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2. Immigration.

Under Act Cong. March 3, 1903, c. 1012, §§ 21,
24, 25, 32 Stat. 1218, 1219, 1220 [U. S. Comp.
St. Supp. 1903, pp. 180, 181, 182], and Act
Cong. Feb. 14, 1903, c. 552, 32 Stat. 825 [U. S.
Comp. St. Supp. 1903, p. 41], a decision by a
board of special inquiry that an alien was not
a contract laborer, but was entitled to enter,
held not res judicata of such question as against
a subsequent proceeding instituted by the Secre-
tary of Commerce and Labor.-Pearson v. Wil-
liams (C. C. A.) 734.

AMENDMENT.

Of assessment for taxation, see "Taxation,"
§ 2.

Of judgment, see "Judgment," § 2.

Of pleading, see "Equity," § 2; "Pleading,"
§ 3.

ANIMALS.

Transportation by vessel, see "Shipping," § 4.

ANTENUPTIAL CONTRACTS.

See "Husband and Wife," § 1.

APPEAL AND ERROR.

Conformity of federal courts to state practice,
see "Courts," § 4.

Costs, see "Costs," § 1.

Review in bankruptcy proceedings, see "Bank-
ruptcy," § 9.

Review in patent infringement suit, see "Pat-
ents," § 7.

Review of proceedings in admiralty, see "Ad-
miralty," 2.

§ 1. Decisions reviewable.

In a suit to foreclose a mortgage and deed of
trust on a railroad contractor's outfit, a decree
permitting intervener to use the property pen-
dente lite on specified conditions held interlocu-
tory and unappealable.-Columbia Ave. Trust
Co. v. MacAfee Co. (C. C. A.) 402.

2. Presentation and reservation in
lower court of grounds of review.
Where no exception was taken to that por-
tion of the court's charge defining the elements
of damages to be considered by the jury, and
no further instruction on the subject was re-
quested, an assignment of error based on that
given cannot be considered by the appellate
court. Southern Pac. Co. v. Maloney (C. C. A.)
171.

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In the absence of evidence, held, that it can-
not be said a brakeman was not acting within
the scope of his employment in ejecting an in-
truder from a freight train.-Seaboard Air Line
Ry. v. Richard (C. C. A.) 409.

Assignments of error based on the giving and
refusal of instructions cannot be considered by
the Circuit Court of Appeals, unless the bill of
exceptions contains the evidence pertinent to the
issues to which the instructions relate, as re-
quired by the rules of the court. - Newport
News & O. P. Ry. & Electric Co. v. Yount (C.
C. A.) 589.

5. Review.

Federal courts have large discretion to per-
mit the correction of defects in pleadings or
process by amendment, and rulings on the sub-
ject constitute no ground for reversal, unless
the discretion is grossly abused.-Great North-
ern Ry. Co. v. Herron (C. C. A.) 49.

Where a civil case was tried by the Circuit
Court without a jury, and a special finding of
facts was not made, as provided by Rev. St. §
700 [U. S. Comp. St. 1901, p. 570], the suffi-
iency of the facts to support the judgment
could not be reviewed.-West v. Houston Oil
Co. of Texas (C. C. A.) 343.

The refusal of the court to set aside a verdict
and grant a new trial is not reviewable in the
federal courts.-Newport News & O. P. Ry.
& Electric Co. v. Yount (C. C. A.) 589.

The admission of incompetent evidence is not
ground for the reversal of a judgment which is
fully supported by uncontradicted evidence prop-
erly admitted.-United States v. Brendel (C. C.
A.) 737.

Evidence on a retrial of a case held not such
as to deprive a former decision on appeal of its
effect as the law of the case.-Smith v. Day
(C. C.) 964.

§ 6. Determination and disposition of

cause.

