give it an investigation as exhaustive as its importance merits, and, in doing so, have been tempted, by the catholic spirit evinced by the able attorneys who argued it, to treat it as an academic problem, as well as determining a controversy of vital importance to this corporation and its creditors.</p> <p>The old-time question of jurisdiction was early eliminated from this controversy. Indeed, it could not well be insisted on. Ever since Sturges v. Crown-inshield (1819) 4 Wheat. 122, and Ogden v. Saunders (1S27) 12 Wheat. 213, the right of congress to pass a bankruptcy statute which should be paramount to state insolvency laws has been conceded. While it has been held that, in pursuance of this power, congress could not pass a law which would oust the state of its control over the existence of corporations to which its laws gave birth, yet it has been frequently held that there are, in effect, two proceedings when an insolvent corporation is wound up, viz.: The dissolution of the corporation, over which the state alone, short of the usual elements which give federal courts jurisdiction, has power; and (he marshaling and distributing of the assets of tlie corporation, over which, in proper cases, the federal courts had the paramount, right to preside. In re Merchants’ 3ns. Co., Fed. Cas. No. 9,441: In re Independent Ins. Go., Fed. Cas. No. 7,017; In re Washington Marino Ins. Co., 2 N. B. It. 048, Fed. Cas. No. 17,240; Platt v. Archer, Fed. Cas. No. 11,213; Hart v. Kailroad Co., 40 Conn. 524; In re Now Amsterdam Jns. Co.. Fed. Cas. No. 10,140; also Chandler v. Siddle, Fed. Cas. No. 2.594. It has also been frequently held — and this is in answer to the point urged by the allegad bankrupt on the authority of Shields v. Coleman, 157 II. S. 108, 15 Sup. Ct. 570, that, when a state court lias assumed jurisdiction over a corporation through its receiver, the federal courts will not interfere wilh such jurisdiction or tho possession thereunder--that this rule yields to.the broader rule in bankruptcy. Thornhill v. Bank. 5 N. B. It, 375, Fed. Cas. No. 13,991; In re National* Life Ins. Co., 6 Biss. 30, Fed. Cas. No. 10.04(5; In re Merchants’ Ins. Co., supra; Buchanan v. Smith, 1G Wall. 277-308. In spite of this corporation's application to the state court for a dissolution, and the appointment of a temporary receiver by such court, the local law necessarily yields to the general law, and an adjudication of bankruptcy will be granted if il shall be determined that this corporation has committed an act of bankruptcy.</p> <p>On the argument, it was urged by the petitioning creditors that this transaction brought the alleged bankrupt within the first act of bankruptcy found in the law of 1898, in that it had conveyed and transferred its property with intent, at least, to hinder and delay its, creditors. Compare section 3, subd. a, cl. 1, with section 1. cl. 25. Many of the cases which arose under the law of 1807 turned upon a like contention, based upon similar words in the act, and cases will be found both ways. But the words which constitute the first of the five acts of bankruptcy have from time immemorial, in the minds both of the bar and of the bench, been associated with actual fraud, and I should he loath to hold this corporation a bankrupt on the ground that, in applying for a receivership, it has committed an actual fraud on its creditors; and that, too, irrespective "of whether its action is or is not a fraud on the act. Nor is it necessary to so hold, as the issue can well be decided on the proper construction of ocher acts of bankruptcy, and by an examination of the intent of congress and the purpose of tlie law.</p> <p>The petitioning creditors seem to rest their case upon two contentions: First (section 3, sultd. a, cl. 5). that the transaction complained of amounted to an admission in writing of the corporation’s inability to pay its debts, anil a willingness to be adjudged a bankrupt on that ground; and, second (Id. el. 4), that it lias committed an act which, under the laws of the state of New York, is the equivalent of a general assignment by the corporation for the benefit of its creditors.</p> <p>As to the first of these propositions, (he contention of the petitioning creditors does not seem well founded. Indeed, they do not strongly urge it. Tt may well be asked whether the fifth act of bankruptcy is of any value, other than either to those rare individuals who are so squeamish as not to wish, as it were, to sign their own commercial death warrants, but who prefer to send a letter through the mails, and let a creditor, on the strength of it, begin a proceeding, or else to corporations who seek to avail themselves of the method there provided to go into involuntary bankruptcy voluntarily. Tlie case at bar is not one in which this act of bankruptcy is available. It will not be denied that this corporation, in its application for a receiver, admitted in writing that it was unable to pay its debts: but, on the other hand, it cannot be asserted that by so doing it admitted its willingness to be adjudged a bankrupt on that ground. In fact, by making this application in the state court, instead of the federal, it indicated its unwillingness to he adjudged a bankrupt. The two elements must appear. One is lacking. Therefore, without any discussion of the difference between the meaning given by the courts to the words “bankrupt” and “insolvent,” it must he held that these creditors cannot safely rest their case upon the fifth of the acts of bankruptcy.</p> <p>As to the second of these propositions, however, I am convinced that the petitioning creditors are right. When the case was argued, and even while, prior to the filing of the briefs, I was making an independent investigation, I felt that this corporation had not committed an act of bankruptcy, and that an adjudication should be denied; but a further investigation into the phrasing of the law, and a. consideration of the results on creditors of insolvent corporations, should the opposite conclusion be announced and sustained, have led me to recommend that an adjudication be granted.