Volume 98 — Federal Reporter

<p>1. Removal os1 Causes — Separable Controversy.</p> <p>There can be no joint liability of a railroad company a.nd its employes for an injury alleged to have resulted from the failure of the company and of such employes to perform a duty imposed on the company alone by statute; and in an action to recover for such injury, commenced in a state court against both the company and such employds, the controversy is separable as to the defendants, and Hie cause may be removed by the railroad company, where it is a citizen of another state, and the other requisites for removal exist.1</p> <p>2. Same — Joinder op Dependants to Prevent Removal.</p> <p>In an action brought in a state court by a citizen of the state against a nonresident railroad company to recover for a personal injury, the joinder as defendants of certain employés of the company, who are citizens of the state, and against whom the facts alleged clearly constitute no cause of action, must be regarded by a federal court to which the cause would otherwise be removable as an attempted fraud upon its jurisdiction, which will not be permitted to defeat such right of removal.</p>

<p>.Removal of Causes — Certiorari—IIkjuts Claimed Under Internal T’ev-knuk Laws.</p> <p>Rev. St. § 613, authorizing the removal to a circuit court of the United States, by writ of certiorari, of any civil suit commenced in any state court against any officer appointed under or acting- by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, tide, or authority claimed by such officer or other person under any such law, is intended solely for the prolection of the agents of the government in the. administration and enforcement of its revenue laws, and its application is limited by its terms to suits against its officers, or those acting by their authority. An express company sued in a state court for refusing to accept goods tendered for transportation, as required by a state statute, cannot remove such suit into a federal court, by writ of certiorari, under such section, on the ground that its refusal to accept the goods was based on a right claimed by it to require the shipper to furnish or pay for the stamp required to be placed on the receipt by the revenue laws of the United States.</p>

<p>1. Equity Pleading — Disposition of Exceptions to Answer — Time for Pleading Further.</p> <p>Where a complainant files exceptions to the report of a master, which . sustains one exception to defendant’s answer but overrules others, the defendant is not required to answer further until such exceptions have been heard and disposed of by the court, so that he may know what further answer is required by the court’s decree.</p> <p>8. Same-Ref whence on Exceptions — Costs.</p> <p>Tlie costs of a reference to a master of exceptions to an answer may properly be equally divided, wliere but one of a number of exceptions was sustained, but the answer was plainly insufficient in the matter to which that one related.</p>

<p>1. Taxation — Suit to Enjoin Issuance of Tax Deed — Necessity of Tender</p> <p>'Where a state has provided a system of laws for the levy and collection of taxes, which includes the enforcement of taxes when delinquent by a sale of the property, it is essential to the efficiency of such system that a purchaser at a sale made thereunder should be protected in all the rights given him by the statute as fully as are the officers charged with the enforcement of the laws; hence where property was subject to taxation, was legally assessed, and the taxes thereon were legally levied, and it has been offered for sale and sold by the county for such taxes, the purchaser is not a mere volunteer, and the owner is no more entitled to maintain a suit in equity to enjoin the issuance to him of a deed on the ground of irregularity in the sale, without having tendered the amount of taxes legally due, together with the interest and penalty provided by statute, than he would be to maintain such a suit against the county or its officers to restrain a sale of the property.</p> <p>2. Same — Property in Possession of Receiver.</p> <p>The fact that real property sold by a county for delinquent taxes is in the possession of the receiver of a court, as a part of the assets of an insolvent corporation, does not afford any ground for enjoining the issuance to the purchaser of a tax deed therefor.</p>

<p>In Equity. On demurrer to bill.</p>

This was a suit in equity against two railroad companies, to enjoin the enforcement of a schedule of joint rates established by them, on the ground that such rates’ were unjust and unreasonable. On demurrer to bill.

These were consolidated suits in equity to set aside a patent, and to recover lands alleged to have been patented through an error of law.

<p>1. Per, uro Lands — Grastts to Southern Pacific Railroad.</p> <p>The decisions of the supreme court in the various suits between the United States and the Southern Pacific Railroad Company involving the right of the latter to lands in California witiiin the limits reserved under the grant to ihe Atlantic & Pacific Railroad Company must be regarded as having settled that the grant to the Atlantic & Pacific Company became effective, as to the lands between the Colorado river and San Buena-ventura, on Hie coast, on the filing and acceptance by tire land department in 1872 of the map of its route between such points, by relation as of the date of ilie grant, July 27, 18(50, and that all the lands within both the primary and indemnity limits of such grant were forfeited by the act of July (i, 18SG. and restored to the public domain; and hence as having conclusively determined, as between the parties and their privies, that the Southern Pacific Company did not acquire any of such lands under either its mam-line or branch-line grants.</p> <p>2. Same — Recovery of Lands Erroneously Patented — Act for Protection of Bona Firm Purchasers.</p> <p>Under Act March 2, 189(5, supplementing Act March 3, 1887, directing the bringing of suits for (lie recovery of lands erroneously certified or patented under railroad grants, by providing that no patent to any lands held by a bona fide purchaser should be annulled, and confirming Ihe title of such purchasers, all purchasers in good faith, and in the belief that they will obtain a good title from a railroad company of lands which have been patented to it, are protected, whether such patents were issued before or after the commencement of suit.</p>

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

On motion of defendants for an order that a plea in abatement filed in tbe state court before removal of tbe cause stand as a motion to quasb tbe service.

This suit was brought by the administrator of Eli M. Davis, deceased, against Robert B. E. Peirce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, to recover damages, under the statute of the state of Illinois, for the death of Eli M. Davis, alleged to have occurred through the negligence of the. receiver of the railroad, in failing to furnish proper and adequate machinery and appliances, and in furnishing improper and inadequate appliances, for use by…

This was an action in tbe trial court by an employs against an employer for personal injuries. In this court tbe position of tbe parties is reversed. The Kerr-Murray Manufacturing Company,, tbe defendant below, is tbe plaintiff in error here, and is seeking to reverse a judgment which was recovered against it at nisi prius.

This was an action to recover money paid to defendant, as the widow of Levi B. Davis, under the pension laws of the United States. Tried to the court without a jury.

The plaintiff in error, Jane Wiley Lloyd, was plaintiff below in an action of assumpsit founded on a certificate of membership and policy… Held: “that is the end of the case,” except the question whether there was an intemperate use of intoxicating liquors; that, even if the by-law is held valid, its application should be limited “to those cases where the insured could, by governing themselves in their conduct, avoid the results of the by-law,” and in such view plaintiff is…

Heard on motion by plaintiff ior judgment on tbe verdict and motion by defendant for judgment notwithstanding the verdict.

<p>Bonds— Uovernment Contractors — Action.</p> <p>A plaintiff cannot recover on a bond given by a contractor for government work under Act Aug. 13, 3894 (28 Stat. e. 280), on an allegation that such contractor is indebted to him for work and material supplied in the prosecution of the work, where the only evidence in support of such allegation is that plaintiff hired certain barges to a third person, to .whom they were charged, and shows no contract relation with defendant.</p>

<p>Bankruptcy — Landlord’s Libn — Waiver.</p> <p>Under the laws of Iowa, as construed by its courts, a landlord who takes from his tenant a. mortgage on the personalty used or kept on the demised premises, covering not only arrears of rent, but also other debts, such as for money loaned, for personal services, and the like, is deemed to have waived his statutory lien on such property for rent due, and he will not be entitled to enforce such a lien against the property in the hands of the tenant’s trustee in bankruptcy.</p>

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

<p>In Bankruptcy. On motion to dismiss petition in involuntary bankruptcy.</p>

<p>1. Bankruptcy — -Assets—Life Insurance Policy.</p> <p>A policy of insurance on tbe life of a bankrupt, having a cash surrender yalue payable to the bankrupt himself, or to his estate or personal representatives, passes to, and vests in, his trustee as assets of the estate in bankruptcy, subject to the right of the bankrupt to redeem the same by paying to the trustee its surrender yalue, notwithstanding that a statute of the state (Code Iowa, § 1805) provides that the proceeds of such policies shall be exempt from liability for the debts of the assured, and although section 6 of the bankruptcy act declares that “this act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws”; for the general language of section 6 is limited and restrained in this instance by the specific provision of section 70a, cl. 5, that such a policy “shall pass to the trustee as assets,” unless the bankrupt pays or secures to him its surrender value.</p> <p>2. Same. *</p> <p>A policy of insurance on the life of a bankrupt, payable to himself, his executors, administrators, or assigns, no other person having any interest in the policy or its proceeds, will vest in his trustee as assets of his estate, subject to the right of the bankrupt to redeem the same by paying or. securing to the trustee its cash surrender value.</p> <p>8. Same.</p> <p>. Where a wife holds a policy of insurance on the life of her husband, by the terms of which she is bound to pay the premiums and is entitled to receive the proceeds of the policy, such policy will become a part of the assets of her estate in bankruptcy, unless she secures or pays to her trustee its cash surrender value.</p> <p>4. Same.</p> <p>Where a policy of life insurance provides that the principal sum shall be paid to the assured himself at the end of a stipulated term of years, if he is then living, or to his wife, if he dies before the expiration of the term, its surrender value is payable to the assured, and the policy will pass to his trustee as assets in bankruptcy, unless redeemed by the bankrupt as provided in the statute.</p> <p>6 Same.</p> <p>A policy of insurance on the life of a bankrupt, payable to his wife, is her separate property, and not assets of his estate in bankruptcy.</p> <p>6. Same.</p> <p>Where a policy of life insurance, payable to the executors, administrators, or assigns of the assured, was by him assigned to his wife, by a writing duly executed and attached to the policy, before the enactment of the bankruptcy law, nothing appearing to impugn the good faith of the transaction, the wife is the beneficial owner of the policy, and it will not pass to the husband’s trustee in bankruptcy as assets of his estate.</p>

<p>1. Bankruptcy — Opposition to Discharge — Concealment of Assets — Evidence.</p> <p>On opposition to a bankrupt’s application for discharge, on the ground of his having concealed assets from his trustee, it appeared that he had been conducting a certain business under a. power of attorney from his wile, acting in all respects as if the business were his own, but that tlio stock in trade had been transferred to the wife two years before by itemized bills of sale, and that the. husband ha.d been insolvent for several years, and could not bold property in his own name. There was no evidence that the bankrupt had contributed any capital to the purchase of the business, but it was shown that the assets of his previous business were conveyed, at his failure, in liquidation of debts exceeding their vSlue. £feld, that the evidence was not sufficient to prove that the business in question belonged to the bankrupt.</p> <p>8. Same — Omission of Property from Schedule.</p> <p>The mere fact that a bankrupt omitted to list in his schedule of assets certain furniture which he had bought for his wife 26 years before, and which was regarded as her property, is not such a knowing and fraudulent concealment of property from his trustee in bankruptcy as will forfeit his right to a discharge.</p>

<p>1. Bankruptcy — Debts Kekeased by Discharge — Alimony.</p> <p>In Illinois, under the decisions of tlie courts of that state as to tlie nature of tbe obligation created by a decree awarding alimony to a divorced wife, arrears of sucb alimony, due from a bankrupt to his wife at the time of his adjudication in bankruptcy, constitute a debt provable against his estate, and such as will be released by his discharge in bankruptcy.</p> <p>2. Same — After-Accruing Alimony.</p> <p>As to alimony accruing- under such decree after the adjudication in bankruptcy, the court of bankruptcy will restrain any proceedings by the bankrupt’s wife in the state court looking to its collection, until the question of his discharge shall have been determined, in order that he may plead his discharge in the proceedings in the state court.</p>

<p>In Bankruptcy. On application for allowance of a fee to bankrupt’s attorney.</p>

<p>1. Bankruptcy — Preference—Chattel Mortgage.</p> <p>Where an insolvent debtor gives to one of bis creditors a chattel mortgage on his stock in trade, as security for a pre-existing debt then evidenced by a promissory note, and is adjudged bankrupt within four months thereafter, the transaction constitutes a preference, within the meaning of the bankruptcy law, and the creditor cannot enforce his security.</p> <p>2. Same — Security for Advances.</p> <p>Where a debtor, endeavoring- to save himself from failure in business, procures a loan of money, and at the same time gives a chattel mortgage as security therefor, which is duly recorded, it is not a preference, within the meaning of the bankruptcy law, though the debtor is insolvent, provided no fraud on creditors or on the act is intended.</p> <p>3. Same — Security Valid in Part.</p> <p>Where a debtor gives a chattel mortgage which shows on its face that it was given in part to secure a pre-existing debt, and in part to secure a new advance of money made at the same time with the mortgage, and there is no actual fraud in the transaction as to other creditors, or upon the bankruptcy act, the mortgagee will be entitled to enforce his security against the estate of the debtor in bankruptcy, to the extent of the money advanced when the mortgage was executed, although it is void as a preference as to the pre-existing debt.</p>

<p>In Bankruptcy. On demurrer of trustee in bankruptcy to petition of lien creditor.</p>

<p>1. Bankr uptoy — Exemptions—Homestead.</p> <p>Where the state statute (Ballinger’s Ann. Codes & St. § 6214) exempts as a homestead “the dwelling house in which the claimant resides and the land on which the same is situated,” a bankrupt who resides in a city cannot claim a homestead in a tract of rural land, on which he has not actually lived for several years, although he originally acquired title to it under the United States homestead law, and asserts that he never intended to abandon his residence upon the land.</p> <p>2. Constitutional Law — Amendment op Statutes.</p> <p>Under a constitutional provision that “no act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length” (Const. Wash. art. 2, § 37), where an amendatory statute is not complete in itself, but refers to a prior statute, which it changes by adding to its provisions, but does not repeal, so that the full declaration of the legislative will on the subject can be ascertained only by reading both statutes, the later act is void.</p> <p>⅞ Bankkci'TCY — Exemptions—Invalid Exemption Law.</p> <p>Where the exemption law of the state ha.s been amended by a new statute allowing additional exemptions, but such later act is void for want of conformity to the constitutional requirements as to amending statutes, a bankrupt who has had set apart to him all the exemptions allowed by the original act cannot claim anything further under the amending statute.</p> <p>4 Same — Personal Property Exempt.</p> <p>Where a state exemption law sets apart to the householder certain domestic animals, and also provisions and fuel for the maintenance of the family for six months, and provides that a householder who does not possess, or does not choose to retain, such animals, may select and retain other property to the value of $250, the sum mentioned is to be understood as granted only in lieu of the animals; and a bankrupt who has received sncli commutation is not to be excluded from claiming a further allowance for provisions and fuel.</p> <p>5. Same — Assets in Bankruptcy — Insurance Policy.</p> <p>A policy of insurance on the life of a bankrupt, which has no cash surrender value, and no value for any purpose except the contingency of its becoming valuable at the death of the bankrupt if the premiums are kept paid, does not vest in the trustee in bankruptcy, as assets of the estate.</p>

<p>In Bankruptcy. In the matter of the voluntary petitions of Ida O. Fisher and Rollin B. Fisher. On review of decision of referee in bankruptcy.</p>

<p>1. Contracts — Validity—Speculative or Gaming Contracts.</p> <p>A contract for tlie sale of goods, witli future delivery, is valid if the parties really intend that there shall be an actual delivery of the property and payment of the price, though the seller does not then own the goods, and has no other means of procuring them than by a purchase in the market; but if no actual delivery is contemplated, but only that one party shall pay the other the difference between the contract price and the market price at the date set for executing the contract, it is invalid, as a wagering or gaming contract.</p> <p>S. Same — Test of Illegality.</p> <p>It is no defense to an action on such a contract that the purchaser did not .expect or intend an actual delivery of the goods, if the seller contemplated such delivery, and would have delivered the property on demand, and failed to do so only because it was not called for; the test of illegality is the intention, not alone of one of the parties, but of both.</p> <p>3. Same — Burden of Proof.</p> <p>In an action on a contract for the purchase and sale of goods, with future delivery, a party who alleges that the contract is invalid, as a gaming or wagering contract, must assume the burden of proving its illegality; the contract is presumed to be legal.</p> <p>4. Bankruptcy — Provable Debts — Gaming Contract.</p> <p>Where the respondent in a petition in involuntary bankruptcy resists an adjudication on the ground that the debt of the petitioning creditor (evidenced by a promissory note of which he is the indorsee) is invalid under the state statute against gaming, because the note was given to respondent’s brokers to cover his losses arising out of certain purchases and sales of wheat negotiated for him by said brokers on the board of trade, he must assume the burden of proving, by clear and conclusive evidence, that the dealings in question were mere speculations in the rise and fall of prices, and that neither party contemplated any actual sale and delivery of the wheat; failing this, the debt will be provable in bankruptcy, and, if sufficient in amount, will warrant an adjudication.</p>

<p>1. Customs Duties — Construction of Tehms Used in Statute.</p> <p>Where names of articles have a known commercial meaning, they are to be given such meaning in the construction of tariff statutes, rather than tlieir technical or scientific meaning.</p> <p>2. Same — Classification — Sardines.</p> <p>Sprats put. up in oil in tin boxes of the size and style designated in paragraph 208 of the tariff net of 1894, and labeled “Sardines,” are dutiable under such paragraph as sardines, and not under paragraph 211 as fish in cans, not otherwise provided for; the smaller fish of different species, when so packed, being commercially known and commonly sold by the general name of "sardines.”</p>

