Volume 96 — Federal Reporter

<p>1. JURISDICTION OR FEDERAL COURTS — FEDERAL QUESTION — AVISRMENTS OF Bill.</p> <p>When the jurisdiction of a federal court is invoked on the ground that the suit arises under the laws of 1he United States, such facts must he alleged in the bill as io make it allirmatively appear to the court that the. proper determination of the suit really and substantially involves a dispute or controversy as to the effect or construction of such laws.1</p> <p>2. Same — Suit to Determine Rights in Miking Claims.</p> <p>A suit in equity to determine conflicting claims under mining locations on public lands is not within the jurisdiction of a federal court, as involving the construction or effect of the mining laws of the United States, where, so far as appears from the averments of the bill, the only controversy between the parties may be over questions of fact.</p>

<p>Jurisdiction op Federal Court — Federal Question — Suit to Set Aside Patent to Mining Claim.</p> <p>A bill alleging that a patent for a mining claim was procured by defendant from the land department by fraud, and without a compliance with the statute as to notice or proofs, and that it was issued without authority of law, and asking that defendant be decreed to hold such patent in trust for complainants, as the legal owners of the claim, states a cause of action necessarily involving the construction or effect of laws of the United Stales, of which a federal court has jurisdiction.1</p>

<p>Oil Application for Temporary Injunction.</p>

<p>1. Bonds of United States Contractors — Actions on — Distribution of Proceeds between Creditors.</p> <p>Where there aro claims against a contractor for the construction of a public work of the United States and the sureties on his bond, under the act of August 1⅝ 189i (28 Stat. 278), in favor of the United States, and also of individuals supplying labor or materials, aggregating a sum in excess of the penalty of the bond, the equitable rule of pro rata distribution will be applied, and no priority will be given to the United States, or to any individual creditor by reason of his having first commenced suit.</p> <p>S. Same-Right of Recovery against Surety.</p> <p>A sure! y on such a bond cannot require the obligees to. exhaust the property of The principal before enforcing the obligation of the bond, or to await the collection of indemnity by the surety.</p> <p>8. Equity — Anoiu.ary Suit — Distribution of Fund between Parties to Dl F FERE NT A OTIONS.</p> <p>A large number of actions at law were brought in a federal court against, a contraeior for a public work of the Untied States and the surety on his bond by persons who lia.d furnished labor or materials in the prosecution of the work. There wore similar actions pending in oilier jurisdictions, anil still other claims outstanding on which actions had not been brought, including a possible one by (he United States for the extra cost of completing the work after its abandonment by the contractor; the aggregate of all the claims exceeding the penalty of the bond. Held, that such facts entitled the surely io maintain a suit in equity in such federal court, ancillary to the actions pending therein, through which the fund in its hands can be equitably distributed.</p> <p>4. Samp. — Jurisdiction—Parties.</p> <p>It is no objection to the maintenance of such suit that, owing to the citizenship of necessary parties, it could not be maintained in that court as an original suit, or that, as an ancillary' suit, only those claimants who had suits ponding therein could be made paities, since a partial distribution .could be made between such parlies, with due regard to the rights of all claimants, and tile remainder of the fund be hold, and the suit retained for final distribution, after the rights of all parties in interest have been determined.</p>

<p>This was a suit in equity to enjoin the defendant from forcibly interfering with complainant’s possession of a lumber plant and sawmill under a lease. On final hearing.</p>

<p>Equity Pleading — Bill—Alternative Prayers.</p> <p>Under the rule that a bill may be framed with a double aspect with prayers for alternative relief, when such relief is founded on the same facts, and is in response to the allegations of the bill, a bill is not demurrable which, after setting out the facts relating to a sale of land by defendant under a mortgage, prays that such sale be set aside as illegal, or, if adjudged legal, that an agreement made by defendant to resell the land to complainant after defendant’s purchase at the foreclosure sale be enforced.</p>

<p>Oil Application for Preliminary Injunction,</p>

This was a suit by the receiver of an insolvent building and loan association to foreclose a mortgage given by a stockholder to such association.

This is an action at law by a judgment creditor of a Kansas corporation against a stockholder to enforce the defendant’s personal liability under the constitution and statutes of Kansas. Heard on demurrer to declaration.

This is an action by an administrator to recover damages for the wrongful death of his decedent. On demurrer to complaint.

<p>1. Damages — Breach of Contract — Mental Suffering.</p> <p>Mental anguish and distress alone cannot be made the basis for a recovery of damages for a breach of contract, 1</p> <p>2, Telephone Companies — Failure to Deliver Message — Measure of Dam-AGibiS*</p> <p>A complaint in an action against a telephone company, alleging that by reason of the failure of defendant to deliver a message sent to plaint iff by his son as his agent, and plaintiff's consequent failure to respond to such message!, as lie would have done had he received it, his wife and children became estranged from him, and his family was broken up, states no ground for the recovery of more than nominal damages, as plaintiff's domestic trouble cannot be presumed to have been the direct or proximate; result of the failure to deliver the message, and, if it were, it cannot be eonsidereel as a natural result of a. breach of the contract which was within the contemplation of the parties.</p>

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

<p>Bankruptcy — Powers or Referees — Citation to Bankruft.</p> <p>The referee to whom a case in bankruptcy has been referred has jurisdiction and power, on the petition of the trustee, to cite the bankrupt to appear before him, and show cause why he should not be ordered to surrender to tlie trustee property in liis possession, claimed by the trustee as assets of the estate.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Opposition to Discharge-Keeping Books.</p> <p>Where, in 1891, an execution upon a judgment by confession was levied upon the debtor’s stock, including the safe in which the books of account were kept, and the debtor, becoming bankrupt under the act of 1898, testified that he had never seen the books of account since that time, and did not know what had become of them, ⅞eld, that the evidence was not sufficient to show that the loss or disappearance of the books in 1891 was brought about by any “fraudulent intent” on the part of the bankrupt to “conceal his true financial condition,” and constituted no ground for refusing his discharge in bankruptcy.</p>

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

This is an appeal by the Puget Sound Reduction Company from a decision of the hoard of general appraisers affirming the action of the collector in the assessment of duty on certain imported ores containing lead.

These are appeals by William O. Hempstead, trading as O. G-. Hempstead & Son, from an order of the general appraisers affirming the collector’s action in assessing duty on certain coverings of imported merchandise.

This was a suit in equity by William W. Shoe against Jacob Gim-bel and others, trading as Grimbel Bros., for alleged infringement of a patent for an improvement in bicycle saddles.

<p>This was a suit in equity by James B. Ryan against the Newark Spring Mattress Company for alleged infringement of a patent.</p>

This was a suit in equity by the Stokes Bros. Manufacturing Company against Elias G. Heller and others for alleged infringement of certain patents relating to the manufacture of rasps.

<p>1. Seamen — Personal Injuries — Liability op Owner op Ship.</p> <p>The master of a ship and a seaman are fellow servants in all matters pertaining to the navigation of the ship while on a voyage from one port to another, and each assumes the risk of the other’s negligence in the discharge of the duties incident to their common employment.</p> <p>2. Same — Negligence op Master.</p> <p>The owners of a ship are not liable In damages for the personal injury of a seaman received while on a voyage by falling, or being thrown by the rolling; of the vessel, down a hatchway which had been left open through the negligence of the master or other officer, where a proper hatch was provided, and no claim is made of negligence in the selection of the officers.</p>

These axe cross appeals in a suit in equity begun by the Iron Mountain Railroad Company of Memphis against the city of Memphis and the members of the legislative council of that city.

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

<p>1. Corporations — Service of Process on — Illinois Statute.</p> <p>Under the statutes of Illinois, a sheriff’s return of service on a corporation defendant by reading and delivering a copy of the summons to its auditor, without showing that the president could not be found In the county, is insufficient.</p> <p>2. Removal of Causes — Proceedings after Removal — Motion to Quash Return.</p> <p>An objection to the sufficiency of the return of service on a defendant may he made after the cause has been removed to a federal court.</p>

This suit was brought by complainant to recover from the defendant the National Nickel Company the sum of $85,512.33, and to foreclose a… Held: matters discussed, and Noyes replied that Goodbody was asking for something that was absolutely impossible to be done, that there was no such provision in the contract, and 'iliac it was impossible for the National Company to execute either a deed or a mortgage, because no quorum of a board of directors could be obtained to net with…

<p>Appeal-from tbe Circuit Court of the United States for the District of New Jersey.</p>

This was an action by the assignees in insolvency of a corporation against a stockholder, under the statute of Maine, to recover the subscription price of the stock.

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

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

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

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

<p>This is an action on a policy of life insurance. Heard on demurrer to a plea of limitation contained in the policy.</p>

<p>Negligence — Failure to Provide Pire Escapes — Illinois Statute.</p> <p>The Illinois statute relating to lire escapes, in force July 1, 1897, in section 1 provides that within three months after its passage certain classes of buildings shall be provided with fire escapes under the general direction and approval of the inspector of factories. Section 3 makes it the duty of the inspector, where such buildings have not been so equipped as re-quíred, to serve a notice upon either or any of certain parties having- an interest therein, inclnciiiig owners, lessees, and occupants, commanding such person or persons to cause lire escapes to be erected; and section 4 provides a penalty for failure to comply with such notice. The act itself nowhere imposes on either of such classes of persons the duty of erecting fire escapes. Held, that the power of determining upon whom such duty rests in any particular case is rested in the inspector, and, until he has designated such person by the required notice, a court cannot determine that either an owner, lessee, or occupant is liable by reason of a failure to comply with the statute.</p>

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

In Bankruptcy. On review of decision of referee in bankruptcy in the matter of the claim of F. II. Grubbs as a creditor of the bankrupt corporation.

<p>In Bankruptcy. On exceptions to allowance of exemption.</p>

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

<p>1. Bankruptcy — Petitioning Creditors — Withdrawal.</p> <p>A creditor who joins with others in filing a petition in involuntary kank-ruptcy against their debtor, the act of bankruptcy alleged being a preferential transfer of the debtor's whole property, but afterwards obtains a settlement of his debt, and transfers his claim, will not be allowed to withdraw from the proceeding when his withdrawal would reduce the amount of debts represented on the petition below the jurisdictional minimum, and so require the dismissal of the proceeding.</p> <p>2. Same — Intervening Creditors.</p> <p>Where a petition in involuntary bankruptcy, brought in good faith, appears on its face to represent creditors sufficient in number and amount to sustain the jurisdiction, but before adjudication it appears that there is a deficiency in the amount of debts represented, then creditors other than the original petitioners, who have entered their appearance and joined in the petition subsequent to its filing, under Bankruptcy Act, § 59, cl. f, may be reckoned in making up the amount of claims required by the act to support the petition.</p>

Petition for Review of an Order of the District Court of the United States for the Northern District of Texas, in Bankruptcy. The creditors of A. S. Purvine, on November .23, 1898, filed a petition against him in the United States district court for the Northern district of Texas, praying that he be declared a bankrupt. It was alleged that he was insolvent, and that he had sold his property, and was concealing the proceeds to defraud his creditors.

<p>BATSKRUrTCT — 1⅛AMISATIOXS—ScOl‘1-1 OF ÍXQVIRY — PltKVroUH ASSIOSMRNT.</p> <p>Where the bankrupt, more than a year before the enactment of the bankruptcy law, had made a.n assignment for the benefit of his creditors under a stale law, it is not material or proper, in ids examination in the bankruptcy proceedings, to inqnue into the circumstances under which the assignment was made, nor to require the assignee to produce the books and papers turned over to him at the time, unless a foundation is first laid for the belief that property of the bankrupt was withheld by him at the time of such assignment, and was still held as his at the time of the enactment of the bankruptcy law.</p>

Petition for Writ of Habeas Corpus. The petitioner is charged with unlawfully using the United States mails. Being arraigned before the commissioner, she pleaded, “Not guilty.” Della Williams testified to visiting the defendant’s house, and finding her husband there. “I then broke some panes of glass in one of the defendant’s windows to her house.

This was a hearing on a writ of habeas corpus issued on petition of Chung Fat and others, Chinese seamen on the steamship Victoria, by which the petitioners seek to obtain their release from service, and their return to China.

<p>1. Trade-Mark — Infringement.</p> <p>Tlie complainant’s trade-mark for pale ale, consisting of an equilateral triangular figure, which as applied, to bottled pale ale is colored red, is infringed by tiie defendant’s mark as applied to pale ale and half-and-half, consisting- of a combination of- a red triangle nearly equilateral, a narrow gold border surrounding and binding it, a monogram composed of the letters C and F in the middle, and some fine scroll ornamentation in each corner.</p> <p>2. Same — Evidence.</p> <p>Courts should not be astute to recognize in favor of a trade-mark in-fringer fine distinctions between different articles of merchandise of the same general nature, and should resolve against the wrongdoer any fair doubt whether the public may or may not be deceived through the application of the spurious symbol; and hence pale ale and half-and-half must, as against an infringer of a trade-mark for the former, be treated as malt liquors substantially similar to each other and belonging to the same class.</p> <p>8. Same — Liability to Deceive.</p> <p>No one who has counterfeited a legitimate trade-mark and applied the spurious symbol in competition with the genuine can avoid the charge of infringement by showing that the false mark has in practice been so accompanied, on labels, capsules or otherwise, by trade-names, designations, descriptions or other accessories, not forming part of it, as to render it unlikely that the public has been deceived. Such a showing, while it may affect the nature or measure of the relief to be granted, cannot defeat a suit for infringement.</p> <p>4. Same — Injunction.</p> <p>He who applies the false mark has no just cause of complaint if he be prevented from further violating the exclusive right of the lawful employer of the genuine symbol, and he should not be allowed, at the peril of the latter, fraudulently to experiment in the use of such false mark with accessories of -varying- character with the double purpose of filching the custom of a business rival, and at the same time shielding himself from the consequences of infringement.</p> <p>(Syllabus by the Court.)</p>

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

> This was a suit in equity by the New Jersey Wire-Cloth Company against Merritt & Co. and others for alleged infringement of a patent for improvements in fireproof buildings.

This was a suit in equity by the Hawley Furnace Company of New England against the Braintree & Weymouth Street-Railway Company for alleged infringement of a patent for an improvement in downward-draft furnaces.

<p>This was a suit in equity by the Miehle Printing-Press & Manufacturing Company against the Campbell Printing-Press & Manufacturing Company for alleged infringement of certain patents for improvements in printing machines.</p>

<p>Patents — Oonstrcotion' and Infringement — Bicycle Bells.</p> <p>Claims 1 and 8 of the Erieson patent, No. 491,012, for a bicycle bell which is sounded by bringing a friction roller into contact with the tire of the wheel, are limited, when construed in connection with the specification, to a device having an oscillatory plate or disk which carries both the striker and the operating mechanism therefor; and these claims are not infringed by the hell of the Barker patent, No. 608,146.</p>

These were four suits in equity brought by the Overweight Counterbalance Elevator Company against the Standard Elevator & Manufacturing Company, the Eaton & Prince Company and others, the Crane Elevator Company, and the J. W. Reedy Elevator Manufacturing Company, respectively, for alleged infringement of a patent. The cause, was heard on demurrer to the bill for want of equity jurisdiction.

<p>This was a suit in equity by the Louden Machinery Company against Montgomery Ward & Co. for alleged infringement of certain patents for inventions. The cause was heard on demurrer to the bill on the ground of multifariousness.</p>

<p>This was a suit in equity by Perry against Noyes and others to recover royalties for the use of a patented invention.</p>

This was a suit in equity by Burrell and others against the Elgin 'Creamery Company for alleged infringement of a patent for a process of treating milk with fatty and other matters.

TMs was a suit in equity by the United States Repair & Guaranty Company against the Assyrian Asphalt Company and others for alleged infringement of patents for a method and apparatus for repairing asphalt pavements.

