Volume 99 — Federal Reporter

<p>1. Jueisdiction — Question—How Raised.</p> <p>The question oí jurisdiction may he considered on rnotioi to dismiss, though a plea to the jurisdiction is the better practice.</p> <p>2. Same — Action foe Penalty.</p> <p>An action for treble the amount lost at gambling, — one half thereof to go to the person bringing the action, and the other half to the county, — authorized by 1 Starr & C. Ann. St. 111. 1885, p. 792, c. 38, § 132, to be brought against the winner by any person in case the loser fails to sue for his losses, is for a penalty, and cannot be taken jurisdiction of by a federal court, though the money lost belonged to plaintiff, and had been surreptitiously taken by the loser.</p>

In Equity. On Juno 2, 1899, Mrs. Feliciana R. Miles filed a bill in the United States circuit court for the Eastern district of Louisiana against the New South Building & Loan Association, a corporation created and organized under the laws of Louisiana, alleging insolvency of the corporation, and asking that a receiver be appointed, and the affairs of the corporation wound sap. On June 3, 1899, a receiver was appointed as prayed.

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

This was a suit in equity by a bondholder to foreclose a trust deed given by defendant corporation to secure an issue of bonds of which complainant held a part.

The original bill was filed by Thomas A. Hamilton and his wife, Elizabeth H. Hamilton, in the chancery court for Shelby county, Tenn., for the purpose of enjoining the sale of certain premises situated in that county under a power of sale contained in a mortgage made by the complainants to secure a certain promissory note theretofore made by them to the Jarvis-Conklin Mortgage Trust Company, a corporation of the state of Missouri, whose principal office was at Kansas. City.

On motion for leave to amend statement of claim and exception to cross interrogatories filed to be propounded under a commission to take a deposition.

<p>Appeal from Taxation of 'Costs.</p>

This was a suit by Ida F. Fitzwilliam against Oolin Campbell and others for the recovery of the James W. Fannin headright survey of 4,605 acres of land, situated in Karnes county, Tex.

<p>L Jurisdictional Amount — Assignment of Several Claims.</p> <p>Itev. St. 1878, § 029, as amended by 25 Stat. 433, c. 860, § 1, providing that the circuit court shall not have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of the assignee unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made, does not prevent action in such court by an assignee of several claims, each less, but aggregating more, than $2,000, the assignors having been citizens of states other than that of defendant.1</p> <p>3 Penal Statute — Enforcement Out of State.</p> <p>Comp. Laws Mont. p. 728, § 400, requiring corporations to annually file financial reports, and making the trustees of one which does not liable for its debts, is not a penal statute, so als to prevent enforcement out of the state of the trustees’ liability thereunder.</p> <p>8. Corporations — Assignment of Claim — Eight of Assignee.</p> <p>An assignee of a claim against a corporation has a right to enforce against its trustees their liability therefor, under a statute making them liable if the corporation fails to file an annual financial report.</p> <p>4. Conflict of Laws.</p> <p>Validity of an. assignment is governed by the law of the state where the liability arose and which is the domicile of the assignor and assignee.</p>

<p>1. Appeal — Record.</p> <p>Instructions printed in a transcript on appeal as having been given, or asked and refused, on the trial, but which are not contained in any bill of exceptions, or in any manner authenticated by the trial judge, do not constitute a part of the record in the case.</p> <p>2. Same — Bill op Exceptions.</p> <p>To enable an appellate court to review exceptions to the giving or refusal of instructions, the bill of exceptions should contain a sufficient statement of,the evidence to show whether or not such instructions were applicable to the case before the jury.</p> <p>3. Same — Questions Presented by Record — Presumptions.</p> <p>Where the record on appeal falls to show that it contains all the evidence, the presumption is that there was evidence which justified the court in refusing to direct a verdict.</p> <p>4. Wrongful Death — Action by Parents — Damages—Loss op Services.</p> <p>tinder the Texas statute (Rev. St. 1895, art. 3017) giving a right of action for actual damages on account of injuries causing the death of any person,, when caused by the negligence or wrongful act of another, the parents of a minor may recover in such an action for the loss of services of the deceased during minority, although lie was instantaneously killed.</p>

<p>Aliens — Admission to Citizenship — Proof Required.</p> <p>Under Rev. St. § 2107, which permits an alien who has resided, within the United States for 3 years .next preceding his arriving at the age of 21 years to he admitted as a citizen without having made the declaration of intention required by section 2165 to be made by adult immigrants at least 2 years prior to their admission, but which requires that such applicant shall make such declaration at the time of his admission, “and-shall further declare on oath, and prove to the satisfaction of the court, that for two years next preceding it has been his bona fide intention to become a citizen of the United States,” substantial evidence of the existence of such intention for the required time, in addition to the oath of the applicant, is required; and vague, oral statements of a single witness should not be accepted as a sufficient substitute for the documentary evidence required by section 2165.</p>

<p>Master and Servant — Injury to Servant — Negligence of Fellow Servants. If the negligence of a master contributed to an injury to his servant, it is no defense to an action against him therefor that fellow servants were also guilty of negligence which contributed thereto.</p>

This is an appeal from a decree of the circuit court for the Eastern district of Tennessee (Judge Severens presiding) affirming and enforcing an order of the interstate commerce commission.

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>This is a suit by Ellen Hennessy, of the state of Texas, against the Manhattan Life Insurance Company, incorporated under the laws of the state of New York, for $9,000, being the amount of two insurance policies on the life of Patrick H, Hennessy, deceased. The Manhattan Life Insurance Company issued one of the policies on April 1, 1872, for $5,000, and the other on January 23, 1874, for 84,000. Each policy was payable to the “said assured, liis executors, administrators, or assigns, within ninety days afier due notice and satisfactory evidence of the death of the said Patrick H. Hennessy.” Patrick II. Hennessy and M. P. Hennessy were partners in business, in Texas, under the firm name of P. II. Hennessy & Pro. This firm owed the J. L. Mott Iron Works, a corporation chartered under the laws of the state of New York, about 842,000, for which debt each member of the firm was individually liable. Patrick H. Hennessy assigned one of these policies as follows:</p> <p>“The State of Texas, County of Galveston.</p> <p>“Know all men by these presents, that whereas, the Manhattan Life Insurance Company, of the city of New York, state of New York, has heretofore, to wit, for value received, issued to me their policy of insurance in writing, bearing-date April 1, A. D. 1872, whereby they insured my life in the sum of $5,000: Now' I, Patrick II. Hennessy, of the city and county of Galveston, state of Texas, for and in consideration of my indebtedness to the J. L. Mott Iron Works, of the city of New York, state of New York, have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto tlie said J. L. Mott Iron Works, all my right, title, and interest in and to the said policy of insurance, and all sum and sums of money, -interest, benefit, and-advantage whatsoever now due, or hereafter to arise, or to be had or made, by virtue thereof; to have and to hold the same unto the said J. L. Mott Iron Works, executors, administrators, and assigns, forever, as collateral security to the said J. L. Mott Iron Works. Witness my hand and the use of scroll for seal, at the city of Galveston, this April 13, A. D. 1872.</p> <p>“P. H. Hennessy. [L. S.]”</p> <p>The other one he assigned in these words:</p> <p>“The State of Texas, County of Galveston.</p> <p>“For value received I, the undersigned, having a policy on my life in the Manhattan Life Insurance Company, of New York, said policy being numbered 86,943, dated January 23, A. D. 1874, for the term of life from that date, for the amount of $4,000, annual premium $120.64, do hereby grant and transfer all my right, title, and interest in and to the same unto the J. L. Mott Iron Works of New York, and their assigns and successors. Witness my hand and scroll for seal this April 17, A. D. 1874. P. H. Hennessy. |L. S.]”</p> <p>Both assignments were duly acknowledged by Patrick H. Hennessy before William R. Johnson, notary public for Galveston county, Tex. Both policies were delivered to the J. L. Mott Iron Works, and remained in its possession. Due notice of each of these assignments of the policies was given by the said Patrick H. Hennessy to the Manhattan Life Insurance Company, which assented to the assignments. The firm of P. H. Hennessy & Bro., on August 23, 1875, executed a general assignment, which states “that it conveys all the property of the firm and its members not exempt by law.” In this instrument the debt to the J. L. Mott Iron Works is estimated at over $42,000 principal. This assignment provides that the proceeds shall be distributed pro rata by the assignee to all the creditors who shall accept this assignment and sign a release in full of all claims and demands against the firm of P. H. Hennessy & Bro., and to those only. On November 1, 1875, the J. L. Mott Iron Works proved their claim with the assignee for $48,309, principal and interest, and received a dividend thereon on November 11, 1875, of 7 per cent., $3,381.63, and another and final dividend on March 22, 1876, of 3% per cent., $1,811.58; leaving unpaid $43,115.79. On the policy for $5,000 the J. L. Mott Iron Works paid the annual premiums from April 1, 1876, to April 1, 1896, amounting in the aggregate to $2,388.75. On the policy for $4,000 the J. L. Mott Iron Works paid the annual premiums from January 23, 1876, to January '23, 1897, amounting in the aggregate to $2,150.07. Previous to these payments the premiums on the policies were paid by Patrick H. Hennessy. On January 18, 1879, Patrick H. Hennessy wrote to the Manhattan Life Insurance Company, stating that he was informed that the J. L. Mott Iron Works was keeping up the policies on his life “given them to secure the indebtedness to them of the late firm of P. H. Hennessy & Bro.,” and that this firm was dissolved on August 25, 1875. Hennessy, in his letter, adds: “The assignment referred to provided that the creditors accepting it should take the property specified therein, and therefor give a discharge from all indebtedness. The J. L. Mott Iron Works accepted the assignment, received their pro rata under it, and thereby any further claim of theirs became canceled. They took the property for their claim, and their claim was thereby satisfied. This communication is to notify you of the facts as stated, and to demand, as the J. L. Mott Iron Works hold no insurable interest in my life, that the policies on my life in your company in their favor, or if assigned by them to others, be Canceled, and rendered null and void.” Patrick H¡ Hennessy made his last will on December 19, 1890. He gave all his property to his wife. He mentioned in the will that he had made provision for his children- by a policy in the .¿Etna Life Insurance Company, but the policies involved in this litigation are not mentioned. His wife is made sole executrix. Patrick H. Hennessy died on February 13, 1897. The Manhattan Life Insurance Company was notified by the J. L. Mott Iron Works that it claimed the amount of the two policies as the assignee of Patrick H. Hennessy, and it also had notice that Ellen Hennessy claimed the policies as the executrix and sole legatee of her husband, Patrick H. Hennessy. In the course of the correspondence that ensued, the Manhattan Life Insurance Company, on March 11, 1897, wrote to the attorneys of Mrs. Ellen Hennessy as follows: “We also beg to notify you that the papers on file in the office of this company indicate that the .T, L. Mott Iron Works, oi' this city [Xew York!, as the assignee of both policies, is entitled to payment 1 hereof when by the terms thereof the payment is due, namely, ninety days after receipt of proof of loss, to wit, May 30 next. The company desires to make payment of the policies upon their due date upon the surrender of the policies with satisfactory proof of ownership by the lawful claimant.” On May 11, 1897, the Manhattan Life Insurance Company wrote to the same attorneys: “As the whole of the proceeds of both policies is claimed by adverse claimants, Mrs. Ellen Hennessy, its executrix and wife, and by the J. L. Mott Iron Works, and last this company stands indifferent between the parties, we would be glad to have an opportunity to pay the money into court, that the respective rights of the claimants may be adjudicated.” After the death of Patrick H. Hennessy, the J. L. Mott Iron Works and Ellen Hennessy each made due proof of loss on the two policies. The Manhattan Life Insurance Company paid the amount of the two policies, when they became due, to the J. L. Mott Iron Works on the surrender of the policies and the assignments of them. Ellen Hennessy sued the Manhattan Life Insurance Company for the amount of the two policies. She claims to be the owner of them as legatee and as executrix of Patrick II. Hennessy. The Manhattan Life Insurance Company, for defense, denied her ownership, and pleaded the payment to the J. L. Mott Iron Works. The court instructed the jury to find for the plaintiff, Ellen Hennessy, for the full amount of both policies, $9,000, with interest from May 30. 1897, and the defendant, the Manhattan Life Insurance Company, duly excepted. The jury rendered the verdict as directed, and judgment was entered on it, and the ManilaHtin Life Insurance Company sued out a writ of error to review the decision in this court. It is assigned as error that the court directed a verdict for the plaintiff.</p>

In Bankruptcy. On review of decision of referee in bankruptcy overruling a motion to vacate the adjudication and dismiss the petition of the bankrupt.

<p>In Bankruptcy.</p>

<p>.1. Bankruptcy — Jurisdiction in Partnership Cases — Domicile of Partners.</p> <p>A petition in involuntary bankruptcy against a partnership, alleging that, during the greater part of tbe preceding six months, tbe several partners bad their respective domiciles within tbe district where the petition is filed, will be dismissed on motion of the respondents, unless amended on leave, where it is shown that none of the members of the firm had his domicile or resided within the district long enough to support the jurisdiction of the court.</p> <p>2. Same — Place of Business of Firm.</p> <p>Where a partnership has had its only place of business within a given judicial district for a period of more than three months before the filing of a petition in bankruptcy against it in such district, the court therein will have jurisdiction of the petition, although, during a part of that time, the only business carried on was in the way of winding up the affairs of the firm by two of the partners, the others having retired.</p> <p>S. Same — Allegation of Insolvency.</p> <p>In a petition in involuntary bankruptcy against a firm, it is not sufficient merely to allege that “the partnership is insolvent,” hut there should also he an averment as to the solvency or insolvency of each one of the partners.</p>

<p>In Bankruptcy. On bankrupt’s application for discharge and opposition thereto by creditor.</p>

<p>In Bankruptcy. On bankrupts’ application for discharge and opposition thereto by creditors.</p>

<p>This is a suit in equity to establish and enforce a pledge against the trustee in bankruptcy of the pledgor. On objections to jurisdiction.</p>

<p>Bankruptcy-Filing Petition.</p> <p>Where a voluntary partnership petition in bankruptcy was signed, verified, and presented by all tbe members of the firm, and was accompanied by schedules of the firm’s assets and debts, but not.by any individual schedules, and no adjudication was made thereon, but subsequently the petition was in part withdrawn, and a new petition was filed, with parts of the old petition pasted thereon, and individual schedules of all the partners added by way of amendment, and thereupon an adjudication was made, held, that the petition was “filed,” within the meaning of the bankruptcy act, on the later date, and not the earlier.</p>

<p>This is a suit in equity for infringement of a trade-mark and for unfair competition. On motion for preliminary injunction.</p>

<p>This is a suit in equity for infringement of a patent.</p>

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

<p>Patents — Evidj nck of Assignment — Patent-Office Records.</p> <p>Certified copies of patent-office records of assignments are not primary evidence of such assignments, and are only admissible to prove title to a patent where proper foundation is laid by showing the existence of the original instruments, and that they are lost or destroyed, or that it is out of complainant’s power to produce them.</p>

This is a hill to restrain the infringement of patents No. 332,762 and No. 367,252, both issued to La Marcus A. Thompson. The first is for certain improvements in gravity switch-hack railways, and the second is for improvements in elevated gravity and cable railroads. The complainant, Noonan, is the assignee of Thompson of the exclusive right under said patents of a limited territory, which includes the county of Hamilton, in the state of Ohio.

<p>1. Patents — Infringement—Photographic Shutters.</p> <p>The Green patent, No. 8(52,211, for a photographic shutter, construed, and held valid, but limited by the stated purpose of the invention, which was to adapt the shutters previously in use io cameras having small-sized front boards, by constructing them in two pairs, eacli pair of which, when opened, should fold back into the case side by side, and thus lessen the space required for their operation, and, as so limited, not infringed by shutters which, while arranged in two pairs, do not fold side by side.</p> <p>2. Same.</p> <p>The Perry patent, No. 287,858, for a, photographic shutter, held to be limited by the amendments made in its claims to meet objections of the patent office to the specific combination therein described, and, as so limited, not infringed.</p>

<p>In Admiralty. Suit to recover additional freight under a charter.</p>

■ In Admiralty. The libelant, an able seaman, undertook to pay off a rope which another seaman had been ordered to cast off, and in doing so unnecessarily exposed himself, and was severely injured. No negligence on the part of the ship’s officers was shown.

<p>1. Admiralty — Allowance of Set-Off — Separate Demands.</p> <p>In a suit by an assignee to recover freight earned under a charter party, a claim, set up in the answer, for coal, which it is alleged was furnished by defendant to libelant’s assignor, after the making of the charter party, “solely in reliance on the said contract of affreightment, and with the intention, expectation, and anticipation” that the price of such coal would be retained from the freight earned under such contract, but without alleging any agreement to that effect, does not constitute a set-off which can be entertained by a court of admiralty, the rule permitting a set-off for advances made upon the credit of the particular debt or demand sued on being limited to cases where there was an agreement that they should be so paid.</p> <p>% Same — Pleading.</p> <p>An averment that coal was furnished with “the intention, expectation, and anticipation” that the price therefor should be deducted from certain freights is not equivalent to an allegation that such was the mutual agreement of the parties.</p>

<p>In Admiralty. This was a suit against the steam tugs Ashbourne and Robert Haddon to recover damages for collision.</p>

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

<p>1. Removal op Causes — Diversity op Citizenship — Joinder op Formal Parties.</p> <p>A corporation brought a suit in equity in a state court against persons alleged to be the holders of certain of its stock and bonds, who were all citizens and residents of other states, to obtain an accounting, and the surrender of such stock and bonds, on the ground that they had been obtained by one of the defendants, who was a director of complainant, in fraud of its rights. The bill also alleged that defendants had made a demand on the trustees in the trust deed securing the bonds in suit, with others, for the foreclosure of such trust deed, and made the trustees, one of whom was a citizen of the same state as complainant, parties defendant for the purpose of obtaining an injunction restraining such foreclosure. Held, that the trustees were not indispensable, but merely formal, parties, having no interest in the controversy, and that their joinder did not deprive a federal court of jurisdiction of the suit, which was removable by the individual defendants.</p> <p>2. Equity — Hearing—Right op Parties to Decision on the Merits.</p> <p>Where both parties to a controversy are before the court, and a full hearing has been had upon their respective claims, the suit should be determined on the merits, and it is error 'to dismiss it without prejudice against the wishes of both parties.</p> <p>3. Railroad Corporations — State Regulation — Issuance op Stock.</p> <p>The provision of Const 111. art. 11, § 13, that no railroad corporation shall issue any stock or bonds except for money, labor, or property actnally received and applied to tlio purposes for which such corporation was organized, and that all stock dividends and other fictitious increase of the capital stock of any such corporation shall he void, does not render invalid stock issued by a railroad company, directly or indirectly, in payment for the. construction of its road; nor can a court hold it invalid on' a determination that the consideration so received was not equal to the par value of the. stock.</p> <p>4. Same.</p> <p>The issuance of stock by a railroad corporation in violation of such provision is ultra vires, and the stock void in the hands of all holders, and the corporation cannot maintain a suit against the person to whom it was issued to require an accounting for its proceeds.</p> <p>5. Same — Rights oe Minority Bondholders.</p> <p>A court of equity will not, at the suit of a corporation, compel its minority bondholders to assent to a reorganization scheme by which they art" required to scale their bonds, accepting in lieu thereof new bonds for a smaller amount, without additional security; the benefits of the scheme, if any. inuring solely to the stockholders.</p>

<p>Federal Jurisdiction — Action by Stockholders.</p> <p>A suit by a stockholder in a waterworks company to restrain a city from putting in force and fixing water rates, on the ground that they are so low as to deprive the stock of any earning ability, thus depriving complainant of the equal protection of the law, in violation- of Const. Amend. 14, being one in which complainant and the company are united in interest, though the latter is named as defendant, a federal court will not refuse to entertain jurisdiction, under equity rule 94, as being framed to invoke such jurisdiction, by using the name of the stockholder, where, if the suit was brought in the name of the corporation, jurisdiction would not exist, the case being one of federal cognizance irrespective of citizenship.</p>

<p>Clerk or Court — Fees—Preparing Record eor Appeal.</p> <p>The document required by Cir. Ct. App. Rule 14 (31 C. O. A. civ., 90 Fed. civ.), on appeal thereto, consisting of a true copy of the record in the trial court, bill of exceptions, assignments, and all proceedings in the cause, including the opinion of the courc below, all under the hand and seal of the clerk, called by said rule, in case of writ of error, a “return” thereto, is a record, within Rev. St. § 828, allowing to the clerk for “making any record, certificate, return, or report, for each folio, 15 cents,” preparation thereof is not a mere copying of a paper, fee for which is 10 cents per folio.</p>

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

In a suit pending in the court below, the appellee, John MeNulta, was appointed receiver of the Calumet Electric Street-Railway Company, in succession to John O. jMoKoon, who was operating the railway at the time of the occurrence which is the subject of contention here.