<p>This was a suit in equity for infringement of a patent and trademarks. On final hearing.</p>

<p>Patents — Invention—Electric Switches.</p> <p>The Thomson patent, No. 283,107, tor improvements in electric switches or commutators, as to claims 1 and 4, the essential feature of which is the nse of a magnet to dissipate, or prevent the formation of, an arc between the separated parts of the conductor when an electric circuit is broken by means of a switch, for the purpose of preventing the burning of such parts, is void for lack of patentable invention; the influence of a magnet on the arc formed in a disconnected circuit being previously well known, and its use to prevent the burning of the parts oí a switch, as contemplated by the claims of the patent, involving, at most, merely an acceleration of its effect by the use of a magnetic force strong enough to extinguish the arc at once.</p>

<p>It Patents — Validity—Effect of Prior Decisions.</p> <p>Tbe owner of a patent cannot be required to uphold it against every successive contestant who may desire to attack its validity upon facts wbicb have previously been decided insufficient to overthrow it.</p> <p>2. Same — Metal Umbrella Sticks.</p> <p>The Rose patent, No. 504,944, for improvements in umbrella sticks, was not anticipated, and discloses patentable invention.</p>

<p>On Exceptions to Master’s Report.</p> <p>The patent in controversy, No. 81,132, was granted to William A. Brickill August 18, 1808, for an “improvement in feed-water heaters for steam fire-engines.” The object of the invention was to provide a steam fire-engine at all times with hot water heated to very nearly the boiling point so that steam may be rapidly generated when the engine is called into action.</p> <p>The cause was tried at the October term, 1879, by Judge Wheeler, and the decision was filed July 2, 1880. 18 Blatchf. 273, 7 Fed. 479. The opinion says: “The claim is for ‘the combination, with a steam fire-engine, of a heating-apparatus, constructed substantially as described, for the purposes fully set forth.’ There were, before Brickiil’s invention, contrivances for heating water in coils of pipe, connected by tubes with the boiler of a steam fire-engine. so the water would circulate through the boiler and aid in preparing the engine for immediate use, sometimes detachable when the engine was wanted, and sometimes going with the engine; but none of them were very effective. Those not detachable could not he effectively heated at all, and if those which were detachable were heated sufficiently to keep the water in the boiler hot when the engine was there, the heat, not having the water to counteract it, would injure the apparatus when the engine was gone. * * * The claim is for tlie combination of a beating-apparatus constructed substantially as described, and tbe construction described is of wbat was new with Brickill.” Tbe judge found that tbe patentee’s discovery involved tbe inventive faculty to a considerable degree and was of great utility. He also found that infringement to some extent was clearly proved, if not admitted by the answer, and be did not attempt to construe the claim with reference to tbe alleged infringing devices now before the court.</p> <p>Tbe patent was also considered by Judge Shipman on demurrer to tbe complaint in an action at law. Brjckill v. City of Hartford (C. 0.) 49 Fed. 872. Tbe portions of tbe opinion applicable to tbe present controversy are as follows: “Tbe beater is connected with the boiler of the engine by two detachable tubes, one of which receives tbe cold water and conveys it to tbe coil of the beater, and the other receives and conducts tbe water, when heated, from tbe beater to tbe boiler; ‘thus establishing and maintaining a free circulation between the beater and tbe boiler.’ ⅝ * * There are not three members of tbe combination — tbe beater, tbe tank and tbe engine. There are only two members, — the beating-apparatus, of which the tank is a part, and tbe engine. Tbe tank is particularly described as a part of tbe beating-apparatus, and is to be used in tbe absence of tbe fire-engine, and is not to be used when and so long as tbe engine is again in tbe bouse. It is included in, and is pointed out with sufficient distinctness as a part of, that apparatus. Whether tbe omission of tbe tank and the use of tbe rest of tbe apparatus would constitute infringement is a question which does not arise on this demurrer. * » * Tbe fourtli ground of demurrer is that tbe patent is void, because it appears on its face to claim only an unpatentable aggregation of a steam fire-engine and of a beating-apparatus. If tbe claim should be construed to consist of a combination of three distinct elements, beater, tank and engine, tbe defect upon tbe face of tbe patent, which is pointed out in tbe demurrer, would exist, because there is no joint and co-operative action between such three separate elements. Tbe service of tbe tank was only called into requisition during tbe absence of tbe engine, and ceases upon its return. Tbe joint action of tbe beater and tank did not and could not affect tbe action of the boiler. The situation would be similar to that which, in view of the supreme court, existed in Beecher Mfg. Co. v. Atwater Mfg. Co., 114 U. S, 523, 5 Sup. Ct. 1007, 22 L. Ed. 232. But construing tbe claim to be a combination of tbe beating-apparatus, of which tbe tank is merely a part, and steam engine, tbe device does not in my opinion exist because there is a joint and co-operative action between tbe beating-apparatus and boiler, and tbe action of each influences and affects the action of tbe other.” . .</p> <p>Tbe case subsequently came before Judge Townsend upon demurrer to pleas (57 Fed. 216) but no question bearing directly upon the construction of tbe claim was involved. The opinion, however, expresses full concurrence with tbe reasoning of Judge Shipman in overruling tbe demurrer, supra.</p> <p>Tbe patent was also considered on demurrer by Judge Morris in Brickill v. City of Baltimore (C. C.) 50 Fed. 274. Tbe opinion says, “The only question then, is whether the claim is uncertain as to tbe elements of the combination. In bis specification tbe patentee states that be is ‘well aware that tbe form of tbe beater used as well as of supplying water after the engine has been detached therefrom may be varied without changing the nature of my invention, which, as already set forth, consists in connecting to or combining with a steam fire-engine a beating-apparatus, so that water heated to nearly the boiling point may be supplied to the boiler of the engine, that the steam may be more rapidly generated, and consequently I do not wish to be understood as intending to claim any particular arrangement of heating-apparatus herein shown.’ Beading tbe claim in connection with this explicit statement in tbe specification, I can perceive no uncertainty in the claim. It expresses to my mind that there are but two elements in the combination, — one a steam fire-engine and the other a heating-apparatus, constructed substantially as described.”</p> <p>The case came on for trial before Judge Morris and a jury and a copy of what purports to be his charge was read on the argument in this case and has been submitted to the court with the briefs. A portion of the charge is as follows: “As I construe his patent, Brickill does not claim as part of his Invention the tank which was to prevent the overheating of the water receptacle in ilie heater (luring the absence of the engine. That was a mere supplementary device for a particular purpose for which any other device, accomplishing the same result of preventing the overheating- of the water receptacle in the heater, might bo substituted without touching the invention which he claimed as new'.”</p> <p>The following instructions were given by the court at the request of the defendants: ‘‘The court instructs the jury that the Briekill patent, as construed by the court, is broadly for a circulating heater connected with detachable connections with a boiler of a steam engmo.” “The tank, I), cocks, G and (12, wrenches, II, and that portion of the pipes, O and C, leading from the pipes. E, to the tank, T), which appears in the drawings and descriptive part of the Briekill patent sued on in this action, form no part of the invention set out in the claim of said patent, and should not be considered by the jury in deciding on the question of novelty or patentable invention of said patent, but merely as exhibiting what the patentee suggests as a convenient and practicable mode of putting his combination into successful use.”</p> <p>The jury found a verdict for nominal damages and the judgment entered thereon was reviewed and affirmed by the circuit court of appeals for the Fourth circuit. 8 O. 0. A. 500, GO Fed. 98.</p> <p>The master reached the conclusion that, Brickill’s was a pioneer invention and, therefore, that the patent was entitled to a broad and liberal construction. He says in his opinion: “I therefore find the primary object of the invention was to keep the water in the boiler of the steam fire-engine very nearly at the boiling point, or above. The question as to how the heating-apparatus was to be preserved in the absence of the engine was secondary, and in no sense the primary object of the invention. It is quite material in my opinion whether the patented device -was kept serviceable by the additional tank, the substitution of running cold water or the attachment of pipes running to the roof for the purpose of permitting the excess of steam and hot water to escape. The patent is for ‘the combination with a steam fire-engine of a heating-apparatus constructed substantially as described for the purposes fully set forth.’ The tank is not an element; of the patented combination. It performs no function with reference to the heating of the -water in the steam fire-engine boiler. It is but a device to maintain the heating apparatus intact when the tire-engine is delacited and until the heating-apparatus is again desired for use, and therefore could he dispensed with as a tank at will, provided any other means know'll at the date of the patent: to be capable of performing such an office slunvd be substituted. Any device embodying the self-preservative feature which, in combination with the steam fire-engine, accomplishes the heating of the water in the boiler of a steam fire-engine by means of the circulation of hot water or steam, would, under the decision of Judge Shipman, be an infringement of this patent. As J have already stated, I do not consider the tank any portion of the combination of heater and the fire-engine boiler. It follows that stationary boiler's fitted so as to heat a steam fire-engine boiler by means of circulating hot water and steam were and are infringements of the complainant's patent.”</p> <p>The master filed his report, dated May 17, 1899, and this cause came on to be beard at the October term, 1899, on exceptions filed by the defendants. For the convenience of counsel it was agreed that a preliminary question, presented by exceptions Nos. 21 to 28 inclusive, involving a construction of the claim should first be heard, leaving the remaining- exceptions to be considered hereafter. The question presented is of paramount importance, and it was thought that it should he determined before the other exceptions were considered.</p>

<p>Injunction — Grounds—Threatening Suits for Infringement of Patent.</p> <p>While a court of equity will not, in general, interfere by injunction to restrain the owner of a patent from publishing letters and circulars asserting the validity of his patent, that it is infringed by an article manufactured by another, and threatening suits for infringement against purchasers, yet the contents of such publications may be such as to entitle the party against whom they are directed to relief, under recognized principles of equity jurisdiction; and a bill alleging the issuance of such circulars by defendant, and that all the material statements jjierein made are false, fraudulent, and malicious, and made with intent to destroy complainant’s business, cannot be dismissed on demurrer.</p>

<p>Patents — Infringement by Corporation — Liability of Officers.</p> <p>It is no defense to a suit for infringement of a patent against a defendant individually that any acts of infringement committed by him were committed in Ills capacity as an officer of a corporation, which, it any one, was the infringer.</p>

<p>Patents — Invention—Door Frames.</p> <p>The Boda patent, No. 385,233, for finishing of house interiors, as to claims 1, 2, and 3, which cover, as an article of manufacture, a completed door frame, consisting of the facings and jamb divided longitudinally in two parts, so that the parts may be applied to the opposite sides of the wall opening, and locked together to form the finished frame, is void for lack of patentable invention.</p>

<p>1. Patents — Slot fob Iiwuingemisnt — Bill of Review.</p> <p>There is no absolute rule which prevents a party who has relied wholly on certain issues in the original cause from filing a bill of review on a new issue not raised in the suit, or not litigated; hut where a defendant engaged in the manufacture of an article covered by complainant's patent, with knowledge of the patent, in reliance on the protection of a patent of its own, on which it also relied in a suit for infringement, it is not entitled to lile a bill of review, based on newly-discovered evidence, attacking the validity of complainant’s patent on a new ground, which had not influenced its actions, unless it presents considerations which appeal with especial force to the chancellor’s conscience.</p> <p>2. Bill op Review — Application to Appellate Court for Leave to Pile.</p> <p>'Where a petition is filed in the circuit court of appeals for permission to file a bill in the circuit court to review a decree which has been - affirmed on appeal, and the issues raised are such as, if sustained, necessarily require a reversal of such decree, but are of such a character that they cannot properly be determined on affidavits, permission will be given to file the bill in the lower court, provided the petitioner shows himself free from laches, and entitled to raise the issue. In re Gamewell Fire-Alarm Tel. Co., 20 C. C. A. Ill, 73 Fed. 908, followed.</p> <p>3. Same — Petition for Leave to File — Questions Considered by Appel- • late Court.</p> <p>While, on a petition to. an appellate court for leave to file a bill of review, the question of materiality is ordinarily for that court to determine, and the question of laches for the court below, which has the entire record before it, yet where the petition sets out all the facts necessary to dispose of the question of laches, and shows the petitioner’s want of due diligence, while the question of materiality cannot be properly determined on the showing made, the petition will be denied on the ground of laches.</p> <p>4. Patents — Suits for Infringement — Bill of Review — Laches.</p> <p>A defendant in a suit for infringement of a patent, who, during a protracted litigation, based his defense entirely on the grounds of anticipation by prior patents and noninfringement, is debarred by laches from the right to file a bill of review based on newly-discovered evidence claimed to show that complainant’s patent is void on the ground of prior public use by the patentee, where the petition fails to show that any investigation of the question of prior use was made until nearly 10 years after the litigation commenced, although formal issue was joined thereon in the suit, and that the evidence set out was at once discovered when- such investigation was instituted. Especially should the filing of such bill be denied where the petition therefor shows affirmatively that by reason of the lapse of nearly 20 years since the alleged prior use, and the death of persons having . knowledge of the facts, it will be difficult to satisfactorily determine the question.</p>

In Admiralty. This was a libel by the owners of a vessel against an insurance company to recover for a loss by lire. The policy declared that It was issued “for account of whom it may concern.” The defense was based upon a clause providing that the policy should be void “if any change, other than by the death of an insured, take place in the interest, title, or possession of „the subject of insurance.” The facts are very fully stated in the opinion of the court.

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

<p>1. Collision — Determining Fault — Vessel Violating Statutory Rules.</p> <p>The rule applied that a steamer violating the statutory rules, by proceeding at an unlawful rate of speed in a fog, in connection with which violation a collision arises, to clear herself from liability must show, not merely that such violation was probably not one of the causes of the collision, but that it could not have been.</p> <p>2. Same — Award of Damages — Review on Appeal.</p> <p>Tlio settled rule of the federal courts that successive decisions of two courts in the same case on a mere question of fact are not to be reversed, unless clearly erroneous, is applicable to the report of a commissioner in admiralty fixing the damages resulting to a vessel from a collision, which lias been confirmed by the trial court.</p> <p>8. Same — Measure op Damages — Demurrage.</p> <p>The fact that there is no means by which to determine the charter value of a vessel injured by a collision, or that the owner has another vessel by which she is at once replaced, does not prevent the allowance of demurrage for the time she is laid up for repairs; and, where she would have been engaged in making regular trips, the damages may he computed on the basis of her average earnings. The Cayuga, 14 Wall. 270, followed.</p> <p>4. Same — Cost op Repairs — Unsoundness op Vessel.</p> <p>The owner of a vessel injured in a collision is not entitled, under the circumstances of this case, to be allowed for the increased cost of repairs caused by the fact that, on opening up the vessel, parts adjacent to those parts injured, and not directly involved therein, are found to he unsound, and the cost of repairing the injured parts is thus increased.</p>

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

<p>Jurisdiction of Federal Courts — Diversity of Citizenship — Real Interests of Parties.</p> <p>Complainants filed a bill in a circuit court of the United Statcs in California against defendants, wlio were citizens of that state, alleging that complainants were heirs at law of a decedent from whom, prior to his death, one of the defendants, who was also a brother, and one of his heirs, had procured a conveyance of all his property without consideration, and which was invalid by reason of the decedent’s insanity; that subsequently such defendant, who was insolvent, had conveyed such property to his co-defendant in payment of an antecedent indebtedness. The prayer of the bill was that such conveyances be set aside as to such shares of the property as would have been inherited by complainants. Meld, that the court could not determine from such allegations and prayer that the interest of the defendant, who was a co-heir with complainants, would be best served by their success, so as to require such an arrangement of parties as would make him a complainant, and defeat the court’s jurisdiction, there being no proof of fraud or collusion on the part of complainants.1</p>

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

<p>Removal or Causes — Right of Receives of National Bank — When a Voluntary Party.</p> <p>The receiver of a national bank is a proper, but not a necessary, party to an action against the bank pending in a state court at the time of his appointment, and while he may properly be admitted as a party, on bis application, to defend in behalf of his trust, such admission does not give him the right to remove the causo to a federal court. The right of removal given him by tbe federal statutes applies only to cases where he is a necessary party to the action. 1</p>

<p>In Equity. On demurrer to bill.</p>

<p>1. Corporations — Suit by Stockholders — Necessary Averments.</p> <p>A plaintiff suing- as a stockholder is not required to set out bis efforts to induce the corporation to bring the suit, in compliance with equity rule 94, where it is alleged, in his bill that the corporation, is controlled by the defendants.</p> <p>3. Equity Pleading — Sufficiency of Bill.</p> <p>Where a bill contains sufficient allegations of fact to constitute a cause of action, it is not subject to demurrer, because it contains further allegations, stating conclusions of law, which are insufficient.</p>

TMs was a suit in equity to redeem certain shares of stock claimed to have been deposited as a pledge. On final hearing.

<p>In Equity. On motion for temporary restraining order.</p>

In Equity. To abate a nuisance, and to recover damages for injury occasioned by unlawful acts of respondent. Exceptions to answer. Answer not under oath.

<p>Building Associations — Usury—Alabama Statutes.</p> <p>Under tin1 statutes of Alabama relating to building and loan associations, as construed by the supreme court of that state, such associations are exempted from the general usury laws of toe state, and their contracts are not rendered usurious by the taking of premiums and interest exceeding in the aggregate the legal rate of interest.1</p>

This was a petition by the interstate commerce commission for an order enjoining the several railroad companies defendant to cease and desist from making certain charges which the commission had declared to he unreasonable and unjust. On final hearing.

