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RAILROADS-Cont'd.

SHIPPING-Cont'd. Abandonment or forfeiture of right of Demurrage. 21 C. C. A. 337; 46 C. way. 42 C. C. A. 576.

C. A. 4. Duty of railroad companies to block Limitation of owner's liability. 45 C. switches. 46 C. C. Ā. 98.

C. A. 387.
Liability of railroad or street car com- Statutory exemptions of shipowners

panies for ejection of trespassers. from liability. 49 C. C. A. 11.
51 C. C. A. 578.

SIGNALS.
RECEIVERS.

At railroad crossings. 29 C. C. A. 90. Citizenship as affecting the jurisdiction

of the federal courts. 10 C. C. A. 253. SLEEPING-CAR COMPANIES. Actions by and against. 26 C. C. A. Their duties and liabilities towards 49.

their passengers.

10 C. C. A. 335; Nature of certificates. 26 C. C. A. 34 C. C. A. 386. 350.

SPECIFIC PERFORMANCE. RECORDS.

Persons entitled to enforce specific Access to public records. 49 C. C. A.

performance. 47 C. C. A. 493. 210.

Of contracts requiring performance of REMOVAL OF CAUSES.

continuous acts. 49 C. C. A. 103. As restricted by state laws. 1 C. C. A. 515.

STATE COURTS. For prejudice or local influence. 8 C.

Proceedings enjoined by federal courts. C. A. 95.

16 C. C. A. 90; 27 C. C. A. 575. Separable controversy. 18 C. O. A.

Jurisdiction of state courts to enforce 86; 35 C. C. A. 155.

maritime liens under state laws. 21

C. C. A. 21. Actions against federal receivers. 26

Conclusiveness of judgments between C. C. A. 49.

federal and state courts, 21 C. C REPEAL OF STATUTES.

A. 478; 49 C. C. A. 468. Repeal of statutes by implication. 38 Conflict of jurisdiction with federal C. C. A. 136.

courts. 22 C. C. A. 356. REVIEW.

Restraining proceedings in federal

courts. 15 C. C. A. 591. Necessity of leave to file bill of re

view after decision on appeal. 4 C. STATES. C. A. 72.

Federal jurisdiction in suit against In bankruptcy cases. 43 C. C. A. 9.

state. 13 C. C. A. 165. RISKS.

Estoppel against. 16 C. C. A. 353. Assumption of risk incident to employment. 38 C. C. A. 314.

STATUTES.

Construction of statutes. 11 C. C. A. SALE.

71. Of patent. 25 C. C. A. 280.

Constitutional and statutory limitations SALVAGE.

of municipal indebtedness. 36 C. C. Awards in federal courts. 30 C. C. A.

A. 6. 280.

Statutory exemptions of building and

loan associations from operation of SEPARABLE CONTROVERSIES.

usury laws.

36 C. C. A. 343. • As ground for removal of cause. 18 C. · Repeal of statutes by implication. 38 C. A. 86; 35 C. C. A. 155.

C. C. A. 136.

Power of legislature to pass curative SEPARATION AGREEMENTS. 38 C.

statutes. 39 C. C. A. 180. C. A. 608.

Amendment of amended, repealed, or

invalid statutes. 44 C. C. A. 590. SHAREHOLDERS. In national banks. 15 C. C. A. 130;

STOCKHOLDERS. 46 C. C. A. 503.

Liability to creditors of corporation. shipping.

23 C. C. A. 315; 33 C. C. A. 23. Quick dispatch. 14 C. C. A. 657; 21 STREET RAILROADS. C. C. A. 312.

Care required of motormen. 40 C. C. Implied warranty of seaworthiness. 15 A. 361.

C. C. A. 389. Damages to ships and cargoes by ver- SUBROGATION. min. 18 C. C. A. 231; 19 C. C. A. To rights of mortgagee.

42 C. C. A 473.

301. Admiralty jurisdiction over contracts.

18. C. C. A. 347; 27 C. C. A. 330. SUICIDE. Loss by perils of the sea. 19 C. C. A. As a defense to a suit for life insur465.

16.C.C, A, 623; 28. C. C. A. General average. 20 C. C. A. 357,

281.

or

13.

SUNDAY.

TRADE-MARKS AND TRADEAs dies non juridicus. 12 C. C. A. NAMES. 462,

Contracts relating to use. 14 0. C. A.

101. SUPREME COURT.

Assignment of right to rise a person's Certiorari to circuit court of appeals.

name. 17 C. C. A. 579. 1 C. C. A. 5.

Right to use one's own naine. 17 0. C. Jurisdiction. 1 C. C. A. 9, 11.

A. 579; 27 C. C. A. 357. Review of jurisdiction of circuit

Use of corporate and firm names. 17 courts. 48 C. C. A. 351.