<p>Patents — Invention—Perpetual Ledgers.</p> <p>The Leslie patent, No. 581,123, for an improvement in temporary binders, commonly known as “perpetual ledgers,” is void as to claims 8 to 13, inclusive, for want of patentable invention.</p>

<p>1, Patents — Disclaimers.</p> <p>A patent claimed a saw for cutting metal, having- its teeth hardened to their base line, or line of juncture with the body of the blade, leaving the latter tough and pliable. The court, in an infringement suit, having intimated that the patent could be sustained if limited to hack saws and band saws, the owners of the patent filed a disclaimer as to circular and back saws. Held, that this was a proper disclaimer, and did not add any new element to the claim. <</p> <p>2. Same — Time of Piling Disclaimer..</p> <p>That a patent owner did not file a disclaimer immediately upon the introduction, in an infringement suit, of evidence of anticipation as to certain features of the claims, Md not unreasonable delay, when the trial court itself did not consider a disclaimer necessary, and the necessity therefor was first suggested by the appellate court, and the disclaimer was filed, within a month and a half thereafter.</p> <p>S. Same — Right to Injunction — Accidental Infringement.</p> <p>A patent owner is entitled to protection against one who has in fact made and sold some infringing articles, though the infringement is claimed to have been accidental.</p> <p>4. Same — Improvement in Metal Saws.</p> <p>The Fowler patent, No. 328,019, for an improvement in saws for cutting metal and other hard substances, consisting of hard-tempering the teeth and adjacent portion of the saw, only, leaving the rest of the blade tough and pliable, Md valid, as to. both the claims, if limited to the teeth and an adjacent strip not exceeding the depth of the teeth, to wit, V32 of an inch, and also held infringed.</p> <p>Wallace, Circuit Judge, dissenting.</p>

<p>These were two suits in equity, brought by Laroy S. Starrett against the J. Stevens Arms & Tool Company and the Athol Machine Company for alleged infringement of a patent for spring calipers and dividers.</p>

<p>Patents — Preliminary Injunction — Effect of Prior Decisions.</p> <p>The customary rulo, that on an application for a preliminary injunction, as between conliicting decisions of two circuit courts of appeals of olhei circuits as to die validity or construction of the patent, that one will bo followed which was rendered on a final hearing, rather than one on a preliminary motion, does not govern the court where the latter goes equally into the merits, and the court rendering it has previously had the same patent before it in other suits.</p>

<p>This was a suit in equity by Oliver A. Miller against the Mawhin-ney Last Company for alleged infringement of a patent for a boot and shoe last. . .</p>

<p>This was an action at law by George B. Hoyt against the Computing Scale Company to recover penalties under the patent laws. The case was heard on a motion by defendant to require plaintiff' to separately state and number his causes of action.</p>

<p>Maritime Liens — Priority—Claims for Torts of Master.</p> <p>The conversion hy the master of goods shipped on a vessel constitutes a tort, and, a claim therefor against the vessel is entitled to priority over liens for supplies furnished prior to the tort.1</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>These causes come here upon appeals from decrees of the district court, Southern district of New York, holding the tugs Transfer No. 8 and R. M. Waterman both in fault for a collision that took place on December 7, 1896, near the mouth of the Harlem river, off Horn’s Hook, at Ninety-Sixth street, by which ilie barge Maine, belonging to the libelant Philadelphia & Reading Railroad Company was damaged and sunk, and the Waterman sustained damages to her propeller, etc. The Maine was the starboard boat of four barges that were going up the East river in a strong flood, in tow of the Waterman, on «a, hawser of about 30 fathoms. The facts attending the collision are fully set forth In the opinion of the district judge as follows:</p> <p>“The tide at Horn’s Hook was running probably from three to four knots, and the speed of the boats was about four knots more. They went up in about mid-channel on the westerly side of Blackwell’s Island, and, when off Eighty-Fourth street, Transfer No. 8 was seen emerging from behind the point at Horn’s Hook, heading in a southerly direction diagonally across the river, on a line about parallel with a line drawn from Horn’s Hook to Blackwell’s Island light, and about 200 feet above that line. Transfer No. 8 had two car floats in tow, one on each side of her, 247 feet long, and each loaded with cars. She had come down the Harlem river, and rounded to port across the stream, in order to go to the easterly side of Blackwell’s Island, where the flood tide was not so strong as on the westerly side. A little to the starboard of the tug Waterman and her tow was the tug Genesta, coming up with a schooner In tow on a hawser about 30 fathoms long, and overtaking the Waterman. When No. 8 first became visible, the tug Genesta was probably between the Waterman and her tow, and about 30 feet to starboard of the tow. She was gaining rapidly upon the Waterman, and, as soon as No. 8 became visible, she gave her a signal of one blast, indicating that she would go ahead of No. 8. The pilot of No. 8 claims that he had just previously given a signal of two whistles, designed for the Waterman; that when the Genesta’s signal was heard, he was giving signals to his engineer to slow and stop, because he knew that the Genesta must go ahead of him; that the Genesta very soon afterwards gave a second signal of one whistle, when a little ahead of the Waterman, which was heard by No. S, and was immediately answered by the latter with one whistle; that No. 8 soon after gave two whistles to the .Waterman; and that by these signals it was intended to bring No. 8 to a stop, and that the Genesta with her tow should pass in front of No. 8, while the Waterman with her tow should go astern of her. No. 8 came to a stop when a little more than half way across the channel towards Blackwell’s Island. The Genesta and her tow passed ahead and within 25 feet of her, but the Waterman’s tow, not being far enough to the westward to clear, the stem of the barge Maine struck the starboard side of No. 8’s starboard float about 18 feet from her stern.” 82 Fed. 478.</p>

<p>Receivers — Jurisdiction to Appoint — Ex Parte Application.</p> <p>A court lias no jurisdiction to appoint a receiver for a corporation, either original or ancillary, except in a pending suit, and an ex parte application for appointment as an ancillary receiver will not be entertained.</p>

This was a suit for foreclosure, brought by William K. Sullivan, as receiver of the American Building, Loan & Investment Society, against Herbert Swain and others. On motion to dismiss for want of jurisdiction.

These are cross writs of error to review a judgment of the circuit court, Southern district 'of New York, in favor of John W. Jacobus, heretofore United States marshal of said district, to recover fees or compensation for official services as an officer of the United States. The action was brought under the so-called “Tucker Act” of March 3, 1887, conferring jurisdiction of such claims upon the circuit court. The phraseology of the act is as follows: “Sec. 2.

<p>This was a suit by a legatee against the estate of a former executor of the will, based on an alleged devastavit.</p>

This was a bill for au injunction to prevent the sale on execution of -stock in a corporation on which complainant had levied an attachment in an action in a state court.

Suit in equity by the United States to annul a deed given by an Indian to the defendant Wirt W. Saunders, purporting to convey the title to the grantor’s homestead. Heard on demurrer to the bill of complaint.

<p>Insolvent Coupobations — Cnui) crons’ Suits — Right to Dismiss.</p> <p>Aíier a court of equity lias assumed charge of the affairs of a corporation oil a creditors’ hill alleging insolvency, and at the instance of the complainant and with the consent of the defendant has* appointed a receiver,issued an injunction restraining creditors from pursuing other remedies, and required them to prove iheir claims therein, which many of them hove (lone, such creditors have an interest in the suit, and the parties to the record no longer have the right, by agreement between themselves, to terminate it. Under such circumstances, an application to dismiss is addressed to the discretion of the court, which, in acting upon it, will take into consideration the interest of those who, by its own orders, have been brought into the litigation.</p>

<p>Oancemjation or Deed — Conveyance in Trust — Confidential Relations of PARTIES.</p> <p>An intestate at the time of his death was engaged in partnership with liis son in a business extending through several states, and requiring large capital, sales being made on long credit. His indebtedness and that of the than was over §5200,000, and the value of his estate dexiended upon the efficient management and winding up of the business. The partnership articles provided that, in case of the death of a partner, the business should continue for five years, to enable it to be closed up without loss. He left surviving him, besides the son, two daughters, each entitled to an equal share in his estate. One of the daughters, then 47 years of age, being-about, to marry and remove to a distance, on the advice of her father’s legal adviser executed a deed conveying to her brother in trust for live years all her interest in her father’s estate, with full power to deal with the property in his discretion, but reserving to herself her share of the ammal income. The brother did not solicit the conveyance, or know of it, until it had been determined upon. Bald, that under the circumstances such conveyance ivas not an improper one, and5 it appearing that the grantor was a woman of more than usual intelligence and business capacity, and that she fully understood the nature and effect of the conveyance, that i1 would not be set aside as improvident, or obtained by improper means.</p> <p>Waddill, District Judge, dissenting.</p>

Those are cross appeals from a decree of the circuit court, Southern district of New' York, ordering the payment of certain moneys to the complainant. The defendants appeal from the whole decree. The complainant appeals from it because it did not give him more. •

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

<p>1. Federad Courts — Following State Decisions.</p> <p>Tlie fact Hint the supreme court of a slate on one appeal sustained the validity of a statute does not affect its right to declare the statute void on a subsequent appeal in the same suit, on a ground not presented by the record or considered on the first appeal, nor the weight to be given to such decision by a federal court.</p> <p>2. Same — Construction of State Statutes.</p> <p>A decision of the supreme court of a state holding municipal bonds void for want of power in the municipality to issue them, the question being one depending on the construction of the state constitution and the validity of state statutes, will be followed by a federal court in an action between the same parlies on the same bonds, though by reason of a nonsuit taken by plaintiff Hie decision of the state cmirl did not pass into a final judgment so as to render the question res judicata.1</p> <p>8. Municipal Bonds — Power to Issue — Consent Judgment.</p> <p>Where a town had no power, under the constitution and statutes of the state, to issue bonds to a railroad company, the defect cannot he cured nor such bonds rendered valid by the consent of its officers to a compromise judgment by which it issued a smaller amount than that voted, the question of the town’s power not being involved or determined by the judgment.</p> <p>4. Same— Estoppel to Contest Validity — Action of Officeks.</p> <p>The officers of a town cannot by,,any agreement, or by the payment of interest on bonds, estop the town from raising- the question of the legal existence or constitutionality of the statute under which such bonds were issued.</p>

This writ is brought to review a judgment for the defendant in a suit to recover damages for personal injuries sustained hy plaintiff while in defendant’s employ as a yard switchman in its railroad… Held: notwithstanding the statute, to have assumed the risk of injury 'therefrom, and upon such verdict entered judgment for the defendant.

<p>Examination or Bankrupt — Ciuminatino Evtdwnois.</p> <p>Under tüe fifth amendment to the constitution of the United Stall's which declares that “no person * * * shall tie compelled in any ( ■’-i inal case to be a witness against himself,” where a person is under ex.: ■ ination before a referee in bankruptcy he is not obliged to answer .• tions when he states that his answers might tend to criminate him: ; 1 this is true notwithstanding section 7 of the bankrupt act provides < ¡ a, “no testimony given by him shall be offered in evidence against him in any criminal proceeding.”</p> <p>(Syllabus by the Court.)</p>

In Bankruptcy. On April 7, 1899, an involuntary petition in bankruptcy was filed in this court against George P. Rosser, and on May 11th following be was adjudicated a bankrupt. On June 5th thereafter one Frederick E. Neeper was appointed his trustee in bankruptcy, and, having duly qualified, was, at the commencement of these proceedings, acting as such.

<p>1. Bankruptcy — Discharge—Concealment op Property — Evidence.</p> <p>Creditors opposing the discharge of a bankrupt on the ground of his having concealed property from his trustee must assume the burden of proving such concealment; and it is not sufficient for them to show merely his former ownership of certain goods, and that he is not now able to account' for the same, but there must be evidence of his present possession or control of such property.</p> <p>21 Same — Failure to Keep Books — Intent.</p> <p>Under Bankruptcy Act 1898, § 14b, it is not sufficient to forfeit a bankrupt’s right to discharge that he has failed to keep books of account or records from which his true condition might be ascertained, but it must further be shown that such failure was “with fraudulent intent to conceal his true financial condition.”</p> <p>3. Same — Evidence of Intent.</p> <p>Where it appeared that a bankrupt had not kept such books or records as would be sufficient to disclose his true financial condition, but that his system or method of keeping his accounts, incomplete and insufficient as it was, had been persisted in by him during the whole time he had been in business (about nine years), and had not been in any respect changed after the passage of the present bankruptcy act, held not sufficient to justify the court in inferring that the bankrupt’s failure to keep proper books was,“with fraudulent intent to conceal his true financial condition.”</p>

In Bankruptcy. On petitions of certain creditors of Eli Woodruff, Z. B. Woodruff. H. J. MeCorvey, and W. D. Cowdrey, bankrupts, praying for a stay of proceedings on the applications of the said bankrupts, respectively, for discharge, and for other relief.

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

<p>Commerce — Regulating Importation op Teas.</p> <p>In the act of March 2, 1897, regulating the importation of teas, which provides that the secretary of the treasury “shall fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States,” and prohibits the importation of any teas below the standards so fixed, the word “quality” is inserted in addition to the requirements of the former statute, and under such act it is competent for the secretary to fix a standard of quality, and to exclude from importation teas below such standard, although they are equal to the standard of purity, wholesomeness, and fitness for consumption in other respects.</p>

<p>This was a suit in equity for an accounting and an injunction against unfair competition in trade.</p>

<p>1. Patents — Lapse of Foreign Patent for Same Invention.</p> <p>Under Rev. St. § 4887, the fact that a foreign patent has lapsed for the nonpayment of an annuity pending an application for a United States patent for the same invention does not render the latter patent void when issued, but it will remain in force to the end of the term prescribed in such foreign patent.</p> <p>2. Same — Incandescent Mantles.</p> <p>The Rawson patent, No. 407,963, for improvements in incandescent mantles for gaslights, is not void because of the lapse, for want of payment of an annuity, of a previous French patent for the same invention, pending the application for the United States patent.</p>

This was a suit in equity by the Davey Pegging-Machine Company against Isaac Prouty & Go. (incorporated) and others for alleged infringement of a patent for an improvement in pegging-machines. .

This was a suit in equity by Jennings Bros, against the Bogers Silver Plate Company for alleged infringement of a patent for a design for a mirror frame.

<p>1. Patents — Invention—Analogous Use.</p> <p>It being old in tbe arts to use a metal ring, rim, or band to protect porcelain and other frangible plate, and also to prevent the chipping or cracking of enameled metal vessels, there is no invention in simply-applying to-an enameled flanged scale pan a protecting metal ring which overlaps the edge of the pan and the bottom edge of the flange.</p> <p>3. Same — Scale Pans.</p> <p>The Ohatillon patent, No. 304,172, for an improvement in scale pans, is-void for want of invention.</p>

<p>1. Patents — Construction op Claims — Estoppel op Patentee.</p> <p>Where two of the three claims of an application were rejected, leaving the third to stand without modification, and this action was acquiesced in by the patentee, Md, that a mere remark by the examiner in the course of the proceedings that there did not appear to be any material difference in the claims did not estop the patentee from claiming the construction shown by the specification and claim allowed, or limit him to a construction embracing only what was shown by the rejected claims.</p> <p>2. Same — Anticipation—Prior Use.</p> <p>1 Under Rev. St. §§ 4886, 4923, the mere secret practice of a process or the physical presence of a product or manufacture in this country is insufficient as an anticipation unless and until the public acquires or has opportunity to acquire therefrom such knowledge as would enable one skilled in the art to practice the invention. Such alleged anticipations, whether by foreign printed publication or physical presence in this country, must so embody the complete patented article, or be so substantially like it, that a specification could be based thereon.</p> <p>3. Same — Staple Fastener for Wooden Vessels.</p> <p>The Swett patent, No. 314,204, for a staple fastener for wooden vessels, construed, and Md not anticipated, valid, and infringed.</p>

In Admiralty. Suit for salvage by the owners and crew of the steam tug Fairfield. Hearing on the merits. Decree for libelants,

<p>1. Removal of Causes — Jurisdiction of Federal Court — Amount Involved.</p> <p>The state of Arkansas, at ilie relation of a prosecuting' attorney, filed a bill in one of her own courts against the Kansas & Texas Coal Company and the St. Louis & San Francisco Railroad Company, both corporations organized under the laws of the state of Missouri, alleging that the coal company was threatening and about to import into one of the towns and counties in said state, over the line of its co-defendant’s railroad, a large number of armed men of the low and lawless type of humanity, to wit, about 200, to the great danger of tbe public peace, morals, and good health of said town and county. The defendants removed the ease to this court, whereupon the plaintiff moved to remand the same for reasons which will appear in the opinion. Held, the amount involved in a suit for an injunction for the purpose of determining the jurisdiction of a federal court is the value of the right to be protected, or the extent of the injury to be prevented, by the injunction.1</p> <p>2. Same — Citizenship.</p> <p>A suit between a stale and a citizen or corporation of another state is not a suit between citizens of different states, and a circuit court of the United States has no jurisdiction of it on the ground of diverse citizenship.2</p> <p>3. Same.</p> <p>In Railroad Co. v. James, 16 Sup. Ct. 621, 161 U. S. 545, it is decided that said railroad company is a Missouri corporation.</p> <p>4. Same — Federal Question.</p> <p>The plaintiff's complaint, on its face, raises a federal question under the interstate commerce clause of, as well as under the fourteenth amendment to, the constitution of the United Stales, and therefore this court has jurisdiction thereof on removal.3</p> <p>5. Constitutional Law — Power of State — Laborers Entering State.</p> <p>No statute of this state inhibits the class of persons described in the bill coming into this slate. It will be time enough to decide whether the state has the power to prohibit their coming when a proper case, based on such a statute, is brought to the attention of the court. Under the fourteenth amendment, and under the interstate commerce clause, of the constitution, they now have that right.</p> <p>6. Same — Regulation by Courts.</p> <p>It is not within the power of any court, state or federal, to prescribe what rules and regulations are needful to the welfare, peace, health, safety, and morals of the state, or to determine, without legislation, what class or classes of persons may lawfully come therein. That power belongs to the legislatures of the states, and must be exercised within constitutional bounds.</p> <p>7. Injunction — Dissolution.</p> <p>The class of persons described in the bill having the right to come into the state, the injunction granted by the state court preventing their coming into the state is dissolved.</p> <p>8. Same — Restraining Prosecution.</p> <p>The motion for a restraining order to prevent the state from the prosecution of the suit in the state court, notwithstanding the removal to this court, is overruled.</p> <p>(Syllabus by the Court.)</p>

This was a suit to enjoin defendant from diverting the waters of a stream, and to recover damages for the previous diversion.

<p>This was an action to recover a balance alleged to be due under a contract for services rendered and facilities furnished by the railroad of which plaintiff was receiver to defendant express company. Heard on demurrer to complaint.</p>

The National Bank of Commerce of Kansas City, Mo., recovered a judgment in an action in the state court of Kansas, which had jurisdiction of the case, against the Western Farm Mortgage Company, a corporation of Lawrence, Kan. Upon this judgment an execution was issued, which was returned unsatisfied on April 17, 1803.