</p> <p>The points urged by the alleged bankrupt are, in brief, the following: First. That nowhere in the law of 1898 is the transaction in question made an act of bankruptcy; that this corporation could make a general assignment, and, had it done so, would have committed an act of bankruptcy; and that it is a forced and unreasonable construction to say that a receivership for the purpose of winding up the corporation’s affairs is equivalent to the general assignment of an individual for the benefit of creditors. Second. That the New York statute controlling upon the winding up of insolvent corporations is in harmony with the federal statute regulating the marshaling and distribution of the assets of a. bankrupt, and, if in harmony, jurisdiction already obtained by the state courts should not be ousted.</p> <p>It is unnecessary to enlarge here upon these arguments. They were urged with much force and with great ability, and should be controlling upon the court’s answer to the main proposition, unless they can be conclusively answered, or unless their logical outcome will negative the purposes of the bankruptcy act of 1898.</p> <p>An examination of the law of 1898 negatives the contention that the use of the words “general assignment for the benefit of creditors” is necessarily exclusive of a transaction such as that in the ease at bar. The clause under construction, with unnecessary words eliminated, is as follows: “Acts of bankruptcy by a person shall consist of his having * * * (4) made a general assignment for the benefit of his creditors.” The use of the word “person” is important. By reference to section 1, cl. 19, it will be seen that the word “person” includes “corporation,” except where otherwise specified; and, by clause 29, words embracing the plural number may apply to or mean only a single person or thing. It wquld have been nonsense to have said, “Acts of bankruptcy by a person shall consist of his having * * * (4) made a general assignment for the benefit of his creditors, or applied for a receiver under a state law to wind up the affairs of a corporation on the ground of the insolvency thereof.” Acts of bankruptcy are expressed in a single paragraph, and predicated of a single human being. Corporations and partnerships are included by general clauses elsewhere. The same method was followed under the law of 1867, §§ 39, 48. Compare, also, section 59, subd. b, of the act of 1898, for another like use of the word “person” in the broadly generic sense. Still further, an examination of the statute shows that, whenever any striking exception to the well-known policy of a bankruptcy law was inserted, that exception was marked by specific words. Thus, bankruptcy legislation, per se, should be binding upon all persons and corporations; yet by section 4 it is provided that “a.ny person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt”; and, by the same section, that “any natural person, except a wage earner or a person engaged chiefly in farming or the tillage of the soil, * * * shall be subject to the provisions and entitled to the benefits of this act.” Still further, unless something is inserted to the contrary, a bankruptcy law being uniform, exemptions should be uniform; yet an exception to this principle is found in the specific words of section 6. There are no such exceptions in section 3, subd. a. Corporations, partnerships, and individuals can commit all the acts of bankruptcy. Persons cannot apply for receiverships. Partnerships, as such, cannot, but corporations can. In fact, it is their natural route towards liquidation. If, then, the results of the two methods of winding up the affairs of insolvent corporations are substantially the same, and it appears that, for reasons of syntax, but one is expressed, and that it was the policy of the framers of the law to indicate by unmistakable words any marked* diversions from the usual provisions of a bankruptcy law, it can be safely asserted that, by the words “general assignment for thé benefit of creditors,” congress meant to include the equivalent act of a corporation applying for a receivership to wind up its affairs.</p> <p>It is, of course, true that a corporation, in the state of New York, at least, can now make a general assignment for the benefit of creditors. This, it is thought, wa,s not so until the enactment of section 48 of the stock corporation law in 1800. Croll v. Knitting Co.. .17 App. Div. 282, 45 N. Y. Supp. 080; Bank v. Brewster, 17 Mise. JRep. 143, 41 N. Y. Supp. 203; Bisli. Insolv. § 117 et seq.: Burrill, Assignm. § 45. But a general assignment is not the usual method adopted by corporation lawyers in winding up these creatures of the state. For obvious reasons, the other way is more popular. The dissolution proceedings provided for by the Code of Civil Procedure not only does two things at once, — dissolves the corporation and distributes its assets, the first of which a general assignment does not do, but, as the practice has been worked out, the only adverse party usually notified, or who appears at the time the application is made for the dissolution and the temporary receiver, is the attorney general, with the result that instead of the receiver being the choice of the court, as is the theory of the law, he is the choice of the corporation or of the corporation’s attorney. From this point forward, the administration of a corporation’s assets is, in effect, in the hands of the receiver and the attorney; applications to court for permission to sell and the like, being usually without notice, and merely perfunctory steps to keep within the terms of the law. Nor is there a practical difference in the matter of preferences. An individual can prefer to the extent of one-third. But since July 1, 