<p>1. Production ov Books and Papers.</p> <p>Section 724, Rev. St. TJ. S., confers authority on the federal courts in civil actions at law to require under pain of judgment of nonsuit or hy default production of books and writings, coniaining evidence pertinent to the issue, not only at the trial, but after the joining of issue and before trial, for inspection in order to prepare for trial.</p> <p>2. Same — Inspection before Triad.</p> <p>Even on the assumption that the scope of section 724, Rev. St. U. S., is confined to production only at the trial, quaere, whether hy virtue of section 914, Id., in conjunction with section 13 of chapter 107 of the Revised Code of Delaware, as amended hy the act of April 19, 1895 (20 Del. Laws, p. 187). the court would not be authorized to order production for inspection before trial.</p> <p>3. Contract — Action for Breach — Evidence.</p> <p>The plaintiff’s case indudes not only the making and breach of the agreement declared on but the amount of damages, if any, to which the plaintiff- is entitled, and evidence tending to ascertain such amount is pertinent to the issue.</p> <p>4. Production of Books and Papers.</p> <p>Under section 724, Rev. St. U. S., generality in the designation of books or writings is not objectionable if the subject-matter to which they relate is specifically mentioned in the motion and notice.</p> <p>5. Same.</p> <p>Discovery by production of documents or otherwise, having for its object the promotion of justice through the disclosure of material facts, will, subject to certain well-recognized exceptions, be awarded in aid of an action at law, unless it clearly appears that a discovery could not avail the case of the party applying for it.</p> <p>6. Same.</p> <p>But it will not be awarded to gratify mere curiosity or to enable one party to make undue inquisition into the affairs of another; nor will the court extend discovery beyond the legitimate requirements of the case to be aided thereby.</p>

At Law. This is an action against the defendants, as receivers of the Baltimore & Ohio Southwestern Railway Company, commenced in a state court, and removed by defendants. On motion to quash the service and dismiss for want of jurisdiction over the defendants.

<p>1. Master and Servant — Master’s Duty as to Appliances Burnished.</p> <p>The relation of master and servant is not analogous to that of guardian and ward, and the obligation of tbe master in regard to appliances furnished for the use of the servant is no different from what it would be if such appliances were furnished for the use of one not a servant, his liability in either case being measured by his failure to use ordinary care to see that they are reasonably safe for the use to which they are to be applied.</p> <p>2. Same — Injury of Servant — Unsafe Appliances.</p> <p>A master cannot be held liable for an injury received by an adult servant by falling from a trestle on which he was standing, which was eight feet high and five inches broad at the top, on the ground that such trestle was not a reasonably safe appliance for the purpose for which it was used, no objection having been made thereto by the servant.</p> <p>8. Same — Fitness of Appliances — Tools not Inherently Dangerous.</p> <p>The rule that appliances furnished by a master must be reasonably fit for the purpose for which they are to be used has reference to their fitness with relation to the safety of the employs using them, and.the fact that a wrench furnished by a master for the use of the employs in screwing nuts upon iron rods broke because of insufficient strength for the work cannot render the master liable for an injury received by the servant by falling in consequence of the breaking of the wrench, as the wrench itself was not a dangerous tool, and the injury resulting from its breaking was one that could not have reasonably been anticipated.</p> <p>4. Same — Duty oe Master to Instruct Servant.</p> <p>The failure uf a master io instruct an adult servant of average intelligence as to the manner in which he should use a wrench in screwing nuts on a rod so as to avoid falling in case the wrench should break is not negligence.</p>

<p>Customs Districts — Compelsati on of Collector — Change in Statute.</p> <p>Act Aug. 28, 1890 (26 Stat. c. 814), “to reorganize and establish the customs collection district of Puget Sound,” not only by its title, but also by its provisions, shows the intention of congress to make a complete revision of the law relating to the organization of such district; and seetion 3, fixing the eompensation of the collector at a salary of $3,500 per annum, supersedes and repeals Key. St. § 2670, on the same subject, including the provision permitting the collector to retain fees to the amount of $2,000 in addition to Ms salary.</p>

At Law. On motion to set aside a verdict, and to reverse orders sustaining a demurrer to the answer and refusing leave to amend.

<p>This was an action on life insurance policies, tried before a jury. On motion by defendant for direction of a verdict.</p>

This was an action against the receiver of defendant corporation to charge the corporation with liability for money loaned by plaintiff… Held: and no records were kept. Garland and Rotch merely assumed the full control and management of the company’s business, and acted as president and secretary and managers, until the year 1894, when Mr. Garland died; and from that time Mr. Rotch assumed the office of president and sole manager, and controlled the business of the company.

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

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

<p>Review on Appeal — Cáse Tried to Court — Special Findings of Fact.</p> <p>Special findings of fact made by a circuit court in an action tried without a jury, by written stipulation, according to Rev. St. § 649, are conclusive on the circuit court of appeals, where the record does not contain all the evidence, so as to enable that court to determine that they' are not supported by any evidence; and in such case the review is limited by section 700 to the rulings of the court in the progress of the trial, duly excepted to, and a determination of the sufficiency of the facts found to support the judgment.</p>

<p>In Error to the United States Court of Appeals in the Indian Territory. '•</p> <p>-William- E. Weeks,- one of the plaintiffs in error, executed to the United States his bond as postmaster at Hartskorne, Ind. T., with John M. Grady and James E. Ereeney, the other plaintiffs in error, as his sureties. The condition of the bond was as follows: -“Now, the conditions of this obligation are such that, if'the=said William F. Weeks shall faithfully discharge all the duties and trusts imposed on him, either by law or the rules and regulations of the post-office department of the United States, then the above obligation shall be void; otherwise, of force.” Weeks, as postmaster, received moneys which he refused to pay.over or account for. Thereupon this action was brought on his bond against him and his sureties to recovei the same. The defense set up in the answer was that the money embezzled by the postmaster was money-order funds, and that the bond which the defendants executed did not cover or include money-order funds, but only other postal funds. The lower court sustained a demurrer to the answer, and, the defendants declining to plead further, final judgment was rendered against -them in favor of the United States on the bond, .from which judgment the defendants appealed to the United States court of appeals in the Indian Territory. That court affirmed the judgment of the lower court, and thereupon the defendants sued out this writ of error.</p>

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

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

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

<p>1. Banks and Banking — Power to Purchase Stock in Other Bank — Liability for Assessment.</p> <p>The purchase by a corporation, only empowered by its charter to transact a banking business, of the stock of another corporation, as an investment, and not as security or in payment of a debt, is ultra vires and void, and cannot he validated by estoppel. Hence such a corporation cannot be held liable for an assessment as a stockholder of a national bank, where it purchased the stock as an investment, although it retained such stock until the national bank becajno insolvent, and received dividends thereon.</p> <p>2. Federal Courts — Following State Decisions — Construction of State Statutes.</p> <p>The decisions of the supreme court of a state, defining and limiting the powers of corporations created under the statutes of the state, are constructions of such statutes which will be followed by the federal courts.1</p> <p>8. Banks — Statutory Powers — Nebraska Statutes.</p> <p>Consol. St. Neb. 1891, p. 132, § 291, enacted in 1889, requiring state banks to make reports to the state auditor containing specified information, did not add to the powers of such banks; and the requirement therein that such hanks should report, among other things, “the par value and actual market value of all stock or bond investments,” did not empower them to purchase the stock of other corporations as an investment, where, .under the prior statutes, as construed by the supreme court of/the state, they were without such power.</p>

<p>1. Pleading — Joinder of Counts in Petition.</p> <p>A count in a petition, setting out a contract between plaintiff and defendant, and alleging its breach by defendant, and tbe damages sustained by plaintiff thereby, for which judgment is asked, and a count alleging the same facts, and, in addition, that a subsequent contract was made between the parties, by which defendant agreed to pay plaintiff a certain sum in compromise and settlement of such claim for damages, that defendant had failed to comply with such agreement, and asking judgment for the amount so agreed to be paid, are not inconsistent under the Code of Procedure of Missouri, since the facts alleged in the two counts are consistent, and they may both properly stand under such Code; the only effect of the additional matter alleged in the second count being, if proved, to liquidate the amount of damages recoverable for the breach of the original contract.</p> <p>2. Appeal — Prejudicial Error — Compelling Election between Counts of Petition.</p> <p>Under the Missouri Code a plaintiff is permitted to state the same cause of action in separate counts in different forms to meet the proof, and, where the counts of a petition meet the requirements of* such provision, it is prejudicial error to compel an election between them before trial.</p> <p>3. Pleading-Waiver of Error.</p> <p>Where a plaintiff is erroneously required to elect, before, trial, between two counts of his petition, which state the same cause of action in different forms, and under which there could be but a single recovery, and he saves an exception to such ruling, he does not waive the exception by going to trial on the remaining count.</p> <p>4. Appeal — Judgment on Reversal.</p> <p>A plaintiff was erroneously required to elect, before trial, between two counts of his petition, which stated the same cause of action in different forms to meet the proof, and on his election a judgment of dismissal was entered as to the abandoned count. A trial on the remaining count resulted in a judgment for defendant. Held, it appearing that there was no error in the trial, that the judgment on the count so tried would be affirmed, but that plaintiff was entitled to a reversal, and a trial on the count dismissed.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

These are two writs of error, which were sued out respectively by the Union Pacific Railway Company and the Omaha & Grant Smelting Company, the defendants below, and by Ira Coolc, the plaintiff below, to reverse the same judgment. The suit was in ejectment for the recovery of lot 3 in block 65, lot 1 in block 97, and lot 8 in block 96, all situated in the city of Omaha, Neb. The plaintiff below recovered the possession of lot 8, but failed to recover lots 1 and 3.

<p>Bankruptcy— Jurisdiction of Actions by Thustee.</p> <p>Under Bankr. Act 1S98, § 2.‘3b, providing that suits by a trustee in bankruptcy shall be brought or prosecuted only in those courts where the bankrupt might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, a court of bankruptcy has no jurisdiction of a suit by such trustee to set aside a transfer of i>roperty made by the bankrupt, and alleged to be In violation of the act, either as a preference or as a fraudulent conveyance, when the bankrupt, the trustee, and the defendant are citizens of the same state.</p>

In Bankruptcy. On review of order of referee in bankruptcy directing trustee to sell real property of the bankrupt free of liens.

This was a prosecution of the defendant under Rev. St. § 5209, for making false entries in reports made hy a national bank, of which he was president, to the comptroller of the currency. On motion by defendant for direction of a verdict.

<p>Game — Nature of Property — Power of State to Regulate Privilege of HUNTING.</p> <p>The sovereign ownership of wild game is in the state, in trust for the benefit of its citizens; and a statute requiring the payment of a license by a nonresident for the privilege of hunting such game within the state is a police regulation -within the power of the state, and not in violation of article 4, § 2, of the federal constitution, or of section 1 of tlie fourteenth amendment, although such fee is not required of residents of the state; nor is the validity of such regulation as to a particular individual, who is a nonresident of ihe state, affected by the fact that ho is a stockholder in a corporation of the state which owns lands maintained as a game preserve.</p>

<p>Patents — Anticipation — Machine eor Removing IIaiks from Fun'Skins.</p> <p>The Sutton patent, No. 383,258, for a machine for removing water hairs from fur skins, claim 8, considered with reference to a claim of anticipation, and held not anticipated, and valid; also Mil infringed.</p>

<p>This was a suit in equity for infringement of a patent. On final hearing.</p>

<p>1. Process Patents — Anticipation.</p> <p>One who accomplishes a result by a process which he understands but partially, or not at all, has made no invention, and cannot deprive another, who afterwards discovers and proclaims the true principle of the operation, of the rights of an inventor.</p> <p>2. Same — Invention.</p> <p>A process, all the steps of which are old, may be new and patentable, when, co-operating with each other, they produce a result that is new and useful.</p> <p>3. Same — Infringement—Filtering Process for Beer.</p> <p>The Stockheim patent, No. 378,379, for a filtering process for beer, in which the operation is performed by a filter placed between the store cask and the keg, through which the beer is forced under pressure, and which, by means of back pressure, and vents at the top, by which any free gas, air, or foam accumulating in the filter may be drawn off, is kept at all times full of solid beer, to insure a steady flow, and prevent the escape of gas during the operation, was not anticipated, and is valid; also, construed, and held infringed.'</p>

<p>Patents — Infringement—Machine foe Making Woven Cane Woek.</p> <p>The Morris patent, No. 401,050, for a machine for inserting diagonal strips in woven cane work, while on its face covering a pioneer invention for automatically doing' the work, is not entitled to the broad construction accorded to such patents; the machine described having failed to accomplish the result intended, and no practical machine embodying the invention having ever been constructed. Meld, also, not infringed.</p>

This was a suit in admiralty by seamen against the schooner Carrier Dove to recover a balance claimed to be due them as wages.

<p>Salvage — Amount of Award — Review on Appeal.</p> <p>Under section 11, Act March 3, 1891, creating the circuit courts of appeals, such courts are governed, in reviewing decrees in admiralty, by the provisions of law then in force and applicable to such review by the supreme court; and under Act Feb. 16, 1875 (18 Stat. c. 77), restricting such review to matters of law, a decree for salvage services cannot be altered, for the reason that the amount awarded is excessive, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the ease.</p>

The H. Baars Company, now called the Pensacola Land & Lumber Company, on the 6th of June, 1896, chartered the British bark Assyria, then lying in the harbor of Ship Island, to carry a cargo of resawn pitch-pine lumber from Pensacola, Fla., to Buenos Ayres, South America.

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

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

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

<p>1. INTERSTATE COMMERCE — STATE LAWS AFFECTING — LICENSE TAX IMPOSED BY City. •</p> <p>A city ordinance enacted pursuant to authority conferred by an act of the legislature imposing a license tax of §1,000 per year on each brewery, depot, or agency of a brewery maintained within the city, no provision being made for the supervision, control, or regulation of such breweries, depots, or agencies, as applied to a depot maintained by a brewing association o" another stale solely for tlie purpose of storing; in the original packages beer shipped into the state until 11s distribution to customers in the same packages, is invalid, as a tax upon interstate commerce. Such ordinance is not an exercise of the police powers of the state, within the terms of the Wilson act (20 Stat. c. 728), which provides that liquors transported into a state upon their arrival therein shall he subject to the operation and effect of tiie laws of such slate enacted in the exoi,r'\s-> of its police powers, but is purely a revenue measure, enacted in ¡. ,• exercise of the power of taxation.</p> <p>⅛ Federal Courts — Following- State Decisions — Questions Arising under Federal Constitution.</p> <p>The decision of a supreme court of a state upon the question whether a law imposing a license is enacted under the police power or taxing power of the state is not conclusive upon a federal court when the validity of such law is drawn in question on the ground that it is in conflict with the constitution, laws, or treaties of the United States.1</p>

On Application for Temporary Injunction. The Western Union Telegraph Company is a corporation organized under the laws of the state of New York, and is a citizen of that state. The defendants are citizens and residents of the state of Kansas.