<p>1. Municipal Bonds — Irrigation Districts of California — Estoppel rv Recitals.</p> <p>A recital in negotiable bonds issued by the board of directors of an irrigation district in California under (he power conferred by Act March 7, 1887, that such bonds were issued “by authority of, and pursuant to, and after a full compliance with, all the requirements of” said act, estops the district, as against bona fide purchasers of such bonds, from asserting that no estimate or determination of the' amount of money necessary to be raised by issuing bonds was made by the board, as «required by the act, or that tile bonds were disposed of in a manner or for considerations other than those prescribed by* the act.</p> <p>2. Same — Judgment of Confirmation — Conclusiveness.</p> <p>A judgment of confirmation in a special proceeding in the superior court by the directors of an irrigation district, brought, under the act supplemental to the Wright act (St. Cal. 188!), p. 212), for the confirmation of the organization of the district and the issue and sale of its bonds, is conclusive on the district as to all questions involved, which include the fact that the estimate required by law of the amount of money necessary to be raised by the issuing- of bonds was duly made. Former opinion (85 Fed. 093) explained and reaffirmed.</p> <p>3. Same — De Facto Corporation — Effect of Judgment of Ouster.</p> <p>Under the settled doctrine that a de facto corporation may legally do and perform every act and thing which it could do and perform were it a de jure evaporation, and that its acts are valid as to all the world, except where challenged by ilie state in direct proceedings, a judgment in proceedings instituted by the state against an irrigation district in California declaring void the proceedings for the organization of the district does not affect the validity of bonds which the district had previously issued, after having obtained a, judgment confirming its organization and the issuance and sale of such bonds as provided by statute.</p>

This was a suit in equity for tbe foreclosure of a mortgage on the property of defendant street-railroad company, in which the property had been sold. Heard on petitions of intervening creditors for preferential payment from tbe proceeds.

<p>1. Taxation — Sale under Tax Warrant — Validity.</p> <p>Under the statute of South Carolina (Acts 1S87; 19 St. at Large, p. 884), providing that a sheriff having a tax warrant for collection shall seize and sell so much of the property of the delinquent taxpayer as may he necessary to raise the sum of money therein named, and charges thereon, the limitation is mandatory, and a sale of a tract of land worth $2,500, and readily capable of division, to satisfy a tax warrant calling for only about $30, is unauthorized, and voidable by the. landowner.</p> <p>2. Equity Pleading — Multifariousness—Bill for Foreclosure of Mortgage.</p> <p>A bill to foreclose a mortgage on real estate is not multifarious because it joins as defendants parties claiming title to the land under a sale upon a tax warrant against the mortgagor, which sale was made after the execution of the mortgage, and, if valid, would defeat the lien thereof, and seeks to have such sale set aside as illegal.</p> <p>3. Parties — Suit to Set Aside Tax Sale.</p> <p>In a suit against the purchasers of land at a tax sale, to set aside such sale ou the ground that the action of the sheriff who made it was illegal, . such sheriff is a proper party defendant.</p>

<p>1. Witnesses — Personal Privilege — Exposure to Prosecution or Penal Liability.</p> <p>Whether the answer to a question asked a witness may reasonably have a tendency to criminate him, so as to justify his refusal to answer, under Rev. St. § 860, is to be determined by the court, in view of the pleadings and the other testimony in the case.</p> <p>2. Same.</p> <p>Where it is charged in the pleadings that a corporation, which is a party, is a constituent part of a combination or trust formed in violation of the federal and state statutes, a witness who is a stockholder in such corporation is justified in refusing to answer a question directed to obtaining information as to the transfer by the witness of his oivn stock, and touching his individual transactions in the formation of the alleged trust, on the ground that the answer might tend to criminate him, and subject him to the penalties and forfeitures provided by such statutes.</p>

<p>Injunction — Grounds—Threatening Suits for infringement of Patent.</p> <p>A court of equity will not enjoin the owner of a patent from sending circulars to customers and agents of the complainant, charging that an article manufactured and sold by complainant infringes such patent, that complainant is not financially responsible, and that the recipients will be subjected to damages and costs if they continue to handle or sell such article, in advance of an adjudication, in a suit brought to determine the question, that the article does not infringe. Spell question cannot be adjudicated in the suit for injunction, and until so adjudicated the defendant is within its rights in giving notice of its claims, and its intention to bring suit for their enforcement; and for any false charges contained in' the circulars the complainant has a remedy at law, by an action for libel.</p>

<p>In Equity. On rehearing.</p>

<p>1. Parties — Suit to Recover Assets of Corporation.</p> <p>In a suit in equity by stockholders of a corporation to compel restitution to such corporation of assets alleged to have been fraudulently transferred, and to be in the possession of defendants, the persons by or through whom the transfer was made are not necessary parties, nor is one who holds certain of such assets as depositary merely, subject to the orders of defendants.</p> <p>2. Corporations — Suit by Stockholders — Necessity of Demand pN Directors.</p> <p>The purpose of equity rule 94 is to prevent collusion, and to make the question of jurisdiction a preliminary one; and where it appears, from all the averments of a bill by stockholders, that there is no collusion, and that a demand on the directors of the corporation to bring the suit would have been useless, and a mere matter of form, it is not required to sustain the jurisdiction of the court.</p>

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

Petition to Expunge Decrees of George 1ST. Thornton and Franklin J. Sawyer.

<p>On Application for Allowance of a Bill of Exceptions.</p>

<p>This was an action for tbe enforcement of a mechanic's lien, removed by defendants from a state court.</p>

This is a writ of error to the circuit court, Southern district of New York, to review a judgment entered upon the confirmation of report of a referee dismissing the complaint. The plaintiff in error was plaintiff below.

<p>CABKIEBS — CONTBACT LIMITING LIABILITY.</p> <p>Notwithstanding Rev. St. 111. 1889, c. 114, § 82, declaring it unlawful for a carrier, on receiving property for transportation, to limit its common-law liability for safe delivery by any stipulation of limitation in its receipt for the property, a contract signed by the shipper, providing that, in consideration of the lower rate of freight, his recovery, in case of damage, shall be limited to $100 for each horse shipped, is binding on him, he knowing of the provision, though the railroad clerk told him the clause “did not amount to anything,” and was “only a matter of form,” such statement not being within the line of the servant’s duties, and the contract informing the shipper of the two rates, that the lower was in consideration of the limited liability, that the shipper could be bound only by written contract, and that a special contract could only be made by a general officer.</p>

<p>Testimony or Deceased Witness in Another Action.</p> <p>Testimony in an action by an infant claiming damages for bis pain and suffering from an injury is not admissible (the witness having died in the meantime) in a subsequent action against the same defendant by the infant’s mother, claiming damages for loss of his services; there being no privity between the plaintiffs. '</p>

<p>Rife Insurance — Nested Interest in Beneficiary.</p> <p>The taking out of a policy of life insurance creates no vested interest in the beneficiary named therein, where tlie policy permits a change of beneficiaries by agreement between insured and insurer, without the knowledge or consent of the beneficiary.</p>

This is a writ of error to review the judgment of the circuit court for the defendant, the township of Rogers, Presque Isle county, Mich., in a suit by Augustus E. Rondot upon 21 bonds purporting to be obligations of the township. The original declaration, filed.

<p>Negligence — Liability for Causing Death — Action for Damages.</p> <p>Defendant contracted for the construction of a smokestack, to consist of a shell of steel lined with hrick. When the contractors for the steel part were near the top, those for the brickwork commenced work below, upon the assurance of the defendant that the workman should be. protected, from danger from those above, by a floor to be constructed above them. Such floor was constructed, but defendant, for a temporary purpose, cut a hole through it; and subsequently a timber falling from above passed through the floor and killed plaintiff’s husband, who was a bricklayer working below. Held, that it was the duty of defendant to restore the platform to a safe condition within a reasonable time, and if it failed to-do so, and the killing of the deceased was the result of such failure, defendant was liable therefor, and that both of such .questions were properly submitted to the jury.</p>

This is an action of ejectment, in which, the jury, by direction of the court, returned a verdict for the plaintiff. On motion for new trial.

The petition in this case shows, substantially, that the defondant, the National Life Association of Hartford, on June 6, 1894, entered into a contract in writing with Adolph J. Miller, whereby it appointed him its manager for the state of Arkansas and a part of the state of Texas, designated in the contract.

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

This is a writ of error to review a judgment of the circuit court, Southérn district of New York, entered upon the verdict of a jury awarding to. defendant in error, who was plaintiff below, the sum of $5,000 damages for personal injuries. The facts sufficiently appear in the opinion.

<p>1. Insurance — Warranty.</p> <p>Provisions, in a contract of insurance against loss through embezzlement by assured’s agent, that assured will make monthly comparison and verification of cash in agent’s hands with his accounts and vouchers, is a warranty.</p> <p>2. Same — Qualification.</p> <p>Declaration that the answers in an application for insurance against embezzlement by agent are true, “to the best of the knowledge and belief” of assured, does not qualify the effect of the answer that assured will make monthly comparison and verification of cash in agent’s hands with his accounts and vouchers.</p> <p>3. Same — Fulfillment of Warranty.</p> <p>Promise of assured to make monthly comparison of money in its agent’s hands with his accounts and vouchers is not fulfilled by a monthly comparison of the checks sent it by him by the accounts and vouchers sent by him two months before.</p> <p>4. Custom — Qualifying Contuact.</p> <p>Where a written contract of insurance against loss by embezzlement of assured’s agent contained a plain provision for monthly comparison of money in agent’s hands with his accounts and vouchers, it cannot be shown that it is not the custom of companies engaged in the same business as assured to go to an agent’s office and examine his accounts, bank book, and cash, but that it was customary to examine his statements and vouchers, and compare them with his remittances.</p>

This was an action to recover damages for the breach of a contract madé by the defendant to sell to the plaintiff certain bonds which it had by ordinance of its common council determined to issue for the purpose of refunding former indebtedness of the city. The defense was, among other things, that the bonds were issued before the ordinance authorizing the contract had become operative.

<p>1. Vestob — Waiver of Objection.</p> <p>Filing of demurrer to complaint on tlie ground that it does not state a cause of action is a waiver of objection to the action not being brought, as provided by 1 Supp. Rev. St. (2d Ed.) p. 612, in the circuit court in the district of which defendant is an inhabitant.</p> <p>2. Same — State Statute.</p> <p>Under Code Civ. Proc. Cal. § 396, providing that, if the county in which the action is commenced is not the proper county for the trial, it may be had there, unless defendant, when he appeals and answers or demurs, files an affidavit of merits, and demands trial In the proper county, objection to trial where'the action is brought is waived by demurrer without such affidavit and demand.</p>

<p>In Error-to the Circuit Court of the United States for the District of Kentucky.</p> <p>Only the facts essential to the consideration of the single question upon which a reversal is sought need be stated. The plaintiff, below, a young woman, sustained very serious injuries by collision with a railroad train while crossing a railway track which intervened between the station of the company at Central City, W. Va., and the nearest public highway or street connecting the village and station. She had taken passage at Ashland, Ky., upon an accommodation train, for Central City, a station east of Ashland. Between Central City and Ashland the tracks are double, and about seven feet apart. The track next the station is used only by east-bound trains, while the other, or northern, track is used only by trains going in the opposite direction. The village of Central City lies wholly north of the railroad tracks, while the station or depot is on the opposite or south side of the railroad. The streets of the town running at right angles with the railroad do not cross its tracks, but extend from' them south to the Ohio river. This station house is situated between two streets extending from the railroad to the town, and is about 100 feet from Fourteenth street, which is the nearest of them. Fourteenth street is, therefore, the one used chiefly, if not altogether, by the travel between the depot and the town, and has a pavement or sidewalk only on its western side. The station consists of three connected rooms — a waiting room, a ticket office, and a freight room — extending along the track east and west for a distance of 50 feet. In front of this station is'1'a wooden platform about 6 feet wide. Between this platform and the nearest track is a cinder path, also about, 6 feet wide, which extends west beyond the station to a point 7 feet west of the eastern line of Fourteenth street. Persons going from the town to the station and from the station to the town were accustomed to cross- the tracks at any point between the station and Fourteenth street, and this mode of going to and from the station, which was only 100 feet east of Fourteenth street, was well known to the railroad company, and was unobjected to. The plaintiff’s train stopped as usual in front of the station, and she alighted, as was customary, on the cinder path next the station platform. Following this path to the rear of her train, which had come from the west, she crossed the most southerly track immediately behind the standing train, and diagonally in the direction of Fourteenth street, and continued this diagonal course across the space between the two tracks. This diagonal direction threw her back partly towards the direction from which a freight train was approaching. .lust as she was crossing the second track, she was struck and seriously injured by a train rapidly passing in a direction opposite to that from which her own train had come. This train approached the station with all the usual and proper signals, and her danger was not observed until too late to avert the accident. The evidence made it clear that she could not have seen the train until after she came out from behind the standing train, and there was also evidence tending to show that the noise made by the standing engine, through escaping steam, was likely to deaden the effect of the signals given by the approaching train, as well as the noise .made by its travel. Plaintiff testified that she neither heard nor saw the train which collided with her, and that she was looking from the time she started across these tracks. But it is clear that she did not look in the direction from which the colliding train approached, for it was broad daylight, and after she came out from behind the standing train the approach of a train on the other track from the east could have been seen for half a mile, if she had looked in that direction. There was a rule of the company that all “trains approaching a station where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.” There was evidence tending strongly to show that on this occasion this rule was not observed by the train which collided with the plaintiff, and that it passed the standing train, from which plaintiff alighted, while it was still receiving and discharging passengers, at a speed of from 10 to 12 miles per hour. At the conclusion of all- the evidence the defendant below asked for a peremptory instruction against the xflaintiff upon the ground of her contributory negligence. This was overruled, and is the principal error now assigned. Tlie court submitted the case to the jury upon the theory that the plaintiff was still a passenger while making her egress from the station over the premises of the company to the nearest public highway, and therefore entitled to a reasonably safe way of exit, and only required to exercise ordinary care in avoiding danger from the movements of trains o v'er tracks which she was obliged to cross in order to make her way to the public street. The charge of the court in respect to the continuance of the relation of a passenger, after safely alighting at the station, and the degree of care incident to such continued relation, was also excepted to, and presents the same question which arose upon the incontestable facts of the case by the motion for a peremptory instruction.</p>

<p>In Bankruptcy. On bankrupt’s application for discharge, and opposition thereto by creditors.</p>

<p>Customs Duties — Composition Metal.</p> <p>Sheets of composition metal, of which copper is the component material of chief value, are free under Act 1894, par. 452, putting on free list “old copper, fit only for manufacture, clipping from new copper, and all composition metal of which copper is a component material of chief value, not specially provided for,” and not und^r paragraph 177.</p>

<p>Customs Duties — Cod Liver Oil.</p> <p>Oil from the intestines and livers of the cod is properly assessed as fisb oil, under Act 1897, par. 42.</p>

<p>Customs Duties — Glass Bottles.</p> <p>Glass bottles, filled with a medicinal preparation dutiable at 25 per cent, ad valorem, are dutiable under tlie exception in paragraph 99 of the act of 1897, relating to glass bottles and vials, filled or unfilled, “such as contain merchandise subject to an ad valorem rate of duty, or to a duty based in whole or in part on the value thereof, which shall be dutiable at the rate applicable to tlieir contents.”</p>

<p>Customs Duties — Belt Carpeting.</p> <p>Belt carpeting, though not woven, is a carpeting of wool, dutiable under Act 1897, par. 381, and not under paragraph 370.</p>

<p>Customs Duties — Music Books.</p> <p>Music books, with exclusively German words, are on the free list, under Act 1894, par. 411, putting on such list ‘¡books and pamphlets printed exclusively in language other than English.”</p>

<p>Customs Duties — Lamp Shades.</p> <p>Glass ornamented or decorated lamp shades and chimneys are dutiable, under Act 1897, par. 100, as articles of glass, ornamented or decorated, and not under paragraph 112, as all glass or manufactures of glass “not specially provided for.”</p>

<p>Customs Duties — Cloth Samples.</p> <p>Small samples of cloth goods, arranged on cardboards, and folded into book form for gratuitous distribution, are not free of duty, as publications of individuals' for gratuitous private circulation, under Act 1897, par: 501.</p>

<p>Customs Duties — Kiln-Dried Beets.</p> <p>Sliced beets, kiln-dried, are “vegetables prepared,” and dutiable under Act 1897, par. 241, rather than vegetables in their natural state, under paragraph 257, or vegetable substances, crude or manufactured, under paragraph 617.</p>

<p>Customs Duties — Canvas.</p> <p>Canvas woven with double warp and single filling, each of single jute yarn, is a plain woven fabric, dutiable under Act 1897, par. 341, rather than a manufacture of vegetable fiber, not otherwise provided for, under paragraph 347.</p>

<p>Customs Duties — Bleached Grasses.</p> <p>Natural grass, sun bleached, used for emblems, is not a manufactured article, and is put on the free list, under Act 1897, par. 566, as textile grasses “not manufactured in any manner, and not specially provided for.”</p>

<p>Customs Duties — Pocketknives.</p> <p>Pocketknives, with all but the scales lor the sides of the handies, are dutiable under Act 1897, par. 153, as pocketknives, or parts thereof, partly or wholly manufactured.</p>

Appeal by the Altman Company from decisions of the general appraisers which confirm the action of the collector in assessing duty on importations in question.

<p>Customs Duties — Chocolate.</p> <p>Tile1'dutiable’ value of chocolate packed in tin boxes should be arrived at .by adding the number of pounds of both the chocolate and the tin coverings, under Act 1897, par. 281, providing for a duty on the chocolate, and that “the weight and value of all coverings, other than plain wooden, shall be included in the dutiable, weight and value” thereof.</p>

' This is an appeal from a decision of the circuit court,'Southern district of New York, which affirmed a decision of the hoard of general appraisers, affirming a decision of the collector of the port of New York touching an importation of dried currants.

" This cause comes here upon appeal from a decision of the circuit !£ourt, Southern district of New York, reversing a decision of the board of general appraisers which sustained a ruling of the collector of the port of New York touching certain pictures on china or porcelain.

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

<p>Interstate Commerce — State Keoulations — Oleomargarine Law of Missouri.</p> <p>The provision of the oleomargarine law of Missouri (Sess. Acts 1895, p. 26, § 2) prohibiting the manufacture or sale within the state of any substance “in imitation or semblance of natural butter,” or with which any substance has been combined “for the purpose or with the effect of imparting thereto a yellow color, or any shade of yellow, so that such substitute shall resemble yellow or any shade of genuine yellow butter,” is a proper regulation, for the prevention of fraud and deception, which is within the police power of the state, and its enforcement as to oleomargarine- brought from- other states, and sold in the original package?, is not a violation of any rights secured by the interstate commerce clause of the constitution of the United States.</p>

<p>Trade-Maeks — Inkrihgement.</p> <p>A trade-mark used by the owner on packages of baking soda and saleratus manufactured by it is infringed by the use thereof by another on packages of baking powder, the articles being of the same class.</p>

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

This is a bill brought to restrain infringement of letters patent No. 316,458, issued March 31, 1885, to one W. Hewitt, which has been assigned to the complainants, and letters patent No. 518,506, issued April 17, 1804, to J. and G. Lane, the complainants below and appellants here. Both patents are for improvements in wire fences.

<p>Patents — Infringement—Cigar Shapers.</p> <p>Tbe Ogden patent, No. 530,794, for a cigar mold, consisting of a body and a cap, so formed as to engage with each other, and to be retained iii connection by the friction of the parts, held valid and infringed.</p>

<p>1. Patents — Validity—Prior Use.</p> <p>Where A. and B. jointly invented and constructed an operative machine, containing a certain useful combination, A. is precluded, by the prior knowledge and use of such combination by B., from covering it by a patent procured in his own name for a different machine subsequently invented by himself; and it is immaterial by which of the two the combination was actually invented.</p> <p>8. Same — Magazine Firearms.</p> <p>The Roper patent, No. 316,401, for a magazine firearm having an actuating hand-piece beneath the barrel, and connected with a piston-breech, for removing exploded shells and inserting cartridges without taking the gun from the shoulder, held invalid because of prior use.</p>

This was a suit in admiralty by the master of the British ship Benlarig to recover a balance of freight under a charter.