1898, he has ceased to avail himself of the privilege, and it cannot be presumed that it was the expectation of the framers of the bankruptcy law that a failing debtor who made an assignment would continue Hie practice. No different is it as to corporations. By the law of New York, they cannot prefer, for any preferences made while they are insolvent can be set aside. This equivalence continues throughout. • The assets are collected and distributed without preferences, by a man chosen by the failing debtor, with little supervision by the courts,, and, as a rule, with few notices to creditors, or any active co-operation on their part. Therefore a corporation, in applying for a receiver, and the administration of the bankrupt concern’s assets through that officer, is, in its effect, strikingly equivalent, even if not equal, to a general assignment for the, benefit of creditors. If, from the standpoint of a creditor, — which is the only-standpoint to be taken by a bankruptcy court, — there is any difference, other than that in the one the court formally accepts and appoints the nominee of the debtor, and that in the other the debtor itself chooses the assignee, I have not been able to discover it. There is a distinction, it is true, but it is one which, in practice, is without a difference. The attorney for the alleged bankrupt calls attention to the analogy which exists between the effort frequently made in this state and elsewhere to hold transfers by insolvent debtors through the instrumentality of chattel mortgages, deeds, and bills of sale general assignments, and therefore void, because preferring one creditor to a larger extent than permitted by the statute; but he overlooks the fact that the state courts, in refusing to hold such transactions equivalent to general assignments, w-ere not construing a system of jurisprudence, the cardinal principle of which is, by sweeping aside all artificial distinctions, in summary fashion, if necessary, to get at equality of payment, and thus equity to all.</p> <p>But the most impressive of the arguments urged by the alleged bankrupt is that the state statute and the federal sta tute are in harmony, and that, therefore, the court which obtained jurisdiction first should be allowed to administer the estate. If they are in harmony, there is no doubt that the alleged bankrupt is right; but are they? Bankruptcy laws have two main and several minor objects. The main objects are: (1) That an honest debtor may obtain a discharge enforceable throughout the limits of the United States; (2) and, as a condition precedent to such discharge, that he shall submit his property to the court and its officers, and that the same, with certain humane exceptions, called “exemptions and priorities,” shall be distributed ratably among till his creditors. Buchanan v. Smith, 16 Wall. 277; Bailey v. Glover, 21 Wall. 342; Fisher v. Vose, 38 Am. Dec. 243. Among the minor objects of such a law are: (1) That the estate of a debtor shall be cheaply and speed’ly...administered; (2) that the priorities allowed shall be uniform; (3) that creditors shall have notice of all proceedings; and (4) most important, that the estate shall be marshaled and distributed by an officer chosen by the creditors. If this is a fair statement of the objects of the law, the statute of New York controlling on the marshaling and distributing of a corporation’s assets is not /in harmony with the bankruptcy act. It cannot, of course, be said that there is the same merit in the contention of these creditors that there would be were they creditors attacking an individual on the ground that he had made a general assignment, either with or without preferences; but the harmony urged on the argument, and again asserted in the brief of the counsel for the alleged bankrupt, does not really exist. Compare Shyrock v. Bashore, 13 N. B. R.. 481, Fed. Cas. No. 12,820.</p> <p>The first of the great objects of the bankruptcy law is of no moment here. A discharge from debts is not asked for, because the dissolution of a corporation is sought, and it, so far as its creditors are concerned, dies. It has neither a future nor a hereafter. Its debts die with it. Shyrock v. Bashore, supra. But what of the second great object of a bankruptcy law, — ratable distribution? It is urged with much force, and equal .truth, that, under the state law, this corporation could not prefer one creditor over other creditors, and it is not claimed that it seeks other than a ratable distribution. But whatever the corporation may or may not have done the law does for it, and in that is the want of harmony which alone entitles these petitioning creditors to an adjudication.</p> <p>It is unnecessary to go into the mooted question of the title possessed by a temporary receiver intermediate his appointment and his appointment as a permanent receiver, or his title after he shall become a permanent receiver. Neither is it necessary to review the mass of judicial decision which sometimes recognizes, sometimes refuses to recognize, a receiver’s right to sue in a foreign jurisdiction. Booth v. Clark, 17 How. 322; Chandler v. Siddle, 10 N. B. R. 236, Fed. Cas. No. 2,594. It is sufficient to say that, in spite of decisions which are confusing in the extreme, the law in the United States, differing from the law in England, is to the effect that, while a receiver will usually be allowed by comity to sue in another state, his title to property which may be in that state, and therefore his right to possession, will be recognized by the courts of that state only to such an extent as will not conflict with the rights of the citizens of that state or with public policy. Gluck & B. Rec. (2d Ed.) p. 222; 20 Am. & Eng. Ene. Law, pp. 34, 35, 65; Smith, Rec. § 240; Bank v. Lacombe, 84 N. Y. 367; Attorney General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 279, 3 N. E. 193; Folger v. Insurance Co., 99 Hass. 267; Simpkins v. Smith, 