<p>1. Constitution Ai, Law — Assessments for Public Improvements — Front-Foot IÍULE.</p> <p>An assessment made pursuant to a state law, for grading and paving a highway, which apportions the entire cost of such improvement upon the abutting land according to the front-foot rule, without regard to the size and value of the parcels or the special benefits accruing therefrom, is in violation of the fifth and fourteenth amendments to the constitution of the United States.</p> <p>2. Injunction — Sufficiency of Bill.</p> <p>if it he conceded that a. statute providing for assessments on abutting property for street improvements according to the front-foot rule does not necessarily exclude all consideration of benefits, or result in unjust or inequitable assessments, it at least authorizes such assessments; and a hill filed by a property owner for an injunction against the enforcement of an assessment made thereunder is not subject to demurrer, where it alleges that the assessment was in fact unjust and unequal, and made without regard to benefits.</p> <p>S. Equity — Laches.</p> <p>A delay by a property owner of four years after the making of an assessment against his property for the cost of street improvements before-bringing a suit to enjoin the enforcement of such assessment does not constitute laches which will defeat his right to relief in equity, where no steps were taken to subject the property to sale for such assessment until immediately prior to the commencement of the suit, and where, during most of the time subsequent to the assessment, other suits involving its validity were pending in the courts of the state, and efforts were also being made to obtain relief by legislation.</p> <p>4 Estoppel — Signing Petition for Street Improvement — Privity in Title.</p> <p>The fact that an owner of property, subject to a purchase-money mortgage, joins in a petition for the improvement of a street upon which such property abuts, does not estop a subsequent owner, who acquires title through a foreclosure of the mortgage, from contesting the validity of the assessment made for such improvement.</p> <p>5. Preliminary Injunction — Grounds—Suit to Enjoin Sale of Property.</p> <p>A suit by a property owner to restrain the sale of his property under an assessment for a street improvement claimed to be illegal is one in which a preliminary injunction is essential to the etlicaey of the relief sought, and such injunction should be granted where the hill makes a probable case to entitle the complainant to final relief.</p>

<p>1. Pleading — Amendment op Bill op Particulars.</p> <p>Under its general power to allow amendment of pleadings, a trial court may, in its discretion, permit the amendment of a bill of particulars attached to the declaration.</p> <p>2. Review on Appeal — Rulings on Evidence.</p> <p>An assignment of error based upon a ruling rejecting an offer of evidence which embraced the entire record and proceedings in a former suit, a large part of which was immaterial and irrelevant, does not raise the question of the admissibility of other portions. Such question could only be presented for review by offering those portions separately, and obtaining rulings thereon.</p> <p>3. Same — Sufficiency of Bill of Exceptions.</p> <p>To enable the circuit court of appeals to review a ruling rejecting evidence, the substance, at least, of the evidence excluded must be incorporated in the bill of exceptions, as is expressly required by rule 11 of the court for the Fifth circuit.</p>

<p>1. National Banks — Action to Enforce Assessments — Limitation.</p> <p>No limit of time having been prescribed by the federal statutes within which an action must be brought to enforce an assessment against a stockholder in an insolvent national bank, such an action is governed, as to limitation, by the statute of the state where it is brought, by virtue of Rev. St. 1J. S. § 721.</p> <p>2. Same — Nature oe Stockholders’ Liability.</p> <p>The liability of a stockholder in a. national bank, who has made full payment for his . stock, to pay assessments for the benefit of the bank’s creditors, is not' contractual, but' is a conditional liability imposed' by law as an incident to ownership of the stock. ■ ;</p> <p>8. Same — Limitation op Actions against Stockholder — Accrual op Cause op Action. • :</p> <p>A cause of action to recover an assessment from a stockholder of an insolvent national bank does not accrue until the receiver is authorized by law to bring suit therefor, which is not until the assessment has been ordered by the comptroller, and the time fixed for its payment, before it shall become delinquent, has expired.</p> <p>4. Same — 'Washington Statute.</p> <p>2 Ballinger’s Ann. Codes & St. Wash. § 4800, subd. 3, prescribing, the limitation of three years for actions “upon a contract or liability, express or implied, which is not in writing, and does not arise' out of any written instrument,” is applicable only to actions upon contracts, or growing out of contracts, and does not include an action against a stockholder of an insolvent national bank to recover an- assessment, which is governed by section 4805, fixing two years as the general limitation for all actions not otherwise provided for.</p>

<p>National Banks — Actions to Enforce Assessment — Limitation.</p> <p>Under the statute of limitations of Washington (2 Ballinger's Ann. Codes & St. §§ 4796-4S05), an action against a stockholder of an insolvent national bank to recover an assessment must be brought within two years after such assessment has been made by the comptroller, and has become delinquent.</p>

This was an action by a servant against a master to recover for a personal injury. On motion by defendant for judgment non ob-stante veredicto.

<p>Insurance — Construction of Poucy — Provision for Appraisement of Loss.</p> <p>Under an insurance policy providing that in case of loss, and a disagreement as to the amount thereof, each party shall appoint an apinaiser, and the two shall select an umpire, and appraise the loss, and that no action shall be maintained on tbe policy until after the insured shall have fully complied with such provision, the insured discharges his obligation in that, regard when he appoints an appraiser in good faith; and where the appraisement falls through without his fault he is not required to propose the selection of other appraisers, but may resort to the courts to have his damages assessed.</p> <p>Sanborn. Circuit Judge, dissenting.</p>

<p>1. Municipal Bonds — Authority to Issue — Refunding Bonds.</p> <p>A statute authorizing cities to refund their “outstanding indebtedness, evidenced by bonds and warrants (hereof,” gives a city no power to issue bonds for the purpose of paying- bonds of a water company secured by mortgage on its property, which the city has since bought subject to the mortgage.</p> <p>2. Same — Estoppel by Recitals.</p> <p>Act Cal. March I, 1898 (St. 1893, p. 59), authorizes the governing bodies of cities and towns, other than cities of the first class, having outstanding Indebtedness evidenced by bonds ana warrants, to submit to the electors the question of refunding such indebtedness, and provides that the notice of the election shall recite the indebtedness proposed to be refunded. Acting under such statute, the mayor and council of a city submitted the question of issuing bonds for the refunding of a certain indebtedness specified in the notice of election, a portion of which the city had no power, under the statute, to refund, and on a favorable vote the officers issued a series of bonds, which they sold on credit, and which were resold by the purchasers, who became insolvent, by reason of which the city received nothing from the issue. Held, that inasmuch as the city council could only art, In calling the election and prescribing the notice therefor, by order, resolution, or ordinance, which, by the statutes of the state, are required to be made matters of public; record, the statute charged all purchasers of bonds Issued thereunder with notice of the facts shown by such record in regard to the character of the indebtedness to refund which they were issued; and that the officers of the city, under the implied authority given them to issue the bonds on a favorable vote, had no power to make recitals therein which would relieve the purchasers from the effect of such notice, or estop the city from proving by such records the invalidity of the bonds.</p> <p>8. Jurisdiction op Federal Courts — Actions ox Municipal Bonds.</p> <p>The owner of municipal bonds, or coupons therefrom, containing- a direct promise to pay, may maintain an action at law in a federal court to recover judgment thereon, where the requisite jurisdictional facts appear, although, under the laws of the state, such bonds or coupons are payable only out of a special fund which the statute requires the officers of the defendant to create by the levy of taxes for that purpose; nor is the plaintiff required to show that they have performed their duty in that regard.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

<p>In Bankruptcy. On review of questions certified by W. E. Blair, referee in bankruptcy.</p>

<p>Bankruptcy — Verification or Petition ijevokb Bankrupt’s Attorney.</p> <p>An adjudication in voluntary bankruptcy will not be set aside on the ground that the notary public who took the verification of the petition and schedule was the bankrupt’s own attorney, when it Is not shown that he was attorney of record for the bankrupt in any litigation then pending in the court, although he subsequently appeared as attorney of record for the bankrupt in the bankruptcy proceedings.</p>

In Bankruptcy. On motion to confirm the report of the referee recommending a discharge and on exceptions to said report.

<p>In Bankruptcy. The referee in bankruptcy found that a pledge of personal property by the bankrupt to one of his creditors was an unlawful preference under the bankruptcy act, and made an order requiring the creditor, who had sold the goods pledged, to pay over the proceeds to the trustee in bankruptcy. The case is now before the court on the creditor’s exceptions to such decision of the referee.</p>

<p>In Bankruptcy. On exceptions to decision and order of referee in bankruptcy.</p>

In Bankruptcy. On application of bankrupt for discharge. Certain creditors opposed the bankrupt’s discharge on the ground that he had fraudulently concealed assets, the proceeds of 204 shares of stock, which on his part was claimed to have been transferred to his wife some time previous to the filing of the petition in bankruptcy on account of a debt owing to her.

In Bankruptcy. On bankrupt’s application for discharge, and opposition thereto by creditors. The bankrupt was an attorney at law. At the time his petition was filed he had a number of written contracts outstanding, providing for the payment to him of one-half the recovery as compensation for the prosecution and collection of various claims for damages.

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

On petition for review of an order of the district court of tlie United States for tlie Southern district of New York, in bankruptcy. See 97 Fed. 319, where the facts of the case are fully stated.

<p>This is a motion, by the claimant of goods seized by the customs officers for undervaluation, for an order for the delivery of the goods, the bond prescribed by statute having been given.</p>

This is an appeal from a decision of the circuit court (91 Fed. 521), reversing a decision of the board of general appraisers, which decision sustained the protest of the importers, and reversed the decision of the collector of the port of New York.

<p>Customs Duties — Classification—Frames of Paintings.</p> <p>It having been the uniform practice of the treasury department since 1866, in ease of dutiable oil paintings in frames, to assess a separate and independent duty on the frames, tariff statutes since enacted must be construed with reference to such practice; and the word “paintings,” as used In paragraph 454 of the tariff act of 1897, cannot be construed to include the trames in which such paintings are imported; nor are the frames to he assessed for duty as “coverings,” under section 19 of the customs administrative act of 1890, but they are to be classified as separate importations, and are dutiable, under paragraph 208 of the same tariff act, as manufactures of wood.</p>

This is an appeal from a decision of the circuit court, Southern district of New York (91 Fed. 637), affirming a decision of the board of general appraisers which reversed a decision of the collector of the port of New York.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal from a decision of the circuit court (92 Fed. 140) which reversed a decision of the board of general appraisers reversing a decision of the collector of the port of New York touching the assessment of certain merchandise for customs duty.</p>

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

<p>Criminal Law — Constitutional Right to Trial by Jury — Judgment on Plea of Guilty.</p> <p>The trial by jury, the right to which is secured to the accused in, all criminal prosecutions by the sixth amendment to the constitution, is a trial according to the course of the common law, as it existed at the time such amendment was adopted, and by that law the court might proceed to judgment upon a plea of guilty, and a trial by jury was necessary only in cases where the accused, by plea of not guilty, had made an issue to be tried; hence a judgment of conviction rendered on a plea of guilty, voluntarily entered, and which leaves no issue of fact for trial, is not in violation of the constitutional rights of the defendant.</p>

This was a hearing on a petition for a writ of habeas corpus on behalf of Lelah-puc-ka-chee, alleged to be unlawfully restrained of her liberty at an Indian school, and the answers of G. W. Malin, Indian agent, and Cl. W. Nellis, school superintendent.

<p>This is a suit in equity for infringement of a patent. On motion for temporary injunction.</p>

<p>Patents — Suit tor Infringement — Laches.</p> <p>Complainants, tbe owners of a patent, wrote defendants, charging infringement and threatening suit, and defendants answered, denying infringement, contesting complainants’ construction of the patent, and calling attention to a prior patent. To this complainants replied that they would look tlie matter up. There were no further communications between the. parties on the subject for nearly 10 years, during which time complainants purchased considerable quantities of the alleged infringing goods made by defendants, and the latter expended money in enlarging their facilities for manufacture. Meld, that complainants were guilty of such laches as precluded them from maintaining a suit in equity for infringement.</p>

<p>This was a libel by seamen against the British bark Forteviot to recover wages.</p>

<p>In Admiralty. This was a suit in personam based on a contract. Heard on the pleadings, and on motions by libelant for the appointment of a commissioner, and by respondent to dismiss.</p>

In Admiralty. These were libels on behalf of the owners, master and crew of the steamtug Luckenbach, for salvage services rendered to the steamships Boyne and Volage.

<p>I. Remo vat, of Causes — Diversity of Citizenship.</p> <p>A cause is not removable by a defendant on the ground of diversity of citizenship alone where some of his co-defendants, who, are interested adversely to each other in some of the questions involved, are citizens of the same state.1</p> <p>8. Same — Separable Controversy — Kf.qtjisites of Petition.</p> <p>A petition by one of several defendants for removal on the ground of separable controversy should of itself distinctly show and point out the separable controversy, name the parties to it, and state all the grounds upon which the petitioner relies: and it should also show that such controversy involves the requisite jurisdictional amount. 2</p> <p>3. Same — Sf.parable Contbovebsy.</p> <p>In a suit in a state court to enforce a mechanic’s lien, other lien claimants were made defendants, and filed cross petitions for the enforcement of their liens. The principal defendant filed an answer and cross petition bringing in as defendants a mortgagee alleged to hold a lien on the property by virtue of an after-acquired property clause in its mortgage, and also a subsequent grantee of the property, whose deed the defendant asked to have canceled or reformed. Such mortgagee and grantee were citizens of the same state. Held, that each of such cross defendants was adversely interested in the controversy of the other, so that neither could remove the cause on the ground of a separable controversy as to which a diversity of citizenship existed.</p>

<p>Removal op Causes — Separable Controversy — Suit to Quiet Title.</p> <p>A suit to quiet title, brought in a state court, against a number of defendants, for the purpose of obtaining an adjudication of all claims adverse to complainant which may exist in favor of any of the defendants, is severable as to each defendant; and a defendant who is a citizen of a different state from complainant may remove the cause, as against him, to the federal court, where the requisite amount is involved.1</p>

<p>Removal of Causes--Febekai. Question.</p> <p>To bring a case within, the jurisdiction of a circuit court of the United States, under the judiciary acts of 1887 and 1888, on the ground that it arises under the constitution or laws of the United States, the plaintiff must claim some right under such constitution or laws which he seeks lo enforce in the action; and a petition in a state court based upon a state statute, although its suiiieiency is challenged by defendant by demurrer, without any additional averments in defense, upon a ground found in the federal constitution, does not disclose a case arising under such constitution which is removable by defendant.1</p>

<p>In Equity. On demurrer to a bill in equity filed by the Louisville Trust Company, as trustee in bankruptcy of the firm of L. Marx & Bro., against Leopold Marx and others.</p>

<p>1. INSOLVENT CORPORATIONS — SUIT FOR WlNDTNO UP.</p> <p>TVIiere a suit for the winding' up of a corporation is instituted by a stockholder under a state statute, it is to be regarded as adversary, and not voluntary, as to the corporation, and its character as such is not afflicted by the fact that the corporation offers little or no resistance to the proceeding.</p> <p>2. Samis — Effect of Assignment under State Insolvency Laws — Property in Other States.</p> <p>Where, after the institution of such suit, and the appointment of a receiver therein, the corporation executes a conveyance of all its property to the receiver in his official capacity, such conveyance is, in effect, one made under the insolvency statute of the state, and not a voluntary common-law assignment, and as such it operates only on property within that state. As to property in other states, it has only such effect as may he given it by their laws, and, in general, must give way to the claims of creditors pursuing their remedies there.</p>

In Equity. This case comes before the court on exceptions to the report of the master.

■ This is a suit in equity by an unsecured creditor to have certain chattel mortgages, executed by the debtor, declared to constitute’ an assignment in trust, inuring to the benefit of all creditors under the Ohio statute.

<p>1. Judicial Salk — Grounds for Setting Aside.</p> <p>Mere liuuloQuacy of price, unless so great as to shock the conscience, Is not ground tor setting aside a judicial sale.</p> <p>S, Corporations — Foreclosure of Mortgage against — Agreement between Bondholders.</p> <p>Ah agros monf between bondholders of a. corporation which has made default, for the protection of their common interests on a foreclosure, which contemplates a, purchase of the mortgaged property, if deemed necessary or advisable, is not illegal, or contrary to public policy, where it contains no provision for preventing competition at the sale, or for obtaining- any unfair advantage over oihers.</p>

This was a suit in equity by an abutting property owner to enjoin the maintenance of an electric railroad upon a highway, and for other relief in relation thereto. On final hearing.

In Equity. In the matter of the petition of the complainants, filed November 25, 1899, for leave to amend the bill of complaint.

This was a proceeding against the comptroller and receiver of a national bank to recover funds claimed to be the property of the complainant.