<p>In Admiralty.</p> <p>This was' a petition to limit the liability of certain owners of the steam tug S. A. ilcCaulley. Ifxceptions to the petition were filed, alleging <'' that there was but one suit pending against the petitioners, and, as the súpome court of Pennsylvania had decided that the common pleas court could apply the law limiting the liability of the shipowners, the district court had no jurisdiction to entertain the petition; (2) that the petitioners were barred by laches in failing to file their petition until after two years from the date of the accident by which John Lo’ughin lost his life; (3) that the petition could not be entertained, because it was filed on behalf of a portion only of the whole number of part owners of the vessel. The decree of the court was conditioned upon the payment by the petitioners, within 20 days, of all the costs that had accrued in the common-law court, in which event the exceptions were to be overruled; otherwise, the petition should be dismissed. Further facts appear in the opinion of the district judge.</p>

<p>1. Jurisdiction of Federal Courts — Amount in Dispute — Suit for Dissolution of Corporation.</p> <p>Quaere, whether, when the question is raised at the threshold oí a suit, by demurrer, the amount in dispute, for the purpose of determining the jurisdiction of a federal court to entertain a bill by stockholders for the appointment of a receiver for a corporation on the ground of its insolvency, is the value of the property to be administered by the court if the prayer of the bill is granted, or the amount of the complainant’s interest therein.</p> <p>2. Federal and State Courts — Court First Acquiring Jurisdiction — Suits IN IÍEM.</p> <p>A federal court will not entertain a suit by stockholders for the appointment of a receiver for a corporation, and the liquidation of its affairs as an insolvent, while a prior suit brought in a state court for the same purpose is still pending and undetermined, although the state court on a preliminary application has refused to appoint a receiver. In such case the second suit will either be abated or stayed until the final determination of the first.1</p>

<p>This is a suit in equity to foreclose a mortgage. Heard on bill and answers.</p>

<p>1. Creditors’ Suit — Alien Plaintiff — Proceedings in Rem — Venue.</p> <p>Under Act 1875, § 8 (18 Stat. 470), providing that in suits to enforce liens on a claim to property, within the district where the suit is brought, absent or nonresident defendants may he brought, in, and the judgment be, made binding, in so far as it relates to the property in controversy; and Act 1888, § 5 (25 Slat. 433), continuing the preceding section in force, — a suit by an alien judgment creditor to establish the judgment as a lien against property of the judgment debtor may be brought in the district in which Ihe property is situated, regardless of the fact that defendants are inhabitants of another district.</p> <p>2. Same — Property Which may re Reached.</p> <p>A reservation of an annuity from an assignment in trust for the benefit of creditors is an estate which may he reached in equity to pay the assign- or’s debts. • -I</p> <p>3. Same — Procedure—Suit to Establish Lien.</p> <p>A reservation of an annuity from an assignment in trust for the benefit of creditors may be reached by a judgment creditor of the assignor by a suit in equity to establish the judgment as a lien on the same.</p>

<p>On Motion to Modify Mandate.</p>

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

<p>Appeal- from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>:Gn motion to dismiss the appeal.</p>

<p>In Equity. Exceptions to report of special master.</p>

This suit was instituted in the district court of Waller county, Tex., on April 31, 1895, from which it was removed to the United States circuit court for the Eastern district of Texas, sitting at Galveston, in August, 1895. The plaintiff in error was a corporation chartered in the state of New Jersey, and owning a cotton-seed oil mill situated at Houston, Tex., at which mill it made the products of cotton seed from year to year.

<p>1. Action on Bond — Pleading—Available Defense.</p> <p>In an action against tbe surety on a bond for tbe performance of a contract to rent, and pay for tbe lease of,,a hotel, wbicb was to be ready for occupation by a certain date, defendant denied that bis principal failed to pay, and alleged that there was nothing due; that plaintiff failed to complete and furnish the building by tbe time fixed by the contract, and that, without defendant’s knowledge or consent, plaintiff’s time for completion was extended; and that plaintiff wholly failed to keep his agreement. Heldi not' to warrant the defense that when the lease was executed it was agreed, contrary to the original contract, that lessee should furnish the building, and defendant should allow him a certain sum therefor, to be paid in monthly installments in advance, or that, according to tbe original agreement, no sublease -was to be executed, and that the lease, as executed, gave the lessee the unrestricted privilege of subletting the basement.</p> <p>3. Same — Answer—Presentation of Issue — Sufficiency.</p> <p>In an action against a surety on a bond for the performance of a contract to rent, and to pay for the lease of, a hotel, an averment in the answer that plaintiff wholly failed to comply with the contract, and wholly failed to keep stipulations agreed to, is not sufficiently specific to present an issue of fact.</p> <p>3. Same.</p> <p>Where a surety for the performance of a contract relies in defense on the obligee’s changes in the contract, made by the parties thereto without bis knowledge, or consent, he should distinctly plead the covenants of the original contract which were changed.</p> <p>4. Same — What Interest Recoverable.</p> <p>Apart from statute, it seems that interest might be recovered on the damages resulting from a breach of the bond, from the date of the breach to-the.date:of the judgment-, even if the same exceeds tbe penalty of the bond; but where the statute of the state in which the bond was executed and delivered, as construed by the supreme court of such state, forbids a recovery of such interest, such statute and construction thereof will be followed by the federal courts.</p>

<p>1. Note to Trust — Avoidance.</p> <p>A note made for a balance due on goods bought from a corporation cannot be avoided merely because the latter is a trust organized to create and carry out restrictions in trade contrary to the common law.</p> <p>2. Same.</p> <p>A note made for a balance due on goods bought from a corporation cannot be avoided merely because the latter is a trust organized to create and carry out restrictions in trade contrary to the “Sherman Act” (Act Cong. July 2, 1890), as that only covers contracts which are themselves in restraint of trade, and does not affect those which “merely indirectly, remotely, incidentally, or collaterally regulate, to a greater or less degree, interstate commerce between the states.”</p> <p>3. Illinois Trust Law — Constitutionality.</p> <p>Act 111. July 1, 1893, defining trusts and conspiracies against trade, declaring contracts in violation of its provisions void, etc., provides (section 9) that it shall not apxily to agricultural products or live stock while in the hands of producers. Held\ that such section rendered the entire act void, as a violation of section 1 of the fourteenth amendment of the federal constitution, and the provision of Const. 111. art. 4, § 22, that, in eases where a general law can be made applicable, no special law shall be passed.</p>

The plaintiffs in error instituted two actions of trespass to try title against the defendants in error, which actions were consolidated and tried as one cause.

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

Actions at law on four policies of insurance issued by the above-named companies on same building. Jury waived, and cases beard together by the court.

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>This cause comes here upon a writ of error to review a judgment in favor of defendant in error, who was plaintiff below, upon the verdict of a jury awarding him $2,000 for damages for ejection from a sleeping car of the plaintiff in error,- who was defendant below. Plaintiff had a round-trip railroad ticket from New York to San Francisco and return, which provided for passage from Washington to New York via the Baltimore & Ohio Kailroad. In New Orleans, plaintiff showed this ticket to defendant’s agent, and asked for through accommodations on a sleeping car from New Orleans to New York. The agent sold him a berth ticket for the car Dioces from New Orleans to Jersey City. From Washington north, the car Dioces was run over the Pennsylvania. Kailroad. Plaintiff, having no railroad ticket for that line, was put off the train at Baltimore by the Pennsylvania conductor upon his refusal to pay railroad fare from Washington to New York.</p>

<p>Bankruptcy — Appeal and Review — Adjudication or Bankruptcy.</p> <p>A judgment of the district court, adjudicating a person a bankrupt in involuntary proceedings against him, can be reviewed by the circuit court, of appeals only on an appeal taken by the respondent witiiin 10 days after the judgment appealed from, as prescribed by Bankr. Act 1898, § 25a, and not on an original petition for review of the decision of the district court, under section 24b.</p>

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

<p>1. Bankruptcy — Acts of Bankruptcy — Suffering Legal Process.</p> <p>Bankr. Act 1898, § 8a, cl. 3, providing that it shall be an act of bankruptcy If an insolvent debtor shall suffer a creditor to obtain a preference through legal proceedings, and not vacate or discharge the same at lea«st five days before sale of the property affected, does not apply to the recovery of a judgment against tlie debtor for the foreclosure of the lien created by a deed in the nature of a mortgage, securing the payment of a promissory note, and a levy on 1he land conveyed, where the note and security were given before the enactment of the bankruptcy law, and for a valid debt.</p> <p>S. Same.</p> <p>Although the creditor, in such proceeding, has recovered a general judgment against the debtor, as well as a judgment for the foreclosure of the lien, yet, if the levy made affects only the property bound by the lien, the debtor does not commit an act of bankruptcy in failing to release the property from such levy.</p>

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

<p>1. Bankruptcy — Proof and Allowance of Claims — Preferred Creditor.</p> <p>Under Bankr. Act 1898, § 57g, providing that the claims of creditors of a bankrupt who hare received preferences shall not be allowed unless they surrender their preferences, a creditor who has actually'received a preference, by a partial payment of his debt, within four months before the bankruptcy of the debtor, cannot have his clain. allowed against the estate of the bankrupt without surrendering tlic preference; and this, notwithstanding the fact that he received the payment innocently, and that he had no knowledge or cause to believe that the debtor was insolvent or that a preference was intended.</p> <p>2. Same — Preferences—Payment of Money.</p> <p>Payment of a debt in money is a transfer of property, within the purview of Bankr. Act 1898, ■§ 00a. providing that a debtor shall be deemed to have given a preference if, being insolvent, he has made a transfer of any of his property, and the effect of the enforcement of such transfer wiil be to enable one of his creditors to obtain a greater percentage of his debt than other creditors of the same class. '</p>

<p>1. Bankruptcy — Review of Referee’s Decision — Exceptions.</p> <p>General order No. 27 in bankruptcy (18 Sup. Ct. viii.), providing that a party desiring a review by the judge of an order made by the referee “shall file with the referee his petition therefor, setting out the errors complained of, and the referee shall forthwith certify to the judge the question presented,” is mandatory; and the court, on review of the referee’s decision, will not consider exceptions not duly filed with the referee.</p> <p>2. Same — Receivership—Expenses of Receiver.</p> <p>Where a receiver in bankruptcy was appointed to take charge of and preserve the property of the bankrupt, consisting of stocks of general merchandise in three stores in three different towns, and had charge of the same for 109 days, an allowance to him by the referee of $1.95 per day for each store, to cover his actual expenses in taking care of the property and for clerk hire, helé reasonable and proper.</p> <p>8. Same — Compensation of Receiver.</p> <p>Where a temporary receiver is appointed by the court of bankruptcy to take charge of and preserve the property of the bankrupt, the court has authority to allow him a just and reasonable compensation for his personal services, payable out of the estate, the amount of which rests in the sound discretion of the court, and is not necessarily a per diem allowance, nor influenced by the consideration that the duties of the receivership did not occupy his entire time.</p> <p>4. Same.</p> <p>A receiver in bankruptcy, selected by the parties in interest as “a good, reliable business man,” had possession of three stores belonging to the bankrupt, each containing a stock of general merchandise, of the aggregate value of about $9,000, situated in three different towns, and took care of the property for 109 days. Upon the completion of his trust, the referee in bankruptcy allowed him $250, payable out of the estate, as compensation for his personal services, over and above actual expenses. Held, on review, that as nothing appeared showing error or abuse of discretion on the patt of the referee, and as the allowance appeared reasonable and just, the referee’s order would be affirmed.</p> <p>5. Same — Expenses of Marshal.</p> <p>A deputy marshal appointed to take charge of a bankrupt’s store and the stock of goods therein, and responsible on his bond for the value of the property, may hire a competent person as watchman, if he has any reason to apprehend danger to the property; and a charge in his accounts of $1 per day for the services of such watchman will be allowed by the court as expenses.</p> <p>6. Same — Compensation’ of Marshal.</p> <p>A deputy marshal appointed to take charge of a store of the bankrupt in a town other than that in which he resides, and to inventory the,stock of general merchandise contained therein, who remains in possession for a month, will be allowed compensation at the rate of $2.50 per day, together with his actual and necessary expenses, but not including the cost of his board and lodging.</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy. The opinion of the referee (Morison It. Waite) was as follows;</p> <p>“This matter comes before me on two motions, — the first by the trustee to disallow the claim of Henry Gioseking, Jr., administrator of Henry Giesekingv for $1,741.39, on the ground that the sa.id administrator received on December 24, 1898, and on January 4, 1899, preferences, to wit. payments of money, $200 and $1,000 on account; and the other a moüon by said Gioseking filed after the other, to disallow the claims of 27 other creditors, all trade creditors, who at various dates after October 6, 1898, -also received preferences, to wit, payments in money on account, and for an order directing the repayment of such payments.</p> <p>“The bankrupt firm was engaged in the wholesale toy business in this city, and doing business entirely, or almost so, on borrowed capital. The business was sold to the bankrupts, February 1, 1896, by Langhorst, and the bankrupts, having no property of their own, paid for the, business by their u • secured demand notes to Langhorst for $8,082. Further capital was furnished to the business, — about $3,000 by Henry Gieseking, and $2,000 claimed to have been furnished by a sister of Knost. The firm was also large borrowers from the Western German Bank. On October 26, 1898, the stock of goods of the firm was largely destroyed by fire. The loss was adjusted with the insurance companies in between two and three weeks, who thereafter paid, in accordance with that adjustment, $13,650. Mr. Langhorst thereupon demanded payment of the balance on his notes, which was paid during November and December, aggregating $7,367.07, the last iniyment being December 10th. The Western German Bank’s paper was also taken up, approximately $0,500, the last payment being made to it December 7th. After the fire the stock was straightened up, and the firm went on with business in the ordinary course as quickly as they could. Goods were, sold, but no new purchases of any consequence were made, and no new capital was put into the business. Payments to merchandise trade creditors were made in whole or in part from time to time, and those who were paid in part, and have filed their claims for the balance, are included in Gieseking’s motion. Other creditors, some of whose bills matured, as early as in October, 1898, before or about the time of the fire, as shown by proofs on file, have not been paid. On January 6, 1899, the firm made an assignment for the benefit of its creditors under the state law. Within a day or two prior to the assignment $2,000 was paid to the sister of Knost, $1,000 to Gieseking, and about $1,000 drawn out in money by Wilhelmy, and over $1,500 by Knost. On February 23, 1899, a petition to have them adjudged bankrupts was filed, and on March 22, 1899, they were so adjudged. On the 13 th day of April, 1899, the present trustee was elected. In the meanwhile the assignee had converted the stock into money, and collected most of the accounts, and he turned over to the trustee $7,820.41. The good accounts remaining to be collected are estimated to be $614.14. There are no1 other assets except doubtful accounts and worthless accounts. The liabilities are $21,S96.42. With the exception of $2,500 withdrawn by the bankrupts, $400 paid to the insolvent’s attorney, and $770.02 paid by the assignee for commissions and expenses, all the receipts of the firm have gone to pay debts of the firm, for as, confessedly, the months of November and December are the most profitable months of the year in their business, it is fair to disregard expenses of operating. As practically the debts existing at the failure were existing at the time of the fire, for thereafter they created no new liabilities, and those debts exceed assets over two for one, there seems no escape from the conclusion that the firm was actually insolvent, within the meaning of the bankrupt act, at all times after the fire, October 26, 1898. Mr. Wilhelmy, who was the financial man of the firm, testifies that the likelihood of not being able to pay came to him after they were in full possession of the property and opened up the goods that had been destroyed, and they found they were in bad shape; and that they realized they could not pay dollar for dollar when their business was over, about the middle of December, and they went through their stock. There is no claim of any losses after the fire and before this last date, and, as they were then creating no new indebtedness, the insolvent condition must have reached back to the fire. There is no proof as to their condition prior to the fire. This date is within 90 days of the assignment, and 4 months of the filing of petition in bankruptcy. There is no evidence to show that at the time any of the payments were made which are now sought to be reached by these mo: tions the payees had reasonable cause to believe that it was intended thereby to give a preference. Neither is there any evidence to show that the bankrupts intended to give a preference by any of these payments, except the presumptions arising from the situation of the parties, and the knowledge of the bankrupts of their condition.</p> <p>“In view of the decision of the judge of this court in the ease of Hicks v. Knost, 94 Fed. 623, and of the circuit court of appeals of the Fifth circuit in Bernheimer v. Bryan or Re Abraham, 1 Nat. Bankr. N. 281, 35 G. O. A. 592, 93 Fed. 767. I do not consider that I have jurisdiction to order the repayment to the trustee of any-payments made by the bankrupts on a summary application such as this, and shall treat both motions simply as motions for reconsideration and disallowance of claims.</p> <p>“Section 60a of the present bankruptcy act defines a ‘preference,’ so far as applicable to the above facts, thus: ‘A person shall be deemed to have given a preference, if, being insolvent, he has " * * * made a transfer of any of his property, and the effect of the enforcement of such * * ' * transfer will be to enable any one of his creditors to obtain a greater percentage of his debts than any other of such creditors of the same class.’ It is contended that the words, ‘transfer of any of his property,’ cannot mean a payment of money, and particularly a payment made in the usual course of business. The word ‘transfer,’ however, is defined by the act itself (section 1, subd. 25), and includes any disposing of property as a payment or otherwise. The word ‘property,’ as ordinarily used, is certainly broad enough to cover money, whether in currency or a bank credit assignable by check. Furthermore, the words of this act must be taken to have the same meaning as in the prior bankruptcy acts, unless the act itself provides otherwise. The word ‘property’ is not defined by this act, and it was used in the act of 1867. In section 39 of act of 1S67, the words, ‘transfer of money or other property,’ are used, showing ‘property’ to include ‘money.’ In section 35 of that act, ‘payment, pledge, assignment, transfer or conveyance of any part of his property’ are used unconnected with the word ‘money,’ and yet that section was held to apply to payments of money. Campbell v. Bank, 14 Wall. 87, 20 L. Ed. 832. These considerations outweigh such inference arising from the use of words in section 60d of the 1898 act, ‘pay money or transfer property to an attorney,’ etc., as was claimed in argument. It is not to be presumed that congress meant to interdict all fraudulent and preferential transfers of property except money, and permit all payments of money, no matter how fraudulent, or preferential, unless made to attorneys.</p> <p>“Is, then, the question whether or not these payments, made to trade creditors, were made in the usual course of business, relevant? Under the act of 1867, transfers not in the usual course of business were held prima facie evidence of fraud. Section 35 (Rev. St. § 5130). But this did not mean that all Transfers or payments in the usual course of business were not preferences, and therefore valid. They might be either one or the oilier. The question under that act was the intent of the debtor in making the payment or transfer, and whether it was done in usual course of business or not was one circumstance to be considered in connection with all the other circumstances in ascertaining what was the intent. In re George, 1 Low. 409, Fed. Cas. No. 5,325; In re Oregon Bulletin Printing & Publishing Co., 13 N. B. R. 503, Fed. Cas. No. 10,559. In the act of 1S98, so far as section 60a is concerned, Hie intent of the debtor and the knowledge of the creditor are alike immaterial. If the bankrupts are insolvent, — and I have found they were at all times after October 26, 1898, — then any payments they made, either in full or on account of their indebtedness, and not in compromise of it, at less than its face value, must operate, if enforced, as a preference, i. e. to enable those creditors paid to obtain a greater percentage of their debts than others of the same class, and the question whether the payments were made in the usual course of business or not is immaterial so far as that section is concerned, because it can only bear on the questions of the intent and the knowledge of the parties. Under this construction of section 60a, all payments made after October 26, 1898, must be held to have created preferences.</p> <p>“It remains to consider what is the effect of such preferences. Section 60b provides when they may be avoided by the trustee and recovered back, and it is essential, under that provision of tne act, that, in addition to the fact of preference as above defined, it be shown that the person receiving the preference had reasonable cause to believe that it was intended thereby to give a preference. Section 3a, subd. 2, provides when the giving of a preference constitutes an act of bankruptcy. Under its terms, it is necessary to show that the debtor intended to give a preference, but it is not necessary to' show that the creditor had reasonable cause to believe it was so intended. In other words, a preferential transfer may be sufficient to make the transferror a bankrupt, ali hough not of such a character that the trustee may recover it back. The same distinction existed under the act of 1807. In re Drummond, 1 N. B. R. 231, 234-, Fed. Cas. No. -4,093; In re Oregon Bulletin Printing & Publishing Co., 13 N. F>. R. 503, 514, Fed. Gas. No. 10,559; Loveland, Bankr. § 52.</p> <p>“Neither of these two sections is, however, directly applicable to the question under consideration, and they are only useful as aids in ascertaining the correct construction of section 57g, which is the provision directly in point. It reads: ‘The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.’ Does this refer to ‘preferences’ as defined in section 60a, or does it refer to such preferences as may bo recovered back by the trustee under section 60b, or such preferences under section 3a, subd. 2, as constitute the debtor a bankrupt? It seems to me that, independently of the arguments as to the policy of the act to be hereafter considered, the natural construction would be to consider the word ‘preferences’ in section 57g to mean those within the definition given in section 60a, for the latter contains the simple definition of a preference, while to the act of preference, as so defined, section 60b and section 3a, subd. 2, each add oilier and different circumstances to be proved to entitle one to the relief, respectively, proiided by each. In section 57g no such other circumstance is added. This view is rendered conclusive, to my mind, when the provision of the act of 1867, analogous to section 57g of the act of 1898, is compared with it. Section 28 of the act of 1807, being- section 50S4, Rev. St., provided: 'Any person who * * * shall have accepted any preference, having reasonable cause to believe that the same was made or given by the debtor contrary to any provision of this act, shall not prove the debt or claim * * * until he shall have first surrendered to the assignee all property, money, benefit, or advantage received by him under such preference.’ That congress in 1898 should have omitted from section 57g the foregoing clause in reference to the cause for belief on the part of the creditor seems to me conclusive that the facts in section GOa, and not those in section GOb, were intended by the use of the word •‘preferences’ alone. Coll. Banlcr. p. 285. A similar distinction is apparent in other parts of the act. Under the provisions of the act of 1867, the lien of a judgment obtained within four months was valid, unless brought within the terms of section 35 (section 5128, Rev. St.); that is, unless two facts concurred with the insolvency of the debtor — First, a reasonable ground of belief by the judgment creditor that the debtor was insolvent; and also, second, some active participation by the debtor in securing the judgment. Wilson v. Bank, 17 Wall. 473, 21 L. Ed. 723; Clark v. Iselin, 21 Wall. 360, 22 L. Ed. 56S. Under the act of 1898, however, all liens obtained by legal proceedings against an insolvent within four months of the filing of a petition in bankruptcy against him shall be null and void if he is declared a bankrupt, and it is not made necessary to show the knowledge or cause for belief on the part of the judgment creditor. Section G7f. In other words the present act, unlike that of 18G7, does not seek to protect the diligent creditor, except in the respect hereinafter pointed out, no matter how innocent of an intent to secure a preference he may be.' The act rather aims to secure, as far as practicable, to all general creditors of actual insolvents an equal percentage of their assets, and to prohibit the obtaining by one or a few creditors of any preference in those assets, without reference -to the intent with which such preference is given or obtained.</p> <p>“It was very forcibly urged on argument that such a construction of the act would upset all business relations, and that no creditor would be safe in investing any payments he might receive from his debtors for a period of four months, for fear that his payors might become bankrupts within that time, and that no reliance could in consequence be put upon assets or credits. That objection is a forcible one, and should lead a court to hesitate to adopt a construction from which there is any escape to which it really applies. It seems to have been considered by congress, and so far led it to depart from the scheme of absolute equality of distribution as to protect the diligent creditor from being compelled to surrender any property or contractual lien which he has innocently received in payment or as security; for, under section GOb, to compel its return he must be shown to have, had reasonable cause to believe that it was intended as a preference. It does not apply, however, with a like force .to the provisions of either section 57g or section 07f, — not to the latter, because, naturally, no such great reliance in making arrangements for future business is placed on mere liens obtained by judicial proceedings within four months; not to the former, because the question of surrender under that section (57g) is entirely voluntary and optional with the creditor, who can determine whether it is worth his while, in view of future dividends, to surrender his preference or not. Mor can it be claimed that the value of the unpaid portion of the credit is unduly unsettled. The debtor being insolvent, the account is not properly entitled to reliance as an asset or basis for future activity. As frequently pointed out under the old act, from the moment of actual insolvency all creditors become entitled to share pro rata in the estate, because it represents the credit given the insolvent by his creditors, and in good morals belongs to them, and not to him. In re Oregon Bulletin Printing & Publishing Co., 13 M. B. R. 503-515, Fed. Cas. No. 10,559; In re Silverman, 4 N. B. R. 522-527, Fed. Cas. No. 12,855. And it is certainly not inequitable to require one who has received an undue portion of that estate, no matter if innocently, from surrendering that advantage before participating in further distributions of it with those who have not received such preference. Coll. Banlcr. p. 286.</p> <p>“So, rather than detracting from the construction I have placed on section 57g, it seems to me that the argument now under consideration makes for it, as pointing out a reason for the distinction made by the different language employed in sections 60b, 57g.</p> <p>“Counsel liave furnished me with citations to a number of authorities arising under the act of 1867, holding that reasonable cause for belief, etc., on the part of ihe creditor, was necessary before the preference could he avoided, — a proposition which is undisputed under the terms of that act, or section 60b of this act, — and also that payments made in the usual course of business are not preferential and recoverable. In some of the eases cited this doctrine is merely expressed as a dictum. In others, and'the case of Claris v. Iselin, 21 Wall. 360, 22 R. Ed. 568, is the strongest of this kind, the fact of being made in tiie ordinary course of business is but one circumsiance, with others, to determine the intent of the debtor and the knowledge or cause for belief of the «•editor. On examination of the Clark Case, it will be found at the time of the payment in course of business there was no evidence that the payee liad knowledge of tiie insolvency of the bankrupt, — a fact that had to be proved under that law. Also citations to cases in other states, construing anti-preference laws of those states, are of little assistance in this inquiry, because of the wide variance in ihe language of the several acts, both from each other and from tiie federal laws. I have found nothing in any of the authorities cited that is in conflict witli the views here expressed.</p> <p>“Reliance is also placed by the trustee on the provisions of Act 1898, §§ 67e, 70e (which give him the same advantages in recovering property that the creditors might liave under state laws); and also, in connection therewith, on ihe recent act of the Ohio legislature (93 Ohio Raws, p. 290), which took effect November 1, 1898, providing that every transfer, act, or device done by a debtor in contemplation of insolvency, or with a design to prefer one or more creditors, to the exclusion, in whole or in part, of others, shall be void at the suit of creditors, and that such transfer, act, or device, in tiie event of a deed of assignment being filed within 90 days thereafter, shall be conclusively deemed and held to be fraudulent, upon showing of actual insolvency, a.t the tíme» 1 liave not found any reason to disagree with the views presented on behalf of i lie trustee in this connection, but as it is tiie effect of the views already expressed that, under the terms of the bankruptcy act itself, the motions to disallow all claims in which payments were made subsequent to October 26, 1898, must be granted, and as this goes back further than the Ohio law, which did not go into effect until November 1st, I have not found it necessary to give careful attention to its provisions, if any creditors affected hereby deem themselves entitled to special consideration by virtue of section 60c, they will be given opportunity to present, such evidence and arguments as they desire for that purpose. Creditors can" then determine whether to surrender their preferences, and have their claims allowed in full or not. The claims of those not doing so. who received payments subsequently to October 2(>tli, must be disallowed. Opportunity will also be given for presenting the questions here passed on for review by the district judge in such manner as counsel may deem best adapted to protect the interests of tlieir clients.”</p>

