Volume 191 — Federal Reporter

<p>In Error to the District Court of the United States for the District of New Jersey.</p> <p>Action by the United States against the Philadelphia & Reading Railway Company. Judgment for the United States, and defendant brings error.</p>

Action at law by Erank Rotolo against the Norfolk & Atlantic Terminal Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error, defendant below, hereafter called the defendant, is a Virginia corporation, and operates a lino of electric street railway in the city of Norfolk, Va., and had a portion of its tracks laid in City Hall avenue and Montieello avenue in said city.

Cross-Appeals from the District Court of the United States for the Northern District of West Virginia, at Clarksburg. In the matter of the • Morgantown Tin Plate Company, bankrupt. Cross-appeals from orders relating to claims filed against the estate by George C. Sturgiss and others.

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>Action at law by Charles T. Tracy against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Indians (§ 15*) — Allotted Lands — Restraint Upon Alienation.</p> <p>A restriction upon the power of an Indian allottee to alienate land for 25 years after patent, imposed by statute and also embodied in the patent, runs with tiie land and invalidates any attempted conveyance of the land by heirs of the allottee after his death during the limitation period.</p> <p>[ltd. Note. — For other cases, see Indians, Cent. Dig. §§ 37-39; Dee, Dig. § 15.*]</p> <p>2. Indians (§ 15*) — Lands—Restrictions on Alienation — Right'oe United States to Enforce by Suit.</p> <p>It is competent for the United States, in the carrying out of its declared policy with respect to the Indians, to maintain suits to set aside conveyances of land by allottees or their heirs in violation of the restrictions on alienation imposed by Congress, and the fact that the allot-tees may he citizens is immaterial.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.*)</p> <p>8. Indians (§ 27*) — Lands—Sen by United States to Enforce Restrictions on Alienation — Res Judicata.</p> <p>The right of the United States to maintain a suit in equity to set aside conveyances of lands by Indian allottees in violation of the statutory restrictions on aliev.aiion is not barred by a decree entered against such allottees in a suit for specific enforcement of their contract to convey, to which the United States was not a party, since its suit is in its oven right; and the allottees are not necessary parties thereto.</p> <p>[Ed. Note. — For other eases, see Indians, Dee. Dig. § 27.*]</p>

Action at law by E. E. Heaton, as guardian ad litem of E. E. Heaton, Jr., against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Heaton, a boy aged 11 years and 10 months, on the night of August 2, 1908, was riding on horseback along a public highway toward his home. This highway crossed the line of the railway of the plaintiff in error at grade and approximately at right angles.

<p>Appeal from the District Court of the United States for the District of Colorado.</p> <p>Habeas corpus by Yee Quong Yuen against the United States. From an order granting the writ, the United States appeals.</p>

In the matter of U J. Cale, bankrupt. From an order allowing the claim of the Gregory Company as a secured claim, that company appeals.

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action at law by Robert J. Beach against Benjamin P. Morris. Judgment for plaintiff, and defendant brings error.</p>

<p>*For other oases see same topic & § nitmbbb m Deo. & Am. Digs. 1807 to date, & Rep’r Indexes</p>

_ In Equity. Suits by the Nashville Grain Exchange and the -Nashville Board of Trade against the United States, in which the Interstate Commerce ’Commission intervened, and by the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railway against the United States, in which the Interstate Commerce Commission, W. S. Duncan & Co., and others intervened.

Petition by the Omaha & Council Bluffs Street Railway Company and Omaha & Council Bluffs Railway & Bridge Company against the Interstate Commerce Commission, in which the United States intervened. On demurrer to bill. Demurrer sustained, and bill dismissed. For opinion and order of the Interstate Commerce Commission, see 17 Interst. Com. Com’n R. 239.

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1307 to date, & Rep’r Indexes-</p> <p>‘For other cases see same topic & § numbbh in Dee. & Am. Digs. 1307 to date, & Rep r Indexes</p>

<p>1. Railroads (§ 113*) — Tracks—Relocation—Abutting Property Owner— Damages.</p> <p>Under the general law relating to the authority of a railroad, company to relocate its tracks, no right of action arises in favor of an abutting property owner who in consequence of the relocation suffers diminution in value or loss from his inability thereafter to connect his property by switches or otherwise with the railroad tracks.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 351-361: Dec.' Dig. § 113.*]</p> <p>2. Railroads (§ 99*) — Grade Crossings — Abolition—Damages to Property Owner.</p> <p>Rev. St. Ohio § 3337 — 9, with reference to the abolition of railroad grade crossings, provides that all claims for damages must be iiled as provided by section 2315. Section 3337 — 10 provides that the ordinance for the improvement shall contain a statement of damages claimed, or likely to accrue. Section 3337 — 12 declares that the cost of the improvement including the cost of land purchased or appropriated and damages to abutting property shall be apportioned according to a prescribed mode, and section 3337 — 15 provides that all claims for damages filed according to section 3337 — 9 shall be assessed and determined according to sections 2316-2326, inclusive. Held, that the damages referred to were the damages sustained to property abutting the street, and not to property abutting the railroad, and that the statute did not contemplate an allowance either against the city or the railroad company of incidental damages to an owner of property abutting the railroad resulting from his inability thereafter to connect his property with the railroad by switches' as he had been previously enabled to do.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 293-304; Dec. Dig. § 99.*]</p>

In Equity. Bill by Edward M. Quinby against the City of Cleveland, Ohio, and others, to enjoin proceedings in enforcement of an ordinance relating to abolishment of railroad grade crossings.

In Admiralty. Suit by Arthur C. Chaney, as master of the schooner Marie Palmer, against the tug Edgar F. Coney, South Atlantic Towing Company, claimant, American Agricultural Chemical Company, intervener. By an amendment to the answer, claimant presented a petition for limitation of liability.

<p>In Equity. Suit by the Prest-o-Lite Company against the Auto Acetylene Eight Company.</p>

<p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Eep'r Indexes</p>

<p>Bankruptcy (§ 387*) — Composition—Bight of Creditor to Prove Increased Claim — Baches .</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14c, 30 Stat. 530 (U. S. Comp. St. 1901, p. 3427), wMch provides that confirmation of a composition shall discharge the bankrupt from his debts legally covered by the composition, a creditor whose claim was shown on the bankrupt’s schedule, and who was given due notice of the offer of composition, but paid no attention to it, and made no proof of his claim, is chargeable with laches, and ‘ in the absence of fraud will-not be allowed to come in and prove a larger claim, after the composition has been confirmed and he has received his dividend on the amount shown by the schedules.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 387.*]</p>

In. Bankruptcy. In the matter of bankruptcy proceedings of Olive A. Fitzgerald. On petition to review an order denying a motion to dismiss the petition of intervening creditors.

<p>*For other cases see same topic & § number in Déo. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>*For other cases see same topic & § number in Dee. & Am. Digs. 3901 to date, & llop'r Indexes</p>

<p>♦For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Reo’r</p>

Suit in equity by the American Uand Company against Douis Zeiss. Decree for defendant, and complainant appeals. Action to declare a decree entered in the superior court of the city and county of San Prancisco under the act of the Legislature of the state entitled “An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records,” approved June 16, 1906 (Stats, of Cal. 1906 [Ex.

<p>•For other cases see same topic & ¡ number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>«For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>•For other cases see same topic & § mumber in Dec. & Am. Digs'. 1907 to date, & Rep’r Indexes</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Wills (§ 194*) — Construction—Effect of Subsequent Conveyance of Lands Devised.</p> <p>Under the rule of the common law, a contract to sell land to be paid for in the future, made by the owner after the execution of a will devising the land, operated as a revocation of the devise, and the obligation of the purchaser to pay for the land passed under the will as a part of the personal estate of the testator.</p> <p>[Ed. Note. — For other eases, see Wills, Cent. Dig. §§ 481-489; Dec. Dig. § 194.*]</p> <p>2. Wills (§ 194*) — Construction— Subsequent Conveyance of Dands Devised — South Dakota Statute.</p> <p>By a will as executed some time before Ms death, a testator left all of his personal property to his wife. He also devised to her a life estate in certain described land in South Dakota, with.remainder to complainants. After execution of the will, ho entered into a contract for sale of the land, to be paid for in installments during 10 years, and shortly afterward he died. The purchaser fully performed his contract, making the payments to the widow, and after her death to her administrator. Civ. Code S. D. § 1025. provides that “an agreement made hy a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject; to the same remedies on the testator’s agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testators successors, if the same had passed by succession." Section 1028 provides that, “if the instrument by which an alteration is made in the testator's interest, in a thing previously disposed of by his will expresses his intent, that; it shall be a revocation, or if it contains provisions wholly inconsistent with the terms or nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.” Held, that under such provisions. construing them as in pari materia, the fee in the land passed to complainants, subject to the contract of sale, but that on its full performance it operated as a revocation of the devise, and the proceeds of the land passed as personal property under the general bequest to testator's widow or her estate.</p> <p>[Ed. Note. — For other cases, see Wills. Dee. Dig. § 194.*]</p>

Suit in admiralty by the Insurance Company of North America against, the Predk. Leyland & Co. (1900), Limited, owner of the steamship Darien. Decree for libelant for part of its claim, and it appeals.