<p>Basks--Checks axd Drafts Coijaíctud after Insolvkxcy — limin' to Proceeds.</p> <p>A national bank, on tlie morning on which it was closed by the comptroller, prestane<l lo tlie clearing-house association a large amount in checks and drabs upon other banks, a number of which had been deposited by a city and by another hank. The manager of tlie association received the proceeds of all such cheeks and drafts, and paid therefrom debts of the bank, leaving a. balance to the credit of the bank. Held, that the payments must, be presumed to have been made with the money of ihe bank, and that, the remainder Included that belonging to the. city and Hie other depositing bank, and constituted a trust fund in the hands of the receiver, representing the checks and drafts the litio to which remained in the depositors.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina.</p> <p>This is an appeal by the respondents below from a decree of the circuit court of the United States for the Western district of North Carolina, granting an injunction against S. T. Pearson, Mrs. Clemye James, administratrix of W. A. •Tames, and Mrs. Fannie E. Howard, administratrix of T. H. A. Howard, tlieir agents and attorneys, enjoining the said S. T. Pearson and said Clemye Tames, administratrix, from proceeding any further in the prosecution of an action set out in the bill of complaint, depending in the superior court of Rowan county, wherein the said S. T. Pearson and said Mrs. Tames, administratrix, were plaintiffs, and the Western North Carolina Railroad Company defendant, and enjoining Mrs. Fannie E. Howard from instituting any action or proceeding such as the plaintiifs Tames and Pearson had begun, and from beginning or taking any action for a similar purpose, and enjoining all said persons and their agents and attorneys from in any manner interfering with the property of the Western North Carolina Railroad Company, or the Southern Railway Company, or with the franchise purchased at the foreclosure sale, and owned and possessed by the said Southern Railway Company. The facts necessary to an understanding of this appeal are as follows: The Western North Carolina Railroad Company was originally chartered by North Carolina in 1854-55, to build and operate a railroad within that state. In 1880, by an act of the legislature, the corporation was reorganized, and on September 1, 1884, the company executed a first mortgage to the Central Trust Company of New York to secure bonds to the amount of 83,856,000, and on September 2, 18S4, executed a second mortgage to the same trust company to secure bonds to the amount of §4,110,-000. On April 30, 1886, the company leased its road for 99 years to the Richmond & Danville Railroad'Company, a Virginia corporation, and the said lessee company took possession of the railroad property, and operated it until 1892, when, the Richmond & Danville Railroad Company having become insolvent, the property went into the hands of receivers appointed by the circuit court of the United States for the Western district of North Carolina. On April 20. 1894, the Central Trust Company of New York filed in the circuit court of the United States for the Western district of North Carolina its bill to foreclose the second mortgage made to it by the Western North Carolina Railroad Company, and such proceedings were had that a decree of foreclosure of the second mortgage and sale was entered May 2, 1894. On August 21, 1894, the railroad property and franchises of the said Western North Carolina Railroad Company were sold under said decree, subject to the first mortgage, to the Southern Railway Company, a Virginia corporation. On August 22, 1894, the sale was confirmed, and the court accepted the Southern Railway Company as purchaser, and directed that possession of the property be delivered to it, and proper deeds of conveyance executed, subject to the first mortgage, and reserving to the court the right to retake and resell the property if the Southern Railway Company should fail to discharge the debts, liens, or claims which the court should decree to be paid out of the purchase money in preference to the debt secured by the mortgage foreclosed. The Southern Railway Company thereupon was put in possession of the said railroad property, and has ever since operated it as a part of its system of railroads. In 1897, — three years after the railroad was sold and conveyed to the Southern Railway Company, — Mrs. Tames, adminis-tratrix of her husband, brought an action in the superior court of Rowan county against the Western North Carolina Railroad Company for the negligent killing of her husband, who was engine driver of a locomotive on the said road in the employment of the Southern Railway Company, and who was killed in 1896, about two years after the foreclosure sale. In said court a verdict was recovered for §15,000, and on appeal to the supreme court of North Carolina it was held (Tames v. Railroad Co., 121 N. G. 523, 28 S. E. 537) that the Western North Carolina Railroad Company, as a corporation under the laws of North Carolina, was still in existence, and was still liable for damages caused by the maladministration of the railroad by the Southern Railway Company, and that the railroad property itself in the possession of. the Southern Railway Company could be held liable for such damages, and judgment was entered upon said verdict against the Western North Carolina Railroad Company. A judgment on a similar cause of action was also recovered in the same court by Mrs. Howard for the negligent killing of her husband, who was a fireman in the employment of the Southern Railway Company. The Tames judgment having been directed to be entered by the supreme court of North Carolina, and that court having ruled that, notwithstanding the foreclosure sale, the property of the railroad was liable for the damages for which she had recovered judgment, Mrs, James, together with S. T. Pearson, instituted a proceeding in the superior court of Rowan county, getting forth the recovery of the judgment against the Western North Carolina Railroad Company, and alleging, among other tiling's, that the Western North Carolina Railroad Company was insolvent, and the Southern Railway Company, for reasons therein stated, was also insolvent: that the mortgages put upon the railroad property, both by the Western North Carolina Railroad Company and by the Soul hern Railway Company, were invalid; and praying that a permanent receiver be appointed to take possession of the franchise and properly of the Western North Carolina Company, and rim the railroad under the orders of the court. The scope of the bill of complaint filed in the superior court of Rowan county was very broad. It was filed not only on behalf of Mrs. James, in an effort to-subject the railroad property to the payment of her judgment, but was filed also on behalf of all stockholders of the Western North Carolina Railroad who claimed not to have assented to its reorganization, and all creditors of that company; and one of the complainants was S. T. Pearson, a holder of a share of the original capital stock of the company. The bill alleged that the reorganization, in 1880, of the Western North Carolina Railroad Company, was illegal, and in disregard of the rights of certain stockholders; that the Western North Carolina Railroad Company had abdicated its duty as a corporation, and had, without authority of law, permitted the Southern Railway Company to take possession of its roadbed, property, and franchise; that the pretended title of the Southern Railway Gom-Xiany to the franchise and property of the Western North Carolina Railroad Company was null and void; that the rolling stock and movables of the two railroad companies had been commingled so that the property of the Western North Carolina Railroad could not be identified; that Pearson and certain stockholders of the Western North Carolina Railroad Company had not assented to the reorganization of the Western North Carolina Railroad, and. were entitled to hold ftheir stock discharged from any lien created by either of said mortgages to the Central Trust Company of New York (if any lien was created by either of said deeds), and were entitled to have a receiver appointed to collect a fair rental for the franchise and property of the said Western North Carolina Railroad Company from the corporation or persons now operating the road. And on belsaii of creditors it was alleged that, by reason of the fraudulent concealment of the property of the Western North Carolina Railroad Company by the Southern Railway Company, the said judgment creditor was unable to distinguish the rolling stock of the Western North Carolina Railroad Company, and subject it to execution, and that the pretended sale under said second mortgage executed by the Western North Carolina Railroad Company to- the Central Trust Company of New York had cast a cloud upon the title to the franchise and property of the Western North Carolina Railroad Company. And the bill prayed for a permanent receiver to take charge of the franchise and property of I ho said Western North Carolina Railroad Company, and operate it under the orders of court; and that a referee be appointed, before whom all stockholders might.prove the number and nature of their shares of stock, and ail creditors might prove the value and character of the indebtedness «of the Western North Carolina Railroad Company; and that the referee might report, what claims constituted liens upon the property and franchise of the Western North Carolina Railroad Company. Thereupon the Central Trust Company of New York and the Southern Railway Company of Virginia filed in the above-mentioned foreclosure suit in the circuit court of the United States for the Western district of North Carolina their supplementary petition and bill of complaint, setting forth the foregoing proceedings in the superior court of Rowan county, alleging that notice had been given requiring The Western North Carolina Railroad Company to show cause before said court why a receiver should not be appointed of said railroad property, and alleging that said proceeding was intended to take from the possession of the Southern Railway Company the properly sold to it under the foreclosure decree, ancl to have that, sale and the conveyance thereunder declared' null and void. The answer of the respondent James to this supplemental bill alleges, among other things, that the Southern Railway Company, being a Virginia corporation, had no power to acquire the title to the railroad and the franchise of the Western North Carolina Railroad Company, and that the Southern Railway Company acquired no title by Its purchase. The answer of S. T. Pearson adopts the answer of his co-respondent James, and the answer of Mrs. Howard is, in material matters, substantially the same. The cause came on to be heard upon the pleadings and exhibits, and the circuit court of the United States for the Western district of North Carolina entered its decree awarding the injunction as prayed. 89 Fed. 24. The respondents appealed, and the decree is before us upon their assignments of error.</p>

In Equity. This was a suit to recover the amount of a bequest made by a testator to the American Congregational Association, and which, had been paid over to it by the executors. On demurrer to bill.

<p>Discovkby — Dismotireb to Bill — Claim of Privilege.</p> <p>Where a bill solely for discovery discloses on its face reasons sufficient to justify the defendant’s claim of privilege on the ground that the answers called for might subject him to criminal prosecution, and to a penalty or forfeiture, the objection may be taken by demurrer.</p>

This is an appeal from a decree of the circuit court for the payment of 81,-300 against E. C. Ivirker, personally, and S. T. Dewees, the surety on Kirker’s bond as receiver of the court. The decree was entered in the suit in which KJrker had been appointed receiver. The suit was begun, by what was termed an “ancillary bill,” by Robert Ballard, trustee, against the Ella Layman Towboat Company.

<p>1. Deed — Title Conveyed — Conveyance to City for Street.</p> <p>A deed of land to a city, containing apt words to convey the fee, is not reduced to the grant of a mere easement by a recital that the land “is conveyed to said city as and for a public street of said city,” or by the terms of an ordinance accepting and confirming as a public street “the dedication of the land specified” in the deed; such ordinance being required by the statute for the purpose of constituting the land a public street for the care and maintenance of which the city should be responsible.</p> <p>2. Same — Qualified Fee — Reversion.</p> <p>A declaration in a deed of land to a city that the land is conveyed “as and for a public street of said city” does not make the title conveyed a base or qualified fee, or a fee on condition subsequent, which reverts upon the termination of the use of the land for street purposes.</p> <p>3. Same — Construction—Conveyance to City.</p> <p>The fact that a city can only acquire and hold land for public uses does not prevent it from acquiring, as between it and its vendor, the absolute title to land which it is about to use for streets, so that, when such use becomes impossible, the city may alienate it for its full value or use it for other purposes, and the limitation upon the city’s powers does not require that a deed to it should receive a more restricted construction as to the title conveyed than a deed between private parties.</p>

On Motion for Rehearing of Demurrer to Answer. This is a motion for rehearing of a demurrer to the fourth defense of the answer to the plaintiff’s petition. At a former hearing the court overruled the demurrer.

<p>In Error to tbe Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon a writ of error to review a judgment of the circuit court, Southern district of New York, entered upon a ver-diet directed for the defendant in error, which was defendant below. The facts sufficiently appear in the opinion, the action being for personal injuries sustáined from collision with a moving train.</p>

This is a suit at law' brought by the Brattlehoro Sawings Bank against the hoard of trustees of Hardy township, Holmes county, Ohio, to recover the amount due on one bond of said township, of an issue of 20 bonds, for $i,0C0 each, together with 40 interest coupons, —two from each of the 20 bonds, — which are averred to he due and unpaid. The bonds are in the form following: “United States of America, State of Ohio, Holmes Gounty, Hardy Township. “No.-.

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

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

<p>1. Judgment — -What Constitutes — Oral Opinion or Finding.</p> <p>An orally expressed opinion or finding of a judge in a case not tried to a jury does not, according to the practice of the federal courts, constitute a judgment, and is subject to modification or change until it has become a written order of the court.</p> <p>3. Same — Power to Set Aside-</p> <p>Where a formal written judgment is not made and signed until the term succeeding the one at which the matter was orally determined, the judgment comes into existence only at the later term, and remains subj. ct to the control of the court until the close of such term.</p> <p>3. Appeal — Appealable Judgment OR Order,</p> <p>After having orally approved the report of a committee selected to appraise the value of real estate in condemnation proceedings, the cause was continued. At the succeeding term a formal judgment was entered on the award, which was subsequently, at the same term, vacated, and the award of the committee set aside. Ueld, that, conceding the action of the court in setting aside the award to have been erroneous, it was not without jurisdiction or void, and hence there was no final decision in the cause which could be reviewed on a writ of error.</p>

<p>On Motion to Kemand to State Court.</p>

<p>L Municipal Corporations —Ordinances—Failure to Record.</p> <p>Tlie validity of a city ordinance or resolution is not affected by the fact that, through an oversight of the clerk, it is not copied upon the city records.</p> <p>8. Same — Mode op Action by Council — Ordinance ok Resolution.</p> <p>It is immaterial that an ordinance required to be submitted for ratification to the electors of a city is submitted by a resolution of the council, instead of by an ordinance, where the resolution contains all the essentials of an ordinance.</p> <p>3. Same — Estoppel to Avoid Contract — Irregularity in Election.</p> <p>Where a city election called for the purpose of voting on the ratification of an ordinance entering into a contract with a water company was called and held at á single voting piaee, as had been the custom for a number of years, instead of at separate places in each ward, the city cannot avail itself of such fact to defeat the contract after the result of the election in favor of the ordinance has been declared by the proper officers, and. the company has been notified of such result, and has accepted the ordinance and fulfilled the contract on its part.</p> <p>4. Same.</p> <p>A city cannot avoid a contract with a water company, which was ratified by its electors, after it has been accepted and performed by the company and has also been complied with by the city for a. number of years, on the ground that a number of ballots cast at the election for the ratification of such contract were defective, where the rejection of such defective ballots would not have affected tile result of the election.</p> <p>8. Same — Validity of Contract — Burden of Proof.</p> <p>Where a city defends an action against it on a contract on the ground that such contract is invalid because it created an indebtedness in excess of the limit fixed by the constitution of the state, it has the burden of proving all the facts necessary to establish such defense; and the court cannot find the contract invalid on iliat ground, where there is no evidence before it showing the assessed valúa tion of the city, which is made by the constitution the measure of its legal indebtedness at the time the indebtedness under the contract was created.</p> <p>3. Same — Income Applicable to Debts — 'Missouri Statute.</p> <p>Rev. St. Mo. 1889, § 4977. which provides that a municipal corporation may be compelled by mandamus to levy a tax for the payment of a judgment against it, and that the whole amount raised within the constitutional limit may be applied in satisfaction of such debt, “except such amount as may be necessary to pay reasonable salaries allowed by law to the mayor, council, marshal, constable, attorney and a reasonable police force,”' fixes the amount which a city is entitled to expend from its revenues and income for current municipal expenses, as against a contract creditor; and it cannot defend against an action by such creditor on the ground that it levies taxes to the Ml constitutional limit, but has no surplus after paying the expenses of its government which can he applied on such debt, where it has expended money for purposes other than those enumerated in such statute.</p> <p>7, Same — Right of Action for Damages — Injury to Street.</p> <p>Under a provision of a city ordinance granting a franchise to a street-railroad company, that “in case of any removal or change of trackage on any streets or crossing's the grantee shall leave the same in as good condition as before such removal or change was made,” the city has no right of action for damages against one who purchases the rolling stock and rails of such company at foreclosure sale, and sells the same to another, who removes the rails, leaving the ties in the street.</p>

<p>At Law. On demurrer to petition.</p>

<p>1. Boundary — Evidence to Locate Survey.</p> <p>Under the settled law of Pennsylvania, which permits a surveyor, after the survey of a warrant, while it remains in his hands unreturned, to change the survey with the consent of the warrantee, when the change does not interfere with mesne rights, where warrants returned in 1808 showed the survey thereof to hare been made in 1794, on an issue as to the location of one of the lines of such survey, it is competent to show that in 1808, before the return of the swvey, the owner of the warrants directed the deputy surveyor, in whose hands they had remained, to “complete the survey,” and have return thereof made, and that the surveyor did work upon the ground in compliance with such directions; and, in the absence of proof definitely fixing the line as run in 1794, marks shown to have been made in 1808 may properly be considered by the jury in determining the true location of such line.</p> <p>3. Same — Plat Made by Surveyor.</p> <p>A plat shown to be in the handwriting of a deputy surveyor, and to have been made while he was acting as agent for the owners of warrants which were then in his hands, and which he had assisted in surveying, purporting to show the location of such surveys, is admissible in evidence on the question of the boundary of one of the tracts covered by such survey.</p> <p>8. Trial — Instructions—Comment on Evidence.</p> <p>Where ail questions of fact a,re submitted by proper instructions to the ultimate determination of the jury, it is within the discretion of the trial judge, under the federal practice, to express his opinion upon the facts in his charge whenever he thinks it necessary to assist the jury in reaching a just conclusion.</p> <p>4. Same. .</p> <p>It is not error for a judge in his charge to the jury to state that the action of a former owner of land in pointing out a line as its boundary and in making a deed conveying it by reference to such boundary constitutes “strong evidence” of the true boundary against a party who claims through such deed.</p>

This is a writ of error brought to review the judgment of the circuit court of Kentucky sustaining the demurrer to the reformed and amended petition of Thomas C. Hindman against the First National Bank of Louisville aud others, seeking to recover damages for loss sustained by the plaintiff in the purchase of 80 shares of the capital stock of the Columbian Fire Insurance Company, which purchase was induced, the petition alleges, by certain fraudulent misrepresentations of the…

<p>1. Pax.se Imprisonment — Defenses—Exercise of Judicial Authority.</p> <p>The recorder and chief of police of a city cannot be held personally liable in damages for the issuance and service of a warrant for the arrest of a person charged with the violation of an ordinance imposing a license tax upon occupations, although the person arrested was engaged in interstate commerce, and was not, therefore, subject to the provisions of such ordinance. In such case, the ordinance being valid as to occupations which it was within the power of the city to tax, the officers charged with its enforcement were not without jurisdiction of the subject-matter, and are exempt from civil liability for an error in the exercise of such jurisdiction.</p> <p>2. Same — Motive of Officers.</p> <p>The exemption of judicial officers from civil liability for their official acts cannot be affected by the motives with which such acts are performed, which is a matter for which they are responsible to the public only.</p> <p>3. Same — Liability of Municipal Corporation — Voluntary Submission to Arrest.</p> <p>One who submits to arrest and imprisonment rather than pay a small license fee illegally exacted from him under a city ordinance, and which if paid he might have recovered back without serious injury or damage to himself, cannot maintain an action against the city for false imprisonment.</p>

<p>Abatement — Death of Defendant before Service of Process.</p> <p>Under Code Civ. Proe. Cal. § 410, which provides that, from the time of the service of the summons in a civil action the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings, where a defendant dies after issuance of summons, but before its service, the court has acquired no jurisdiction, and cannot make an order substituting the executor of the deceased defendant, and awarding an alias summons against him.</p>

In 'Bankruptcy. On motion to set aside an order of the referee in bankruptcy disapproving the trastee chosen by creditors and appointing another trustee.

<p>1. BANKRUPTCY — ASSETS—GROWING CROPS.</p> <p>Where a bankrupt is tenant of a farm under a contract reserving to the landlord, as rent, one-fourth of the crops raised on the land, the bankrupt’s interest in growing crops, though they are immature and unsevered at the time of filing his petition in bankruptcy, is property which he might have transferred at that date, within the meaning of Bankr. Act 1898, § 70a, subd. 5, and therefore vests in his trustee as assets of his estate in bankruptcy; and after the crops have been severed the bankrupt must surrender the same to his trustee, or account for the proceeds.</p> <p>3. Same — Crops Gathered after Adjudication — Compensation of Bankrupt.</p> <p>Where a bankrupt who has an interest in growing crops omits to list the same in his schedule of assets, not from any fraudulent design, but because he was advised that they would not pass to his trustee, and completes their cultivation and harvesting after his adjudication in bankruptcy, and is then ordered to surrender the crops, or the proceeds of their sale, to the trustee, he will be allowed a reasonable compensation for work and care bestowed on them from the date of the adjudication.</p>

<p>In Bankruptcy. On motion to dismiss petition.</p>

In Bankruptcy. Upon the petition of the trustee, the referee, af( er full hearing, expunged the claims of three creditors. Upon the request of these creditors, ¡he referee has certified the questions involved to the court for review.