A holding on a prior appeal that plaintiff had
been kept from possession of a mine at least un-
til May 6, 1901, held the law of the case, though
not contained in the mandate issued to the trial
ing Co. v. Hanley (C. C. A.) 99.
court.-Empire State-Idaho Mining & Develop-

A mandate, after appeal, held to authorize the
trial court to correct a mistake in the computa-
tion of the amount of the judgment.-Ex parte
Marks (C. C. A.) 168; Marks v. Brown, Id.

In an action for the reasonable value of plain-
tiff's services, the excessiveness of the verdict
cannot be reviewed on appeal.-Walker Mfg.
Co. v. Knox (C. C. A.) 334.

§ 7. Liabilities on bonds and under-
takings.

Summary judgment, after affirmance, held
properly rendered against a surety on the super-

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Of assignee in bankruptcy, see "Bankruptcy," Of risk by employé, see "Master and Servant,” $$_3-7.

Of United States district attorney, see "District and Prosecuting Attorneys."

APPORTIONMENT.

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§ 2.

ATTACHMENT.

See "Garnishment."

1. Return.

A marshal's return on attachment that, in

Of salvage compensation, see "Salvage," § 2. obedience to the annexed writ of attachment, he

APPRAISAL.

had attached the following described property, to wit, etc., held sufficient to show a valid attachment on the property described, within Alaska at date_of_levy.-Griffin v. American Gold Min. Co. (C. C. A.) 69.

Of merchandise subject to duty, see "Customs Code Civ. Proc. Or. §§ 149, 151, in force in Duties," § 4.

ARMY AND NAVY.

Habeas corpus for release of person held under court-martial, see "Habeas Corpus," § 2. Pensions, see "Pensions."

A judgment imposed by a court-martial is valid only when it affirmatively appears that the court was legally constituted, that it had jurisdiction of the person and offense charged, and that its judgment imposed was conformable to the law. Hamilton v. McClaughry (C. C.) 445. Whether a condition of war exists, within the fifty-eighth article of war relating to the trial of certain offenses committed by soldiers, is within the exclusive jurisdiction of the political department of the government.-Hamilton v. McClaughry (C. C.) 445.

The "Boxer uprising" in China in 1900 held to constitute "a time of war," within the fiftyeighth article of war, providing for the trial of certain offenses committed by soldiers in time of war by military court-martial.-Hamilton v. McClaughry (C. C.) 445.

See "Ne Exeat."

ARREST.

ASSESSMENT.

Of loss on insured, see "Insurance," § 2. Of tax, see "Taxation," § 2.

ASSIGNMENTS.

In bankruptcy, see "Bankruptcy," § 3. Of patents, see "Patents," § 6.

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ATTORNEY GENERAL.

Under Const. Ark. art. 6, § 22, the Attorney General has no powers except those given by the statutes of the state.-Railroad Tax Cases (C. C.) 233.

Under Kirby's Dig. art. 6, c. 62, § 7182, the Attorney General held without power to intervene on behalf of the state in suits against the State Board of Railroad Commissioners to restrain collection of taxes on assessments made by them.-Railroad Tax Cases (C. C.) 233.

AUCTIONS AND AUCTIONEERS Sale of property of bankrupt, see "Bankruptcy," § 5.

AUTHORITY.

Of agent, see "Principal and Agent," § 1.

BAGGAGE.

Of passenger, see "Carriers," § 1.

BAILMENT.

See "Warehousemen."

BANKRUPTCY.

See "Insolvency."
Appointment of receiver of incarcerated bank-
rupt without notice as denial of due process
of law, see "Constitutional Law," § 3.
Joinder of causes of action to recover payment
by bankrupt, see "Action," § 1.
Power of bankruptcy court to issue writ of ne
exeat, see "Ne Exeat."

Privilege of bankrupt as witness as ground for
refusal to produce books of account, see "Wit-
nesses," & 1.

State laws as rules of decision in courts of
bankruptcy, see "Courts," § 5.

visions.