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

<p>1. Bankruptcy — Review of Referee’s Decision — Petition.</p> <p>A party desiring to have the court of bankruptcy review an order made by the referee must file with the referee his petition for such review, as required by General Order No. 27 (18 Sup. Ct. viii). In default of such petition, the application for review will be dismissed.</p> <p>2. Same — Meetings of Creditors — Notice.</p> <p>An objection by an involuntary bankrupt to the regularity of a first meeting of bis creditors, and to the validity of proceedings bad thereat, on the ground that the notices of sucb meeting were prepared by the referee before the bankrupt’s own list of creditors was filed, whereby it resulted that some of the creditors were not notified, will not be sustained when it appears that the bankrupt’s list of creditors was not filed within the time limited by the law, and was incomplete and imperfect.</p>

<p>1. Bankruptcy — Homestead Exemption — Effect of Waiver.</p> <p>Under the laws of Virginia, a written waiver of the right to a homestead exemption, contained in a note or other evidence of debt, though not a specific lien on the debtor’s property, is an incumbrance upon it; and a court of bankruptcy has jurisdiction to enforce, against property set apart to a bankrupt as his homestead exemption under the, laws of that state, the rights of creditors who hold his notes containing such a waiver of exemption, though they have not reduced their claims to judgment.</p> <p>2. Same.</p> <p>Where the bankrupt claims a homestead exemption in property surrendered, but debts are proved as to which he has waived the benefit of the exemption laws, the trustee must sell the property claimed as a homestead, or so much thereof as may he necessary, and pay such debts as have the benefit of the waiver; and the residue of the property claimed as homestead, or of the proceeds of sale thereof, will he set apart to .the bankrupt.</p>

<p>In Bankruptcy. On applications of two bankrupts, Amelia A. Meyers and George H. Meyers, respectively, for discharge.</p>

<p>This was a suit in equity by the Elliptical Carbon Company against the Solar Carbon & Manufacturing Company and others for alleged infringement of a patent for an electric arc lamp.</p>

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

<p>This was a suit in equity by the Springfield Furnace Company and another against the Miller Down-Draft Furnace Company and others for alleged infringement of a patent.</p>

This was a suit in equity by George Johnston against George E. Woodbury for alleged infringement of a patent for an improvement in ore concentrators.

This was a suit in equity by John E. Hanifen, trading as John E. Hanifen & Co., against Edward A. Price, Francis H. Inloes, and Petera I!. Worrall, trading as Fred Butterfield & Co., for alleged infringement of a patent for a knitted fabric.

<p>Patents — Anticipation and Infringement — Improvements in Dentistry.</p> <p>Tiie Low patent, No. 238,940, for an improvement in dentistry, consisting in attacking artificial teeth to continuous bands fitted to adjoining’ natural teeth, so that the artificial teeth are supported by the natural teeth without dependence on the gum, construed, -and held not anticipated, valid,, and infringed.</p>

<p>1. Master and Servant — Injury to Seaman — Unsafe Appliances — Negligence of Mate.</p> <p>Libelant, a seaman, who bad .-just signed and reported for duty on board a steamer, fell, and was injured, by reason of the breaking of a rope which he was directed by the mate in charge to use to support him while washing down the mast. The rope had been in use for a number of voyages, and had been in a position where it was exposed to injury from heat and smoke, but during the preceding voyage had been subjected to no strain, to test its strength. Held, that, in failing to test it before directing its use, the mate was guilty of negligence for which the vessel was liable.</p> <p>2. Same — Contributory Negligence.</p> <p>As the appearance of the rope did not indicate its weakness, and libel-ant had no knowledge of the length of time it had been in use, he was not negligent in obeying the mate’s orders without question.</p>

<p>This was a suit in equity by bondholders of a water company to enjoin the village of Canandaigua from constructing municipal waterworks. On final hearing.</p> <p>The complainants are owners of 812,000, face value, of the first mortgage bonds of the Canandaigua Waterworks Company, a domestic corporation, engaged in supplying water, for the last 15 years, to the inhabitanis of the village of Canandaigua, N. Y. Ill the latter part of 1883 the waterworks company pursuant to the provisions of the statutes of the state of New York (chapter 737, Laws 1873) received from the trustees of the village and the supervisors of the town of Canandaigua a franchise granting permission to lay pipes in the village streets upon the following conditions: First. The streets to be left in as good condition as before excavating. Second. The water to be taken from Canandaigua Lake, a.t a point not less than 2,000 feet from the shores, and distributed by steam power. Third. The charge to citizens not to exceed the price paid by citizens of other villages in the state. Fourth.. Two miles of mains to be laid within a year. Fifth. The company to execute an indemnity bond to save the village harmless from injuries «'suiting from excavations. Sixth. In case of failure of the water company to comply with any of the above provisions the privileges granted were to become null and void. It will be noticed that 1his franchise simply gives permission to the company to proceed and lay its pipes; it grants nothing more. There is no affirmative covenant of any kind on the part of the village. The bonds held by the complainants were issued in aid of the construction of the said system of waterworks which now extends over J.<! miles and cost about the sum of 8150,000. Contracts were made at various times with the village for supplying water for public use. The last contract expired September 1. IS!<5, being executed September 5, .1894. These contracts were all of like purport varying only in time and in the amount to be paid annually. The only material covenant on the paid of the village was to pay for water furnished, the amount varying from 83,000 to $4,750 per annum. The business of the company gradually increased and in 1894 it was supplying a large number of the inhabitants of the village with water. One-fourth of the buildings within the corporate limits — including the principal buildings — were subscribers. During the year 1894 its gross income was §15,000, which enabled it to pay operating expenses and nearly 6 per cent, interest, on its bonds. The defendants offered evidence tending to show that the water supplied by the company was Impure, its rates exorbitant and the pressure insufficient. It is unnecessary to state this testimony In detail for the reason that the court is convinced that the accusations are unfounded in fact, unavailable in law and immaterial in any view. The rates charged the municipality were agreed hr by It and the water was taken from Canandaigua Lake, which is also the source o£ the village system. Had there been any just ground of complaint in the particulars referred to, the defects could have been, and doubtless would have been, cured had the attention of the company boon legally called thereto. In short, it is thought that the record shows that the company performed all the conditions of the franchise and of the contracts on its part and that, the subsequent acts of the defendants cannot be justified, by any breach of these conditions. In December, ,1894, the village, through its board of water commissioners, resolved to construct a new system of waterworks to be owned and operated by the municipality. Proceedings were taken under chapter 181 of the Laws of 1875 and a new plant was constructed at an expense approximating $183,000. The pipes of the new system were laid substantially parallel with those of the water company, the water being taken in each instance from the same source, — Canandaigua Lake. Some attempts were made to purchase the property of the water company which proved abortive, but no proceeding to take the same by condemnation was commenced. On the 30th of September, 1895, the village formally accepted the new system and has been operating it since that date. Without setting out the facts in detail it may be stated without contradiction that the result of building the new works has been greatly to impair the value of the old works. The complainants’ bonds are, practically, worthless. Soon after the complainants became aware of the situation they began this action asking for an injunction restraining the erection of the new plant. This motion was denied (69 Fed. 671), the court holding that the state statute (section 22, c. 181, Laws 1875) authorizing a municipality to acquire the property of existing corporations organized under the laws of the state for the purpose of supplying water to the inhabitants of villages, was permissible merely and not mandatory. A similar decision was made in the state court in an action brought by the water company against the village. An elaborate opinion (unreported) was delivered at special term. The decision was affirmed at general term (90 Hun, 605, 35 N. Y. Supp. 1104) and in the court of appeals the-appeal was dismissed (149 N. Y. 619, 44 N. B. 1121). The bill was verified June 29, 1895, and process was issued thereon July 11, 1895.</p>

This is a suit to foreclose a mortgage given by a mining corporation on its mining property. The answering defendants are judgment creditors of the mortgagor. On final hearing.

Action for death by wrongful act by Minnie Popp, as administratrix of John L. Popp, deceased, against the Cincinnati, Hamilton & Dayton Railway Company. Defendant demurs to complainant’s petition. Complainant’s petition is as follows: Plaintiff is a citizen of the state of Indiana, and is the duly appointed and qualified administratrix of the estate of her husband, John L. Popp, deceased.

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

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

<p>This was an application by Way Tai for a writ of habeas corpus.</p>

This was a habeas corpus proceeding to review the action of the secreiary of the treasury in denying the petitioner, an alien, the right to enter the United States.

This was a suit in equity by the Ball & Socket Fastener Company against the C. A. Edgarton Manufacturing Company for alleged infringement of letters patent No. 412,296, issued October 8, 1889, to W. S. Richardson, for improvements in fastenings for gloves and other articles.

<p>MASTER AND SERVANT — DEATH OF STEVEDORE — LIABILITY OF OWNERS OF SHIP.</p> <p>Where a ship was not bound to furnish 'tackle to hold up a chute used by contractors in loading the vessel with grain, and that used was rigged up by the stevedores employed by the contractors, the mere fact that the mate in charge did not object to the manner in which it was secured would not render the owners liable for the death of a stevedore, caused by the breaking of such tackle and the falling of the chute, the mate having no better means than others of judging of its safety.1</p>

<p>Jurisdiction ob’ Federal Courts — Federal Question — Pleadings.</p> <p>A federal question, to giv" a circuit court of the United States Jurisdiction!, either original or by u jO from a state court, must appear by too plaiui.'ifCs statement to be r> ... - ,/..ty of bis claim.1</p>

<p>Res Judicata — Decree Determining . Rights of One not a Party — Epfum.® of Affirmance on Appeal.</p> <p>Where, in a creditors’ suit, the circuit court decreed that a conveyance of property by the debtor to a co-defendant be set aside as in fraud of complainants’ rights, subject to a lien on the property by a third person for money advanced towards the erection of a building the.reon after the conveyance, which decree was affirmed by the circuit court of appeals, the question of the right of such third person to a lien is res judicata in the suit, and cannot he reopened by a supplemental bill, though such third person was not a party to the original hill or the decree.</p>

<p>Rbvivai, — AoTros kor Injury to Property — Vermont Statute.</p> <p>A suit by tlie receiver o£ an insolvent corporation to recover money alleged to have been wrongfully obtained from the corporation when insolvent is in the nature* of an action on tlie case for damages to property, which survives, under V. S. § 2446, and on the death of the defendant it may be revived against his executors.</p>

This was an action to recover damages for an alleged tort, anj the present hearing is on a motion to dismiss for want of jurisdiction.

<p>1. Bankruptcy — Priority of Claims — Costs of Attachment.</p> <p>Where the lien of an attachment levied on personal property is dissolved by the adjudication of the debtor as a bankrupt within four months after the commencement of the attachment suit, the creditor’s claim for the costs incurred in the attachment proceedings prior to the filing of the petition in bankruptcy is a provable debt, but'is not entitled to priority of payment, nor is it a lien on the proceeds of the trustee’s sale of the property which was attached.</p> <p>2. Same.</p> <p>Expenses defrayed by an attaching creditor of the bankrupt, after the dissolution of his lien by the adjudication in bankruptcy, in storage of the attached property and the pay of a keeper, will be entitled to priority of payment out of the estate, but only to the extent of the “actual and necessary cost of preserving” the property (Bankruptcy Act, § 6⅛); and the court is not bound to allow the full sum actually expended by the creditor, but only so much as it shall find to have been reasonably necessary for the purpose.</p>

<p>1. Bankruptcy — Collection of Assets — Property in Possession of State Court.</p> <p>Where property of an estate in bankruptcy is in the actual custody and control of a state court of competent jurisdiction, through its officers, its possession of the property will not be interfered with, nor its disposition of the same restrained, by process from a court of bankruptcy.</p> <p>8. Same— Enjoining Sale under Decree Procured by Fraud.</p> <p>Certain judgment creditors brought an action in a state court against their debtor and against an assignee to whom he had made a deed of assignment with preferences, and procured a decree adjudging the assignment to be null and void, as being intended to defraud creditors, establishing the liens of the plaintiffs on the property affected as prior to all others, and ordering the property to be sold. This decree was made by consent, without any opposition or contest on the part of the debtor or the assignee, and the court was not informed of the fact that the debtor had already been adjudged bankrupt and a trustee of his estate appointed, nor of the fact that all the judgments had been bought by a son of the bankrupt (and it was alleged with funds furnished by the latter) and he was the only real plaintiff. Held, that the court of bankruptcy, on petition of the trustee, would enjoin the state court’s officer, the bankrupt, and all others concerned from selling the property under the decree, and instead would order it sold by the trustee free of incumbrances.</p> <p>8. Same.</p> <p>The jurisdiction of the court of bankruptcy, in such a case, to issue its injunction as prayed, is not affected by the fact that the bankrupt has already received his discharge.</p> <p>4. Same — Receiver of State Court-Superior Title of Trustee.</p> <p>A receiver appointed by a state court in proceedings supplementary to execution, and empowered to sue for and collect the property of the debtor previously passed to a third person by a fraudulent assignment, but who has not reduced the same to his possession nor taken any steps to do so, is not vested with such a title or right of possession of the property as will prevent a court of bankruptcy, on the adjudication of the debtor, from taking possession of it through the trustee.</p> <p>5. Same — Sale of Bankrupt’s Propf.rty Free of Liens.</p> <p>A court of bankruptcy may, in its discretion, order the trustee to sell property of the estate free from liens and incumbrances, preserving and transferring bona fide and valid liens on the property to the proceeds of the sale.</p> <p>6. Same — Construction of Statute.</p> <p>The bankruptcy act is a remedial statute, and should be interpreted reasonably and according to the fair import of its terms, with a view to effect its objects and promote justice.</p>

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

<p>1. Bankruptcy — Assets of Estate — Surplus. Income of Trust.</p> <p>Where trustees under a will are thereby directed to pay to a certain beneficiary, during his life, one-fourth of the income of the trust estate, with no direction for accumulation, and no discretion in the trustees as to such payment, and the law of the state (New York) provides that the surplus of an income so settled, beyond what is necessary for the support of the beneficiary, shall be liable in equity to the claims of his creditors, such surplus income, on the bankruptcy of the beneficiary, may be claimed by the trustee in bankruptcy as assets of the estate, although it is not within the classes of property enumerated in Bankruptcy Act, § 70, as vesting in the trustee, for that section is not to be construed as exclusive of other kinds of assets not therein described.</p> <p>2. Same — After-Acquired Property — Accruing Income.</p> <p>Such surplus income, though it accrues after the adjudication in bankruptcy, is not after-acquired property in such sense that it will not pass to the trustee in bankruptcy, the bankrupt’s interest in the income of the trust estate being a vested interest at the time of the adjudication, and a present property right then existing.</p> <p>S. Same — Ascertainment of Surplus — Nummary Proceedings.</p> <p>The amount oí such surplus income of the bankrupt may be ascertained and made available to creditors by a summary proceeding in the court of bankruptcy, on petition of the trustee. There being no adverse claim of title by any third person as respects the income payable to the bankrupt, resort to a plenary suit in equity is not necessary.</p> <p>4. Same — Parties.</p> <p>In proceedings in a court of bankruptcy to determine the amount of the surplus income accruing to a bankrupt under the trusts created by a will, whereby the trustees therein named are directed to pay to him a fixed share of the income of the trust estate during his life, in order that such surplus may be made available for creditors in the bankruptcy proceedings. the testamentary trustees may he made parties by petition, so as to be bound by the decree, in the exercise of the jurisdiction conferred on the courts of bankruptcy by Bankruptcy Act, § 2 (6), to “bring in additional parties in proceedings in bankruptcy, when necessary for the complete determination of the matter in controversy.”</p> <p>5. Same— .Effect oe State Statute.</p> <p>Though the state statute provides that surplus income accruing to a beneficiary under a will, above what is necessary for his support, shall be “liable in equity” to the claims of his creditors, this does not, oblige a trustee in bankruptcy, who seeks to make such surplus income of the bankrupt available for creditors, to bring a bill in equity, nor prevent the court of bankruptcy from ascertaining the amount of such surplus, and subjecting it to administration in summary proceedings; as state laws regulating practice have no reference to proceedings in bankruptcy.</p>

In Bankruptcy.' The above-entitled cause having been referred to W. S. Pearson, a referee in bankruptcy in this district, to investigate, and to pass upon all matters in controversy between certain judgment creditors of S. I).

<p>Bankruptcy — Examination of Bankrupt — Ri&ht of Creditor to Require.</p> <p>At the first meeting of creditors in a proceeding in bankruptcy, any person who is actually a creditor of the bankrupt, and whose debt is provable under the act, is entitled to-examine the bankrupt, although he has not made formal proof of his claim; and the fact that his name is included in the bankrupt’s list'of creditors will be prima facie sufficient evidence of his having a provable debt.</p>

<p>1. Bankruptcy — -Salk of Property Free of Incumbrance.</p> <p>A referee in bankruptcy, sitting as a court of bankruptcy, has power to order the trustee of a bankrupt to sell free of incumbrances personal property of the bankrupt in his possession, but covered by a chattel mortgage, on notice to the Incumbrancer, and to approve the sale when made.</p> <p>2. Same — Approval of Salk by Kbfkrkb.</p> <p>Where a creditor of the bankrupt was secured both by a mortgage of personalty and a mortgage of realty, and there was some doubt as to the property covered by the chattel mortgage, and tiie referee ordered the trustee to sell the personal property free of incumbrances, which was done, for a price found to be its fair cash value, though this was less than the amount of the mortgage debt, lidi, that the referee’s approval of the sale thus made was within the fair exercise of his discretion.</p>

<p>1. Evidence — Requiring- Production of Documents — Records of Collector of Internal Revenue.</p> <p>Tlie reports made by a distiller, or by storekeepers or other officers, to a collector under the internal revenue laws, are in no sense public records, but are executive documents which the United States, in its sovereign capacity, has acquired for the sole purpose of administering its own governmental affairs, and are its private property, the custody and use of which the secretary of the treasury has the lawful authority to control by proper regulations.</p> <p>3. Same — Power of State Courts.</p> <p>Under Rev. St. §§ 161, 251, 321, a regulation promulgated by the commissioner of internal revenue, under the direction of the secretary of the treasury, prohibiting collectors from producing the records of their offices, or furnishing copies thereof, for the use of third persons, or for use as evidence in behalf of litigants in any court, is a valid and binding regulation; and neither a state nor a state court has authority to require a collector to violate it, or to punish him for contempt because of his refusal to produce such records, or to testify to their contents.</p> <p>8. Same — Certified Copies of Collector’s Records.</p> <p>There is no statute of the United States requiring or permitting a collector of internal revenue to make or certify copies of reports on file in his ollice, and a state lias no authority, either in its sovereign capacity or as a litigant, to impose such duty upon him.</p>

This was a suit in equity by the General Electric Company against the Rahway Electric Light & Power Company for alleged infringement: of a patent for improvements in electric railway contact devices.

