Volume 188 — Federal Reporter

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by W. J. Townsend against the Beatrice Cemetery Association. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action at law by Bertha M. Evans, administratrix, against the Baltimore & Ohio; Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Suit in equity by Bertha M. Evans against the Baltimore & Ohio Railroad Company. Decree for complainant, and defendant appeals.

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>Suit in equity by the Hobe-Pelers Rand Company against J. R. Farr, Victoria Farr, Daniel Bjorldund, Emma Bjorklund, F. A. Westlin, II. A. Lunt, Fred Bolander, Fred Anderson, Neis Dahl, Herman Dahl, and Mrs. Fred Bolander. Decree for complainant (170 Fed. 644), and defendants appeal.</p> <p>The decree of the Circuit Court from which this appeal is brought, grants relief in equity in favor of Hohe-Peters Dand Company, complainant, and against the appellants, defendants therein, pursuant to a bill filed, to establish title in the complainant to numerous tracts of land in Wisconsin, and “cancel and annul of record” various tax deeds, together with a judgment thereunder rendered in a state court, held by the appellants, as claimants of title to the lands in controversy. The appellee-complainant is a Minnesota corporation, and its alleged interest in the lands is that of mortgagee, derived through various assignments of such interest in succession (including an unperfeeted statutory foreclosure), without possession of any portion of such lands; and the appellants are citizens of Wisconsin, in possession (respectively) of certain of the lands and having made improvements thereon, while the remaining lands in suit are “vacant and unoccupied.” Other facts which are deemed reviewable are stated in the opinion.</p>

Suit in equity by the Capewell Horse Nail Company against Edward M. Green and another. Decree for complainant (182 Fed. 404), and defendants appeal. This cause comes here upon appeal from an interlocutory decree for injunction and accounting, entered .against the defendants in the Northern District of New York. The suit was for infringement of trade-mark.

<p>Appeal from the District Court of the United States for the Western District of Kentucky.</p> <p>Suit in admiralty by the J. T. Morgan Lumber Company against the West Kentucky Coal Company. Decree for libelant for half damages, and respondent appeals.</p>

Laeombe, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Southern District of New York. Bill by Clifford J. Ludvigh, trustee, against the American Woolen Company of New York and the Niagara Woolen Company. Decree (176 Fed: 145) for complainant and defendants appeal.

Action at law by Clara Bigelow against the American Manufacturing Company. _ Judgment for plaintiff, and defendant brings error. This cause comes here upon writ, of error to review a judgment of the Circuit Court, Eastern District of New York, entered upon a verdict in favor of defendant in error, who was plaintiff below.

<p>Appeal from the District Court of the United States for the District of Minnesota.</p> <p>In the matter of Josiah L. Robinson, bankrupt. From an order allowing a claim in favor of the Fidelity Trust Company, the bankrupt appeals.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action at law by the International Banking Corporation against Henry C. Payne. Judgment for defendant, and plaintiff brings error.</p>

Ward, Circuit Judge, dissenting. In Error to the District Court of the United States for the Southern District of New York. Action at law by the United States against the Atlantic 'Transport Company. Judgment for defendant, and the United States brings error.

Proceeding in admiralty by the United States against the ferryboat Nassau; the City of New York, claimant. Decree for respondent (182 Fed. 696), and the United States appeals. This cause comes here upon appeal from a decree dismissing a libel filed by the United States for a violation of section 4472, Rev. Stat. U. S. (U. S. Comp.

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty for collision by John N. Robins, owner of the yacht Seminole, against the schooner Merrill C. Hart, Richard Dunn and others, claimants, and the steam tug A. C. Cheney, the Cornell Steamboat Company, claimant, and cross-libels by claimants of the Hart and Cheney against the Seminole. Decree against all three vessels, and cross-libelants appeal.

<p>Shipping (§ 51*). — Charter—Action for Breach.</p> <p>Libelant chartered respondent’s vessel to carry a number of cargoes of timber, to be loaded from the water alongside. On reporting for the first load the quantity on hand was insufficient to make a full cargo, owing to the closeness of inspection by a purchaser from libelant. The master finished loading what there was on Sunday morning. Monday was a holiday, and libelant had a large quantity of the timber near by which could have been delivered at the vessel by Tuesday morning, which was the next loading day under the charter, but the master refused to wait and sailed with the amount then on board, and respondent refused to return or further carry out the charter. Held, that such action was not justified, and was a breach of the charter, for which libelant was entitled .to recover damages.</p> <p>[Ed. Note.- — For other cases, see Shipping, Cent. Dig. §§ 203-210; Dec. Dig. § 51.*]</p>

<p>1, Master and Servant (§ 286*) — Action for Injury to 'Servant — Questions for Jury.</p> <p>A rule of defendant railroad company required conductors to report at once to the superintendent any injury to or defects in engine or ears, but such rule was not observed; the report being made instead to the chief train dispatcher, who gave orders in place of the superintendent. A crosshead guide on one side of an engine was lost en route. The conductor reported the fact to the dispatcher, and asked for a pusher, which was sent, and the train proceeded with the disabled engine. That side could have been disconnected, but was not, and the driving rod became disconnected, and struck the cab, in which plaintiff, who was a brakeman, was riding, and ho was injured. RcM that, the defect having been reported in accordance with the recognized practice, the responsibility of proceeding with the disabled engine, without disconnecting it, was that of defendant, those in charge, whether the dispatcher or the conductor and engineer, being its representatives as master, and that whether reasonable care vas exercised in so doing was a question for the jury.</p> <p>TEd. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§ 289*) — Action for Injury to Servant-Questions for Jury-Contributory Negligence.</p> <p>In an action by a brakeman to recover for an injury received while he was riding in the cab of the engine, whether lie was there in violation of a rule which required him to be on top of the cars at the time in the course of his duty, and, if so, whether his being there was contributory negligence, were questions for the jury.</p> <p>]Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dee. Dig. § 289.*]</p>

<p>1.' Appeal and Error (§ 3178*) — Reversal—Form or Mandate.</p> <p>Where a judgment entered non obstante veredicto under the Pennsylvania practice is reversal by the appellate court, that court has power, on an alternative request by the defendant in error, to grant a new trial, whereby resort to a second writ of error may be avoided.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 4604-4620; Doc. Dig. § 1178.*]</p> <p>2. Appeal and Error (§ 105.°,*) — Ricvtew—Harmless Error.</p> <p>The admission of testimony, which was clearly made Immaterial by the charge of the court, was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184: Dec. Dig. § 1053.*]</p> <p>3. Appeal and Error (§ 1058*) — Review—Harmless Error.</p> <p>The overruling of an objection to testimony, if error, was without prejudice, where the witness had twice before testified to the same thing without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195-4206: Dec. Dig. § 1058.*]</p>

Action at law by Eva Eehtohner, administratrix, against the New York, New Haven & Hartford Railroad Company. Judgment for defendant, and plaintiff brings error. The action was brought to recover damages for the death of plaintiff’s intestate who was killed by a locomotive operated by defendant.. The occurrence took place in front of or near West Farms station. At the close of the plaintiffs case verdict was directed by the court in favor of defendant.

<p>HUSBAND AND WIFE (§ 335*)-ACTION FOR ALIENATION OS' AFFECTIONS — PRESUMPTIONS and Burden of Proof — Action Against Parent.</p> <p>In an action by a. wife against her husband's mother for alienation of his affections, where evidence was introduced by both parties on all substantial issues, an instruction to the jury that defendant had the right to advise her son in good faith and from proper parental regard, and that, if they found that she did interfere to induce him to separate from plaintiff, a clear case of want of justification on her part must be shown to warrant a recovery, was not erroneous, either as a statement of the law or as placing the burden of proof upon the issue on plaintiff; the presumption being in such case that defendant acted in good faith.</p> <p>LEd. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1120; Dec. Dig. § 335.*]</p>

Suit in equity by Hyman Spiegel and Conrad Prehs, copartners, against Louis Zuckerman and others. Decree for defendants, and complainants appeal. This cause comes here upon appeal from a decree dismissing a bill for infringement of trade-mark. The trade-mark is alleged to be the word “Princess,” used in connection with the sale of women’s shirt waists. The opinion of the Circuit Court will be found in 175 Fed. 978.

<p>Bankruptcy (§ 140*) — Claims against Trustee — Use of Property Held under Conditional Sale Contracts.</p> <p>Where machines in possession of a bankrupt under contracts of conditional sale, which required monthly payments from the bankrupt, called rental in the contracts, were reclaimed by the vendors after the bankruptcy, they cannot recover such contract rentals for the time the machines remained in possession of the trustee during the determination of their rights; but, if the trustee used the machines without their consent, the extent of their right is, on proof, to recover the reasonable value of such use.</p> <p>[Ed. Note — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

. Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty by James W. Dalton against the steamship J. M. Guffey; the J. M. Guffey Petroleum Company, claimant. Decree for libelant, and claimant appeals.

Ill Error to the Circuit Court of the United States for the Eastern District of Arkansas. Proceedings by the. Board of Directors of St. Erancis Levee District against George T. Webb. Erom a judgment awarding damages to defendant, plaintiff brings error.

Suit in equity by the Handy Things Company, Eugene S. Regnier, and Eouisa M. Richards against the Tucker & Dorsey Manufacturing Company. Decree for defendant, and complainants appeal. The decree from which this appeal is brought dismisses (for want of equity) the appellants’ bill, charging infringement of two patents, Nos. 678,514 and 744,107, issued for alleged inventions of the appellant E. S. Kegnier.

Suit in equity by the Rajah Auto Supply Company against the Emil Grossman Company. Decree for complainant, holding valid and infringed claims 3 and 6 of letters patent No. 825,856, granted to David 15. Mills for an improvement in spark-plugs, and defendant appeals.

Suit in equity by the General Electric Company against the Winona Interurban Railway Company. Decree for defendant, and complainant appeals. The appeal is from a decree dismissing the bill for want of equity. The bill was to restrain infringement of letters patent No. 594,144, issued November 23, 1897, to Charles P. Steinmetz, assignor to appellant, for an Improvement in Regulation of Alternating-Current Systems. The claims of the patent sued upon are as follows: 1.

<p>Patents (§ 328*) — Validity and Infringement — Typewriting Machine.</p> <p>Tlie Wagner patent, No. 559,345, for an improvement in typewriting machines, claim 2, the essential feature of which is a lifting spring to assist the shift-key in lifting the platen to receive impressions from upper .case type, is void for lack of invention, in view of the prior art. Claim 3, conceding its validity because of an additional element, held not infringed.</p>

In Equity. Suit by the Commercial Acetylene Company and the Prest-O-L/ite Company against the Searchlight Gas Company and others. On motion for preliminary injunction.

<p>In Equity. Suit by the Commercial Acetylene Company and the Prest-O-Rite Company against the Acme Acetylene Appliance Company and others. On motion for preliminary injunction on patent No. 664,383.</p> <p>On Motion for Preliminary Injunction on Patent No. 664,383.</p>

<p>1. Courts (§ 91*) — Previous Decisions — Sherman Anti-Trust Act — Validity of Criminal Provisions;</p> <p>Sherman Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), is primarily a criminal statute, prohibiting certain acts as unlawful restraints and monopolies of interstate trade and commerce and prescribing the punishment therefor, the jurisdiction conferred on Circuit Courts as courts of equity by section 4 to “prevent and restrain violations of this act” being made dependent on the preceding criminal sections and confined to preventing the carrying out of that which is declared in the prior sections to be criminal. Therefore every decision of the courts sustaining an injunction granted under such section has necessarily determined that the preceding sections are valid, and that the things enjoined were crimes, and in view of the numerous decisions of the Supreme Court upholding such injunctions the validity of the criminal sections is no longer open to question in the inferior courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 325; Dec. Dig. § 91.*]</p> <p>2. Indictment and Information (§ 125*) — Duplicity—Combinations in Restraint of Interstate Commerce.</p> <p>An indictment charging a combination in restraint of interstate commerce in violation of Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp, St. 1901, p. 3200), is not bad for duplicity because it charges and enumerates different means adopted or different things done to accomplish the object of the combination.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 350-371; Dec. Dig. § 125.*]</p> <p>3. Monopolies (§ 31*) — Combination in Restraint of Interstate Commerce —Criminal prosecutions — Indictment.</p> <p>An indictment for a combination in restraint of interstate commerce in violation of Anti-Trust Act July 2, 1890, e. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), between defendants as representatives of three different packing concerns, which charges that each concern was represented by certain individuals, each one of whom was authorized to act for the others of his “group” and that the word “group” as used therein is intended to apply to any or all of the members of the particular group, is sufficiently specific where it charges that acts were done by a particular group without averring that each particular member of such group individually took part therein.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dee. Dig. § 31.*]</p> <p>4. Monopolies (§ 31*) — Combination in Restraint of Interstate Commerce.</p> <p>An indictment for a combination in restraint of interstate commerce in violation of Anti-Trust Act July 2, 1890, c. 047, § 1, 20 Stat. 209 (U. S. Comp. St. 1901, p. 3200), which charges that defendants were officers of certain corporations which they managed and controlled, directing the corporate action, and that the groups of defendants representing the several corporations combined together to do the illegal acts, sufficiently charges defendants as individuals.</p> <p>!Kd. Jiote. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>5. Monopolies (§ 31*) — Violation of Anti-Trust Act — Indictment.</p> <p>An indictment which charges ads constituting a contract, combination, or conspiracy in restraint of interstate commerce in violation of Anti- ' Trust Act July 2, 1890, c. 617, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200). is good whether such acts are alleged to constitute a contract, combination or conspiracy.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31*]</p> <p>6. Indictment and Information (§ 59*) — Requisites and Sufficiency of Accusation.</p> <p>An indictment is sufficient when it contains a substantial accusation of crime and its statements furnish the accused with such a description of the charge against Mm as will enable him to make his defense and avail himself of his conviction or acquittal for protection against further prosecution for the same offense, and when from it the court cau determine that the facts charged are sufficient in law to support a conviction.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. • § 180; Dec. Dig. § 69.*]</p> <p>7. Monopolies (§ 31*) — Anti-Trust Act — Offenses.</p> <p>An indictment alleging facts which show that defendants control throe extensive packing concerns doing an interstate, business and controlling the larger part of the business in the states in which they operate; that they have combined together in a plan to eliminate competition between such concerns by an agreement not to bid against each other for live stock, but to bid exactly the same amounts for like grades, and by fixing a uniform selling price to be charged by each, and apportioning among themselves the total business done according to the financial interest of each — charges a contract combination or conspiracy in restraint of interstate commerce in violation of Sherman Anti-Trust Act July 2, 1890, c. 647. § 1. 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>TEd. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p>