1. Constitutional and statutory pro-
Bankr. Act July 1, 1898, c. 541, § 14, subsec.
"b." cl. 5, 30 Stat. 550 [U. S. Comp. St. 1901,
p. 3428], as amended by Act Cong. Feb. 5,
1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp.
St. Supp. 1903, p. 411], limiting the bankrupt's
right to discharge, held not objectionable as re-
troactive, when applied to a petition for dis-
charge filed after its passage. In re Seaholm
(C. Č. A.) 144.

§ 2. Petition, adjudication, warrant,
and custody of property.

An original bankruptcy petition held not de
prived of its status as such by a prayer of
the petitioner to intervene in an earlier pro-

ceeding. In re Haff (C. C. A.) 78.

Under Bankr. Act July 1, 1898, c. 541, $$
59d, 59f, 30 Stat. 561, 562 [U. S. Comp. St.
1901, p. 3445] and General Order 11 (89 Fed.
vii), failure of an involuntary petition, signed
by a single creditor, to allege that the number
of the bankrupt's creditors was less than 12,
held not to deprive the court of jurisdiction.-In
re Haff (C. C. A.) 78.

taken into account as an asset in determining
the question of the corporation's solvency in
bankruptcy proceedings against it.-First Nat.
Bank v. Wyoming Valley Ice Co. (D. C.) 466.

The failure of a Pennsylvania corporation to
promptly pay the tax due the state on an in-
crease of its capital stock held not to invalidate
such stock or bonds based thereon.-First Nat.
Bank v. Wyoming Valley Ice Co. (D. C.) 466.

An ice company, which sells not only ice of
its own harvesting but also large quantities pur-
chased from third parties, is engaged principally
in trading, and is subject to involuntary pro
ceedings in bankruptcy, under Bankr. Act July
1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp.
St. 1901, p. 3423].-First Nat. Bank v. Wyo-
ming Valley Ice Co. (D. C.) 466.

The fact that directors and stockholders of
an insolvent corporation, who were also cred-
itors, joined with other creditors in a petition in
bankruptcy against it, held not an evidence of
bad faith or collusion, which would avail execu-
tion creditors to defeat the adjudication.
Nat. Bank v. Wyoming Valley Ice Co. (D. C.) 466.

First

The term "disbursements," as used in Bankr.
Act July 1, 1898, c. 541, § 48a, 30 Stat. 557
[U. S. Comp. St. 1901, p. 3439] as amended
by Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 799
[U. S. Comp. St. Supp. 1903, p. 415], specifying
the compensation of trustees, held to include
property taken possession of and delivered in
specie by a receiver, for the purpose of deter-
mining his compensation. In re Cambridge
Lumber Co. (D. C.) 983.

(5), 48a, 72, 30 Stat. 545, 557 [U. S. Comp. St.

Under Bankr. Act July 1, 1898, c. 541, §§ 2

1901, p. 3439], as amended by Act Feb. 5,
1903, c. 487, 32 Stat. 797, 799, 800 [U. S.
Comp. St. Supp. 1903, pp. 409, 415, 418], a
bankrupt's receiver held only entitled for all
services to the percentages allowed trustees, and
not to an additional allowance for carrying on
the bankrupt's business.-In re Cambridge
Lumber Co. (D. C.) 983.

distribution of bankrupt's estate
-Appointment, qualification, and
tenure of trustee.

An original bankruptcy petition cannot be 3. Assignment, administration, and
amended by setting out acts of bankruptcy not
originally referred to and occurring more than
four months before the application for the
amendment.-In re Haff (C. Ĉ. A.) 78.

An adjudication of bankruptcy absolves the
bankrupt from no agreement, terminates no
contract, and discharges no liability.-Watson
v. Merrill (C. C. A.) 359.

An adjudication of bankruptcy in a case in
which there was no rent due at the time of the
filing of the petition in bankruptcy does not
constitute a breach of the covenant of the bank-
rupt to pay rents accruing thereafter.-Watson
v. Merrill (C. C. A.) 359.

