Volume 194 — Federal Reporter

Suit in equity by the Texas Company against the Central Fuel Oil Company and others. From a decree dismissing the bill on demurrer, complainant appeals. The appellant, a corporation created by and having its domicile in the state of Texas, filed its bill in the court below against the defendants, seeking specific performance of a contract made by it with the defendant Central Fuel Oil Company.

Suit in equity by the United States against the Barber Dumber Company, James T. Barber, Sumner G. Moon, William Sweet, John Kinkaid. Louis M. Pritchard, Patrick PI. Downs, Albert E. Palmer, and Horace S. Rand. Decree dismissing the bill (172 Fed. 948), and complainant appeals.

Action at law by Ella R. Bay against James S. Sanborn. Judgment for plaintiff, and defendant brings error. . On motion to suppress bill of exceptions, dismiss writ of error, and vacate the supersedeas.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Illinois.</p> <p>Bill by the Singer Sewing Machine Company against the Sexton Manufacturing Company and another. Decree for complainant, and defendants appeal.</p>

Bill by the United States against the Washington Securities Company for the cancellation of patents to certain coal land patented under homestead entries and conveyed to defendant. From a decree in favor of complainant, defendant appeals.

Action at law by Annie May Rogers and others against the Vicksburg, Shreveport & Pacific Railroad Company. Judgment for defendant, and plaintiffs bring error. This is a suit by the widow and minor children of Robert T. Rogers, who was taken by a mob from the parish jail at Tallulah, La., on May 28, 1906, and hanged.

Action at law by the J. C. Turner Cypress Dumber Company against H. M. Pfann & Co. Judgment for plaintiff, and defendant brings error. The J. G. Turner Cypress Humber Company brought suit against H. M. Pfann & Co. for breach of contract.

United States for the Western District of Louisiana. Mandamus proceedings by Henry G. Kaill against the Board of Directors of St. Landry Parish, La., and others. Judgment for defendants, and plaintiff brings error.

Suit in admiralty for collision by the River & Harbor Transportation Company, as owner of the tug Gladiator,-against the steam tug Transfer No. 19. Decree for respondent, and libelant appeals.

<p>1. CaRkiees (§ 234*) — Injuries io Passengers — Waiver op Liability— What Law Governs.</p> <p>Whether a waiver of liability for injuries, printed on the back of a pass delivered to an employe, was valid, so as to constitute a defense to an action for injuries resulting from the carrier’s ordinary negligence, depended on the law of the place of the accident, and not on the law of the place where the pass was delivered, since the rule that a contract will be interpreted according to the law of the place of its execution and delivery does not apply to actions of tort.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1203; Dec. Dig. i 234.*]</p> <p>2. Carriers (§ 307*)— Injuries to Passengers — Statutes.</p> <p>The Oklahoma statute (Comp. Laws 1909, § 428) providing that a carrier of persons without reward must use ordinary diligence for their safe carriage was only applicable in the absence of contract, and did not apply to an employe traveling on a pass, who had signed a waiver of liability for any injuries that might occur, which waiver was valid both in Oklahoma and in the federal courts.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1252-1259, 1491; Dec. Dig. § 307.*]</p>

<p>1. Indians (§ 31*) — Allottees—Citizenship.</p> <p>An Indian allottee, having received her allotment, became a citizen of the United States, and was authorized to contract with respect to the allotment, except in so far as restrained by congressional enactment.</p> <p>[Ed. Note. — Eor other cases, see Indians, Cent. Dig. § 23; Dec. Dig. § 31.*]</p> <p>2. Indians- (§ 16*) — Indian Lands — Allotment—Leases—Cancellation— New Lease.</p> <p>Act Cong. March 2, 1895, c. 188, 28 Stat. 907, provided that allotments to Quapaw Indians in Oklahoma should be inalienable for 25 years from and after the date of the patent; but Act June 7, 1897, c. 3, 30 Stat. 72, provided that such allottees might lease their lands for a term not exceeding 3 years for farming or grazing purposes, or 10 years for mining and business purposes. Held that, where an allottee had leased her allotment for 10 years for mining purposes, such act did not prevent the mutual cancellation of such lease before the expiration of the term and the making of a new one to the same parties for another term not exceeding 10 years.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in admiralty by the Peninsular & Occidental Steamship Company against the Atlantic Mutual Insurance Company. Decree (185 Fed. 172) for libelant, and respondent appeals.</p>

<p>Shipping (§ 58*) — Liability fob Injury to Vessel — Negligent Docking.</p> <p>Evidence held insufficient to establish that an injury to a scow by-settling on boulders, after she had been beached at high tide by the-cargo owner without authority from her owners, was due to his negligence; there being evidence that she had drifted, owing to the failure of the master to properly secure her.’</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 233-244; Dec. Dig. § 58.*]</p>

Action at law by J. F. Wellington, Jr., and others, against the Assets Realization Company, judgment for plaintiffs, and defendant brings error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Action at law by E. A. O’Sullivan against Paul Eelix and others. Judgment for defendants and plaintiff brings error.</p>

In the matter of bankruptcy proceedings of William R. Ward. From a decree dismissing an involuntary bankruptcy petition (194 Fed. 174), the creditors appeal.