<p>Hook, Circuit Judge, dissenting.</p> <p>In Equity. Suit by the United States against the Union Pacific .Railroad Company, the Oregon Short Rine Railroad Company, the Oregon Railroad & Navigation Company, the San Pedro, Eos Angeles & Salt Rake Railroad Company, the Atchison, Topeka & Santa Eé Railway Company, the Southern Pacific Company, the Northern Pacific Railway Company, the Great Northern Railway Company, the Farmers’ Roan & Trust Company, Edward H. Harriman, Jacob H. Schiff, Otto H. Kahn, James .Stillman, Henry H. Rogers, Henry C. Frick, and William A. Clark. Decree for defendants.</p> <p>This suit is grounded upon the anti-trust law of Congress approved July 2, 1890 (2(5 Stat. 209), to dissolve an alleged contract, combination, or conspiracy in restraint and monopoly of interstate and foreign trade between the Union Pacific Railroad Company, the Oregon Short ^irie Railroad Company, and ilie Oregon Railroad & Navigation Company on the one hand, and the Southern Pacific Company, the Northern Pacific Railway Company, the San Pedro, Dos Angeles & Salt Lake Railroad Company, and the Atchison, Topeka & Santa Fé Railway Company on the other hand. Edward H. Harriman, Jacob H. Schiff, Otto H. Kalm. James Stillman, Henry II. Rogers, Henry C. Frick, and William A. Clark, through whom it is averred the combination was created or is maintained, are also made defendants.</p> <p>The specific charges are: That in 1901 and subsequently the Union Pacific Company, acting by itself or through a subsidiary corporation owned and controlled by it, acquired a controlling interest in the capital stock of the Southern Pacific Company, for the purpose of directing its operations and suppressing competition theretofore existing between the two in interstate and foreign commerce and monopolizing the same; that in the same year ii, with like purpose, acquired a majority of all the stock of the Northern Pacific Railway Company, and subsequently induced the San Pedro, Los An-geles & Salt Lake Railroad Company and its promoters, the defendant William A. Clark and liis associates, to desist from constructing an independent line of railroad between Pan Pedro. Cal., and Pali, Lake City, Utah; that In 1901 ¡he defendants Harriman, Schiff. Kalm. Stillman, Rogers, and Frick purchased stock of the Atchison, Topeka & Pauta Fé Railway Company, of the face value of $30,000,000, and thereby secured the election of Frick and Rogers, who were directors of the Union Pacific Company, as members of (lie-board oí directors of the Santa Fé Company, and later, in the year 1900, the-Union Pacific Company, through the Oregon Short Line, purchased stock of tiie Sania Fé Company, of the face value of $10,000,000; and that these purchases were so made for the purpose of eliminating competition of the Santa KS Company and monopolizing for the Union Pacific Company interstate and foreign commerce. These and some other minor charges, which will be referred to later, are relied upon to establish conspiracies in violation of the act. The prayer is that the defendants, who purchased the stocks, be enjoined from voting or otherwise acting as owner of them, and the other corporate defendants be enjoined from permitting them to vote the stocks or paying dividends upon the same, and for general relief.</p> <p>The answer puts in issue all the material averments of the bill, and the cause is submitted to the court for a final decree on the pleadings and proof. The essential facts are these:</p> <p>Prior to 1901 the Union Pacific Company owned and operated a main line-of railroad, extending from Omaha on the east to Ogden on the west, with a branch extending from Kan,«as City on the east, through Denver, to a connection with its main line at Cheyenne; owned the capital stock of the Oregon Short Line Company, which operated a railroad extending from the main line at Granger, Wyo., to Huntington, Or.; and owned or controlled the capital stock of the Oregon Railroad & Navigation Company, which operated a line of railway extending from Huntington to Portland, where it connected with lines of steamships operated bj' it, running to some Oriental ports and to San Francisco. Pile steamship line across the sea had just been organized, and had not engaged in business until 1900 or 1901. It was neither organized nor equipped for general traffic, but only for transporting grain and flour originating on the line of the Oregon Railroad & Navigation Company in competition with the Northern Pacific and Great Northern Railroads. Its sailings were scheduled every 30 days, but were in fact irregular and uncertain. The tonnage of Oriental traffic over this line was infinitesimal compared to the total tonnage of the system, being only .083 of 1 per cent, of it. The steamship line from Portland to San Francisco was likewise an inadequate provision for any regular traffic and particularly transcontinental traffic. Its sailings were irregular and unreliable, so that the Union Pacific Company had under its ownership, or control through subsidiary lines, a transportation route, as just described, from Omaha and Kansas City to some Oriental ports and to San Francisco, by way of Portland.</p> <p>The Union Pacific had connections at Omaha with the Chicago, Milwaukee & St. Paul, the Chicago & Northwestern, the Chicago, Burlington & Quincy, and other railways leading to Chicago, and connecting at that point with many, if not all, the great trunk lines leading to New York and intervening points. It also had connections at Kansas City with the Missouri Pacific, Wabash, Chicago & Alton, and other railways leading to St. Louis, and connecting there with trunk lines extending to New York and intervening points. It also had divers important feeding-in or branch lines along its route.</p> <p>In 1901 the Southern Pacific Company owned or controlled a line of steamships operating between New York and New Orleans, and a line of railway extending from New Orleans, through Louisiana, Texas, New Mexico, Arizona, and California, to San Francisco, and thence through Oregon to Portland, with several branch lines along its route extending into tributary territory. It also owned all the capital stock of the Central Pacific Railroad Company, which owned the line of railway extending between San Francisco and Ogden and had a majority of the stock of the'Pacific Mail & Steamship Company, which operated lines of steamships between San Francisco to and from Panama and Oriental ports; so that the Southern Pacific Company had a transportation route over land and sea extending from New York, via San Francisco, to two terminal points, Ogden, Utah, and Portland, Or. It also connected at New Orleans with the Illinois Central, Louisville & Nashville, Queen & Orescent, and other roads, which opened up to it the traffic of the Middle states, and owned a line of railway extending from New Orleans to Ft. Worth, Tex., and to connections there with roads leading to Colorado and Utah common points.</p> <p>The Atchison, Topeka & Santa Fé Railway Company in 1901 owned or controlled a main line of railway extending from Chicago, through Illinois, Missouri, Kansas, Colorado, New Mexico, Arizona, and California, to San Francisco.</p> <p>The Northern Pacific Railway Company in 1901 owned a line of railway extending from Lake Superior and St. Paul, through Minnesota, North Dakota, Montana, Idaho. Washington, and Oregon, to Seattle and the Pacific Coast, and through ownership of a controlling interest in the capital stock of the Chicago, Burlington & Quincy Railro,ad Company, which operated lines of road in Minnesota, South Dakota, Iowa, Illinois, Wisconsin, Missouri, Nebraska, Kansas, California, and Wyoming, it controlled the transportation of that company. The last-named company connected at several points with the Union Pacific, and was a natural and important feeder for it.</p> <p>The San Pedro, Los Angeles & Salt Lake Railroad Company was organized in 1902 for the purpose of constructing a line of railway extending from San Pedro, Cal., across the states of California and Nevada in a northeasterly course, to Salt Lake City.</p> <p>From El Paso, Tex., on the Southern Pacific line, the Texas & Pacific Railroad ran across the state of Texas to Texarkana, and there connected with the rails of fhe St. Louis. Iron Mountain & Southern Railroad, which extended to St. Louis. At St. Louis the last-named road connected with the Wabash, for the-East, and the Missouri Pacific, for Pueblo, Colo., and there connected with fhe Denver & Rio Grande Railroad, which ran to Ogden. These last-mentioned roads constituted what is known as the Gould System, and, operating under one general management, swung around from a point on the Southern Pacific at El Paso to another point on the Southern Pacific at Ogden. The last-named company constituted its only connection into California, and afforded its only opportunity for participation in transcontinental business.</p> <p>In .1898 the Union Pacific Company, which had been in the hands of a receiver since 189.'!, was reorganized, and Mr. Ilarriman and his associai.es came into control. They soon adopted and put into execution plans of a stupendous character for the rehabilitation and reconstruction of the road, involving an expenditure of many millions of dollars. Apart from possible rights conferred by the acts of Congress approved Juiv 1, 1802 (12 Stat. 489), July 2, 1801 (13 Stat. 350), and June 20, 1874 (18 Stat. ill | U. S. Comp. St 1001, p. 3577]), known as the “Pacific Railroad Acts,” the Union Pacific Company had no independent right of co-operation by through route or joint rates with the Southern Pacific for the Pacific Coast trade, and in fact no oilier direct connection was open to it Cor that trade except the Southern Pacific road itself. The Rio Grande and its allied lines and connections with trunk lines from the east at St. Louis was available to the Southern Pacific as a connection at Ogden for business for the Atlantic seaboard and Middle states. To meet a menace occasioned by this situation and secure a reliable and permanent arrangement for Pacific Coast business, Mr. Ilarriman, acting for the Union Pacific Company, first tried to purchase from the Southern Pacific Company the old Central Pacific line, extending between Ogden and San Francisco, and, failing in this, entered into negotiations with C. P. Huntington in his lifetime for the purchase of a large block of the capital stock of that company, owned by him. Being unsuccessful in this, he renewed his efforts to secure that stock from Mr. Huntington’s heirs and devisees after his death, in 1900. In this effort he had a competitor in George Gould, acting for the Gould interests. It resulted, in 1901 and 1902, in the purchase for the Union Pacific Company of 900,000 shares, and these, with the shares of some preferred stock afterwards issued and taken by it, made a holding of a little over 48 per cent, of the total outstanding issue of Southern Pacific stock. This was a holding sufficient, according to the usual conduct of corporate affairs, to insure to the Union Pacific Company control in the management of the Southern Pacific Company.</p> <p>In 1901 tiie .Northern Pacific Company acquired a controlling interest in the Chicago, Burlington & Quincy Railroad, which was a natural and actual feeder to the Union Pacific Company. After an unsuccessful effort to secure from Mr. Hill, who acted for the Northern Pacific Company, a partial interest in that purchase, in order to insure a continuation of the fair and equitable relations which had theretofore existed between the Union Pacific and the Burlington roads, Mr. Ilarriman purchased for the Union Pacific Company a majority of the capital stock of the Northern Pacific Company, including in his purchase more of the preferred than of the common stock. The preferred, by action of the board of directors of the latter company, was soon retired. The Northern Securities Company was afterwards organized, and the common stock transferred to it. Upon its dissolution in .1905. the Union Pacific Company was required to accept a part of the stock of the Great Northern Railway Company in lieu of some of its former holdings in the common stock of the Northern Pacific Company. l-Iarrfman v. Northern Securities Co., 197 IT. S. 244, 25 Sup. Ct. 493, 49 L. Ed. 739. If the Union Pacific Company acquired any controlling or influential interest in the management of the Northern Pacific Company, those filings resulted in the loss thereof. Finally, in the years 1908 and .1909, holdings of the Union Pacific Company in Northern Pacific or Great Northern stock entirely ceased.</p> <p>in 1904 the defendants Harriman, Rogers, Stillman,"Frick, Kalm, and Schiif purchased for themselves as individuals S30.000.000 in par value of the common stock of the Atchison, Topeka & Santa - lu> Railway Company, and later In 1906 the Union Pacific Company invested $10,000,000 of its idle money in the preferred stock of that company. The individuals who purchased and owned the common stock secured the election of two of their syndicate, the defendants Fric-k and Rogers, as members of the hoard of directors of the Santa Fé Company. They were at that time also members of the board of directors of the Union Pacific Company. The holding of the last-mentioned company of $10,000,000 in the preferred stock of the Santa Fé Company was about 5 per cent, of the total outstanding stock of the latter company. This was all disposed of in 1909.</p> <p>Some time after the acquisition by the Union Pacific Company of the Southern Pacific stock, the latter company became involved in a controversy with the Phoenix & Eastern Railroad Company, the owners of a short line of road in Arizona. Litigation ensued, and resulted in the sale of the Phoenix & Eastern Railroad to the Southern Pacific Company. About that time there was a consolidation of a short line of road (about 90 miles) in the northwestern part of California with the Southern Railway Company. This consolidation was made pursuant to the laws of the state of California.</p> <p>Prior to 1890 the Union Pacific. Company through its subsidiary company, the Oregon Short Line, constructed a line of railroad extending from Salt Lake City in a southwesterly direction to Milford, a point near the state line between Utah and Nevada, a distance of about 206 miles, and plans were made for an extension of the road further southwestwardly and ultimately to Los Angeles. Grading had been done at a heavy cost on this extension for a further distance of 117 miles, a part of the way being through a rugged and narrow defile in the mountain, when, on account of financial embarrassments culminating in the receivership of the Union Pacific and Oregon Short Line Companies, work had to be abandoned. In the meantime a tax deed purporting to convey title to the graded road liad been secured by defendant Clark and his associates, who sought to construct a part of a line of railway projected by them between Salt Lake City and Los Angeles over it. This provoked proceedings in the Land Department and courts by the Oregon Short Line to assert its rights, which resulted favorably to its contention. Utah N. & C. R. Co. v. Utah & O. Ry. Co. (C. O.) 110 Fed: 879.</p> <p>Pending subsequent controversies between the parties, an adjustment was reached whereby the two promoters, the Oregon Short Line and the Clark interests, proceeded jointly to construct and operate a single line, each taking one-half interest in the stock of the San Pedro, Los Angeles & Salt Lake Company, which owned and operated it. It was not completed, and no commerce passed over it, until 1905. In the further adjustment of their differences, certain permanent provisions relating to joint, through, and local rates were made, favorable to the interests of the Union Pacific Company and its allied roads as a system.</p> <p>Prior to 1901 agents of the Union Pacific, Southern Pacific, and Santa Fé roads were actively engaged in New York and elsewhere in securing business between New York, Pittsburg, and interior points to the Pacific Coast. The Union Pacific Company, having no through route, had to depend upon connections with other roads at either end of its line, and to share with them the revenue resulting from the traffic secured in such proportions that out of the through rate it received but a minor part; for instance:</p> <p>On traffic from New York to San Francisco, via Omaha and Ogden, it received of the through rate only.84.4%</p> <p>Its connections east of Omaha received. 85.5%</p> <p>And the Southern Pacific, from. Ogden to destination, received.... 30.1%</p> <p>On traffie from New York to San Francisco, via Kansas City and Ogden, it received of the through rate only.30.5%</p> <p>Its connections east of Kansas City received.38.0%</p> <p>And the Southern Pacific, from Ogden to destination, received.... 30.9%</p> <p>On traffic from Cincinnati to San Francisco, via Omaha and Og-f den, it received. 40.4%'</p> <p>Its connections east of Omaha received. 24.4%</p> <p>And the Southern Pacific, from Ogden to destination, received... 35.2%</p> <p>On traffic from Chicago to San Francisco, via Kansas City and Ogden, it received of the through rate only. 43.6%</p> <p>Its connections east of Kansas City received. 14.2%</p> <p>And the Southern Pacific, from Ogden to destination, received... 42.2%</p> <p>From these fairly illustrative instances it appears that, on transcontinental traffic from New York and important interior points by way of the Union Pacific road to San Francisco, the connections of the last-mentioned road on both ends received practically two-thirds of the total freight rate; the Southern Pacific itself receiving about the same proportion of it as the Union Pacific did. On the other hand, the Southern Pacific received on freight from New York common points to San Francisco by way of New Orleans on its own route all the through rate, and on freight from Cincinnati, Chicago, and other interior points to San Francisco via New Orleans the total through rate less the small portion required by the initial carriers for transportation from point of origin to New Orleans.</p> <p>Many witnesses testified generally that the Union Pacific and Southern Pacific were prior to 1901. competing lines for transcontinental business and had separate solicit ing agents in New York and elsewhere. The proof amply shows that they were active in securing routings of freight and passengers to California, but that they did it in two ways: One by direct solicitation of shippers and passengers, and the other by securing and fostering friendly relations with the initial carriers at the points of origin of the traffic. The initial carrier commonly was able to and did determine the routing of all trafile. Notwithstanding the right oí the shipper in the abstract to do so. the initial carrier practically settled the question so as best to serve its own ini ('rest.</p> <p>In so far, however, as the initial carrier was influenced by the shippers and they by the soliciting agents, the result was this: As between the Southern Pacific and the Union Pacific, the agents of the former exercised their influence in favor of their through route by way of New Orleans: but, as between the Union Pacific and the Santa Fé, the agents of the Southern Pacific exercised their influence in favor of the Union Pacific route, as it thereby secured for itself a haul of S00 miles over its own road from Ogden to San Francisco, the last connecting link into California.</p> <p>The actuating intent and purpose of the Union Pacific Company in acquiring the Huntington stock was to secure a permanent and reliable connection at Ogden for through traffic over the Central Pacific line to the Pacific Coast, and thereby to save the necessity for constructing a road of its own from Ogden to San Francisco.</p> <p>The facts relating to less important competition (1) between the Atlantic seaboard and interior points on the one hand and Portland, Or., on the other, (2) between the Atlantic seaboard and Colorado and Utah common points, (3) between Portland and Utah, Colorado, and Nevada common points, (4) between San Francisco and Portland, (5) between San Francisco and Montana and Idaho common points, and (C) between New York and interior common points and the Orient, will be specifically referred to so far as necessary in the opinion.</p>

<p>1. Monopolies (§ 24*) — Anti-Trust Act — Suit por Injunction.</p> <p>A member of a combination in restraint of interstate commerce, in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), who has in good faith withdrawn from such combination, is not subject to a suit for injunction under section 4 of the act; nor, if such member is a corporation, is the fact that a minority part of its stock is owned by members of the combination sufficient to sustain such a suit, in the absence of proof that such ownership is employed to aid the combination.</p> <p>[B'd. Note. — For other cases, see Monopolies, Dec. Dig. § 24.*]</p> <p>2. Monopolies (§ 24*) — Anti-Trust Act — Injunction.</p> <p>A minority stockholder in a corporation, who is hot an officer and takes no part in the management of its business, is not subject to a suit for injunction under Anti-Trust Act July 2, 1890, e. 647, § 4, 26 gtat. 209 (U. S. Comp. St. 1901, p. 3201), because the corporation may be a party to a contract or combination to restrain or monopolize interstate commerce.</p> <p>(Ed. Note. — For other eases, see Monopolies, Dec. Dig. § 24.*1</p> <p>3. Monopolies (§ 20*) — Anti-Trust Act — Construction—“Combination in Restraint oe Trade.”</p> <p>The provisions of Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), making unlawful any combination “in restraint of trade or commerce among the several states” or to monopolize any part of such trade or commerce, clo not make every combination in restraint of competition in interstate trade unlawful,, but there may be a restraint of competition that does not amount to a restraint of trade within the meaning of the act. On the other hand, a combination cannot escape the condemnation of the act merely because of the form it assumes, and a single corporation, if it arbitrarily uses its power to force weaker competitors out of business, or to coerce them into a sale to or union with such corporation, puts a restraint on interstate commerce, and monopolizes or attempts to monopolize a part of such commerce, in a sense that violates the act.</p> <p>[Ed. Note. — For other eases, see Monopolies, Dec. Dig. § 20.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1275, 3276; vol. 8, p. 7600.]</p> <p>4. Monopolies (§ 20*) — Combination in Restraint or Interstate Commerce.</p> <p>In 1872 seven of the largest manufacturers of powder and other explosives in the United States organized what was called the “Gunpowder Trade Association,” which, at its meetings and through committees, fixed prices which the constituent members were required to observe under penalty of fines. It also apportioned territory between its members, authorized the cutting of prices in particular localities in order to drive competitors out of the market or force them to come into the association, and apportioned the losses, if any. from such price cutting, between the members. Subsequently other companies were taken into the association, until there were 17 members ; and it was continued with some changes ip the fundamental agreement, but none in its purposes or methods, until 1902. At that time E. I. du Pont de Nemours & Go., then the most influential member of the association, passed under a new management, was reorganized into the E. 1. du Pont de Nemours Company, and its controlling stockholders and officers inaugurated the policy of acquiring the assets of other corporations and vesting ownership of their plants and the control of their business in their own company. So successfully was this policy carried out, by the use of the methods of the association, that within five years such company had acquired the stock of and caused to be dissolved 64 corporations engaged in the manufacture of powder and other explosives, and controlled from 64 to 100 per cent, of the trade of the United States in the different kinds of explosives sold, and also, directly or through subsidiary corporations, as stockholders, controlled all of the other members of the association which was then dissolved. Held, that the formation of such a corporation and its subsidiaries and the adoption of the new policy was merely the continuance in a different form of the illegal association, and that it constituted a combination in restraint of interstate commerce and to monopolize a part of the same, which was unlawful under Anti-Trust Act July 2, 1890, e. 647, §§ 1, 2, 26 Stat. 209 (U. S. Oomp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other eases, see Monopolies, Dee. Dig. § 20.*]</p> <p>5. Monopolies (§ 26*) — Suit to Restrain under Anti-Tkust Act — Relief.</p> <p>TFhere an existing combination in corporate form has been adjudged unlawful, as in violation of Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U: S. Comp. St. 1901, p. 3200), and to have monopolized and to be monopolizing a large part of the interstate trade in a particular commodity, it is the duty of the court, under the power conferred by section 4 of the act to “prevent and restrain” its violation, not only to enjoin further violation of the act, but to render its decree effective by dissolving the illegal combination.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 26.*]</p> <p>6. Monopolies (§ 24*) — Suit fob Injunction under Anti-Trust Act — Parties.</p> <p>To a suit under Anti-Trust Act July 2, 1890, e. 647, § 4, 26 Stat. 209 (U. S. Oomp. St. 1901, p. 3201), to restrain violation of the act by corporations alleged to constitute a combination in restraint of or to monopolize interstate commerce, mortgagees of such corporations are not necessary parties, but may be brought in if it appears that their interests will be affected by the decree. ]</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 24.*]</p>

<p>Food (§ 24*) — Regulation--Standakd—Secretary of Agriculture — Powf.es.</p> <p>Though Act Cong. Aug. 2, 1886, c. 840, 24 Stat. 209 (U. S. Comp. St. 1901, p. 2228), authorized the Secretary of the Treasury to prescribe rules and regulations for carrying it into effect, it did not authorize him to promulgate a rule construing Act May 9, 1902, c. 784, § 4, 32 Stat. 194 (U. S. Comp. St. Sup]). 1909. p. 865), declaring that lmtter should be confiscated if it contained an abnormal quantity of moisture, by providing that it should be confiscated if it contained more moisture than 16 per cent.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*]</p>

TEd. Note. — For other cases, see Corporations, Cent. Dig. §§ 2241-2252; Dec. Dig. | 559.*] Appeal from the Circuit Court of the United States for the District of Massachusetts. In Equity. Appeal by Richard J. Burton, executor of Parker C. Chandler, deceased, intervener, from an order disallowing a claim against the Bay State Gas Company of Delaware, defendant.

Suit in equity by the Fred W. Wolf Company against the Mt. Vernon Refrigerating Company. Decree for complainant, and defendant appeals. Prior to January 4, 1906, the Mt. Vernon Refrigerating Company, appellant (hereinafter referred to as the Ice Company), purchased of the Elyria Gas Engine Company two gas engines of 100 horse power each.

<p> (Syllabus by the Court.) </p> <p>1. Frauds, Statute of (§ 103*) — Contract of Sale of Land by Letters Addressed to Contracting Parties Not Essential.</p> <p>A contract to sell and convey land valid under the statute of frauds of Kansas may be made by letters connected by direct references to each of them, one of which is signed by the party to be charged.</p> <p>It is not indispensable that such letters should be addressed to one of the contracting parties, and an agreement may be sustained which consists of letters of the vendor addressed to a third party who conveys to the vendee the messages they contain, and who writes over his own signature to the vendor the messages the vendee gives him in reply.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 199; Dec. Dig. § 103.*]</p> <p>2. Specific Performance (§ 117*)- -Pleading — Immaterial Variance Between Averments and Proofs.</p> <p>A complaint in a bill for specific performance alleged that the contract of sale of the land was made by three letters, the last of which was dated June 25, 1906. The decree rested on proof that the contract was made by one telegram and five letters, the last of which was dated June 30, 1906.</p> <p>Held, the variance was immaterial.</p> <p>[Kd. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 377-381; Dec. Dig. § 117.*]</p> <p>3. Courts (§ 367*) — Federal Courts — State Kut.es of Property Prevail In.</p> <p>Buies of property established by the construction by the highest judicial tribunal of a state of its Constitution or statutes prevail in the national courts where uo question of right under the Constitution or laws of the nation and no question of general or commercial law is involved.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367*</p> <p>Conclusiveness of judgment between federal and state courts. See notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planter’s Bank v. City of Memphis, 49 C. C. A..468.]</p> <p>4. Frauds, Statute of (§ 115*) — Contracts in Kansas — Signature of Party to be Charged Alone Essential.</p> <p>The signature of the party to be charged without the signature of the other contracting party is sufficient to sustain the validity of a contract of sale of land under the statute of frauds of Kansas. Gen. Stat. Kan. 1909, c. 45, § 3838.</p> <p>[Ed. Note. — For other cases, see Frauds, Statutes of, Cent. Dig. §§ 242-250; Dec. Dig. § 115.*]</p> <p>5. Vendor and Purchaser (§.§ 188, 172, 196*) — Accounting for Rents and Profits and Interest — Exception Where Purchase Price Kept Ready.</p> <p>The general rule is that from the time when a contract of sale of land should be performed the land is in equity the property of the vendee held by the vendor in trust for him, and the purchase price is the property of the vendor held in trust for him by the vendee, and that upon specific performance the vendor is liable to account for the rents and profits and the vendee for the interest on the purchase price.</p> <p>There is this exception to the rule: That where the vendor fails or refuses to convey at the time for performance, and the vendee, to the knowledge of the vendor, deposits and keeps the purchase price subject to the order of the vendor upon his delivery of his deed, and derives no benefit from it, the vendor must account to the vendee for the rents and profits of the land, but the vendee is not liable to account for the interest on the purchase price.</p> <p>[Ed. Note. — For other eases, see Véndor and Purchaser, Cent. Dig. §§ 376, 349-351, 40A-406; Dee. Dig. §§ 188, 172, 196.*]</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action at law by the Rapson Coal Mining Company and the Curtis Coal Mining Company against the Golden Cycle Mining Company. Judgment for plaintiffs, and defendant brings error.</p>

Bill by Uouis Metz and others against the City and County of Denver and others. From a decree dismissing the bill, complainants appeal.