C. C. A. 579; 27 C. C. A. 357. TARIFF LAWS.

Use of geographical names. 17 C. C. Interpretation of commercial and trade

A. 657; 35 C. C. A. 212. terms. 18 C. C. A. 515.

Unfair competition. 20 C. C. A. 163;

30 C. C. A. 376. TAXATION.

Laches as a defense in suits for inOf railroad land grants. 4 C. C. A. fringement. 22 C. C. A. 211; 36 C. 196.

C. A. 613. Of equitable title to public lands. 4 C.

Misleading or false labels. 29 C. C. C. A, 196.

A. 250. Lands of the United States not subject

Abandonment. 33 C. C. A. 294. to state taxation. 4 C. C. A. 196.

Arbitrary, descriptive, fictitious Due process of law. 8 C. C. A. 398.

character of trade-marks and tradeNotice of equalization. 8 C. C. A.

names. 50 C. C. A. 323. 400.

TRESPASSER. · Forfeiture for nonpayment. 8 0. C. A.

Rights of trespasser on train. 31 C. 401.

C. A. 76. Regulation and taxation of interstate Liability of railroads or street car

commerce by state. 8 C. C. A. 492; companies for ejection of trespassers. 24 C. C. A. 21.

51 C. C. A. 578. Limitations of taxing power from mu

tual independence of federal and TRIAL. state governments. 23 C. C. A. 515. Right to jury in federal court. 5 C. C. Of foreign corporations. 24 C. C. A. A. 603; 26 C. C. A. 528.

Instructing jury and receiving verdict Tax deed as color of title. 24 C. C. A. on Sunday. 12 C. C. A. 462. 402.

Trial by jury in criminal prosecutions. Of intangible property of nonresidents. 39 C. C. A. 275. 31 C. C. A. 467.

TRUSTEES. TELEGRAPHS AND TELEPHONES. Citizenship as affecting the jurisdiction Measure of damages in actions against. of the federal courts. 10 C. C. A. 11 C. C. A. 556.

252; 27 C. C. A. 300. Damages for mental suffering from de

lay in delivering telegram. 11 C. C. TRUSTS. A. 571; 15 C. C. A. 250; 28 C. C. Assets of corporation when trust fund A. 62.

for creditors. 23 C. C. A. 315. Delay in transmission of message. 14 | UNITED STATES. C. C. A. 177.

Estoppe! against. 16 C. C. A. 353. Rights of telegraph and telephone com

Assignment of claims and government panies to use of streets. 44 C. C.

contracts. 22 C. C. A. 650. A. 155.

USURY. THREATENING POSTAL CARDS.

Statutory exemptions of building and Nonmailable matter. 30 C. C. A. 91.

loan associations from operation of TITLE INSURANCE. 19 C. C. A. 278.

usury laws.

36 C. C. A. 343.

What law governs usury by building TORTS.

and loan associations. 51 C. C. A. Liabilities of carriers for negligence

319, and torts of servants. 10 C. C. A. 466; 27 C. C. A. 651.

VENDOR AND PURCHASER. Of wife-Liability of husband. 12 C. Marketable title. 40 C. C. A. 592. C. A. 196.

WAIVER. Of public officers. 14 C. C. A. 531.

Of prepayment of insurance premiums. As affecting demurrage. 21 C. C. A.

13 C. C. A. 292. 315. Maritime liens for torts. 34 C. C. A.

Of maritime liens. 17 C. C. A. 102. :55.

Of conditions of insurance. 27 C. C.

A. 46. Liability of corporation for torts. 39

Of defense by acceptance of premiums. C.C. A. 9.

33 C. C. A. 369. Liability of principal for torts of agent. 43 C. C. A. 316.

WAREHOUSEMEN. Liabilities of charitable institutions Liability of carriers as. 20 C. C. A. for negligence. 47 C. C. A. 134.

529.

WATERS AND WATER COURSES.
Pollution of water courses. 37 C. 0.

A. 538.
Abandonment of water rights. 45 C.

C. A. 190.

WIFE.
Death of husband by wrongful act-.

Damages. 1 C. C. A. 33.
Liability of husband for torts of. 12 C.

C. A. 196.

WITNESS.
Competency in federal courts-Follow-

ing state practice. 5 C. C. A. 594;

21 C. C. A. 278. Method of summoning. 5 C. C. A. 594. Comments of counsel in argument on

failure to produce. 13 C. C. A. 589.
WRITS.
Form and service of process. 5 C. O.

A. 594.
Issue and service on Sunday. 12 C. C.

A. 462.

NOTES IN THIS VOLUME.

Page

Restraining Criminal Proceedings.

133 Liability of Sureties for Interest, Costs, and Attorney's Fees.... 248 What Law Governs Usury by Building and Loan Associations.. 319 Liability for Injuries Sustained by Assured while Engaged in Occupations not Covered by Policy.....

434 Liability of Employer for Injuries to Volunteers..

509 Liability of Railroads or Street Car Companies for Ejection of Trespassers

578

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CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS.