<p>This was a suit in equity by James 0. Covert against the Travers Bros. Company for alleged infringement of a patent for an improvement in rope clamps.</p>

<p>Shipping — Líber por Breach of Charter.</p> <p>The master of a British vessel, under a time charter expiring April 26, 1898, by instruction of the owner, refused to load a cargo at Philadelphia for Matanzas, Cuba, on the ground that the voyage could not be made before the expiration of the charter. Before the vessel could have been loaded war was declared between the United States and Spain, the port of Matanzas was blockaded, and the vessel would not have been cleared for that port. Held that, inasmuch as no actual damage was sustained by the charterer, a libel against the vessel for breach of the charter would not lie, and the ground on which the master’s refusal to load was based became immaterial.</p>

<p>This was a suit in equity by a stockholder in a corporation for the appointment of a receiver, and to wind up the business of the defendant. On rule to show cause against the appointment of a receiver pendente lite.</p>

In Equity. On the 28th day of February, 1895, the appellee, John Y. Jack, filed his bill in chancery in the United States circuit court within and for the Southern district of Ohio against the appellants, Isaac N. Walker, auditor, and Charles H. Eulass, treasurer, of Warren county, Ohio.

<p>Bankruptcy — Pktitionino Creditors — Estofpki,.</p> <p>Where a debtor made a general assignment for the benefit of his creditors, and the assignee qualified and brought a suit in the proper stale court for the settlement of the trust under the direction of the court, and within four months thereafter certain creditors filed a petition in involuntary bankruptcy against the assignor, alleging such assignment as an act of bankruptcy, held, that they were not estopped to maintain such petition on any or all of the following grounds: (1) That, having knowledge of the assignment and of the acts of the assignee thereunder in conducting the business and selling"the stock on hand, they delayed instituting proceedings for two months; (2) that, pending a proposition for compromise, they sold to such assignee for cash small bills of goods to replenish the stock and make it more salable; (9) that they submitted to the assignee, at Iris request, unverified statements of their claims, for the specific purpose of comparing the same with the entries in the insolvent’s books; (4) that an order made by the slate court for the sale of the assignor's goods was submitted to the attorneys for the said creditors, and by them indorsed “Seen.”</p>

<p>1. Bankruptcy — Effect op Discharge — Partnership Dmjts.</p> <p>Wliere one member of a partners]'ip files liis voluntary petition in bankruptcy, seeking a discharge from both individual and firm debts, and is adjudged bankrupt, but no adjudication is made against the partnership as such, the creditors of the firm may prove their debts against the bankrupt, and cause ills interest in (he firm property to be subjected to the payment thereof, under Bankruptcy Act 1898, I 5, cl. h; and, if a proper foundation is laid, in the pleadings and notices to creditors, the discharge granted to the bankrupt will release him from both classes of debts.</p> <p>2. Same — Petition—Notices to Creditors.</p> <p>Where one member of a partnership files Ms petition in bankruptcy, with the object of obtaining a discharge from debts of the firm, as well as his individual debts, the petition should set forth the names of tlie partners, and pray for a discharge from partnership debts; the schedules should list both the petitioner’s individual properly and debts, and the property and debts of the firm; notices to creditors should inform them that firm creditors are affected, and that the bankrupt, seeks a discharge from their debts; and notice of the filing of the petition anti of creditors’ meetings should be sent to the partners who have not joined.</p> <p>8. Samk - Amendment of Petition.</p> <p>If the petition and schedule as originally filed do not conform to these requirements, they should be amended before an adjudication is made. If adjudication has already passed, ii may be set aside, and leave granted the petitioner to amend; and thereupon an adjudication 'should be again entered, and the case proceeded with de novo.</p>

<p>1. Bankruptcy — Effect of Discharge — -Partnership Debts.</p> <p>Where a member of a firm files Ms voluntary petition, and is adjudged bankrupt thereon, but no adjudication is made against the firm, and the schedule includes debts created by the partnership, but neither the petition for adjudication, the notice to creditors, nor ‘the application for discharge makes any reference to firm liabilities or aslis relief against firm debts, such debts will not be affected by the discharge.</p> <p>2. Same — Amendment of Petition.</p> <p>Where a member of a partnership files his petition in bankruptcy, ■with the object of obtaining a discharge from debts of the firm as well as his individual debts, and is adjudged bankrupt thereon, no adjudication passing against the firm, but the petition, schedules, and notices to creditors do not contain the averments and information necessary to lay the “foundation for a discharge effectual as against firm creditors, the adjudication may be set aside on motion of the bankrupt, and leave granted him to file an amended petition, and thereupon an adjudication may be again entered, and the case proceeded with de novo.</p>

<p>L BAHTCRUFTor — Discharge from Partnership Deists — Practice.</p> <p>Where one member of a partnership files his petition in bankruptcy, with the object of obtaining a discharge from debts of the firm as well as his individual debts, the petition should set forth the names of the partners, and pray for a discharge from partnership debts; the schedules should list both the petitioner’s individual property and debts, and the property and debts of the firm; notices to creditors should inform th'era that firm creditors are affected, and that the bankrupt seeks a discharge from their debts; and notice of the filing of the petition and of creditors’ meetings should be sent to the partners who have not joined.</p> <p>8. Same — Amendment of Petition.</p> <p>If the petition and schedule as originally filed do not conform to these requirements, they should be amended. If an adjudication has already been made, it may be set aside, and leave granted to the petitioner to amend; and thereupon an adjudication should bo again entered, and the case proceeded with de novo.</p>

<p>In Bankruptcy. Submitted on objections to petition for discharge and the evidence in support thereof.</p>

<p>1. Bankruptcy— Grounds of Opposition to Discharge.</p> <p>To defeat the bankrupt’s application for a discharge, it is necessary that tiie specifications in opposition thereto should allege, and the objecting creditors prove, the commission by the bankrupt of one or other of the two acts which the bankruptcy law (section 14b) denounces as grounds for refusing a discharge.</p> <p>S. Same — Issues—Effect of Discharge.</p> <p>The question whether or not the debt of a particular creditor is such as to be excepted from the operation of a discharge in bankruptcy cannot properly be raised or tried upon üie bankrupt’s application for discharge, and creditors’ opposition thereto; the only proper issue being the bankrupt’s right to a discharge. The effect of the discharge, if granted, upon any particular claim, is to be determined when the discharge is pleaded or relied on as a defense to the enforcement of such claim.</p> <p>8. Same — Debts Affected — Judgment in Action for Fraud.</p> <p>If the bankrupt obtained a loan of money from a bank by means of false representations as to the amount of property he owned, and ga,ve his promissory nole for the amount of the loan, a judgment on such note is not a “judgment in an action for fraud or obtaining jiroperty by false pretenses or false representations,” within the meaning of Bankruptcy Act, § 17, providing that such judgments shall not be released by a discharge in bankruptcy.</p>

<p>1. Bankruptcy — Voluntary and Involuntary — Partnership Petition.</p> <p>Where some of the members of a partnership file their petition in bankruptcy asking for an adjudication against the firm, the other partners not joining, the proceeding is, in its inception, a voluntary proceeding in bankruptcy; and it will so remain in its entirety unless the other partners, on due notice, dissent from the petition and contest the adjudication, in which case the proceeding becomes, as to those partners, an involuntary one.</p> <p>2. Same — Order of Reference.</p> <p>Where a petition in bankruptcy is filed by certain of the members of a partnership, praying an adjudication against the firm, and averring that the partner who has not joined in the petition is not a resident of the district, and that his residence is unknown to the petitioners, if the judge of the court of bankruptcy is absent from the district, or the division of the district in which the petition is filed, at the lime of its filing, the clerk should forthwith refer the case to the proper referee.</p> <p>8. Same — Notice to Partners not Joining.</p> <p>Where a petition in bankruptcy is filed by one or more of the members oí a partnership, asking an adjudication against the firm, but there are other partners who do not join in such petition, no adjudication can bo made until the nonjoining partners have bad notice of the pendency of the petition, and of the time fixed for hearing thereon.</p> <p>4. Same — Service oe Notice — Publication.</p> <p>If the partners who have not joined in such petition can be found, whether within the district or without it, personal service of such notice must be made upon them. But, if personal service cannot be had, then, upon the filing of an affidavit showing that fact, the court will order publication of the notice in the same manner as in equity cases.</p> <p>5. Samis--Contest op Petition — Hearing.'</p> <p>Where a petition praying an adjudication in bankruptcy against a firm lias been presented by a part only of the partners, and referred to the propel- referee, if the partners who did not join in the petition shall, upon notice, enter their appearance, and contest the adjudication of the firm, the referee cannot act on the petition, but must certify the case to the judge, before whom the issue will be heard and determined.</p>

In Bankruptcy. On a petition in involuntary bankruptcy against the Carolina Cooperage Company, one Tyner, a creditor, who had recovered judgment against the corporation, and caused execution to be levied on its property, intervened, and opposed the adjudication, alleging that the corporation was solvent, and claiming a prior lien on its property.

<p>Bankruptcy— Pees and Costs — Disbursements of Attaching Creditor.</p> <p>Wiiere the lien of an attachment is dissolved by the adjudication of the debtor as a bankrupt, the creditor has no lien upon the property of the bankrupt for the costs and disbursements incurred by him in such suit, and is not entitled to an order requiring the trustee to pay him the amount of such costs out of the estate.</p>

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

<p>Baxkucptoy — Exempt Property — Indian Lands.</p> <p>An act of congress providing for the allotment in severalty of the agricultural lands of an Indian reservation, declared that the United States would hold the lands for 25 years in trust for the sole use and benefit of the several Indian allottees, who were not allowed to convey or Incumber the lands during (hat time, and that at the expiration of that period the United States would convey the lands to the allottees, or their heirs, discharged of tlie trust, and tree from all charges and incumbrances. During the time named, an Indian, one of the allottees under the act, became a voluntary bankrupt. Held, that the lands allotted to him did not vest in his trustee In bankruptcy, not being property which he could have alienated or incumbered, but being exempt under a law which was not repealed or affected by the bankruptcy act.</p>

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

<p>Hearing on Petition for Writ of Habeas Corpus.</p>

<p>1. Shipping — Conversion op Ship’s Stores — Possession Which will Support Action.</p> <p>Seamen who remained on hoard an ice-bound vessel after she had been abandoned by tlie master and others of the crew were lawfully in possession of Uie stores and other property on board belonging to the owners, and may maintain trespass therefor against the owners of another vessel, which took such stores and property off the vessel without their consent.</p> <p>2. Same — Wrongful Taking.</p> <p>The taking of such stores was none the less a trespass because no resistance was offered, and no force used, where it was without the consent of (hose in possession: nor is it any defense to the action that they were taken to preserve the lives of the crew of the vessel taking them.</p> <p>3. Same — Measure op Damages — Interest of Plaintiff.</p> <p>In an action to recover for the wrongful taking and conversion, by a stranger to the title, of property which was in the rightful possession' of plaintiff, the measure of damages is tlie full value of tlie property converted, and defendant cannot limit the recovery'to the value of the plaintiff’s interest therein.</p> <p>4. Same — Torts of Master — Liability of Owners.</p> <p>The masters of two whaling ships, together with natives living on shore, took from an ice-bound vessel, without tlie consent of those in charge, certain provisions, which were divided between the ships, and also whaling gear, and other articles, which were kept by the natives. Held, that the owners of one of the ships could only be held liable for the value of such of tlie stores taken as were applied to the use and benefit of their vessel, and which it would have been within the scope of the master’s employment to procure. The fact that the master consented to the taking of the other property by the natives cannot render his principals liable therefor.</p>

<p>This was a suit against the British ship Pegasus to recover damages for a personal injury to a seaman.</p>

<p>1. Jurisdiction op Federal Courts — Citizenship—Ancillary Suit.</p> <p>A suit in a federal court to obtain a construction and enforcement of a decree of the same court is ancillary io the former suit, and the court has jurisdiction regardless of the citizenship of the parties.1</p> <p>2. Federal and State Courts — Priority op Jurisdiction — Parties.</p> <p>After the filing of a mechanic’s lien on a packing-house property, the owners contracted with a second party to erect a refrigerating plant therein; the contract reserving tille in the builder until the price should be paid. The lienholder brought suit to foreclose his lien in a federal court, not making the second contractor a party. Such suit resulted in a decree ami sale of the property, but prior to such decree or sale the second contractor had commenced suit, in a state court having jurisdiction of the subject-matter, to establish his prior claim to the plant built by him, making the lienholder a party thereto. The latter appeared, and subsequently set up the decree of the federal court as a bar to the suit. After the sale of the property a decree was entered in such suit establishing the prior lien of the plaintiff therein on the refrigerating plant. Held, that the state court had full jurisdiction, and its decree was binding on the parties tlurreto, and on the purchaser of the property under the decree of the federal court; public notice of the claim to the refrigerating plant having been given at the sale.</p> <p>3. Judicial Sale — Rights oe Purchaser — Taxes.</p> <p>The fact alone that purchasers of property at tax sale were stockholders in a corporation which then owned the legal title to the property is not sufficient io constitute such purchase a payment of the taxes, in favor of a subsequent purchaser of the property at a foreclosure sale.</p>

<p>1. Married Women — Contracts of Suretyship — Estopped. ,</p> <p>Under tbe married woman’s statute of Indiana of 1881 (3 Burns Rev. St. §§ G960-6964), which makes void contracts of suretyship by a married' woman, but provides that she shall be bound by an estoppel in pais, like any other person, a married woman who conveys her realty for the purpose of enabling the grantee to make a mortgage thereon for his own benefit, which he does to a person who has no knowledge of such fact, and accepts the mortgage on the faith of the recorded title, is estopped from asserting the invalidity of the transaction to defeat the mortgage.</p> <p>2. .Same — Notice to Mortgagee — Possession of Grantor.</p> <p>The fact that such a conveyance by a married woman shows on its face that the grantee is a son of the grantor does not charge a subsequent mortgagee from the son with notice of the illegal purpose for which the conveyance was made, nor does the fact that the grantor remained in possession of the-property.</p> <p>3. Same.</p> <p>The reconveyance of the property by the son to his mother after his execution of the mortgage thereon, but before its final acceptance by the mortgagee and the payment of the consideration, of which reconveyance the mortgagee had no actual notice, although it was recorded, did not charge her with such knowledge of the facts as to relieve the grantor from, the estoppel created by clothing her son with apparent ownership.</p> <p>4. Same.</p> <p>a he deed of reconveyance being made expressly subject to the mortgage which was recited therein, and which the grantee assumed and1 agreed to pay as a part of the consideration, did not operate to revest the title in the grantee free from the unaccepted mortgage; the assumption clause being valid and binding, at least to the extent of recognizing, the mortgage as an existing incumbrance.</p> <p>6. Mortgages — Time of Taking Effect — Relation.</p> <p>A mortgage signed, acknowledged, and delivered to an agent of the mortgagee, on its subsequent acceptance by the mortgagee takes effect by relation as of the date of such delivery, as against an intervening conveyance, where the equities of the parties require such application of' the doctrine of relation.</p>

The appellant, the Farmers’ Loan & Trust Company of New York, is the trustee in a deed of trust or mortgage executed on July 1, 1889, by the Centralia & Chester Railroad Company, to secure the… Held: and $7,000 contracted for, by the St. Charles Car Company, and $9,400 contracted for by the Pittsburg Locomotive Company.