<p> (Syllabus by the Court.) </p> <p>1. Animals (§ 34*) — Contagious Diseases — Transportation—Restrictions.</p> <p>The receipt outside a quarantine district and subsequent transportation by a railroad company of live stock that was received for transportation, and was transported by a previous carrier from a quarantined district in one state into another state, is not an offense under the act relating to quarantine districts of March 3, 1905 (chapter 1190, 33 Stat. 1264 [U. S. Comp. St. Supp. 1909, p. 1185]).</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 34.*]</p> <p>2. Statutes (§§ 241, 263*) — Penal Statute Not Extended by Construction to Parties or Acts Not Denounced.</p> <p>A penal statute plain in its terms which creates and denounces a new offense should be strictly construed.</p> <p>It may not be extended by construction to those who are not within the class of parties denounced by it, nor to acts which are not by the expressed will of the legislative department clearly made offenses under it, although such parties or acts may in the opinion of a court be as vicious as those within its terms.</p> <p>Ex post facto construction is as pernicious as ex post facto legislation.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 322, 323, 344; Dec. Dig. §§ 241, 263.*]</p> <p>3. Animals (§ 34*) — Regulations of Executive Officer Ineffective to Add Offenses to Law.</p> <p>Regulations of the Secretary of Agriculture under section 3 of the quarantine act of March 3, 1905 (chapter 1496, 33 Stat. 1265 [U. S. Comp. St. Supp. 1909, p. 1186]), are ineffective to add to the class of railroad companies or to the acts denounced by that statute and railroad companies that lu violation of such regulations receive and transport outside a quarantined district live stock which has been received for transportation, and has been transported by a previous carrier from the quarantined district in one state into another state, are not punishable therefor.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 34.*]</p> <p>4. Constitutional Law (§ 66*) — Regulations of Executive Officer-Delegation of Powers.</p> <p>A legislative body may delegate to an executive or administrative officer the power to find some fact or situation on which the operation of a law Is conditioned, or to make and enforce regulations for the execution of a statute according to its terms.</p> <p>[Ed. Noi.e. — For other cases, see Constitutional Law, Cent. Dig. §§ 115, 317 — 122; Dec. Dig. § 60.*]</p> <p>5. Constitutional Law (§ 60*) — Delegation of Legislative Power.</p> <p>A legislative body cannot, however, delegate its lawmaking power, its power to exercise the indispensable discretion to make, to add to, to take from, or to modify a statute.</p> <p>It cannot delegate its power to add parties or acts to those punishable under a statute.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 89, 90, 93; Dec. Dig. § 60.*]</p>

In the matter of Alva G. Sturtevant and Esther Nygren, copartners as Nygren & Co., bankrupts. John Z. Rydberg, executor of the estate of John Blomberg, deceased, appeals from an order of the District Court. Appellant appeals from the order of the District Court disallowing all rights and benefits asserted under a certain chattel mortgage securing the claim of his testator against the bankrupts.

<p>Bankruptcy (§ 140*) — Assets—Bailment and Sale.</p> <p>Where certain agency contracts appointed the bankrupt agent for the sale of manufacturers’ furniture and carpets for a period ending July 1, 1899, the contract providing that the bankrupt, on final termination of the agreement, agreed “to buy and pay for at the then current prices and on the regular terms, such goods as might lie then on hand,” the contract was not executory as to the goods remaining at the termination of the contract, but, as to such goods, constituted a sale, so that the title to the goods so remaining passed to the bankrupt’s trustee.</p> <p>' [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. § 140.*]</p>

Suit in admiralty by John W. Livingston, owner of the barge Serviss, against the steam tug R. B. Little; John Rugge. Jr., and another, claimants. Decree for respondents, and libelant appeals.

<p>1. Bankruptcy (§ 267*) — Expenses or Administration — Use of Proceeds of Property Subject to Liens — Waiver of Objection.</p> <p>Holders of liens on realty of a bankrupt, who, with knowledge of proceedings by the trustee for the sale of the same free from liens, permit such proceedings to continue without objection and the proceeds of the property to be used in the payment of expenses of administration, by necessary implication assent to the same and cannot afterward object to such proper expenditures.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ S71, 380; Dec. Dig. § 267.*]</p> <p>2. Bankruptcy (§ 205*) — Rights of Lienholders — Rents Collected After Bankruptcy.</p> <p>Under the law of Pennsylvania, rents collected by a trustee from ■property of a bankrupt which is subject to valid liens belongs to the lienholders and not to the general estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. § 205.*]</p> <p>3. Bankruptcy (§ 205*) — Rights of Lienholders — Damages fob Injury to Property.</p> <p>Judgment creditors of a bankrupt, whose judgments were lions upon real estate, are not entitled 'to a sum awarded as damages to such real estate resulting from a change of street grade, where their liens were obtained after such change, although the damages were not paid until after the bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. § 205.*]</p>

Suit in admiralty by the Lehigh Valley Transportation Company against the steam tug Transfer No. 18, the New York, New Haven & Hartford Railroad Company, claimant. Decree holding two tugs liable for collision between their tows, and libelant appeals.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action at law by Panayiotis Panoualias against the Confectioners’ Machinery & Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Equity. Suit by the Shredded Wheat Company against the Williams Biscuit Company, Matthew R. D. Owings, Alonzo H. Benn, and William E. Williams.</p>

<p>In Equity. Suit by the Elliott Company against the Clyde Machine Works Company. On motion for preliminary inj unction.</p>

Petition by the Procter & Gamble Company against the United States and others to set aside an order of the Interstate Commerce Commission (19 Interst. Com. R. 556) refusing to annul a provision of the Uniform Demurrage Code, requiring privately owned cars while standing on private tracks to pay demurrage under certain circumstances.

Mack, Judge, dissenting. Bill by the Atchison, Topeka & Santa Fé Railway. Company and others against the Interstate Commerce Commission and another. On motion for a temporary in junction against the enforcement of ah order of the Interstate Commerce Commission, prohibiting a charge for switching service on cars delivered on industry tracks.

<p>Bill by the Southern Pacific Company and another against the Interstate Commerce Commission and another.</p>

Archbald and Mack, Judges, dissenting. Bill by James J. Hooker and others, officers of the Receivers’ & Shippers’ Association, against the Interstate Commerce Commission and others to compel the annulment of class rates fixed by the Interstate Commerce Commission between Cincinnati, Ohio, and Chattanooga, Tenn.

<p>Bill by tbe Eagle White Lead Company and others against the Interstate Commerce Commission and others.</p>

<p>Criminal prosecutions by the United States against William U. Norton. On motions to quash indictments.</p>

Suit in equity by the Continental & Commercial Trust & Savings Bank against Charles W. McCarty. Decree for defendant, and complainant appeals. The appellant, as trustee under a deed of trust, brought a suit for the foreclosure of a lien created by a contract assigned to it as security for an issue of bonds.

<p>1. Courts (§ 347*) — Federal Courts — Rulings on Pleadings — What Law Governs.</p> <p>Under the conformity act, federal courts in determining a demurrer to a declaration in an action at law will be governed by the decisions of the highest court of the state.</p> <p>[Éd. Note. — For other cases, see Courts, Cent. Dig. § 921; Dee. Dig. § 347.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to 5 C. C. A. 594, 27 C. C. A. 392.]</p> <p>2. Street Railroads (§ 110*) — Injuries to Travelers — Pleading—Declaration.</p> <p>Where, in an action for injuries to a pedestrian at a street railway crossing, plaintiff’s whole case was based on the alleged negligence of the motorman in operating the car by which she was struck, and her declaration was divided into three counts, the first charging that the injury was the result of the motorman’s negligence in operating the car St the point where she was hurt, the second, that it was due to his negligence in failing to keep a proper lookout, and the third, to a negligent failure to warn, the first count was not demurrable under the AUrginia practice as indefinite and uncertain for failure to allege in what particular the operation of the car was negligent.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 110.*]</p> <p>3. Trial (§ 330*) — Verdict—Responsiveness to Pleading.</p> <p>Where neither of the three counts of a declaration were demurrable, a general verdict for plaintiff was not objectionable as not sustained thereby.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 777-781%; Dec. Dig. § 330.*]</p> <p>4. Pleading (§ 53*) — Declaration—Counts—Instructions.</p> <p>Where plaintiff’s whole demand is founded on a single transaction, and her relative rights and those of the defendant are well established, the issues consisting of negligence and contributory negligence, the entire declaration, though divided into counts under the Virginia practice, may be considered in passing on the question whether one of the counts is sufficiently definite to inform defendant as to the nature of the cause of action pleaded.</p> <p>I Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 114.-117; Dec. Dig. § 53.*]</p> <p>5. Trial (§ Iti!)*)--Direction of Verdiot — Duty of Court.</p> <p>It is the duty of a trial judge to direct a verdict for defendant in a civil action, when plaintiff's testimony, assuming it to lie true, and giving it that weight and effect which necessarily follows or may he reasonably inferred from it, tails to establish a cause of action.</p> <p>[ Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 381-389; Dec. Dig. § 109.*]</p> <p>6. Street Railroads (§ 117*) — Injuries to Pedestrian — Crossing Accident —Negligence—Contributory Negligence — Próxima te Cause — Question fob Jury.</p> <p>In an action for injuries to plaintiff by being struck by a street car at a street crossing as she was attempting to cross the street in a rainstorm, evidence hold to require submission to the jury of the questions of negligence and contributory negligence.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]</p> <p>7. Negligence (§ 130*) — Question of Law or Pact.</p> <p>Negligence only becomes a question of law to be determined by the court when the facts are such that fair-minded men can only draw from them the inference that there was no negligence, and if such might honestly differ on the question it must be submitted to a jury.</p> <p>|Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 130.*]</p> <p>8. Trial 0 260*) — Instructions—Request to Charge-Refusal.</p> <p>Where the court’s charge covered the entire case, and was all that was necessary to give the jury an intelligent understanding of the law applicable to the facts they might find from the testimony, it was not error to refuse requests to charge.</p> <p>fEd. Note. — For other cases, see Trial, Dec. Dig. § 200.*]</p>

<p>1. Bankruptcy (§ 154*) — Claims—Set-Outs.</p> <p>The right of a bank, which is a creditor of a bankrupt, to apply on its debt as a set-off a balance remaining to the credit of the bankrupt in its current account on the date of the bankruptcy, under Bankr. Act July 1, 3898. c. 541, § 68a. 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), is not affected by the fact that the debt to the bank was not due.</p> <p>[Ed.‘Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 453.-455; Dec. Dig. § 154.*]</p> <p>2. Bankruptcy (§ 166*) — Set-Offs—Deposits in Creditor Bank.</p> <p>A- mercantile company, a short time before its bankruptcy and while in fact insolvent, procured a loan from claimant bank. On reports of the company’s condition, at the bank’s instance, a conference was held between their attorneys in respect to the bank’s claim. An inventory and examination of the company’s books was then being made, and its attorney, who did not know of its insolvency, requested that the bank wait until it was completed, and agreed that the company should withdraw from the bank no more than it should subsequently deposit. No express agreement was made that the company should be permitted to withdraw the amount of such subsequent deposits, but the bank waited until it became certain that the company was insolvent, when it refused to pay further cheeks, and applied the deposit on its note. Held, that the arrangement with respect; to the money on deposit at the time of the conference appeared to have been made in good faith, and did not constitute a preference in favor of the bank; nor was there any waiver by the bank of its rights as to subsequent deposits, and, since they were made by the company without any intention of giving a preference, no preference resulted, and the bank was entitled to the entire deposit in its hands at the time of the bankruptcy as a set-off.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 166*1</p> <p>3. B4NKRUPTOY (§ 154*)-“DEBT.”</p> <p>The word “debt,” as used in Bankr. Act July 1, 1S98, c. 541, § 68a, 30 Stat. 565 (IT. S. Comp. St. 1901, p. 3450), relating to the setting off of debts against a bankrupt, includes any debt provable in bankruptcy; and a debt is provable, whether due or not at the time of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 451-455; Dec. Dig. § 154.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1864-1880: vol. 8, p. 7628.]</p>

Suit in equity by the United States Trust Company of New York and John A. Stewart, trustees, against the Chicago Terminal Transfer Railroad Company .and others. Frank Brainard, James H. Ralph, Arthur E. Friswell, and others, stockholders of defendant company, appeal from an order denying their petition for leave to intervene, and from an order denying a motion to vacate a sale of defendant’s property.

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 372*) — Federal Courts — Following State Decisions — Commercial Law.</p> <p>It is a duty which the federal courts may not renounce to form independent opinions and render independent decisions upon questions of commercial or general law and of right under the Constitution and laws of the’nation of which they have jurisdiction, and the decisions of the state courts are not controlling, but persuasive thereon.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 977-979; Dec. Dig. § 372*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. O. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Bills and Notes (§ 386*) — Conflict of Laws — Indorsement—Notice of Dishonor Governed by Law of Place Where Note Payable.</p> <p>The manner of giving and the sufficiency of a notice of dishonor, in a case where commercial paper is indorsed in one jurisdiction and is payable in another, is governed by the law of the place where it is payable.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1051-1054; Dec. Dig. § 386.*]</p> <p>3. Bills and Notes (§§ 224, 386*) — Indorsement—Validity and Extent of Contract Governed by Law of Place of Indorsement.</p> <p>The laws of the place where the indorsement is signed or is delivered so that it becomes a contract govern the validity and extent of the contract, and therefore the necessity of some presentment, demand, protest, and notice of dishonor.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. 526, 1051-105,1; Dec. Dig. &§ 221, 386.*]</p> <p>4, Bills akd Notes (§§ 117, 386*) — Indorsement—Daw of Black Where Payable Governs Method of Protest and Notice.</p> <p>The law of the place where commercial paper is payable governs the days of grace, the time and the maimer of making the presentment, the demand, and the protest, and of giving the notice of dishonor.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Gent. Dig. §§ 218-254, 1051-1054; Dec. Dig. §§ 117, 386.*]</p>

J. D. Foster was convicted of a criminal offense, and brings error. The plaintiff in error (defendant below) was indicted at the April, 1910, term of the United States District Court for the Western District of Virginia, at Danville, Va., under an indictment in pursuance of section 3296 of the Revised Statutes (U. S. Comp.

Criminal prosecution against Carl Ontai. Judgment of conviction, and defendant brings error.