50 How. Prac. 56; and American Nat. Bank of Denver v. National Benefit & Casualty Co., 70 Fed. 420. The decisions in one state are too apt to be the reverse of those in another. It did not appear on the argument that this corporation had property in other states, though, from the fact that a majority of the petitioning creditors are nonresidents of New York, it can be inferred that a goodly number of its debtors, as well, are citizens of other states. Even if the situs of a debt djie a corporation is the place where the corporation is domiciled, — though this is not, apparently, a rule uniformly recognized, — there is no question but what a majority of the states permit their citizens, by garnishee process or analogous proceedings, to seize the property of an insolvent corporation domiciled in another state, and recognize their title and interest as paramount to the title arid interest of a foreign receiver. If, then, in some of the states, the question of a foreign receiver’s title to an insolvent corporation’s property therein is unsettled, and, still more, if in a very large number of states it is settled against a receiver, what of the doctrine of preferences? I am informed, though it was not stated on the argument, that garnishee process has already been begun in» the state of Pennsylvania against some of this corporation’s property there. Whether that be true o'r not, the principle is the same. If courts of other states permit creditors resident of such states to resist the title of a receiver under the laws of this state, those creditors by operation of law may become preferred, and, so far as they are concerned, and therefore all the other creditors whose dividends are thereby reduced, the main purpose of the law may be violated. The same-argument may be made, if, instead of preferences, the subject under investigation be the priorities allowed in different states, or if the subject be the ex-ponses of administration. Congress has given creditors tlio right. 1o insist that the priorities and expenses he no more than those fixed hy the federal law of 1898. Slate laws are in this particular harmonious neither with each other nor with the federal statute. As a rule, the state statutes are more liberal. The general creditors have the right to insist that that difference be theirs, rather than the property of creditors given priority locally, or receivers or assignees chosen by the defunct concern. It is urged that the state law provided that creditors be notified and consulted, as does the federal law; but an examination of the sections of the Code concerning notice and of the sections of the bankruptcy law on the same point, to say nothing of the want of notice characterizing the state proceeding in actual practice, will at, ouce bring out the marked difference between the two statutes. But more important than any of the minor objects of tiie bankruptcy system is that it puts into the hands of creditors the right to choose the officer who shall administer the estate. In the case at bar the creditors wore nol consulted, and the receiver appointed is the president of the defunct corporation. lie is a reputable citizen, and doubtless competent to be the court's representative; but it has been held from time immemorial in England, and similar dicta will be found in many of the cases under our law of 3807, that one of the main objects of the bankruptcy system is to put the personnel of the administrating officer into the hands of the creditors. Thus might the parallelism he carried further. The harmony between the two statutes, therefore, becomes very inharmonious, and the second point urged by the alleged bankrupt valuable to the petitioning creditors, rather than to it.</p> <p>With these differences and the results to he accomplished in mind, it will bear repetition that it has been often held that a bankruptcy law is a remedial statute', and that it should be construed with a view to effect its objects, and perform justice between a debtor and his creditors. In re Muller, Fed. Gas. No. 9,912. It will not be forgotten, also, — and there can be no doubt about the propriety of the ruling, — that where there is a doubtful meaning to a phrase in tlic> bankruptcy law, that cons true; ton should be controlling that will give the most uniform operation throughout the country. Railroad Go. v. Jones, ó N. B. .K. 97, Fed. Cas. No. 32(i. The purpose of the words “made a general assignment for the benefit of creditors” is clear, when applied to the act of a natural person. It is not so clear — indeed, in the light of what has gone before., it is. perhaps, doubtful — when applied to a corporation. The broad, rather than the narrow, meaning mrtst 1)0 given.</p> <p>The reasonableness of this view will be emphasized by a glance at the converse of it. Would it be anything other than that, though the bankruptcy law of. 1898 prohibits corporations from becoming voluntary bankrupts, they can, without let or hindrance, become voluntary insolvents under the state law; that, though it is the policy of the bankruptcy system to administer estates through the creditors by frequent notice, and by means of an officer of their ovn choice, yet insolvent corpora lions may administer their property prac-tica ily without notice, and by an officer chosen by the defunct; concern'; that, though it is the policy of the federal law that no creditor he given a preference, yet. hy the operation of local laws, nonresident creditors may get their full due, and local creditors but a small percentage? In short, such a ruling would make the bankruptcy law not only Inharmonious with the purposes which led to its enactment, but would remand creditors of insolvent corporations to laws and customs which in themselves wore a frequent source of the complaints that, crystallized into Hie demand from creditors all over the country that the present law have involuntary features, that debtors might at last be amenable to restraints and penalties long thought necessary, and as long enforced in other commercial nations.