This appeal Is from an order or decree entered in the circuit court upon the hearing of matters which are presented under an intervening petition filed by the Illinois Central Railroad Company and an answer thereto by the receiver, in an action pending in that court for the foreclosure of a mortgage against the Toledo, St. Louis & Kansas City Railroad Company (hereinafter called the “Toledo Company”), wherein the Continental Trust Company of New York and John M. Butler are…

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The appellants, comprising the firm of Henry Clews & Co., of the city and state of New York, filed their bill in equity, naming as defendants (1) the members of the firm of Jamieson & Co., (2) the managing members of the Chicago Stock Exchange, and (3) the members of the firm of Schwartz, Dupee & Co., all citizens of the state of Illinois. The theory of the bill and the relief prayed for are thus stated in the brief of counsel for appellants: “To have administered and turned over to them $14,000, in the possession of the managers of the Chicago Stock Exchange, claimed by appellants to have been deposited in trust as security for the performance of a contract whereby the appellants agreed to sell and deliver, and the appellees Jamieson & Go. agreed ■to receive and pay for, on the 31st day of August, 1896, seven hundred shares of Diamond Match Company stock, which contract it is alleged Jamieson & Co. failed and refused to perform;” also, to obtain “an accounting for the loss and damages sustained by the appellants by reason of the breach of contract, and that Jamieson & Co. be decreed to pay to the appellants the amount ascertained.” Separate answers were filed by the defendants Jamie-son & Co. and Schwartz, Dupee & Co. The remaining defendants demurred to the bill as not stating a cause of action cognizable in equity, but the demurrer was overruled, and such defendants filed separate answers. On the issues thereupon the case was sent to a master, who heard the testimony and reported his findings, which were in favor of the complainants upon all issues, and that on the accounting there was due to them from Jamieson <⅛ Co. $64,400. The hearing before the court was upon exceptions to the master’s report, and upon certain stipulations of further facts, and resulted in a dismissal of the bill for want of equity. 89 Fed. 63. From the opinion filed, this conclusion appears to have been based on the view that the complainants were not privies to the transaction between Schwartz, Dupee & ■Co. and Jamieson & Co. This appeal is from the decree of dismissal so entered.</p> <p>The facts are substantially undisputed. The appellants, Henry Clews & Co., were operators in stocks and bonds at New York City; and Schwartz, Dupee & Co. were like operators or brokers at Chicago, on the Chicago Stock Exchange, as members. Jamieson & Co. were also like operators and members of the Chicago Stock Exchange. The relation of the complainants to any transaction in question appears in communications by wire between them and Schwartz, Dupee & Co., which are stipulated in the case as follows: “On the 16th day of July, 1896, at 11:19 a. m., Schwartz, Dupee & Co. received the following order from H. Clews & Co., by telegram: ‘Sell 500 Diamond Match at 220½ for a/c. [Signed] H. Clews & Co.’ On the same day, at 11:35 a. m., Schwartz, Dupee & Co. telegraphed Henry Clews & Co. as follows: ‘Sold 500 Diamond Match at 221 ⅝ for the account. [Signed] Schwartz, Dupee & Co.’ On the 20th day of July, 189(5, at 9:23 a. m., Schwartz, Dupee & Co. received a telegram reading as follows: ‘Sell 200 Diamond Match at 221 for the account at opening of market. They want put out at opening if possible, but it is good all day. [Signed] Clews.’ On the same day, at 10:OS a. m., Schwartz, Dupee & Co. telegraphed Clews as follows: ‘Sold 200 Diamond Match 221½ for the account. [Signed] Schwartz, Dupee & Co.’ On the 25th day of July, 1890, at 11:41 a. m., Clews telegraphed Schwartz, Dupee & Co. as follows: ‘Change the Diamond Match over to August account at 2½ per cent. If you can do it, let us know' at once. [Signed] Clews.’ And shortly after that, on the same day, at 11:48 a. m., Clews sent the following dispatch to Schwartz, Dupee & Co.: ‘You sent ns the difference this morning at 2½. At what difference can you .do it now? [Signed] Henry Clews & Co.’ On the same day, a.t 11:58 a. m., Clews telegraphed Schwartz, Dupee & Co. as follows: ‘Change the 500 at two cents or better. [Signed] Clews.’ On the same day, at 12:11 p. m., Schwartz, Dupee & Co. telegraphed Clews as follows: ‘Bought Diamond Match 227 for the account. Sold 500 229 account 2nd. [Signed] Schwartz, Dupee'& Co.’ On July 27th, at 8:55 a. m., Clews telegraphed Schwartz, Dupee & Co. as follows: ‘Change 200 more Diamond Match 2 per cent, or hetter. [Signed] Clews.’ On the same day at 10:53 a. m., Schwartz, Dupee & Co. telegraphed Clews as follows: ‘We changed the 200 Match at 2½ difference. Will give you prices later. [Signed] Schwartz, Dupee & Co.’ On the same day, at 10:55 a. m., Schwartz, Dupee <& Co. telegraphed Clews as follows: ‘Bought 200 Match 226¾ account. Sold 200 2nd account. [Signed] Schwartz, Dupee & Co.’ And the stipulation further states “that the orders of Henry Clews & Co. to Schwartz. Dupee & Co., contained in said messages, were, as a matter of fact, executed as set forth in the aforesaid messages from Schwartz, Dupee & Co., on the Chicago Stock Exchange.”</p> <p>The word “account,” as used in these telegrams, was understood, in the language of the stock exchange, to mean that (lie last day of the current month was the ‘‘day of delivery” ou ilie proposed sale. The message of July 25th, so Interpreted, was understood to mean that 500 shares of the stock previously sold for “account” should he carried over to August account, or “account second.” for which accommodation the seller allowed 2 cents on the dollar, making 5¡2.29 per share. The final direction on July 27th was to place 200 more shares on the same terms for August account, making their offers on that account 700 shares, with all previous offers canceled. By the, rules of the stock exchange, each broker, as a member, was required to keep on deposit with the managers of the exchange, as a trust fund to secure performance, an amount equal to 10 per cent., par value, of ihe stocks bought or sold, and this deposit is readjusted at the close of each day’s session. Under this rule. Schwartz. Dupee & Oo. claim to have kept-their deposits good; and this deposit, together -with that made by the buyer, constitute the alleged trust funds referred to in the bill, for which administration is sought.</p> <p>The method of conducting business in the stock exchange between the brokers is thus fairly stated in the master’s report, and in the opinion filed by the trial court: “At ten o’clock there is an official call, at which the secretary and manager call all 1he stocks, bonds, and securities on the official printed list; and, as this call progresses, any member wishing to buy or sell bids thereon, and the record is made of the transaction, after which there Is an irregular call, which closes at half past one, when the manager of the clearing house announces the clearing-house or settlement price for the day, which are the closing prices on the exchange for the respective stocks and securities. That the manager then substitutes trades, and sends out cards to all buying or selling on account for the current month or for the next month. That on the 25th of the month, and thereafter until the second day before the end of the month, two calls are made, — one for the current month and one for the next ensuing mouth, — and this is done to allow those who wish to do so to change their accounts over to the next month. That this substitution was made by the clearing department by a system somewhat similar to that employed by the clearing house for hanks; that is, that, where a broker has purchased and sold during the day the same amount of the samé kind of stocks or bonds, his account is balanced by the clearing department, and all margins deposited by such broker may be withdrawn; that when sales and purchases are made by different brokers, one buying and the other selling the same kind of stock or bonds, a substitution is made by the manager of the clearing department, by which it appears that the broker selling has sold such stock, not to the person to whom it was originally sold, but to a person or persons other than those to whom such sales were originally made, and who originally bought of some one else, and that a broker purchasing stock has purchased from some broker other than the broker from whom he originally purchased the same. For instance, if A. sold 100 shares of stock to X., and B. has bought the same amount of the same stock from Y., and X. and Y.’s accounts are balanced by other transactions, the substitution would make it appear that A. had sold 100 shares to B., and B. had bought 100 shares from A., and the names of the parties with whom the original transactions had actually been made by A. and B. would not appear pn the clearing-house sheet. That in the transaction on said exchange it is then customary for the parties thus substituted and brought into the relation of buyer and seller with each other by the manager to assent to the new relations thus formed, and to confirm the transactions as thus adjusted by the manager, and to. put up the margins required by the rules, unless the margins are already on deposit in the exchange, in which case they are transferred by the manager to the new account.”</p> <p>The stipulation of facts further shows all dealings of both Schwartz, Dupee & Oo. and Jamieson & Co. which appeared upon the clearing-house sheets of the exchange for all dates in question; and although the former had original and substituted trades in Diamond Match stock with sundry other brokers prior to August 3, .1896, no trade appears with Jamieson & Co. up to that date, except to the extent of 100 shares. On August 3d, Jamieson & Co. appear as taking by “substitution” from Schwartz, Dupee & Co. 1,150 shares of such stock at.$2.22. Of this transaction it is asserted on behalf of complainants that 700 shares were “substitution trades” for the complainants’ orders of July 25th and July 27th, although at lower price than named in the order, and that Jamieson & Co. thereby became the “ultimate purchaser” ■of such shares, in accordance with the rules of the exchange, and that “it is seldom the original purchaser who is ultimately made responsible, but by a process of daily novations the original purchaser and many subsequent purchasers liquidate their contracts and are discharged from liability thereon before the ‘account day,’ some other member of the exchange assuming the new obligation.”</p> <p>The stipulation in reference to the trades by Schwartz, Dupee & Co. further states as follows: “That the 500 shares sold July 25, 1S96, by Schwartz, Dupee & Co. for the ‘August account’ were sold for the account of Clews & Co., the complainants. That 200 shares of the 3-50 shares sold July 27, 1896, by Schwartz, Dupee & Co. for the ‘August account’ were also sold on account of complainants. That all of the other sales made by Schwartz, Dupee & Co. for the ‘August account’ were made on behalf of other clients than the complainants. That the 750 shares sold by Schwartz, Dupee & Co. on July 28, 1896, were sold for four different clients of Schwartz, Dupee & Company,— for one to the amount of 50 shares, for another to the amount of 300 shares, for another to the amount of 350 shares, and for another to the amount of 50 shares. The client for whom Schwartz, Dupee & Co. bought the 350 shares on July 27th is the same person for whom they sold 350 shares on July 28th, and who sold in order to close his purchase of July 27th. That the client for whom Schwartz, Dupee & Co. sold 300 shares on July 28th is the same person for whom Schwartz, Dupee & Company bought 300 shares on July 29th, and said purchase of July 29th was made to cover said person's sale of July 28th. That the transactions heretofore set out in this stipulation of purchase and -sale of Schwartz, Dupee & Co. and the other brokers whose names are stated, with the exception of those transactions which are marked as substitutions, were had by the brokers on behalf of different clients or principals whom they represented, and those transactions, so far as the different principals'are concerned, were not settled ot canceled by any of the substitutions, nor by any -of the settlements -.between the brokers, except so far as where one client or principal of a broker was, through such broker, both a purchaser and a seller. In other words, the settlements by substitution or otherwise through the clearing house were merely settlements between the members of the stock exchange, and were not settlements or cancellations of the contracts between the principals whom the bankers represented and the brokers themselves, except where the same broker had both purchased and sold for the same client.”</p> <p>On August 3, 1890, the Chicago Stock Exchange was closed by order of the managers, and remained closed until November 5, 1896, so that there was no opiiorl unity for further transactions on the exchange in reference to the subject-matter of this controversy after August 3d. On August 31, 1890, Schwartz, Dupee & Co. made personal tender to Jamieson & Co. of 1,150 shares of Diamond Match stock, and the latter refused to accept or pay for the same.</p> <p>The following stipulation further appears: “It is admitted by the complainants that at the time complainants gave the several orders to Schwartz, Dupee & Co. to sell on the Chicago Stock Exchange the various amounts of Diamond Match Company stock, and at the time said Schwartz, Dupee & Co. executed said orders, said Schwartz, Dupee & Co. did not have in their hands any stock of said Diamond Match Company which was the property of the complainants, nor did said Schwartz, Dupee <& Co. at any time thereafter have in their hands any of the stock of said Diamond Match Company which was the property of the complainants. It is admitted by the complainants that the 1,150 shares of the capital stock of the Diamond Match Company tendered to Jamieson & Company by Schwartz, Dupee & Qo. on August 31, 1896, were not the property of the complainants, nor any part thereof.”</p> <p>No communication with, or appearance on the part of, lleniy Clews & Co., is shown in reference to the transactions after July 27th and up to September ,10th and 11th, and any claim of (heir participation therein was unknown to Jamieson & Co. prior to the latter elate. On September 11th Schwartz, Dupee & Co. delivered to Jamieson & Co. a letter of the former, dated September 9, 1896, referring to their tender of the 700 shares, and stating that the sale was made by them as agents for Henry Clews & Co., “who may rightfully take any steps to enforce the contracts” or make settlement, and also a letter of Henry Clews & Co., by their attorneys, dated Seplember 10, 1896, claiming such interest in the transaction, and notifying that sale of the 700 shares would be made to the highest bidder at the rooms of the Chicago Real-Estate Board on September 15, 1896, etc. On September 22d and 23d notices were given, respectively, that the sale had been adjourned to, and was made on, September 22. On September 22, 1896. Schwartz, Dupee & Co. made pretended sale oí 700 shares of the stock (being the same transaction set up in the bill), by way of fixing the price for measuring damages, of which the following-stipulation of facts is made: “It is further admitted: That (lie 700 shares of said stock alleged in the bill of complaint to have been sold on the 22(1 day of September, 1896, were not delivered to Frank N. Gage, but immediately after said shares of stock were delivered to Major J. IV. Conley, one of the linn of Schwartz, Dupee & Co., by II. J. Davis, who conducted said sale on behalf of Henry Clews & Co., for safe-keeping by said J. W. Conley. That afterwards and on the same day said H. J. Davis delivered to said Frank N. Gage a memorandum in words as follows: ‘September 22, 189(5. Sold to Frank N. Gage 700 shares of Diamond Match stock, numbered A080-6S6, inclusive, at ¡¿130 per share. Henry Clews & Co,, per Kstabrook & Davis.’ That thereupon said Gage wrote below said memorandum the following: ‘Chicago, September 22, 1896. O. K. Please didiver to X. II. Waggoner, Esq., and accept his check in settlement. Frank M. Gage.’ And thereupon said Gage redelivered said memorandum and said order to said XI. ,1. Davis, who thereupon delivered the same to Mr. I. II. Waggoner, together with an order on Schwartz, Dupee & Go. to deliver said certificates of shares to said Waggoner upon Toeing paid the amount of ¡¿130 per share. That said Gage was employed by said Waggoner to bid at said salt', and that said Waggoner was acting for and on behalf of (he complainants in tills suit, in the employment of said Gage. Complainants object to the fore,going admission being considered as evidence; for, while admitting (hat these are the facts, at the same time they claim they are immaterial to the issues in this case, and object on tlie ground. of immateriality.” The pretended sale was so made, for the reason that the exchange was then closed, pursuant to the rules, by order of the managers, notwithstanding a rule of the exchange which reads as follows: “Should any member neglect to fulfill his contract on the day it becomes due, the party or parties contracting with him shall, after giving notice as required by section 2 of the preceding article, employ an officer of the board to close the same forthwith in the exchange by purchase or sale, as the case may require, unless the price of settlement has been agreed upon by the contracting parties. In case of a failure of a creditor to close the contract as above, the price shall be fixed by the price current at the time such contract ought to have been closed under the rule. In all cases where an officer may be directed to buy or sell securities under this rule, the name of the member defaulting, as well as that of the member giving the order, shall be announced. No order for the purchase or sale of securities under this rule shall be executed unless made out in writing over the signature of the party giving the order, who shall state the reason therefor; and it shall be the duty of the officer who executes the order to indorse thereon the name of the purchaser or seller, the price and the hour at which the contract is closed, and hand' the same to the secretary of the board, who shall within twenty-four horn's ascertain whether the party for whose account the order was given has paid the difference, if any, arising from the transaction. • If not, the secretary shall report the default to the president. The duty devolved upon the officers of the exchange under this rule shall be performed without charge. No party shall be permitted to supply offers to buy or sell securities, closed for his account under the rule; and, when a contract is closed under this rule, any action of- the defaulter, direct or indirect, by which the 'prompt fulfillment of such contract is delayed, hindered, or evaded, to the detriment of the other contracting party, shall subject the offending party to suspension for not less than thirty days, in the discretion of the governing committee, by a vote of two-thirds of the members present at the meeting. When contracts are closed out under the rule, any member supplying the bid or offer, and not duly receiving or delivering the stock, as the case may be, renders himself liable to prosecution under this article. Should any stock thus sold not be delivered until the next day, the contract shall continue, but the defaulting party shall not be liable to pay such damage as may be assessed by the arbitration committee. . The same rules as to notice, time, and places that govern defaults in other contracts shall apply to borrowed securities, which, on nondelivery or receipt, must be borrowed or loaned in open market, except in case of actual default in receiving or delivering after notice to close the loan. Then the same are to be bought or sold as the case may be, for the account of the defaulter, in the manner provided in this article.’,’</p>

The amended supplemental bill was brought by Lawrence Hedrick, a minor, by next friend, against Citarles N. Williams, Charles L. English, trustee, and John W. Kent, to remove incumbrances and to quiet the title to real estate. English and Kent each filed a cross hill, and issue was duly joined upon the bill and cross bills.