<p>Patents (§ 328*) — Infringement—Underfeed Furnace.</p> <p>The Carden patent, No. 648,251, for an underfeed furnace, is of narrow scope and is not infringed by the furnace of the Daley patent, No. 644,664, which, although it employs the single novel feature of the Garden patent, employs a different combination of elements to accomplish a different purpose.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Ludington Cigarette Machine Company, Incorporated, against S. Anargyros and the American. Tobacco Company. Decree for complainant, and defendants appeal.</p> <p>Following is the opinion of the Circuit Court by Hazel, District Judge:</p> <p>The complainant is the owner by assignment of patents numbered 711,986 and 711,987, both dated October 28, 1-902, and issued to Erank J. Ludington, inventor. The defendants, S. Anargyros and the American Tobacco Company, the former, as alleged in the bill, being under the control of the latter, are jointly charged with conjoint infringement of said patents, which respectively relate to the machinery and the process of making cigarettes of oval shape from so-called continuous cigarette rods. To make cigarettes automatically by continuous filler machines, in which machines the tobacco is drawn through a smoother by an endless tape, upon which the filler rests, was an old art at the date of the invention in suit, and the patentee does not claim to be a pioneer in this field of invention. Indeed, he himself, as had others before him, had invented and previously secured patents for cigarette machines of this type. Originally, in cigarette machines the cigarette rod was made from ribbon paper as it unrolled from a spool; one edge of the paper passing over a paste wheel and traveling along into a trough, from whence it was gradually drawn into a tube corresponding to the curvature of the trough, and there formed into a filler. The edges of the wrapping paper, having curved upward in its movements, were brought together and pasted, and the filler upon leaving the trough was cut into cigarettes. Bonsack Machine Co. v. Elliott, 69 Fed. 335, 16 C. C. A. 250. The earlier machines were not commercially successful, for the reason that the wrapping paper was drawn through the trough and tubular metal by a nipper device, and was strained and torn through frictional contact. Afterwards, in 1879, a patent was issued to Emery (No. 216,1641 which was designed to overcome the difficulties in the pioneer invention. In his machine the tobacco after leaving the feeding device was formed into a filler rod, and smoothed and pressed by concave wheels and rollers, and the edges of the wrapper were pasted; the paste being applied by suitable apparatus. The instrumentalities for making the filler rod were contained at one part of the machine, and by a separate device it was laid upon the wraiiping paper at another part thereof. After the cigarette rod was formed, the filler rod belt passed under the table, and reappeared, to act as a carrier of the filler after the wrapping paper was wound around it:. As the wrapping paper gradually enveloped the rod-in its movements through the metallic tube, corresponding in diameter to the thickness of che filler rod, it was pasted and pressed to foi'm the cigarette. Other patents to Emery and other patentees were subsequently granted for improvements, and at the date of the patents in suit cigarettes having broad seams and a round shape were made automatically by machines in large quantities. The Bonsaek machine was a marked improvement of the Emery patent for making round cigarettes, as distinguished from flattened or oval-shaped cigarettes. In the year 1900 Turkish cigarettes of oval shape came into extensive use. In this class of cigarettes the corners and seams were narrow, the paper wrappers were finely finished, the fillers smooth and regular, and, as they were made by hand, they obtained a reputation for superiority of style and workmanship. None of the continuous cigarette making machines known to the art were adapted to successfully make the Turkish cigarette of approved symmetry. There were in existence, it is true, machines which made cigarettes in imitation of Turkish handmade cigarettes, but the patentee claims that such machines were defective, and did not embody his central idea of a. smoother combined with the folders and heating cap. In the l/udington, as in prior machines, the tobacco is shredded, and runs from a hopper to a feeding device by means of pulleys and befits, and then onto a traveling surface, where the filler is formed, and the underlying wrapping paper is wound around the filler as it travels on a feed guide. In the Hiding!on machine the filler Is continuously drawn through a smoothing device of trough shape lij-an endless tape, and in its progress file filler and wrapper encounters a folder, which turns up one edge of the paper over the tape of the filler, and paste is immediately applied by a paste wheel to the other edge', and thereupon both edges are brought to adhere by a second folder, and the seam is pressed down tight by the tube part of the metal channel as the filler moves onward in its path. The upper part of the channel, which is constructed in one piece, has an extension, which forms the heating cap. The novelty of the invention is claimed to reside in the application of the smoother to the filler and pressure of a curved heated metal part directly upon the pasted seam, which has the double function of simultaneously drying and smoothing it before it reaches file knife for cutting into proper size. The patentee dispensed with the familiar concave wheels and rollers which were used to smooth and press the tiller, and substituted conspicuously new Instrumentalities, i. e., a smoothing device in combination with folders and a heating cap, positioned in the path of the filler, for heating the open seam of the cigarette rod. To impart the desired effect of the heater directly on the seam, it was necessary to expose the-seam, and this was accomplished by the action of the tape, which, owing to the expansion of the filler, drops back, leaving the seam open for ironing. The specification, speaking of objections and defects in prior machines that prevented giving the filler the desired sjmmetry, says: “In the machines referred to in making Turkish cigarettes with narrow lap it has been found that the mechanical pasting of the seam wrinkled the paper along the line of the seam, and the filler, not having been smoothed before wrapping, left indentations or pits on the surface of the finished cigarette, and that such wrinkled seam and indented or pitted surface plainly betrayed the machine make of the article. To produce such a seam of absolutely perfect character. I provide in the present invention a healed ironing device, which presses nil-ón the seam for a considerable length of time after it is pasted, and opérales to simultaneously dry and smooth the seam, and to remove all wrinkles in the surface of the wrapper.’' The said objection was attributed by the paten-tee to the concave wheels, between which the tobacco moved too rapidly, and which interfered with properly or permanently compressing it, together with the failure of such prior machines to properly smooth and dry the filler a tier the edges of the wrapper were pasted together. The evidence supports the claim of the indicated inefficiencies of’ the prior machines for manufacturing Turkish cigarettes. The improvement in suit, which came into the market in 1902, was generally approved by the trade, and recognized as satisfactorily fulfilling the requirements and overcoming the objections and defects herein-before mentioned. The claims alleged to be infringed in patent No. 711,986 are 1, 2, 3, 12, 13, 18, 19, 21, and 22. Claim 1 reads as follows: “(1) In a continuous cigarette machine, the combination, with means for forming and propelling a continuous cigarette with seamed paper wrapper, of a trough-shaped guide to support the cigarette, a cap arranged and operated to press upon the seam of the wrapper, and means for heating the cap to smooth and iron the seam, substantially as herein set forth.” Claim 1 broadly includes the means for forming and propelling a cigarette with seamed paper wrapper. Such claim, however, cannot be given its literal import, and must be narrowed to include the specific combination. Claim 2 is limited to forming an oval cigarette in machines of the style in controversy. Claim 3 is for a combination with means for feeding the tobacco to the wrapper. Claim 12 emphasizes the “endless tape adapted to carry a paper wrapper.” Claim 13 details the means for heating the heater cap. Claim 18 specifies the smoother, f, for equalizing the tobacco and the feature of the first folder. Claim 19 specifies the heater cap attached removably to the guide and heating means. Claims 21 and 22 cover the combination of the smoothing tongue with the folding surfaces and the guides arranged to permit the tobacco to expand as. it passes from one to another.</p> <p>The defendants, to anticipate the claims, or, at least, to limit them, contend that the feature of simultaneous heating and pressure is found in the prior art. None of the prior patents, however, embody the central idea of complainant’s invention. Means for drying a continuous cigarette and imparting to it a finish, it is true, is suggested in the Emery patent, No. 216,161, but it certainly does not disclose how a heated iron may be directly applied on a moist seam to smooth and iron it. Bonsack, who improved the Emery machine, as a result of which it achieved commercial success, was apparently unaware of its heating jacket mentioned in the specification, for he never used it to perform simultaneous heating and smoothing. The Emery patent docs not describe the jacket, nor how it was heated, and if in this respect it was of any practical use the evidence does not show it. Nor is the Chappell patent, No. 542,974, entitled to material weight, for in the structure therein described the tube inclosing the heating jacket was designed to dry the cigarette after pasting the seam. His drier had no pressing or smoothing action, and therefore does not anticipate the patent of complainant. There was much evidence given on both sides in relation to the Chappell patent; it being claimed by the defendants that the diameter of the drier was such as to impart to the cigarette while being dried a smoothing action. The drawing of the drier accompanying the specification, however, in connection with Mr. .Dorsey’s testimony, shows that the patentee never contemplated that his drier would also act as a smoothing or pressing device, and, aside from this, I do not think there was a disclosure in said patent of the heating'means in suit or as constructed that it was capable of drying and pressing the seam by sinmltaneous application of the tube or channel. The Eudington appliance paient possesses merit, and the application of the doctrine of a fair range of equivalents is thought justified. Again it is claimed that the essence of the invention simply consisted in dispensing with the wheels and rollers for pressing the tobacco filler. There is a wide difference of opinion between counsel as to the construction of the claims and as to the manner in which the defendants’ machines operate. As the specification and claims emphasize the means by which the oval form of the cigarette is attained — i. e., the concave smoother, the expansion of the tobacco as it travels to the heating cap, the exposure of the seam for ironing, drying, etc — the patent is entitled, I think, to a broader construction than contended by defendants. It certainly is not limited to the substituted means of a feed and barrel guide, and it was shown that the invention was entitled to cover machines which retain rotary agencies for compressing the tobacco. The controversy, therefore, more directly concerns the particular appliances and the process which follow or come after the feeding device. The defendants have endeavored to evade the merits of the invention by introducing into their machine various alterations and changes of form, such alterations being described in letters patent to Lawless, Nos. 779',130 and 779,431, an employe of the defendant the American Tobacco Company; but 1 am satisfied that such alterations and changes of form do not vary the principle of complainant’s combination. The changes and modifications made by the patentee in machines of this-type were not obvious, and as he was the first to make them, the claims must be given a reasonable construction and such range as will preserve to him the fruits of his discovery.</p> <p>The defendants use in their factories two forms of machines, and it is fairly deducible from the evidence that they embody the combinations in suit. Omitting mention of the hopper and rollers for the delivery of the tobacco and the smoothing tongue, the so-called Jordan and Anargyros machines employ the usual endless tape, which carries the filler and wrapping paper through the filler device and thence to a smoothing device, which presses directly on the filler. One edge of the wrapper is turned down while the other is pasted, and then also turned down over the other edge. The cigarette rod in defendants’ machines travels under a so-called “setting channel,” and from thence under a heated iron rib, which is constructed to press directly on the moist seam, closing it. and to smooth and dry it. The distinction between the heating cap and the ironing rib is that the heating cap is molded to embrace the cigarette, and to iron it on all sides as it moves in the channel, while the' ironing rib or bar of defendants’ structure presses against the wrapper and seam as the cigarette rod emerges from the setting channel. Such channel is thought to perform the same function as the groove or guide in the Luding-tou neater cap. Both forms operate to heat or dry and smooth the cigarette rod. Moreover, there is some merit in the suggestion of Mr. Crane, expert for complainant, that the defendants’ cigarette rod while in contact with the ironing rib is slightly compressed at the top of the pulley, which is used at the Anargyros factory, and which apparently supports the cigarette rod at that point. Nor is there anything in the feature of the spring pressure (out¡lined in defendants’ machine to cause the court to believe that the essential elements of complainant’s invention has been departed from. This was also an alteration of form injected into the machine to escape, if possible, the charge of infringement. Such changes and alterations were the equivalents for the concave smoother, fillers, and heating cap of the complainant’s machine. The defendants cannot he permitted to avoid infringement by Joining out one element of the combination and substituting another, which substantially assists to attain the precise results of the claims in suit. There is. of course, no restriction on their using the old elements of the Ludington combination, but to use such elements in combination with those that are new renders them liable for appropriation. In view of the scope to which I think the claims in controversy are entitled, it is unnecessary to discuss them with more particularity, or to point out at greater length the infringing details of defendants’ machines.</p> <p>The Process Patent.</p> <p>It will be sufficient to set forth claim 3 of patent No. 711,987. which describes and specifies the steps of the process. It reads: “(3) The process of making and finishing a continuous cigarette rod, which consists in forming a continuous filler, securing a wrapper thereon with a pasted seam, continuously propelling the cigarette rod thus formed, and simultaneously applying heat and a smoothing pressure to the seam upon the moving cigarette, to dry and smooth the same.” Claims 1 and 2 are substantially the same as claim 3, save that in the first it is slated filial the pressing iron is to permanently sot the cigarette rod, and in the second to permanently set the continuous filler and wrapper into desired shape. Claims 4 and 5 include the additional feature of gradually increasing the pressure on the cigarette rod. It is shown that the increasing pressure comes from the expansion of the cigarette rod after the wrapping paper has been pasted, and as the filler moves under the tapered heating cap, where it contacts with the heated surface. The essence of the invention consists of the required steps to propel the cigarette rod eon-(iuuously, and to simultaneously smooth, press, and set the seam by the heating and pressing instrumentalities. By following the process the seam of the cigarette rod becomes permanent and without wrinkles therein. This was the accomplishment of a new and useful result. The law is well settled that, even though the elements of the process claim were not new, if the combination was new, and a new and useful result was produced, the patentee is entitled to the protection of his process. Cochrane v. Deener, 04 U. S. 780, 24 L. Ed. 139. Expanded Metal Co. v. Bradford, 214 U. S. 366, 29 Sup. Ct. 652, 53 L. Ed. 1034. It will be understood from what has heretofore been- said in connection with the appliance patent that in complainant’s preferred method a heating channel surrounds the cigarette, while the defendants use a heated i'ib or bar, which, in my judgment, is the equivalent of complainant’s heating cap for drying and smoothing the moist seam. The claims are entitled to a construction of sufficient scope as to include as an essential step in the process the specific means adapted to simultaneously iron and press the seam. The patents to Denny and to White, upon which defendants lay stress to anticipate or limit the claims, relate to devices in a different art from that under consideration; but, even with such structures before him, I think the patentee made a step forward, and solved the problem of simultaneously heating and pressing a damp seam on the cigarette rod, as a result of which the appearance of the cigarette was improved and the seam securely sealed. While in the light of the Ludington disclosures the skilled mechanic might now be able to modify and make changes in the prior art to successfully make oval cigarettes and permanently set the seam, yet at this stage of the art it cannot be claimed that the invention is devoid of patentable invention, for the prior patents are only entitled to consideration for what they actually made known to the public. Badische Anilin & Soda Fabrik v. Kalle & Go. 104 Fed. 802, 44 C. G. A. 201. In view of the construction herein given the claims, no question of infringement arises.</p> <p>In my judgment Ludington made a substantial mechanical improvement in the continuous cigarette making art, and, his patent for achieving the result being valid, it follows that the complainant is entitled to a decree, with costs, as prayed for in the bill.</p> <p>Appeal from a decree of the Circuit Court, Southern District of New York, in favor of the complainant in a suit to restrain the alleged infringement of two patents. The first patent (the machine patent) is No. 711,986, and was granted on October 28, 1902, to Frank J. Ludington, assignor of the complainant, for an improvement in Cigarette forming, wrapping, and ironing appliances. The second patent (the process patent) is No. 711,987, and -was granted upon the same day to the same inventor for an improvement in the process of making cigarettes from continuous cigarette rods. Claims 1, 2, 3, 12. 13. 18, 19, 21. and 22 of the machine patent (No. 711,980) were in suit, and were held by the Circuit Court to be valid and infringed. All of the claims of the process patent (No. 711.987) -were' in issue, and were likewise held valid and infringed. Claim 1 is the broadest claim in the machine patent. All the other claims contain elements not to be found in that claim. In respect of the defendants’ process, claim 3 is. the broadest claim in the process patent. Claims 4 and 5 of that patent require an additional step, and claims 1 and 2 specify a different purpose.</p>

Appeal'from the Circuit Court of the United States for the Eastern District of Pennsylvania. Suit in equity by the Standard Machine Company against Rambo & Regar, Incorporated. Decree (181 bed. 157) for defendant, and complainant appeals.

Suit in equity by the Victor Talking Machine Company and another against William H. Hoschke and the Sonora Phonograph Company. Decree for defendants (188 Fed. 330), and complainants appeal. This cause comes here upon appeal from a decree of the Circuit Court dismissing the bill in a suit for infringement of United States patent No. 534,543, issued February 19, 1895, to Emil -Berliner, for a gramophone.

In Equity. Suit by the Victor Talking Machine Company and another against the Sonora Phonograph Company. On motion to modify injunction. Upon a final hearing in this cause decree was entered the 15th day of December, 1910, 183 Fed. 849. The suit is upon Berliner patent, No. 534,543, •which by its terms expires on the 19th of February, 1912.

<p>In Equity. . Suit by the Union Carbide Company against the American Carbolite Company. On motion for preliminary injunction.</p>

<p>In Equity. Suits by the Motion Picture Patents Company against the Yankee Film Company and against William Steiner. On motion to punish defendants for contempt.</p>

In the matter of the receivership of the New York City Railway Company and the Metropolitan Street Railway Company. On exceptions to report of special master, disallowing claim of the Metropolitan Express Company.

<p>In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and another. In the matter of claim of the National Conduit & Cable Company. On exceptions to report of special master.</p> <p>The following is the report of Special Master W. L. Turner:</p> <p>On May 10, 1907, the claimant proposed to defendant named to manufacture and' deliver certain transmission cables at prices stated. On May 11, 1907, the proposal was accepted, with modifications assented to on May 13. 1907, which were that the railway company reserved the right to specify be-1" tween May 11, 1907, and July 1, 1908, the length of cable it desired to have manufactured, and the point of installation, and that deliveries might be deferred accordingly, if it so elected. No payment was to be made for cable not delivered under such circumstances, and it agreed to pay 90 per cent, of the contract price for all cable delivered in accordance with instructions within 30 days alter delivery.</p> <p>Receivers were appointed of the railway company on September 24, 1907. The copper and lead required in the manufacture of the cable was purchased by claimant prior to such appointment; but it: is conceded by the claimant that there was no breach of the contract until the appointment of the receivers. These elected on January 17, 1908, not to adopt it, and refused to specify in accordance with its terms. The parties agreed that on the market price of cable specified in the contract the claimant would have sustained on Sep-timber 24, 1907, a loss of $44,232.20, and on January 17, 1908, based on tbe then market price, damage would be $64,974.20.</p> <p>This is the ease of an executory contract not broken at the date of the appointment of the receivers, and, as it is not to be distinguished from the claim of the Metropolitan Express Company against the Metropolitan receivership (188 Fed. 339), to the memorandum as to which counsel is referred, the same disposition will be made of it. As'he has cited a case not relied upon therein, it may be proper to point out that in that case (In re Stern, 116 Fed. 604, 54 0. C. A. 60), as the opinion of Judge Townsend shows, the executory contracts there involved had been broken before the petition had been filed, and that their breach furnished the reason that the creditors had for forcing the debtor into bankruptcy.</p> <p>The receiver may file and serve a proposed report on March 15, 1911, embodying findings and conclusions accordingly; the claimant to have five days thereafter to file its objections thereto.</p>

<p>Petition by Heinrich Zentner for habeas corpus to obtain his discharge from custody and extradition proceedings.</p>

Habeas corpus on petition of Chin Ying Hon to obtain the release of his alleged minor son, Jem Yuen, from custody under deportation warrant.

In Equity. Suit by George W. Norton, as executor and trustee of the estate of George W. Norton, deceased, against Robert W. White-side and others.

<p>Condemnation proceedings on petition of the Oregon-Washington Railroad & Navigation Company, substituted for the North Coast Railroad Company, against Randolph A. Wilkinson, the St. Paul, Minneapolis & Manitoba Railway Company, the Great Northern Railway Company, and the Spokane, Portland & Seattle Railway Company, in-tervener.</p>

In Equity. Suit by Edward Slade against the Massachusetts Coal & Power Company. Application by a receiver for an injunction restraining Harmon Carlson and another from selling certain land belonging to defendant company under mortgage foreclosure.

In Equity. Suit by the St. Louis Southwestern Railway Company against the Stuttgart. & Rice Belt Railroad Company and others, to restrain defendant railroad company from crossing complainant’s railroad at a specified point until there could be a hearing on said defendant’s petition for condemnation of a right to cross at such place. On motion to dissolve a temporary injunction.

<p>1. Dismissal and Nonsuit (§ 63*) — Motion—Contents—Grounds.</p> <p>A motion to dismiss should be based on grounds appearing from the writ and declaration, and cannot in strictness set up additional facts of record in the court.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 107; Dee. Dig. § 53.*]</p> <p>2. Bankruptcy (§ 387*) — Composition—Confirmation—Effect—“Dismissed.”</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 12e, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427) declares that on confirmation of a composition the consideration shall be distributed as the judge shall direct and the case dismissed. Held, that “dismissed” as so used meant only that the court should proceed no further, with the administration of the estate under the bankruptcy act, and not that no further proceedings in the case should be taken to terminate the same, and hence did not deprive the referee of jurisdiction conferred by section 22a(l) to thereafter pass on the accounts of the trustee, and, after allowing the same, direct, that the trustee be discharged and the estate closed.</p> <p>[Ed. Note. — For other-cases, see Bankruptcy, Cent. Dig. § 616; Dec. Dig. § 387.*</p> <p>For other definitions, see Wdrds and Phrases, vol. 3, pp. 2104, 2105.]</p> <p>3. Bankruptcy (§ 373*) — Discharge of Trustee — Effect — Diability on Bond.</p> <p>Where after confirmation of a bankrupt’s composition, the referee entertained an application to settle and allow the trustee’s account, and allowed the same and discharged the trustee without any objection or appeal by the bankrupt, he could not thereafter disregard or dispute such allowance in a suit on the trustee’s bond to recover the amount in his hands at the time the composition was confirmed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 373.*]</p> <p>4. Bankruptcy (§ 373*) — Trustee’s Account — Allowance—Conclusiveness.</p> <p>Where a bankrupt did not object to the allowance of the trustee’s account showing that $895 in the trustee’s hands at the date of confirmation of a composition had been lawfully expended during the bankruptcy administration, and did not appeal from the order allowing ft, he could not successfully claim in a. suit on the trustee's bond that the amount so expended by the trustee was the bankrupt’s property, and should have been returned to him on a confirmation of the composition.</p> <p>I Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 073.*]</p> <p>5. Bankruptcy (§ STS*) — Action on Trustee’s Bond — Prerequisites — Accounting.</p> <p>Where a bankrupt’s trustee had not absconded without settling his accounts, but his account rendered had been allowed, showing the expenditure of the amount demanded by the bankrupt in the administration of the estate, an order directing that the trustee should account, was a. necessary prerequisite to an action on his bond to recover property belonging to the estate. *</p> <p>[Ed. Note.- For other cases, see Bankruptcy, Dec. Dig. § 373.*]</p>

<p>Actions by the United States against Park Land Company, and against Nichols-Chisholm Lumber Company and others, and against W. B. Davis. On exceptions to defendants’ answer.</p>

<p>Action by Jane Pel-ata-yakot against the United States and Mary Types. On demurrer to bill.</p>

<p>1. Bankruptcy (§ 330*)~1Claims — Sufficiency.</p> <p>Where at the time an executrix became a bankrupt she was holding the share of her husband’s estate bequeathed to his daughter, to be paid to tbe daughter when she became 30 years of age, such time not having arrived, a claim filed by the daughter’s guardian, charging that the -bankrupt was indebted for the daughter’s share of her father’s estate in the sum of ?20,650, but which stated no facts to show that the claim was based on negligence of the bankrupt in managing the funds, was insufficient to justify an allowance of the claim on the theory that funds belonging to the daughter, or in which she was entitled to share, had been lost by the bankrupt’s negligence.</p> <p>LKd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 330.*]</p> <p>2. Bankruptcy (§ 320*) — Claims—Liquidation.</p> <p>Where a bankrupt was entitled to the sole management and control of the residue of the estate of which she was executrix, including the share bequeathed to testator’s daughter, until she became 30 years of age, which time had not arrived when the executrix became bankrupt, the daughter being entitled on attaining that age to an equal share of the residue of the estate, a claim filed against the bankrupt’s estate for the daughter’s share so bequeathed, on the theory that the bankrupt had been guilty of negligence and mismanagement, was unliquidated, and could only be allowed after liquidation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 320.*]</p>

• In the matter of bankruptcy proceedings of E. H. Gay and others. On petition to review a referee’s order denying priority to the claim of George E. Stetson.

<p>Bankruptcy (§ 409*> — Discharge—Objections—Omission to Keep Books.</p> <p>Where the bankrupt sold pianos, some for cash and others on lease or conditional sale, and his books showed all receipts from customers who had taken pianos under leases or conditional sales but not receipts from, purchasers for cash, though from his stockbook and checkbook all money taken in or expended except $965 was fully accounted for, and he testified that he did not show receipts for pianos sold for cash because he did not want his salesmen to know that he was selling pianos at cost for cash, the facts did not show that he failed to keep proper books with intent to conceal his financial condition, under the rule that such concealment can exist only when it obtains with reference to persons entitled to know the facts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p>

<p>1. Courts (§ 866*) — Appeal—Supersedeas—Discretion op Court.</p> <p>It is within tlie discretion of the United States court in the trial of a criminal case to grant or refuse a supersedeas, when informed by counsel for a convicted person that he purposed to sue out a writ of error or take an appeal.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 937; Dee. Dig. § 856.*]</p> <p>2. Courts (§ 853*) — New Trial — Practice nsr Federal Court.</p> <p>It is within the discretion of the United States judge in a criminal case to refuse a new trial, though under the state practice of Georgia he would have been obliged to entertain the motion therefor.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. § 933; Dec. Dig. § 353.*]</p> <p>3. Courts (§ 356*): — Appeal—Review—Discretion op Trial Court.</p> <p>The discretion of the United 'States judge as to the grant of a new trial in a criminal case is not reviewable.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. § 356.*]</p>

<p>Application of F. B. Counort for a writ of habeas corpus.</p>

<p>Removal or Causes (§ 102*) — Diverse Citizenship — Aliens—Jurisdiction.</p> <p>Where actions were instituted in a state court of New York, by an alien residing there, against a corporation organized and residing in New Jersey, and were removed by defendant to the Circuit Court for the Southern District of New York, the federal court's jurisdiction was doubtful, and the cases for that reason would be remanded.</p> <p>[Ed. Note.- — For other eases, see Removal of Causes, Cent. Dig. g 220; Dec. Dig. § 102.*]</p>

<p>1. Factors (§ 1*) — Definition—“Selling Agent” — “Commission Merchant.”</p> <p>A “selling agent,” “factor,” or “commission merchant” is one who sells goods which another person has delivered to him for that purpose and receives compensation for his services by a commission or otherwise.</p> <p>[Ed. Note. — For other cases, see Factors. Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1305; vol. 3, pp. 2040-2612; vol. 8, p. 7660.]</p> <p>2. Bankruptcy (§ 303*) — Preference—Recovery—Evidence of Lien.</p> <p>In a suit to recover a preferential transfer of property by a bankrupt, in which the defendant claimed a factor's lien, evidence held not to show that defendant or any one in his behalf was ever in the physical possession, custody, and control of the property.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>3. Factors (§ 47*) — Lien—Possession.</p> <p>It Is absolutely essential to the validity of a factor’s lien for advances that the property consigned be delivered by the consignor to consignee.</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. §§ 65-71; Dec. Dig. § 47.*]</p> <p>4. Bankruptcy (§ 188*) — Prefjerences—I1eco\ eey — Evidence—Liens.</p> <p>In a suit to recover a preferential transfer of property by a bankrupt, in which defendant claimed a factor's lien for advances made to the bankrupt, it appeared that the bankrupt and defendant had entered into a contract by which all sales of consigned goods should be in the name of defendant and invoiced to the purchasers in the name of defendant followed by the name of the bankrupt corporation, and, while defendant made no sales, the goods were invoiced to customers as “bought of J. A. T.,” defendant, with the name of the bankrupt corporation on a lower line. The contract provided that certain accounts, where advances had been made on the goods about to be sold, should pass to defendant. Held that, in cases where the purchaser was notified by the invoice that he owed the money to defendant, this was an assignment of that account, and, where made before defendant had reasonable cause to believe that a preference was intended, was not obnoxious to the provisions of the bankrupt act.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dec. Dig. I 188.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland, át Baltimore.</p> <p>Suit in equity by the Baker-Whiteley Coal Company against the Baltimore & Ohio'Railroad Company. Decree for defendant (176 Fed. 632), and complainant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Action by Nell Moore Wilson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Suit in equity by the United States against Albert Whitmire and John R. Greenlees. From an order appointing a receiver, the United States appeal.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Zindil Corenman was convicted of a criminal offense, and brings error.</p>

Petition for Revision and Appeal from the District Court of the United States for the Middle District of Pennsylvania. In the matter of the bankruptcy proceedings of the Dr. Voorhees Awning Hood Co. On petition to revise an order increasing the amount allowed on a claim presented by Samuel H. Voorhees (187 Fed. 611).