<p>In Bankruptcy. On demurrer to complaint*</p>

<p>Customs Duties — Bottle Glassware.</p> <p>An importation of bottles and bottle-shaped receptacles holding less than a pint, used by chemists for their operations, are dutiable under Act 1804, par. 88, as “bottle glassware, not specially provided for,” at three-fourths of a cent a pound.</p>

<p>Customs Duties — Steel Tures.</p> <p>Tubes of wrought steel for holding gas under pressure are dutiable under Act 1894, par. 130, as tubes of steel for “boiler or other tubes,” and not as manufactures of steel not otherwise provided, for, under paragraph 177.</p>

<p>Customs Duties — Linen Doilies.</p> <p>' Linen doilies and tray cloths, under 4% ounces to the square yard, and containing more than 100 threads to the square inch, are woven fabrics of flax, dutiable under Act 1897, par. 346, last clause.</p>

<p>Customs Duties — Darning Cotton.</p> <p>Under Act 1897, par. 303, providing for a duty on “spool thread of cotton, including crochet, darning, and embroidery cottons on spools or reels” by the 100 yards of thread; “if otherwise than -on spools or reels, one-half of one cent for each hundred yards or fractional part thereof,” — darning cotton of four strands, slightly twisted, in balls, is dutiable by the yards in length of darning cotton, and not the yards in length of the several strands of which it is composed.</p>

<p>Customs — Bounty of Foreign Country.</p> <p>Where, under Act 1897, § 5, providing that, when any country shall pay any bounty on exportation of merchandise dutiable in this country, there shall be levied an additional duty equal to the bounty, Holland gives a bounty for the production of sugar', and provides that such bounty shall be deducted from the excise thereon, hut that the excise shall he remitted on exportation, the duty is not a grant on the exportation, but on. the production, and- should not be added to the regular duty on the importation of sugar from that country.</p>

<p>Customs Duties — Anchovies.</p> <p>Anchovies packed in cylindrical tin boxes, of full half and quarter sizes, are taxable at 40 per cent, ad valorem, under Act 1894, par. 20S, which, after prescribing the specific duty on anchovies in rectangular boxes, adds, “When imported in any other form, 40 per centum ad valorem.”</p>

<p>Í. Customs Duties — Forfeiture for Undervaluation — Recovery of Duties Paid.</p> <p>The forfeiture and sale by tbe United States of imported goods for undervaluation, under the provisions of section 7 of the customs administrative act of 1890, as amended by section 32 of the tariff act of 1897, does not relieve the importer from liability for the duty thereon, so as to entitle him to a return of the duty paid. The obligation to pay the dhty is incurred by the act of importation, and the importer is not relieved from such obligation by the violation of a different provision of the customs law, although he thereby incurs as a penalty a forfeiture of the entire importation.</p> <p>2. Same — Abandonment of Goods.</p> <p>Section 23 of the customs administrative- act of 1890, which permits an importer to abandon to the United States all or any portion of the goods Included In any invoice, not less than 10 per cent, of the total value or quantity of the invoice, and be relieved from the payment of duties on the portion so abandoned, applies only to an invoice of goods imported in sucll condition as would have entitled the importer, under Rev. St. § 2927, for which said section 23 is a substitute, to claim an allowance for damaged goods; and an importer of goods not damaged cannot, by an abandonment of such goods, after they have been seized by the government for an attempted violation of the customs law, relieve himself from liability for the duty thereon, or recover the duty paid.</p>

<p>Customs Duties — Alizarine Black.</p> <p>Alizarine black is properly classified under Act 1890, par. 478, cf the free list, and not under paragraph 18, as a coal-tar color not specially provided for.</p>

<p>Appeal by the importers from a decision of the board of general appraisers, which affirmed the assessment of duty by the collector upon the importations in question.</p>

Appeal by Wells, Fargo & Co. from a decision of the board of general appraisers which affirmed the action of the collector in assessing duty upon the importations in question.

Appeal by Oleary & Go. from a decision of tbe board of appraisers affirming the classification by the collector of the merchandise in question.

Appeal by one Merck -from a decision of the board of general appraisers which affirmed the action of the collector in assessing duty upon the importations in question.

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

<p>On Application by Receiver for Instructions.</p>

<p>t. Criminal Law — Jurisdiction.</p> <p>"An offense committed upon an Indian reservation within a state is not cognizable in a federal court, under Act Cong. March 3, 1885 (1 Supp. Rev. St. U. S. [2d Ed.] 482), unless the offender is an Indian.</p> <p>2. Indians — Hale-Breeds.</p> <p>Half-breeds who never receive recognition from their white parents, but are left to be nurtured during childhood by Indian relatives, and live as savages, and are subjects of governmental ca.re, have the status of Indians.</p> <p>8. Same — Citizenship—Jurisdiction.</p> <p>Children born in lawful wedlock within the United States, the father being a white man and a citizen of the United States, and the mother an Indian woman who has adopted the habits of civilized life and lives apart from her tribe, are by virtue of Const Amend, art. 14, and Rev. St. § 1902, citizens of the United States, and their status is not changed by residence upon an Indian reservation and receiving allotments of Indian land. Half-breeds, who are citizens by birth, cannot be brought to trial in the 'federal courts, under a statute which limits the jurisdiction to offenses committed by Indians.</p>

<p>Trade-Names — Infringement.</p> <p>One dealing in prepared foods in the name of “Health Food Company” cannot enjoin the use by another, dealing in similar products, of the name “Sanitarium Health Food Co.,” on the ground that the use thereof is calculated to divert plaintiff’s business to defendant; the products being known as “health foods” to some extent, and to that extent the words being merely descriptive, and the prefix “Sanitarium” being sufficient to distinguish the names in trade.</p>

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

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

<p>1. Seamen — Assaults by Officers — Severance of Contract — Waiver.</p> <p>Seamen on a British vessel, by making no complaint of assaults on them by their officers, and failing to announce a severance of their contracts of hire at the first port thereafter touched, at which there is a British, consul, —making such announcement only after the vessel had been some time at the next port, — are deemed to have condoned the wrongful acts, so far as they affect continuance of such contracts.</p> <p>2. Same — Action for Services — Jurisdiction.</p> <p>An action for services of a seaman, based on bis contract, broken by assault on him by the master of his vessel, a British ship, within the police limits of the United States, may be entertained by the federal court within whose jurisdiction the assault was made.</p>

This was a suit in admiralty to establish a lien on the steamer Catherine Whiting for labor performed and materials furnished in making certain repairs thereon. In the district court the following opinion was rendered by Brown, district judge: “All the work, labor and materials for which the above suits are brought were procured upon contracts and employment by Metcalf alone.

<p>Salvage — Seizure—Cargo in Hands of Collector of Customs.</p> <p>For salvage services in rescuing a vessel and cargo tbe latter cannot be libeled and seized so as to dispossess a customs officer bolding tbe same under tbe customs laws.</p>

On December 23, 1897, John G. Woods chartered from the owners the steamship Franklin for a period of six months, with option to renew for period of three months; the charter party containing, among others, the following stipulations: “Between safe port and ports in Canada (and) (or) other British possessions, not north of River St. Lawrence (steamer to leave the St. Lawrence by the 31st of October), (and) (or) the United States of America (and) (or) West Indies and Gulf of…

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

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

This is a suit in equity for the foreclosure of a railroad mortgage. Heard on demurrer to the answer to an intervening petition.

<p>1. Reference — Conolusiveness of Report.</p> <p>A finding by a master in chancery as to a question of boundaries, based on an examination oí deeds and upon conflicting oral tesümony, should not be lightly interfered with.</p> <p>3. Same.</p> <p>A finding hy a master in chancery as to the amount of damages will not he interfered with unless it is so inadequate or excessive as to be unreasonable.</p>

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

<p>Unfair Competition — Imitation of Labels — Liability for Making and Selling.</p> <p>A bill to recover for losses sustained by reason of unfair competition may be maintained against one who has made and sold to competitors labels and wrappers in imitation of complainant’s, by the use of wbicb, it is alleged, complainant’s business has repeatedly been interfered with, and the goods of others sold as his; and such bill is not demurrable because it does not allege that such wrappers were used as coverings for the specific kind of goods sold by complainant.1</p>

<p>1. Railroads — Purchaser at Foreclosure Sale — Liability under Decree,</p> <p>A purchaser of all the property of a railroad company under a decree of foreclosure, which required such purchaser to pay all liabilities incurred by the original company which were prior in lien to the mortgage foreclosed, may be held to account for a fund held in trust by the original company, in so fur as, under the principles of equity, such fund could have been recovered by the cestui quo trust from the receiver,</p> <p>S. Trusts — Insolvency of Trustee — Right to Follow Trust Fund.</p> <p>A railroad company which held in trust a fund to be used for the benefit of another company became insolvent, having expended but a pare of the fund wjjich it had deposited in its current bank account. Held, that by such mingling of the money with its own the trust became impressed upon the entire fund in the hank, and so much of such fund as could be identified in the hands of the receiver was recoverable by the beneficiary, but that, such identification was limited to the smallest amount in the bank account at any one time after the trust fund was deposited, although a .larger sum came into the receiver’s hands.</p>

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

<p>1. RKCF.TVERS-ArrOTNTMF.NT ON COURT’S OWN MOTION.</p> <p>A bill was brought for an injunction to prevent defendants from talcing possession of certain lamí. A defendant filed a bill against complainants, praying an injunction, and obtained the usual restraining order. The court, on argument of the two cases, consolidated them, treating the bill of defendant as a cross bill, and, of liis own motion, appointed a receiver of the property in dispute. No order was passed dissolving either of the injunctions. Afterwards other defendants filed a cross bill, and another receiver of different property was appointed by the court of its own motion. The suits all related to lights claimed by the several part ¡es in oil and gas rights under certain leases held by them. All parties concurred in the necessity of operating the property, and each side desired permission so to do. Held that the appointment of receivers on the court’s own motion was proper.</p> <p>2. Same — Payment of Expenses.</p> <p>The cost of a. receivership, where the receiver was appointed by the court of its own motion, will be charged against the fund in the hands of the receiver, rather than against one of the parties, in the absence of fraud or improper conduct of any of the parties.</p> <p>8. Same — Repayment of Advances by Party.</p> <p>It is proper to order a return to a party of advances made by him to the receiver appointed in the suit, pending the receivership, where such advances were made under the permission of the court, and in reliance on its order requiring a repayment if the income accruing to the receiver was sufficient therefor.</p> <p>4. Same — Allowance for Counsel for Receiver.</p> <p>An allowance may be made to the counsel for a receiver.</p>

<p>On Motion to Reopen Case and for a Rehearing.</p>

<p>Injunction- — Threatening Suits for Infringement of Patent.</p> <p>A complainant in a suit for infringement of a patent will not be enjoined, on a motion by defendant, from sending circulars to defendant’s customers threatening suits against sellers of the infringing article, where it is claimed that such threats are made in good faith, and it is not clear that such suits could not be successfully maintained.</p>

<p>This was a suit in equity. On final hearing.</p>

In Equity. Suit in equity for an injunction, and to determine adverse claims of title to part of an odd-numbered section of land situated in the state of Washington, and within 40 miles from the completed part of the line of the Northern Pacific Railroad; the Northern Pacific Railway Company, successor of the Northern Pacific Railroad Company, claiming the same as a part of the land granted by the act of congress of July 2, 1864, to aid in the construction of a railroad and…

This is an appeal by Marcus M. Towle from a decree of the circuit court dismissing his bill in equity against the personal representatives of George H. Hammond, deceased.

<p>1. Master and' Servant — Steamboats—Negligence.</p> <p>The-fact that the work of unloading cotton from a barge onto a steamboat engaged in the river trade on the Mississippi was carried on after dark, and while the boat was moving down the river, and that the mate was-hurrying up the work, does not show negligence on the part of the .owners.of the- steamboat, since it is the common practice and duty of the masters and crews of boats engaged in the river trade to push their ernplpyment, and, when called for, to receive, deliver, and stow freight at night as well as in the daytime.</p> <p>&. Same — Assumption of Risks.</p> <p>The risks attendant on service on a steamboat engaged in the river trade on-the Mississippi,, being well known to the people employed, are assumed by the crew. ¡</p> <p>jí.. Same — Failure of Electric Lights.</p> <p>The owner of a Steamboat engaged in the river trade on the Mississippi is hot' liablerfor the death of a servant who fell overboard while unloading coition at night from a barge onto the steamboat, because of the failure of the electric-lights, which was not shown to have been the fault of the owners or the master, but was an incident common to the employment of 'such lights, where the lard-oil hand lanterns furnished as a substitute were the best that could be obtained, and formerly were considered fully sufficient for the purpose.</p> <p>& Samé — -Failure to Furnish Staging.</p> <p>- Where the use of staging or connecting planks in transferring cotton from a barge to a steamboat was neither customary nor practical, the failure to furnish buch staging was not negligence.</p>

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

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

<p>Limitation of Actions — Pleading—Illinois Practice.</p> <p>Under the Illinois practice, matte’’ in avoidance of a limitation contained in an insurance policy cannot be pleaded in the declaration on such policy, but is matter for replication after the limitation has been pleaded by defendant.</p>

<p>1. Appeal — Proceedings in Forma Pauperis.</p> <p>It seems that Act July 20, 1892 (27 Stat 252, c. 209), permitting proceedings in the federal courts in forma pauperis, should be construed to apply to proceedings by appeal or writ of error in the circuit court of appeals.</p> <p>2. ' Same — Requisite of Showing.</p> <p>To authorize the granting of leave to proceed in forma pauperis under such statute, it must be shown that the petitioner is a citizen of the United States, and, where he sues as representative of a decedent, the financial condition of the estate, as well as his own, must appear; and inasmuch as the statute is expressly limited to those who are unable to pay tho fees or costs of the suit, or to give security for the same, a showing of inability, and not merely inconvenience or hardship, is essential.</p>

<p>This was an action at law on a life insurance policy.</p>

<p>Involuntary Bankruptcy — Pleading—Allegations of Answer.</p> <p>In tbe answer to a petition in involuntary bankruptcy, the respondent is not limited to the simple denial of insolvency contemplated by form No. 6. If the petition sets forth the debts alleged to be due by the respondent, the answer may contain detailed averments of defenses and counterclaims to such debts,, showing'the solvency of the respondent at the times, alleged.</p>

<p>1. Bankruptcy — Appeal and Review.</p> <p>Baukr. Act 1898, § 24b, giving to the circuit courts of appeals jurisdiction to “superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy,” on petition filed by any party aggrieved, applies only to some action taken or order made in the course of a proceeding in bankruptcy. Such a petition will not lie to obtain a review of an alleged error, of the district court in entertaining jurisdiction of a bill in equity brought by a trustee in bankruptcy against a stranger, a citizen of the same state, to set aside an alleged fraudulent conveyance of property to him by the bankrupt.</p> <p>2. Same.</p> <p>From a final deéree rendered by the district court in such a case an appeal may be taken to the circuit court of appeals in the ordinary way, bringing up for review every question decided in the case, or the question of the jurisdiction of the district court may be certified by that court to the supreme court of the United States.</p>

<p>In Equity. Suit by the trustee of a bankrupt to charge the proceeds of property alleged to have been fraudulently transferred by the bankrupt. On demurrer to bill.</p>

<p>Bankruptcy — Jurisdiction— Domicile of Bankrupt.</p> <p>A court of bankruptcy has jurisdiction of a voluntary petition for adjudication in bankruptcy, filed by a debtor who has had his domicile within the district for the preceding six months; although, during the greater portion of that time, he has resided abroad, provided there was no abandonment of the original domicile, nor acquisition of a new one, and the debtor returned to the district, before the filing of the petition, with the intention of making his .permanent home there.</p>

<p>In Bankruptcy. On demurrer to bill in equity filed by Walter O. Cox, as trustee in bankruptcy of W. H. Gilbert, against Jolm D. Wall and T. W. Huske.</p>

This is an appeal by the Lake Ontario Fish Company from a decision of the hoard of general appraisers, which sustained the action of the collector of the port of Cape Vincent, FT. Y., in assessing duty upon fish imported by the said company.