<p>*For Ollier casos seo samo topic & § numbsb in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma.</p> <p>John Hodge was convicted of a criminal offense, and brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suits in equity by the Tabor Manufacturing Company against the . E. H. Mumford Company and others. Decrees (190 Fed. 179) for defendant, and complainant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit in equity by the General Electric Company against the E. H. Freeman Electric Company. Decree for complainant, and defendant ippeals.</p>

<p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Monopolies (§ 17*) — Anti-Trust Act — Contracts in Restraint on Trade.</p> <p>Sixteen corporations, producing 78 per cent, of all the sanitary enameled iron ware, such as bathtubs, sinks, etc., made in the United States, by mutual agreement previously made, entered into contracts by which they bound themselves to sell only certain grades of the ware only at prices and on terms fixed in schedules attached, or by a committee, and only to jobbers who should sign the resale contract prepared by them. Such contract was signed by 80 per cent, of the jobbers in the United States, and bound them to purchase only from some one of the 16 manufacturers, and to sell only at prices named in their resale price lists. Held, that such contracts entered into by the manufacturers were solely for the purpose of fixing prices and destroying competition, and constituted a combination in restraint of interstate commerce, and an attempt to monopolize such commerce, which was unlawful, as in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. § 17.*]</p> <p>2. Monopolies (§ 14*) — Anti-Trust Act — Illegality op Contracts — Restraint op Competition.</p> <p>Where the necessary effect of an agreement between manufacturers is clearly to restrain interstate trade within the purview of Sherman AntiTrust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), it cannot be taken out of the category of the unlawful by general reasoning as to its expediency or nonexpediency or the wisdom or want of wisdom of the statute.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 14.*]</p> <p>8. Monopolies (§ 14*) — Anti-Trust Act — Combinations in Restraint of Interstate Commerce — Effect of Use of Patented Device.</p> <p>A combination between a large majority of the manufacturers of enameled iron ware in the United States for the purpose of fixing prices, and which is clearly in restraint of interstate trade, is not saved from illegality under the Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), by the fact that the contracts creating the combination were embodied in licenses to its members to nse a patented automatic dredger, which was a useful and time-saving tool used in finishing the ware to sprinkle the last two or more coats of powdered enamel on the heated iron; the ware itself being unpatented, and the enameling being but one of several operations required in its production, to which operation even the patented dredger was not essential, hut merely an improvement on the hand operated dredgers of the prior art, still in nse in some factories.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 14.*]</p> <p>4. Monopolies (§ 8*) — Anti-Trust Act — Use of Patented Article.</p> <p>In spite of the Sherman act, the patentee may monopolize for the term of his patent the thing which he or his assignor invented. Tf by the common law, or the statutes of a state, or by the enactments of Congress, men are forbidden to restrain trade or to monopolize it, a patentee may not restrain trade or attempt to monopolize it in anything except that which is covered by his patent.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 8.*]</p> <p>5. Monopolies (§ 24*) — Anti-Trust Act — Suit to Enjoin Violation — Pendency of Criminal Prosecution.</p> <p>Unless in an exceptional case, a federal court of equity will not postpone the hearing and decision of a suit brought by the United States under Sherman Anti-Trust Act July 2, 1890, c. 647, § 4, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201), to enjoin violation of the act to await the determination of a criminal prosecution against some of the same defendants based on the same alleged violations.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 24.*]</p> <p>6. Commerce (§ 40*) — Interstate Commerce — What Constitutes.</p> <p>A manufacturing company which makes its product in one state and stores it in warerooms in other states, where it is sold, the trade extending over several states, is engaged in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent, Dig. §§ 29, 30; Dec. Dig. § 40.*]</p> <p>T. Monopolies (§ 24*) — Anti-Trust Act — Suit eor Violation — Parties.</p> <p>Officers of corporations which entered into an illegal combination in restraint of interstate commerce, who personally took no part in. the formation of such combination, are not proper parties defendant in a suit against the corporations for an injunction under Sherman Anti-Trust Act July 2, 1890, c. 647, § 4, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201).</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 24.*]</p> <p>8. Patents (§ 1*) — Definition.</p> <p>A patent is a grant of a right to exclude all others from making, using, or selling the invention covered by it.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5228-5231; vol. 8, p. 7748.J</p> <p>Goff, Circuit Judge, dissenting.</p>

<p>1. Patents (§ 310*) — Suit fob Infringement — Demurrer to Bill.</p> <p>In a suit for infringement of a patent, the defense of laches, or that the patent itself is void for uncertainty, does not usually constitute ground for demurrer, but is a matter to be determined on the hearing.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 310.*</p> <p>Laches ás a defense in suits for infringement, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>'2. Patents (§ 310*) — Suit fob Infringement — Demurrer to Bill.</p> <p>The objection that a bill for infringement does not allege which of the claims of the patent are relied on is not ground for demurrer, but should be taken by motion to require complainant to specify such claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*]</p>

<p>In Equity. Suit by T. B. Wood’s Sons Company against the Valley Iron Works.</p>

<p>Patents ($ 328*) — Infringement—Yacttum Tijbf.s.</p> <p>The Sayen patent, No. 591.030. for an improvement in high vacuum or Roentgen ray tubes, claims 2 and 3 held infringed on a motion for preliminary injunction.</p>

<p>In Equity. Bill by Moss & Co., against P. H. McCarthy and others.</p>

<p>1. Appeal and Error (§ 1180*) — Injunction—Reversai^Effect.</p> <p>Reversal of an order granting an injunction which contemnors are charged with having, violated leaves no basis on which to rest a judgment for. a compensatory fine.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4626-4631; Dee. Dig. § 1180.*]</p> <p>2. Contempt (§ 54*) — Proceedings—Pleading.</p> <p>Allegations, in moving papers for contempt, alleging the doing of certain acts, and charging the same to be in violation of complainant’s rights and of a preliminary injunction, and that respondents, by means of such acts, have interfered with complainant’s exclusive right to possess and enjoy the good will of a business to their irreparable injury, while appropriate to a proceeding for compensatory relief, were inappropriate in a proceeding to punish for criminal contempt.</p> <p>- [Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 143-149; Dee. Dig. § 54.*]</p> <p>3. Contempt (§ 54*) — Criminal Contempt — Nature of Proceedings.'</p> <p>A contempt for which one may be punished by fine or imprisonment, in vindication of the authority .of the court and to sustain the majesty of the law, is in its nature a distinct criminal offense and must be laid as such in some appropriate form.</p> <p>[Ed. Note. — For other cases, see Contempt, Dec. Dig. § 54.*]</p> <p>4. Injunction (§ 230*) — Violation—Criminal Contempt — Proceedings.</p> <p>Moving papers to punish respondents for criminal contempt in violating an injunction, while not required to be prepared with the nicety and precision- of an indictment, must, nevertheless, clearly specify the acts which the respondent will be called upon to meet, and advise him, .in some form, that the judgment sought against him is of a punitory character; it being insufficient that the papers pray that respondents be “attached for contempt.”</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 502-516; Dec. Dig. § 230.*]</p> <p>5. Contempt (§§ 40, 54*) — Criminal Contempt — Proceedings.</p> <p>A criminal contempt is no part of the main case, but is a proceeding independent and apart therefrom, in the nature of a criminal prosecution, and should have a title of its own, appropriate to indicate its character.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 122-124, 143-149; Dee. Dig. §§ 40, 54.*]</p>

<p>1. Salvage (§ 18*) — -Person Entitled to Compensation — Charterer—Negligent Sinking of Vessel.</p> <p>A charterer of a tug. who drove her through the ice, causing injuries from which she sunk, was under legal obligation to make the loss good, and cannot maintain a claim against the owner for salvage services rendered 'in doing so.</p> <p>[Eel. Note. — For other cases, see Salvage, Cent. Dig. § 35; Dee. Dig. § 18.*]</p> <p>2. Shipping (§ 58*) — Contract for Repair of Tug — Evidence.</p> <p>Evidence considered, and held to establish the claim of the owners of a tug, sunk through the negligence of the charterer, that a contract was subsequently made between the parties by which, in consideration of the settlement of all claims by the owners for damages, the charterer agreed to raise and repair the tug at actual cost.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 58.*]</p>

<p>•■For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Itop’r Indexes</p> <p>*For other oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes ’</p>

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>'’For other cases see same topic & § number in Dec. & Am. Digs. 1007 to date, & Rep’r Indexes</p>

At Law. Action by Bertha Smith against the National.Bank o£ D. O. Mills & Co. This is an action to recover from the defendant, a corporation doing a general banking business at the city of Sacramento, in this state, the amount of a draft delivered to it by flie plaintiff for collection. The material facts are these: Plaintiff, a resident of Nevada, had funds on deposit with the State Bank & Trust Company, a Nevada corporation, at Tonopah, in that state.

In Bankruptcy. In the matter of bankruptcy proceedings of Adolph Nelson. The referee granted the application of a conditional vendor of certain farm implements and machinery to surrender the same and the trustee filed a petition for review.

<p>Corporations (§ 320*) — Stockholders’ Suit — Grounds.</p> <p>Where a corporation has continued to do business at a loss until the market value of its assets does not exceed its liabilities, and it is without’ funds to continue as a going concern, so that its stock has no substantial value, a minority stockholder cannot recover damages from the majority stockholders because of their action in transferring the property and business of the corporation to a purchaser in consideration of his assumption of its debts, even if such transfer was not authorized by law.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 320.*</p> <p>Rights of minority stockholders as to management of corporate affairs, see note to Wheeler v. Abilene Nat. Bank Bldg. Co., 89 C. C. A. 482.]</p>

<p>•For other cases see same topic & § rumbee in Dec. & Am. Digs. 1907 to date, & P.ep’r Iudexw</p>

In Bankruptcy. Tn the matter of bankruptcy proceedings by Emory G. Barrager. On petition of C. E. Miller and the Central Gife Assurance Society of Des Moines, Iowa, creditors of bankrupt, to review an order of the referee refusing to permit them to enter an appearance in opposition and to file specifications of objection to the bankrupt’s discharge. r

<p>-i'For other cases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes ‘</p>

In Equity. Suit by Samuel Carr and others against Charles R. Hannan and others, and the state of Iowa intervenes. From a decree for complainants, intervener and Jessie W. Hannan, a grantee of defendant Charles R. Hannan, appeal.

Appeals from the Circuit Court of the United States for the Southern District of Iowa. " b In Equity. Suits by tlie John A. Creighton Real Estate & Trust Company and others against Charles R. Hannan and others, arid the state of Iowa intervenes. From decrees for complainants, Jessie W. Hannan, grantee of defendant Charles R. Hannan, and the intervener appeal.

Action at law by Alfred Abed against the Vilter Manufacturing Company. Judgment for plaintiff, and defendant brings error. This is an action, at law orginally brought by defendant in error herein in the district court of McLennan county. Tex., and removed to the Circuit Court in and for the Western District of Texas by petition of the defendant, the Vilter Manufacturing Company.