<p>Appeal from the Circuit Court of the United States for the District of Rhode Island.</p> <p>Suit in equity by George W. Dover and others against Thomas F. Greenwood and others. Decree for complainants and defendants appeal.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Knitted Fabric.</p> <p>The Scott patent. No. 899,439, claims 2 and 4, for a knitted fabric and method of producing the same, discloses patentable novelty and invention; also held infringed.</p> <p>2. Patents (§ 53*) — Anticipation—Fabric.</p> <p>Anticipation of a patent for a new and useful fabric is not shown by evidence that prior to its invention a machine was in existence which by a few changes in adjustment was capable of producing the fabric.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. § 71; Dec. Dig. § 53.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Knitting Machine.</p> <p>The Scott patent, No. 925,393, for a knitting machine for producing a ribbed fabric, held not infringed, if conceded invention.</p>

<p>Patents (§ 328*) — Infringement—’Telephone Switchboard.</p> <p>The Eisk patent, No. 521,461, for a combined annunciator and spring-jack for use in telephone switchboards, covers an invention of novelty and merit, and is entitled to a range of equivalents which will fully protect it, but it is limited by its terms -to a device having two elements, and is not infringed by a device having the old three-element structure.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit in equity by the Columbia Wire Company against the Kokomo Steel & Wire Company. From a decree awarding nominal profits only for infringement, complainant appeals.</p>

Suit in equity by Ephraim Campbell against Calvin M. Mangle, Jacob E. Tischer, Robert E. Norris, and Charles W. Lehr. Decree for defendants, and complainant appeals. The appellant brought a suit against the appellees to enjoin infringement of letters patent No. 701,971, of date .Inly 15, 1902, issued to Ephraim Campbell, for a new and useful improvement in flume gates to be used in irrigation.

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Suit in equity by the John F. McCanna Company against the Lavigne Manufacturing Company and Brandenburg Company. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Sarfert Company against Frank L. Chipmau and others. Decree for defendants, and complainant appeals.</p>

<p>1. Patents (§ 235*) — Infrtngement—Mode of Operation — Equivalency of Machines.</p> <p>While it may not be said as matter of law that a machine which operates continuously cannot be the equivalent of one which operates inter-miltently, when the machines are complex, the difference, in the mode of operation is very strong evidence that there is such a difference in them as will avoid infringement.</p> <p>(Ed. Note. — For other eases, see Patents, Cent. Dig. § 371; Dec. Dig. § 235.*]</p> <p>2. Patents (§ 328*) — Infringement—Wire Fence Machine.</p> <p>The Rates patent, No. 577,639, for a wire fence machine, covers a combination of four mechanisms, each of which performs a separate pare in the production of the fence and works intermittently, the first two simultaneously, followed by the third and fourth working successively. Such patent hold not infringed by a machine in which all the mechanisms opér-alo continuously and simultaneously.</p>

<p>Patents (§ 328*) — Invention—Apparatus por Marino Concrete B cocks.</p> <p>The Winston patent, No. 849,824, for an apparatus for making concrete blocks, comprising a platform movable along a trackway and a plurality of molds between the rails and on either side of such trackway into which concrete may be shoveled from the platform, all the parts of such apparatus being old, does not disclose patentable invention.</p>

Suit in equity by the Union Paper Bag Machine Company and the Union Bag & Paper Company against the Advance Bag Company. Decree for defendant, and complainants appeal. The following is the opinion of the Circuit Court by Sater, District Judge: Dulin’s patent, No. 578,550, issued March 9, 1897, relates particularly to machinery to make what is known as the “square satchel-bottom bag,” ox-bag made from a bellows-folded tube with a satchel bottom formed upon its end.

<p>In Equity. Suit by the William B. Scaife & Sons Company against the Falls City Woolen Mills. On final hearing. Decree for defendant.</p>

<p>In Equity. Suit by the Gamewell Eire Alarm Telegraph Company against the Mayor and Council of the City of Bayonne, N. J. On final hearing. Decree for complainant.</p>

<p>Patents (§ 328*) — Validity and Infringement — Sawmill Apjpabatus.</p> <p>The Logg'ie patent, No. 837,087, for a receiving trip and conveyer used in the manufacture of weather boards, claims G, 7, and 8, are valid as limited to a two-part guide constructed according to the specification, in combination with a planing machine and a transverse conveyer. Claims 1, 2, 3, 4, and 5, which omit the first section of such guide, are void for lack of utility. Claims 6, 7, and 8 held infringed by one form of apparatus used by defendant, but not infringed by a modified form of construction.</p> <p>Note. — Subsequently to the rendition of this opinion the court granted a motion by plaintiff to refer the case to a master to receive evidence and compute the'profits to defendant from its use of apparatus infringing claims 6, 7, and 8 of the patent.</p>

In Equity. Suit by the Imperial Brass Manufacturing Company against Alexander Nelson, doing business under the name and style of the A. Nelson Manufacturing Company. On final hearing. Decree for defendant.