This is an appeal from a decision of the circuit court, Southern district of New York, which reversed a decision of the board of general appraiser» reversing a decision of the collector of the port of New York touching the assessment for duly of certain imported merchandise, which, under the tariff act of 1894, was zinc dust.

Appeal by the importers from a decision of the board of general appraisers which affirmed the classification for duty by the collector of the merchandise in question.

Appeal by the importers from a decision of the board of general appraisers ’which affirmed the classification for duty by the collector of the merchandise in question.

This is an appeal from a decision of the circuit court, Southern district of New' York, affirming a decision of the hoard of general appraisers w'liieh affirmed, the classification of certain merchandise for customs duty by the collector of the port of New York.

<p>Appeal by the importers from a decision of the board of general appraisers which affirmed the action of the collector in assessing duty upon the importations in question.</p>

Appeal by the United States from a decision of the board of general appraisers which reversed the action of the collector in assessing duty upon the merchandise in question.

Appeal by Pitt & Scott from a decision of the board of general appraisers which affirmed the action of the collector in assessing duty upon the importations in question.

This was an information for forfeiture of machines used by a cigar manufacturer for violations of the’internal revenue law, which was resisted by interveners claiming ownership of such machines.

<p>On Motion to Require Witness to Answer Question.</p>

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

<p>This is a suit in equity for infringement of a patent. On demurrer to bill.</p>

<p>L Patents — Infringement—Cash Registers.</p> <p>The Ritty and Birch patent, No. 271,363, for a cash register, held infringed.</p> <p>2. Same — Preliminary Injunction — Expiration of Patent.</p> <p>A suit for infringement was instituted, and an application for a preliminary injunction made, three months before the expiration of complainant’s patent, but the record was not perfected so as to enable the court to pass upon the motion until eight days before such expiration. Held that, although good ground for relief was shown, an injunction wonld be denied upon the filing of an adequate bond by defendant covering such damages and costs, both past and future, as might be awarded to complainant on final hearing.</p>

<p>Patents — Sutt por Infringement — Preliminary Injunction.</p> <p>A decision sustaining a patent in a case not contested is not suck an adjudication as will entitle the; complainant in a different suit to a preliminary injunction against infringement, where there is no proof of long acquiescence, and the validity of the patent is contested.</p>

<p>Patents — Infringement—Sale of Infringing Article.</p> <p>One who bought and resold at a profit the separate parts of an infringing machine, and was thereafter employed by the purchasers by the day to set up the complete machines, is within the rule that one who makes a profit for himself out of the infringing goods incurs liability as an infringer.</p>

<p>Patents — Suits for Infringement — Rehearing.</p> <p>A defendant in a suit for infringement is not entitled to a rehearing on tlie ground of newly-discovered evidence, where the existence of such evidence was disclosed by the file wrappers of the patents in suit.</p>

This case comes up on appeal from a decree of the circuit court of the United States for the Ifiastem district of Virginia. The action below was brought by way of petition on the part of A. I). Morgan, master of steam tug Prank A. Lowe, against the United States. The cause of action is a claim for salvage of the lightship No. 49, the property of the United Stales. The form of pleading is in admiralty in personam. The amount claimed is §10,000.

<p>1. Shipping — Charter Parties — Clean Bills of Lading.</p> <p>A British ship was chartered to carry cotton to Germany in November, when storms are likely to be encountered. For a distance amidships, and extending from side to side, was an upper deck house, supporting the officers’ bridge, in which erection were gaps forward and aft of- the bridge, where the main deck was left open. The covering over the midship part of such deck space had fore and aft passages on each side leading- out, which were called “alleyways.” At the front end of each alleyway was a door opening out on the open main deck. Bales of cotton were placed as close as possible on the outboard side of such passage, so as to leave a narrow gangway alongside the cotton for the passage of the crew and engineers. The spaces were covered over, but could not be permanently closed in, as the doors in the end have to be opened by the, crew in passing in and out. The spaces could not be made water-tight, because limy could not be covered by tarpaulin covers, and the doors had to stand the full impact of the seas which might sweep over the deck. Helé, (hat the master of the ship was justified in refusing to give a clean bill of lading-for the cotton stored in the alleyways, under the general rule that a clean bill of lading negatives any carriage except under deck.1</p> <p>2. Same — Construction of Charter Party.</p> <p>A charter party of a British ship provided that bills of lading wore to be signed when presented, without prejudice to the charter party, for any portion of the cargo, and at any rate of freight. It also provided that the whole of the steamer, including cross bunkers, bridge, deck bunkers, alleyways. peaks, lazarettes, space under bridge, deck, etc., consistent with the steamer’s seaworthiness, and all covered-over spaces on deck, should be placed at the disposal of the charterers, for their sole use. The English Board of Trade, in its official manual to surveyors, directs that permanent erections, with one or more openings in the sides or ends, not fitted with doors, or other permanently attached means of closing them, shall not be measured or included in the tonnage. The charter party gave Urn net registered tonnage, and guarantied a certain number of cubic feet “of actual cargo space available for cotton in bales,” in consideration whereof freight was to be paid at a certain sum per ton, net register, British measurement. Helé), that the clause placing “at the disposal of the charterers” certain additional deck spaces did not impose on the master of the ship the duty to sign clean bills of lading for cotton stored in alleyways spaces on deck, which could not be permanently dosed because-of the crew being compelled to pass through such spaces.</p>

In Admiralty: This was a proceeding by the owners of the schooner Jane Grey for limitation of their liability growing out of the sinking of the vessel during a voyage. On final rehearing.

<p>1. Jurisdiction of Federal Courts — Amount in Dispute.</p> <p>The amount in dispute, in an action for jurisdictional purposes in a federal court, is determined by the amount claimed by> the plaintiff in his pleading, in good faith, although such claim is made under a mistake of fact, as subsequently shown by the evidence, 1</p> <p>2. Appeal — Review—Findings of Fact.</p> <p>Where an action at, law in the circuit court is, by written stipulation of the parties, tried to the .court without a jury, a finding of fact made by tbe court, if there is any evidence to sustain it, is conclusive on the circuit court of appeals.</p>

<p>Removal of Causes — Jurtsdictiost Acquired by Federal Court.</p> <p>While the jurisdiction acquired by a federal court over a suit removed from a state court is, in a limited sense, derivative, so that such court acquires no jurisdiction where the state court had none over the subject-matter, yet, where the state court had jurisdiction of the cause of action • stated in the declaration, the fact that the defendant, after removal, pleads a defense of which the state court could not have taken cognizance, because based on a statute which the courts of the United Slates are alone empowered to administer, does not deprive the federal court of jurisdiction.</p>

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

<p>1. Oil Leases — Construction—Rights Granted.</p> <p>By a course of decision in West Virginia winch has established, a rule of property, it is settled that an oil and gas lease in which the sole compensation to the lessor is a share of the product is not. a grant of property in the oil or in the land until oil is actually produced, but merely of the right of possession for the purpose of exploration and development; and there is always an implied, if not an expressed, covenant for diligent search and operation.</p> <p>2. Same — Rules of Construction.</p> <p>A different rule of construction obtains as to oil and gas leases from that applied to ordinary leases or to other mining leases, and owing to the peculiar nature of the mineral, and the danger of loss to the owner from drainage by surrounding wells, such leases are construed most strongly in favor of the lessor.</p> <p>3. Same — Conditions Precedent — Right of Forfeiture.</p> <p>Where an oil and gas lease by which the lessor is to be compensated solely by a share of the product contains a proviso requiring the lessee to commence and complete a well on the property within a specified time, such proviso and the time of its performance are of the essence of the contract, and it constitutes a condition precedent, to- the vesting of any estate in the lessee, without regard to the grammatical construction of the instrument. When the lessee makes no attempt to comply with such provision, and evidences no intention to do so, at the expiration of the time stipulated the lease becomes forfeitable, at the option of the lessor, although by its terms it is for a definite term of years; and, being in possession, the exercise of such option is sufficiently evidenced by the lessor’s execution of a new lease to another party.</p> <p>4. Same — Construction—Effect of Penalty for Nonperformance of Condition.</p> <p>A provision in an oil and gas lease, by the terms of which the lessor is to be compensated solely by a share of the product, that, in ease of the failure of the lessee t,o compily with a condition requiring him to complete a well on the property within a stipulated time, he shall pay a forfeiture of $50, must be construed as providing a penalty intended to secure the performance of suc-h condition, and not as an alternative condition; and where the lessee makes no attempt to fulfill the. condition, and has no intention of doing so, he cannot, by a tender of the penalty, retain the lease in force until the expiration of Its term, and thus secure an option on the property for speculative purposes. When, by liis failure to comply with the condition, further performance of the contract becomes optional on his part, it is also optional on the part of the lessor.</p>

<p>J UDGMEXTS — CO LL ATER AL ATT A CK— G K OUNDS.</p> <p>A decree of a stale court can only be collaterally attacked in a federal court when entirely void, either for want of legal organization of the court, or of jurisdiction over either the subject-matter or the parties. The fact that such decree is void on its face, because uncertain and incomplete, does not Tender it subject to collateral attack; but the remedy must be sought in the court which rendered it, by proceedings for its vacation or by appeal from the decree.</p>

<p>Appeal — Decree por Costs.</p> <p>In a suit in equity tbe matter of costs rests in the discretion of the court, and from a decree for costs in the courts of the United States no appeal lies except where they are made payable from a fund in court.</p>

Demurrer to petition for the enforcement of a judgment, and for an order to compel the United States to issue a patent On July 27, 1899, Mary E. H. Gwin, intervener herein, filed the following petition: ■ “The petition of Mary E. H. Gwin, intervening in this proceeding for her interest, by leave of the court first had and obtained, respectfully shows that heretofore, to wit, on the 21st day of January in the year 1S52, Antonio Peralta, Vicente Peralta, Ignacio Peralta, and…

<p>1. Coefobations — Rights of Thied Pabtibs Dealing with Officers — Diveksion of Funds.</p> <p>A hank which held the individual note of the president of a business corporation received a payment thereon by his direction from a debtor of the corporation. The president was sole manager of the corporation, and the owner of the greater part, if not all, of its stock, and treated its business and property as his own, without objection from any one. Held, that, the bank was entitled to retain such payment without, prejudice to its right to receive a dividend equally wiih other creditors, upon a claim it held against the corporation, from a receiver appointed to wind up its affairs in insolvency.</p> <p>2. Same — Insolvency—Inteeest on Claims.</p> <p>The receiver of an insolvent, corporation, who , has properly withhold payment of a dividend to a" creditor until he could obtain the instructions of the court, is not personally liable for interest thereon; hut, if he still has in his hands funds of the corporation, interest, may properly be allowed and paid therefrom to place the creditor on an equality with others.</p>

<p>Appeal front the Circuit Court of the United States for the District of Maryland.</p>

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

This Is an appeal from a decree of the circuit court of the United States for the district of West Virginia, entered on the 17th of October, 189S (82 Fed. 15), overruling the motion of the complainants to remand the cause to the circuit court of Jefferson county, in said state, from which it had been removed into the federal court, and sustaining a demurrer to complainants’ bill, and dismissing the same.

<p>Upon the joint petition of the Southern Building & Loan Association and D. A. Carpenter, receiver, appointed by the chancery court of Knox county, Tenn., in the chancery cause of J. T. Barrow and others against "the Southern Building & Loan Association, pending in that court.</p>

This is an appeal from dhe circuit court of the United States for the Western district of Virginia. 92 Fed. 789. The matter in issue is the right to the proceeds of a judgment obtained, on the law side of that court, in the name of F. M. Threadgill against Thomas G. Platt, president of the United States Express Company. The parties to this issue are the Commercial Bank of Lynch-burg, Va., on the one side, and P. Rufe on the other.

<p>Ancillary Receivers — Appointment.</p> <p>An order making an ex parte appointment of G. as ancillary receiver of a corporation will be vacated, there not only being no suit pending in the jurisdiction making the appointment, but the appointment being on application of G., alleging his appointment as receiver in the federal court for another district, in a suit by L., and relief being sought in such suit, not by G., but by L. only, and G. having been appointed receiver therein after counsel claiming to represent the corporation, and desiring to be heard on its behalf, had been informed by the clerk of such court that no such suit had been instituted.</p>

This is a writ of error to review a judgment of the circuit court for the Western district of Tennessee in favor of Isabella Bentz against the Illinois Central Railroad Company. Isabella Bentz is the widow of Ed. Bentz, who was an engineer on a locomotive engine of one of the freight trains of the defendant company, and was killed by a collision between two trains of that company at a point two miles north of the town of Russell, in the state of Tennessee.

<p>In Error to the Circuit Court of (lie United States for the District of South Carolina.</p> <p>This case comes up on writ of error to the circuit court of the United States for the district of South Carolina. The plaintiff below, defendant in error here, holds certain bonds and coupons of the township of Pickens, in Edge-field county, S. O. His suit is on these bonds and coupons. The bonds, with the coupons, were made, executed, and issued under the following circumstances: The general assembly of South Carolina, on 21st December, 1883, passed ail act to authorize counties, townships, cities, and towns interested in tlie construction of the Carolina, Cumberland Gap & Chicago Railroad Company to subscribe to the capital stock of tlie said company. 18 St. at Large S. C. 409. Section 1. of this act authorizes the subscription in such sums, in bonds or money, as a majority of the qualified voters of tlie county, township, city, or town may authorize the county commissioners of such county or the municipal authorities of such city or town to subscribe. Section 5 makes it the duty of tlie county commissioners of each county or township int ('rested to submit the question of subscription to the voters of the county or township, giving them power to order the election, specifying the time, place, and purpose of such election. Section 7 makes it the duty of the county commissioners to declare the election, and to make the subscription, if so authorized by the result of the election. Section 9 provides “that for the purpose of this act all the counties, and the townships in said counties, along the line of railroad, or which are interested in its construction as herein provided for, shall be, and they are hereby, declared to be bodies politic and corporate and vested with the necessary powers to carry out the provisions of this act, and shall have all the rights and be subject to all the liabilities in respect to any rights or causes of action growing out of the provisions of this act.' The county commissioners of the respective counties are declared to be the corporate agents of the counties and townships so incorporated and situate within the limits of the said counties.” At the time of the passage of this a'ct townships in South Carolina were not bodies corporate, and were simply territorial designations. Pickens township being interested in the construction of this road, the county commissioners of Edge-field county ordered the election, and, the result authorizing the subscription, they subscribed in bonds the sum of $15,000. The subscription was made. The bonds were prepared and executed. Each bond, on its face, contains a certificate by the county commissioners to the effect that all of the conditions precedent to the issuing of such a bond have been fully performed. These bonds were deposited by the county commissioners with the Carolina Savings Bank at Charleston, with authority to issue them upon certain conditions. The plaintiff, claiming to be holder of these bonds, sued upon 25 of them, each for $100, and numbered from 1 to 25, inclusive; upon 15 of the bonds, each for $500, numbered from 25 to 40, inclusive; and upon 5 of them, each for $1,000, and numbered 41 to 45, inclusive; together with coupons on each of them, respectively. The Pickens township bonds were issued to one George Potts, under an order of the president of the railroad, dated 11th December, 1888. They got into the hands of McCracken & Co., who were contractors, building the road. McCracken & Co. transferred them to the firm of Post, Martin & Co., and, Martin having withdrawn, the firm became Post & Pomeroy, of which firm the present plaintiff is the survivor. The railroad was never built as originally contemplated. It has been completed to Edgefield Courthouse. It has not been so completed as to pass out of Pickens township, although it runs into that township. The bonds are coupon bonds, payable to bearer. They bear date 1st January, 1888. .Coupons are payable annually.</p> <p>The answer contains five defenses: (1) It denies each and every allegation of the complaint, save such as may be hereafter admitted. (2) Puts in issue the existence of the firm of Post & Pomeroy, and the survivorship of Post, and denies the bona fides of the holding of plaintiff. (3) Denies that Pickens township, is a corporation; denies the validity of the act authorizing the subscription; denies the validity of the election; denies the validity of their issue, and denies the authority of the county commissioners to issue them; denies that plaintiff got the bonds in due course of business, and avers that he got them on speculation, and without consideration, with full knowledge of their invalidity; avers that the road had not been completed through the township, and that the bonds were acquired after the supreme court of South Carolina had declared similar bonds unconstitutional and void. (4) Alleges that the bonds had been deposited with the Carolina Savings Bank upon certain conditions, which have not been performed, and that the delivery of them by said bank to Potts was fraudulent and void. (5) Denies that Pickens township is a body politic and corporate. (C) Pleads the statute of limitations as to such of the coupons as did not mature within six years, and as to such annual installments payable on said bonds as did not fall due and payable within six years.</p> <p>The cause, being at issue, was tried before the circuit court and a jury. The court, upon all the evidence, instructed the jury to find for the plaintiff. Judgment was entered on the verdict, a writ of error was sued out on exceptions taken at the trial, and on these exceptions the cause is here. The exceptions cover the legal grounds taken in the answer, and allege error in that the judge took from the jury the questions of fact whether the bonds were not acquired after the decision of the supreme court of South Carolina determining that the township bonds issued under precisely the same authority as these were invalid, and the further fact as to the bona fide acquisition of these bonds by the plaintiffs for valuable consideration, without notice.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was a suit at law by the Travelers’ Insurance Company to recover from the mayor and aldermen of Johnson City $50,000 and interest from January 5, 1¡S92, as money had and received to the use of the defendants. The case made in the declaration was: That under the act of the general assembly of the state of Tennessee, providing: “That any county, incorporated city or town, may become a stockholder in any railroad company incorporated under the general laws of this state, to an amount not exceeding, in the aggregate, one-tenth of its taxable property, by complying, with the requirements of this act” (Laws 1887, c. 3, § 1), and which provided in its twelfth section: “That when such subscription shall become due and payable, as provided in section eleven of this act, the county, or city, or town making the subscription shall make and execute its coupon bonds for the amount of such ■ subscription, payable not more than twenty years after date, and bearing interest at such rate as may be agreed upon, not exceeding six per cent, per annum, payable semi-annually, and deliver the same to the railroad company, provided, that such county, city or town may pay such subscription in cash at maturity, if it shall so elect,” — the Charleston, Cincinnati & Chicago Railroad Company, On December 30, 1890, applied to the defendant in error to subscribe $75,000 to the capital stock of said railroad company, the subscription to be paid in the coupon bonds of the defendant. That an election Was hold on January 30, •1890, pursuant to law, and under orders of the mayor and board of aldermen. That the sheriff made his return, showing that more than three-fourths of the eléctors voting voted for the subscription, and that thereupon the defendant made" the subscription accordingly,. and resolved that it be paid in coupon bonds of the town. That the bonds issued were in the form following:</p> <p>“State of Tennessee, County of Washington, Corporation of Johnson City:</p> <p>.“Know all men by these presents, that the corporation of Johnson City, in the county of Washington, state of Tennessee, acknowledges itself indebted and firmly bound to the Charleston, Cincinnati & Chicago Railroad Company, or bearer, in the sum of one thousand dollars, lawful money of the United States of America, and for value received hereby promises to pay to. said company, or bearer, the sum of one thousand dollars at the National Bank of Deposit in the city of New York, state of New York, ifi. twenty years after date, with interest thereon from date hereof at the rate of six per cent, per annum, payable semiannually, on the first days of May and November in each and every year, on presentation and delivery of coupons hereto annexed, and duly signed by the recorder of Johnson City; for the performance of all which the taxable property of said Johnson City is irrevocably pledged, pursuant to an act of the general assembly of the state of Tennessee, entitled ‘An act to enable the counties and incorporated cities and towns to subscribe to the capital stock of any railroad company incorporated under the general laws of this state, in the mode prescribed therein, and to provide for the payment of such subscriptions,’ approved February 17, 1887, and alsq an act passed February 28, 1887, approved March 2, 1887, authorizing Johnson City to issue bonds to an amount not exceeding seventy-five thousand dollars. This bond is one of a series of seventy-five bonds of like tenor, date, and amount herewith, issued by virtue of said above-named statutes, and in issuing same all of the provisions and requirements of each of said statutes have been strictly fulfilled and complied with. In witness whereof the mayor and the recorder of the corporation of Johnson City, Tennessee, have hereunto signed their names, and the same, has been countersigned by the board of trustees of the sinking fund of said town, at said Johnson City, on the first day of May, A. D. 1890..</p> <p>“Mayor.</p> <p>“Recorder^</p> <p>“Board of Trustees of the Sinking Fund.”</p> <p>That by the contract of subscription the bonds were to be deposited in the First National Bank in escrow, to be delivered to the railroad company, or its order, upon presentation of a cei'i ideate signed by the mayor of the city and the chief engineer of the railroad company. That the three conditions of the subscription, which were the delivery of the stock, the, construction of the railroad, and the erection of a railway station, had been complied with. That the railroad and station were completed, and the stock issued in accordance with the contract, and tlie bonds were delivered to the railroad company upon proper certificate. That the stock issued to the amount of $75,000 has over since been held by the defendants. That, soon after the delivery of the bonds by the city to the railroad company, the same were put by the railroad company upon the market for sale, and the plaintiff, relying upon the representations made on the face of the bonds that all the requirements of law had been strictly complied with .in their issue, purchased $50,000 of the bonds, and paid 850,000 in lawful money for tlie same without notice of any infirmity in the bonds.</p> <p>The declaration further shows that, after paying the interest coupons on these bonds for several years, the defendants filed a bill in the chancery court of Washington county, Tenn., against the railroad company and the plaintiffs and others, in which it sought to have the bonds declared void on the various grounds therein set up; that upon a final hearing of the cause the chancellor entered a decree, on March 33, 1895, adjudging the bonds to he void in the hands of bona fide purchasers, upon the ground that the Charleston, Cincinnati & Chicago Railroad Company was not a corporation under the laws of the state of Tennessee, but was a South Carolina corporation; and that $75,-i)00 exceeded one-tenth of the taxable property of Johnson City, in violation of the terms of said statutes authorizing the subscription. On appeal this was affirmed by the court of chancery appeals. Plaintiff then appealed to the supreme court of Tennessee, which also affirmed tlie decree of the chancellor (44 S. W. 070), adjudging that said bonds were invalid and void upon the grounds stated, and enjoining their collection. The declaration avers further that the corporation to which this subscription was made was a Tennessee corporation, and not a corporation of South Carolina; that in fact there were two corporations, and that the application made by the railroad company for the subscription was made in the name of the Tennessee corporation. The bill further avers that the defendants were estopped by their recitals to deny that this was a Tennessee corporation, or that the statutory limit of indebtedness had been exceeded. The prayer of the bill is for the amount paid by plaintiff for the bonds, on the ground that the defendants have received this amount in value to their benefit. The declaration was demurred to on the ground that it did not state a cause of action, and the demurrer was sustained. The plaintiff not wishing to plead further, judgment was entered for the defendants, and that judgment is now here for review.</p>