An involuntary petition held sufficiently veri-
fied by petitioners' attorney, under Bankr. Act
July 1, 1898, c. 541, § 18, subd. "c," 30 Stat.
551 [U. S. Comp. St. 1901, p. 3429].-Rogers v.
De Soto Placer Min. Co. (C. C. A.) 407.

The liability of stockholders of a corporation
for stock claimed to have been issued without
payment, which claim is disputed, cannot be

Where creditors of a bankrupt assigned their
claims to a committee as a trustee, the commit-
tee was only entitled to a single vote in the
selection of a trustee, and not to a vote for each
of the claims so assigned. In re E. T. Kenney
Co. (D. C.) 451.

$ 32.

Assignment, and title, rights,
and remedies of trustee in gen-
eral.

The liens enumerated in Bankr. Act July 1,
1898, c. 541, § 67, 30 Stat. 564 [U. S. Comp. St.
1901, p. 3449], in respect to which the trus-
tee acquires a better title than the bankrupt,
held not to include a mechanic's lien filed within
the statutory period, but not within four months
prior to the institution of the bankruptcy pro-
ceedings. In re Grissler (C. C. A.) 754.

Where the trustee of a bankrupt contractor
was made a party to a materialman's action to
foreclose a mechanic's lien, he was not entitled

to have such action stayed as against other parties pending the bankruptcy proceedings.-In re Grissler (C. C. A.) 754.

Where insurance policies belonging to a bankrupt, without a cash surrender value, had an inchoate value for paid-up insurance and as collateral for a loan, the bankrupt's trustee was entitled to the benefit thereof as property which the bankrupt could have transferred. In re Coleman (C. C. A.) 818.

Bankr. Act July 1, 1898, c. 541, § 70, subd. 5, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], held not to deprive a bankrupt's trustee of the right to insurance policies having an inchoate, but no cash surrender, value. In re Coleman (C. C. A.) 818.

Where a policy on a bankrupt's life was pay-1 able to his wife in case she survived him, oth

erwise to the bankrupt's executors, administra-
tors, and assigns, and the insurer agreed to
pay a certain sum for a surrender, the trustee
was entitled to sell the bankrupt's contingent
interest therein for the benefit of his estate.
In re Coleman (C. C. A.) 818.

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Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [C. S. Comp. St. Supp. 1903, p. 416]; an unrecorded mortgage being valid under the law of the state between the parties and as against general creditors. Meyer Bros. Drug Co. v. Pipkin Drug Co. (C. C. A.) 396.

A contractor's trustee in bankruptcy stands in no better position with reference to the lien claim of a materialman than would the contractor's general assignee for the benefit of creditors. In re Grissler (C. C. A.) 754.

A pledge of warehouse receipts held valid under the facts shown, and to carry constructive possession to the pledgees, who took the same for value and in good faith, to the property represented thereby, as against the trustee in Storage Co. (C. C.) 918. bankruptcy of the pledgor.-Bush v. Export

Stat. 564 [U. S. Comp. St. 1901, p. 3449], held Bankr. Act July 1, 1898, c. 541, § 67d, 30 satisfied, as to the recording of a transfer for a present consideration, if it be recorded before bankruptcy proceedings.-In re Clifford (D. C.)

475.

ence

The title which passes to the trustee of a Bankr. Act July 1, 1898, c. 541, § 60a, 30 bankrupt, under Bankr. Act July 1, 1898, c. Stat. 562 [U. S. Comp. St. 1901, p. 3445], as 541, § 70a (4), 30 Stat. 566 [U. S. Comp. St. amended held to prohibit the giving of a prefer1901, p. 3451], to “property transferred by him to existing creditors only; section 67d in fraud of his creditors," is limited to such covering a transfer for a present consideration. property as might have been recovered by cred--In re Clifford (D. C.) 475. itors in whose right the trustee takes under the laws of the state, and as may be recovered by him under section 70e (30 Stat. 566 [U. S. Comp. St. 1901, p. 3452]), which expressly excludes property which passed into the hands of a bona fide holder for value prior to the date of the adjudication.-Bush v. Export Storage Co. (C. C.) 918.