<p>*For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p> (Syllabus by the Court.) </p> <p>1. Damages (§ 112*) — Measure of Damages — Injuries to Crops.</p> <p>The measure of damages to a growing crop by a wrongful act which destroys it is its value at the time and place of its destruction.</p> <p>The mea sure of the damage to a growing eroj) Injured, but not rendered worthless, is the difference between the value of that crop before and after the injury at the time and pl.ace thereof.</p> <p>'Where a crop is injured from time to time throughout its growing season until its maturity by sulphurous fumes and their products, but is not destroyed so that it is cultivated throughout the season, harvested and marketed, the damage to it may be lawfully measured under these rules by the difference between the value at maturity of the probable crop, if there had been no injury, and the value of the actual crop at that time, loss the expense of fitting for market that portion of the probable crop which was prevented from maturing by the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*J</p> <p>2. Damages (§ 174*)--Evidence — Injuries to Crops.</p> <p>Evidence of the kind of crop the land wilt ordinarily yield, of the stage of the crop’s growth when Injured or destroyed, of the average yield pet-acre of similar land in the neighborhood, the crop of which was cultivated in the same way and was not injured, of the market value of the crop injured, and of the market value of the probable crop without the injury at the time of maturity, of the expense that would have been incurred after the injury in fitting for market the portion of the probable crop the wrongful act prevented from maturing, of the time of the injury and of the circumstances which conditioned the probability of the matnring of the crop at that time in the absence of the injury, is competent, and may be weighed by the jury to find the damage to a growing crop at the time of its injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. § 174;* Railroads, Cent. Dig. § 1726.]</p> <p>3. Nuisance (§ 50*) — Compensatory Damages — Elements.</p> <p>The owner of a residence which is rendered inconvenient, uncomfortable, and unhealthy as a home by the nuisance of sulphurous fumes and their products thrown upon and into it by another may prove and recover in an action therefor the damages he suffers himself from the discomfort and sickness thereby inflicted upon his wife and the other members of his family who live with him therein, although he may not, and his wife'alone may, maintain the cause of action for the direct personal injury to her.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 118t127 ; Dec. Dig. § 50.*]</p> <p> (Additional Syllabus by Editorial Staff J </p> <p>4. Nuisance (§ 49*) — Action, for Damages — Evidence.</p> <p>In an action for injury to crops by sulphurous fumes, the fact that growing crops of apples and other fruits were destroyed before maturity, and there was no evidence what expense was saved to plaintiff in their cultivation from the time their destruction, was patent to the time when they would mature, does not show that the plaintiff was not entitled to recover any damages nor that his recovery should be limited to nominal damages, where there was evidence that plaintiff cultivated to maturity crops of potatoes, and their yield was only 100 bushels to the acre, when it probably would have been 300 bushels if the crops had not been injured, that the market value of the potatoes at the time of their maturity was 60 cents per bushel, and that the expense of harvesting and marketing them was 10 cents per bushel.</p> <p>[Ed. Note. — For other cases, see Nuisance, Dec. Dig. § 49.*] •></p> <p>5. Nuisance (§ 53*) — Action for Damages — Question for Jury.</p> <p>In an action for-injury to crops from sulphur fumes, evidence held to authorize submission to the jury of the question what proportion of the fumes from different smelters was from that of the defendant.</p> <p>[Ed. Note. — For other cases, see Nuisance, Dec. Dig. § 53.*]</p>

Action by the United States against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. ■This is an action in debt begun by the United States to recover a penalty of $100 incurred by the defendant in hauling a ear not equipped as provided in the safety appliance act of March 2, 1S93, as amended by an act approved March 2, 1903.

<p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p>

Suit in equity by Alexander Pantages and the Pantages Theater Company against David J. Grauman, Sid Grauman, New York & San Francisco Amusement Company, David Grauman and Sid Grauman, copartners, doing business as David J. Grauman, Claus A. Spreckels, and Rudolph Spreckels, executors'of the last will of Claus Spreckels, deceased, and Maurice Asher. Decree for defendants, and complainants severally appeal.

Petition for Revision of Proceedings of the District Court of the United States for the District of New Jersey, in Bankruptcy. In the matter of Benajah D. Andrews, bankrupt. On petition of Harvey K. Partridge, trustee, to review an order adjudging the executrix of the deceased bankrupt entitled to proceeds of certain life insurance policies.

<p>1. Courts (§ 276*) — Jurisdiction of Federal Courts — District of Suit-Waiver of Objection. •</p> <p>Where, in an action in a federal court by an employé against a railroad company for a personal injury, although the petition did not expressly declare upon the federal employer’s liability statute, the court submitted the case to the jury upon the theory that it was based on that statute, the failure of defendant at any time to raise the objection that it was not suable under such statute in that district was a waiver of such objection.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*</p> <p>Waiver of right as to district in which suit may be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. R. Co., 87 C. C. A. 634.]</p> <p>2. Pleading (§-388*) — Variance.</p> <p>A variance between pleadings and proof is not material, unless of a character to mislead the opposite party.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1305-1308; Dec. Dig. § 388.*]</p> <p>3. Apfeal and Error (§ 1066*) — Review—Harmless Error — Instructions.</p> <p>Instructions in an action by a railroad employé for a personal injury, given on the theory that the action was based on the federal employer’s liability statute, even if erroneous, because not warranted by plaintiff’s pleading, were not prejudicial to defendant, unless the rules of liability under such statute were more burdensome than those under the alternative state statute.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>4. Appeal and Error (§ 273*) — Exceptions to Instructions — Necessity for Specific Exceptions.</p> <p>A general exception to a charge, on the ground that it erroneously submitted the case under a federal statute, which was not applicable to the case made by the pleadings, is not sufficient to sustain assignments of error based on specific differences between the rules of liability stated and those prescribed by the alternative state statute.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1020, 1621; Dec. Dig. § 273 ;* Trial, Cent. Dig. §§ 689-606.]</p> <p>6. Trial (§ 63*) — Order om Proof — Discretion of Court.</p> <p>The admission in rebuttal of testimony which is not strictly rebuttal, hut which should have been introduced in chief, is within the discretion of the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 151-153; Dec, Dig. § 63.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Kendall B. Cressey against the Pennsylvania Taximeter .Cab Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action at law by Ada M. Davis against the vEtna Life Insurance Company, judgment for plaintiff, and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the Western District of Washington, in Bankruptcy. In the matter of William A. Stannus & Son, bankrupts. Petition by I. H. Jennings, trustee, to revise an order allowing exemptions to William A. Stannus from partnership property. This is a petition for revision of the order and judgment of the District Court made in bankruptcy.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>In Equity. Bill by the Westinghouse Electric & Manufacturing Company, against the Century Electric Company. From a decree for complainant, defendant appeals.</p>

<p>Patents (§ 328*) — Validity and Infringement — Incandescent Lamp Socket.</p> <p>The Perkins patent, No. 026,927, for an incandescent lamp socket, was not anticipated and is valid; its patentable novelty being in providing chambers insulated with reference to the path of possible current travel. Claims 4 and 6 also held infringed.</p>

<p>«For other cases see same topic & § nU-v.bfi: in Dec.. &. Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Monopolies (§ 20*) — Anti-Trust Act — Common Stockholding in Corporations.</p> <p>The fact that the common stock of two or more corporations, engaged in the same general lines of business, is owned by the same body of individual stockholders, does not alone create a condition of monopoly repugnant to {lie provisions of the Sherman anti-trust act (Act July 2, 1890. c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]).</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>2. Monopolies (| 26*) — Anti-Trust Act — Dissolution op Illegal Combinations.</p> <p>In dissolving a combination adjudged to be in restraint of interstate commerce ami to constitute a monopoly in violation of the Sherman antitrust act (Act July 2. 3890. c. 647. 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), and recreating from its elements a new condition in harmony ■with and not repugnant to the iaw, a court is not required to reject a proposed plan of reorganization by creating new corporations between which the property and business of the illegal combination is to be distributed because such corporations will be themselves largely capitalized, which does not in and of itself render them illegal, where the capitalization of neither is sufficient to enable it to dominate the business, and each is restrained by a permanent injunction from combining with any other company: nor should further restrictions be imposed on them to which other corporations engaged in the same line of business are not subjected by the law.</p> <p>|Ed. Note. — Por other cases, see Monopolies, Cent. Dig. g 17; Dec. Dig. g 26.*]</p> <p>3. Monopolies (§ 26*) — Anti-Trust Act — Suit fob Violation — Dissolution or Illegal Combination.</p> <p>Where a Circuit Court, pursuant to the mandate of the Supreme Court, has approved a plan for dissolution and reorganization of a combination adjudged to be In violation of the Sherman anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), by distributing its property between existing corporations and others organized for. the purpose, the court is without power to retain jurisdiction to retake possession of the property from its new owners in case the plan adopted shall prove unsatisfactory, or because of future violations of the law.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 26.*]</p> <p>4. Monopolies (§ 26*) — Anti-Trust Act — Suit for Dissolution of Illegal Combination — Decree.</p> <p>By a decree of the Supreme Court the American Tobacco Company was adjudged an illegal combination, in restraint of interstate commerce, and a monopoly, in violation of the Sherman anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), and 29 individual defendants, owning 56 per cent, of its common stock, were adjudged parties to such illegal combination. The cause was remanded to the Circuit Court to hear the parties “for the purpose of determining upon some plan or method of dissolving the combination, and of recreating out of the elements now composing it a new condition which shall be honestly in harmony with, and not repugnant to, the law.” The defendant company had property and assets of some $300,000,000 in value, and by means of its own plants, etc., and through other corporations in which it acquired a majority of the stock, controlled approximately 80 per cent, of the business of the United States in tobacco and allied products as well as a very large proportion of foreign business. The plan proposed, as amended and approved by the court, provided in outline that the company should transfer plants and property to the value of over $100,000,000, dividing its previous business between four cor- . porations, and with the proceeds of such property should retire its bonds to the amount of about $100,000,000, thus reducing its working capital and assets; that its preferred stock, exceeding its common stock, previously nonvoting, should be given full voting rights; that the subsidiary and controlled companies should be similiarly subdivided and their preferred stock given voting rights, so that the business previously controlled by it should be in the hands of 14 separate corporations; that its share of the stock of such corporations should be distributed among its stockholders; that all contracts or covenants between it and any of its subsidiary companies, or between it or them and third parties, in restraint of interstate or foreign commerce, should be abrogated. The decree further contained sweeping injunctive provisions restraining each of the 29 individual defendants from increasing his interest in any of the . 14 corporations, and restraining such corporations from acquiring stock in each other, or having common officers or directors, and from entering into any combination or contract with each other in violation of law.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 26.*]</p>

Uibel by the United States for condemnation of 40 barrels and 20 kegs of Coca-Cola, the Coca-Cola Company, claimant. On motion by claimant for directed verdict. A libel for condemnation was filed in the name of the United States of America by the United States Attorney under section 10 of the Food & Drugs Act of June 30, 1906. c. 3915, 34 Stat. 771 (U. S. Comp.