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by the First National Bank of Mercer, Pa., against the Citizens’ National Bank of Norfolk, Neb., and others. Judgment for defendants aiid plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by the American Graphophone Company against the Victor Talking Machine Company and Eldridge R. Johnson. Decree (188 Fed. 431) for defendants, and complainant appeals.</p>

<p>In Equity. Suit by the American Graphophone Company against the Victor Talking Machine Company and Eklridge R. Johnson. On demurrer to bill.</p>

<p>In Equity. Suit by the Walker Patent Pivoted Bin Company against the Bernard Gloekler Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the Schmertz Wire Glass Company and the Mississippi Wire Glass Company against the Western Glass Company.</p>

<p>Patents (§ 328*) — Anticipation—Means nob Producing Aebtai, Gymnastic Performances.</p> <p>The Williams patent, No. 847,139, for means for producing aerial gymnastic performances, hold void on evidence of prior public use of substantially the same combination of elements, all of which were old.</p>

In Equity. Bill by the Sanitary Metal Tile Company against the New York Metal Ceiling Company for infringement of letters Patent No. 851,579, granted to Whitney and Weyand April 23, 1907, for a facing for walls and other surfaces, to which defendant demurred on the ground that the patent on its face showed no patentable invention.

<p>1. Patents (§ 285*) — Causes of Action — Joinder—Infringement of Patent —Unfair Competition.</p> <p>Where there was requisite diversity of citizenship sufficient to give a federal court jurisdiction, it was proper to join in one bill a cause of action for Infringement of a design patent and for unfair competition in, trade.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 445: Dec. Dig. { 285.*]</p> <p>2. Equity (§ 149*) — Mudtifabiousness—Complainants — Interest — Demtjb-beb.</p> <p>Possible lack of title or interest in the subject-matter of a suit, so far as one of the complainants is concerned, which could not injuriously affect the defense, cannot be determined on demurrer to the bill on the ground of multifariousness of parties.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 149.*]</p>

In Equity. Suit by Joseph Mayer, as trustee of the property of George O. Buhn, Sr., bankrupt, and as trustee of the property of George O. Buhn, Jr., and Edward H. Buhn, doing business as Buhn Bros., bankrupts, against Ceorge F. Cohrs. On demurrer to bill.

In the matter of bankruptcy proceedings of John Matthews, incorporated. Claim of Knickerbocker Trust Company. On motion to modify an injunction so far as to grant the trust company leave to sell certain debenture bonds issued by the bankrupt as collateral for the bankrupt’s note.

<p>Trade-Marks and Trade-Names (§ 85*) — Infringement—Right to Relief.</p> <p>Complainant is not entitled to enjoin use toy a competitor of sueli names as “Oil of Pine,” “Virgin Oil of Pine (Pure),” or “Virgin Oil of-Pine Compound (Pure),” though complainant’s use of the names is original and fanciful as applied to his compound, where he is in the position of either perpetrating a fraud on the public by falsely claiming the presence of oil of pine as an ingredient, or claiming a trade-name in a mere proper pharmaceutical designation of the drug he seeks to protect.</p> <p>[Ed. Nóte. — Por other cases, see Trade-Blarks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*]</p>

Action by Rabian B. Dodds against the Palmer Mountain Tunnel Company. On motion to dissolve a restraining order against the sheriff of Okanogan county restraining an execution sale under mortgage foreclosure.

<p>Aliens (§ 64*) — IIeeortatiojj—Wabkants.</p> <p>A deportation warrant charged that the alien was a member of the excluded classes, in that he was a contract laborer and had been induced to migrate by an oiler or promise of employment under an agreement to perform manual labor in the United States. Held, that the charge was sufficiently set forth in the warrant.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*</p> <p>Importation of contract labor, see note to United States v. Parsons, 66 C. C. A. 133.]</p>

<p>1. Post Office (§ 81*) — Nonmailable Matter — Statutes.</p> <p>Pen. Code § 211 (U. S. Comp. St. Supp. 1909, p. 1453), prohibits the mailing of every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, or other publication. Held, that such act was not limited to publications and writings relating to sexuality, but extended to other publications and communications which were within the definition of the term “filthy.”</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. § 31.*]</p> <p>2. Post Office (§ 50*) — Nonmailable Matter — Filthy Publication — Question for Jury.</p> <p>In a prosecution for mailing an alleged nonmailable letter, whether the letter was filthy, within the ordinary acceptance of that term as used in Pen. Code, § 211 (U. S. Comp. St. Supp. 1909, p. 1453). held for the jury.</p> <p>[Ed. Note. — For other eases, see Post Office, Cent. Dig. §§ 87-89; Dec. Dig. § 50.*</p> <p>Nonmailable matter, see note to Timmons y. United States, 30 C. C. A. 79.]</p>

In the matter of bankruptcy proceedings of Morris Blond. On petition to review a referee's order disallowing the claim of the James A. Houston Company.

Information by the United States against One Car Road of Corno Horse and Mule Feed. This is an information exhibited against one car load of “Corno Horse and Mule Feed,” praying a seizure and condemnation for confiscation, under section 10 of the food and drugs act approved June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 771 [U. S. Comp. St. Supp. 1009, p. 1193]).

<p>At Raw. Action by the Fisher Hydraulic Stone & Machinery Company against Henry P. Warner on written contract to recover damages for breach of a contract to purchase certain concrete machinery and fittings at the price of $5,630, less $500, paid on the execution of the contract.</p>

<p>Libel by the United States against One Hundred Barrels of Vinegar.</p>

<p>1. Bankbuptcy (§ 161.*) — Diens—Judgment—Recovery—1Time.</p> <p>Where a judgment recovered against a bankrupt,,and claimed to be a lien on the bankrupt’s remainder interest in certain real estate was entered more than four months before the filing of the bankruptcy petition, it was not affected by Bankr. Act July 1, 1898, c. 541, § 67, B0 ‘Stat. 564 (TJ. S. Comp. St. 1901, p. 3449), vacating liens acquired within that period, though the bankruptcy court had jurisdiction to control the disposition of the property subject to the lien in the interest on the entire estate.</p> <p>[Ed. Note. — For other cases; see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 161.*]</p> <p>2. Bankruptcy (§ 206*) — Assets—Remainder Interest in Land — Sale.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 (U. S. Comp. St. 1901, p. 3421), regulating the jurisdiction of the bankruptcy court, such court has jurisdiction to sell a remainder interest of the bankrupt in certain real property, and pay off a judgment lien thereon if the proceeds he sufficient for that purpose, in order to preserve the equity in the property for the benefit of general creditors, but the judgment lien and all rights accruing therefrom must be respected.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 206.*]</p> <p>3. Bankruptcy (§ 217*) — Property Subject to Diens — Sale—Stay—Vacation.</p> <p>Where a bankrupt owned a remainder interest in certain real property in the hands of trustees subject to a valid judgment lien on the bankrupt’s interest, and it did hot appear that the trustee could obtain a sufficient amount for the bankrupt’s rights in the estate in remainder to justify a direction that the trustee attempt to sell such rights and pay off the undisputed lien of the judgment creditor, a stay precluding the creditor from proceeding to enforce the judgment against such remainder would be vacated subject to the right of the trustee to join in any proceeding taken by the creditor, or to protect any equity which might arise.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 217.*]</p>

<p>1. BANKRUPTCY (§ 415*)-COURTS OF BANKRUPTCY — APPLICATION POR DISCHARGE — REFEREE—Jurisdiction.</p> <p>Under Bankr. Act July 1, 1898, c. 541, §' 14, 30 Stat. 550 (U. S. Comp. St. 1901, ]). 3427) providing that an application for a bankrupt’s discharge shall be filed in the court of bankruptcy in which the proceedings are pending, and section 1, subd. 7, defining courts of bankruptcy as the courts in which the proceedings are pending and may include the referee, a referee has no jurisdiction to hear applications for discharge except on reference to him as special master as provided by section 38, subd. 4, and general order 12, subd. 3 (89 Fed. vii, 32 O. C. A. xvi).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 698-728; Dec. Dig. § 415.*]</p> <p>2. Bankruptcy (§ 415*) — Application for Discharge — Nature of Proceedings.</p> <p>An application for a bankrupt’s discharge is in the nature of a separate proceeding from the original cause, so that the reference of the original cause confers no jurisdiction on the referee over the application for dischargé.</p> <p>[Ed. Note.- — For other eases, see Bankruptcy, Cent. Dig. §§ 698-728; Dec. Dig. § 415.*]</p> <p>3. Bankruptcy (§ 411*) — Application for Discharge — Filing.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427) providing that an application for a bankrupt’s discharge shall be filed in a court of bankruptcy, such application must be filed with the clerk of court and not with the referee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 692--708; Dec. Dig. § 411.*]</p> <p>On Application for Rehearing.</p> <p>4. Bankruptcy (§ 411*) — Application por Discharge — Filing—Time.</p> <p>Where an application for a bankrupt’s discharge, though erroneously filed with the referee instead of the clerk, was, with the other proceedings thereon before the referee, filed with the clerk within a year after adjudication, and no objection had been taken by the objecting creditor to the improper original filing with the referee, the petition would be regarded as properly filed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 692-70S; Dec. Dig. § 411.*]</p> <p>5. Bankruptcy (§ 411*) — Application fob Discharge — Verification — “Pleading.”</p> <p>An application for a bankrupt’s discharge should be considered a pleading within Bankr. Act July 1, 1898, c. 541, § 18c, 30 Stat. 551 (ü. S. Comp. St. 1901, p. 3429), providing that all pleadings setting up matters of fact shall be verified under oatli.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 692-70S; Dec. Dig. § 411.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5409-5411; vol. 8, p. 7756.]</p> <p>6. Bankruptcy (§ 411*) — Application f,or Discharge — Verification.</p> <p>Where no objection to want of verification of a petition for a bankrupt’s discharge was made until after the evidence on the application was heard before the referee, it was too late.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 692-70S: Dec. Dig. § 411.*]</p> <p>7. Bankruptcy (§ 407*) — Discharge—Objections—Purpose of Proceedings.</p> <p>That a bankruptcy petition was filed to defeat the claims of a judgment of an objecting creditor- against the bankrupt was no ground for denying a discharge.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-761; Dee. Dig § 407.*]</p> <p>8. Bankruptcy (§ 414*) — Discharge—Objections—Concealed Assets — Evidence.</p> <p>Evidence held insufficient to warrant a denial of a bankrupt’s discharge on the ground that he had'concealed an interest in property, and on liis examination had falsely testified that he had no property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p> <p>9. Bankruptcy (§ 414*) — Discharge—Concealment of Assets — False Oath.</p> <p>Objection to a bankrupt’s discharge because of fraudulent concealment of assets or false oath must be established by clear and convincing proof, and is not the subject of mere suspicion of inference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dee. Dig. § 414.*]</p>

<p>The Philadelphia & Reading Railway Company was indicted for violation of the Elkins act.</p>

<p>At Raw. Action by Josephine M. Dodge, as administratrix of the estate of James E. Dodge, deceased, against the Town of North Hudson. On demurrer to complaint for want of facts.</p>

In Equity. Bill by Howard Hazlett, as administrator of Augustus Pollack, deceased, against the Pollack Stogie Company and others to restrain alleged infringement of complainant’s trade-marks and for unfair competition.

At Law. Action by Chester U. Hill against the Pullman Company. Verdict for plaintiff. On motion for new trial and for judgment non obstante veredicto.

In Bankruptcy. In the matter of bankruptcy proceedings of Geh-ris-Herbine Company. On certificate of referee for review of an order denying petition to reclaim property.

<p>At Law. Action by Victor Odhner against the Northern Pacific Railway Company. Motion to remand.</p>

<p>In Equity. Bill by Walter Montgomery Jackson against Horace Everett Hooper. On motion to remand to state court.</p>

In Equity. Bill by Dan Danciger and others against S. W. Stone and others. On demurrer to complainants’’application for temporary application and temporary injunction.

■ In Equity. Bill by Cornelia A. Janies and another against the City Investing Company and others. Heard on amended bill and special demurrer thereto.

<p>At Law. Action by Edgar E. Campbell against the Spokane & Inland Electric Railroad Company. On exceptions to the complaint.</p>

<p>Application by Max Wolf fo.r naturalization.</p>

<p>In the matter of bankruptcy proceedings of the Salvator Brewing Company. On petition of John H. Meyer to review a referee’s order denying a motion for leave to amend proof of claim.</p>

<p>Philip Waldman and others were indicted for conspiracy to induce a bankrupt corporation to knowingly conceal its assets from its creditors, and they demur.</p>

<p>In the matter of bankruptcy proceedings of Fannie Betts Burtis.</p>

<p>1. Bankruptcy (§ 236*) — Examination op Bankrupt — Effect of Adjournment — Further Examination.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 7 (9), 30 Stat. 548 (U. S. Comp. St. 1901, p. 3425), providing that a bankrupt, wlien present at tiie first meeting of Ms creditors and at such other times as the court shall order, will submit to an examination, and under section 21a, providing that a court of bankruptcy may require any designated person, including the bankrupt and his wife, to be examined, it is intended to require the bankrupt to submit freely to examination, and applications may be granted at any time before final disposition of the ease, and the fact that an adjournment at an examination was without day does not prevent granting of an application for further examination.</p> <p>[Ed. Note. — Fpr other cases, see Bankruptcy, Dec. Dig. § 236.*]</p> <p>2. Bankruptcy (§ 235*) — Examination of Bankrupt — Form of Application.</p> <p>The application of a trustee to be allowed an examination of a bankrupt to ascertain whether he had made a full disclosure of assets need not set forth the nature and character of the testimony intended to be adduced.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 235.*]</p>

In Equity. Suits by the S. F. Myers Company, complainant, against Arthur W. Tuttle, defendant, and by Arthur W. Tuttle, cross-complainant, against the S. F. Myers Company, cross-defendant. Application by the S. F. Myers Company to enjoin Tuttle from doing business under its name, and motion by Tuttle to restrain the S. F. A Iyer s Company from interfering with the business which he is conducting under such name.

<p>Bankruptcy (§ 140*) — Saxe of Property — Application—Forged Bills on Lading- — Delivery oe Property Under Genuine Law.</p> <p>Bankrupts, having sold a quantity of cotton through their broker to various Italian spinners, forged certain bills of lading purporting to show shipment of the entire quantity to be carried to New Orleans and thence to Genoa by the line specified in the contract, consigned to the shippers’ order, with instructions to notify the broker. They then drew drafts for the value of the cotton at the price for which it had been sold, and annexed the fraudulent bills of lading, together with the insurance certificates and invoices, the whole apparently in strict conformity to the contract, discounted the drafts, and received the money. The spinners ultimately paid the drafts. More than two months after the time the cotton should have been delivered under the contract, the bankrupts did ship an identical quantity of cotton, consigned according to the forged bills, and after obtaining bills of lading for this cotton held the same in their hands, but, before the cotton had cleared the port, bankruptcy intervened, and a quantity of it was claimed by the receivers from the steamship on which it had been placed. Held that, the contracts of sale being valid, they were fulfilled and became executed when the cotton was actually delivered to the carriers, the stipulations as to time of delivery, time and maimer of payment being accidental merely, and that the bankrupts and their trustee were estopped to deny that the cotton shipped belonged to the buyers.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>In Equity. Suit by Edmund A. Vanderbilt against Lawrence R. Kerr and another. On motion to remand to the New York Supreme Court, County of New York.</p>

<p>1. Contracts (§ 332*) — Breach— Pleading.</p> <p>A complaint charging that plaintiff and defendants contracted that plaintiff should do certain work, for which it was to receive a specified price, and was to do certain other work for a reasonable compensation, that plaintiff performed all the agreements on its part to be performed, so far as it was possible to perform them, and was ready and willing to perform all its agreements under the contract, but was prevented by the defendants without just reason, who by so doing breached the contract, stated a cause of action.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. § 332. *1</p> <p>2. Action (§ 38*) — Jotnder—Tort and Contract.</p> <p>Where a complaint for breach of contract alleged that plaintiff was to furnish labor, materials, tools, and appliances in the construction of a certain building at agreed and reasonable prices, and that after plaintiff had performed a part of the work defendants hrpke the contract by preventing plaintiff from proceeding without just reason, and converted to Ms own use plaintiffs materials and appliances, the complaint was not demurrable because of joinder oí a cause of action for breach of contract and for tort in a single count.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]</p>

In the matter of application for extradition of Roberto Urzua, alias Deinhart. Habeas corpus and certiorari to review the action of the United States commissioner in holding petitioner for extradition to Mexico on charge of murder.

<p>Customs Duties (§ 133*) — Wrongful Importation — Forfeiture—Limitation —“Concealment.”</p> <p>H., in January 1906, purchased a violin in London, to be delivered in New York or Boston free of all expense. It was delivered shortly thereafter without duty being paid thereon. H. thereafter habitually kept it in his drawing-room where it was used, displayed and admired by various artists at Sunday afternoon concerts held by H. It was never absent but always present in the house of H., though the revenue officers acquired no information concerning its wrongful importation until July, 1910. Held, that such lack of information by government officers, and the fact that H. knew or had reason to believe the instrument had been imported without paying duty, did not constitute “concealment” so as to bar limitations prescribed by Act Cong. June 22, 1S74, c. 391, § 22, IS Stat. 190 (U. S. Comp. St. 1901, p. 2023), requiring an action to forfeit merchandise unlawfully imported, within three years, provided that the timo of the absence from the United States or concealment of property shall not be a part of the period of limitation.</p> <p>[Ed. Note. — For oilier cases, see Customs Duties, Dec. Dig. § 133.*</p> <p>For other definitions, see Words and Phrases, yol. 2, pp. 1377-1384.1</p>

<p>Action by Henry F. Kaufman against I. Rheinstrom Sons Company.</p>

Suit in equity by the United States against the Wilson Coal Company, Watson Allen and Jane Doe Allen, his wife, Helen Pack Wilson, and the Sterling Coal Company. Same against the Wilson Coal Company, Watson Allen and Jane Doe Allen, his wife, Minn Marie Wilson, Virgil R. Wilson and Malvina Benton Wilson, his wife, Helen Pack Wilson, Sterling Coal Company, and Medardo Garcia and Charles McGinni. Decrees for complainant, and defendant Wilson Coal Company brings error.