<p>1. Contracts — Construction.</p> <p>Plaintiff contracted to build two blast furnaces for defendant, and to furnish five boilers of a designated pattern, which he guarantied sufficient for the entire plant. The five boilers furnished being insufficient, plaintiif furnished three more; and, it then appearing that still more would be required, a supplemental contract was entered into, by which he agreed to furnish two additional batteries, of two boilers each, at his own cost, if both were required, but the contract providing that if one of such batteries should prove sufficient, with those previously erected, defendant should pay $8,000 for the last battery, or it might elect not to retain it, in lieu of such payment. Held, that plaintiff could in no event recover more than '$8,000 upon such, supplemental agreement, even if able to show that neither of the additional batteries furnished thereunder were required to fulfill his former contract; the necessity for one, at least, of such batteries being conceded in the making of the second contract.</p> <p>2. Appeal — Review—Rulings on Motion for New Trial.</p> <p>Rev. St. § 914, requiring circuit and district courts of the United States to conform, as near as may be, in civil actions at law, to the practice, pleadings, and form of procedure existing in the state courts, has no application to procedure on appeal or writs of error; and the settled rule of the federal courts that'a ruling on a motion for a new trial is discretionary, and not reviewable on a writ of error, is not affected by a state statute providing for appeals from such rulings.</p>

<p>1, Indemnity Insurance — Fidelity of Employes — Construction of Contract.</p> <p>A surety company issued to a railroad company a bond by which it agreed to indemnify the latter against loss by reason of the dishonesty or culpable negligence of its employes, who were named, and the amount of indemnity as to each stated, in a schedule. The liability was limited to losses which should occur and be discovered during the continuance of the contract, and the bond contained the following provision: “And it is agreed further that the company, upon the execution of a stipulated amount of risk or insurance under the terms of this bond in behalf of any employé, shall not thereafter be responsible to the employer under any previous insurance of said employé, it being mutually understood that it is the intention of this provision that but one (the last) insurance of the employé shall be in force at one time, unless otherwise provided.” At the end of each year after the issuance of such bond a new schedule of employes was furnished by the employer, accepted by the company, and a new premium paid, based thereon. The bond stated no time of its duration, but the notice of acceptance of each subsequent schedule stated the term of insurance to be for one year. Held, that the bond was not a continuing contract from year to year, but that a new contract was made annually; and on each renewal under the above provision the liability of the insurer for any past and undiscovered defalcation of an employé terminated.</p> <p>2. Same. ’ ,</p> <p>■ A contract by a surety company to indemnify an employer against loss by reason of the dishonesty or culpable negligence of its employes limited the liability of the company to such losses as should occur during the continuance of the contract, and should be discovered “during said continuance, and within six months after the death, dismissal, or retirement of the employe causing such loss. Held that, at the expiration of the year for which indemnity was given, the liability of the company ceased as to an undiscovered loss caused by an employs who still remained In the position in which his fidelity had been guarantied, although he subsequently died, and the loss was discovered within six months thereafter.</p>

<p>1. Master and Servant — Safe Plage to Work.</p> <p>A master was building a shod over the width of the sidewalk in front of a building In a city. Twenty-six foot posts were placed on the inside and on the outside of the sidewalk, on which were fastened wooden girders parallel with the street, and boards were nailed on such girders. The work was done at night, in consequence of the public use of the street in the daytime. Two derricks were used, which were secured by guy lines, some of which ran across the street, where they were secured. About 5 a. m. a wagon struck against one of the guys, which threw plaintiff’s servant from the top of the post on which lie was standing, and to which he was spiking a girder. Held, that the master cannot escape liability under the rule that the duty of the master to provide safe places does not apply where the place originally furnished is safe, and becomes unsafe in the progress of The work, or because of the manner in which the work is done, since it cannot he said that the place (the street) originally furnished was safe unless it was protected by danger signals or watchmen.</p> <p>2. Same.</p> <p>Work was done at night on a structure where guy ropes were run into and across the street. A wagon of a third person ran against one of the ropes, which caused plaintiff to fall from where he was working on the structure. There were no lights or watchmen in the street near the ropes. Helé, that the fact that when the workmen on the job began work sufficient appliances in ibe way of lamps were furnished does not exonerate the masior within the rule that when the working place originally, and when the employe w'as sent to do the work there, was reasonably safe, but became unsafe at the particular time of the accident by causes that could not have been anticipated, the master is not liable, since the place could not be considered reasonably safe when the workmen began their night’s work unless an adequate system was adopted for their protection against dangers easily to be anticipated.</p> <p>IS. Samp: — Weight and Sufficiency of Evidence.</p> <p>The usual practice as to guarding obstructions at night in the streets of a city where men wore at work was to place red lamps on the ohstruetion, or to employ a watchman. A master had provided four red lanterns, ,'two of which had been broken before the night of the accident, and the other two had been placed on that night at one obstruction, but there were none on the obstruction which a third person encountered, thereby injuring a servant. The evidence as to whether a watchman had been designated to give warning was conflicting. Heldj, that the question of whethér the obstruction was sufficiently protected was for the jury.</p> <p>4'Same — Assumption of Risks.</p> <p>A servant does not assume the risk of the employer’s neglect to furnish a reasonably safe system of protection against the danger from in- ■ jury by passing vehicles coming in contact with guy ropes extending from the place where the servant is working out into and across the street.</p>

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

In Bankruptcy. On review of decision of referee in bankruptcy.

In Bankruptcy. On report of referee in bankruptcy on bankrupt’s application for discharge and opposition thereto by creditors.

<p>1. Bankruptcy — Proof of Dicbt — Amendment.</p> <p>A court, of bankruptcy lias discretionary power to allow a proof of debt against the bankrupt’s estate to- be amended, and will generally grant leave to amend, in eases of mistake or ignorance of law or fact, in the absence of fraud, when justice seems to require that the amendment should be made, and when all parties can be placed in the same situation they would have occupied if the error had not occurred.</p> <p>2. Same.</p> <p>Where a bankrupt had money on deposit in a bank, and was indebted to the bank on promissory notes for a larger sum, and the cashier of the bank made proof against the bankrupt’s estate for the entire amount of the notes, omitting, through mistake or forgetfulness, to offset the amount of the deposit, l eld, that the bank should be permitted to amend its proof so as to retain the amount of the deposit, credit the same on the notes, and prove a claim for the balance.</p> <p>3. Same — Set-Off of Mutual Debts.</p> <p>ITnder the provisions of the bankruptcy law relating to the set-off of mutual debts, money on deposit in a hank to the credit of a bankrupt may he set off against the indebtedness of the bankrupt to the bank on promissory notes.</p> <p>4. Same — Restoration of Funds.</p> <p>Where a bank held money on deposit to the credit of a bankrupt, and, on his order, transferred the account on its books to the name of the receiver appointed to take charge of his estate, and afterwards to the name of the same person as trustee in bankruptcy, but with no actual payment of the money nor any change in its possession, Mid that the bank, being entitled to retain the amount of the deposit as a set-off against notes of the bankrupt which it held, might deduct the amount thereof from the funds of the estate placed on deposit with it by the trustee in bankruptcy.</p>

<p>In Bankruptcy. On demurrer to petition in involuntary bankruptcy. '</p>

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

<p>1. Bankruptcy — Acts or Bankruptcy — Preferences.</p> <p>Where an insolvent debtor convoys all his property to a. trustee, with directions to convert the same into money, and to apply the proceeds — ■ First, to the payment of the costs and expenses; second, to the payment of such of tlio grantor’s creditors as are entitled to priority under the laws of tlxo state; third, to the payment of the grantor’s general creditors according' to a schedule set forth in the deed; and, finally, to return to the grantor any balance that may remain, — such conveyance is not a transfer of property with intent to prefer a creditor or creditors, within the meaning of Bankr. Act 3898, § 3a, cl. 2, and therefore is not, on that ground, an act of bankruptcy.</p> <p>2. Same — Assignment for Creditors. ,</p> <p>A conveyance of property to a trustee, with directions to convert the same into money, and apply the proceeds in payment of the debts of the grantor and the costs of administration, hut reserving to the grantor the right to any balance that may remain, is not a “general assignment for the benefit of his creditors,” within the meaning of Bankr. Act 1898, § 3a, el. 4, providing that such an assignment shall constitute an act of bankruptcy, where it is not shown that the reservation of an equity to the grantor is colorable or in bad fnitb, and for tbe purpose of evading the provisions of tbe bankruptcy law.</p> <p>S. Same — Fraudulent Conveyance.</p> <p>A,voluntary conveyance of all bis property by a.n insolvent debtor to a trustee, to be converted into money and distributed to tbe creditors of tbe grantor, tbougb it is made for tbe equal benefit of all tbe creditors, without preferences and without actual fraud, and though it would be good at common law, is nevertheless an act of bankruptcy, as being a transfer of property with intent to hinder, delay, and defraud creditors, since its necessary operation is to deprive the creditors of the rights, advantages, and safeguards provided for them by the bankruptcy law.</p> <p>4. Same — Preservation of Property — Injunction.</p> <p>Where an insolvent debtor, who has conveyed all his property to a - trustee, with directions to sell the same and distribute the proceeds to the creditors of the grantor, is adjudged bankrupt on involuntary proceedings against him, on the ground that such conveyance was intended to .delay and defraud creditors, and is therefore voidable in bankruptcy, the court of bankruptcy, pending the appointment of a trustee, may enjoin tbe trustee under the deed from disposing of the property or exercising any of the powers given him by the deed, except to hold possession of the property and preserve it.</p>

<p>In Bankruptcy. On bankrupt’s application for discharge, and exceptions thereto by creditors.</p>

<p>Bankruptcy — Priority or Claims — Wages or Labor.</p> <p>A traveling salesman is not a workman, nor a clerk or servant of his employer, -within, the meaning of Bankr. Act 1898, § 61b, cl. 4, according priority of payment out of bankrupts’ estates to “wages due to workmen, clerks, or servants, which have been earned within three months before the date of the commencement of proceedings, not to exceed S300 to each claimant.”</p>

<p>In Bankruptcy. On bankrupt’s application for discharge, and exceptions thereto by creditors.</p>

<p>1. Bankruptcy — Jurisdiction—Property in Possession or State Court.</p> <p>Judgment creditors brought suit in a state court of competent jurisdiction against their debtor and against his assignee for the beneli) of creditors, assailing the assignment as fraudulent and void, and a receiver was appointed to take possession of the property. More than four months thereafter the debtor was adjudged bankrupt. Subsequently the state court rendered a decree avoiding the assignment, establishing the liens of the plaintiffs on the property affected, and ordering the sale of the same by a commissioner appointed for the purpose. The court of bankruptcy afterwards made an. order requiring the bankrupt to surrender the property to his truslee, enjoining the sale by the commissioner, and directing a sale by the trustee instead. Held, that such order was an unwarranted interference with the jurisdiction of the state court and its possession and control of the property in question, and must be revoked.</p> <p>2. Same — Possession of Receiver.</p> <p>The fact that the receiver had not acquired actual possession of the property would not justify such an order of the court of bankruptcy, for 'the order appointing the receiver brought the property within the custody and control of ilie state court.</p> <p>S. Same — Conclusivbness of Decree.</p> <p>The validity of a decree of a state court rendered in a suit by judgment creditors against their debtor and his assignee, setting aside the assignment as fraudulent and. void, establishing the liens of the plaintiffs on the property, and ordering its sate, cannot be impeached by the debtor’s trustee in bankruptcy, in a proceeding in the court of bankruptcy to obtain possession of the property and have it sold by the trustee, on the ground of fraud and collusion between the parties in the suit in the state court, where the trustee had opportunity to intervene in such suit, and there allege such fraud.</p>

This is an application by the collector of customs at New York for a review of the decision of the board of general appraisers. The merchandise was classified and assessed for duty at 35 per cent, ad valorem, as an article composed wholly or in chief value of earthy and mineral substance, under paragraph 97 of the act of congress of July 24, 1897.

<p>Customs Duties — Appraisal—Sugars — Increased Value prom Drainage during Shipment.</p> <p>In the appraisal for duty, under the tariff act of 1894, of Brazilian sugar bought and shipped when green, and which necessarily loses weight and increases in value per pound, hy drainage during the voyage, such increase in value may properly be taken into account. The provision of section 19 of the customs administrative act of 1890, that, where merchandise is subject to an ad valorem duty, the duty shall be assessed upon its value in the principal markets of the country from whence imported, “and in the condition in which such merchandise is there bought and sold for exportation,” is not, intended to limit the appraiser to a condition which existed at the time of the purchase, but was immediately to become altered until a new condition and value were reached, hut, as shown by the context, is intended to apply to the condition of preparedness for shipment of the merchandise when bought; it being further provided that to its value in the condition bought shall he added the cost of coverings, and all other costs, charges, and expenses incident to placing it in condition for shipment.</p>

Appeal by the importers from a decision of the board of general appraisers which affirmed the classification for duty by the collector of the merchandise in question.

App-eal by the importers from a decision of the board of general appraisers, which affirmed the classification by the collector of the importations in question.

Appeal by the importers from a decision of the board of general appraisers, which affirmed the action of the collector in assessing duty upon the importations in question.