<p>T, Bankruptcy (§ 166*) — Voidable Preference — Notice of Debtor’s Insolvency.</p> <p>A creditor of a bankrupt who took security within four months prior to the bankruptcy with notice of facts which would incite a man of ordinary prudence to inquiry as to the solvency of the debtor is chargeable with notice of all facts which a reasonably diligent inquiry would have disclosed.</p> <p>[K<1. Note. — -For other cases, see Bankruptcy, Gent. Dig. §§ 250-258: Dec. Dig. § 166.*]</p> <p>2, Bankruptcy (§ 303*) — Voidable Preference — NotIce of Insolvency.</p> <p>Evidence considered, and halt! to show that a bank which within four months prior to the bankruptcy of a lumber company, and when it was insolvent, took from such company a large part of its assets, including practically all of the bills receivable taken by it in the course of its busL ness as security for an antecedent indebtedness, without making inquiry</p> <p>> as to its solvency except from the president ’ of the company and its attorney, had reasonable cause to believe that it was insolvent, and intended a preference, which rendered such transfers voidable at suit of the bankrupt’s trustee.</p> <p>(Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 462; Dec, Dig. § 303.*]</p> <p>8. Bankruptcy (§ 161*) — Voidable Preference — Transfers in Execution of Prior Agreement.</p> <p>Transfer of property to a creditor by an insolvent within four months prior to its bankruptcy, which would otherwise constitute a voidable preference, are not deprived of that character by the fact that they were made pursuant to a prior agreement made more than four months before bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 263; Dec. Dig. § 161.*]</p>

At Raw. Ejectment by Maria G. Dewey and others against the Sewanee Fuel & Iron Company to recover possession of certain land in Grundy couuty, in the Middle District of Tennessee, alleged lo be wrongfully withheld by defendant. On defendant’s demurrer to plaintiff’s third replication to the second and third pleas.

<p>Indictments against the John Reardon & Sons Company and the Consolidated Rendering Company, against Ferdinand Stdzberger and Horatio W. Heath, and against Horatio W. Heath and Cyrus S. Hap-good. On demurrers to indictments.</p>

In the matter of the Varley & Bauman Clothing Company, bankrupt. On review of orders of referee disallowing claims of Simons & McGill and Weil & Livingston except on return of preferences.

<p>In the matter of Henry Weitzcl, alleged bankrupt. On petition to reclaim property from the trustee.</p>

In the matter of Kleyn, bankrupt. On petition of the Mishawaka Woolen Manufacturing Company to reclaim property, contested by Adrian J. Westveer and Josephine K. Westveer, mortgagees. Order ' denying petition, and petitioner appeals.

Action by M. Feintuch and the Newton Gum Company against the Chicago, Burlington & Quincy Railroad Company, the Union Pacific Railroad Company, the Southern Pacific Company, and the Atchison, Topeka & Sante Fé Railway Company. Judgment for plaintiffs, and defendants bring error.

Appeal fom the Circuit Court of the United States for the Northern Division of the Western District of Washington. Suit by the G. H'eileman Brewing Company against the Independent Brewing Company. Decree for defendant, and complainant appeals. This cause comes here on demurrer to the hill of complaint; the demurrer ■ having been sustained and the bill dismissed.

Petition for Revision of Proceedings of the District Court of the United States for the Middle District of Pennsylvania, in Bankruptcy. In the matter of David Ungerleider, bankrupt. Petition by John R. Halsey, trustee, to review an order permitting the Diamond Distilleries Company to reclaim property.

<p>1. Appeal and Error (§ 850*) — Review—Action Tried Witiiout Jury.</p> <p>Under Rev. St. §§ 649, 700 (U. S. Comp. St. 1901, pp. 525, 570), on the trial of a cause in the Circuit Court without a jury, there is no right of review, when findings of fact are not made, except as to rulings of the court during the trial, excepted to at the time and duly presented by bill of exceptions; and an opinion of the court, stating its conclusion as to the effect of the evidence, cannot be considered as such a ruling. When there is a special finding of facts, the review may extend to a determination of the sufficiency of such finding tp support the judgment, for which purpose no exception is necessary, and also to the question whdfcher there is evidence tending to support such finding, if seasonable exception is taken, but not otherwise.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3351; Dec. Dig. § 850.*]</p> <p>2. Appeal and Error (§§ 983. 977*) — Judgment (§ 300*) — New Trial (§ 6*)— Review — Discretion op Court.</p> <p>Both a motion for a nunc pro tunc order to amend the judgment and a motion for a new trial are within the discretion of the court, and the denial thereof is not reviewable in the federal courts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3880, 3860-3865; Dec. Dig. §§ 983. 977 :* Judgment, Cent. Dig. § 581; Dec. Dig. § 300 ;* New Trial, Cent. Dig. §§ 9, 10; Dec. Dig. § 6.*]</p>

<p>1. Evidence (§ 222*) — Admissions—Oral Statements of a Parts’ Admissible, Though Facts Not Within I-Iis Personal Knowledge.</p> <p>Where defendant, charged with liability for an injury to plaintiff, caused by’ his automobile, stated to plaintiff’s representative that the car was his, and was being operated at the time in his behalf, such statement was admissible in evidence against him, whether or not he spoke of his own knowledge of the facts.</p> <p>[Ed. Note. — For other cases, see Evidence. Cent. Dig. §§ 7G8-808; Dec. Dig. § 222.*]</p> <p>2. Evidence (§ 205*) — Pro os of Conversation Through Interpreter.</p> <p>The testimouy of a witness to a conversation held with another through an interpreter is admissible, without the evidence of the interpreter.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 700; Dec. Dig. § 205.*]</p>

<p>In Equity. Suit by the Electric-Dynamic Company against the Westinghouse Electric & Manufacturing Company for infringement of letters patent No. 775,310 for a variable speed motor granted November 22, 1904, to Mathias Pfatischer. On final hearing.</p>

<p>1. Patents (§ 297*) — Suit bob Infringement — Pbeliminary Injunction.</p> <p>Where, in a suit for infringement, although the patent has been adjudged valid in a prior suit, an entirely new issue as to anticipation is raised and supported by testimony which is convincing if credited, unless such testimony is clearly impeached by complainant, his right is too doubtful to warrant the granting of a preliminary injunction.</p> <p>[Ed. Note. — Por other eases, see Patents, Cent. Dig. § 488; Dec. Dig. ' § 297*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p> <p>2. Patents (§ 260*) — Infringement—What Constitutes.</p> <p>The violation of the sole right of a patentee to manufacture and sell the patented article cannot be justified by a special use, nor by an entire nonuse of the infringing article.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 359; Dec. Dig. § 260.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Electric Switch.</p> <p>A preliminary injunction against infringement of the Hewlett & Emmet patent, No. 800,916. for a removable oil can, high potential electric switch denied, but granted as to the Emmet & Hewlett patent, No. 789,-597, for a high potential switch.</p>

In Equity. Suit by E. H. Benoist, receiver, Mississippi Valley Trust Company, trustee, and Cumberland Coal & Coke Company, against W. C. Smith. On motion by defendant to dismiss, or, in the alternative, to stay proceedings.

<p>•For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Criminal proceeding by the United States by indictment against Clinton C. McClartv. On demurrer to indictment.</p>

<p>“For other cases see same topic & § numbfk in Dec. & Am. X>igs. 1907 to date, & Rep’r Indexes</p>

<p>In Admiralty. Suit by the Fargrove Navigation Company, Limited, as owner of the Steamship Bardsey, against Lavino & Co.</p>

<p>•For other eases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Eep’r Indexes</p>

<p>Copyrights (§ 39*) — Infringement—Manufacturers’ Catalogues.</p> <p>A manufacturer of unpatented articles cannot practically monopolize their sale by copyrighting a catalogue containing illustrations of them; nor can another manufacturer of identical articles be deprived of the right to illustrate them in his catalogue, providing his illustrations are not in fact copied from the copyrighted catalogue.</p> <p>TEd. Note. — For other cases, see Copyrights, Cent. Dig. § 39; Dec. Dig. § 39.*]</p>

Suit in equity by Catherine D. Stead, Horace W. Philbrook, as administrator with the will annexed, of the estate of Joseph P. Wilson, deceased, Serena K. Wilson, Elizabeth A. Burgan, and Franklin S. Burgan, as her husband, Ellwood J. Wilson, Martha E. Dowell and George W. Dowell, as her husband, and Joseph P. Wilson, Jr., against Isabella M. Curtis and John M. Curtis, as her husband, Elizabeth M. Muir Mugan and William G. Mugan, as her husband, John M. Curtis, William G.…

<p>«For other eases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep'r Indexes</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>«For other cases see.same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Rep’r Indexes</p>

<p>pBINCIPAL AND AGENT (§.174*) — RATIFICATION OF AGENT’S ACTS — QUESTIONS FOB JUBY.’</p> <p>In an action against a corporation on a contract made by an agent, which defendant denied having authorized or ratified, proofs adduced by plaintiff showing a contract, receipt by defendant of goods delivered thereunder to the value of $12,000, and payment therefor, and refusal by defendant to receive further shipments, made out a prima facie ease, the evidence being such that the authority of the agent to make the contract and its ratification by defendant might be inferred therefrom; and. whether such prima facie case was overcome by evidence adduced by defendant was a question for the jury, and not for the court to determine as a matter of law.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 725; Dec. Dig. § 174.*]</p>

<p>«•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Principal and Surety (§ 117*) — Surety for Building Contractor — Discharge — Failure of Owner to Retain Agreed Percentage of Price.</p> <p>Dnder a building contract providing for monthly payments of 90 per cent, of the value of the labor and material in place, and that the owner shall retain the remainder of the price until completion and acceptance of the building, the measure of value on which the partial payments are to be estimated is the contract price for the completed building, and a surety for the contractor, entitled by the terms of his bond in case of default by the contractor to the benefit of all retained percentages, is discharged if the owner has failed to retain at least 10 per cent, of the contract price.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 283-285; Dec. Dig. § 117.*</p> <p>Discharge of surety on'building contract by change in obligation or duty of principal, see note to United States v. Walsh, 52 C. C. A. 427.]</p>

Actions by the United States against Henry K. Wampole & .Co;., against the Smith, Kline & French Company, and against Edward H. Hance and others, trading as Hance Bros. & White. Judgment for the United States in each case, and defendants bring error.