Actions at law by the Knickerbocker Trust Company against Maria A. Evans, executrix, against Stephen M. Weld, against Theophilus Parsons, against Albert S. Bigelow, against William M. Conant, and against Russell S. Codman. Judgment for defendant in each case, and plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Suit in equity by John Conway, Amelia Simpers, E. L. Dupuy, and M. B. Dupuy against the Owensboro Savings Bank & Trust Company, T. A. Pedley, its receiver, J. N. Alsop, and others. Decree for complainants, and defendant Alsop appeals.</p> <p>The appellees, four in number, all being citizens of states, other than Kentucky, on behalf of themselves and all other creditors of the Owensboro Savings Bank & Trust Company (hereafter called the bank) who might choose to become parties to the suit and contribute to the expense thereof, filed their bill in the court below against the bank, T. A. Pedley, receiver of said bank, and a large number of individual holders of the capital stock of the same, including appellant (the defendants being all citizens of the state of Kentucky), for the purpose of enforcing against the individual defendants the so-called “double liability” imposed by the Kentucky Statutes upon stockholders in banks and trust companies organised under the laws of that state. The suit proceeded to final decree in favor of complainants. The appeal is from so much of the decree as required payment by appellant of the sum of $9,000, being the face value of stock in the bank alleged to be owned by him, with interest thereon from the commencement of this suit. The material facts are these:</p> <p>The Owensboro Savings Bank & Trust Company was organized with a capital stock of $100,000. On December 9, 1905, its capital stock was increased to $200,000,. viz., 2,000 shares of $100 each. On April 24, 1908, the bank having become insolvent, T. Á. Pedley was appointed (and soon afterwards qualified) as receiver of the bank, by order of the circuit court for Davies county, Ky., by virtue of section 616 of the Kentucky Statutes (Russell's St. § 2256) which provides that:</p> <p>“The Secretary of State, upon becoming satisfied that any bank or corporation has become insolvent, or that its capital has become, and is permitted to remain, impaired, or that it has violated any of the provisions of the law under which it was organized, may, with the approval of the Attorney General, apply to the circuit court, or judge thereof in vacation, of the county in which the bank or corporation is located, for the appointment of a receiver, who, under the direction of the court or judge, shall take possession of books, papers, and assets of every description, and all business of the bank or corporation, and collect all collectable debts and demands, and sell or compound, under the order of the court, all bad debts, and sell all the real and personal property of the bank or corporation, on such terms as the court- may direct.”</p> <p>Section 547 of the Kentucky Statutes (Russell’s St. § 2181) provides that:</p> <p>“The stockholders of each corporation shall be liable to creditors for the full amount of the unpaid part of stock subscribed for by them, and no stockholder shall be liable because of being a stockholder, for any sum more than to the amount of the unpaid part of stock held by such stockholder of any company, except stockholders in banks, .trust companies, guaranty companies, investment companies and insurance companies, shall be liable equally and ratably, and not one for the other, for all contracts and liabilities of such corporation to the extent of the amount of their stock at par value, in addition to the amount of such stock. * * * ”</p> <p>Section 595 (section 2184) provides that:</p> <p>“The stockholders of each bank organized under this article shall be individually responsible, equally and ratably, and not one for the other, for all contracts and liabilities of such bank to the extent.of the amount of their stock at par value in addition to the amount of such stock.”</p> <p>The state permits the formation of corporations for the purpose of conducting both a banking and trust company business in counties of the population of that in which the bank in question was located; and under section 613 (section 2253) the stockholders of each trust company are made “individually responsible, equally and ratably, and not one for the other, for all contracts and liabilities of such corporation to the amount of their stock at par value, in addition to the amount of such stock. * * * ”</p> <p>The order oí the state court appointing the receiver directed the latter to “take possession of all the books, papers and assets of every description, and ail the business of the defendant, Owensboro Savings Bank & Trust Company, and collect all collectable debts and demands of said bank and trust company, and sell or compound; under the orders of this court, all bad debts, and sell all the real and personal property of said bank and trust company, on such terms as this court shall direct,” etc. The receiver so appointed, on May 12, 1908, filed his petition in the Davies county circuit court in equity, against the bank and certain of its creditors, the petition containing the statement that, “in order to pay in full creditors of said (bank), including its depositors and other creditors, it will be necessary to resort to the double liability of the stockholders of said (bank) in aid of its property and assets, and he asks to be advised by the court as to his duties with reference to the enforcement of said liability.” lie asked that each of the creditors of the bank be enjoined from asserting claims or liens upon any of its property and from interfering with the administration of his'trust as receiver except in and through the proceeding referred to, and asked the advice and. direction of the court with respect to his duties in the winding up and administration of the affairs of the bank, as well as “for equitable and proper relief.” Injunction was issued accordingly.</p> <p>On May 19, 1908, appellees filed their bill in this cause, alleging (in substance sufficient for the' purposes of this opinion) that they were respectively creditors of the bank as holders of Interest-bearing certificates of deposit therein, amounting in the aggregate to $5,770; alleged the insolvency of the bank, the double liability of its stockholders under section 595 of the Kentucky statutes, the fact that its assets were not more than one-half of its liabilities, and the necessity of assessing each stockholder a sum equal to the par value of his stock for the benefit of the bank’s creditors, such assessment being alleged to be insufficient to pay the liabilities of the bank; alleged the appointment and qualification of Pedley as receiver, under the proceedings in the state court, and the receiver’s possession of “all the assets, property, etc., of the defendant” bank; that the defendant Pedley, as receiver of the bank, “has no authority to enforce said statutory liability as such receiver, either in law or in equity, said statutory liability being a liability enforceable only by the creditors of the defendant” bank; alleged that the creditors of the bank who have a'common and general interest in enforcing the-double liability of stockholders are more than 2,000 in number, and so numerous as to make it impracticable to bring all of them before the court in a reasonable time. The bill asked an order permitting complainants to sue “for and in behalf of all the creditors of defendant bank who will unite with them in this suit,” prayed judgment against the bank upon complainant’s demands; that all other creditors be enjoined from prosecuting any action against the stockholders for their double liability except by uniting in this suit; that “the liability of all stockholders bo fully determined and adjudicated; that each defendant stockholder herein be assessed for the benefit of the creditors herein an amount equal to the par value of his stock”; for judgment against the individual defendants for the amounts of (heir stockholdings; “that all said sums be ordered paid into court; and that same be distributed under order of court, and if necessary a receiver be appointed to collect and enforce the judgment of the court and distribute the funds under order of court,” and for general relief.</p> <p>Upon the filing of this bill, Pedley, the receiver appointed by the state court, was appointed receiver under the bill in this cause “to receive and hold, subject to the orders of the court, all funds collected herein and all funds brought in by reason of said statutory liability herein relied upon and to do all things that may be hereinafter ordered by the court.” The appellant here demurred to the bill: First, for lack of jurisdiction of the subject-matter, on the ground that complainants had an adequate remedy at law and that matters of equitable cognizance are not alleged; second, that the bill relates to several distinct and independent matters in which defendant is not interested; third, that the bill is without equity; and, fourth, that the court is without jurisdiction of the parties, in that the bill does not: show that the parties for whom the complainants are suing are citizens of states other than Kentucky, or that their respective claims exceed $2,000. This demurrer was overruled. Appellant answered, alleging (in substance sufficient for the purposes of this opinion) that he was never the owner of but 10 shares of the capital stock of the bank; that he purchased this block from the bank, as part of its increased capitalization and by reason of false and fraudulent representativas made by the bank’s officers as to the financial condition and solvency of the bank; that he was never the owner of the remaining SO shares of the capital stock on account of which it was sought to charge him; that said 80 shares belonged to one Parrish; that after the failure of the bank he learned of the transfer of said shares to him under an alleged contract therefor, and at once repudiated the same and returned to the receiver the dividends which had been credited to his bank account upon said shares; that, if he ever contracted to.purchase said shares, he was induced to do so by the false and fraudulent' representations of said Parrish as to the value thereof and the responsibility and solvency of the bank. Both blocks of stock were, by the answer, tendered back. The answer set up, in bar of this suit, the appointment of the receiver in the state court, the suit by the latter against appellant and others for the settlement of the affairs of the bank and the collecting in of its property and asset's, the injunction before referred to, and the fact that the complainants had not requested the receiver appointed in the state court to sue for the statutory double liability. The amount of the bank’s indebtedness, shown by the master’s report as proven before him, was $778,-134.85. It appeared by the testimony of the receiver that the assets of the bank would realize gross from $175,000 to $225,000; these figures taking no account of the statutory double liability of stockholders. The final decree required (so far as necessary to be stated here) payments of the statutory liability from a large number of stockholders, as to some of whom the hill was taken as confessed; the decree requiring such payments into the registry of the court or to the receiver, and, in case execution should be issued, payment into the registry of (he court. As already stated, the appellant was required to pay the sum of $9,000 with interest from May 19. 1908, the date of the filing of the bill. By the decree the court reserved full control over all other and further proceedings necessary for the collection and administration of the fund created by said statutory liability.</p>

<p>1. Banks and Banking (§ 49*) — S pookiioldtors -Action to Eneo roe Statutory Double Inability — Defenses.</p> <p>In a suit in equity on behalf of the creditors of an insolvent banking corporation against the stockholders to enforce their double liability, under Ivy. St. § 547 (Russell’s St. § 2131), where a defendant retained his stock for two years, and until after the corporation became insolvent', without objection, it is not a defense that he then brought a suit against the corporation to rescind his subscription on the ground of fraud, nor that, he gave notes for the stock, which are unpaid, and has not received the certificate; nor is he entitled to any reduction of his statutory liability because he paid a premium for the stock.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dee. Dig. § 49.*]</p> <p>2, Courts (§ .‘¡28*) — Jurisdiction op Federal Courts — -Suit Against Stockholders.</p> <p>Under Ky. St. § 547 (Russell’s St. § 2131). which makes stockholders in banks and trust companies “individually responsible, equally and rata-bly, and not one for the other, for all contracts and liabilities of such, corporation to the extent of the amount of their stock at par value in addition to the amount of such stock,” the amount to be recovered on account of the liability of the stockholders of such a corporation being sought to be administered in equity in a suit brought in behalf of all creditors against all stockholders who are within the jurisdiction, and where the amounts due from the corporation to complainants exceed $2,000, and the amounts due from some of the defendants exceed such sum, and the requisite diversity of citizenship exists, such suit may be brought in a federal court, and such court, having acquired jurisdiction generally to administer the trust, may, as ancillary to such jurisdiction, decree against a stockholder, although his liability is less than $2,000, either under an ancillary bill or in the original case.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 328.*</p> <p>Jurisdiction of federal court as affected by state laws, see note to Barling v. Bank of British North America, 1 C. C. A. 513.]</p>

<p>1. Statutes Oj 23S*) — Construction—Legislative Grants.</p> <p>Legislative acts granting franchises to private corporations are to be construed strictly, and Die grantees, take nothing by implication either as against the power making the grant or as against other corporations or individuals.</p> <p>[ Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 319; Dec. Dig. | 288.-]</p> <p>2. Gas (§ 7*) — Gas Companies — Rights in Stheets — Competing Companies —Naturae and Manufactured Gas.</p> <p>Natural gas is not a competitor of manufactured gas in such strict legal sense that a corporation having an exclusive franchise to use the streets and ways of a city for its pipes for conveying manufactured gas for lighting purposes only may exclude another company from the right to use such streets and ways, with the municipal consent, for pipes to convey natural gas for both fuel and lighting purposes.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 2; Dec. Dig. § 7.*]</p> <p>3. Evidence (§ 80*) — Presumption—Foreign Corporations — Right to Do Business in Other States.</p> <p>In the absence of legislation on the subject, it is presumed, under the rule of comity, that the law of a state permits corporations of other states to conduct therein the business for which they were chartered if such business is not in conflict with its laws or public policy, and affords them the equal protection of its laws with domestic corporations.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 101; Dec. Dig. § 80 ;* Common Law, Cent. Dig. §§ 14-16.</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & G. Meakiu, 83 C. C. A. 585; Ammons v. Brunswick-Balke-CoHender Co., 72 C. C. A. 022.]</p> <p>4. Gas (§ 7*) — -Foreign Corporations — Eight to Question Towers.</p> <p>Under section 93 of the general incorporation law of Maryland (Laws 1868, c. 471), as amended by Act April 7, 1876 (Laws 1876, c. 349), which authorizes any gaslight corporation organized thereunder to furnish gas in any city or town for the lighting of streets or public or private buildings and to lay pipes in the streets and ways with the consent of the municipality, an ordinance of a city having general power to legislate for the general welfare and for providing proper and suitable lights for the streets, etc., granting the right to a foreign corporation to lay pipes in its streets to supply the city and its inhabitants with natural gas for fuel and lighting purposes, is not subject to attack by another gas company having a franchise to use such streets; that being a matter for the state alone.</p> <p>[Ed. Note. — For other cases, see Gas, Dec. Dig. § 7.*]</p> <p>5. Constitutional Law (§ 207*) — “Citizen.”</p> <p>A foreign corporation is not a “citizen” within the meaning of article 4, § 2, Const. U. S. entitling them “to all privileges and immunities” as such “in the several states.”</p> <p>lEd. Note. — For other cases, see Constitutional Law, Cent. Dig. § 634; Dec. Dig. § 207.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1164-1174; vol. 8, pp. 7602, 7603.</p> <p>Status of foreign corporations, see note to Eepublican Mountain Silver Mines v. Brown, 7 C. C. A. 419.]</p>

<p>1. Executors and Administrators (§ 29*) — Appointment—Jurisdiction' of Court.</p> <p>fVhore a court has general jurisdiction over the appointment of administrators, every possible intendment will be given effect in support of an appointment, and only jurisdictional defects appearing on the face of the record can be attacked collaterally.</p> <p>TEfl. Note. — For other cases, see Executors and Administrators, Cent. Dig. B 178 182; Dee. Dig. § 29.*]</p> <p>2. EXECUTORS AND ADMINISTRATORS (§ 20*)-APPOINTMENT — JURISDICTION OF Court.</p> <p>Shannon’s Code Tenn. § 6023, provides that the county court shall have its regular sessions on the first Monday of each month, and the court shall sit from day to day so long as the business thereof may require. An order appointing an administrator recited that “a quorum court was opened and held * * * on the 2d day of July, 1907, when the following business was had and entered of record.” Held, that the order was not to be construed as stating that the regular session of the court was begun on that day, and that it did not show lack of jurisdiction to make the order.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. § 20.*]</p> <p>3. Master and Servant (§ 191*) — Master’s Liability for Injury to Servant-Fellow Servant.</p> <p>It is the rule in the federal courts that an employer is not liable for an injury to an employe- occasioned by the negligence of another employe engaged in the same general undertaking; both performing duties tending to accomplish the same general purpose, although they may be in different departments.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 475-479; Dec. Dig. § 191.*]</p> <p>4. Master and Servant (§ 194*) — Master’s Liability for Injury to Servant-Fellow Servants — Employés Being Carried to and from Work.</p> <p>Employés, while being carried free by the employer as a part of their contract of service to and from their place of work, are fellow servants of other employés, and not passengers, and it is immaterial that the carriage is after the hours of work or under an implied term of the contract of employment giving the employé the privilege of riding at his option, but not requiring it as a necessary part of the service.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 383, 384; Dec. Dig. § 194.*</p> <p>Who are fellow servants, see notes to Northern Pac. K. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>5. Master and Servant (§ 194*) — Master’s Liability fob Injury to Servant-Fellow Servants.</p> <p>Defendant operated iron furnaces, and also coal mines and coke ovens some three miles from its plant, to which the coal and coke were transported by means of a private railroad. Plaintiff’s intestate was a coal miner in defendant’s employ. The most of the miners resided at a distance from the mine on the line of railroad and were given the privilege of riding free, in coal and coke cars, on defendant’s trains to and from their work if they desired. While plaintiff’s intestate was so riding to his home, with other miners, after completing his day’s work, cars which had been standing on a branch track were permitted to run onto the main track causing a collision in which he and others were killed. Held, that deceased was not a passenger at the time, but his relation to defendant was that of an employé’, and that there could be no recovery for his death on the ground that it was caused by the negligence of other employés in handling the standing cars; they being his fellow servants.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 383, 384; Dec. Dig. § 194.*]</p> <p>6. Master and Servant (§ 286*) — Action for Injury to Servant — Questions for Jury.</p> <p>Plaintiff’s intestate, an employé of defendant, while riding from his work on one of defendant’s trains, was killed in a collision with runaway ears which escaped from a branch track upon the main track. Defendant, had installed a derailing switch on the branch to prevent such escape, which had been used until a few days prior to the collision, when a new head brakeman had been employed, and there was évidenoe that he had not been instructed as to its use. Held, that the question of defendant's liability for failing in its duty as master to give such instructions was properly submitted to the Jury.</p> <p>[Ed. Note.- -For other cases, see Master and Servant, Cent. Dig. §§ 1041-1050; Dee. Dig. § 286.*]</p> <p>7. Master and Seevant (§§ 293, 295*) — Action fob Injury to Servant — Instructions.</p> <p>instructions considered and approved in an action against a master for the death of an employe while riding on a train on a private railroad operated by defendant; such instructions relating io the care required of defendant and the assumption of risk by the deceased.</p> <p>[Ed. Note. — For other cases, see Masier and Servant, Cent. Dig. §§ 1118-1361, 1108-1171; Dec. Dig. §§ 293, 293.*]</p>

'Appeal from the District Court of the United States for the District of Massachusetts. In the matter of E. H. Gay, bankrupt. Appeal by John P. Reynolds, trustee, from an order allowing the claim of the New York Trust Company.

In Rrror to the Circuit Court of the United States for the Northern 'District of Ohio. Action at law by Frank J. Nelson and Frederick D. Bell against the Ohio Cultivator Company. From a judgment entered on a verdict directed by tile court, plaintiffs bring error.

Suit by George P. Hudson against the New York & Albany Transportation Company; the Empire Trust Company, trustee, intervener. Complainant, the Farmers’ Bank at Georgetown, the Trust Company, and Joseph H. Choate, Jr., receiver, appeal from decrees distributing a fund in court and allowing claims in favor of the Manhattan Navigation Company.

<p>Sales (§ 302*.) — Lien of Vendor — Louisiana Statute — Exteateeritoeial Enforcement.</p> <p>The privilege given to a seller of movable property by Civ. Code La. art. 3227, which provides that “he who has sold to another any movable property which is not paid for has a preference on the price of his property over the other creditors of the purchaser whether the sale was made on credit or without” is not a contract lien on the property but merely a preference over other creditors in the proceeds pertaining to the remedy or administration of the debtor’s property, and cannot be enforced extraterritorially against a receiver appointed by a court in another state into which the property has been removed.</p> <p>[Sd. Note. — Eor other cases, see Sales, Cent. Dig. § 858; Dec. Dig. § 302.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Kentucky.</p> <p>Action at law by J. H. Hunter, administrator of S. V. Hunter, deceased, against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Action at law by the United States against Frank F. Graham and the Guaranty & Surety Company. Judgment for plaintiff, and defendants bring error.

<p>1. Patents (§ 328*) — Validity and Ineeingement — Manifold Book.</p> <p>Tlie Levison reissue patent, No. 12,005 (original No. 691,103), for a manifold book, discloses patentable invention, especially in view of tbe recognized defects in tbe devices of tbe prior art which were remedied in that of tbe patent and its commercial success, and is also valid as against the claim that the reissue is a departure from tbe original. Also, held infringed.</p> <p>2. Patents (§ 148*) — Reissues—Pbestjmption of Regulabity of Prooeeo-ings.</p> <p>From tbe reissue of a patent it is to be presumed that tbe law was complied with, and the proceedings can only be impeached for fraud.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 221, 222; Dec. Dig. § 148.*]</p> <p>3. Patents (§ 236*) — INFRINGEMENT—Leaves “Bound” in Book.</p> <p>A manifold book, in which the carbon sheets are attached to a cardboard stub having a notched edge, the teeth of which may be pressed between the staples which bind the edges of the leaves together to hold the sheets in place, although such sheets are removable, does not escape infringement of a patent because the sheets are described therein as “bound” in the book.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 236.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 851.]</p>

<p>In Equity. Suit by the Geneva Manufacturing Company, S. Kar-pen & Bros., and the Seng Company, against the National Furniture Company and the Deimei Sofa Bed Fixture Company. On rehearing.</p>

<p>1. Patents (§ 21*) — Invention—Substitution op Materials.</p> <p>Tlie making of a device in whole or in part of materials better adapted to the purpose for which it is used than materials of which those of the prior art were made, and for that reason better and cheaper, unless the mode of operation is thereby changed, does not constitute patentable invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 23; Dec. Dig. § 21.*]</p> <p>2. Patents (§ 328*) — Validity—Reissues—Eye-Guard.</p> <p>The Cover reissue patents, No. 12,924 (original No. 845,696) and No. 12,817 (original No. 850,997), for an eye-guard or goggle, are void (1) as reissues not based on errors in the originals arising through inadvertence, accident, or mistake, (2) as being broadened reissues applied for after the intervention of adverse rights, (3) for lack of patentable invention in view of the prior art, and (4) for anticipation by a prior publication.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Joseph Ferreri. On appeal from a referee’s ruling reducing fees allowed the bankrupt’s attorney, and refusing to allow bankrupt’s fees in connection with the payment of a mortgage on the bankrupt’s property.

<p>In Bankruptcy. In the matter of proceedings against Wilson M. Shear. On motion to punish for contempt.</p>

<p>In Equity. Suit by tlie Waterproofing Company against Neal Earn-hatn, Incorporated, and others. On motion for a preliminary injunction.</p>

In Equity. Suit by the Pennsylvania Steel Company against the New York City Railway Company and another. Application by lessee of building used for a hotel for reduction of rent.

<p>1. Trade-Marks and Trade-Names (§ 95*) — Unfair Competitiok — Preuiso-NARY INJUNCTION.</p> <p>The court, in a suit based oil unfair competition by tile use of a label, will not order a preliminary injunction, where defendant has discontinued the use of the label and does not intend to use it again; but plaintiff may renew his motion for an injunction on defendant using the label.</p> <p>IKd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Soheuer y. Muller. 20 O. C. A. 165; Dake v. Harper & Bros., 30 0. 0. A. 376.]</p> <p>2. Trade-Marks and Trade-Names (§ 95*) — Unlawful Use of Trade-Mark —1'EELLMINARY INJUNCTION' — SECURITY FOIt DAMAGES.</p> <p>Tlio court, in a suit based on the unlawful use of a trade-mark, will on complainant's motion grant a preliminary injunction, unless defendant will enter into security to respond in damages if it should be determined that the trade-mark is valid and that, it 1ms been infringed.</p> <p>I Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. S 108; Dec. Dig. I 95.*]</p>

<p>John Warner was indicted for transporting a woman for immoral purposes from one state to another, in violation of Act Cong. June 25, 1910, and demurs.</p>

<p>In Equity. Suit by the American Pin Company against Berg Bros, Application for preliminary injunction to restrain unfair competition in trade.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Charles Wiedmann. On motion to confirm the report of the special master, providing for denial of the bankrupt’s discharge.