<p>1. Equity — Remedy at Layv.</p> <p>A municipal corporation, though insolvent, cannot be enjoined from using its funds, nor can its funds be subjected, by equity, to the payment of a judgment, when there is an adequate remedy by mandamus.</p> <p>2. Same — Ri.kadikg—Djcmuiuieh—Remedy at Law.</p> <p>A bill in equity against a municipal corporation to enjoin nse of its funds, and to subject them to the payment of a judgment, is demurrable when it falls to allege an attempt to use the remedy by mandamus, or facts showing the inadequacy of that remedy.</p> <p>3. Same — Remedy at Law in Theory.</p> <p>Equity can give no relief where there is a remedy at law in theory, although the legal remedy is inadequate in practice.</p>

<p>In Equity. This was a suit for equitable relief against a city on account of the construction for its use of a fire and police telegraph system under a contract subsequently held void by the state court. .</p>

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

This was a petition by George H. Earle, Jr., as receiver of the Ohesnut Street National Bank of Philadelphia, alleging that the petitioner brought two several suits against Charles Stevenson and Samuel Filbert, respectively, to recover assessments ordered by the comptroller against said defendants as stockholders in said insolvent bank; that he recovered judgment in each of said suits, on which execution had been issued and returned nulla bona; that, as petitioner was…

<p>Municipal Corporations — Local Improvements — Method oe Payment.</p> <p>Under the Illinois statute (1 Starr & O. Ann. St. [2d Ed.] p. 736), which vests the corporate authorities of cities and villages with power to make local improvements “by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall-by ordinance prescribe,” where a local improvement is one of a class properly chargeable against abutting property, the decision of the city council to that effect is final; and a contractor for the work derives no additional rights, as to enforcing payment, from the fact that the cost of the improvement might originally have been ordered paid by general taxation.</p>

<p>1. Libel — Words Used with Intent to Injure Business — Motive.</p> <p>While every individual has an absolute right to refuse any business relation with another, such right is limited to his own individual action; and if, without Just cause, and through ill will, malice, or other evil motive, he influences others to do the same, he is guilty of an actionable wrong.</p> <p>2. Same — Influencing Employes.</p> <p>The publication by employers of a notice to their employes suggesting that they refrain from associating with a third person, and that none of them should trade or deal with him, and intimating that if they did so they would be considered unfriendly to their employers, If made without Justifiable cause, and from motives of wanton malice or 111 will, and with Intent to injure, is actionable; and the person Injured is entitled to recover for the injury, both to his reputation and business.</p> <p>3. Same-Construction of Publication.</p> <p>Such a notice is capable of a construction which Is defamatory, and when proper innuendoes are contained in the complaint the defendants cannot complain of an instruction which submits the question whether or not it was defamatory to the jury, to be determined under all the faets and circumstances shown by the evidence.</p> <p>4. Same — Evidence.</p> <p>On the question whether a publication was defamatory, it is competent for the plaintiff to show the understanding of the meaning of the words used by persons who read it, and who resided in the community and lmew both the parties.</p> <p>5. Same —Measure of Damages.</p> <p>In an action for libel, in which plaintiff was entitled to recover damages for injury both to his reputation and his business, a verdict for §4,700 will not be held excessive.</p>

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

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

<p>1. Review ox Appeal — Instructions—Immaterial Omissions.</p> <p>If the trial court omits to state in its charge on which party rests the burden of proof of an issue, and counsel does not call its attention to the omission, it cannot be regarded by the appellate court as of sufficient gravity to require a reversal of the judgment.</p> <p>9. Samb-Exckwioss and Assignments op Error on Instructions.</p> <p>When an instruction is claimed to carry an implication beyond what is expressed, the exception thereto, under the rules of the circuit court of appeals, should state the particular meaning or implication objected to, and the specification of error must also set out the language of the instruction.</p>

<p>Insurance— Construction oi' Policy -- Oraos to Repair — Election—Ap-praisement.</p> <p>A fire insurance policy contained a provision, relating to both personal property and buildings insured, that in case of loss or damage the amount of the same should be ascertained or estimated by the parties, or. in case of disagreement, hy appraisers to be selected, and that, when so estimated, and proof of loss made, the same should be payable 60 days after receipt of such proof, tout that “it shall he optional, however, with this company, to take all or any part of the articles at such ascertained or aptpraised value, and also to repair, rebuild, or replace the property lost or damaged * * * within a reasonable time on giving notice within 30 days after receipt of the proof herein required, of its intention so to do.” It further provided that the company should not he held to have waived any provision or condition of the policy “by any act or requirement or proceeding relative to the appraisal.” Held, that the estimate or appraisal was a preliminary to, or a part of, the final proof of loss required, and that participation by the company in an appraisal to ascertain the damage done to an insured building did not constitute an election on its part to pay such damage in money, which precluded it from thereafter exercising its option to rebuild or repair on notice given within 30 days after the award of the appraisers was made.</p>

James M. Hennessey was foreman of a switching crew employed in the yard of the. Chesapeake & Ohio Railroad Company at Russell, Ky. While engaged in making a coupling in the yard of the company, he sustained an injury. This suit was brought to recover damages for the injury so sustained. Russell was the end of a division. All cars passing there were inspected. For this purpose two inspectors were employed. As many as six or eight hundred cars pass Russell each day.

<p>1. LIMITATION OF ACTIONS — PLEADING.</p> <p>Unless a declaration shows affirmatively a case outside of all exceptions declared in a statute of limitations, the question of limitation cannot be ra.sed by demurrer, but the facts which exclude the exceptions must be set up by plea.</p> <p>2. Samií — What Law Goveuns.</p> <p>The general rule is that in respect to the limitation of actions the law of the forum governs, and, while, the courts will enforce a limitation established under the law of another state, when applicable, they will not do so to the exclusion of the law of the forum.</p>

This was an action upon a policy of life insurance. The defendant demurred to the declaration. The demurrer was sustained, as not stating a good cause of action. 91 Fed. 728. From the judgment thereon the plaintiff sued out this writ of error.

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

<p>1. Statutes — TrTLE op Aot.</p> <p>Const. Cal. art. 4, § 24, providing that every act shall embrace but one subject, which shall be expressed in its title, as construed by the supreme court of the state, does not require the title of an act to be an abstract of its contents, and a provision intended to secure the enforcement of tlie act and the accomplishment of the general purpose of the legislation is germane to the subject-matter and valid though not enumerated in the title.</p> <p>2. Constitutional Raw— Special Privileges — Act Affecting Corporations.</p> <p>Sections 1 find 2 of the California act relating to corporations (St. 1891, p. 281), which retiñiré all corporations doing business in the state to pay their employes at least once a month the wages earned during the preceding month, and provide that the violation of such requirement shall entitle an employe to a lien for his wages on the property of the corporation, taking precedence of all other liens except recorded mortgages or deeds of trust, to an attachment, and a reasonable attorney’s fee in case of a suit to collect his wages or enforce such lien, and that ¡in unrecorded deed shall be no defense to such suit, do not discriminate unjustly against corporations, in violation of the state constitution (article 1, § 21), prohibiting the granting of special privileges or, immunities to any citizens or class of citizens.</p> <p>8. Same — Equal Protection of Law.</p> <p>Nor do such provisions deny to corporations the equal protection of the law, within tire prohibition of the fourteenth amendment to the federal constitution.</p> <p>4. Same — Dtna Process of Law.</p> <p>Nor do such provisions deprive corporations of their property without due process of law, within the meaning of the state constitution (article 1, § 18). by interfering with their freedom to make contracts.</p> <p>5. Contract — Agreement for Extension on Part Payment.</p> <p>Tart payment of wages due employes is not a good consideration for an agreement to extend the timo for payment of the remainder.</p>

<p>In Bankruptcy.</p>

<p>Involuntary Bankruptcy — Corporations—Insurance Company.</p> <p>A petition in involuntary bankruptcy cannot be maintained against an incorporated mutual fire insurance company organized under tbe act of the Missouri legislature approved March 21, 1895; such a corporation not being “engaged principally in manufacturing, trading, or mercantile pursuits,” within the meaning of Bankruptcy Act 1898, § 4b, and therefore not being amenable to the statute.</p>

In Bankruptcy. Petition by Hugh G. Keegan, as trustee in bankruptcy of the J. F. Schell Loan & Investment Company, against Sarah J. King and Caroline King, for an injunction restraining the defendants from the further prosecution of an action commenced by them against the petitioner in the superior court of Allen county, Ind. Defendants appeal from a decision overruling their plea in abatement to such petition.

<p>1. Patents — iNriiiNC-MMKsrT—Railroad Block Signaling.</p> <p>The Gasseti pa tenis, Nos. 233,740 and 246,492, for electric railway signaling apparatus, which cover improvements on the preceding Robinson system (No. 130,661; reissue 5,938), consisting in the exhibition of a danger signal at the entrance of a track section until the train has passed over, not only such section, but also a determinate part of the section next in advance, are not entitled to the broad construction accorded to pioneer inventions, hut must be limited to the specific purpose sought to be accomplished, which is merely to continue the signal at “Danger,” as a stop signal, until the train has passed a determinate distance beyond the section; and they are not infringed by a device in which two danger signals are set at the beginning of each section, and one of which .continues at “Danger,” as a distant cautionary signal, during the passage of the train over the entire section in advance.</p> <p>S. Same — Validity—Prior Use.</p> <p>The Westinghouse palent, No. 270,867, for improvements in electric circuits for railway signaling, is void, because it was in public and practical use for more than two years before the patent was applied for,' and because a complete description of it was previously published In the Railroad Gazette, a trade paper having a general circulation among railroad people and those connected with railroads.</p> <p>8. SAME — INFRINGEMENT—CONNECTORS FOR ELECTRIC TbACK CIRCUITS. '</p> <p>The Gassett and Fisher patent, No. 227,102, for an improved connector for electric, track circuits, consisting of a wire having Its ends coiled around and soldered to the outer ends of studs which are driven into holes drilled ill the rails to be connected, is limited to the precise construction shown, and is not infringed by a connecting device in which the wire is not wound around or soldered to the studs.</p> <p>4. Same — Means Patent.</p> <p>The Means patent, No. 273,377, for a connector for electric track circuits, construed, and held not infringed by a device by which the connection is established directly between the rails and the connecting wire, instead of through the plugs used to fasten the wire, as shown in the patent.</p>

<p>1. Practice in Admiralty — Method op Taking Depositions.</p> <p>Rev. St. § 800, authorizing any of the courts of the United States to issue commissions to take depositions “according to common usage,” does not require a court of admiralty to conform to the practice in the state courts, and it may by rule provide a different method for taking depositions.</p> <p>2. Same — Representation op Adverse Party.</p> <p>Under rule 40 in admiralty of the district court for the Eastern district of Pennsylvania, which permits parties to attend the examination of witnesses whose testimony is taken on commission, either personally or by their proctors, if the adverse party desires to be represented at such an examination he should furnish the name and address of his representative to the party taking out the commission, or to the commissioner, or file the same with his cross interrogatories, in which case it will be the duty of the commissioner to give such representative notice.</p>

This was a suit in rem to recover wages and expenses incurred by libelants on the faith of an engagement to ship as seamen on the ship Glenesslin.

<p>1. Removal op Causes — Jurisdiction op Parties — Residence.</p> <p>A delendant may waive the provision of the judiciary act (25 Stat. c. 866, § 1) which entitles him to he sued in the district of his residence; and where he is sued in a court of a state in which neither he nor the plaintiff resides, and removes the cause to the circuit court of the United States in such district, the plaintiff', having elected to institute the suit in such state court, cannot object to such removal on the ground that defendant is not a citizen or resident of the district, and that, therefore, the court would not have had original jurisdiction of the suit.</p> <p>2. Federal Courts — Venue—Local Suits.</p> <p>A suit to cancel a mortgage on real estate is of a local nature, and may ho maintained in a federal court of the district where the property is situated, where there is the requisite diversity of citizenship and amount involved to give it jurisdiction, without regard to the residence of the parties.</p> <p>8. Same — Jurisdiction—Amount in Dispute.</p> <p>In a suit to set aside a conveyance of property, and mortgages given thereon, the value of the property and rights which will he affected If the relief prayed for is granted, and not the value of complainant’s, interest in the property, constitutes the amount in dispute, for the purpose of determining the jurisdiction of a federal court.1</p>

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

<p>Bun,ding and Loan Associations — Insolvency—Status oi? Borrowing Stockholders.</p> <p>Under 1iie law as settled by tlie courts of North Carolina, the fact that a stockholder in a building and loan association is a borrower does not change his relations to the association as a stockholder. In ease of its insolvency, ho is not relieved from liability to contribute equally with other stockholders to its losses, and is not entitled to a cancellation of his mortgage on payment of the mortgage debt, or to receive a surplus remaining in case the property is sold under the mortgage until the final adjustment of the accounts between the association and its stockholders.</p>

In Equity. On demurrer to bill. The bill herein Is lengthy. It attempts, with considerable of detail, to recita various matters in connection with a foreclosure suit lately pending In this couit, wherein one of the defendants herein, the Farmers’ Loan & Trust Company, was, as trustee, plaintiff, and another defendant herein, the Iowa Water Company, was, with others, defendant.

<p>On Petition for Rehearing.</p>

<p>National Banks — Distribution or Assets in Insolvency — Rights op SHAREHOLDERS.</p> <p>■Where a number of the shareholders of a national bank in good faith paid an assessment made to comply with a requirement of the comptroller to make good an impairment of the bank’s capital, although such assessment was Invalid because made b.v the directors instead of by the stockholders, on the insolvency of the bank, and the winding up of its affairs by a receiver, after outside cix uitors are paid, such paying shareholders are entitled to be treated as creditors as against the nonpaying shareholders, and repaid the amounts so paid, before general distribution of the remaining assets among all the shareholders.</p>

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

<p>On Motion by Defendant for a Hew Trial.</p>

<p>Costs — Recovery of Less thaw Five Hundred Dollars.</p> <p>When a plaintiff in an action at law or a suit in equity for a money decree recovers less than $600, exclusive of costs, under Rev. St. § 968, he cannot recover his costs, and may, in a case where the court has 'discretion in the matter, be taxed with the defendant’s costs. -</p>

<p>Life Insurance — Termination of Contract — Refusal to Pay Assessments.</p> <p>Where the holder of a life insurance policy in a mutual company refused to pay a mortuary call, and announced to the company that he had “quit” on account of dissatisfaction with an increase in the rate of assessments, such action terminated the contract, and there can be no recovery on the policy on his subsequent death, regardless of the question of the legality of the company’s action in increasing the rate of assessment.</p>

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

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Exemptions—Homestead.</p> <p>Under Bankruptcy Act 1898, § 70, providing that a trustee in bankruptcy shall be vested with the title of the bankrupt to his property, except as r,o “property which is exempt,” land acquired by the bankrupt under the United States homestead law cannot be subjected, in the bankruptcy proceedings, to the payment of any debt contracted by him before the issuance of the patent for such land, it being exempt as to all such debts by the terms of the homestead act {Rev. St. § 2298).</p> <p>2. Same — Growino Crops.</p> <p>Crops growing upon the homestead of a voluntary bankrupt at the time of his adjudication are not exempt, but will pass to his trustee in bankruptcy for the- benefit of the creditors.</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p> <p>This was a petition by a creditor of the bankrupt, exhibiting a chattel mortgage given by the bankrupt to secure a promissory note, covering a part of the stock in trade of the bankrupt. The chattels affected were in the possession of the trustee in bankruptcy, as assets of the estate. The petition prayed for leave to take possession of the mortgaged property and sell the same for the purpose of satisfying said note. The petition in bankruptcy was filed after the maturity of the mortgage, and before it was recorded. Possession was never taken or attempted to be taken by the mortgagee. The trustee, by his attorney, filed a demurrer to the petition, alleging as grounds of demurrer that, by reason of the failure to record the mortgage and take possession thereunder at maturity, the same was void as against the trustee in bankruptcy and the general creditors of the bankrupt. Mills’ Ann. St. Colo. §§ 2027, 2028. It appeared that the mortgage was given within four months prior to the filing of the petition in bankruptcy. But it was conceded on the argument of the case before the referee that it was given in exchange for other security, and was therefore not an illegal preference. It was also conceded that the mortgage was valid as between the parties thereto, and that the transaction was free from any fraudulent intent on their part.</p>

<p>In Bankruptcy. On motion to confirm composition.</p> <p>At the argument it was conceded that the accepting creditors did not represent a majority in number and amount of all the creditors whose claims have been allowed, but only such a majority of those whose claims were allowed at the first meeting of creditors. At the date of the argument, September 19th, not less than 30 creditors had proved their debts aggregating $8,554, and but 12 or 13 creditors representing $4,210 had signed the composition agreement. The claims of Holmes Eider. the father of the bankrupt, for $2,600, and of his mother-in-law for $440. are included in the aboye amount of $4,240. The referee. who has made a most careful and exhaustive return upon the law and fads, reports as follows: ‘"At that session of April loth the bankrupt was examined by his creditors. ⅞ ⅞ * After such examination and partly during the session of the meeting, but not as a part of the proceedings thereof, tiie bankrupt presented the proposed written composition herein lo 11 of the 45 auditors in attendance, whose claims aggregated §3,745.44 of the $4,089.02 proved and allowed at that time, all of whom accepted the composition in writing at rhat, timo and place by instrument dated that day.” It does not appear that the, paper was presented to the remaining four creditors who had proved their debts. It was not presented to the general creditors at all and they had no formal information that a composition was on foot, except the notice that it would he presented to the court for confirmation. The composition proposed was to pay 30 per cent., one-third in cash, one-third in four months and one-tliird in six months. The deferred payments were to be evidenced by the notes of the bankrupt indorsed by his father. There is a marked dispute as to the value of the bankrupt’s estate, the contesting creditors insisting that it will pay much more than 30 per cent. The referee recognizes the possibility that this contention is well founded, but is of the opinion “that if ¡ho composition could be paid wholly in cash and without any part thereof being deferred, the creditors will realize more from a confirmation thereof than they will to hare the estate administered in bankruptcy.” Owing to the long delay occasioned by the contest the notes originally deposited are not now available as some of them have already become due. The amount deposited by the bankrupt for costs is also Inadequate. The financial responsibility of Holmes Elder is assailed, lmt the referee finds that he is worth from $7,000 to $8,000 over and above his present liabilities.</p>

<p>In Bankruptcy. On application to expunge proof of debt filed by Holmes Rider, a creditor.</p>