Action by I,ouis Wiegel and Sarah Jane Wiegel, his wife, against the Pittsburgh & Lake Erie Railroad Company, operating the Pittsburgh, McKeesport & Youghiogheny Railroad. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Suit in equity by Reinhold Herman against the Youngstown Car Manufacturing Company. Decree for defendant and complainant appeals.</p>

<p>1. Patents (§ 312*) — Suits fob Infringement — Burden and Measure of Proof. • ■</p> <p>Infringement of a patent is not only a question of fact, but is a tort or wrong, the burden of establishing which, as in all torts, clearly rests on those who charge such wrong; and the absence of actual fact proof is not met by tbe presence of expert speculations, no matter how voluminous.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.*]</p> <p>2. Patents (§ 1*) — Nature of Patent — Patent as Contract.</p> <p>An American patent is a written contract between an inventor and the government. This contract consists of mutual interrelated considerations moving from each party to the other for such contract. The consideration given on the part of the inventor to the government is the disclosure of his invention in such plain and full terms that any one skilled in the art to which it appertains may practice it. The consideration on the part of the government given to the patentee for such disclosure is a monopoly for 17 years of the invention disclosed to the extent of the claims allowed in the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>3. Patents (§ 229*) — Infringement—Process Patents.</p> <p>The test of infringement of a process patent is not identity of a prod- ' uct which is not patented, but identity of patented process in producing an unpatented product.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 366; Dec. Dig. § 229.*]</p> <p>4. Patents (§ 159*) — Suit for Infringement — Province of Expert Testimony.</p> <p>It is only where a court requires the explanation of technical terms or the language of any particular art to enable it to understand the specification of a patent that the testimony of those expert in the art is pertinent. The province cf such expert testimony is to remove uncertainty where the terms used are obscure, and not to create uncertainty where the language is plain.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 233, 236; Dec. Dig. § 159.*]</p> <p>5. Patents (§ 328*) — Novelty—Process of Making Armor Plates.</p> <p>The Schmitz and Ehrensberger patent, No. 534,178, for a process of manufacturing armor plates, has for its principle element off novelty the therein described process of carbonizing one side of the plates by the use of hydrocarbon gas in an intra-furnace chamber of specified form, as embodied in the four first claims. Claim 5, which covers the carbonizing of the plates, when placed In the same intra-furnace chamber, by filling the space between the two plates into which the gas is forced in the gas process with solid carbon, discloses only a duplication of the process of the prior Harvey patent, No. 460,262, by stacking one s>late upon another, and thus carbonizing two at the same time and by the use of the same charcoal, instead of treating one at a time as in the Harvey process, and is void for lack of patentable novelty.</p> <p>6. Patents (§ 328*) — Invention—Process tor Improving Quality of Armor Plates.</p> <p>The Schmitz patent, No. 642.926, claim 1, for a process of improving quality of armor plates by subjecting them to a treatment by reheating after their production by any one of the known processes of manufacture, for the purpose of producing what is known as a “fibered” structure in the steel, describes simply an annealing process, which is old, and is void for lack of invention.</p> <p>7. Patents (§ 99*) — Process Patents — Clearness of Disclosure Essential.</p> <p>In a process patent, the teaching of the specification and the disclosure by the patentee must be such that, after the patent has expired, a user thereof shall not be left to the blind groping of experimental work, but by the plain teaching of the specification be enabled to use the process with certainty.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 133-139; Dec. Dig. § 99.*]</p> <p>8. Patents (§ 226*) — Infringement—Effect of Proceedings in Patent Office.</p> <p>a patentee cannot make an infringement of the thing from which ho differentiated his invention in order to obtain his patent.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 226.*]</p> <p>9. Patents (§ 328*) — Infringement—Process of Hardening Armor Plates,</p> <p>The Ehrensbcrger patent s. No. 651,965 and No. (353,413, both relating to a process for hardening and toughening armor plates by what is known as differential heating of the two sides, construed, and claims 1 and 3 of each patent held not infringed.</p> <p>10. Words and Phrases — “Annealing.”</p> <p>“Annealing” is the process used to render glass, iron, etc,, less brittle bv allowing them to cool very gradually from a high heat.</p> <p>11. Words and Phrases — “Fibrous.”</p> <p>“Fibrous,” as used in the steel making art. is a generic term to denote a condition in contrast to the crystalline state. The “fibrous” state is obtained by annealing.</p>

<p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Patents (§ 95*) — Suit to Obtain Patent — Parties—Effect of Assignment by Inventor.</p> <p>The assignment by an applicant for a patent of all his right and title to the invention is effective and carries with it the right to the assignee to the patent when issued without express direction for its issuance to him and leaves no title, legal or equitable, in the assignor; but under the provisions of Rev. St. § 4895 (U. S. Comp. St. 1901, p. 3385), that notwithstanding an assignment an application for a patent shall be made by the inventor or discoverer, and of section 4915 (U. S. Comp. St. 1901, p. 3392), that a suit in equity to obtain a patent shall be brought by the “applicant,” the inventor may maintain such a suit in his own name, notwithstanding his assignment of his rights.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 127; Dec. Dig. § 95.*]</p>

In Admiralty. Proceeding by the owners of the auxiliary yacht Ilaida for limitation of liability for a collision with the yacht Natalie, and libel by the owners of the Natalie to recover for such collision.

<p>‘•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & itep’r Indexes</p>

<p>In the matter of the Plymouth Elevator Company, bankrupt. On review of decision and order of referee holding invalid a chattel mortgage in favor of T. E. Wells & Co.</p>

<p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

In Equity. Suit by the Montgomery Light & Power Company against the Montgomery Traction Company. On demurrer to bill. The substance of the contract here involved and the allegations of the bill in reference to it are sufficiently stated in the opinion.

<p>In the.matter of Arthur B. Gibson, bankrupt On review of order of referee.</p>

In Admiralty. Suit by Jeremiah J. McCarthy and James J. McCarthy against the Central Dredging Company. Libel in personam to. recover $341, for work and labor performed in raising sunken boat owned by the respondent corporation.

Ill Error to the District Court of the United States for the Western District of Arkansas. Action for mandamus on relation of Lewis Eriedman and Hiram Mincer, partners as Eriedman & Co., against the United States Express Company. Judgment (180 Fed. 1006) granting the writ, and defendant brings error.

Action by Mary K. Ponn, administratrix of the estate of Edward J. Ponn, deceased, against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Action for damages for the alleged wrongful death of the decedent, defendant’s employe.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action at law by Andrew Duke against the Portland Gold Mining Company. Judgment for plaintiff, and defendant brings error. On rehearing.</p>

<p>*yor other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

’ In Error to the Circuit Court of the United States for the Southern District of Ohio. Action by Edward S. Dickerson,.trading as Woodward & Dickerson, against the Louisville & Nashville Railroad Company. Judgment for plaintiff (187 Fed. 874), and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of Georgia.</p> <p>Suit in equity by Rollin J. Nelson against R. J. Camp and B. F. Camp. Complainant appeals from a decree granting an- injunction.</p>

<p>Master and Servant (§ 230*)- — Master’s Liability for Injury to Servant —Contributory Negli&ence.</p> <p>In an action by a minor employe, 16 years old, against his employer, to recover for personal injuries, the question whether or not plaintiff was chargeable with contributory negligence, when one for the jury, is to be determined in view of all the circumstances of the case, of which his age is one.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 687-700; Dec. Dig. § 230.*]</p>

<p>1. Criminal Law (§ 1170%*) — Appeal and Error — Review — Harmless Error. '</p> <p>Remarks made by the trial judge to counsel for defendants in a criminal case, and his refusal to permit counsel to continue the cross-examination of a witness, held, while error, to have been without prejudice, where the same witness was again on the stand, and there was a further opportunity for cross-examination. .</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.*]</p> <p>. 2. Criminal Law (§ 741*) — Evidence—Sufficiency.</p> <p>Evidence against one of several defendants in a prosecution for counterfeiting considered, and held sufficient to warrant the submission of the case against him to the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705-1728; Dec. Dig. §.741.*]</p>

<p>In Error to the Circuit Court, of the United States for the Eastern District of New York.</p> <p>Action at law by John Stojanowski against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>.Writ of error to review a judgment in favor of the defendant in error in an action to recover damages for personal injuries. In the opinion following the parties are designated as in the court below.</p>

Suit in equity by the Robinson Machine Company and others against the American Fruit Machinery Company and others. Decree for complainants, and defendants appeal.