<p>This was an appeal by the United States from a decision of the hoard of general appraisers, which sustained certain protests involving the legality of a reappraisement by the board of review of certain imported merchandise.</p> <p>The decision of the board of classification, written by General Appraiser Somerville, is as follows:</p> <p>The goods involved in these protests consist of so-called “Swiss embroideries,” a small number of handkerchiefs being also included in the importation, all of which were the subject of certain appraisements hereinafter more fully explained. The appraised value of the articles, as ascertained by the local appraiser at the port of New York, was in advance of the invoice value of the goods. The importers called for a reappraisement pursuant to the provisions of section 13 of the customs administrative act of June 10, 1890, which, in each instance, was held accordingly before a single general appraiser, who reappraised the goods, and reduced the advances made by the local appraiser to the extent shown by the record. The collector of customs, being of opinion, as he officially reported, that the appraisements made by the Single general appraiser were not too low, declined to comply with the suggestion of the local appraiser that he should transmit the invoices and papers appertaining thereto to a board of three general appraisers for review, under the provisions of said section 13. He did, however, subsequently adopt this suggestion, when requested to do so by the treasury department, under circumstances hereinafter stated, which are claimed by the protestants to have operated upon his official action as a moral and legal duress, it being made to appear that the collector had made no change in his original opinion that the appraisements made by the single general appraiser were not too low. The board of three general appraisers assumed jurisdiction of the cases against tire objection of the protestants, who interposed a written demurrer thereto; and the board proceeded to examine and decide the cases under the authority of said section 13. The collector liquidated the entries upon the basis of values ascertained by this board of review, and the importers filed their protests within the time prescribed by law, urging objections to the said liquidation, which are discussed seriatim in this opinion.</p> <p>1. The first contention of the importers is that the board of three general appraisers never acquired jurisdiction to review the appraisements held by the single general appraiser, for the want of legal compliance with the requirements of said section 13, inasmuch as the collector transmitted the invoice and accompanying papers to the board of three general appraisers under coercion of the treasury department, and in face of the fact that he (the collector) did not deem the appraisement of the merchandise as already made too low. In our judgment, the question of jurisdiction is one which can properly be raised by protest. The rule is well settled by numberless decisions of the courts that, while the valuation of imported merchandise, as appraised by the proper officers, is conclusive upon the parties, “nevertheless the appraisement is subject to be impeached when the appraiser or collector has proceeded on a wrong principle, contrary to law, or has transcended dhe powers conferred by statute.” U. S. v. Passavant, 169 U. S. 16, 21, 18 Sup. Gt. 219, 42 L. Ed. 644, and authorities there cited. Any statutory tribunal which assumes jurisdiction not expressly given by law unquestionably transcends the powers conferred on it by statute. The authority of a board of three general appraisers, sitting as a board of classification, duly organized under section 14 of the act of June 10, 1890, to pass upon questions raised by protests of this character, has been held to be precisely coextensive with a like authority conferred upon the courts by section 15. U. S. v. IClingenberg, 153 U. S. 93, 102, 14 Sup. Ct. 790, 38 L. Ed. 647; Passavant’s Case, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644; In re Taylor, G. A. 4072; U. S. v. J. Allston New-hall & Co. (C. C.) 91 Fed. 525. In II. S. v. Murphy, decided by the United States circuit court for the Southern district of New York, per Townsend, J., in December, 1898 (suit 2,704),1 it was held that a reappraisement of merchandise made by’ a single general appraiser under the provisions of said section 13 could be successfully challenged by protest, on the ground that the general appraiser who made the reappraisement did not examine any of the goods, nor have before him samples of the same at the time of the roappraisement. When the case was before the board of classification upon protest, that board held that the alleged irregularity was one which could be proved by parol evidence, and was fatal to the jurisdiction of the general appraiser, and, consequently, that his reappraisement was null and void. This view of the law was sustained by the court, and the decision was duly acquiesced in by the treasury department. S. S. 20,538 and 18,95$. There is nothing in the suggestion of the government counsel that, the so-called “reappraisement board” (or board of review) had a legal right, to finally determine its own jurisdiction. If such a claim could be successfully made in this case, it could be sustained with equal propriety in every other case which has gone before the courts for review where a like jurisdiction has been assumed. No tribunal whose decisions are subject to review can lawfully be the final arbiter of its own jurisdiction.</p> <p>2. The important inquiry in this case, and one not entirely free from difficulty, is whether, under the state of facts disclosed at the hearing and by the record, the board of three general appraisers, organized and acting under the authority conferred by said section 13, acquired jurisdiction to “examine and decide” the case thus submitted. The provisions of said section, so far as they are pertinent to the issues raised by the protest, read as follows: “Sec. 13. The decision * * * of the general appraiser in cases of reappraisembnt shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein, unless the importer, owner, consignee, or agent of the merchandise shall be dissatisfied with such decision, and shall, within two days thereafter give notice to the collector in writing of such dissatisfaction, or unless the collector shall deem the appraisement of the merchandise too low, in cither case the collector shall transmit the invoice and all the papers appertaining thereto to the board of three general appraisers, which shall be on duty at the port Of New York, or to a board of three general appraisers who may be designated by the secretary of, the treasury for such duty at that port or at any other port, which board shall examine and decide the case thus submitted, and their decision, or that of a majority of them shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein, and the collector or the person acting as such shall ascertain, fix, and liquidate the rare and amount of duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law.” Tills board of review, sometimes popularly designated the “board of reappraisement,” is manifestly a statutory tribunal, with limited powers and jurisdiction. Appraisers, invested with an analogous jurisdiction under the previous statutes, have sometimes been designated as “quasi judges” or “legislative referees.” Giuely v. Thompson, 1.0 How. 225, 240, 13 E. Hd. 397; Rankin v. Hoyt, 4 How. 327, 11 L. Ed. 996. So. in like manner, the collector of customs is a special statutory officer or tribunal, invested with power to exercise certain specified statutory functions, some of which are purely ministerial and executive, while others are of a quasi judicial character. II. S. v. Leng (D. 0.) 18 Fed. 15. The rule in reference to all statutory officers and tribunals of this character is well settled, and it is that, where .they have jurisdiction over the subject-matter, their determination is conclusive, “except upon a review in such way as the law points out for the correction of error's”; but, as stated in II. S. v. Thurber (D. G.) 28 Fed. 56, per Brown, J.: “There is one fundamental exception to this rule: Not only must the officer have jurisdiction of the subject-matter, but he must also keep within the limits of power conferred by statute. Whenever a suit is brought, based upon such officer’s action, it is always competent by way of defense to show that the officer has departed entirely from the statute, or acted so contrary to It that his acts are deemed beyond his jurisdiction, and in excess of power; and in such a case what he does in excess of power is illegal and void, and may be shown in defense. Void acts are thus wholly different in their consequences from merely erroneous acts. More errors or mistakes in the performance of a duty do not make the officer’s acts void. They stand good and valid until reviewed and corrected as provided by law,” — citing II. S. v. Doherty (D. C.) 27 Fed. 730, 733, and cases cited. From the letter of the statute (section 13) it is apparent that the board of review could acquire jurisdiction to “examine and decide” these cases only in one of two ways: First, in the event of the importer or other owner of the merchandise giving notice of his dissatisfaction with the decision of the single general appraiser in the time and manner prescribed by said section 13; or, secondly, by the action of the collector in announcing in some suitable way the fact that he “deemed the appraisement of the merchandise too low.” And in both contingencies the collector is required to transmit the invoice and papers to the board of three general appraisers. The importers have expressed no such dissatisfaction, so that the jurisdiction of the board must turn upon the action of the collector.</p> <p>The law makes the decision of the single general appraiser final and conclusive, unless the collector shall “deem the appraisement of the merchandise too low,” acting upon which conclusion ne is to transmit the invoice and accompanying papers to the board of three general appraisers. The words “shall deem,” as used here, we construe to mean “shall think, judge, or hold an opinion, decide, or believe on consideration,” which accords with the definition given by the lexicographers. The formation of this opinion or belief must necessarily involve the exercise of judgment and discretion by the collector, based on proper investigation, and entertained according to the rules of reason and justice. Without a compliance on the irart of the collector with this requirement, the board of review would acquire no jurisdiction to decide the case, and any decision made by it, would be hull and void. It is, in other words, a condition precedent to the exercise of jurisdiction. The rule-obtains that, “where the act or thing required by the statute is a condition precedent to the jurisdiction of the tribunal, compliance cannot be dispensed with”; and, furthermore, even if such compliance be impossible, the jurisdiction fails. End. Interp. St. p. 630, § 443. Nor can any consent of parties give jurisdiction, so that any statutory provision which goes to the jurisdiction does no-t admit of waiver. Cooley, Const. Lim. 493-506. It has accordingly been held that, where an act provided that justices, at the hearing of a bastardy proceeding, should “hear the evidence” of the mother, and such other evidence as she may adduce, the evidence of the mother was so essential to the jurisdiction of the tribunal that no order could lawfully be made without it, although the woman died before the hearing. Ileg. v. Armitage, L. It. 7 Q. B. 773. The record here fails to show that the collector deemed the appraisement of the merchandise, as made by the single general appraiser, too low; and the testimony taken at the hearing shows beyond question that he did not deem it too low. It is in evidence that when the local appraiser at the port of New York suggested to the collector that he order a reappraisement of the goods by a board of three general appraisers the collector declined to adopt the suggestion. He expressed himself in a letter to the secretary of the treasury, under date of August 16, 1898, giving his reasons fully for the conclusions he had reached after due investigation. He officially reported to the secretary, after stating his reasons, as follows; “I am satisfied that the appraisements made by the general appraiser are not too low, although considerably less than those of the local appraiser; and I have no good reason that would justify the opinion on my part that the reappraisements as made are too low. Henee I am constrained tQ deny' the request of the, appraiser that I order a reappraisement on the 120-odd invoices by the board of three United'’States general appraisers, unless otherwise instructed by the department.” The assistant secretary of the treasury then in charge of the customs division, in reply to this letter of the collector, under date of August 17, 1898, urged upon him the expediency of an appeal from the decision of the single general appraiser. After stating certain reasons, he concludes as follows: “The department has, therefore, to request that you make due application for a reappraisement by the board.” It appears from the testimony that this letter was written after consultation with the solicitor of the treasury, and obtaining from him an opinion, verbally given, that “the secretary had the authority to request the collector to malte an appeal in such case.” The collector seems to have construed this request to be an order or instruction, from the fact that, he made the following indorsement upon the papers: “In view of the department’s order of August 7, 1898, I hereby order a reappraisement by the board of three general appraisers of the merchandise covered by this reappra.isement.” Subsequently, on October 7, 1898, the collector, after a personal conference with the assistant secretary of the treasury, made and signed the following indorsement upon the papers: “I hereby appeal from the decision of the general appraiser in this .ease, under the provisions and in accordance with section 13 of the act of June 10, 1890, and transmit the invoice to the hoard of general appraisers for a reappraisement of the merchandise covered thereby.” This form of indorsement was prepared hy the assistant secretary. The collector, on being interrogated as to whether or not the treasury department had “insisted” upon a reappraisement being called for in these cases, or whether ho had called for the reappraisements and had placed these two indorsements on the papers of his own volition, replied: “The assistant secretary did not say the department ‘insisted,’ but he said they ‘desired’ a reappraisement.” It is not made to appear, however, that the collector had at any time expressed, either in writing or verbally, the opinion that he “deemed the appraisements too low.” The latter indorsement does not necessarily convey any such impression, and the first seems to have been made on the theory that the department had instructed him to take the appeal. On the contrary, the collector at the hearing was emphatic in reiterating the truth of the statement which he had officially reported to the secretary on August 16, 1808, and asserted that he had not changed his mind from the opinion expressed in that letter.</p> <p>We do not feel authorized, from the testimony and the record, to reach any other conclusion than that the collector did not “deem the appraisement of the merchandise too low,” and that he reported no such conclusion to the board of review. The ambiguous phraseology of his second letter seems to have been adopted to avoid the recantation of the opinion on this subject which he had previously expressed to the secretary of the treasury, and as an act of obedience to what he regarded as an instruction from his superior officer, issued in the courteous form of a request. In this view of the case, the action of the collector could not he legally regarded as his voluntary act, but rather that of the secretary, who made the request. It was insisted at the argument, however, that the collector is a subordinate ministerial officer, subject to the control of the secretary of the treasury, who was authorized to give the instruction in quesiion, and the collector was, consequently, bound to obey it. The statute under consideration, as we have said, makes the jurisdiction of the board of three general appraisers (or board of review) to depend upon the action of the collector, and not of the secretary, “unless,” it says, “the collector shall deem the appraisement of the merchandise too lqw.” There is no doubt of the fact that the secretary has the right to instruct collectors as to all administrative matters, where the collectors act in a ministerial or administrative capacity. But the rule is different as to duties which are judicial or quasi judicial in character, tlio performance of which is made 'by statute to depend upon the exercise of discretion or judgment on the part of the collector alone. It may be laid down as a proposition generally sustained by the authorities, as well as by reason, that: “Where a statutory power or jurisdiction is granted, which otherwise does not exist, whether to a court or an officer, and in all cases where, hy the exercise of such a power, one may be devested of his property, the grant is strictly construed. The mode of proceeding prescribed must be strictly pursued. The provisions regulating' the procedure are mandatory as to the essence of the thing required to be done.” Suth. St. Const, p. 587, § 454; Potter, Dwar. St. 224. So, in the case of Allen v. Blunt, 3 Story, 742, 1 Fed. Cas. 448, cited in the brief of appellants’ counsel, the principle is stated as follows: “In short, it may be laid down as a general rule that, where a particular authority is confided to a public officer, to he exercised by him in his discretion, upon an examination of the facts, of which he is made the appropriate judge, his decision upon these facts is, in the absence of any controlling provision, absolutely conclusive as to the existence of those facts.” On this point it has been forcibly observed tiiat “every statute that limits a thing to be done in a particular form, although it be done in the affirmative, includes in itself a negative, viz. that it shall not he done otherwise.” Atkins v. Kinnan, 20 Wend. 214, 248, citing Plowd. Comm. 113. In the light of these principles, it is clear that no one but the collector can decide that he (the collector) deems the appraisement of any merchandise too low, unless there be some special statutory provision which would authorize the discretion or judgment of the collector to be controlled or dominated by the treasury department, or some other superior power. This authority is sought to be derived, in the first place, from the power conferred on the secretary of the treasury hy section 249 of the Revised Statutes, which empowers Ihat officer to “direct the superintendence of the collection of the duties on imports and tonnage, as he shall judge best.” Such a construction of that statute is put at rest by the decision of the supreme court in Butterworth v. Hoe, 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656. It was there held, after elaborate discussion, that an entirely analogous power of supervision and direction, given to the secretary of the interior over the commissioner of patents, who is for many purposes deemed a- subordinate officer, conferred no authority upon the secretary to control the judgment and discretion of the commissioner as to any matter the right to decide which is vested in him by law. In other words, the executive supervision and direction of the department was held to apply to administrative and executive duties only, and not to matters in which the subordinate is directed by statute to act judicially or quasi judicially.</p> <p>It is further argued on the part of the government that the authority of the treasury department to instruct collectors in this particular manner, if, in fact, there was such instruction, is derivable from either section 2919 or section 2652 of the Revised Statutes. These two statutes are condensations, of sections 23 and 24, respectively, of the tariff act of August 30, 1842. (5 Stat. p. 548, at page 566). The former section, authorizes the secretary of the treasury from time to time to “establish such rules and regulations, not inconsistent with the laws of the United States, to secure a just, faithful, and impartial appraisal of all merchandise imported into the United States,” etc. Section 2652 provides that “it shall be the duty of all officers of the customs to execute and carry into effect all' instructions of the secretary of the treasury relative to the execution of the revenue laws, and in case any difficulty shail arise as to the true construction or meaning of any part of the revenue laws, the decision of the secretary of the treasury shall be conclusive and binding upon all officers of the customs.” There is no regulation which the secretary has promulgated, under the authority of said section 2949, so far as we can ascertain, which would be at all applicable to this ease. The law requires that all such rules and regulations, with -the reasons therefor, shall be reported by the secretary to the next session of congress; and we find no regulation which is pertinent to this subject. An instruction given to a single officer, and not promulgated in the form of a general rule applicable to "all officers under like circumstances, could scarcely bé characterized as a regulation in any proper sense of the word. Harvey Case, 3 Ct. Cl. 38, 42. So, said section 2052 relates to the execution of the revenue laws and matters of an executive character. It was not intended to confer any authority upon the department to control or interfere with the decision of any matter or question which the laws of congress expressly relegated to the judgment of any subordinate officer. These two sections were long ago construed by the United States circuit court in Tucker v. Kane, Taney, 146, 24 Fed. Cas. 208, decided in the year 1850. It was there held that these statutes did not confer upon the secretary the right to review the judgment of merchant appraisers, nor to exercise any control over their decisions, nor set aside any such decisions because they were believed by him (the secretary) to be against the weight of evidence. To a like effect is the principle laid down in Gray v. Lawrence, 3 Blatchf. 117, 10 Fed. Cas. 1031. .There are many adjudged cases bearing on the relative authority of the secretary of the treasury and the collector which serve to illustrate the foregoing principles. For example, the various collectors of customs have long been invested with the authority to determine what allowance of goods may be made for reasonable sea stores of certain vessels. This estimate being authorized to be made “within the discretion” of these officers, it was uniformly held by the secretary of the treasury that the decision of -the collector as to these matters was neither subject to review nor control by the department. Customs Regulations 1892, art. 107, and treasury decisions there cited. So it has been held that such decisions, being based upon the discretion and judgment of the collector himself, are not subr jeet to review by the courts nor by this board. An Ullage Box of Sugar' 24 Fed. Cas. 504; In ro Cunard Steamship Co,, G. A. 4464. So, in a decision by the circuit court for the Northern district of California in Re Wise, 73 Fed. 183, a contention arose as to the proper construction of section 15 of the customs administrative act of June 10, 1890, which confers the right of appealing from any decision of the board of general appraisers upon “the collector or the secretary of the treasury,” when dissatisfied with such decision. The attorney general had given the treasury department an opinion that under the provisions of section 2652 of the Revised Statutes (to which reference has heretofore been made in this opinion) it was the duty of the; collector to follow the instructions of the secretary in reference to the exercise of his authority to take such appeals. This opinion, was placed, upon the ground that a collector was a subordinate officer of the secretary of tho treasury, and as such hound by his instructions relating to the revenue laws. 21 Op. Áttys. Gen. 203. The circuit court held that, inasmuch as the statute itself conferred upon the collector the authority to take the appeal, and said nothing about obtaining authority from the secretary of the treasury, it was evident that no such authority was required. It would seem to follow logically that, if the secretary is debarred by law from controlling the judgment and discretion of a collector in the exercise of a statutory power which is given alternately to each of them, a fortiori, he could not legally control the decision of the collector as to the exercise of a power vested exclusively in him by statute, such as the power or authority to take an appeal in the case under consideration. A like principle is adduced from the various decisions of the courts bearing on the right conferred by statute upon the director of the mint to estimate quarterly the values of standard foreign coins in circulation among the various nations of tho world. Such an authority involves tho exercise of judgment and discretion, and has been held to reside alone in the director of the mint, where congress has placed it. It has accordingly been held by numerous court decisions that such findings of value by that officer are final and conclusive, and not subject to review, change, or control, cither by the courts or by any other authority, except in the mode and at tho time prescribed by law. IT. S. v. Klingenberg, 153 TJ. S. 93, 14 Sup. Ct. 790, 38 L. Ml. 647; Wood v. TJ. S„ 18 O. C. A. 553, 72 Fed. 254; United Stai.es v. ,T. Alisten Newhall & Co. (C. C.) 91 Fed. 525. In He Forest v. Red-field, 4 Blatchf. 478, 7 Fed. Cas. 364, such an authority was denied by the court to exist either in the president or tho secretary of tho treasury, under the general power conferred to make proper regulations for estimating duties on imported merchandise.</p> <p>In construing the statute under consideration, it is a matter of importance that we should not overlook the fact that the collector of customs has long boon invested by law with the authority to direct rca.ppraisome.nt, either by the principal appraiser or by three merchant appraisers, under the old system. Jtev. St § 2029; Klmes, U. S. Laws Oust. 231 et, seq. And in case of disagreement between two appraisers the collector was authorized to decide between them, and determine the dutiable value of such imported goods, ltev. St. § 2930. He was thus constituted by law pro hac vice an appraiser. This was done, no doubt, for the reason that he would, always enjoy ample opportunities for informing himself as to the market value of imported merchandise through constant access to the invoices of merchants and the statements of1 reputable importers. It cannot be supposed that the secretary of tho treasury, with his multifarious and arduous duties, would have either the time or opportunities required to make such investigations, there being more than 150 ports of entry in this country, where collectors or surveyors are stationed, and upon whom the exercise of this function is constantly devolved. Our inference, therefore, is that it was not the intent of congress to vest tho secretary of the treasury with either tho authority to order a reappraisement of merchandise of the kind here under consideration, or to control the collector in the exercise of the discretion conferred on him by statute as to this particular matter. The power to make such an order in one case would necessarily and logically involve the correlative power of compelling the collector, by instructions, to desist from making like orders whenever this course might be deemed'advisable by the department No such authority was claimed at the hearing, nor, in our judgment, has it any just foundation in law.</p> <p>It follows from tho foregoing conclusions that, the hoard of three general appraisers, acting as a hoard of review, acquired no jurisdiction to hold the appraisements in question, and, being without jurisdiction, their decision advancing the values ascertained by the single general appraiser would be null and void. In such case duties must necessarily he levied upon the basis of the values ascertained by the single general appraiser, which the law makes final and conclusive in the absence of a valid order for reappraisement under the provisions of said section 13.</p> <p>Other objections are raised to the validity of the so-called “reappraisements” under consideration, which are as follows: (1) That the reappraisement made by the board of review was irregular and illegal, because, instead of finding the market value per unit' of measurement, they advanced the invoices by making additions in the form of a percentage. (2) That the merchandise was not lawfully appraised under either section 10 or section 11 of the customs administrative act. (3) That the board of three general appraisers advanced the value of a portion of the goods without inspecting the goods themselves, or having proper samples of them. In the view we have already taken of this case, it becomes unnecessary to pass upon these contentions, as to the soundness of which many forcible objections, however, can be urged. Inasmuch as this decision involves many other similar protests not now submitted for consideration, and a large amount of the public revenue is at stake, and the principle involved is one of great importance, it is quite probable that the final determination of these difficult questions must lie with the courts. For this reason the other protests will be suspended, the present eases having been agreed on by counsel as fairly presenting the issues involved. Conflicting claims of jurisdiction are naturally at war on their boundary lines, and often result beneficially in obtaining constructions of laws which would not otherwise be interpreted by the courts. It. is only by submitting such questions to the final arbitrament of the courts that friction can be avoided between superior and subordinate tribunals, as well as between the different departments of the federal and. state governments. The protests are sustained so far as they raise the question of jurisdiction, and the collector’s' decision is reversed, with instructions to reliquidate the entries on the basis of values as ascertained by the single general appraiser.</p>

<p>1. Trade-Names — Infringement—“ Vichy ” Mineral Water.</p> <p>The name “Vichy,” as applied to mineral water, is a geographical name used generally by the owners of springs near Vichy, France, to designate the locality of origin, and indicate the general characteristics, of their waters. It is not a trade-mark or Irade-name, in a legal sense; and a suit by such owners against a defendant for using the name in connection with artificial waters, or waters of a different origin, can only be maintained on the ground of unfair competition.</p> <p>2. Same — Unfair Competition.</p> <p>Defendant for many years bottled and sold natural mineral water from a spring at Saratoga under the name of “Saratoga Vichy.” No attempt was made to palm it off on purchasers as an imported water, but it was sold on its merits, and the labels were such as could not deceive a person of ordinary intelligence. Held, that the use of the name “Vichy” in connection with such water did not constitute unfair competition, 1</p>