<p>1. Bankruptcy — Acts of Bankrupto Giving- Preference.</p> <p>Creditors filing a petition in involuntary bankruptcy against their debtor, alleging, as an act of bankruptcy, that he has transferred property with intent to give a preference, must assume the burden of proving the transfer of property, the debtor’s intent to prefer a creditor, and his insolvency at the date of the transfer, except (as to the last requirement) when the respondent fails to produce his books and papers and submit to an examination, thereby incurring the obligation of proving his own solvency.</p> <p>2. Same — Intent of Parties.</p> <p>Where .a transfer of property by an insolvent debtor with intent to prefer a creditor is made the basis of a petition in involuntary bankruptcy against him, the intent of the debtor is alone material. It is not necessary to show the intent with which the creditor received the transfer of property, nor that he had reasonable cause to believe a preference was intended.</p> <p>8. Same — Presumption of. Intent.</p> <p>Where a petition in involuntary bankruptcy charges the debtor with having transferred property with intent to give a preference, his intent to prefer may be presumed from the fact of his having made a transfer of a large part of his property, while insolvent, to a single creditor; and when this is shown the burden is on the debtor to show that he was ignorant of his insolvency, and had reason to believe he could pay his debts in full.</p> <p>4. Same — Buff bring or Permitting Preference.</p> <p>Upon a petition in involuntary bankruptcy under Bankr. Act 1898, § 3, subd. 3, the petitioning creditors must assume the burden of proving that a preference was obtained by a creditor through legal proceedings; that the debtor suffered or permitted the preference, and did. not vacate or discharge it at least five days before a sale or final disposition of the property affected; and that he was insolvent at the time the preference was oblained. Proof that he was insolvent at the time of filing the petition is insufficient.</p> <p>5. Same — Co-operation of Debtor.</p> <p>In order to commit an act of bankruptcy by suffering or permitting a creditor to obtain a preference through legal proceedings against him, it is not necessary that the debtor should do any affirmative act. It is enough if he remains passive and supine, and allows his property to be taken by one creditor at the expense of tbe others.</p> <p>6. Same — “Legal Proceedings. ”</p> <p>In Bankr. Act 1898, § 3, subd. 3, providing that it shall be an act of bankruptcy if an insolvent debtor shall suffer or permit a creditor to obtain a preference through “legal proceedings,” the words quoted mean any proceeding in a court of ins Lice, interlocutory or final, by which the property of the debtor is seized and diverted from liis general creditors,</p> <p>7. Same — Time of Piling Petition.</p> <p>Under the provision of the bankruptcy act that it shall be an act of bankruptcy if a debtor, who has suffered a creditor to gain a preference through legal proceedings, does not vacate the preference “at least five days before a sale or final disposition of the property affected,” creditors who seek to have him adjudged bankrupt on this ground need not wait until a sale has taken place. If the debtor, five days before the advertised day of calc, has not discharged the preference, creditors may then file a petition against him, and, on a proper showing, have the sale enjoined.</p>

<p>1. Bankruptcy — Attorneys’ Fees in Voluntary Oases.</p> <p>Under Bankruptcy Act 1898, § 64, subd. b, par. 3, tbe attorney of a voluntary bankrupt may be allowed a fee, payable out of the estate, for such professional services as were necessary to enable the bankrupt to bring his case properly before the court, secure an adjudication and reference, surrender his estate, and perform his' duties 'for the benefit of creditors, and receive his discharge if entitled to it. The fee is not necessarily to be restricted to such services as were specially beneficial to the estate, or rendered primarily in its interest.</p> <p>2. Same — Service? of Council.</p> <p>Feos allowed out of an estate in bankruptcy for services rendered to the bankrupt as counsel should be confined to services rendered during the bankruptcy proceeding proper, excluding previous consultations or advice. and should not include compensation for any unnecessary attendance as counsel at examinations or other hearings, nor for services rendered to the bankrupt in litigation over the question of his discharge, unless where such aid to the bankrupt became necessary without any fault or misconduct on his part.</p> <p>& Same — Amount of Allowance.</p> <p>In simple cases of voluntary -bankruptcy, with small assets and few creditors, and no opposition running into substantial litigation, $30 will be a reasonable fee to be allowed to the bankrupt’s attorney for professional services rendered up to the application for discharge, with a docket fee of $20 for procuring the discharge, when there is no substantial opposition to its being granted. This allowance may be increased when the assets of the estate are largo, or its condition involved, or creditors very numerous, or the proceedings complicated, and still further increased in contested cases.</p>

<p>In Bankruptcy. On petition for a rehearing.</p>

In Bankruptcy. The referee certifies the following findings of fact and conclusions of law for review: “That on the 12th day of October. 1898, J. Haywood Sawyer having on deposit with the bank of Guirkin & Co. the sum of $1,302.70, the firm of Guirkin & Go., then doing a general banking business, and desiring to obtain a loan of $3,000 or more, made application to said Sawyer for a loan of such amount; that G. W. Oobb, a member of the firm of Guirkin & Go., was informed by…

In Bankruptcy. Hearing on objections to questions propounded by an attorney representing creditors to the wife of tbe bankrupt, on her examination as a witness in tbe bankruptcy proceedings.

<p>Bankruptcy — Homestead Exemption — Bights of Mortgagee.</p> <p>When a mortgage, recognized as valid in the bankruptcy proceedings, covers an undivided fractional part of the real estate out of which the bankrupt claims his homestead exemption, the court will not order the trustee to partition the land as between the bankrupt and the mortgagee, and set apart to the former a designated portion, to be held by him a& his homestead in severalty and free from the mortgage, as this would change, and might impair, the security of the mortgagee. But the bankrupt may apply for an order to sell portions of the land not actually occupied as a homestead, and apply the proceeds in payment of the mortgage.</p>

In Bankruptcy. The referee, after hearing the evidence, made findings adverse to the petitioning creditors; and, without opposition on their part, an order dismissing the proceedings was, signed by the judge at chambers, no notice of the proposed dismissal having been given to other creditors.

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

<p>Action to recover a penalty under the provisions of the internal revenue law of June 13,1898 (Schedule A, “Stamp Taxes”). Heard on demurrer to complaint. (</p>

<p>1. Criminal Law — Offenses against United States.</p> <p>While criminal offenses against the United States are wholly statutory, and indictments therefor must find their warrant in the provision of some statute, the fact that an act of congress creating an offense— such as the defacement or removal of revenue stamps or marks or brands— delegates to an administrative department of the government the duty of designing and preparing such stamps or prescribing such marks and brands, and making regulations governing their use, does not render their removal or defacement, when used in accordance with such regulations, any the less a statutory offense.</p> <p>2. Indictment — Pleading Departmental Regulations.</p> <p>Regulations made by an executive department in pursuance of authority delegated by congress have the force of law, and the courts will take judicial notice of tlieir existence and provisions; hence an indictment charging a violation of such a regulation, which is made an offense by statute, need not set out such regulation, but is sufficient if it avers that an act done in pursuance of such regulation was done under the requirements of law.</p> <p>8. Same — binrs'iciENcy—Removing Brands from Oleomargarine.</p> <p>The act of August 2, 1886 (21 Stnt. c. 810), imposing a tax upon oleomargarine, and regulating its manufacture, sale, importation, and exportation, requires all oleomargarine to be put up in prescribed packages, and marked, stamped, and branded as the commissioner of internal revenue, with the approval of the secretary of the treasury, shall prescribe. It also makes it a criminal offense for any person to “willfully remove or deface, the stamps, marks or brands on packages containing oleomargarine taxed as provided herein.” In pursuance of the authority so given, regulations were made by the commissioner prescribing the marks and brands to be used on sucb packages, and (lie manner of their use. Meld, that an indictment charging that a person, at a place and time stated, did “knowingly, willfully. unlawfully, and fraudulently remove a certain brand from a certain package then and there containing oleomargarine, to wit, sixty .pounds of oleomargarine, to wit, the word ‘Oleomargarine,’ which was then and there required, and ivas then and there, under the requirements of law, branded upon the aforesaid package, then and there containing oleomargarine as aforesaid, contrary,” etc., sufficiently charged a,n offense under the statute.</p>

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

<p>In Equity. On application for preliminary, injunction.</p>

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

<p>In Admiralty.' Libel against the British steamship Anaces to recover for personal injuries received by libelant while employed by stevedores in loading the ship.</p>

In Admiralty. Cross libels by tbe steam tug Genevieve and the propeller Vulcan to recover damages for collision. On final hearing.

<p>JURISDICTION OF FEDERAL COURTS — JURISDICTIONAL AMOUNT — JOINDER OF COMPLAINANTS.</p> <p>Tinder the settled rule that distinct demands or liabilities cannot be aggregated lor Die purpose of making up the amount necessary to give jurisdiction, although such rights or liabilities arise out of the same transaction, the owners in severalty of lots abutting on a city street cannot by joining as complainants maintain a suit in a federal court to enjoin the city from making an assessment against such lots, where the assessment against the properly of no one complainant will equal $2,000; and the rule is the 'same whether the assessment has been levied, or is merely threatened.1</p>

<p>In Equity. This was a suit in equity for the foreclosure of a mortgage, the defense being a plea of usury.</p>

<p>1. Foreclosure or Mortgages — Mode or Conveying Title — Powers or Federal Courts.</p> <p>The established general practice in this country, in judicial sales upon foreclosure, is to direct sale to be made by a master named In the decree, and, when the sale upon report is confirmed, to order a conveyance of the property by the master to be delivered to the purchaser; and courts of the Knifed States, in adopting such practice, are not restricted by the maxim that jurisdiction in equity is ordinarily exercised in personam, and their power confined to the ordering of a conveyance by the parties, a foreclosure suit being substantially a proceeding in rern.1</p> <p>2. Same — Adoption op State Practice.</p> <p>In a suit for the foreclosure of a mortgage upon real estate situated within the jurisdiction of the court, it is the right and within the power of a circuit court of the United States, if not its duty, to conform to any statutes of the state regulating the remedy for the enforcement of the mortgage contract.2</p>

<p>1. Insolvent Corporations — Secret Preference oe Creditors.</p> <p>The keeping secret of an arrangement between an insolvent corporation and creditors by which the latter were put in control oí the corporation, and were given judgment notes to secure them a preference, for the purpose of enabling the corporation to continue in business, with the knowledge that such continuance necessarily involved the obtaining of new credits by the corporation, which could not be obtained if the facts Avere known, constitutes a fraud on those Avho were thus induced to become creditors, although there was no specific intention to defraud them, and the parties may have believed it possible for the corporation to eventually pay in full.</p> <p>2. Same — Effect of Fraudulent Preference.</p> <p>A commercial corporation, being in financial difficulty and largely indebted, made an arrangement Avith its two largest creditors by which it borrowed from them $50,000, and gave them judgment notes covering such sum and its prior indebtedness to them. As a part of the same arrangement, its hoard of directors was reorganized by placing ihereon a majority of persons nominated by such creditors and having no interest in its business, and its by-laws were amended so as to require action of the directors to authorize the giving of further judgment notes. 11 was agreed that the new directors should not interfere with the business of the corporation, the sole purpose of their appointment being to prevent preferences to other creditors, and the entire arrangement Avas kept secret to enable the corporation to continue its business. The business was continued for six months, when the corporation suspended, having been in fact insolvent when the arrangement was made. During this time some of the indebtedness was paid off, and new indebtedness to the same and other creditors contracted. Meld that, although the laws of the state permitted the preference of creditors by an insolvent, such transaction constituted a fraud in fact on the general creditors, which not only rendered the preferences given by the judgment notes invalid, but precluded the creditors so preferred from sharing with the other creditors in the distribution of the assets of the corporation.</p> <p>3. Same.</p> <p>A bank, being an unsecured creditor of an insolvent corporation, which was still a going concern, but was known to be about to suspend business, advanced a further sum to the corporation, with knowledge that it was to be used to pay claims in favor of the managing officers of the corporation, and, in consideration of such advance, received judgment notes of the corporation covering its entire claim; and the bills and accounts receivable of the corporation were also assigned to another preferred creditor, who, as a part of the same arrangement, entered into an agreement with the bank to divide pro rata all the proceeds of their respective demands. Held, that the fraudulent preference of the managing officers of the corporation rendered the entire transaction fraudulent and invalid as against the other creditors.</p> <p>4. Same.</p> <p>Where certain creditors of an insolvent corporation secured preferences by an arrangement which was fraudulent as to other creditors, and for that reason deprived them of the right to share with such other creditors in the assets of the corporation, a third preferred creditor who became a party to the fraudulent transaction by making an agreement to share with them pro rata the proceeds of all collections made by either on their claims is equally debarred by the fraud, and his claim will be postponed to those of the general creditors.</p> <p>Brown, Circuit Justice, dissenting.</p>

<p>Appeal from Ihe Circuit Court of the United Slates for the District of Indiana.</p> <p>The appellant, the Terre Haute & Logansport Railway Company, is the purchaser at foreclosure sale, through Joshua Twing Brooks, of the' property of the Terre Haute & Logansport Railway Company, and as such intervenes in the proceedings for distribution of funds in the hands of the receiver, to procure payment out of a so-called “Logansport Fund” of five-sixths of an installment of interest on a prior mortgage and two-thirds of the taxes, which were liens against the property at date of sale, but-became due after such díate. The fund referred to was set apart by the order of court entered in the .primary cause by which a receiver was appointed of this and other lines operated by the Indianapolis & Terre Haute Railroad Company, as hereinafter stated. The decree from which the appeal is brought was entered after confirmation of the sale under the foreclosure decree, and denies the application of the appellant for sugh payment of interest and taxes, and directs that the fund be paid over to the complainant, to be applied on the bonds and interest "in suit, except the sum of $20,000, retained for further distribution, and the sum of $38,600, retained to await the result of this appeal.</p> <p>The following are the material recitals and findings in the decree: “Comes now the complainant, by his solicitors, Miller & Elam; and the defendants, the Terre Haute & Indianapolis Railroad Company and the Terre Haute & Logansport Railway Company, come by their solicitor, S. O. Pickens, Esq. Comes also the receiver, Yolney T. Malott, by John G. Williams, Esq., his solicitor. And the court having considered the petition of the complainant for distribution of a part of the moneys on hand in the Logansport fund and in the registry of the court to be applied in payment of the bonds and interest, and the court having also considered the answer of Terre Haute & Logansport Railway Company to said petition, and the prayer in said answer for the application of a portion of said moneys in the Logansport fund to the payment of two-thirds of the taxes on the property so sold under the decree of this court for the year 1898, when the same shall mature, and also a further portion of the same to the payment of five-sixths of the interest coupons maturing January 1, 1899, on the first mortgage bonds of said property, and the court having also considered the report of the receiver touching the subject-matter, as well as the record in this case, doth now find, order, and decree: First. The complainant is entitled, as between parties in this cause, to have the moneys remaining in said Logansport fund applied to the payment of the bonds and interest secured by the mortgage foreclosed, except that it is necessary that there be retained in the hands of the receiver of the moneys in said Logansport fund the sum of twenty thousand dollars until the further order of this court. Second. Neither said taxes for the year 1898, noi’ any part'thereof, nor the interest accrued on said first mortgage bonds since July 1, 1898, n<Jr any part thereof, are prior in equity to the bonds and interest of the complainant, but the purchaser of the property sold therein took the same subject to and charged with the payment of said taxes and interest on said first mortgage bonds, and the defendant Terre Haute & Logansport Railway Company is not entitled to have any part of said interest or taxes paid or provided’ for out of the moneys in said Logansport fund. Third. The complainant is entitled to have presently paid over to him for application to the payment of said bonds and interest all of thq moneys in said Logansport fund except said sum of twenty thousand dollars, and is also entitled to have presently paid over to him all moneys derived from the sale of said property in the registry of the court after the costs, expenses, etc., and after deducting the amount necessary to pay the proper pro rata on the five bonds not in the hands of the bondholders’ committee.”</p> <p>The facts and proceedings upon which the claims rest are substantially as follows: On November 1, 1879, the Terre Haute & Logansport Railway Company, owning a line extending between Rockville and Logansport, and having a leased line from Rockville to Terre Haute, executed a mortgage to Benjamin Harrison, trustee, to secure bonds to the amount of $500,000, which constituted a first lien upon all its property. On November 22, 1879, it entered into a contract of lease to the Terre Haute & Indianapolis Railroad Company for a term of 99 years, under which the latter company entered into possession of the lines and property. The contract provided that the lessee company was to operate the lines, “and, after retaining seventy-five per cent, of the gross receipts from all traffic moved over said line or business done thereon” for its own use, it would “appropriate the remaining 25 per cent, as follows, to wit: . First. To Hie payment of taxes assessed against the property held and operated raider this contract. Second. To the payment of the interest as ir falls due on the lirst mortgage bonds of said party of the second part, being an issue of bonds to the amount, of five hundred thousand dollars, bearing interest at the rate of six ((>) per centum per annum, payable on the 1st day of January, A. D. 1910. and secured by a deed of trust, conveying to Benjamin Harrison, of Indianapolis. Indiana, as trustee, the line of railroad and property of the party of the lirst part hereinbefore described. Third. To the payment of rental accruing to the Evansville & Terre Haute Company for the use of its said line of railroad extending from Terre Haute, Indiana, to Rock-ville, Indiana. Fourth. The surplus, if any, to be paid annually to said parly of the lirst part.” And it was further stipulated that, in the event iho 25 per cent, so appropriated proved “insufficient to pay the taxes, interest, and rental aforesaid, and propter cost of maintaining the corporate organization" of the lessor company, the deficit should he advanced hy the lessee company to make such payments, and the amount so advanced become a charge to he repaid by the lessor. Subsequently it was determined to build an extension of the railroad to South Bend, and for that purpose (he lessor company, on January 1, 1885, made a further mortgage, or so-called “extension mortgage,” to the same trustee, to secure bonds to the amount of $1 ,000,000, which constituted a first mortgage on the ext,(aided portion and a second mortgage on the pre-existing- property. On .Tune 21, 1883, a new lease was entered into with the Terre Haute & Indianapolis Company, which included the extension, with like provision as above recited, except that interest on the bonds secured by this "extension mortgage” was made an additional charge upon the 25 per cent, of gross earnings, and to be advanced by the lessee in case of deficit. The iossce company further guarantied (lie payment of principal and interest by an indorsement on the bonds respectively secured by each mortgage. The terms of this lease and of the first lease above mentioned are set forth in the report of Railroad Co. v. Harrison, 60 TJ. S. App. 265, 32 O. C. A. 130, and 88 Fed. 913.</p> <p>The Terre Haute <fc Indianapolis Railroad Company became involved in operating leases respecting other line's as well, and in November, 1896, a bill was exhibited against it by Mark T. Cox and others, in the court below, for specific performance of a lease made with the Torre Haute & Peoria Railroad Company; and on November 13, 1896, Volnoy T. Malott was appointed receiver of all the lines owned or leased by the defendant company. The order provided that the receiver should “keep separate and distinct accounts showing- the amounts of the gross earnings derived from the operation” of each of the leased lines, and, among other provisions, that “twenty-five per cent, of The gross earnings derived from the operation of the Terre Haute & Logansport Railroad Company” be “set apart and held by the receiver as a separate and distinct fund,” in separate bank account, specially designated to indicate the property from which it was derived, “and that no part of said percentages so set apart and deposited be paid out or applied except on the special order of the court,” made upon notice to all parties appearing in the cause, fi’he property of the Terre Haute & Logansport Railroad Company being thus in the custody of the court, the appellee, on leave of the court, filed his bill of complaint on December 30, 1896. As originally framed, it sought to enforce the liability of the Terre Haute & Indianapolis Company under the lease and guaranty, but that claim was withdrawn, and by amendment The hill was made one for foreclosure of the second or “extension mortgage” for default in payment of interest. On July 22, 1897, a decree of foreclosure and sale was entered, which was affirmed on appeal. Railroad Co. v. Harrison, supra. In the decree it was provided: “That this decree anil sale are made without prejudice to, and with the full reservation of, the rights and interests of Benjamin Harrison, as trustee, in and of all holders of bonds and coupons under the said mortgage executed by said Terre Haute & Logans-port Railroad Company to Benjamin Harrison, trustee, of date November 1, 1879.” Before the sale, on September 26, 1898, on petition filed by appellee, an order was entered by the court, which reads as follows: “And comes also the receiver, Yolney T. Malott, in charge of the property covered by the mortgage, which is the subject-matter of this suit, by John 6. Williams, his solicitor, and comes also the Terre Haute & Indianapolis Railroad Company, by S. O. Pickens, its solicitor, and it appearing to the court that a question has arisen whether the fund in the hands of the receiver known as the ‘Logansport Fund’ would pass to the purchaser at the foreclosure sale under the decree herein: Xow, therefore, to avoid any such question, it is by the court ordered that said fund shall not so pass, but shall be reserved and held by the receiver for disposition under the orders of the court, first, to discharge any liabilities against the same which may be adjudged prior in equity to the bonds and interest; the balance to go, in case of a deficiency in the proceeds of the sale, to pay the bonds and interest in full, to liquidate such deficiency, or, if there is no such deficiency, then said fund, or so much thereof as may remain, to be-paid to the party next in equity under the order of the court. And the master is directed to read this order in connection with the notice of sale before receiving any bids at the foreclosure sale.” And the notice of sale by the master states as follows: “Provided, that said sale of said property shall be made without prejudice to, and with the full reservation of, the-rights and interests of Benjamin Harrison, as trustee, in and of all holders of bonds and coupons under a certain other and older mortgage upon said property, or a portion thereof, by the said Terre Haute'& Logansport Railroad Company to Benjamin Harrison, trustee, bearing date November 1, 1879, as security for the payment of bonds of said company to the amount of $500,-000, with the unpaid interest thereon at six per cent, per annum since July 1, 1898; said last-recited mortgage being set out in full in the bill of complaint in said suit.” On November 18, 1898, the property was sold for $1,060,-000 to Joshua Twing Brooks, his bid for that amount exceeding the offer by the bondholders’ committee. The purchase was completed on November 28, *1888, and deed executed to the appellant, in accordance with the purchaser’s direction, December 1, 1898. An order confirming the sale was' thereupon entered, and possession of the property was delivered to the appellant, dating from midnight, November 30, 1898.</p> <p>The Logansport fund in the hands of the receiver amounted approximately to the sum oí $137,000 at the date of sale, and the interest which had accrued on the first mortgage up to July 1, 1898, and the taxes for the years 1896 and 1897 had been previously discharged by the receiver out of such fund, pursuant to orders of the court. The unpaid charges in question are: (1) Interest from July 1, 1898, on such prior mortgage, of which an installment of $15,000 became due January 1,1899; and (2) the taxes for 1S98, — about $38,000, — assessed pursuant to the statute of Indiana, by which a lien was declared from April 1, 1898, but the provision for collection directed that the tax roll,, be delivered for that purpose to the treasurer “on or before the last day of December in each year.” On December 5, 1898, the appellee filed his petition for application of such fund upon the deficiency remaining on the foreclosed bonds and mortgage, and the appellant obtained leave to be made a party defendant, and answered therein, and on the hearing the decree was entered from which appeal is brought.</p>