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Courts (§ 268*) — Patents—Suit for Infringement — District of Suit.</p> <p>The provisiou of Rev. St. § 740 (U. S. Comp. St. 1901, p. 587), that, where there are two or more defendants in a suit in a federal court residing in different districts of the same state, the suit may be brought in either district, and duplicate writs issued directed to the marshal of any other district in which any defendant resides, is not applicable to suits for infringement of patents which are governed entirely by Act March 3, 1897, c. 395, 29 Stat. 695 (U. S. Comp. St. 1901, p. 588), providing that such suits may be brought in the district of which the defendant is an inhabitant, or in which be “shall have committed acts of infringement and have a regular and established place of business,” and under such act, although joint infringement is charged against defendants residing in different districts of the same state, a joint suit cannot be maintained therefor in a district other than that of which one of them is an inhabitant, unless be shall have both committed an act of infringement, and have a regular and established place of business in such district.</p> <p>I Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 806-807; Dec. Dig. § 268.*] .</p> <p>2. Courts (§ 268*) — Joinder of Causes of Action.</p> <p>A claim for damages for conspiracy to injure complainant in his property rights cannot be joined in a suit in equity for an injunction and accounting for infringement of a patent for the purpose of obtaining jurisdiction over a defendant who could not be sued in the district for the infringement.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 268.*]</p>

<p>Suit by M. Squire against W. H. Robertson. On motion to remand to state court.</p>

<p>In the matter of bankruptcy proceedings of W. R. Rainwater. On certificate of a referee denying the bankrupt’s claim to exemptions.</p> <p>Upon certificate of referee.</p> <p>To the Honorable District Judge:</p> <p>The undersigned, F. M. West, one of the referees in bankruptcy of this court, hereby certifies the following facts, with his opinion thereon, for action, pursuant to section 39 of the bankruptcy act:</p> <p>'The question here presented is whether the bankrupt is entitled to certain exemptions claimed.</p> <p>The facts are: On June 11, 1910, Rainwater was adjudged a voluntary bankrupt, and at the first, meeting of creditors, June 27, 1910, a trustee was duly elected. In the schedules as originally filed, the bankrupt claimed as exempt certain real estate situate in the village of Rucien, Miss., consisting of two lots, with storehouse thereon, valued at $2,000, in the upper story of which building the bankrupt resided.</p> <p>This property was incumbered to a bank at Brookhaven, Miss., for $000. On July 23, 1910, the bankrupt filed his petition, praying leave to amend his schedules so as to claim as "additional exemptions the sum of $200, in the hands of the trustee, and declared in said petition that he did not know at the time lie filed his schedules that he could hold as exempt the said sum of $200, because of being a resident of the said village; that he had not learned of such right until after the filing of his schedules, and of his adjudication.</p> <p>At the first meeiing of creditors, upon examination of the bankrupt, creditors verbally objected to the allowance of the real estate as exempt, and on July IS and August 2, 1910, they filed formal written objections to such allowance and to the further allowance of said $200. In the schedules as originally filed, the bankrupt claimed the real estate as exempted to him as head of a family because he had two sisters dependent upon him for support, one of whom lived with him. A few days before the first meeting, and after the adjudication, the bankrupt, evidently to make, as he thought, assurance doubly sure, took unto himself a wife, so that in his amended petition for exemptions he claimed the $200 as exempt because of being married and having also two dependent sisters, all supported by him. At the date of bankruptcy the claimant was a widower.</p> <p>The statute under which tile claim for exemptions is made is as follows: “(Code. 1906.) 2147. Exemptions in Cities, Towns and Villages. — Every citizen of this state, male or female, being a householder, and having a family, residing in any city, town, or village, shall be entitled to hold, exempt from seizure or sale under execution or attachment, the land and buildings owned and occupied as a residence by such person, not to exceed in value, save as hereinafter provided, three thousand dollars, and personal property to be selected by him, not to exceed in value two hundred and fifty dollars, or the articles specified as exempt to the head of a family.”</p> <p>There are two questions presented for determination:</p> <p>First'. Is the bankrupt entitled to the exemption because of being a married man?</p> <p>Second. If he is not entitled to the exemption because of his marriage, is he entitled to the exemption because of having two dependent sisters?</p> <p>[1] I do not think his marriage after the adjudication of itself entitles him to the exemption. It should be noted that the claimant did not marry until about two weeks after his adjudication, and within a few days of the election of his trustee. The law is that the trustee takes title to ail of the property of the bankrupt upon the adjudication. Section 70 of the act. This being the law, and the title of the bankrupt having passed upon adjudication (so far as the first question is concerned) to the trustee, the -bankrupt- could not, by marrying again after adjudication, retake the title which had already passed from him. The allowance of exemptions is fixed as of the date of the adjudication. Matter of Fletcher (D. C. Ohio) 16 Am. Bankr. Rep. 491. In the Fletcher case the bankrupt pursued a like course to the one here. He was a single man at .adjudication, but between that time and the first meeting of his creditors and election of a trustee he married; but that availed Mm nothing, since the court held that he had lost his title to the property when adjudication was had, and that his marriage did not revest the title in him. The cases of Irwin v. Lewis, 50 Miss. 363, Letchford v. Cary, 52 Miss. 791, Jones v. Hart, 62 Miss. 13, and Dulion v. Harkness, 80 Miss. 14, 31 South. 416, 92 Am. St. Rep. 563, have no application here.</p> <p>Those cases, under a state statute, decide that the debtor at any time before sale under execution may move upon the land, and, if he be head of a family, he may claim the property as exempted, and thus defeat the sale'of the property levied upon. He may even marry at any time before the sale of the property and claim it as exempted, and his claim will be recognized. It should be noted that the debtor in those cases does not part with the title until the land is actually sold under execution. In the instant case the title passed at date of adjudication. The distinction is quite evident.</p> <p>[2] Now as to the second question:</p> <p>The testimony shows that the claimant had a sister living at Wesson, Miss., who had three little girls working in the cotton mills at that place, and "one boy who worked in a store, and that he occasionally sent such sister sums of money, though the bankrupt mentions only one sum of $5, which he says he gave his sister some time after June 1, 1910. The hoy’s age is given at 13 or 14, and is older than the little girls. It is not contended that this sister at Wesson resides with the claimant, but that she is dependent upon him for support. The evidence does not clearly show that she is dependént upon the bankrupt for support, and, even if she were, such fact would not entitle him to exemption. In the case of Pearson v. Miller, 71 Miss. 379, 381, 14 South. 731, 732, 42 Am. St. Rep. 470, Wood, J., said: “A householder may be said to be a person owning or holding and occupying a house; and a family may be defined to be a collection of persons living together under one head. A householder having a family may be characterized as the head of a family occupying a house and living together in one domestic establishment. He need not be a husband or a father, nor need the family over which he has headship and control be .kept together as a unit continuously. The education of children, the illness of any member of the family requiring change of climate, or mere absence, however protracted, if only temporary, for pleasure or recreation, will not, of course, dissolve the family relationship or break up the household.” Applying these principles, it is easily seen that the fact that the claimant contributed to the support of the sister at Wesson, who did not reside with him, is no warrant for the allowance of the exemption.</p> <p>The matter then narrows down to the one proposition: Is the bankrupt entitled to the exemption because of the claim that one other widowed sister resided with him and was dependent upon him for support? The testimony shows that this widowed sister came to his home in June, 1909, to live with him, he claims; but in the late fall of 1909 this sister went to the Gulf coast of Mississippi to be with her daughter-in-law. Claimant in another place in his testimony says that this sister came to live with him in January, 1909, so I am unable to say which date is correct, and these dates, conflicting as they are, are the only dates testified about as fixing the time of this sister’s coming to the claimant’s home to live. There is nothing in the testimony showing whether the daughter-in-law was a widow or had a husband, and the cause of the bankrupt’s sister going to the Gulf coast is stated by the bankrupt as follows: “My sister had been living with me some time up until here last fall, when her daughter-in-law went off down here on the coast. >She was living there, too. I was taking care of all three of them. She got sick and went off. Dr. Hudson sent her off down here on the coast where she come from, and she sent back for my sister to come down there and wait on her until she died or got better, and I got a letter from her the other day that she" was going to Texas.” I presume the claimant in speaking of supporting “all three of them” meant that he was supporting his two sisters and the daughter-in-law of one of the sisters (the one that went to the Gulf coast), though he does not clear the matter up in his testimony. Claimant also testified that he had given the sister going there $38 or $40 when she left his home, and that he had not sent her anything since that time. It will be noted in the excerpt above that the bankrupt says, “She was living there, too,” evidently referring to the sister. The letter referred to by the bankrupt is as follows: “dear Brother. As I am By my sef I will com and Sta with you as long as I liv as Winfield hast to take louise to mexco as She is just like tom was and has Bin sick all the time. We cannot do enny thing for her lie Is going to tak hear of. 1 will haft to com and liv with you all the tim. I will Be up thare in a Bout too weaks. I hav monny to com on and will Be thare. S. E. thomas.” This letter is not. dated. It is not shown who ‘•Winnfield” is. He may be the son of the bankrupt’s sister. That inference is excusable, since the bankrupt speaks of his sister as “living there, too”; and the inference would also be excusable that because of the lady’s ill health her husband was going to take her to Mexico, and this prospective action deprived the sister of her home on the coast with her son and his wife, and that she was compelled to come to her brother, the bankrupt here.</p> <p>[3] The testimony in this case leaves too much to infer. It seems to me that, if a bankrupt is entitled to his exemptions, he must make a clear proof of that right. Certainly the burden is upon him to establish his claim to them, and the proof should be conclusive. It is not conclusive in this case. I think I should note here, too, the following: On June 27, 1910, at the first meeting of the creditors of the bankrupt, he was examined, but the testimony was not reduct'd to writing. T have a perfectly clear recollection, however, of his evidence. He was asked if he had any money, and what had become of the cash taken in at his store the few days immediately preceding the tiling of his petition in bankruptcy. He testified at first that he did not have any money: but finally corrected that by saying that he did have $8, which he had turned over to his attorney to partly defray the expense of the filing fees in the bankruptcy proceedings. He testified positively that he had no other cash; yef on July 8ih, just before the trustee sold the assets for the benefit of ilie creditors, the bankrupt turned over to said trustee the sum of 8200 in cash, which he had had in possession at the time of filing his petition and schedules, though the schedules, sworn to, show no cash, and his testimony, given under oath on June 27, 1910, was that he had no cash. Clearly, this was false swearing: and, while the Mississippi statute does not deny the exemptions because of the fraud of the debtor in concealing his assets, yet the referee is the judge of the credibility of witnesses, and such conduct on the part of this bankrupt leads me to conclude that the testimony of the claimant on the objections of creditors to the allowance of his exemptions is not impressed with that degree of truth that, to my mind, should characterize it in support of his claim.</p> <p>The exemptions are, therefore, denied.</p>

<p>In Equity. Suit by the Ault & Wiborg Company against Carey A. Cheshire and. the Cheshire Chemical Company.</p>

In Admiralty. Suit by Carl Goepel and others against the Hamburg American Packet Company and others, with eight other cases against different defendants.