<p>1. Patents (§§ 282, 325*) — Suits foe Infringement--Grounds of Suit.</p> <p>A patentee may maintain a suit in equity to enjoin infringement of tils patent by a contractor for the building of a structure which, if built in accordance with the plans and specifications attached to the contract, will infringe, and is entitled to recover costs, although the plans are afterward so modified as to avoid infringement.</p> <p>LEd. Note. — For other cases, seo Patents, Cent. Dig. §§ 440, 443, 607-612; Dec. Dig. §§ 282, 325.*]</p> <p>2. Patents (§ 328*) — ’Validity and Infringement — Concrete Arch.</p> <p>The Luten patent, No. 852,970, for improvements in concrete arches, claim 46, held valid and infringed.</p>

<p>In Equity. Bill by the Monarch Vacuum Cleaner Company against the Vacuum Cleaner Company. On exceptions for insufficiency to the answer of a corporation in a cause in which the bill had waived answer under oath.</p>

<p>Bankruptcy (§ 91*) — Involuntary Proceedings — Evidence—Insanity.</p> <p>Evidence considered, and held to show that an alleged bankrupt was insane at the time of his transfer of property charged as the act of bankruptcy and at the time of the contracting of many of the debts necessary to be taken into account to establish his insolvency.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 113; Dec. Dig. § 91.*]</p>

In the matter of William R. Ward, alleged bankrupt. Petition by guardians of bankrupt for discharge of receiver and for allowance.

<p>INJUNCTION (§ 121*) — Bill—Amendment.</p> <p>Where a bill by a telegraph company for an injunction to restrain defendant from publishing and selling for advertising purposes, to be sent through the mails, envelopes resembling those used by complainant in which to deliver its messages, was held demurrable because no actual damages and no substantial ground for apprehension of future damage were alleged, an amendment to supply such allegation should be verified, and the motion for leave should be supported by affidavits setting forth such number of specific instances of loss of patronage and impairment of service as to show that the injury is substantial.</p> <p>LEd. Note. — For other cases, see Injunction, Cent. Dig. §§ 253-261; Dec. Dig. § 121.*]</p>

<p>1. BANKRUPTCY (§ 140*)-SALES — WHEN TITLE PASSES TO PURCHASER — CONSTRUCTION of Contract — Sale of Lumber to be Manufactured.</p> <p>Claimant entered into an executory contract with bankrupt, which was the owner of a sawmill, for the purchase of lumber of stated kinds, grades, and prices, to the value of over S(i0,000, to be manufactured by bankrupt and delivered f. o. b. cars at its mill. By the terms of the contract bankrupt agreed to manufacture at least $30,000 of lumber to apply on the contract within three months and to stack the same. Before delivery bankrupt was to measure and inspect the lumber and grade it in accordance with the rules of the National Hardwood Association. Claimant agreed to and did within the three months advance to bankrupt $30,000, to be repaid by applying thereon one-half of the price of the lumber as delivered, paying cash for the other half. Held that, under the contract, title did not pass to claimant until the lumber was measured and Inspected, and that lumber which had been cut by the bankrupt to apply thereon in accordance with its terms, but which at ibe time of bankruptcy was still stacked in the yard, and had not been measured nor inspected, remained the property of the bankrupt, and passed to his trustee.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>2. Sales {§ 199*) — Transfer of Title — Intention of Part res.</p> <p>The fundamental proposition in determining when the title to personal property, which is the subject-matter of a contract of sale, passes from the seller to the buyer, is that it depends on the intention of the parties, to be gathered from the contract, if not expressly stated then by inference or presumption from its terms.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 516-523; Dee. Dig. § 199.*]</p> <p>3. Evidence (§ 441*)' — Parol Evidence to Contradict Writing — Rule of Exclusion.</p> <p>The rule that a contemporaneous parol agreement cannot be shown to contradict the terms of a written contract applies as well to the implied as to the expressed terms of such contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 2030-2047; Dec. Dig. § 441.*]</p> <p>4. Sales (§ 200*) — Teakseer of Title — Appropriation of Dumber on Contract.</p> <p>Where an executory contract for the sale of lumber of stated kinds, and quality to be manufactured by the seller required that the lumber should be inspected under certain rules and measured before delivery, the mere fact that the parties went through the mill.vard where lumber which had been cut by the seller to apply on the contract was stacked and estimated the quantity, and that the buyer directed that it be shipped, did not do away with the requirement of inspection and measurement, nor operate as an appropriation of the lumber then in stack to the contract so as to pass title thereto to the buyer.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 524-528; Dec. Dig. § 200.*]</p>

In Equity. Suit by the Goldfield Consolidated Mines Company and others to restrain George Richardson and others from purchasing gold ore stolen from complainants’ mines. On application for restraining order pendente lite.