<p>1. Ar.nvs (§ 62*) — Natühalization—Qualifications.</p> <p>Where an alien, applying for admission to citizenship, has not behaved as a man of good moral character while residing in the Flitted States, the court, in the exercise of a sound discretion, will refuse his petition, though his behavior has been good during the five years preceding the peí ition; and the court must determine, taking into account the whole conduct of the petitioner, whether he possesses the necessary qualifications for citizenship.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 123-125; Dec. Dig. § 62.*]</p> <p>2. ALIENS (§ 62*) — Naturalization—Qualifications.</p> <p>An alien, pleading guilty to murder in the second degree, will not be admitted to citizenship, though before the offense, and for more than five years after the expiration of the term of imprisonment, his conduct reveals no cause for censure.</p> <p>(Ed. Note. — For other cases, see Aliens. Cent. Dig. 123-125; Dec. Dig. § 62.*] ,</p>

<p>In the matter of the bankruptcy of the De Dong Furniture Company. On certificate of referee concerning the claim of the Kutztown National Bank.</p>

<p>Estoppel (§ 68*) — Claims—Eights op Creditor — Inconsistent Positions. Claimant, having received the bankrupts’ judgment notes for money advanced, afterwards distrained for rent due him as landlord from the bankrupts, and levied on certain property as belonging to them. Held, that he could not in bankruptcy thereafter claim title to such property as having been purchased by the bankrupts with claimant’s funds, under an agreement that he should hold the title until the money was repaid.</p> <p>fEd. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*]</p>

<p>CORFOBATIONS (§ 448*). — LIABILITY FOE BREACH — PERSONS LIABLE.</p> <p>• The defendant corporation is not liable on a contract made before it came into existence by plaintiff with another corporation of the same name; and, though the promise of the officers of the defendant corporation before it came into existence might bind them individually, it could not bind the defendant.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.*]</p> <p>'Note. How does-this court get jurisdiction? The defendant is alleged'to'be a Massachusetts corporation but I am unable to find any allegation as to the citizenship of the plaintiff.</p>

Habeas corpus on petition of Hagop Avakian to obtain the discharge of Haiganoosh Avakian from the custody of the Immigration Commissioner under deportation warrant.

<p>1. Aliens (§ 53*) — Entry—Right to Remain.</p> <p>For three years following an alien’s entry, her right to remain is conditional only and subject to termination by proper action on the part of the immigration authorities.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 53.*]</p> <p>2. Aliens (§ 54*) — Entry—Right to Remain — Marriage After Deportation 'Order — Effect.</p> <p>Where, after an alien had been ordered deported because she was afflicted with a contagious disease, she married a citizen, she was not thereby relieved from the order of deportation, under Rev. St. § 1994 (U. S. Comp. St. 1901, p. 1268), providing that any woman married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 54.*]</p>

<p>In Equity. Bill by the Postal Telegraph-Cable Company against the Rivermore &, Knight Company.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of Alfred M. Judson and others, individually and trading as Judson & Judson. An involuntary petition in bankruptcy was filed against the above-named firm and the individual members thereof on December 17, 1910. A subpoena was issued on the petition but no service ever effected.

<p>In the matter of the bankruptcy of J. Garland Hurst. On petition by the executors of one Tearney, deceased, to revise the decision of the referee.</p>

<p>In Equity. Bill by John Harris, guardian, against G. W. Gale.</p>

<p>1. Maritime Liens (§ 25*) — Massachusetts Statute — Supplies—“Other Articles.”</p> <p>In Rev. Laws Mass. c. 198, | 14, which gives a lien on a vessel for money due for “provisions, stores, or other articles furnished for or on account of such vessel” by virtue of a contract, express or implied, with the owner, the words “other articles” include only such articles in the nature of provisions and store* as might be necessaries for the vessel in the sense of the maritime law.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Gent. Dig. §§ 20-36; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5070-5102; vol. 8, pp. 7741-7743.</p> <p>Maritime liens created by state law's, see note to The Electron, 21 G. O. A. 21.]</p> <p>2. Maritime Liens (§ 25*) — Massachusetts Statute — Necessary Supplies— Liquors — “Other Articles.”</p> <p>Liquors supplied to a vessel engaged in making daily fishing excursions from Boston to sea, of about 8 hours’ duration, during the summer months, to be dispensed by the owners to passengers ordering the same, are in aid of the business in which the vessel is employed, and may fairly be deemed necessaries and within Rev. Laws Mass. e. 198, § 14, giving a lien for provisions, stores, and other articles supplied to a vessel under contract with the owner.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Gent. Dig. §§ 20-36; Dec. Dig. § 25.*]</p> <p>3. Maritime Liens (§ 32*) — Massachusetts Statute — Time itoe Filins Statement — “Depart prom Port.”</p> <p>Under Rev. Laws Mass. c. 198, § 15, which provides that the lien on a vessel for supplies, etc., given by the preceding section, shall be dissolved unless a statement of the demand is filed for record .within 30 days after the vessel “departs from the port at which she was when the debt was contracted,” a vessel which made daily fishing trips from the port of Boston to sea, beyond the limits of the port and the state, on each of such trips “departed from the port” within the meaning of the statute, although she did not touch at any other port, and the lien for any item of debt contracted for supplies was dissolved in 30 days after the next trip made, notwithstanding the fact that a running account was kept for such supplies which was not closed until after she had made her last trip for the season.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Dec. Dig. § 32.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1988, 1989.]</p>

In Admiralty. Suit by John L. McDonald and others against the steam tug Teaser (Harry W. Law, claimant), and the barge Harrisburg (George Fredericksen, claimant). On exceptions to answers of both claimants. Sustained in part. Also on exceptions' by claimant Law to interrogatories propounded in the libel.

Petition by the Baltimore & Boston Barge Company, as owner of the steam tug Murrell, for limitation of liability. On exceptions of Eastern Coal Company, damage claimant, to interrogatories propounded by petitioner.

<p>In Equity. Suit by William Ross against the H. S. Geer Company. On motion to modify a preliminary injunction.</p>

In the matter of the York Silk Manufacturing Company, bankrupt. Heard on exceptions to report of referee disallowing claims of the Commonwealth. The following is the referee’s report: Claims of Commonwealth. On October 20, 1910, the Auditor General filed a claim for $18,806.67.

<p>Nathan Tucker was convicted of violating the pure food and drugs act, and moves for a new trial.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Julius Scheier and houis Scheier, copartners as Scheier Brothers, and as individuals. On certified questions by the referee.

<p>Petition by the United States to vacate Ole Erickson’s naturaliza-_ tion certificate.</p>

<p>At Law. Action by Mary G. Slade against Almanza J. Rose. Heard on petition of Elbert A. Bennett and another to be allowed to intervene and be made parties plaintiff.</p>

<p>In Equity. Suit by Edwin A. Johnson against the Hanley, Hoye Company. Demurrer to bill of complaint.</p>

<p>1. BANKRUPTCY (§ 288*) — Courts-,Jurisdiction Property in Hands or Third Person.</p> <p>Where property of a bankrupt was alleged to be in the possession of a third person, who, though not admitting possession, claimed no title to any of the property, he could not object to the bankruptcy court's jurisdiction to order him to surrender the property to the trustee.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 210.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, .11 O. C. A.!288.*</p> <p>2. Bankruptcy (§ 136*) — Concealed Property — Proceedings Against Bankrupt.</p> <p>Proceedings to compel a bankrupt to turn oyer property which was concealed for or by him could be based on an examination of the bankrupt’s agent as to what disposition he had made of the bankrupt’s prop-' erty; but until the property or its proceeds had been traced through the hands of the bankrupt to the agent, or until he had avoided responsibility by showing that his control over it had terminated, because it reached the possession of his agent and had been converted or stolen, the bankrupt should he dealt with first, and the trustee could not demand that the agent he compelled to account for the property, unless the property or its proceeds was specifically shown to be in his hands.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p>

<p>In the matter of bankruptcy proceedings against Robert Wiese-brock. On application to punish the bankrupt for contempt and giving false testimony.</p>

<p>At Taw. Action by the United States against Walter S. Harsha and the Fidelity & Deposit Company of Maryland on the bond of the defendant Harsha as former clerk of the Circuit Court.</p>

<p>■ In the matter of the Varley & Bauman Clothing Company, bankrupt. On petition of John C. Gallagher to pay a rent lien out of a particular fund.</p>

In the matter of Robert E. Fitzgerald, bankrupt. On decision of referee as to the claim of Mrs. Margaret Welch. The following is the decision of Referee Newton: in the matter of the claim of Margaret Welch to certain personal property which was In the possession of the bankrupt at the time of his adjudication in bankruptcy, May 27, 1911. Margaret Welch is the mother-in-law of the bankrupt.

<p>1. Bankruptcy (§ 836*) — Fraudulent Claim cut Lien — Amendment.</p> <p>Where a claim of lien under a mortgage had been declared fraudulent, the claimants were not entitled to amend, so as to prove such claim as a general claim against the bankrupt’s estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 623, 524; Dee. Dig. § 336.*]</p> <p>2. Bankruptcy (§ 314*) — Claims—Liens—Amendment.</p> <p>Where certain claimants against a bankrupt were shown by the schedules to have been creditors in the sum of $3,250 for goods sold, for which notes had been given and later an alleged usurious mortgage delivered, they were entitled, if they had not estopped themselves, or limitations had not run against them, to prove such amount as a. general claim against the estate, though their liens were defeated.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p>

At Law. Action by Louise Phelps against the Connecticut Company. On motion to set aside service of summons and complaint after removal of the cause to the Circuit Court.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of John K. Cummings. On petition to discharge the bankrupt from custody.</p>

Knappen, Circuit Judge, dissenting in part. In Error to the Circuit Court of the United States for the Western District of Michigan. Action by Henry E. Leaper against C. J. Huebel Company. Judgment for plaintiff, and defendant brings error.

<p>1. Apfeal and Error (§ 1022*) — Review—Findings of Fact.</p> <p>Where on questions of fact a special master and the trial judge concur, an appellate court will accept their findings, unless the record shows them to he clearly erroneous.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. § 1022.*]</p> <p>2. Corporations (§ 187*) — “Debt”—Construction of Agreement Between Stockholders.</p> <p>Owners of a majority of the stock of a railroad company sold their holdings under an agreement io pay off all indebtedness of the company and deposited the proceeds of the stock to he paid out in discharge of, such indebtedness on vouchers issued by the directors; the surplus remaining to be divided between them in proportion to their several holdings. Held, that the sum which a stockholder had paid for his stock was not a debt of the company, and the directors had no authority to allow and pay a claim therefor as against another stockholder.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 703; Dec. Dig. g 187.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1861-1880; vol. 8, p. 7028.]</p> <p>3. Corporations (§ 187*) — Actions Between Stockholders — Liability for Ml SR E PRESEN TATION.</p> <p>Where stockholders of a corporation joined in a sale of their siock under an agreement to pay the debts of the corporation from the proceeds, statements made by certain of the stockholders to another to induce him to join in the sale, as to the amount which would he required to pay the debts, if made in good faith, did not create a liability on then-part because the debts proved to be larger than their estimate.</p> <p>I Ed. Note. — For other cases, see Corporations, Cent. Dig. § 703; Doc. Dig. § 187.*]</p> <p>4. Corporations (§ 327*) — Contract by Ofitoer— Liability for Breach.</p> <p>A contract, by which a defendant, who owned a controlling interest in a corporation, agreed to deliver certain of its bonds to complainant’s assignor. construed, and held to create an indebtedness from such defendant to complainant equal to the par value of such bonds, whore they were never issued, but claims by others against the corporation on similar contracts were paid on that basis with defendant’s consent as a director.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 327.*]</p>

<p>1. Homicide (§ 298*) — Making Aeeest — Rights of Offices.</p> <p>Instructions, on the trial of a peace oilicer charged with homicide committed while attempting to arrest the deceased for a misdemeanor, considered, and, taken as a whole, held to correctly charge that, while defendant did not have the right to kill the deceased for attempting merely to avoid arrest by running away, he had the right to overcome actual resistance to arrest by such force as was necessary even to the taking of life.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § C12; Dec. Dig. § 298.*]</p> <p>2. Criminal Daw (§ 823*) — ■Tktal—Insteuctions—Weight to be Given Testimony of Defendant.</p> <p>On a trial for homicide in which defendant testified in his own b?ha!f, an instruction, referring specifically to his testimony, that, if his statements were convincing and carried ivith them a belief in their truth, the jury had a “right to receive and act upon them,” and, if not, they had a “right to reject them,” was not erroneous, read in connection with a general instruction correctly stating the rules to be applied to the consideration of the testimony of all witnesses.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1995; Dee. Dig. § 823.*]</p>

Petition for Review of Order of the District Court of the United States for the District of North Dakota. In the matter ' f M. F. Malloy, bankrupt. On petition by the bankrupt to review . .e order of the District Court (179 Fed. 942).

<p>1. Patents (§ 328*) — Validity and Infringement — Silo .</p> <p>Tbe Harder patent, No. 627,732, for a silo, having a continuous opening from top to bottom, claim 4, which covers broadly in combination braces between the edges of the walls forming the opening, door sections for closing the opening, and reinforcing strips for the door sections, was not anticipated, discloses invention, and is entitled to a fairly liberal construction and range of equivalents. Also held infringed.</p> <p>2. Patents (§ 167*) — 'Validity—Broad and Specific Claims.</p> <p>When an inventor makes an invention and in his specification points out a specific construction, he may claim the specific construction and also have a general broad claim, and when this is done, in order to sustain the broader claim, if is not necessary that he should point out in his patent that the specific construction shown is not essential to the invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 167.*]</p> <p>S. Patents (§ 288*) — Suit vob Ineeingement — Right to Stje Usees.</p> <p>Where infringing articles are in use in the district in which the owner of the patent resides, although made elsewhere, he is not subject to criticism for exercising his legal right to sue the users in that district instead of going to the district of the manufacture and there bringing suit against the maker.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 288.*]</p>

<p>Patents (§ 328*) — Anticipation—Process op Making- Artificial Stone.</p> <p>The Stevens patent, No. 624,563, for a process of making artificial stone by the use of sand molds for drawing the surplus water from the Stone compound by absorption, is void for anticipation by the prior pub-lie use of substantially the same process by one Berthelet for'two years or more in the ordinary course of his business of making artificial stone.</p>

<p>Patents (§ 328*) —Infristoemext.</p> <p>The Draper patent. No. 527,014, for a loom, discloses patentable invention, but tlie claims must be limited to a construction in which the detector, which determines the degree in which the weft thread in loom weaving has been drawn from the bobbin, is mounted independently of the shuttle and to substantially the mechanical means described. As so construed, hold not infringed.</p>

<p>Bankruptcy (§ 91*) — Act of Bankruptcy — Evtdence.</p> <p>On an application to have an alleged insolvent declared an involuntary bankrupt, evidence held to require a finding, not only that the alleged bankrupt was insolvent, but also that, while insolvent, he bad permitted his wife to obtain a preference through legal proceedings, and had not, five days before the selling or final disposition of his property affected by such preference, revoked or discharged the same, so that he should be adjudged a bankrupt.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 91.*]</p>

<p>1. Bankruptcy (§ 59*) — Act op Baykhttptcy — Devy—'Validity.</p> <p>A debtor attacked the validity of a sheriff's levy relied on as an act of bankruptcy, in that he had preferred the creditor by tailing to discharge the lien, and showed that the sheriff’s return was false, so far as it recited a levy and that subsequently the debtor was. adjudged a bankrupt. because the records of the bankruptcy court disclosed that no adjudication had ever been entered. The testimony of a deputy sheriff showed that no actual levy had been made, field to show the invalidity of the levy to constitute an act of bankruptcy, though the balance of the sheriff’s return might be secure against collateral attack.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. § 59.*1</p> <p>2. Execution (§ 115*) — Bevy—Direct Attack.</p> <p>A debtor may directly attack a levy, though a part of the officer’s return may he secure against a collateral attack, and he may questiou the validity of the levy where he has steadily denied its validity.</p> <p>LKd. Note. — For other cases, see Execution, Gent. Dig. §§ 376-380; Dec. Dig. § 145. *1</p>

In Equity. Suit by the Anderson I/and & Stock Company against Charles McConnell, revived after his death pendente lite in the name of Thomas A. McConnell, executor of the will of Charles McConnell, deceased, and Thomas McConnell individually.

<p>In Equity. Suit by the Physicians’ Defense Company against fí. C. Cooper, as State insurance Commissioner of California.</p>

<p>John E. Stone and others were indicted for crime.</p>

At Law. Action by Jessie Fithian and others against the St. Louis & San Francisco Railway Company. Heard on demurrer to the complaint. This is an action for the recovery of damages by reason of the alleged wrongful death of Floyd C. Fithian, an employe of the defendant, alleged to have been caused by the negligence of defendant’s servants. The action is brought under the employer’s liability act of Congress, approved April 22, 1908, c. 140, 35 Srat. 65 (U. S. Comp.

<p>In Admiralty. Suit in personam by Mabelle B. Cook against the Moran Towing & Transportation Company, owners of the tug Julia C. Moran. Decree for libelant.</p>

<p>In Equity. Bill by Ered J. Marks and others against the Merrill Paper Manufacturing Company and others.</p>

<p>1. Injunction (§• 132*) — Interlocutory Injunction — Nature—Purpose.</p> <p>An interlocutory injunction is a mere provisional remedy intended to preserve property in statu quo until a hearing can be had on the merits.</p> <p>LEd. Note. — For other cases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 132.*]</p> <p>2. Injunction (§ 134*) — Preliminary Injunction.</p> <p>Whether a preliminary injunction shall be granted depends on whether there is a substantial question between the parties and on the relative degree of injury that will be caused by the preservation of the property in statu quo until final hearing.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 303; Dec) Dig. § 134.*]</p> <p>3. Injunction (§ 136*) — Preliminary Injunction — Sale op Cemetery Property.</p> <p>Where complainants interested in a cemetery instituted a suit to restrain the association from selling its remaining cemetery lands at one time at public auction, claiming that such sale was contrary to the association’s charter, by-laws, and a prior agreement, and it was found by a master that the sale was to liquidate the interest of shareholders under such agreement and emancipating the corporation therefrom, that the sale was in violation of the association’s by-laws, would operate to repeal certain of them, and would operate to give nonconsenting shareholders very small amounts instead of substantial returns which they had a right to expect from their investment under the plan set forth in the agreement, and would result in the acquisition of the property by a speculative syndicate to the exclusion of parties who had vested legal and equitable rights in the property, complainants were entitled to a preliminary injunction to prevent such sale until a hearing on the merits.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*]</p>

<p>Petition of Alphonse Dinehart for a writ of habeas corpus.</p>

<p>• At Law. Action by Naylor & Co. against the Lehigh Valley Railroad Company and others.</p>

<p>Bankruptcy (§ 314*) — Claims—Nature and On aeacter — Trade CERTIFICATES.</p> <p>A bankrupt corporation, having been originally capitalized for $10,000 and desiring to increase its capital, abandoned the scheme to increase the stock, and in lieu thereof voted to issue trade certificates to the amount of 810.000, certifying that the owner had deposited with the corporation a specified amount of money entitling him to purchase goods from the corporation at a profit not to exceed 10 per cent., the certificate to be taken into account in declaring dividends, and the holder to receive for the use of the amount specified an amount annually equal to the dividend declared, based on $20,000 and paid on account of stock certificates, a dividend of at least 8 per cent, being guaranteed, and that at the end of two years the certificate was payable in merchandise on demand of the holder after 30 days’ notice. Held that, under Rev. St. Tex. 1895, art. 653, conferring on private corporations the right to borrow money on the corporation’s credit, not exceeding its authorized capital, and to execute bonds or notes therefor, such trade certificates should be regarded as debts of the corporation, provable under Bankr. Act July 1, 1898, c. 541, § 63, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3447), and not stock.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dee. Dig. § 314.*]</p>

<p>In Equity. Suit by Olin S. Fellows against Borden’s Condensed Milk Company. On petition for leave to file a supplemental bill in the nature of a bill of review.</p>

In Equity. Suit by Elizabeth Eesser against George Borgfeldt & Co. for infringement of copyright. On motion to compel complainant to attach a copy of the alleged infringement, and of the work alleged to have been infringed, to the petition.