Property which was delivered to a purchaser for the purpose of sale by him in the usual course of his business passes to his trustee in bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 70a (5), 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], notwithstanding a contract by which the seller reserved title until payment should be made, with the right to take possession at any time.-In re Rasmussen's Estate (D. C.) 704.

§ 4.

Preferences and transfers by bankrupt, and attachments and

other liens. Liens given by an insolvent within four months prior to his bankruptcy to secure loans made him at the time, which were valid under the laws of the state and were accepted by the lenders in good faith and without knowledge of the borrower's insolvency, or good cause to believe him insolvent, are protected by Bankr. Act July 1, 1898, c. 511, § 67d. 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449].-Crim v. Woodford (C. C. A.) 34.

A chattel mortgage, given by a bankrupt more than four months prior to bankruptcy, but not recorded, as authorized by Rev. St. Tex. 1895, art. 3328, until within said four months, does not constitute a preferential transfer of the property, within the meaning of Bankr. Act July 1, 1898, c. 541, § 60a, as amended by Act

Under Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], a mortgage held not to be a preference, in the absence of findings as to time of insolvency, and the mortgagee having reasonable cause to believe a preference was intended.-In re Clifford (D. C.) 475.

Evidence held to show that at the time a creditor received payment from his debtor he had reasonable cause to believe the latter to be insolvent and to intend giving him a preference, which entitled the debtor's trustee in bankruptcy to recover the amount, under Bankr. Act July 1, 1898. c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445].-Thomas v. Adelman (D. C.) 973.

Administration of estate.

§ 5.
In the absence of a rule of court on the sub-
ject, the time within which a petition for the
review of an order of a referee in bankruptcy
may be filed is discretionary with the referee,
subject to the limitation that the time must
be reasonable, in view of the general purpose
of the bankruptcy act to expedite the proceed-
ings.-Crim v. Woodford (C. C. A.) 34.

The failure of a referee to summarize the evidence on certifying a matter to the judge for review, as required by General Orders in Bankruptcy No. 27 (89 Fed. xi, 18 Sup. Ct. viii), will not invalidate the proceeding for review, where the evidence itself was certified and substantial matters were determined by the judge without any motion having been made for a summary of the evidence.-Crim V. Woodford (C. C. A.) 34.

Court of bankruptcy held authorized to ap point an auctioneer to sell property of a bankrupt in advance of any occasion therefor, under

Bankr. Act July 1, 1898, § 2, subds. 7, 15, 308
Stat. 546 [U. S. Comp. St. 1901, p. 3421]
and section 47, subd. 2, 30 Stat. 557 [U. S.
Comp. St. 1901, p. 3438]. In re Benjamin (C.
C. A.) 175.

The trustee in bankruptcy has the option to assume or renounce executory contracts of the bankrupt, as he may deem for the best interests of the estate.-Watson v. Merrill (C. C. A.) 359. To authorize an order for the sale of a bankrupt's property free of liens, the record should show affirmatively that every creditor whose lien will be discharged has received notice of the application therefor, and a general statement by the referee that such notice has been given is insufficient.-In re Saxton Furnace Co. (D. C.) 697.

Holders of the bonds of a bankrupt corporation, secured by a mortgage which gives them the right to use such bonds in the purchase of the property, if sold at judicial sale, should not be deprived of such right by an order authorizing the trustee to sell the property free from liens, so long as their title to the bonds is unimpeached. In re Saxton Furnace Co. (D. C.) 697.

A bankrupt held not entitled to object to a private sale before advertisement of his interest in his father's estate for the first time before the judge.-In re Gutterson (D. C.) 698. Bankrupt's trustee held authorized to sell all the right, title, and interest of the bankrupt in the estate of his father, where a purchaser who would give a substantial sum had been found, and it did not clearly appear that the bankrupt had no right in his father's estate which passed to his trustee. In re Gutterson (D. C.) 698.