<p>L Trade-Marks — Infringement—Pleading—Pleas.</p> <p>The objection to a bill for the infringement of a trade-mark, that it is insufficient to entitle complainant to relief, because it does not show that complainant has the exclusive right to the trade-name claimed to be infringed, cannot be raised by plea, but must be raised by demurrer, since a defect on the face of the bill.</p> <p>2. Same — Multifariousness.</p> <p>In a suit for the infringement of a trade-mark, the plea set up as defenses that the bill was insufficient, because not showing that complainant had the exclusive right to the trade-name claimed to be infringed, and that complainant was not entitled to protection in using such name in connection with what it called “bitters,” made and manufactured after formulae long known and understood, and not belonging exclusively to conv plainant. Held, that the plea was multifarious, because presenting two separate and distinct issues, — one of law and one of fact.</p>

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

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>Where the question of infringement is a nice one, which cannot he satisfactorily determined on affidavits, and the defendant is financially responsible, a preliminary injunction will be denied.</p>

<p>On order to show cause why respondents should not be punished for contempt in violating a writ of perpetual injunction issued under interlocutory decree.</p>

<p>1. Patents — Anticipation—Car Brakes.</p> <p>The Westinghouse patent, No. 345,093, for a car brake, claim 6, the principal feature of which is the location of a slot for the reception of a brake lever in the strut between the compression member and the tension, member of a trussed brake beam, was so fully anticipated in the prior art as to deprive it of patentable novelty.</p> <p>2. Same — Limitation of Claims bv Amendment — Estoppel.</p> <p>Where a patentee has limited his claim by amendment after rej'ectment ■ . by the patent office, he cannot he heard to contend that the claim allowed. has the breadth of the claim rejected, but must he held to have abandoned or surrendered to the public the broad original claim, except as modified.</p> <p>8. Same — Construction of Claims — Improvements on Old Devices.</p> <p>A patent to one who has merely made an improvement on devices that perform the same function before and after the improvement should he limited, by a strict construction, to the very improvement described and claimed, or mere colorable 'evasions of It, so as to leave the unappropriated field open to other Improvers.</p> <p>4. Same — Car Brakes.</p> <p>The Hein patent, No. 301,009, for a brake beam for railway cars, claim 2, which covers “the combination in a brake beam of a hollow beam, a strut, and plugs or caps, 8, and a truss rod, 3, which extends through the caps, 8,” if disclosing patentable novelty, is so limited by the prior art, and by amendment in the patent office, as to require a very narrow construction, confining it, as to the caps employed, to the particular construction of “caps, 8,” as shown by the drawings. As so limited, held not infringed.</p> <p>5. Same — Patentability—Function of a Machine.</p> <p>The function of a machine or the result produced by its operation are not patentable.</p> <p>6. Same — Car Brakes.</p> <p>The Hein patent, No. 480,194, for a brake beam, claims 1, 2, and 7, the essential feature of which is a camber given to the compression member of a trussed brake beam by screwing up the nuts on the ends of the tension member, so as to spring the beam from a straight lino and retain it in that position, is void; the production and maintenance of such camber being merely a function or operative effect of the mechanism, which was itself old and well known in the art, and therefore not patentable. Such claims were also anticipated by the Westinghouso patent, No. 149,902, and the previous Hein patent, No. 301,009.</p> <p>7. Same.</p> <p>Claims 8 and 4 of such patent, which relate chiefly to a notch in the end of a tubular brake beam to engage with a. lug on the inside of the socket of the brake head, for the purpose of holding the latter in place, and preventing it from rotating on the beam, is void for want of patentable novelty.</p> <p>8. Same.</p> <p>Claims 5, 6, and 8 of said patent, in so far as they cover brake heads having cup-shaped recesses for the insertion of the end of the brake beam, are limited by the proceedings in the patent office, and the amendments there made, to recesses or sockets with a closed end, to prevent the sliding of the brake head along the beam, and are not infringed by a brake • head with an open socket, and held in place by other means.</p> <p>9. Same — Anticipation.</p> <p>A device which is an Infringement, if later than a patent, constitutes an anticipation, if earlier.</p> <p>10. Same — Patentable Invention.</p> <p>The construction of lugs or projections on the inside of the flanges of a clamp, to hold them at. the required distance apart, when drawn together by a bolt passing through them, so as to prevent them from binding upon a chain, which passes between them, does not involve patentable invention.</p> <p>11. Same — -Invention—Clamp for Brake Beams.</p> <p>The llobischung patent, No. 430,755, for a clamp for brake beams, claim 2, Is void for lack of patentable invention.</p> <p>12. Same — Infringement.</p> <p>The Rohischung patent, No. 466,984, for a brake beam, claims 1 and 2, construed, and held not infringed.</p> <p>13. Same — Invention—-Extensive Use.</p> <p>Extensive use of a patented article is strong proof of utility, b.ut not of Invention, and is entitled to consideration,' on that issue, only in doubtful eases.</p>

<p>Patents — Infbingement—Cab Bkakes.</p> <p>The Robischung patent, No. 480,218, for improvements in brakes for rail; way cars, claim 5, covering- a locking device designed to prevent any alteration of the camber of the brake beam, construed, and held valid,"but not infringed.</p>

<p>Personal Injuries — Fall from “Jacob’s Ladder” into Hold.</p> <p>Where a hag sewer in the employ of a warehouse company at' whose dock a steamship was discharging was directed hy his employers to go into one of the holds of the vessel to mend coffee hags, and in going down voluntarily made use of a rope ladder, with wooden steps, which the vessel had furnished to contracting stevedores who had rigged it in the hatchway, and after descending it in safety was injured by falling from it in attempting to ascend it at the close of the day, it was held (1) that the ladder was safe and sound of its kind; (2) that the shipowners owed no duty to the libelant to furnish him with a different kind of a ladder; and (3) that the libelant could not recover damages from the shipowners.</p> <p>(Syllabus by the Court.)</p>

<p>Negligence — Action foe Injury — Knowledge of Danger.</p> <p>As a steamship was approaching a dock, a rope ladder was let down over tbe side, to enable a seaman to land upon the pier and make the vessel fast, and in the hurry of the moment it was dropped in front of the opening of an exhaust pipe connected with, a donkey engine. While the ship was being moored, or immediately after, libelant, a stevedore, started to climb on board to seek employment in loading the vessel, which was customary at that port, and when opposite the exhaust pipe the engine was started for some purpose, and libelant was burned by the escaping steam and water. The end of tbe pipe could have been seen from the pier, and libelant knew its nature and use. Held, that tbe vessel was guilty of no negligence of which libelant could complain, there being no claim that lie was known to be coming on board wben the engine was started, and that ho must be held chargeable with knowledge of tbe danger, which he could have seen.</p>

<p>Sai/vage — Amount—Towage Seuvtces.</p> <p>A sailing ship valued at $60,000 was in imminent danger of being destroyed by Are, which had started in the sheds on a wharf near which the ship lay. She was on Are in several places, when a tug ran up under her bow, took a line from the ship, and towed her away immediately. There was no difficulty in towing the ship, and after the two vessels left the wharf the peril was over. The Injury to the ship did not exceed $150. The value of the tug was not more than $3,500. If the tug had not been present, a Are boat would have performed the services. The tug was at no lime in danger. Helé, that $2,500 should be awarded the tug as salvage.1</p>

<p>Judgment — Res Judicata.</p> <p>A judgment in a proceeding in rem in the admiralty court, that a contract for repairs on a vessel did not hind the vessel or her owners, but that it was agreed that payment should be liad out of her earnings, is a bar to a personal action against the owners to recover for such repairs. .</p>

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

<p>Admiralty— Collision — Negligence.</p> <p>At a point in a river where the dredged channel was 400 feet wide, a string of scows was anchored, the anchor being some B0 feet outside the channel, to the west thereof, and the distance therefrom to the stern of the last scow being between 375 and 400 feet. The incoming tide swung them directly across the channel. There was no light on any of them, unless on the one nearest the anchor; and the preponderance of the evidence was that there was none on it, the officers of five steamers going down the river during the night, with proper lookouts, testifying that there was none. Four of these steamers, three of them drawing not over 8 feet of water, and the other 13 feet, avoided the tow by making a sharp deviation to the eastward, the latter having barely room to get by, and her stern narrowly clearing some rocks. Immediately on report of the scows by the lookout of the fifth steamer, which was heavily loaded and drew 17% feet of water, her engines were reversed, her helm put to port, and she struck the scow nearest the anchor. Éüé, that no fault of such steamer contributed to the collision, even if the perilous alternative of going to the eastward might have been more fortunate. ,</p>

Suit in rem to recover damages for a personal injury caused by the steam schooner Homer running into the brigantine Blakely while the libelant was working as a carpenter on the latter vessel, which was at the time moored to a dock in Seattle Harbor. Hearing on the merits. Decree for libelant.

This is a suit in equity, brought by Philip Tillinghast, as receiver of the Columbia National Bank of Tacoma, in the state of Washington, an association organized under the national banking act,… Held: at which the modification, of the increase of capital stock was determined upon by the shareholders.

<p>This is a suit in equity to enjoin the enforcement of an ordinance of the city of Atlanta. On demurrers to.bill.</p>

■ This is a bill to remove a cloud from the title to two fractional lots on Chestnut street, in the city of Chattanooga, Tenn. The lots in question originally belonged to A. J. & G. W. Stoops, who conveyed them by deed of trust to one Filmore Gibson, as trustee, to secure a large indebtedness. Subsequently the same lots were conveyed by mortgage deed of Xenophon Wheeler, in trust, to secure an indebtedness of $6,000 for borrowed money to Isaiah and Herman Weil.

This case comes up on appeal from the circuit court of the United States for the district of South Carolina.

<p>Equity — Rehearing.</p> <p>. A court of equity will not grant a rehearing to enable a complainant to have an analysis made of alleged spurious hitters, which defendants were charged with having sold as the product of complainant, where it was fully known before the hearing that the court regarded such analysis as material.</p>

<p>, On motion to take from the files an amended answer, and to strike out a defense therein pleaded.</p>

<p>1. Municipal Corporations — Actions against City.</p> <p>A suit against the city to enjoin the opening of a street, in the exercise of its power of eminent domain, is not a suit against the state, within the prohibition of the constitution of Indiana, as construed by the supreme court of the state.</p> <p>2. Same — Condemning Land for Street — Enjoining Proceeding Pending Appeal.</p> <p>A provision of a statute that an appeal from a proceeding by a city to appropriate land for street purposes shall not prevent the city from proceeding with the appropriation cannot he construed to prevent the granting of an injunction against the taking of the property pending an appeal, where fraud or a failure to comply with statutory requirements which would render the proceedings nugatory from the beginning is charged, and it is shown that the immediate execution of the order would result in irremediable injury to the complainant, while delay would result in little or no harm to the city or public.</p> <p>3. Appeal — Rkyiew—Order Refusing to Dissolve Injunction.</p> <p>An order of a circuit court refusing to dissolve a temporary injunction will not In; disturbed on appeal, where the bill makes a prima facie case for the granting' of the injunction, and the showing leaves the question fairly within the discretion of the court.</p>

<p>1. Dedication of Streets — Failure of Dedicator’s Title — Ratification by True Owner.</p> <p>A decree in a suit involving the title to real estate, entered upon a stipulation- by which the prevailing party relinquished all claim to certain portions of the property, which the other party had platted into lots and sold, —such lots being designated in the stipulation and decree by reference to the recorded plats, — operates also to confirm in the public the title to the streets dedicated by such plats, and upon which the lots released abut.</p> <p>2. -Municipal Corporations — Improvement of Street — Estoppel of Owner.</p> <p>Where a landowner permits a city which is vested with the power of eminent domain to expend money or incur liability in grading and otherwise improving streets laid out over his property, without taking active steps to prevent, he is estopped thereafter to assert his right to possession of the land occupied by such streets, although they were occupied by the city under a dedication made by an adverse claimant of the property, and without his consent.</p> <p>8.-Same — Special Assessments.</p> <p>Such estoppel, however, does not extend to assessments made by the city upon abutting property of such owner for the cost of improving the streets, so as to prevent him from contesting the validity of such assessments.</p> <p>4. Same — Assessments for Street Improvement — Constitutionality.</p> <p>Special assessments levied on abutting property for the cost of street improvements under the statutes of Washington, which require the assessment of tne entire cost of such improvements on the abutting property, and which are levied by the front-foot rule, or other methods having no reference to benefits accruing thereto, are in violation of the provision of the constitution of the United States against the taking of private property for public use without just compensation.</p>

<p>These cases are submitted to the court on demurrers to the petitions.</p>

This was an action brought by the plaintiff in error, Fred. A. McMaster, administrator of the estate of Frank E. McMaster, deceased, against the defendant in error, the New York Life Insurance Company, upon five policies of insurance, of i?J,000 each, upon the life of Frank E. McMaster. The defense was that the insurance had ceased before he died, on January 18, 1895, because he had failed to pay the annual premiums due on December 12, 1894.

This is a writ of error to review a judgment in favor of Joseph P. Peurrung, as the assignee of a contract of the firm of Peurrung Bros. & Co., against the Carter-Crume Company for $4,977.50.

<p>On Petition by Defendant for an Order Staying Further Proceedings.</p>

<p>Appeal — Review—Harmless Error.</p> <p>Where the principles of law stated in a request to charge are correct, the mere fact that they are not applicable to the ease made by the evidence does not render the affirmance of such request reversible error.</p>

<p>Action at Law. On demurrer to complaint.</p>

This was a petition for a writ of mandamus to compel the collector of the port of Mobile to grant clearance to the Norwegian bark Norma.

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

The plaintiff in error, James C. Edwards, brought an action against the defendant in error, the county of Bates, upon two bonds and certain coupons issued by the county, and the court rendered a judgment in favor of the county on the ground that the plaintiff was not the owner of the bonds. The writ of error was sued out to reverse this judgment.

<p>1. Trial — Instructions—Commenting upon Evidence.</p> <p>It is a well-settled rule in the federal courts that a trial judge may make comments upon the evidence in his charge, and express his opinion as to what the evidence does or does not conduce to prove, provided the jury are ultimately left at full liberty to determine all issues of fact.</p> <p>2. Same — Instruction in Absence op Counsel.</p> <p>While a trial court should refrain from instructing a jury in the absence of counsel, when it can do so conveniently, it is not reversible error for a court to give further instructions in explanation of its previous charge, in compliance with a request from the jury, although counsel for neither of the parties is present, where such Instruction is given in open court, during a regular session, when counsel might reasonably have been expected to he In attendance.</p>

<p>Carriers — Action vor Injury to Passenger — Questions for Jury.</p> <p>Plaintiffs evidence tended to show that as ha stepped from defendant’s train at a station in the night, where it was too dark for him to see well, he was tripped by a hose that was being drawn along the platform by employes of defendant, close to the steps of the car, and fell, and was injured. Defendant’s evidence was to the effect that the hose was lying still on the platform, not less than 2% feet from the car steps, and that the place was well lighted. Helé that, in view of such conflict in tlxe^ evidence as to material facts, it was error to direct a verdict for defendant. “</p>

On Petition to Eeview an Order of the District Court of the United States for the Southern District of New York. The petition for review is filed on behalf of the Ninth National Bank of the City of New York, a creditor of the bankrupts.

In Bankruptcy. On petition of Gregory Perkins, Jr., as trustee of the bankrupt’s estate, against J. W. Kelley, for an order to show cause why the defendant should not restore to the petitioner certain personal property taken from his possession.

<p>On Petition to Superintend and Kevise, in Matter oí Law, Proceedings of the District Court of the United States for the District of Maryland, in Bankruptcy.</p>

On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the District of South Carolina, in Bankruptcy.

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

<p>In Bankruptcy. On petition for injunction.</p>

In Bankruptcy. Ou review of decision of referee in bankruptcy. Tire referee’s certificate was as follows: “1, Lewis G-.

In Bankruptcy. This matter was before the court on a previous motion to confirm the report of the referee. 96 Fed. 812. Pursuant to the decision then made the matter was referred back to the referee to make a finding upon the question whether or not the Rome Planing-Mill Company was insolvent on the 17th'day of October, 1898.

This is an application by the collector of custom at Yew York for a review of the decision of the board of general appraisers. The duty was assessed at 30 per cent, ad valorem, as within the specific enumeration of boiler or other plate iron or steel valued above 1% cents, and not over 4 cents, per pound, in paragraph 114 of the tariff act of August 28, 1894.

This ivas a suit brought by William Gerst, the defendant in error, trading under the firm name and stylo of the William Gerst Brewing Company, to recover of D. A. Nunn, United States collector of internal revenue for the Fifth collection district of Tennessee, the sum of $810.75. This sum was paid under protest to Collector Nunn, by reason of an alleged erroneous and illegal assessment made by the commissioner of internal revenue.

<p>1. Indictments — Consolidation—Habeas Corpus — Scope—Review.</p> <p>Error in the consolidation of indictments cannot he inquired into in habeas corpus proceedings, since such writ cannot serve as a writ of error, where a court has acted within its jurisdiction.</p> <p>2. Same — Excessive Sentence — Discharge.</p> <p>Prior to the expiration of that part of a term of imprisonment that a court could legally impose, a prisoner will not he discharged on habeas corpus on the ground that the court had imposed an excessive sentence.</p>

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

<p>Habeas Corpus — Stay of Mandate Pending Review.</p> <p>A mandate of affirmance of a decision of the circuit court denying a writ of habeas corpus will be stayed pending decision by the supreme court on error, where, if the mandate should issue, the relator would be delivered to the custody of officers in another state.</p>

These are prosecutions by the United States for violations of the statutes enacted to enforce the fifteenth constitutional amendment. On demurrers to indictments. -

<p>1. Corporations — Notice to Officer or Agent.</p> <p>Notice given, before Hie organization of a corporation, to a person who afterwards became a stockholder and officer or an agent of the corporation, is not notice to the corporation.</p> <p>3. Tbade-Marks — Notice—Effect of Registration.</p> <p>The registration of a trade-mark in the patent office does not affect those not engaged in commerce with foreign nations or Indian tribes with notice thereof.</p> <p>3. Same — Infringement—Suit for Injunction.</p> <p>Defendant, a mercantile corporation, caused to be placed on shoes manufactured for its trade certain words and a symbol, which together were claimed by complainants as a trade-mark. As used by complainant, there was nothing about the device to indicate the manufacturer of the shoes, or that it was a trade-mark, and defendant’s officers were not aware that it was so used. As soon as they learned the fact they ceased to have It stamped on their shoes, and at the time suit for infringement was instituted they had on hand, but about two dozen pairs of shoes bearing it, and at about that time caused it to be erased from them. field that, under such circumstances, the court would not entertain a suit for an injunction against infringement, it being clear that there had been no intentional violation of complainant’s rights, and that none was threatened.</p> <p>4. Same — Descriptive Words.</p> <p>A trade-mark, used on shoes, and consisting of the words “Steel Shod” in connection with a symbol, is not infringed by the words “Steel Clad” alone, stamped on shoes having the soles quilted with steel wires; such words being descriptive merely, and not subject to appropriation as a trade-mark.</p>

Appeals from the Circuit Court of the United States for the Eastern District of New York.

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

<p>1. Patents — Infringement—Folding Paper Boxes.</p> <p>The Wilson patent, No. 286,:?60, for an improvement in folding paper boxes, ‘ 'held not anticipated, and valid, on motion for a preliminary injunction.</p> <p>2. Same — Suit for Infringement — Defenses.</p> <p>The fact that the owner of a patent is a corporation alleged to have been formed in violation of the anti-trust law, and that the patent is alleged to have been assigned to it in furtherance of the illegal purpose to create a monopoly and control the prtce of an article of commerce, is not available to an infringer of such patent to defeat a suit for the infringement.</p>

<p>Patents — Infringement—Machines for Dressing Hides.</p> <p>The Rood & Vaughan patent, No. 383,914, for an improvement in machines for shaving skins or hides, as to claim 3,- which relates to the cutter cylinder, is limited by the prior art to the precise construction shown, which is a cylinder having two series of knives, arranged spirally thereon, the direction of each series being opposite to that of the other, and each series extending “from one end of the cylinder to and beyond the middle of such cylinder, longitudinally thereof, and until they abut against each other”; and such patent is not infringed by a machine in which the two series of knives terminate or abut against each other on ,the center line of the cylinder.</p>

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

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

<p>This was a suit by a seaman to recover wages, and damages for wrongful discharge.</p>

<p>In Admiralty. Suit for seamen’s wages: Decree for libelants</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York. Motions to remand both causes to the circuit court in order to enable that court to entertain motion for rehearing.</p>

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

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

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

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

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

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