</p> <p>Besides all this, there is much reason, as well as authority, in the contention that the action of this corporation is a fraud on the bankruptcy act itself. Recent cases holding to this doctrine (predicated, however, on general assignments. not receiverships) are In re Gutwiilig, 90 Fed. 481, affirmed in S)2 Fed. 887; In re Me vers, 91 Fed. 3<>(i. ¡See, also, a like dictum in Re Etheridge Furniture Co., 92 Fed. 829, 332. Were it necessary, it would perhaps not be difficult to maintain even so pronounced a position, and thus to hold this corporation a bankrupt even without showing the commission hy it of one of the five acts of bankruptcy defined in the law. Without, however, going to that limit, a. strong argument pointing to the propriety of the enlarged meaning of the fourth act of bankruptcy already given may be deduced from the trend of decision, prior'to the act of 1898, as to the'effect on the rights of creditors of a general assignment for the benefit of creditors, even if without preferences. None of our bankruptcy laws previously passed have recognized, in words, a general assignment for the benefit of creditors as an act of bankruptcy. The English bankruptcy law does not apply to corporations. They are wound up under the “Companies Act,” as it is called, by a liquidator appointed by the high court of justice. There are, therefore, no English decisions available to the particular question involved. Nor are there decisions under the. law of 1S67, which permitted both kinds of bankruptcy where the debtor was a corporation, because, early in the administration of the law, it was decided that the appointment by a state court of a receiver to take possession of the property of a corporation was “a taking on legal process,” within the meaning of the thirty-ninth section of the act. In re Merchants’ Ins. Co., 3 Biss. 162, Fed. Cas. No. 9,441, and other cases previously cited. In other words, the courts were not obliged to go behind the law, and stand upon the purposes of the law. But, with reference to natural persons, the trend of judicial decision is very striking. For a century or more it has been held in England that the making of a general assignment for the benefit of creditors is a fraud on the bankruptcy law, in that it takes the administration of the estate from the hands of the officer appointed under that law, and puts it in the hands of a person or officer chosen by the failing debtor. Gazz. Bankr. (4th Ed.) p. 83. It is impossible to add anything concerning this trend of decision in England to the admirable opinions found in Barnes v. Rettew, Fed. Cas. No. 1,019, and in Globe Ins. Co. v. Cleveland Ins. Co., Fed. Cas. No. 5,486, and in the briefs of the able counsel reported in Platt v. Archer, supra. The English bankruptcy law now contains a clause analogous to ours, making a general assignment for the benefit of creditors an act of bankruptcy. Section 3, subd. a, cl. 4, Bankruptcy Act 1898. But, without it, it cannot be doubted that the broad rule referred to would still be recognized there, and that, if necessary, the courts would still hold that such an assignment is a fraud on the law. This has not always been the view of our courts. Under the law of 1841, following the English decisions, it was frequently held that such an assignment was an act of bankruptcy per se, even though not strictly within the meaning of section 1 of that law. Jones v. Sleeper, Fed. Cas. No. 7,496; Gassett v. Morse, Fed. Cas. No. 5,264; Ex parte Breneman, Fed. Cas. No. 1,830. Under the law of 1867, it was early held that such an assignment was not an act of bankruptcy, and the various district and circuit courts disagreed with each other for many years. Compare Bangley v. Perry, Fed. Cas. No. 8,067, with In re Smith, Fed. Cas. No. 12,974. The question was, however, finally settled in Globe Ins. Co. v. Cleveland Ins. Oo.,- supra, — an opinion which is luminous with learning and eloquent of industry. Compare, also, In re Kraft, 4 Fed. 523. The supreme court of the United States seemed to doubt whether, under the law of 1867, such an assignment was an act of bankruptcy. Mayer v. Hillman, 91 U. S. 496, 501. And yet in Boese v. King, 108 U. S. 379,385, 2 Sup. Ct. 765, it finally and flatly recognized the principle. Now, if the English doctrine is the true one, and our courts so hold in many dicta, even if by reason of words in our bankruptcy laws which could be more easily stretched to the implied meaning, and thus a resort to the broad principle avoided, there are few precise holdings that a general assignment without preferences is per se a fraud on the law, and, therefore, an act of bankruptcy, though not so denominated in the words of the statute, what shall be said of an act which takes from the creditors the right to nominate their own trustee, and vests that right in a failing debtor, and which permits certain creditors to secure preferences, which, in short, nullifies the two main purposes of a bankruptcy law applicable to corporations? If the courts could spell the words “general assignment for the benefit of creditors” into the laws of the past, it certainly is no greater — indeed, it is a much less — exercise of equity powers to interpret those words as meaning, when applied to corporations, the equivalent act of liquidating through a receiver.</p> <p>I therefore recommend that an order be entered adjudging the Empire >i< filie Bedstead Company a bankrupt, on file ground that, being insolvent, in applying for its dissolution and for a temporary receiver under the laws of (he suite of New York it did an act equivalent to an assignment for the benefit of its creditors, within the meaning and purpose of the bankruptcy law of 1898, and thereby committed an act of bankruptcy. Let a report he prepared to the district court accordingly.</p>

