part of her estate between the sons, share and share alike. Prior to her
death a large part of the property was divided between the sons with
her consent, each receiving more than was left them by the first will of
their father. Held that, if the will of the father created a precatory
trust, in the absence of any evidence as to what bequests were contem-
plated except the prior will, such trust had been fulfilled by the mother
prior to her death, and that on her death after the bankruptcy of one
of the sons the property received by him under her will came from her
estate and was not a part of the assets of his estate in bankruptcy.
...83 C. C. A. 565

-In re Harper, 155 Fed. 105..

§ 4. Appeal and revision of proceedings.

A finding by a referee, confirmed by the District Court, that an alleged
bankrupt was not chiefly engaged in farming, but was amenable to the
bankruptcy law, will not be disturbed on appeal where the evidence left
the question uncertain on the facts.

-Stephens v. Merchants' Nat. Bank of Aurora, Ill., 154 Fed. 341.....
83 C. C. A. 119

An order of a court of bankruptcy denying priority to a claim which
has been allowed against an estate is one made in a controversy arising in
a bankruptcy proceeding, and not one made in a bankruptcy proceeding,
and is reviewable by the Circuit Court of Appeals on appeal under Bankr.
Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432].
-In re Doran, 154 Fed. 467; Moorman v. Beard, Id....83 C. C. A. 265-
Bankr. Act July 1, 1898, § 24b, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901,
p. 3432], giving Circuit Courts of Appeals authority to superintend and re-
vise in matters of law, was intended to provide a summary method of re-
vising the orders of courts of bankruptcy on questions of law, and does not
contemplate any review of facts.

-In re Graessler & Reichwald, 154 Fed. 478; Consani v. Brandon,
...83 C. C. A. 304

Id........

The refusal of a court of bankruptcy to permit the amendment of an
involuntary bankruptcy petition, for the purpose of inserting additional
alleged acts of bankruptcy, would not be interfered with on appeal, un-
less abuse of discretion was shown.

-Pittsburgh Laundry Supply Co. v. Imperial Laundry Co., 154
Fed. 662......
....83 C. C. A. 486

This appeal relates to the title of certain assets claimed by the trustees
in bankruptcy of Frederick M. Tucker & Co. to belong to the bankrupt
estate, but which the appellant claims belongs to a testamentary trust.
The proceedings were commenced by the trustees in bankruptcy by a pe-
tition in the District Court. There the appellant resisted the petition,
among other reasons, because, as he claimed, the District Court had no
jurisdiction over the controversy. The District Court decided against
him, and he thereupon appealed to us. In this court the parties mutually
agreed to waive all questions of jurisdiction. Held, that the waiver was
sufficiently retroactive in its effect to enable us to take jurisdiction of
the merits of the case on appeal.

-Hatch v. Curtin, 154 Fed. 791; In re Tucker, Id.; Ex parte
Curtin, Id.....
....83 C. C. A. 495

Under Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 [U. S. Comp.
St. 1901, p. 552], providing that no appeal or writ of error by which any
order, judgment, or decree may be reviewed in the Circuit Court of Ap-
peals shall be sued out except within six months after the entry of the
order, etc., sought to be reviewed, a petition to revise an order entered
in bankruptcy proceedings, denying the bankrupt's motion to quash the
service of the subpoena, not filed within six months, is ineffectual.

-In re Thomlinson Co., 154 Fed. 834....

..83 C. C. A. 550

§ 1. National banks.

BANKS AND BANKING.

One who was notified that shares of stock in a national bank had been
transferred into his name, although he had in fact no interest therein,
and who indorsed the certificates in blank, but took no steps to have the
stock transferred to the name of the true owner, cannot avoid liability
for an assessment thereon made by the comptroller to meet the debts of
the bank after its insolvency.

-Kenyon v. Fowler, 155 Fed. 107.....

.83 C. C. A. 567

Validity of note given in gambling transaction, see "Gaming," § 1.
§ 1. Presentment, demand, notice, and protest.

A certificate of deposit dated January 25, 1904, due January 25, 1905,
was duly presented for payment. Payment was demanded and refused on
January 25, 1905. Thereupon a notice of the presentment, demand, and
dishonor was sent to, and received by, the indorser, which was dated
January 25, 1904, when it should have been dated January 25, 1905, which
stated that the demand and dishonor were on the day of the date of the
notice, that the certificate was dated January 25, 1905, when it was dated
January 25, 1904, and it omitted to recite this clause which was in the
certificate, "No interest after six months." Held, the notice sufficiently
identified the certificate and notified the indorser of due presentment, de-
mand, and dishonor, so that it is obvious that he could not have been mis-
led or prejudiced by the mistakes in it.

-Derham v. Donohue, 155 Fed. 385...

.83 C. C. A. 657

A notice of protest is sufficient which by express terms or by necessary
implication informs the indorser of the identity of the paper, of due de-
mand, of its protest, and of its dishonor. Mistakes and omissions in it

which obviously could not have misled or prejudiced the indorser are
not fatal.

-Derham v. Donohue, 155 Fed. 385..

.83 C. C. A. 657

BOARDS.

Of corporate directors, see "Corporations," § 4.

Of general appraisers, see "Customs Duties," §§ 3, 4.

BONDS.

Decision on appeal as law of the case on question of validity of, see "Appeal
and Error," § 8.

Importers' bonds, see "Customs Duties," § 3.

BREACH.