(113 Fed. 483.)

CARLING v. SEYMOUR LUMBER CO. et al.
(Circuit Court of Appeals, Fifth Circuit. February 11, 1902.)

No. 1,110.
1. GEORGIA INSOLVENCY ACT-SUSPENSION BY BANKRUPTCY ACT.

The Georgia insolvency laws (Code Ga. 1893, c. 4, 88 2716–2722), provid. ing for the distribution of the assets of insolvents, and authorizing the chancellor to recommend to the creditors of the defendant that they release him from further liability, being in effect a state bankruptcy act, its operation was suspended by the passage of the bankruptcy act of

1898, and proceedings under the former act are void. 1. 2. SAME-MORTGAGE-FORECLOSURE-PETITION-SUFFICIENCY-STATE RECEIVER

-TRUSTEE IN BANKRUPTCY--RIGHT TO PossesSION OF PROPERTY.

A petition in equity filed in the Georgia superior court, which, under Code Ga. $ 2770. has jurisdiction of mortgage foreclosure suits, alleged that the plaintiff was a mortgage creditor of defendant, and conta ined all allegations necessary to authorize a foreclosure, alleged that defendant was insolvent, and asked the foreclosure of the mortgage, and the appointment of a receiver for the debtor's property; but other allegations and prayers for relief showed that the plaintiff had the insol. rency law in view in framing his petition. Held, that the proceedings would be sustained as a mortgage foreclosure suit within the jurisdiction of the superior court, even though the bill was imperfect, and required amendment; and that the proceedings were not void as taken

under the Georgia insolvency law (Code Ga. 1895, C. 4, 88 2716–2722), 1 See note 2 at end of case.

51 C.C.A.-).

which was suspended by the passage of the bankruptcy act; and therefore that the possession of the mortgaged property by a receiver appointed by the state court would not be disturbed in bankruptcy pro

ceedings against the debtor. 3. SAME.

A trustee in bankruptcy, of a bankrupt whose property has been seized under a mortgage and is in possession of a receiver appointed in the mortgage foreclosure suit by a state court of competent jurisdiction, is entitled to the possession of the property not covered by the mortgage, and to the excess «f the proceeds of a sale of the mortg: ged

property over the mortgage debt and costs of foreclosure. 4. SAME-Comity.

Where a trustee in bankruptcy is entitled to assets of the bankrupt which are in possession of a receiver appointed by a state court of competent jurisdiction, comity requires, as a general rule, that the trustee should first make application to the state court instead of the bauk. ruptcy court for an order for the possession of such assets.

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia.

For decision of district court reversed by this opinion, see 112

Fed. 323.

This is a petition in equity to this court, under the jurisdiction conferred on it by clause "b" of section 24 of the bankruptcy act of July 1, 1898 (30 Stat. 553), to superintend and revise in matter of law certain proceedings in bankruptcy of the district court of the United States of the Southern district of Gecrgia. A full statement of the facts will be necessary to make clear the questions that are raised by the petition.

Proceedings in the State Court. On the 1st day of October, 1900, the Exchange Bank of Macon, Ga., a corporation, filed in the superior court of Bibb county, Ga., a petition in equity against the Macon Sash, Door & Lumber Company, also a Georgia corporation, doing business in Bibb county. It is alleged in the petition that the defendant corporation was indebted to the petitioner in the sum of $13,350, evidenced by 18 promissory notes, each indorsed by W. J. Beeland and T. C. Hendricks. These notes were secured by a mortgage executed by the defendant company to the petitioner. This mortgage is on personal property and real estate described in the petition. It is alleged that the object of the mortgage was to create in favor of the petitioner a lien, not only on the entire contents of the defendant's storehouse and the entire plant and materials situated upon the described real estate, but also upon all additions that may be made thereto, until the said notes have been fully paid. The defendant, at the petitioner's request, on July 21, 1897, made to petitioner a second mortgage for the purpose of securing the same debt, shown by renewal notes. The second mortgage embraced other and additional property to that described in the first mortgage. Copies of the two mortgages were made exhibits to the petition. It is alleged that the defendant and the indorsers on the defendant's notes are insolvent, and that the property described in the mortgages is deteriorating in value, and that the defendant owes cther debts, evidenced by notes and open accounts, amounting to $11,500.10, and that judgments amounting in the aggregate to about $700 have been rendered against the defendant, which the defendant is unable to pay. It is also alleged that petitioner has demanded of the defendant payment of its indebtedness which had matured, and that defendant had failed to pay the same; that petitioner has no adequate or complete remedy against the defendant except in a court of equity, and that the interposition of a court of equity is demanded, both in the interest of all the defendant's creditors as well as of the defendant itself; that, in order to avoid a multiplicity of suits at law and the needless sacrifice of defendant's property, it is necessary that a court of equity, through its receiver, should administer and wind up the affairs of the said company,

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