Where a court of bankruptcy, on a petition for review of an order of a referee requiring a bankrupt to turn over certain property to his trustee or to pay its value, made an order giving the bankrupt a stated time within which to comply with the order of the referee, it was impliedly an affirmance of such order, and it is not again subject to review in subsequent proceedings. In re Hershkowitz (D. C.) 950.

An order affirming an order of a referee requiring a bankrupt to turn over property to his trustee construed, and held not to constitute an adjudication that the bankrupt should not be committed for contempt for disobedience. -In re Hershkowitz (D. Č.) 950.

§ 6.

Actions by or against trustee. A mechanic's lien, to which a bankrupt was entitled at the date of the adjudication, held not enforceable in the federal courts, unless the adverse parties consent to be sued in the United States Circuit Court, under Bankr. Act July 1, 1898, c. 541, § 23, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431].-In re Grissler (C. C. A.) 754.

A bill in equity to recover payments by bankrupt within four months of bankruptcy held not required to allege a previous demand.-Wright V. Skinner (D. C.) C94; Same v. William Skinner Mfg. Co., Id.

7.

Claims against and distribution of estate.

A claimant, having been properly permitted to prove his claim as against a bankrupt indorser as an unsecured claim, held entitled to participate in dividends without first realizing by him against the principal debtor.-Gorman and crediting the proceeds of securities held v. Wright (C. C. A.) 164.

Under Bankr. Act July 1, 1898, c. 541, § 1, subd. 23, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3419], a secured creditor is one holding security against the property of the bankrupt himself, or secured by the individual obligation of another holding such security.— Gorman v. Wright (C. C. A.) 164.

Rents to be paid at times subsequent to a filing of the petition in bankruptcy are not provable claims under Act July 1, 1898, c. 541, § 63, cls. "a," "b" 30 Stat. 562, 563 [U. S. Comp. St. 1901, p. 3447].-Watson v. Merrill (C. C. A.) 359.

Damages for breach of contract of bankrupt to pay rent at times subsequent to the filing of the petition in bankruptcy are not provable claims.-Watson v. Merrill (C. C. A.) 359.

Claimants who furnished goods on orders given by a corporation to its employés and charged against their wages held not entitled, on the bankruptcy of the corporation, to be subrogated to a statutory lien of such employés, under Acts Tenn, 1897, p. 222, c. 78, nor to their right of priority under the bankruptcy W.-J. P. Browder & Co. v. Hill (C. C. A.)

821.

Where creditors of a bankrupt assigned their claims to a committee in trust, they had an adequate remedy at law by proof of their claims through the committee against the bankrupt, and were not entitled to severally prove their equitable interests, notwithstanding the state law abolished the distinction between legal and equitable proceedings. In re E. T. Kenney Co. (D. C.) 451.

Beneficial interest of creditors of a bankrupt, who had assigned their claims to a committee as trustee, held a mere equitable, unliquidated demand, not provable in the bankruptcy proceedings, under Bankr. Act July 1, 1898, c. 541, § 63b, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]. In re E. T. Kenney Co. (D. C.) 451.

A committee of creditors holding claims against a bankrupt's estate by assignment held to hold as trustee or under a power coupled with an interest, so that the committee only was entitled to prove the claims as a single claim.-In re E. T. Kenney Co. (D. C.) 451.

A claimed indebtedness from one creditor of actions not connected with the bankruptcy proa bankrupt to another, growing out of transceedings, cannot be litigated in such proceedings or adjusted in the distribution of dividends. -In re Girard Glazed Kid Co. (D. C.) 511.

A deposit of separate township funds by a township treasurer in a private bank, under Rev. St. Ohio, §§ 1513, 1514, 6841, held an ordinary, and not a special trust, deposit.-In re Smart (D. C.) 974.

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