Of condition, see "Insurance," §§ 3, 4.
Of contract, see "Contracts," §§ 3, 4.
Of warranty, see "Sales," § 2.

BRIDGES.

Approval of engineers of performance of contract for construction of, see
"Contracts," § 4.

BRIEFS.

On appeal or writ of error, see "Appeal and Error," § 7.

See "Principal and Agent."

BROKERS.

Joint adventure in purchase and sale of land, see "Joint Adventures."

BURDEN OF PROOF.

In criminal prosecutions, see "Criminal Law,” § 3.

CANCELLATION OF INSTRUMENTS.

Rescission of contracts in general, see "Contracts," § 3.

See "Shipping."

CARGO.

CARRIERS.

Carriage of goods by vessels, see "Shipping," § 4.

§ 1. Carriage of passengers.

A sleeping car company which sells accommodations in its cars between
points on a railroad to passengers of the railroad company, the cars being
hauled by the railroad company in its trains under a contract between the

two companies, is not liable to a passenger for breach of contract because
the car in which such passenger is riding is diverted by the railroad com-
pany on account of a wreck and does not reach the passenger's point of
destination, in consequence of which he is compelled to change into an-
other car.

-Louisville & N. R. Co. v. Fisher, 155 Fed. 68; Scott v. Louisville
& N. R. Co., Id......
..83 C. C. A. 584

A railroad company cannot be held answerable to a passenger in dama-
ges because of matters which are ordinary incidents of travel, such as ex-
posure to drafts from windows opened by, or at request of, other passen-
gers.

-Louisville & N. R. Co. v. Fisher, 155 Fed. 68; Scott v. Louisville
& N. R. Co., Id.....
.83 C. C. A. 584
Plaintiffs purchased first-class tickets over defendant's railroad for pas-
sage between two points, and also tickets for a berth in a sleeping car be-
tween such points; such car being operated by another company and
hauled under contract by defendant. At 3 o'clock in the morning, when
some 45 miles from plaintiffs' point of destination, owing to a wreck be-
yond such point, the sleeping car was diverted and sent around over an-
other road to its point of destination, and plaintiffs were required to trans-
fer into a day coach for the remainder of their journey, which was made
in about two hours. The car so provided was comparatively new and in
good condition, and the only material complaint in regard to it was that
it was filled with passengers, and the windows were kept open; the
month being August, although the night was somewhat chilly. Held,
that such facts did not establish a breach of the contract of carriage
which rendered defendant liable in damages.

-Louisville & N. R. Co. v. Fisher, 155 Fed. 68; Scott v. Louisville
& N. R. Co., Id.....
.....83 C. C. A. 584

A passenger on a railroad train alighted in the night at the town where
he resided. The station, the town, and his home were all on the west
side of the track, and the doors of the cars, which were vestibuled, were
opened on that side. After his train had departed, he was killed by an-
other train on a track to the eastward. Held, that he had ceased to be
a passenger prior to his death, and the company at that time owed no
duty to him as such.

-Payne v. Illinois Cent. R. Co., 155 Fed. 73..........83 C. C. A. 589
Plaintiff's intestate was riding on defendant's railroad on a through
ticket, which entitled him to transportation to a juuction with the next
connecting road. The train on which he took passage did not stop at the
junction, but stopped at a station four miles north, to which the train
of the connecting road also ran over defendant's track to make connection
with it. Deceased was advised of such fact, and told to get off at such
station, which he did, but for some unexplained reason got back on the
same train and started southward. He was soon discovered by the con-
ductor, who put him off a half mile south of the station and told him that
if he would hasten back he could still catch his connecting train, which
would soon follow. The place at which he was put off was between two
tunnels, and he walked back through the north one, and while talking with
a man whom he met his train left the station, which was in sight and
only a short distance away. He then turned southward again, walked
through the first tunnel, and entered the second, which was 1,600 feet
long, curving, very dark and narrow, and while in such tunnel was struck
by a train and so injured that he soon died. There was no material evi-
dence to show how he came to be struck. Held that, conceding that de-
ceased was put off at a dangerous place between the two tunnels, he had
passed such danger and reached a place of safety, and the proximate
cause of his death was, not such negligence of the conductor, but his own
voluntary act in turning back, for which defendant could not be held lia-
ble.
-Gwyn v. Cincinnati, N. O. & T. P. R. Co., 155 Fed. 88.

83 C. C. A. 648

Effect of proceedings in bankruptcy, see "Bankruptcy," § 3.

1. Requisites and validity.

Intervener contracted in writing to deliver certain goods to the bank-
rupts prior to their bankruptcy, to be sold by them in the usual course
of their business, but that the title and right of possession of all such
goods and all the proceeds of sales thereof, whether in cash or in book
accounts, should be vested and remain in intervener until the purchase
price of the goods had been fully paid to it; that, except for the right to
resell the goods in the ordinary course of business, the bankrupts should
not remove any from the city in which they were doing business; and
that they should keep the goods insured for intervener's benefit. Held,
that the bankrupts, not only held such goods for intervener, but were
bound to account for and pay over the proceeds of goods sold as collected,
and that the contract was therefore a conditional sale, and not a chattel
mortgage.

-In re E. M. Newton & Co., 153 Fed. 841; Swofford Bros. Dry Goods
Co. v. Bryant, Id.
...83 C. C. A. 23

See "Aliens"; "Indians."

Citizenship ground of jurisdiction of United States courts, see "Courts," § 3;

"Removal of Causes," § 1.