■ In Equity. Suit by the Louisville* & Nashville Railroad! Company against the Railroad Commission of Alabama and others. On demurrer to bill. The complainant filed this bill to enjoin the Railroad Commission of Alabama and the Attorney General of Alabama from enforcing an order made by the commission requiring complainant to stop all of its passenger trains at what is known as the “Terminal Depot” in Mobile.

<p>Appeals from the District Court of the United States for, the District of Rhode Island.'</p> <p>Suit for collision by the Merchants’ & Miners’ Transportation Company against the Robinson-Baxter-Dissosway Towing & Transportation Company and others. Decree for respondents and libelant appeals. Affirmed. Suit by the General Chemical Company against the Merchants’ & Miners’ Transportation Company and others. Decree for respondents and libelant appeals. Reversed. Suit by Louis Gildersleeve and others against the Merchants’ & Miners’ Transportation Company and others. Decree for libelants, and respondents appeal.</p>

Action at law by Willis R. Howe, administrator of the estate of Silas L- Hollopeter, deceased, against the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Action by administrator for damages for alleged wrongful death.

Suit in equity by the United States against the Diamond Coal & Coke Company. Decree for defendant, and complainant appeals.

<p>'►For other cases see same topic & § number in Dec. & Arm Digs. 1907 to date, & Rep’r Indexes</p>

<p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>In Error to the Circuit Court of the United States for the Western District of New York.</p> <p>Action by the United States against the Grand Trunk Railway Company of Canada. Judgment for plaintiff, and defendant brings error.</p> <p>On writ of error to review a judgment against the Grand Trunk Railway for $532.91, being the amount of a fine of $500. and costs. The fine was imposed by the court after the jury had rendered a verdict in favor of the United States, finding the defendant guilty of a violation of the so-called “Twenty-Eight Hour Raw.” Act June 29, 1906, c. 3594, 34 Stat. pt. 1, p. 607 (U. S. Comp. St. Supp. 1909, p. 1178).</p>

<p>Factors (§ 46*) — Action fob Compensation — Amount op Recovery — When Question por Jury.</p> <p>Selling agents, employed by a coal company to sell and make deliveries of coal on its arrival at tidewater, who were paid a commission therefor, were not, as matter of law, and in the absence of further contract, entitled .to the same commission on contracts negotiated by them as brokers with a purchaser for stated quantities of coal to be delivered by the company at its mines; and, in an action to recover for their services, the. direction of a verdict, on the theory that they were so entitled, was error.</p> <p>[Ed. Note. — For other oases, see Factors, Dec. Dig. § 46.*]</p>

<p>1. Bankruptcy (§ 314*) — Provable Claims.</p> <p>It is uo objection to the allowance of a claim against a bankrupt corporation for money lent that it passed through several hands, where claimant furnished the money with the intention that it should be a loan to the corporation, and the latter received and used it as such.-</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p> <p>2. Bankruptcy (§ 314*) — Provable Claims — Effect of Assignment.</p> <p>An assignee of a claim against a bankrupt as the legal owner may prove the same and collect all dividends thereon, although the assignment was intended as collateral security only.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 314.*]</p> <p>3. Bankruptcy (§ 314*) — Provable Claims.</p> <p>The fact that money lent to a bankrupt was not the property of the lender, but belonged to her minor children, did not affect her right to prove a claim therefor against the bankrupt estate.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 314.*]</p>

<p>Bbokebs (§ 35*) — Secubities Pledged by Customer — Right to Rehypothecate.</p> <p>A broker, with whom a customer has deposited securities to margin future purchases and sales, has no authority to pledge such securities, unless he has made purchases or sales for the customer on which he is entitled to protection; and such a pledge, when no such purchase or sale has been made which could subject the broker to a loss, is a wrongful conversion.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 27; Dec. Dig. § 35.*] .</p>

In the matter of the New England Breeders’ Club, bankrupt. Nathaniel W. Hobbs, trustee, appeals from an order denying his petition for disallowance of a claimed mechanic’s lien in favor of the Head & Dowst Company. On petition by appellant for appeal to Supreme Court.

<p>1. Insurance (§ 421*) — Construction or, Contract — Loss Occasioned by or Through Earthquake.</p> <p>A clause in a fire insurance policy providing that the insurer should not be liable “for loss caused directly or indirectly by invasion, * * * or for loss or damage occasioned by or through * * * earthquake,” does not exempt the company from liability for a loss caused by fire alone, although such fire spread from other property, in which it was directly caused by an earthquake.</p> <p>TEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1126-1143; Dec. Dig. § 421.*J</p> <p>2. Courts (§ 96*) — Rubes oe Decision — Decisions oe Co-órdinvie Federau Courts — “Comity.”</p> <p>A federal court is warranted by the rule of “comity” in following a decision of a co-ordinate court of another circuit on a question of law, where it has no clear conviction that such decision is erroneous.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 323-328; Dec. Dig. § 96.*</p> <p>Decisions of federal courts as authority in other co-ordinate courts, see note to F. B. Vandegrift & Co. v. United States, 97 C. C. A. 472.]</p>

<p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>*For other cases see same topic & § nifmbeii in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the John Ii. Woodbury Dermatological Institute, bankrupt. On petition to revise order of District Court.</p> <p>This cause comes here upon petition to revise an order of the District Court. The trustee of the bankrupt’s estate, on request of minority stockholders and with the authority of the court, brought an action against certain directors and stockholders of the bankrupt corporation and others to recover damages for wrecking the corporation, throwing it into bankruptcy, and acquiring the assets by conspiracy and fraud. The amount of damages claimed is $150,000. One of the defendants in that suit is the Andrew Jergens Company, which has filed a claim against the bankrupt estate for $20,000. The remainder of the claims against Ihe estate, amounting to about $10,000, have been to, a large extent paid by and assigned to said Andrew Jergens Company. The defendants in the suit made an offer to compromise the same for $26,000. if such offer were accepted, the amount paid in settlement, loss some small amount for expenses of administration, would go to the creditors, practically to the Andrew Jergens Company. The question whether or not the proposed offer of settlement should be accepted came before the District Judge, who approved it upon certain conditions. The petitioner here, Patterson, who represents a minority stockholder — or stockholders — opposed the application for approval, and has brought this petition to revise the order of the District Court.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the Wentworth Lunch Company, alleged bankrupt. On petition of Girard S. Wittson, assignee, and the Wentworth Lunch Company, to revise an order (189 Fed. 831) directing payment of the expenses of a receivership out of the property of the corporation.

<p>Aliens (§ 32*) — Chinese Deportation Proceedings — Findings oe Fact — Review on Appeal.</p> <p>Where, in proceedings for the deportation of a Chinese person, his own evidence as to whether he was born in China or in the United States is conflicting, the finding of the commissioner, affirmed by the District Court, that he was not born in the United States, will not be reviewed by an appellate court.</p> <p>[Ed. Note. — For other cases, see Aliens, Dee. Dig. § 32.*</p> <p>What- Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]</p>

Action at law by Theodore R. Converse, receiver, against Edward C. Spargo, executor of Armenia H. Simmons, deceased. Erom an order sustaining a demurrer to a portion of the answer, defendant brings error.

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Itep’r Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Leonard F. James, as master of the steamship Frroll, against the Standard Oil Company of New York. Decree for libelant, and respondent appeals.</p>

Suit in equity by Eben H. Gay and another against the Hudson River Electric Power Company and others. From a decree (190 Fed. 773), the National Contracting Company appeals. On petition by appellant for a supersedeas or other writ to suspendí the execution of the decree pending the appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Proceeding for deportation of Gong Nom Wood, a Chinese person. Prom an order of deportation, defendant appeals.</p>

Petition to Revise Order of the District Court of the United States for the Eastern, District of New York. In the matter of the Ironclad Manufacturing Company, alleged bankrupt. On petition to revise an order of the District Court. This cause comes here upon petition to revise an order denying a motion to require the American Steel Barrel Company to deliver certain property to the receiver for the alleged bankrupt.

<p>Patents (§ 327*) — Infringement—Effect of Prior Adjudication.</p> <p>A decree in a suit for infringement by tbe owner of a patent against tbe manufacturer of an alleged infringing article, adjudging tbe patent void, not appealed from, frees tbe product of tbe defendant from the monopoly of tbe patent, and purchasers of tbe same may resell or use such product anywhere in the United States, without being subject to' suits for infringement by tbe owner of tbe patent or any one in privity with it.</p> <p>[Ed. Note. — For other cases, see Patents, Dee.' Dig. § 327.*</p> <p>Operation and effect of decision in equitable suit for infringement of patent, see note to Westinghouse Elect. & Mfg. Co. v. Stanley I. Co., 68 C. C. A. 541.]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This causo comes here upon appeal from an order granting a preliminary iuijunction against the use of tires embodying the device shown in the Grant patent for rubber tires. '</p>

' Appeal from- the Circuit Court of the United States for the Southern District of New York. Suit in equity by Otis A. Mygatt against the M. Schauffer-Flaum Company for infringement of patents, including design patent No. 37,983, for a design for a prismatic reflector, granted to complainant May 1, 1906. Decree for complainant as to such patent (186 Fed. 343), and defendant appeals.