<p>1. Collision (§ 51*) — Overtaking Vessels — -Mutual Duties.</p> <p>It is the duty of an overtaking vessel to keep out of the way of the overtaken vessel, and the correlative duty of the leading vessel to keep her course and avoid any maneuver calculated to embarrass the overtaking vessel in passing.</p> <p>(Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 57-61; Dee.Dig. § 51.*]</p> <p>2. Collision (§ 105*) — Ovebtaking Vessels — Fault oe Overtaking Vessel.</p> <p>The finding of the trial court that a collision between two steamers passing down the Willamette river from Portland, which occurred when one vessel was attempting to pass the other, was due solely to the fault of the overtaking vessel, affirmed, where such finding was made on conflicting evidence, and in view of the burden of proof resting on the overtaking vessel and her duty under the rules to keep out of the way, it being shown that there was ample room for her to do so.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 105.*</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p>

<p>1. Carriers (§ 356*) — Ejection of, Passenger — Action foe Wrongful Ejection — Defenses—Defective Ticket.</p> <p>Plaintiff paid for her carriage as a passenger from Newport News to Parkersburg, W. Va., by boat to Baltimore and from there over defendant’s railroad to destination. She received a ticket stating that it was good to the station printed thereon which was punched, and which contained a printed list of the stations on defendant’s road as far as Cincinnati, hut the agent neglected to punch it for Parkersburg and plaintiff did not notice the omission. The ticket was properly stamped by the agent, and plaintiff’s baggage checked thereon to Parkersburg, the fact of the cheeking being indicated by the letters “B. 0.” punched therein. It was also accepted and punched on the boat and by defendant’s gate-man at Baltimore, hut the conductor on the train refused to receive it, and although she explained the facts ejected plaintiff at Washington, where she was obliged to lay over,-but was finally carried to her destination on the same ticket. Held that, conceding that as between conductor and passenger the ticket is conclusive evidence of the contract of carriage, it was the duty of the conductor before ejecting plaintiff to use all reasonable means to ascertain therefrom the extent of her rights; that her ticket was not void, but contained on its face evidence that the agent Rad made a mistake in failing.to punch any station, and also, in connection with the baggage check referred to therein, evidence which should have been accepted by any reasonable man as a confirmation of her statements, and that in ejecting her he committed a tort for which defendant was liable in damages.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1427; Dec. Dig. § 356.*]</p> <p>2. Carr ikes (§ 376*) — -Ejection or Passenger — Invalid Ticket — Form os Action fob Wrongful Ejection.</p> <p>A passenger who without fault on his part, but through the mistake or negligence of an agent of a railroad company, has been given an invalid ticket, and in consequence is ejected from a train for which he has paid fare, may recover damages therefor from the company, whether the action is on the contract or in tort.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1463; Dec. Dig. § 376.*J</p> <p>3. Co ubis (§ 360*) — Federal Co urts — Authority of Decisions of State Courts -Contracts of Carriage.</p> <p>The legal rights of a passenger, growing out of a contract of carriage is not a question of local law but of general substantive law upon which a federal court is not controlled by the decisions of the courts of the state where the contract was made or the cause of action accrued.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § SCO.*</p> <p>Conelusiveness of judgment between federal and state court's, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 47S; Union & Planters’ P.ank v. City of Memphis, 49 C. C. A. 468.]</p> <p>4. Carriers (§ 352*) — Ejection of Passenger — Action for Damages — Defense — Rules of Company.</p> <p>The right of a passenger ejected from a railroad train in violation of his rights to recover damages therefor cannot be affected by any rule of the carrier prescribing the duties of its agents or conductors.</p> <p>[Ed. Noto.- — For other cases, see Carriers, Cent. Dig. §§ 1412-1414; Dec. Dig. § 852.*]</p> <p>5. Evidence (§ 121*) — Res Gest® — Statement Made by Party.</p> <p>The time, place, and circumstances under which a statement of a party sought to be introduced in evidence was made are always relevant, and may be shown as a part of the res gesta;.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 307-328; Dee. Dig. § 121.*]</p> <p>6. Appeal and Error (§ 971*) — Witnesses (§ 275*) — Review—Discretion of Lower Court — Examination of Witnesses.</p> <p>It. is within the discretion of a trial judge to limit the cross-examination of a party testifying as a witness, and his action is not reviewable by an appellate court except for an abuso of discretion.</p> <p>TEd. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dee. Dig. § 971;* Witnesses, Cent. Dig. § 924; Dec. Dig. § 275.*]</p>

<p>1. Carriers (§ 30*) — Interstate Commerce Act — Schedules of Bates — “Terminal Charge” — I toi urea ge — “Transportation. ’ ’</p> <p>Demurrage charged for the detention of ears in loading or unloading is a terminal charge, required to he shown by the schedules of rates filed and published by an interstate railroad company by the terms of the interstate commerce act of February 4, 1887, c. 104, §§ 1, 6. 24 Stat. 379, 380 (U. S. Comp. St. 1901, pp. 31154, 3150), as subsequently amended by Act June 29. 1900. e. 3591, §Sf 1, 2, 34 Stat. 584, 5<86 (U. S. Comp. St Supp. 1909, pp. 1150, 1153), which define transportation as including all the in-strumentalities and facilities of shipment and all services in connection with tiie receipt, delivery, and handling of property transported, and require the filing and publishing of schedules showing all the rates, fares, and charges for transportation, stating separately all terminal charges.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § -81; Dec. Dig. § 30.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7075-7070.]</p> <p>2. Carriers (§ 38*) — Violation of Interstate Commerce Act — Demurrage Charges.</p> <p>Any departure by on interstate railroad company from the demurrage charges fixed by its filed and published schedules constitutes a misdemeanor under the Elkins act of February 19, 1903, c. 708, § 1, 32 Stat. '847 (U. S. Comp. St. Supp. 1909, p. 1138).</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. § 38.*j</p> <p>3. Carriers (§ 38*) — Prosecution for Giving Concession in Violation of Interstate Commerce Act — Defenses.</p> <p>That demurrage charges fixed by the rate schedules of interstate railroad companies in a certain district were discriminatory as between a shipper located in such district and competitors placed in other districts and governed by different rates is no defense to a prosecution of a railroad company or the shipper for granting or receiving a concession by a cancellation of such charges, the only legal mode of correcting the discrimination being by a change in the schedules on proper notice or under authority from the Interstate Commerce Commission.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to 94 C. C. A. 230.]</p>

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action at law by Robert H. McCarter Potter against Wells Fargo & Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in admiralty by the People’s Coal Company against the Second Pool Coal Company. Decree for libelant (181 Fed. 609), and respondent appeals.</p>

Action at law by the Sloss-Sheffield Steel & Iron Company against the Tacony Iron Company. Judgment for plaintiff (183 Eed. 645), for part of its claim, and defendant brings error.

<p>1. Railroads (§ 282*) — INJURIES to Licensees — Presumption and Burden op Prooe — Res Ipsa Loquitur.</p> <p>Plaintiff’s intestate was conductor of a freight train of another company which was using the tracks of defendant railroad company, and was killed while his train was passing a meeting train of defendant on a parallel track. Plaintiff offered evidence tending to show that at the time of the accident intestate was kneeling* on a 'bench in the caboose, with his arms resting on the sill of a small window in the side of the caboose and facing it, and while in this position, occupied by him in the performance of his duty, a freight train of defendant company was passing in the opposite direction to that of his train and on an adjacent-track ; that one of the cars of defendant’s train was a refrigerator car in which was a door; and which door had upon it an appliance consisting of a movable iron lever attached to bolt bars used for locking the ear door; that this door was negligently allowed to he ojien, and by the movement of the train it was caused to swing outwardly at right angles to the ear, and that the lever, also upon the car door, projected further, at right angles from the middle of the door, so as to reach over the space between the sides of the passing trains; that -this projecting lever, while the car was passing the caboose, struck the side of the caboose, and as it passed along the side of the caboose, when it reached the window, struck the decedent on the left side of the neck, almost severing the head from the body, and pulling him violently from the window of the caboose, and thus instantly killing him. The lever was of sufficient length to reach the caboose and extend some distance info the window. Under ordinary conditions intestate’s position was not one of danger from passing trains. Held, that such evidence was sufficient under the doctrine of res ipsa loquitur to create a presumption of negligence on the part of defendant which cast upon it the burden of proof and that the case was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 912, 919; Dec. Dig. § 282.*]</p> <p>2. Negligence (§ 121*) — “Res Ipsa Loquitur.”</p> <p>“Res ij)sa loquitur,” the thing speaks for itself, symbolizes that the occurrence of the injury raises a presumption, of culpability on the part of the owner or manager of an apparatus.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 218, 225; Dee. Dig. § 121.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6136-6139; vol. 8, p. 7787.]</p>

Action at law by the Welsbach Street Lighting Company of Delaware against the City of Des Moines of the state of Iowa. Judgment for plaintiff, and defendant brings error.

<p>In "Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by one Watkins against the Oceanic Steam Navigation Company, Eimited. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error (§ 501*) — Record—Reservation in Dower" Court of Grounds of Review — Exceptions to Instructions.</p> <p>Under the established rule of the federal courts, assignments of error to the giving or refusal of instructions cannot be considered on a writ of error by an appellate court, unless it appears by tbe transcript that exceptions were reserved while the jury were at the bar.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.*]</p> <p>2. Appeal and Error (•§ 501*) — Reservation in- Lower Court op Grounds of Review — Exceptions to Refusal to Charge.</p> <p>Where the bill of exceptions in a cause showed request's to charge made by defendant, but they were not marked to show what action was taken thereon, although a comparison with the charge showed that certain of them were not given, nor covered thereby, a statement reciting that after the jury retired the judge stated that he understood that defendants’ counsel were entitled to “every exception which belongs to them by reason of requests handed up to the court in advance and either refused or modified” was not sufficient to make it appear that exceptions were taken by defendant before the jury retired to the failure to charge such requests.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.*]</p> <p>3. Appeal and Error (§§ 200, 263*) — Reservation in Lower Court of Grounds of Review — Exceptions.</p> <p>An assignment of error to the overruling of a motion to strike out, Or to instruct the jury to disregard, testimony cannot be considered by the appellate court, unless based on an exception taken at the time.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1503-1532; Dec. Dig. §§ 260, 263.*]</p> <p>4. Libel and Slander (§ 107*) — Damages—Evidence.</p> <p>In an action for libel, it is not error to permit the plaintiff to testify as to his feelings on reading the libelous article; his mental suffering being an element of the damages recoverable.</p> <p>[Ed. Note.- — For other cases, see Libel and Slander, Dec. Dig. § 107.*]</p>

lu Error to the Circuit Court of the United States for the Southern District of New York. Action at law by Panayiotis Panoulias against Henry Heide. Judgment for plaintiff, and defendant brings error.

<p>1. Cancellation' of Instruments (§ 15*) — Equity—Irreparable Injury.</p> <p>Where the injury caused by a broach of contract is irreparable, and damages are wholly inadequate, equity has power to decree a rescission.</p> <p>[Ed. Note. — Por other cases, see Cancellation of Instruments, Cent. Dig. §§ 14, 21; Dec. Dig. § 15.*]</p> <p>2. Cancellation of Instruments (§ 15*) — Breach of Contract — Remedy by Recovery of Damages.</p> <p>That defendants had refused to comply with any of the terms of a contract is not; sufficient to sustain a decree for cancellation, in tile absence of a showing that the recovery of damages at law would be inadequate.</p> <p>[Ed. Note. — Dor other casos, see Cancellation of Instruments, Cent. Dig. §§ 14, 21; Dee. Dig. § 15.*]</p> <p>8. Patents (§ 216*) — Contracts—Manufacture and Sale.</p> <p>Where a contract for the manufacture of patented machinery provided certain conditions precedent to defendants’ obligation to pay royalties, for failure to do which the contract was subject to cancellation, a failure to pay such royalties was not ground for cancellation, in the absence of a showing that complainant had performed1 the conditions.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 329; Dec. Dig. § 216.*]</p> <p>4. Patents (§ 216*) — Manufacture and Sale — Breach of Contract.</p> <p>Where a contract for the manufacture and sale of certain patented machinery provided that defendants were granted the privilege of manufacturing, but the contract contained no covenant obligating them to do so, or to attempt to sell, complainant relying on the chance that defendants would take advantage of their privilege to manufacture, rather than on their covenant to do so, the contract was not subject to cancellation for defendants’ refusal to manufacture, or to attempt to sell machines properly constructed under the patents.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 236.*]</p> <p>5. Patents (§ 216*) —- Contracts — Construction — Patented Machinery — Manufacture.</p> <p>Where the contract for the manufacture and sale of certain patented machinery provided that defendant agreed to be diligent in supplying the market with sufficient machines to supply the demand of the market therefor, defendant was not bound by such agreement to create a market or to try to sell the machines.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 329; Dee. Dig. § 216.*]</p> <p>6. Patents (§ 216*) — Contracts—Breach—Remedy.</p> <p>Where a contract for the manufacture and sale of patented machinery provided that if complainants were dissatisfied with the diligence used by defendant, its remedy should be as follows, and then contained a provision that complainant should send to defendants bona fide orders for machines by solvent responsible parties to be paid in cash, there being no allegation that orders had been so sent, and that defendants had refused to fill them, defendants were not subject to a suit for cancellation of the contract on the ground that they had failed to diligently manufacture and sell the machines.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 216.*]</p> <p>7. Patents (§ 216*) — Contracts—Manufacture and Sale.</p> <p>Where there was nothing in a contract for the manufacture and sale of certain machinery obligating defendants to comply with the suggestions of complainant’s mechanical expert, nor to refrain from spying on the work of such expert, nor to refrain from taking out patents on devices embodying- the ideas of the expert, nor to refrain from trying to purchase the stock of complainant company, nor to terminate the contract, the fact that defendants had committed all such acts was not ground for cancellation of the contract in equity.</p> <p>[Ed. Note. — Por other cases, see Patents, Dec. Dig. § 216.*]</p> <p>8. Patents (§ 216*) — Contracts—Breach.</p> <p>Where a contract for the manufacture and sale of certain patented machinery contained a covenant obligating defendants not to manufacture other similar machinery, but the contract did not provide that a breach of such covenant should give complainant a right to rescind, a breach thereof was not ground for cancellation in equity, in the absence of a showing that complainant would be irreparably injured if such relief was denied.</p> <p>[Ed. Note. — Por other cases, see Patents, Dec. Dig. 216.*]</p>

<p>In Equity. Bill by Thomas A. Edison, Incorporated, against the Ira M. Smith Mercantile Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit by one Jessup and others, executors of Horace E. Stillman, deceased, against the Chicago & Northwestern Railway Company for a mandatory injunction.</p>

Action by John C. McClellan and others against George T. Black-man, special administrator of the estate of John C. McClellan, deceased, in which the state of South Dakota intervened. On complainants’ demurrer to the bill in intervention.

At Law. Action by Dwight W. Bowles against H. J. Heinz Company and another. The case having been remanded to the circuit court, plaintiff moves to remand.

In Equity. Suit by Susan C. Higgins against Hervey E. Eaton, as executor of the estate of Elizabeth S. Eaton.

In Equity. Bill by Oscar Vanderbilt and another against Minette Thullen Bishop and another, to foreclose a contract for the sale of real estate, in which defendants filed a cross-bill to cancel the contract and for recovery of the money paid thereon for fraud.

<p>In Equity. Bill by Harry Hubbard and another, as receivers of the Hudson County Water Company, against John Franklin Fort and others.</p>

<p>Bankruptcy (§ 213*) — Pendency of Proceedings — Effect.</p> <p>Pendency of bankruptcy proceedings, prosecution of which Is delayed, is no defense to petitions by interveners to foreclose mortgages covering land taken possession of in the receivership suit in which the intervening petitions are filed.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 213.*]</p>

<p>Bankruptcy (i 217*) — Restraining Proceedings in State Court-Jurisdiction.</p> <p>A federal district court has jurisdiction in a bankruptcy proceeding to enjoin prosecution in a state court of suit to foreclose a mortgage, the giving of which, while Insolvent, is relied upon as an act of bankruptcy.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 323, 330, 310 ; Dec. Dig. § 217.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C.- O. A. 313.]</p>

<p>1. Equity (§ 214*) — Pleading—Exceptions.</p> <p>Whether an affirmative defense of fraud is sufficiently- pleaded, or whether, if sufficiently stated, is a defense, can only be considered on demurrer, and cannot be raised by exception.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. § 487; Dec. Dig. § 214.*]</p> <p>2. Equity (§ 253*) — Pleading—Impertinent and Scandalous Matter.</p> <p>Where a judgment in a state court against the receiver of a street railroad company for injuries was filed as a claim against the company’s property in the hands of the receiver, an answer alleging that the judgment was fraudulent and had been obtained by false and perjured testimony was not subject to exception as impertinent and scandalous.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 525; Dec. Dig. § 253.*]</p> <p>3. Pleading (§ 23*) — Impertinent Matter.</p> <p>No matter is to be deemed impertinent which is material in establish^ ing the rights of the parties or ascertaining the relief to be granted.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §■ 46; Dec. Dig. § 23.*]</p> <p>4. Pleading (§ 23*) — “Scandal.”</p> <p>Scandal is impertinent matter which is also criminatory or which otherwise reflects on the character of an individual, and no matter which is not also impertinent will constitute scandal, however strong its aspersions or reflections.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 46; Dee. Dig. § 23.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6341; vol. 8, p. 7795.]</p> <p>5. Receivers (§ 54*) — Insolvency — Claims — Establishment—Conclusiveness oe Judgment.</p> <p>Where a decree appointing a receiver for an insolvent street railway company provided that the court should determine and fix claims, costs, •charges of administration, etc., such provision did not mean that the court in which the receivership proceedings were pending would try de novo a claim which had been reduced to judgment against the receiver in a state court, since the decree did not specify the kind of evidence which the court should receive in determining whether the claim should be allowed.</p> <p>TEd. Note. — For other cases, see Receivers, Cent. Dig. § 91; Dec. Dig. § 54.*]</p> <p>6. Judgment (§ 678*) — Receivers—Conclusiveness.</p> <p>Since a receiver of a street railroad company is an arm of the court and his official acts those of the court, a judgment recovered against him in his official capacity as to any act or transaction of his in carrying on the business connected with the property is the establishment of a liability against the assets in his hands, and is conclusive as against lienors or purchasers of such assets in the absence of fraud, and this, notwithstanding the statute providing that such a receiver shall be subject to the general jurisdiction of the court in which the receiver was appointed so far ns necessary to the ends of justice.</p> <p>[JBd. Note. — For other cases, see Judgment, Cent. Dig. §§ 1193-1198; Dec. Dig. § 078.*]</p> <p>7. Judgment ($ 828*) — Comity—State Courts — Judgment Against Federal Court Receiver.</p> <p>The judgment of a state court having jurisdiction of the parties and subject-matter against a federal court receiver in his official capacity in respect of any act or transaction of Ills in carrying on the business connected with the receivership property is final and conclusive as to the existence and amount of the liability.</p> <p>[Ed. Note. — 'For other cases, see Judgment, Cent. Dig. §§ 1504-150!); Dec. Dig. § 828.*</p> <p>Conciusiveness as between federal and state courts, see notes to Kansas City, Ft. 8. & : . R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. O. A. 408.]</p> <p>8. Receivers (§ 150*) — Claims—Proof—Judgment—Fraud.</p> <p>Where a judgment against a federal court receiver in a state court is filed as a claim in the receivership proceedings, an objection that it was obtained by fraud and false swearing would not authorize a retrial of the cause and the weighing of the same evidence on which the judgment was based, nor could it be proved by evidence merely cumulative, impeaching, or contradicting the former' evidence produced'.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 207, 208; Dec. Dig. § J50.*]</p>

<p>Action by R. It. Hills, trustee in bankruptcy of R. C. Hatcher, against the E. D. McKinniss Company.</p>

-In Equity. Bill by S. S. White Dental Manufacturing Company against George D. H. Mitchell to restrain defendant from communicating trade secrets after the termination of his employment by complainant.

<p>Bankruptcy (§ 188*) — Title op Trustee — Lien op Existing Mortgage.</p> <p>A chattel mortgage, permitting the mortgagor to retain possession with power of sale, and subjecting accretions to the stock to the lien of the mortgage, was, under the laws of Ohio, good between the parties, though void as to creditors, and would formerly have given the mortgagee a lien, as against the mortgagor’s trustee in bankruptcy, under Bankr. Act July 1, 189S, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), vesting in the trustee the title of the bankrupt as of the date he was adjudged a bankrupt: but section 70 is to be construed with the amendment by Act June 25, 1910, c. 412, § 8, 36 Stat. 840, of section 47a (2), by which the trustee is vested with the rights, remedies, and powers of a creditor holding a lien; and, subsequent to the amendment, such mortgagee would have no lien against the trustee, although the mortgage was executed prior to the amendment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 286-295; Dec. Dig. § 188.*]</p>