<p>1. Ciiattel Mortgage — Replevin by Mortgagee against Tiurd Person— Defenses.</p> <p>In an action of replevin by a mortgagee to recover the mortgaged property from an execution creditor of the mortgagor, the defendant is entitled to show that the property was in fact owned by the mortgagor’s wife, who did not know of, or assent to, the mortgage, but who has since relinquished title to the purchaser at execution sale, in the absence of evidence tending to show the wife’s acquiescence' in the mortgage, or other facts which would create an estoppel, against her to dispute its validity, and mere delay on her part in asserting her. rights is not sufficient to create such estoppel, unless it is also shown that she had knowledge of the mortgage.</p> <p>2. Appeal — Judgment on Reversal — Determining Question not Submitted to Jury.</p> <p>On review of a judgment in favor of plaintiff in an action of replevin, who claimed under a chattel mortgage, it is error for the court, on reversal, to render judgment for defendant on the ground that plaintiff’s mortgage is void for fraud in fact, where no such issue was made by the pleadings or submitted to the jury on the trial.</p> <p>3. Chattel Mortgage — Validity—Effect of Contemporaneous Power of Attorney.</p> <p>The execution contemporaneously with a chattel mortgage of an instrument by which the mortgagor authorized the mortgagee, as his attorney in fact, to collect certain notes, and dispose of certain property covered by the mortgage, hut which contained no provision as to the disposition of the proceeds, does not transform the mortgage into an assignment, which would he void under the laws of the Indian Territory, because no inventory or bond was required from the assignee.</p>

<p>Removal of Causes — Time for Application — South Carolina Statute.</p> <p>ITiilor Code S. C, S FÍO, requiring notice 1o a nonresident defendant to be published “at least once a -week lor six weeks,” the service is not completed, for the purpose of determining the time when the defendant is required to answer, within the removal act, until the expiration of six weeks from the date of iirst publication, although the last publication is prior to that time.</p>

Action by Catharine A. Coughlin, by James Coughlin, as her father and next friend, against Ferdinand Blumenthal and another, trading as F. Blumenthal & Co. Defendants demur to the declaration.

<p>Master aku Servant — Injuries to Servant — Action—Pleading—Demurrer.</p> <p>An averment in a declaration, in an action to recover damages for personal injuries resulting from negligence, that the defendants negligently omitted to provide the plaintiff, who was their employee, with safe and suitable machinery and appliances for raising an anchor and chain of a certain dredge in the course of their business, whereby one of the legs of the plaintiff was caught by the anchor chain and injured, is demurrable for want of particularity.</p> <p>(Syllabus by the Court.)</p>

<p>CotrNTEiua.Anr — Joint Eight or Recovery — Minnesota Statute.</p> <p>In an action on notes given by defendant to plaintiff for the purchase price of a part inferest in a steamer, the remaining interest being purchased at the same time by others, who gave similar notes, all of which were secured by mortgage on the vessel, the defendant cannot plead the alleged wrongful seizure and conversion of the vessel by plaintiff, and a pretended and collusive sale of the same under the mortgage, as a counterclaim, under Gen. St. Minn. § 5237, subd. 1, because he cannot recover on such claim without the joinder of his co-tenants; but he may plead such facts as defensive matter going to the equitable discharge of his liability on the notes, either in full or pro tanto.</p>

<p>Removal of Causes — Action against Federal Receivers.</p> <p>An action against receivers appointed by a federal court is one per se arising under the laws of the United States, and when brought id a state court is removable, under the removal acts, whore (lie jurisdictional amount is involved, regardless of the citizenship of the parties. The right of removal in such case is not affected by the provision of the judiciary act (23 Slat. 430) permitting such receivers to be sued in state courts without first obtaining leave of the court which appointed tliem.1</p>

This is an action in tort against a railroad company by a person who, after taking passage, was forcibly ejected from a passenger train by the conductor. There was a judgment in favor of the plaintiff below for $1,000 (90 Fed. 99). from which the railroad company has sued out this writ of error.

Petition for Review of a Decision of tbe District Court of tbe United States for tbe Western District of Wisconsin, in Bankruptcy.

<p>In Bankruptcy. On proceedings to commit the bankrupt to jail for Ms failure to comply with certain orders of the referee in bankruptcy touching his estate.</p>

<p>1. BANKRUPTCY — Secured Creditors — Sale op Mortgaged Property by Trustee.</p> <p>Where it appears that it would be for tlie interest of creditors at large of the bankrupt to have real estate which is incumbered by a mortgage taken by the trustee, and administered with the balance of the estate, preserving the lien of the secured creditor, the court of bankruptcy has jurisdiction to order the trustee to take possession of such property, and to-enjoin the secured creditor and others from selling it, or otherwise interfering with it.</p> <p>2. Same — Review op Rkperee’s Findings.</p> <p>When a referee in bankruptcy, upon examination of witnesses, has decided that it is for the interest of an estate in bankruptcy that real property subject to a mortgage should be taken by the trustee, and sold In the bankruptcy proceedings, rather than sold by the secured creditor on foreclosure pf his lien, the judge will not reverse his decision on appeal unless it is manifestly erroneous.</p>

<p>In Bankruptcy.</p>

<p>Involuntary Bankruptcy — Issue of Insolvency — Exempt Puoperty as Assets.</p> <p>On the trial oí a contested petition in involuntary bankruptcy, in determining the issue as to the solvency or insolvency of the respondent, within the meaning of Bahkr. Act 1898, § 1, subd. 15, all the property which he owns is to be reckoned in computing the amount of his assets, except sucli as he may have transferred or concealed in fraud of creditors, but not excluding property which is exempt from execution by the laws of the state.</p>

<p>In Bankruptcy.</p> <p>Appeal by Simon Wiener, as a creditor of the bankrupt corporation, from an order of the referee in bankruptcy disallowing his claim against the bankrupt. One Albert Wiener, being a subscriber for capiial stock in the corporation, paid into its treasury one-half the par value of the stock subscribed for; and about a month later he received from the corporation a sealed instrument in the form of a nonnegotiable promissory note, payable to himself, for the same amount, which he assigned to his brother, the present claimant. The referee held that the note was without consideration, and was not a provable debt against the corporation in bankruptcy, in the hands of an assignee.</p>

<p>1. Bankruptcy — Commissions of Trustees.</p> <p>Bankr. Act'lS98, § 48a, providing that trustees in bankruptcy shall be compensated for their services by commissions, not exceeding a certain percentage, on the sums paid as dividends and commissions by the estates administered, is mandatory, and must be followed; and a court of bankruptcy has no authority to allow to a trustee a lumping sum in lieu of commissions calculated as the act directs.</p> <p>S. Same — Services as A&ent of Court.</p> <p>Where, at the time of the bankrupt’s adjudication, its property was in the hands of a sheriff under an execution levied, and the court of bankruptcy ordered the marshal to take the property, and .appointed an agent to make sale thereof, who took possession, and advertised the sale, and was thereafter elected trustee of the bankrupt’s estate, and then made the sale, held, that he was not entitled to compensation for Services rendered, as agent of the court, in addition to the commissions to be- allowed him as trustee.</p> <p>3. Same-Priority of Claims — Workmen and Servants.</p> <p>The president of a business corporation, who has supreme authority in managing and directing its affairs, and receives a salary of $700 per annum tor his services in that capacity, is not a “workman, clerk, or servant” of the corporation, within the meaning of Bankr. Act 1898, § 64b, giving priority of payment out of bankrupt estates to wages due to such persons.</p> <p>4. Same-Attorneys’ Pees.</p> <p>in a case of involuntary bankruptcy, where all the bankrupt’s property was taken from the possession of a sheriff, and sold under orders of the court of bankruptcy, and thereafter there was no litigation directly interest big lire bankrupt, or in which he was actively engaged, so that the bankrupt’s attorney had no duties to perform except to fill out the schedules, and give legal advice, heUI, that an allowance of $75 to such attorney was excessive, and should be reduced to $25.</p> <p>5. Same — Rekbree’s Expense Account — Clerk Hire.</p> <p>A rel'e-ree in bankruptcy is not entitled to charge, as a part of his expense account against an estate administered before him, the cost of “clerical aid.” There is no authority for the hire of a clerk by the referee.</p> <p>6. Same -Kick to Attorney ok Trustee.</p> <p>The court of bankruptcy, in its discretion, may refuse to allow a fee to the attorneys for the trustee in bankruptcy, when the same attorneys have been allowed a fee as attorneys for the petitioning creditors, which covers any services rendered to the trustee or the estate.</p>

<p>1. Bankruptcy — Arrest op Bankrupt on State Process — Release on Ha-beas Corpus.</p> <p>Where a bankrupt, having been arrested on civil process issuing from a state court, applies to a court of bankruptcy to be discharged from such arrest on habeas corpus, he cannot be released if the debt or claim on which the process issued is one which would not be affected by his discharge in bankruptcy. Although general order No. 30 authorizes his release if the debt or claim is one provable in bankruptcy, yet this rule must yield to the more restricted provisions of section 9 of the act, which regulates the subject</p> <p>2. Same.</p> <p>A judgment in a bastardy proceeding brought against the putative-father in the name of the state, and by the public prosecutor, according to the state law, adjudging him to pa.y a certain monthly sum to the mother of the child for its maintenance and education for the period of 10 years, and to secure such payment by a bond with sureties, is not such a debt as will be released by his discharge in bankruptcy; and hence, if he is arrested, during the bankruptcy proceedings, for failure to furnish the bond required, and committed, the court of bankruptcy will not set him at liberty on habeas corpus.</p>

<p>On Demurrer to Pleas in Abatement.</p>

<p>1. Constitution at. Law — Oleomargarine—Interstate Commerce.</p> <p>Oleomargarine is a lawful subject of commerce, anti a state statute (Act Minn. April 19, 1899, § 1C) which prohibits the sale of oleomargarine so colored as to resemble butter is unconstitutional and void in so far as it applies to a kale within the state of oleomargarine manufactured in another stale, and imported by the agent of the manufacturer, and sold by him in the original and unbroken packages of importation, stamped and marked as required by the act of congress of August 2. 188C (24 Slat. 209), the product being composed of the materials described in said act as constituting lawful oleomargarine of commerce.</p> <p>2. Habeas Corcus — Imruikonmknt under Yoid State Statute — Comity.</p> <p>A federal circuit court has jurisdiction to release on habeas corpus a person sentenced to imprisonment upon conviction in a state court of a violation of a penal statute of the state, which statute is void for conflict with'the constitution of the United States; but for-comity’s sake it will not exercise this power unless where large interests, affecting the business of many, or the rights of the public, are so involved that serious consequences would follow from the delay necessary to the prosecution of a writ of error, or unless the state court, in convicting the prisoner under the statute, has disregarded a decision of the United States supreme court upon the question at issue.</p>

<p>1. Federal and State Courts — Habeas Corpus — Discharge op State Prisoner i;y Fedebaxj Court. '</p> <p>The power given to the circuit and district courts of the United States by Rev. St § 733. to discharge from custody on habeas corpus one who is restrained of his liberty in viola lion of the constitution, although held under staie process to answer for a crime against the state, is a discretionary one, and one of groat delicacy, which should not be exercised in any case when suitable relief can be had through the regular procedure of the state tribunals.</p> <p>2. Same — Offense Committed at Soldiers’ Home.</p> <p>A person arrested by state authorities charged with the commission of a crime will not be discharged from custody by a federal court on habeas corpus, on the ground that the offense is charged to have been committed within the limits of grounds ceiled as a soldiers’ home, and over which the United States has exclusive jurisdiction.</p>

<p>In Equity. On exceptions to answer, and application for preliminary injunction.</p>

<p>Buit in equity by the Bperry Manufacturing Company against the J. L. Owens Company for infringement of a patent.</p>

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

<p>This was a suit in equity by the Duff Manufacturing Company against Arthur O. Norton for infringement of certain patents. On final hearing.</p>

The complainant brought its bill in equity in the circuit court for the Southern district of New York, which was founded upon the alleged infringement of claims 1, 3, 4, 5, and 6-of letters patent No. 538,001, dated April 23, 1895, issued 1o George Westinghouse, Jr., and of claims 3 and 5 of letters patent No. 382,032, dated May 1, 1888, and issued to Theron S. E. Dixon. Each patent was for improvements in air brakes for railroad cars.

<p>1. Patents--Invention.</p> <p>Where an. inventor has devised a machine or tool for doing work which previously had been done only by hand, and the utility of the device is at once recognized by the trade, a court will not declare the patent void for want of invention simply because the result accomplished may be effected by the modification of an old structure used for a different purpose.</p> <p>2. Same — Toon for Grinding Shok IIkels.</p> <p>The Buzzell patent, No. 317,022, for a tool for grinding and polishing the front of boot and shoe heels, discloses patentable invention, and was not anticipated by the Rogers patent, No. 227,839, for scouring the soles of boots and shoes.</p>

<p>Appé'al from tbe District Court of tbe United States for tbe Eastern District of Michigan.</p>

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