<p>1. Patents (§ 288*) — Suit fob Tnebinc.ioient — Jurisdiction of Defendants.</p> <p>Where one of two nonresident defendants, each of whom had an established place of business in the district of suit, had, prior to such suit, constructed an infringing machine for the other, and assisted the latter in installing the same for use .by a third defendant within the district, there was such a completed act of infringement, or threatened infringement, by each defendant within the district, as to give the court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 460-466; Dee. Dig. § 288.*</p> <p>Jurisdiction of federal courts in suits relating to patents, see note to . Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. ) ¡ ííatjctííts ! (§ 311*) — Suit for Infringement — Issues.</p> <p>'Complainant in an infringement suit is not entitled to prove and recover for an entirely separate and distinct act of infringement committed ' •' in another district since commencement of the suit by one of a number •^ of defendants sued jointly.</p> <p>i . i ■ i [Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 541, 542; Dec. , .Dig. § 311.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Rock Crusher.</p> <p>The Edison patents, Nos. 672,616 and 672,617, for a method and apparatus for breaking rock by kinetic energy by means .of two massive iron '1' Toils having irregular surfaces and slipping power connection, by which .■ they are independently rotated toward each other until they acquire a . ;: high momentum, the charges of rock being delivered at intervals and ,.. sledged, broken, and crushed by the knobs on the surfaces of the rolls, were not anticipated and disclose invention of high order and merit. Such patents also held valid against the claim of prior public use, and ! the method patent and claims 1, 2, 3, 4, and 7 of the apparatus patent . infringed. Claims 5 and 6- held not infringed.</p> <p>4. Patents (§ 75*) — Prior Public Use — What Constitutes.</p> <p>. . An experimental use of an uncompleted machine, even though third i; persons are permitted to witness its operation, is not a public use which will defeat a patent for the completed invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 93-97; Dec. '■/ •Dig. § 75*</p> <p>Priority and continuance of public use of invention as affecting pat-i ,; entability, see note to Eastman v. Mayor, etc., of City of New York, 69 C. C. A. 646.]</p>

<p>Patents (§ 328*) — Validity and Infringement — Brush Mechanism foe Dynamos.</p> <p>The Bliss patent, No. 707,754, for brush mechanism for dynamos, es-' pecially applicable to dynamos used for the electric lighting of railway trains and designed to provide automatically for the constant polarity of .a dynamo notwithstanding reversal of direction of rotation, covers a. , combination of elements none of which were new, but shows improvements which constitute a substantial advancement on the prior art and involve patentable invention, although limited to the particular device shown. As so construed and limited, held not infringed.</p>

<p>• *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>In Equity. Suit by the Waltham Watch Company against Charles A. Keene. On demurrer to bill.</p>

Petitions by the Atchison, Topeka & Santa Fé Railway Company and others and by the Union Pacific Railroad Company and others against the United States, in which the Interstate Commerce Commission, the City of Spokane and others, the Chicago Association of Commerce, the Portland Chamber of Commerce and others, the Interior Counties Freight Bureau of Southern California and others, and the Giroux Consolidated Mines Company, intervened.

<p>' Action by C. S. Henry against E. B. Harris and another.</p>

In Equity. Suit by the San Joaquin & Kings River Canal & Irrigation Company against the counties of Stanislaus, Merced, and Fresno, Cal.

<p>In Equity. Suit by the San Joaquin & Kings River Canal & Irrigation Company against the counties of Stanislaus, Merced, and Fresno, Cal. On motion for preliminary injunction.</p> <p>Action to enjoin tbe enforcement of certain water rates established by the boards of supervisors in the counties of Stanislaus, Merced, and Fresno1, in the state of California, to be charged by complainant for water distributed to the inhabitants of those counties for irrigation after the 1st day of July, 1911.</p>

<p>At Law. Actions by the Kentucky Coal Lands Company against the Mineral Development Company (two cases). On motions, to remand to state court.</p>

In the matter oí Josie I,. Reed, bankrupt. On exceptions to special master’s findings and report in the matter of bankrupt’s application for discharge. Held: and possessed by said bankrupt. The said objecting creditor alleges that the aforesaid pretended and false statement was willfully, intentionally, and corruptly made by the bankrupt at the time and place stated. Specification No. 3.

In the matter of the Regealed Ice Company, bankrupt. On review of order of referee dismissing petition of Great Lakes Engineering Works for reclamation. of property.

<p>Actions by the United States against the New York Central & Hudson River Railroad Company.</p>

<p>Action for penalty by the United States against Erie Railroad Company.</p>

<p>At Law. Action by Norman S. Huxley against James A. Hayes, Jr. On demurrer to statement of claim.</p>

<p>United States (§ 67*) — Oontraotobs eor Public Works — Action on- Bond.</p> <p>Act- Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), amendatory of Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), authorizing persons furnishing labor or material for the construction of public works to sue in the name of the United States on the bond of the contractor, is not retroactive, and, where a contract was made and the bond given prior to the passage of such amendment, the rights of a subcontractor, although he furnished labor and materials afterward, are governed by the original act, and he may maintain a suit against the surety on the bond thereunder in the district of the surety’s residence.</p> <p>[Ed. Note. — For other cases, see United States, Dec. Dig. § 67.*]</p>

<p>1. Use and Occupation (§ 1*) — Implied Agreement.</p> <p>The law implies a contract to pay rent from the mere fact of occupation, unless the occupancy be such as to negative the existence of a tenancy.</p> <p>LEd. Note. — Eor other cases, see Use and Occupation, Cent. Dig. §§ 1-11; Dec. Dig. § 1.*]</p> <p>2. Appeal and Erbob (§ 1050*) — Review—Harmless Error — Admission op Evidence.</p> <p>In an action on an implied agreement to pay rent, where defendant was a tenant by sufferance, the admission in evidence of a conversation between defendant and an agent of plaintiff in regard to the amount of rent to be paid, which did not result in an agreement, even if error, was without prejudice to defendant.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. § 1050.*]</p> <p>g. Use and Occupation (§ 9*) — Action for Rent — Evidence.</p> <p>In an action on an implied agreement to pay rent, where defendant had previously occupied the premises under a lease, such lease was admissible in evidence on the question of the rental value of the property.</p> <p>[Ed. Note. — Eor other cases, seo Use and Occupation, Dec. Dig. § 9.*]</p> <p>4. United States (§ 57*) — Rroperty “Purchased” eor Public Buildings— Authority to Rent — Construction op Statute.</p> <p>Act June 30. 1900, c. 3916, § 24, 34 Stat. 788, which authorizes the Secretary of the Treasury to rent buildings on sites “purchased” for public buildings until their removal becomes necessary, applies as well to.property acquired by condemnation proceedings.</p> <p>[Ed. Note. — Eor other cases, see United States, Dec. Dig. § 57.*</p> <p>Eor other definitions, see Words and Phrases, vol. 7, pp. 5853-5857; vol. 8, p. 7775.]</p>

<p>-For other cases see same topic, & § nombre in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>♦For other oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Suit in admiralty by Maggie Boyce, administratrix of the estate of William Boyce, deceased, against the barkentine Aurora; the Aurora Shipping Company, claimant. Decree for libelant (178 Fed. 587), and claimant appeals.

Appeals from the District Court of the United States for the Eastern District of Pennsylvania. Habeas corpus by the United States, on relation of Michael Barlin, against John J. S. Rodgers, Commissioner of Immigration, and others; and four other similar cases on relation, respectively, of Zozie Popek, Attanasio Parebianco, Angelo Massini, and Tomasso Maietta. Judgment for respondents in each case, and relators appeal.

<p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date,, & Rep'r Indexes</p> <p>*For other cases see same topic & § numbek in Dec. & Am. Digs. 1907 to date, & RepT Indexes</p>

<p>In Equity. Suit by the Faultless Rubber Company against the Star Rubber Company. On final hearing.</p>

<p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

In Equity. Suit by the Victor Talking Machine Company against the Vitaplione Company, for infringement of letters patent No. 534,-543, for .a gramophone, granted to F,mil Berliner February 19, 1895. On motion for preliminary injunction.

<p>Patents (§ 326*) — Suit for Infringement — Violation of Injunction — Punishment for Contempt.</p> <p>A motion to punish a defendant for contempt for violating an injunction against infringement of a patent denied, where there was no evidence to show that, if the two or three machines admittedly sold by defendant were infringements, complainant sustained any damages because of the sales.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 613-619; Dee. Dig. § 326.*j</p>

At Law. Action by Louis Montbriand against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. A jury was duly impaneled and sworn, and the testimony on the part of the plaintiff was duly presented to them.

<p>‘For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

In Admiralty. Suit for collision by Thomas B. Morgan, master of the schooner Eagle Wing, against the steamship Nordamerika, and cross-libel by Peter Schmidt, master of the Nordamerika, against the Eagle Wing.

In the matter of O’Malley & Glynn, bankrupts. On certificate of referee to review an order disallowing a claim for rent as preferred.

<p>•'For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

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

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

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

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

<p>Appeal from the Circuit Court of the United States for "the Eastern District of North Cax’olina, at Raleigh.</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana. Action by Sallie Morris and others against the New Orleans Railway & Light Company. Judgment for defendant, and plaintiffs bring error.</p>

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

Cross-Appeals from the District Court of the United States for the Northern District of West Virginia, at Clarksburg. in Bankruptcy. Upon motion of Jacob Meurer, W. J. Logan, and others, appellees, in open court, to certify the controversy to the Supreme Court of the United States under subsection 2(d) of section 25 of the bankruptcy act of July 1, 1898 (30 Stat. 553, c. 541 [U. S. Comp. St. 1901, p. 3432]).

<p>Appeal from the Circuit Court of the United States for the Southern Distriot of West Virginia, at Charleston.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana.</p>

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

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

<p>In Error to the District Court of the United States for the Northern District of Mississippi</p>