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p> <p>The referee certified, the case for review, as follows:</p> <p>“Now on this 31st day of .Tune, A. JD. 1899, at Beatrice, in said district, before Fulton Jack, one of the referees of the above court, this cause coming on to be heard under the order of the above-entitled court for the purpose of taking evidence as to the amount of mortgage indebtedness upon tlie real estate claimed by the above-named bankrupt as exempt to him for a homestead, and upon the issues joined by die trastee by his answer filed in regard to such matters, the iriist.ee appeared at the time and place, of which notice had been duly given to all pari ios in interest, and the bankrupt also appeared. A a d the referee having heard the evidence of the parties, and being duly advised in the promises, finds that tlie mortgage indebtedness upon said premises claimed as a homestead is the sum of §51,091.33, bearing in-tercut at the rate of 8 per cent, per annum. And the referee, being advised in tlie premises, finds that during the month of December, A. D. 1898, and in contemplation of proceeding's in bankruptcy, the said Joel Y. Boston, bankrupt, made and executed a chattel mortgage to the owner and holder of the said real estate mortgage covering certain property, to wit, a,both 100 bushels of corn, which he did not list in any schedule tiled by him; and that Use said bankrupt afterwards personally sold said com, obtained the proceeds thereof, and applied the same upon the said real-estate mortgage, and that tlie proceeds of said corn was the sum of ¡,:‘L~0; that ⅜3(> of said amount was paid within a few days of the tiling of said petition in bankruptcy, and that the remaining 890 thereof was paid themon more tiian two months after the filing of said petition in bankruptcy; and the referee finds that tlie bankrupt lias obtained the benefit: of the proceeds of said property in the reduction of the mortgage indebtedness upon Ills homestead, and that the bankruptcy estate is entitled to be subrogated to the rights of Annabel M. Evans, the owner of said mortgage, to the said amount of .8120. It is therefore considered, ordered, and adjudged by tlie referee that the amount of tlie mortgage indebtedness upon the real estate claimed by Joel V. Boston, bankrupt, as exempt, to wit, the south half of the southeast quarter of section four (4), township six (6), range eight (8) east, in Gage county, Nebraska, in the sum of if 1,091.33; and it is further decreed that tlie estate in bankruptcy of the said Joel V. Boston have a Hen upon said real estate for the benefit of the creditors of said Joel V. Boston to the amount of $120, and that the trastee at once set off to the Dankrupt, as his homestead, all of said real estate, subject to the mortgage indebtedness due said Annabel M. Evans, and subject to said lien of $120; and it is further ordered and directed that if the said Joel V. Boston fail for 20 days to pay said sum of $120 to O. M. Enlow, the trustee in bankruptcy of said estate, that, in that event, the trustee proceed to sell at public auction, for cash, said lien of $120 upon said real estate. To the order decreeing said, lien of $120 upon said real estate, and directing the sale of the same by the trustee, the bankrupt excepts. Pulton Jack, Referee in Bankruptcy.”</p> <p>“District of Nebraska — ss.: The bankrupt having taken exceptions to the above order of the referee as indicated therein, the question above cited is hereby certified to the Hon. W. H. Munger, judge of the above court, for his opinion thereon. Fulton Jack, Referee in Bankruptcy.”</p>

<p>Bankruptcy — Provable Debts — Judgment for Fine.</p> <p>Under Bankr. Act 1898, § 63a, providing that debts of a bankrupt may be proved and. allowed against his estate which are “a fixed liability, as evidenced by a judgment, absolutely owing at the time of the filing of the petition,” a judgment recovered by the state, in one of its courts, in a criminal prosecution for a. misdemeanor, imposing a fine on the defendant together with the costs, is provable as a debt against his estate in bankruptcy, but is not entitled to priority of payment, and will be released by his discharge.</p>

<p>In Bankruptcy. On motion to dismiss petition.</p>

<p>1. Bankruptcy — Priorities—Rank of Liens.</p> <p>Eankr. Act 1898, § G4b, cl. 5. giving- priority of payment out of bankrupts’ estates to “debts owing to any person who by the laws of the states or the United States is entitled to priority,” does not operate to place all preferred debts of this class upon a plane of equality; but liens created by the laws of the state will attach to the property of a bankrupt in the hands of his trustee in the same relative.rank and order in which they are fixed by the state statutes.</p> <p>2. Same — Rights of Lien Creditor — Practice.</p> <p>An adjudication of bankruptcy brings the bankrupt’s assets into the custody of the court of bankruptcy for administration; and a creditor of the bankrupt, having a lien on such property at that time, is not bound to follow the course of procedure prescribed by the state statute under which the lien arises, requiring certain action to be taken within a limited time for its preservation, but only to prove his claim as the bankruptcy law directs.</p> <p>3. Same.</p> <p>Where a state statute (Ky. St. §§ 2487-2491) provides that, when the property of a manufacturing company shall come to the hands of a trustee or assignee for distribution to creditors, there shall be a lien thereon in favor of those who have furnished materials or supplies for carrying on the business, and directs that a claim therefor must be filed or suit brought to enforce the lien within GO days, but does not expressly make the lien depend upon such action being taken, the lien will attach to the property of a bank-rapt corporation upon ilie appointment and qualification of its trustee; and no proceeding to enforce the lien is necessary in the bankruptcy court, other than its proof as a secured debt, which may be done at any time within one year after the adjudication.</p> <p>4. Same — Proof of Debt — ’Amendment.</p> <p>A lien creditor of a bankrupt, who inadvertently or by mistake proves his claim as an unsecured debt, may be permitted to amend his proof so as to save the benefit of his lien.</p>

This is an appeal from a decision of the circuit court, Southern district of Yew York, affirming a decision of the board of general appraisers which affirmed a decision of the collector of the port, of New York touching the classification of certain empty glass bottles.

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

<p>Customs Duties — Classification—-Dried Fruits — Lychee.</p> <p>Dried lychee, which is Chinese fruit having, when dry, a thin shell Inclosing an edible pulp, is dutiable under paragraph 262 of the tariff act of 1897, as an “edible fruit, dried,” and not entitled to free entry under paragraph 559, as a fruit not specially provided for.</p>

<p>This was a suit brought under the provisions of Rev. St. § 3226, to recover back the amount of a tax exacted under the internal revenue law.</p>

This was a proceeding by habeas corpus to secure the discharge of Eugene L. Norton from an enlistment in the navy of the United States.

<p>This was an action to recover the penalty fixed by statute for infringement of certain copyrighted engravings. On motion by defendant for direction of a verdict.</p>

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

<p>I. Design Patents — Validity—Invention.</p> <p>Originality and the exercise of the inventive faculty are as essential to the validity of a design patent as a mechanical patent.</p> <p>8. Same — Invention—Box Pastenisks.</p> <p>The Cary design patent, No. 28,142, for a box fastener, consisting of a metal strap, which differs in construction from the one described in a prior mechanical patent to the same patentee only in omitting a corrugation along the edges, making the strap plain, does not disclose invention, and is void.</p>

<p>Patents — Infringement—Elevated Railroads.</p> <p>The Curtis & Cook patent, No. 285,110, for an improvement in portable elevated railroads, considered, and held void for anticipation as to claims 1, 2, and 3, and valid and infringed as to claim 4.</p>

This is á suit in equity for the infringement of letters patent No. 285,116, granted to Ourtis & Cook, September 18, 1883, for an improvement in portable elevated railroads. On an application for a preliminary injunction.

<p>In Equity. On exceptions to answers.</p>

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

<p>1. Patents — Invention—Application op Old Devices to Different Art.</p> <p>The application of old and well-known devices to a different art, in which they perform a new function, may constitute invention where the advantages to be gained by their use for such purpose were not obvious; and the fact that the art to which they were so applied was not new, and that they had never before been used therein, tends to support the claim of invention.</p> <p>2. Same — Anticipation—Pneumatic Tires.</p> <p>The Tillinghast patent, No. 497,971, for a pneumatic tire, which consists of a single-tube tire composed of an interior rubber air tube, an outer rubber cover, and an intervening fabric, all united by vulcanization, the purpose being to prevent chafing between the interior and exterior tubes, which resulted in such tires as previously made, was not anticipated by anything in the prior pneumatic tire art, nor is the construction shown devoid of invention because sheets of rubber with a fabric between, similarly united, were previously used in the making of rubber hose and rubber gaskets.</p>

<p>W.fTATIVES — INJURY TO VESSEL IN LOADING.</p> <p>Where tlie loading of libelant’s canal boat, of which he was captain, with iron ore, at defendant’s dock, is shown to have been under his own direction, the lever man who controlled the flow of ore through the chute into the boat being at a distance, and governed by libelant’s orders as to when he should start and stop, as the boat was moved along, defendant cannot be held liable for the wrecking of the boat hy the running of too much ore in one place during libelant’s temporary absence from the chute, it not being shown that defendant’s superintendent or the lever man was chargeable with knowledge that libelant had left the chute unattended to either by himself or a deiiuty.</p>

<p>In Admiralty.</p> <p>A libel in rem against the same vessel, by the same libelants, for the same causes of action, and by others for similar causes of action, having been heretofore dismissed, after the vessel had been taken into custody by the marshal, and released upon the giving of a bond pursuant to section 941, Kev. St., conditioned to satisfy any decree which might be rendered in favor of the libelants, the claimant moved to dismiss the present suit, on the ground that the release of the vessel in the former suit freed her from any lien for the same causes of action. Motion granted.</p>

<p>In Admiralty. This was a libel in personam by the master of the tug Fidget for an injury caused to the tug by the defective condition of a jelly maintained by the defendants to protect their dock, which ihe vessel was lawfully using. The facts are stated in the opinion.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>For opinion below, see 95 Fed. 182.</p>

<p>Shipping — Damage to Cargo — Seaworthiness.</p> <p>To constitute a ship seaworthy when she enters on a voyage, she must be fit, in design, structure, condition, and equipment; and she cannot be said to be fit, as to condition, when both the iron and glass coverings of a port, which it is the usual custom to close and fasten before sailing, though structurally fit, are, through inadvertence, insecurely fastened, so that, although the vessel does not encounter bad weather or rough seas, such covers become open, and admit sea water, which damages the cargo. In such case the damage must be held to result from the unseaworthiness of the ship, and not from any fault or error in navigation, or in the management of the vessel, for which the owners are exempted from liability by section 3 of the Harter act, as the master was justified in supposing that the port had been securely closed before sailing, in accordance with the usual custom, and was not chargeable with fault in failing to cause it to be thereafter examined, although the cargo was so stored that it was accessible.</p> <p>Gray, Circuit Judge, dissenting.</p>

<p>t. JURISDICTION OF FEDERAL COURTS — FEDERAL QUESTION-RlPARIAN RIGHTS.</p> <p>An action involving: the right to accretions along the river front by the owners of lands whose title is derived through a patent, issued pursuant to the provisions of an act of congress, in which the lands are described as “lying on the west bank of the Mississippi river,” presents a case for the construction of the grant, and is a question arising under a law of the United States, of which a federal court has jurisdiction.1</p> <p>2. Same.</p> <p>The general doctrine that local laws must determine the riparian rights of owners of real estate bounded on navigable rivers is subject, in all cases, to a consideration of the primary right of the United States in navigable waters for the purposes of commerce; and, In construing a grant by the United States bounded on such a river, a consideration ol' other matters besides the local law may become necessary in determining the intent and scope of the grant.</p>

<p>In Equity. On demurrer to bill.</p>

■ Appeal from the Circuit Court of the United States for the Southern District of Florida. This litigation was begun by an original bill in chancery, filed in the state circuit court of Florida on September 17, 1897. The complainants were William M. Brooks and his wife, Sue G. Brooks, citizens of Florida, and the defendants were Achille Laurent and Leon Laurent and Paul Jumeau, agent of the former, citizens of the republic of France!

This is an appeal of R. J. Cunningham, receiver of the Cleveland Water & Electric Light Company, from a decree of the circuit court for the Eastern district of Tennessee, dismissing his ancillary bill against the city of Cleveland, Tenn.

<p>Appeal from the Circuit. Court of the United States for the District of Indiana.</p> <p>The appellee the Terre Haute & Indianapolis Railroad Company (herein for brevity, called the “Indianapolis Company”) was incorporated in the year 1SÍ7 by a special act of tlie legislature of 1he state of Intliana, and constructed and operated a railway extending from tlie eity of Indianapolis, in that state, to a point on the western line of the state near the city of Terre Haute, — a distance of about 70 miles. The act of incorporation authorized the construction of tlie railway from the westerly line of the state, through Terre Haute and Indianapolis, to Richmond. in the county of Wayne, near tlie eastern boundary of the state. By a subsequent act of the legislature, passed in 1851. and presumably at its request, the Indianapolis Company was released from its obligation to construct a line eastwardly of Indianapolis. In the year 1873, pursuant to law, the company surrendered its rights under its special charter, and accepted the provisions of the general railroad la.w of the state, approved May 11, 1852. On February 10. I8G8, the company leased for a period of 999* years a line of railway extending from East St. Louis to Terre Haute, and connecting with its line of railway at the westerly line of tlie state. In the year 1.879 the Indianapolis Company leased of the Terre Haute & Logansport Railroad Company for a period of 99 years its line of railway extending northeasterly from the city of Terre Haute to the city of South Bend, in tlie state of Indiana, which latter city is located a few miles south of the northern boundary of the state, and about midway between the easterly and westerly boundaries of the state. In the year 3889 the Indianapolis Company was in possession of and operating these lines of railway, forming a continuous line from East St. Louis, in the state of Illinois, opposite the eity of St. Louis, Missouri, extending northeasterly to the city of South Bend, in the state oí Indiana, connecting at or near Terre Haute with its own line of railway. Hie Indiana & Lake Michigan Railway Company (herein called the “Michigan Company") is a corporation created by consolidation of an Indiana with a Michigan corporation, owning a line of railway extending from South Bend, Inch, to St. Joseph, Midi. By agreement between the two companies dated June ⅜ 1889. the Michigan Company agreed to construct its line of railway from an intersection with the line in possession of the Indianapolis Company at South Bend, lnd., to a connection with the Chicago & West Michigan Bail-way at the city of St. Joseph, in the state of Michigan, and to lease its line to the Indianapolis Company for a period of 99 years, under- an agreed division of earnings, namely, the Indianapolis Company to retain for expense of operation 75 per cent, of the gross earnings, the balance to be applied to the payment of laxes; to the payment of interest accruing upon the bonds of the Michigan. Company to an amount not exceeding $480,000; the surplus, if any, to bo paid to the Michigan Company. The Indianapolis Company, on its part, agreed to guaranty the payment of the principal and interest of the bonds to the amount stated, to be issued by the Michigan Company. This agreement was carried into effect. 'The line was constructed, the lease executed, and the Indianapolis Company went into possession and operation of the railway. The Michigan Company issued its negotiable bonds to the amount of $180,000, payable to hearer, secured by a trust deed dated September 2, 1889, of which the Central Trust Company, appellant, is the sole surviving trustee. This trust deed is in the ordinary form of such instruments, and authorizes the trustee upon default to take possession, or to foreclose, but contains no covenant or provision prohibiting suit at law by holders of the bonds, or authorizing such action by the trustee, or investing it with any authority to sue at law upon the bonds for the benefit of the bondholders. The Indianapolis Company, simultaneously with the execution of such trust deed, duly executed a written guaranty, indorsed upon each bond, as follows: “The Terre Haute and Indianapolis Railroad Company, a corporation created under the laws of the state of Indiana, in consideration of the ninety-nine years lease of the railroad mentioned in the within bond, does hereby guaranty the payments of the principal and interest of said bond according to the terms and conditions thereof.” And the bonds, with such guaranty upon them, went upon tlie market, and into the hands of bona fide purchasers for value. Subsequently, upon default in the payment of interest of such bonds, a committee was appointed at a meeting of the holders of many of them, to represent their interests; and it is stated in evidence by one of the committee that all the holders of the bonds, then or subsequently, came in under the arrangement. The written agreement executed by the bondholders recited the fact of the guaranty of these bonds by the Indianapolis Company, and created a committee which, was authorized to take such measures as it might deem proper against the Michigan or Indianapolis Company, or both, to enforce the payment of the bonds. The agreement further provided that bondholders coming in under the arrangement should deposit their bonds with the Central Trust Company, receiving its certificates therefor, and that the Trust Company should hold them subject to the order of the committee. Thereafter the trust company, at the request of the committee, filed in the court below its bill of foreclosure against the Michigan and Indianapolis Companies, and therein, among other things, prayed that for any other deficiency arising from the sale of the mortgaged premises, the trust company, complainant, might have judgment against the Michigan Company as the obligor in the bonds, and against the Indianapolis Company as guarantor thereof, which guaranty was aptly charged in the bill of complaint. The Indianapolis Company pleaded that the guaranty was ultra vires the corporation. Thereafter, on June 16, 1898, the court decreed foreclosure and sale of the mortgaged premises, but denied the application of the trust company, complainant, for a decree for deficiency as against the Indianapolis Company, holding the guaranty invalid. The Central Trust Company appeals to this court from so much and such part of the decree that holds the guaranty invalid, and refuses judgment thereon for the deficiency.</p>

This was a suit in equity to enjoin the enforcement of certain city ordinances affecting the right of complainant to maintain its poles and wires in the streets of defendant city.