This was a proceeding by the United States to review the decision of the board of general appraisers reversing the action of the collector in assessing for duty certain merchandise imported by O. G-. Hempstead & Bon.

<p>Customs Duties — Classification—Silk Banners for Presentation to Ciiitrcu.</p> <p>Silk banners, embroidered by band In designs specially prepared by an artist, made and imported expressly lor presentation to an incorporated church society, to be. used in connection with its service, and which derive tlieir value from their artistic appearance, and not from the fact that they are embroidered, are ‘Works of art,” entitled to free entry, under paragraph (18(5 of the tariff act of 189-1, and are not dutiable as silk embroidery, under paragraph 301.</p>

This cause comes here upon an appeal from a decision of the circuit court, Southern district of New York.(84 Fed. 15G), reversing a decision of the board of general appraisers, which affirmed a ruling of the collector of the port of New York touching the rate of duty upon certain bottles containing champagne, imported in March, 1895.

<p>Customs Duties — Classification—Sot kntiito Instruments.</p> <p>Surgical insirumonis, specially designed and adapted for use in surgery, are ••scientific instruments,” and as such, when specially imported in good faith by a general hospital, established, among others, for educational purposes, for use in its climes and training school for nurses, are entuled i.o free entry, under paragraph 585 of the tariff act of 1891 (28 Stat. 543).</p>