<p>1. Mineral Lands — Action to Rhcoveu — Gkound nor Appointment on Receiver.</p> <p>A court will appoint a receiver to talce charge of public lands claimed by both parties under the mining laws of the United States, to the end that the required work may be done thereon for the benefit of the party entitled thereto, where the proof shows that the complainant has reasonable ground for his claim of ownership.</p> <p>2. Same —Oil Placee Claims — Suevicienoy on Discovery.</p> <p>To constitute a prior discovery which will support a location of public ground as an oil placer claim under the mining laws, the locator must have actually discovered oil within the limits of the, claim. Mere surface indications of the existence of oil therein, hovrever strong, are not sufficient, nor is the existence of oil upon adjoining lands.</p> <p>8. Same — Discovery after Location.</p> <p>In the absence of any intervening rights, the fact that mineral is not discovered on a claim until after the notice of location is posted and the boundary marked is immaterial, and, where the discovery is the result of work subsequently done by the locator, his possessory rights under his location are complete from the date of such discovery.</p> <p>4. Same — Adopting Discovery of Another.</p> <p>While it is not necessary that a locator should be the first discoverer of mineral upon the land, in order that a prior discovery by another shall inure to his benefit, and give validity to his location, it must have been known to and adopted and claimed by him.</p> <p>6. Same — Lands in Possession of Another — Clandestine Location.</p> <p>No right can be initiated on government land which is in the actual possession of another by a forcible, fraudulent, or clandestine entry thereon for the purpose of locating it as a mining or other claim.</p>

This was a suit in equity against a national bank and its receiver to recover a sum alleged to be lieJd by the receiver in trust for complainants.

<p>1. Railroads — Injury of Umploye — Flying Switcuies.</p> <p>The making of a flying switch by a railroad company in its yards in the daytime, and in the usual manner, is not negligence per se as to an employe workiug in the yards, who is familiar with the practice to make such switches therein; and the fact that a .safer method might have been adopted affords no ground for a recovery for the death of such employe by being struck by a ear so switched, where he was given notice of its approach.</p> <p>2. Federal Courts — Following State Decisions — Fellow Servants.</p> <p>'The question whether employt-s are follow servants, so as to preclude a recovery from the master by one for the negligence of the other, is one of general law, as to which a federal court is not bound by the decisions of the courts of the stated.1</p>

This action was brought by E. T. Wilson, as receiver of the First National Bank of Helena, Mont, to recover of the Merchants’ Doan & Trust… Held: except as tbe conditions may have been changed by tbe facts hereinbefore stated, but that neither the defendant nor the said Peterson ever took any part in the management of either of said banks, or participated in tbe administration of their affairs.” There followed a correspondence between the trust company and Ashby’s assignee,…

<p>1. Damages — Construction of Provision in Contract.</p> <p>A provision in a contract for the purchase of a crop of oranges, then, upon the trees, for a lump sum, that the purchaser “is also to pay the party of the second part $1,500 at the time of making this contract as part payment of the entire purchase price of said fruit, and, in case the said party of th", first part refuses or fails to comply with the conditions of this contract, then the said payment of $1,500 is to he forfeited,” is one for a forfeiture, and not for liquidated damages.</p> <p>2. Assumpsit — Proof of Contract — Seal.</p> <p>In an action in assumpsit based on a written contract which was. not required to be under seal, the authority of the agent who signed the defendant’s name to such contract need not be shown to have been under seal, although he affixed a seal to the signature of his principal.</p>

This is a writ of error to the circuit court, Southern district of Hew York, to review a judgment in favor of defendant in error, who was plaintiff below, entered upon the verdict of a jury against plaintiff in error, who was defendant below. The action was brought to recover damages for Qie loss of services of plaintiff’s wife, caused by an injury received by her while a passenger on a train operated by defendant. The facts sufficiently appear in the opinion.

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

<p>Husband and Wife — Action for Alienating Husband’s Affections.</p> <p>A wife cannot, under the laws of Massachusetts, maintain an action against a third, person for merely alienating the affections of her husband.</p>

<p>1. Bankruptcy — Prkb’ebencks—Payment op Mortgage Debt.</p> <p>AVhere an insolvent debtor, within, four months prior to the filing of a petition in bankruptcy against him, pays to a mortgage creditor the amount of the note secured by the mortgage, with the effect of enabling such crédito] to obtain a larger percentage of his debt than other creditors of the same class, such creditor having reasonable cause to believe Thai it was intended thereby to give him a preference, the amount so paid may be recovered from the creditor by the debtor’s trustee in bankruptcy.</p> <p>2. Same — Jurisdiction—Suits hy Trustee.</p> <p>The district court, sitting as a court of bankruptcy, has jurisdiction, under the bankruptcy act, of a suit in equity by a trustee in bankruptcy against a mortgage creditor of the bankrupt to recover from the defendant sums of money paid to him by the bankrupt, within four months prior to the filing of the petition, in satisfaction of the note secured by the mortgage, where it is alleged that such payments constituted a preference voidable under the act.</p>

<p>In Bankruptcy. On motion to modify an order restraining the further prosecution of pending proceedings in a state court.</p>

<p>la bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>• 1. Bankruptcy — Exemptions—Homestead—Abandonment.</p> <p>Under tlie laws and judicial decisions of Iowa relating to homestead exemptions, a bankrupt will be entitled to have his homestead set apart to him as exempt, although he has, for several years past leased it to third parties, instead of occupying it himself, provided he has not abandoned the property as a home, but has always intended to resume his occupancy of the premises at some future time.</p> <p>2. Same.</p> <p>Where a married woman held title to a homestead in her own right, and she and her husband occupied it as a home until they were divorced, the decree of divorce making no provision as to the homestead, after which slie leased it to strangers, but without abandoning her míeu-liou to resume her occupancy of it at some future time, and she becomes bankrupt, she will be entitled to claim the homestead as exempt, notwithstanding the provisions of a state statute (Code Iowa, § 2973), giving the right of homestead “to the party to whom it is adjudged in a decree of divorce, during continued personal occupancy,” as that statute refers only to cases in which the right to occupy the homestead is fixed by such a decree.</p>

This was an action by the United States to recover a special internal revenue tax from defendant as a retail liquor dealer. On motion by defendant for judgment on special verdict.

<p>Patents — Suit eor Infringement — Preliminary Injunction.</p> <p>A complainant is not entitled to a preliminary injunction against, infringement of a patent by defendant where the proofs establish prima, facie that defendant is manufacturing the articles claimed to infringe under a license given by a contract made by the president of the complainant corporation, in making which he acted, as was supposed by defendant, and so far as shown by the proofs, in fact on behalf of complainant.</p>

<p>Patents — Invention—Commutator Bar for Dynamo-Electric Machines.</p> <p>Hie Billings patent, No. 392,490, for a commutator bar for dynamo-electric machines (claim 1), which covers, as an article of manufacture, a bar made of commercially pure copper, rolled or drawn, and subjected to the drop-forging process, in view of the prior art and the well-known character of the process by which the article is made, does not disclose patentable invention, and is void. '</p>

<p>Patents — Effect of Assignment — -Revivor of Suit for Infringement.</p> <p>An assignment of a patent does not carry with it the right to recover damages for past infringements, and one to whom the administrator of a deceased owner has assigned a patent is not entitled to revive a suit begun by the decedent to enjoin infringement, and also to recover damages for past infringements.</p>

On the 1st of December, 1898, the steamship Thornley, Legg, master, bound from New York to Tampico, ran on the part of the Florida coast known as “Pickles Reef.” She had a cargo of about 3,800 tons of coal; also a quantity of dynamite, being four shipments, aggregating 3,350 cases, weighing net 79,-829 kilograms, nearly 80 gross tons weight, which was stowed in the stern of the ship.

<p>’In Admiralty. Suit by seamen for wages.</p>

This is an appeal from a decree of the district court, Southern district of New York, dismissing a libel. The libelant sued to recover for damages sustained by its floating derrick. The vessel, while lying at pier 14, East river, on a faliing tide, had her bottom pierced by two fragments of piles, which, it is contended, were part of a crib work that the owners of the pier had undertaken to remove when making certain changes in the structure.

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

<p>Collision — Evidence Considered — Burden of Proof.</p> <p>. Where a steam ferryboat, navigating in a fog at night, on hearing the fog signal of another vessel, apparently forward of her beam, which was recognized by her pilot as that of another ferryboat, whose course was such as to cause danger of collision, failed to stop her engines at once, as required by article 10 of Act .Tune 7, 1897, the burden rests upon her to show that, the collision which followed was not due to her neglect.</p>

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

<p>1. Federal Courts — Equity Jurisdiction.</p> <p>A legal remedy, to defeat jurisdiction of a federal court in equity, must be one existing when tbe judiciary act of 1789 was adopted, or thereafter created by act of congress.</p> <p>2. Same — Remedy at Law.</p> <p>Jurisdiction of a federal court of an action to quiet title merely, by a resident of the state where the land is situate, against residents of other states, on whom personal service could not be had in such state, cannot be defeated on the ground of an adequate remedy at law merely because an action for possession could be maintained against tenants in possession.</p> <p>3. Same — Waiver op Objection.</p> <p>The provision of the federal statute prohibiting resort to equity when an adequate remedy exists at law, being to preserve to the parties the right to jury trial, may be waived by complainant bringing suit in equity, and defendant answering to the merits.</p>

The appellant (plaintiff below), a life insurance company, is a corporation organized under the laws of the slate of New York, and doing business in the city of New York. It brings this suit in equity against the defendant, Alice' A. Cable, a citizen of Chicago, 111., as administratrix of Herman D. Cable, to cancel a certain policy of insurance issued by the plaintiff upon the life of said Herman 1). Cable in January of the present year.

<p>1. Quieting Title — Right to Maintain Suit — Evidence of Possession.</p> <p>Under the Illinois statute which permits the bringing of a suit to quiet title only by one in possession, or one claiming title to land which is vacant and unoccupied, the construction on a tract of land, by a claimant, of a structure of rough boards, 8 or 10 feet square, with a flat roof, having no foundation, chimney, or windows, and a door with no lock, not intended for a dwelling, or for any other use,, as far as shown, and which was in fact never .used, does not constitute such possession and occupation of the land as will support a suit to quiet title; nor can the complainant, having alleged in his bill actual occupancy of the land, on the failure of the proof to sustain such allegation, claim that the land was vacant and unoccupied, for the purpose of bringing the case within the other provision of the statute.</p> <p>2. Equity — Cross Bill for Affirmative Relief.</p> <p>A cross bill seeking affirmative relief is in the nature of an original bill. It does not fall with a dismissal of the original bill in the suit, whether such dismissal is by the act of the complainant or the court; and hence, although relating to a subject germane to th( matter of the original bill, it must rest upon some independent and recognized' ground of equitable jurisdiction.</p>

In Equity. On applications for allowances to the trustees and counsel from the fund produced by the sale of the property of the defendant railroad companies under the decrees of foreclosure.

<p>Usury — Effect on Contract — Provision for Attorney’s Fees.</p> <p>A statute which forfeits the interest on a contract in ease of usury, but does not make the contract void, does not affect a provision for attorney’s fees in ease of suit, and such provision is enforceable although the contract Is held to be usurious.</p>

<p>1, Specific Performance — Requisites of Enforceable Contract.</p> <p>There can be no decree for specific performance in the absence of a specific contract, and, until all essential points have been mutually and finally assented to, there is no such contract</p> <p>2. Same.</p> <p>Plaintiff submitted to the attorney for defendant a written proposition to lease from defendant certain coal lands for mining purposes. The proposal stated the royalties to be paid, but contained the condition, “Lease to contain usual mining privileges, and a reasonable minimum.” After consulting with defendant, the attorney wrote plaintiff that she accepted the proposal; further stating tlia.1 “the acceptance is predicated upon the signing of such a lease as I shall advise and prepare.” Eeld, that it was open to either party to refuse to sign the lease so prepared, and that its execution by plaintiff after being advised of the refusal of defendant to sign it did not create a contract which plaintiff could specifically enforce.</p>

<p>Gifts — Sufficikncy of DkTjTvkiiy.</p> <p>A gift of bonds by a husband to his wife is not established by evidence that the bonds were deposited by the husband in a box in a safety-deposit vault, to which tin' husband and wife each held a key, where they remained until the husband’s death; that the wife went with her husband at various times, and assisted him in cutting coupons from the bonds; and that the husband had declared in the presence of third persons his intention to give the bonds to his wife. Such facts do not constitute a completed gift, under the rule that there must have been such a delivery as to devest the donor of dominion and control of the property.</p>

This suit was brought by the appellant, Theodore R. Troendle, against John S. Van Nortwick and others, who were merely nominal parties.

<p>1. Eminent Domain- -Condemnation Proceedings — Confirmation of Report of Commissioners.</p> <p>In proceedings to condemn property for public use on an application to confirm the award of commissioners of appraisal, the court will not ordinarily weigh conflicting evidence of value, but will refuse to confirm only when it appears that the commissioners have proceeded upon a wrong principle.</p> <p>2. Same — Compensation for Property Taken — Time at which Value is to be Estimated.</p> <p>The fundamental doctrine that private property cannot bo taken for public use without just compensation does not require that the compensation be made in all cases concurrently in point of time with the actual exercise of the right of eminent domain, but, at whatever time it is to be made under the statute, just compensation entitles the owner to the full market value of his property at the time of the taking, and that time is to be determined by the terms of the particular statute under which 1lie proceedings are had.</p> <p>3. Same — Time when Property is Taken.</p> <p>Laws N. Y. 1883, c. 490, authorizing the city of New York to construct a new aqueduct for the purpose of a water supply, and to condemn lands necessary therefor, provides for the adoption by the aqueduct commissioners of maps showing the lands to be acquired in sections, which maps are to bo filed in the county in which the lands are situated, after which it is made the duty of the counsel of the corporation to apply to the court for the appointment of commissioners of appraisal, who are to make and file in the office of the clerk or register of each county in which such lands are situated an oath of office, and then proceed to appraise the property. The act further declares (section 30) that upon the filing of the oath of said commissioners the city shall “become seized in fee of, and may immediately enter into possession of and occupy in perpetuity,” all the lands shown on the maps filed as those io be acquired, and provides that in making compensation to the owner interest shall be allowed from that time. Held, that in appraising the property its value should he taken as of that time, and not as of the time when the map was filed, which did not devest the owner of any of his rights therein.</p>

This action is upon a forthcoming bond in attachment executed on July 21, 1892, to the sheriff of Cook county, Ill. The action in attachment was begun on July 16, 1892, in the circuit court of Cook county, by the defendant in error, Andrew J. Packard, against Prank A. White and Charles P. Ballard, as co-partners.

<p>On Demurrer by Defendant to a Keply Statement Filed by Plaintiff.</p>

The facts in this case are these: The town of Mt. Vernon, in Jefferson county, Ill., on July 1, 1887, issued 25 $1,000 funding bonds, for the purpose, as recited on the face of each bond, of “funding and retiring certain binding, subsisting, legal obligations of said township, which remain outstanding and unpaid.” The bond is in the usual form of a negotiable bond payable to bearer, and contains this recital: “This bond is one of a series of twenty-five of like tenor and…

<p>1. Appeal — Matteus Reviewable — Necessity of Exceptions.</p> <p>Under the Illinois practice a ruling on a motion to vacate a judgment and verdict is reviewable, although not excepted to.</p> <p>3. Same.</p> <p>Error cannot be predicated of an opinion or reason, given by the court for a ruling, but must be of the ruling itself.</p> <p>3. Dismissal--Failuee op Plaintiff to Appear — Practice in Federal Courts.</p> <p>Where the plaintiff fails to appear by himself or counsel at the time set for the trial of his action, the proper piactiee in the federal courts is to dismiss the action for want of prosecution, and it is error in such case to impanel a jury, direct a verdict, and enter a judgment thereon for defendant on the merits.</p>

This action was brought by the plaintiff in error, Blanche L. Snow, “for her own benefit and the benefit of the United States,” against Fred C. Laird and William O. Lee, co-partners under the firm name of Laird & Lee, but, Laird having left the firm and the country, the action is practically against Lee alone.

<p>1. Misjoinder of Parties — Waiver by Apptsaranoe.</p> <p>Defendants by a general appearance waive the objection of a misjoin-der because other defendants are not inhabitants of the district.</p> <p>2. General Appearance.</p> <p>There is a general appearance by a demurrer which does not alone object to the jurisdiction, hut goes to the merits' of the ease.</p> <p>S. Antitrust Law- — Unlawful Combination.</p> <p>A complaint alleging that members of an association have conspired and combined to raise the prices ol' tiles, mantels, and grates, to control the output, and to regulate the prices thereof, with the intent to monopolize the trade and commerce between the other states and California in regard thereto, as well as to arbitrarily fix their prices independently of their natural market value, brings the case within the antitrust act of July 2, 1890 (26 Stat. 209).</p>

The principal question in this case is whether the circuit court erred in directing a verdict for the defendant.