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

<p>1. Jurisdiction of Federal Court — Citizenship of Corporation — Sufficiency OF AT,LEGATION.</p> <p>An allegation that defendant is a corporation “organized under and pursuant to the laws of the state of New Jersey” is an affirmative statement that defendant is a citizen "of New Jersey.</p> <p>2. Equity Pleading — Multifariousness.</p> <p>A hill setting up a claim for damages under the anti-trust law of July 2, 1800, aiLd also asking an injunction restraining defendant from using complainant’s trade-mark and trade-name, is multifarious, as joining two distinct causes of action, having no connection with each other, and one of which is triable at law.</p> <p>8. Unfair Competition — Imitation of Trade-Name.</p> <p>A bill which alleges that complainant and defendant are competitors in the same line of business; that defendant has assumed a trade-name similar to, and in imitation of, complainant’s trade-name, and the public has been deceived thereby, and great confusion and injury have resulted to complainant’s business therefrom; that defendant’s incorporators, before it was organized,' knew of the existence and character of complainant’s business, and the trade-name under which it had for a number of years been conducted; and that defendant has refused, on complainant’s request, to desist from the use of the name, — states a cause of action against defendant for unfair competition.</p> <p>4. Same — Trade-Name—Fraud Which will Debar Relief.</p> <p>The mere fact that complainants, as partners, conduct their business under the name of the “Standard Distilling Company,” is not sufficient to show that they represent themselves as a corporation for the purpose of deceiving and defrauding the public, so as to debar them of the right to invoke the protection of a court of equity in the use of such name.</p>

This was a suit in equity by James B. MacColl against the Knowles Loom Works for alleged infringement of a patent for improvements in lappet-looms. The circuit court found that the defendant’s loom' was not an infringement of the patent, and accordingly dismissed the bill. 87 Fed. 727. From this decree the complainant has appealed.

This was a suit in equity by James R. MacColl against the Cromp-ton Loom Works for infringement of letters patent Nos. 570,2:59 and 570,260, both issued October 27, 1896, to tine complainant, for improvements in lappet looms. Claims 1 and 6 of the former patent and 1 and 2 of the latter were in issue.

<p>1. PaTUNTS — iNFHINGHMKIfT—ASCERTAINMENT OP PROFITS — GENERAL EXPENSES.</p> <p>In ascertaining the profits of an infringing corporation, where the manufacture of the infringing goods constituted hut one part, of the business, ¡aid, Uxai the corporation was not entitled, in computing general expenses, to include therein interest on dividends to its stockholders, premiums for insurance or accident; insurance, taxes, attorneys’ fees, and money paid to a physician for injury to an employs, but that It might Include sums paid to a commercial agency for information as to credits, this being a proper part of the sale expenses.</p> <p>2. Same — Excessive Salaries to Officers.</p> <p>In such case the corporation was not entitled to Include, as part of its general expenses, the full amount oí salaries paid to its officers, when it appeared, that these salaries were excessive, and were really a division of profits. The court, under such circumstances, will reduce the allowance to what would seem to be a reasonable amount for salaries.</p> <p>3. Same — Effect of Decision.</p> <p>Where a manufacturing infringer, though not a technical party, in fact assumes the defense of an infringement suit against one of its vendees, bears the expense thereof, and guaranties the defendant against loss, it is hound by a. decision in such suit that all the profits of the Infringing device were due to the patented invention, and cannot relitigate that question in a subsequent suit against itself for Infringement.</p> <p>4 Same — Following Decisions in Other Circuits.</p> <p>A decision by a circuit court of appeals that ail the profits of an infringing do vice are due to the patented feature thereof is of controlling weight in a suit against a different defendant in another circuit court</p>

<p>Shipping-Loss of Baggage — Limited Liability Act.</p> <p>Baggage delivered by the purchaser of a ticket for passage on a steamer 'to the agent of the vessel to be placed on board, and which had been placed on a wharf boat to which the steamer was moored, where it was destroyed, together with the wharf boat and steamer, by fire, caused without the privity or knowledge of the owner, had been “shipped,” within the meaning of Rev. St. § 4283, and the loss is covered by the limitation of liability therein provided for.</p>

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

In Admiralty. This was a libel against the ship Brewster to determine the liability for a portion of the cargo sold by the master.

<p>Seamen — Liability of Officer for Assault — RruiiT to Enforce Obedience.</p> <p>1’rompí, obedience by the crew of a. ship to the commands of the officer on decl! is essential to tlie safety of the vessel, and may be enforced by the officer, even by ]>lows. when necessary; and a court will not hold him liable in damages therefor where be uses no weapons, and there is no evidence of malice, or, excessive punishment.</p>

<p>This was a libel in rem for collision.</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for 1he Southern District of New York.</p>

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

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

<p>Motion for preliminary injunction.</p>