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

<p>1. Bankruptcy- — Jurisdiction.</p> <p>Section 2 of the bankruptcy act of 1898 confers upon district courts full jurisdiction of actions at law and suits in equity to collect the estates of bankrupts, and this jurisdiction is in no Way impaired by subdivision b of section 23.</p> <p>2. Same — Suits by Trustees.</p> <p>Subdivision b of section 23 relates only to venue, and requires suits by the trustee to be brought, in the district and division in which they should properly have been brought if prosecuted by the bankrupt.</p> <p>3. Same — Jurisdiction ov State Courts.</p> <p>Congress has not the power to impose the execution of any part of the federal bankruptcy law upon the state courts.</p> <p>(Syllabus by the Court.)</p>

<p>In Bankruptcy.</p> <p>On examination and proceedings had before the referee, and on findings of fact thereupon filed, the referee entered an order on November 16, 1899, requiring the bankrupt to turn over to the trustee §6,635.02, as “money in his possession which he has failed to turn over,” and to turn over and deliver to the trustee “merchandise in his possession which he has failed to deliver” to the amount and value of §22,700.91, “or the proceeds thereof in money,” all within five days after due service, etc. On November 20th the bankrupt filed a petition for review and examination by the district court, and the matter was thereupon certified, together with a certificate by the referee that the time for compliance with said order expired on November 22, 1899, after duo service, and that the bankrupt “willfully and contumaciously .defied and dis- - obeyed the said order” in said proceedings, and was guilty of contempt, and should be committed, etc.</p>

In Bankruptcy. On question certified,by the referee whether an assignment by the bankrupt of a claim against the city of Milwaukee for $1,241.10, made to the Bundie-Spence Manufacturing Company, a creditor, within four months before the filing of the petition, in consideration of a cash discount granted'by the creditor on an account for goods theretofore sold, constitutes an unlawful preference, under the provisions of section 60 of the bankruptcy act.

<p>In Bankruptcy. Certain creditors filed specifications in opposition to tbe bankrupts’ application for discharge on the ground that they had concealed property belonging to their estate in bankruptcy, and also on the ground of their having concealed their books of account in contemplation of bankruptcy, and with intent to conceal their true financial condition.</p>

<p>1. Bankruptcy — Jurisdiction—Suits by Trustee.</p> <p>A court of bankruptcy has jurisdiction of a-proceeding by a trustee in ' bankruptcy for the recovery of property of the bankrupt held by an attaching creditor whose attachment was obtained in a suit begun against the bankrupt within four months prior to the filing of the petition in bankruptcy.</p> <p>2. Same — Assets in Bankruptcy — Property op Bankrupt’s Wipe.</p> <p>Where a married woman engages in business on her own account, but does not file the certificate required by the state law (Pub. St. Mass. e. 147, § 11) to entitle her to' the privileges of a feme sole trader, so that her property employed in such business remains liable to attachment as the property of her husband at the suit of his creditors, the husband’s trustee in bankruptcy will take title to such property, attached by a creditor of the husband within four months before the filing of the petition in bankruptcy, since it is property “which might have been levied upon and sold under judicial process against him,” within the meaning of Bankr. Act 1898, § 70a, cl. 5.</p> <p>3. Same — Attachment Lien — Subrogation op Trustee.</p> <p>Where a creditor of the bankrupt, within four months before the filing of the petition in bankruptcy, had attached property belonging to the bankrupt’s wife, and employed by her in her business, but remaining liable to such attachment by reason of her neglect to file the married woman’s certificate required by the state law, and the creditor had sold some of the property attached, and held possession of the remainder, held, under Bankr. Act 1898, § 67c, cl. 3, that the dissolution of such lien would militate against the best interests of the estate, and consequently it should not be dissolved, but that the trustee was entitled to the property, and to the proceeds of that sold, and should be subrogated to the rights of the attaching creditor, as respects the lien,</p>

<p>On Demurrer to Bill in Equity. This is a bill in equity filed by the complainant as trustee in bankruptcy of the estate of Frank E. Headley, bankrupt. The purpose of the suit is to set aside conveyances made by the bankrupt to the co-defendants O. M. Headley and Joseph D. Sheppard on the ground that the transfers were made in fraud of the creditors of the bankrupt, and for other special relief against the other co-defendants as mortgagees under said grantees. As the complainant as well as the defendants are resident citizens of said district and division, the defendants demur to the bill on the principal ground that the district court has not jurisdiction over the subject-matter of the suit.</p>

<p>In Bankruptcy. On petition of B. W. Persons, receiver and trustee. for an injunction.</p>

In Bankruptcy. On review of decision of referee in bankruptcy overruling a motion to set aside the adjudication and dismiss the proceedings.

<p>In Bankruptcy-</p>

In Bankruptcy. On application for leave to amend a voluntary petition in bankruptcy filed by a partner-ship, and on petition of the partners for discharge. . . ‘

<p>1; Trade-Names — Foreign Name of Article.</p> <p>A word which lias been for centuries in Armenia the name of an article of food or diet prepared from sterilized and fermented milk cannot be appropriated as a trade-name by the person who introduced the article and the name into this country.</p> <p>2. Same — Similarity between Names.</p> <p>The fact that a correct transliteration of the Armenian word into English would make it “Madzoon,” rather than “Matzoon,” does not render the latter subject to monopoly as a trade-name; the difference between the two words being too slight to be recognized as creating a distinction in the law of trade-marks.</p> <p>8. Same — Suit for Infringement — Equitable Estoppel.</p> <p>The rule applied that a complainant cannot maintain a suit in equity to protect his monopoly in the use of a trade-name, which is in fact the name of an article well known in foreign countries, on the ground that the product to which he applies it is a new article of manufacture, and not the article of which the name is descriptive, where he has represented by his labels and otherwise that it was such article, and has built up the business which he seeks to protect upon such representations.</p> <p>4. Same — Unfair Competition.</p> <p>Applying the rule that when a. trade-name of a descriptive character has been used by a manufacturer for so long a time, and has come to be so associated by the public with his goods that it malíes it the duty of another, who then commences its use in connection with a product of his own, to couple with it such caution as is suitable to guard the public from confusing the source of production, the latter, under the facts of this case, is held, to have done all that can be required, 1</p>

Bill in equity to restrain alleged infringement of letters patent No. 533,463, issued to complainant under date of March 12, 1895. Submitted on pleadings and proofs.

This was a suit in equity for infringement of a patent. Both parties appeal. In the circuit court the following opinion was rendered by Buffing-ton, District Judge: In this case Mildred Blakey, by virtue of patent No. 311,171, of January 27, 1885, seeks to enjoin the manufacture and sale by the respondents of pipe protectors represented by Exhibits 1, 2, and 3.

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

<p>This was a suit in equity for infringement of certain patents. On final bearing.</p>

<p>Shipping — Construction of Time Charter — Time for Discharging Cargo.</p> <p>A charier party for as many voyages between given ports as can be made between the date of the charter and a futuro date, and which contains stipulations for lay days in loading and discharging, for customary dispatch, and for the payment of wharfage by the charterer, is a time contract for as many voyages as ea.n be performed within'the time specified, including the necessary detention upon each voyage for loading and discharging cargo; and the vessel is not bound to enter upon a voyage which it is reasonably certain cannot be completed and the cargo discharged before the expiration of the charter limit.</p>

<p>Circuit Court off Appeals — Jurisdiction—Constitutional Question.</p> <p>A suit brought to have ordinances granting a franchise to construct and. operate a street railroad annulled on the ground that they impair the obligation of a contract made by an act of the legislature and a prior ordinance, by which plaintiff claims to have been granted an exclusive franchise, and deprive plaintiff of property without due process of law, necessarily involves a constitutional question, and the circuit court of appeals is without jurisdiction of an appeal therein.1</p>

<p>This is a suit in equity for the foreclosure of a mortgage. On objection to jurisdiction.</p>

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

<p>Stiiebt Raii.Roads — Rights oe Abutting Property Owners — Jurisdiction op Equity to Grant Injunction.</p> <p>An abutting property owner, who would suffer a special and irreparable injury from the construction anil operation of a street railroad upon the street under an ordinance alleged to be invalid, may invoke equitable relief by injunction. The rule declared by the supreme court of Illinois that a court of equity will not enjoin the construction of a railroad upon a street at the suit of a private property owner, upon an allegation thai. the ordinance authorizing its construction is illegal, is placed upon, the ground that for any injury to the plaintiff’s property he has an adequate remedy at law, and cannot be applied to a case where irreparable injury is shown, which would be to deny to the complainant any adequate remedy.</p>

<p>Mandamus to Court — Remedy by Appeal.</p> <p>Tlie circuit court having refused to enter a decree, and having permitted' defendant to answer, its action cannot he reviewed hy mandamus to compel it to sign a decree, and to order the answer to be stricken from the files, there being full remedy by appeal, and this, independently of any question as to the general power of circuit courts of appeal to issue special writs.</p>

Action of ejectment to recover the Virginia portion of a grant of 500,000 acres lying in Virginia, West Virginia, and Kentucky. See King v. Campbell (C. C.) 85 Fed. 814. The subjoined diagrams will aid an understanding of the opinion. Mg. 1 is a plat of the Robert Morris 500,000-acre tract, returned by surveyor Taylor, with his certificate of survey.

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

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

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

<p>1. Declaration — Oyer of Deed.</p> <p>Production by plaintiff of a deed mentioned in the declaration, on defendant craving oyer thereof, makes it part of the declaration.</p> <p>2. Married Woman — Liability on Covenant.</p> <p>Starr & 0. Ann. St. Ill. (2d Ed.) p. 2122, § 6, declaring that “contracts may he made and liabilities incurred by a wife, and the same enforced against her s ~ * as if she wore unmarried,” does not make her liable on covenants in a deed of her husband’s land, in which she joins to release dower or homestead rights.</p> <p>8. Conflict of Laws.</p> <p>Liability of a wife on covenants in deed of her husband's land, in which she joins to release dower or homestead rights, is governed by the laws of the state in which the land is situate and the deed is delivered, though the deed is acknowledged in another state.</p>

<p>1. Pmiadino -Affidavit of Defense.</p> <p>While an affidavit of defense need not be framed with the technical accuracy of formal pleadings, it must disclose all (he elements of a substantial defense, and cannot be strengthened by intendment.</p> <p>2. Same — Alleging Breach of Warranty.</p> <p>An affidavit of defense does not sufficiently aver a breach of a contract. of warranty that certain’ machinery to be furnished for a dredge should be of ample strength and good construction, and should perform the work specified, without breaking down, if properly handled, by alleging that the “dredge and machinery” failed to perform the work, and broke down, and which fails to allege that the machinery was properly handled.</p> <p>8. Promissory Notes — Contract of Indorser — Faroe Evidence to Vary.</p> <p>By the uniform decisions of the United States courts, the contract created by the indorsement and delivery of a negotiable note cannot. Do contradicted, added to, or varied by proof of a contemporaneous parol agreement; and, the question being one of general commercial law, such rule governs in all federal courts.</p>

On February 5, 1887, L. Y. F. Randolph obtained a judgment against W. T. Hudson and others in the United Stales circuit court for the Northern district of Texas for Íp52,926.60. On Jane 20, 1897, Randolph’s agent made affidavit in due form to obtain a writ of garnishment to A. H. Tandy. The writ was issued on dune 26, 1897, and was duly served on June 29, 1897.

This is an action of assumpsit on six warrants drawn by the clerk upon the treasurer of Jackson county, Ill,, each for five hundred dollars, upon interest coupons attached thereto, and upon coupons cut from other warrants of the same tenor and origin. The warrants hear date February 1, 1895, are made payable two and three years after date, and otherwise are alike.

This case is here the third time. It was here first on demurrer to the declaration (Columbus Const. Co. v. Crane Co., 9 U. S. App. 46, 3 C. C. A. 216, 52 Fed. 635); and the second time after a trial upon the merits, which resulted in a verdict and judgment for $48,000 in favor of the plaintiff, the present plaintiff in error.

<p>Master and Servant — Fellow Servants — Railroad Engineers and Fire-hen.</p> <p>Plaintiff, who was employed as a fireman on an engine of defendant railroad company, while oiling a turntable by direction of the engineer, which was a matter properly within the duty of the engineer to have attended to, under the circumstances and the rules of the company, was injured through the negligent act of the engineer. Held that, under the common-law rule as declared by the courts of the United States, the engineer was a fellow servant with plaintiff, for whose negligence the master was not liable.1</p>

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

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

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Assets—Estate in Remainder.</p> <p>A testator devised all his property to his wife “for and during the term of her natural life.” He appointed her executrix, and gave her power to sell the property, or any part thereof, and to “invest and reinvest the proceeds.” He devised to his son, “absolutely and forever, all the rest, residue, and remainder” of his property after the death of his wife. After the death of the testator, but before the death of the widow, the son was adjudged bankrupt. Held, that at the time of the adjudication he had an absolute vested remainder in his father’s estate, which would pass to his trustee in bankruptcy, and should have been listed in his schedule of assets.</p> <p>8. Same — Right to Discharge — Concealment of Assets.</p> <p>The bankrupt having admitted that he had seen his father’s will, and there being nothing to show that he was under any mistake as to its legal effect, and it appearing that the estate in remainder was of substantial value, held that his omission of such estate from his schedule, and his testimony, on his examination in bankruptcy, that he had no interest in his father’s estate, constituted a knowing and fraudulent concealment of property from his trustee, such as would forfeit his right to a discharge.</p> <p>.8. Same — Burden of Proof.</p> <p>When creditors file specifications in opposition to a bankrupt’s application for discharge on the ground of a fraudulent concealment of assets, the burden of proof is upon them; but when they have made out a prima facie ease of the existence of assets it devolves upon the bankrupt to explain any facts which are peculiarly within his knowledge, and, if he fails to do so, he may be presumed to admit them.</p>

This is an. action by a trustee in bankruptcy to "recover the purchase pi’ice of property sold by the bankrupt to a creditor. On demurrer to answer.

<p>Bankruptcy — Liens upon Estate — Unrecorded Mortgage.</p> <p>ITiwter Bankr. Act 1898, § 67a, providing that “claims which, for want of record or for other reasons, would not have been valid liens as against the claims of the creditox-s of the bankrupt, shall not be liens against his estate,” a trustee in bankruptcy occupies the position of a purchaser for value, without notice; and a creditor cannot enforce against property in the hands of the trustee a chattel mortgage or other incumbrance which, for want of record and of actual notice, would not have been valid as against such a purchaser.</p>

Prom an adjudication of bankruptcy against the firm of Meyer & Dickinson, and against Henry L. Meyer, one of the partners, on the petition of the Chemical National Bank and other creditors (92 Fed. 896), this appeal is taken by Marcuard, Krauss & Co., intervening-creditors, and Charles W. Sparhawk, assignee for the benefit of creditors.

<p>Appeal from the District Court oí the United States ior the Northern District of New York.</p> <p>This is an appeal from a decree dismissing a petition in involuntary bankruptcy brought against the appellee by the appellant and other creditors. 95 Pod. 957.</p>

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

<p>1. Injunction — Scope—-Persons not Parties.</p> <p>A person cannot be committed for contempt for tbe violation of a restraining order made by a federal court in a suit between private persons, to which he was not made a party, either by words of specific or general description, and where he is, moreover, a citizen and resident of another state, who could not be sued by the complainant in such court without his consent.</p> <p>2. Habeas Corpus — Grounds for Granting of Writ.</p> <p>A person imprisoned for the violation of an order which did not extend to him, or, if it in terms extended to him, was in excess of the jurisdiction of the court, is entitled to a discharge by. the writ of habeas corpus.</p>

<p>Ou Demurrer to ’Plaintiff’s Statement of Claim.</p>

<p>This is a suit in equity for infringement of a patent. On motion for preliminary injunction.</p>

<p>Compiiomtsi: op Claims — Settlement in Writing — Frau»—Proof Require».</p> <p>Wiioi'e parties liave compromised all claims in controversy by agreeing upon an amount to be paid in settlement, and liave reduced their agreement to writing, neither party will be heard to complain, unless upon clear proof of fraud in procuring- said settlement.</p>

In Admiralty. This was a libel for the injury suffered by the consignee of a cargo carried on a chartered vessel, the master of which, acting under instructions from the owners, refused to dock her upon arrival, the delay resulting in another cargo, belonging to a rival of the libelant, being first discharged, and thereby securing the market. The facts are very fully recounted in the opinion of the court. Decree for libelant.

<p>Appeal from the District Court of the United States for the Eastern ■ District of Yew York.</p> <p>For opinion in district court, see 90 Fed. 110.</p>

<p>Collision — Determination of Fault — Evidence Considered.</p> <p>Evidence considered, and held to establish that a collision between two-schooners meeting in the evening was caused by the vessel having the right of way changing her course after the vessels were within sight of each other.</p>

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

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

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

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

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

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

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

<p>Appeal from the Circuit Court of the United Stares for the Eastern District of Arkansas.</p>

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

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

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

Action at law to recover damages in the sum of SoO for the alleged neglect of the defendant, as a common carrier, to receive and transport a certain package ef merchandise offered and tendered by plaintiff for conveyance and transportation.