<p>In the matter of the application of F. A. Hyde and Henry P. Dimond for writs of habeas corpus and certiorari.</p>

In Equity. Suit by the Minneapolis. General Electric Company against the City of Minneapolis. On motion for preliminary injunction. The Walker ordinance, referred to in the opinion, fixed the maximum rate to be charged by public service corporations for the distribution of electricity in the city of Minneapolis, but prescribed no penalty.

<p>Shipping (§ 84*) — Liability of Vessel — Injury to Stevedore.</p> <p>A ship, which under the provisions of a charter furnished the winches and power and men to operate the same in the loading of cargo by the charterer, is liable for an injury to a stevedore through the negligence of a winchman, who was one of the crew, although he operated his winch under orders of a hatch tender furnished by the contracting stevedores.</p> <p>[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 84.*]</p>

In the matter of bankruptcy proceedings of Isaac Jablin. Petition to review a referee’s order dismissing proceedings to compel the bankrupt to turn over alleged withheld assets amounting to $3,425.

At Law. Action by Thurlow Weed Barnes against Joseph C. Trees and others. On plaintiff’s motion to strike out defendant’s answer unless defendant answered certain interrogatories propounded by plaintiff | on an examination de bene esse initiated by plaintiff under Rev. St. § 863 (U. S. Comp. St.. 1901, p. 661).

At Raw. Action by John A. Locker and another, trading as E. Locker & Co., against the American Tobacco Company, the Metropolitan Tobacco Company, and others. On application for bill of particulars.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Brockton Ideal Shoe Company. On application of Henry Lavers, ancillary receiver appointed in New York, to sell the bankrupt’s New York stock.</p>

<p>1. Carriers (§ 38*) — Interstate Commerce Act — Violations.</p> <p>The acceptance by a railroad company in settlement with a coal company for interstate shipments of coal made during the preceding mouth, sent as prepaid and settled for monthly under a general custom of the business, of notes of the coal company for a part of its freight charges, under a previous understanding and arrangement therefor, constitutes a “willful failure * * * to strictly observe its tariffs” in violation of section 6 of the interstate commerce act (Act Eel). 4, 18S7, c. 104, 24 Stat. 380 TU. S. Comp. St. 1901, p. 3156]), as amended by Act June 29, 1900, c. 3591, § 2, 34 Stat. 586 (U. S. Comp. St. Supp. 1909, p. 1153). and a misdemeanor thereunder whether it be considered as an acceptance of a “less or different compensation” for the service or the extension of “privileges and facilities in transportation” not specified in its published tariffs.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p> <p>2. Carriers (§ 38*) — Indictment for Violation of Interstate Commerce Act —Sufficiency.</p> <p>An indictment against a railroad company for a failure to observe its published tariffs by extending credit to a shipper under joint rates for a part of the freight due is not insufficient because it does not exclude the possibility that it received in cash its own share of such freights.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 3S.*]</p> <p>3. Carriers (§ 32*) — Interstate Commerce Act — Violation—“Discrimination.”</p> <p>A railroad company practices a discrimination in respect to transportation in violation of section 6 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 TU. S. Comp. St. 1901, p. 3.156]), as amended by Act June 29, 1906, c. 3591, § 21, 34 Stat. 586 (U. S. Comp. St. Supp. 1909, p. 1153), in favor of one interstate shipper and against others of the same class, shipping the same commodity from the same points and under substantially the same conditions as to time of shipment, destinations, connections, and manner of transportation and other details identifying the similarity of transactions, by the device of extending credit to such favored shipper for the freight charges, and exacting and collecting such charges from the other shippers.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 32.*</p> <p>For other definitions, see Words and I’hrases, vol. 3, p. 2099.</p> <p>AVhat constitutes an unlawful preference or discrimination by carrier under interstate commerce regulations, see note to Gamble-Iiobinson Commission Co. v. Chicago & N. W. Ily. Co., 94 C. C. A. 230.J</p>

<p>1. Carriers (§ 38*) — Interstate Commerce — Freight Charges — “Discrimination” — Indictment.</p> <p>An indictment against a coal company for accepting and receiving discrimination in freight charges paid on coal shipped in interstate commerce alleged that it was the custom of the carrier because of the exigencies of the business to grant a credit of 30 days to coal operators for freight on prepaid shipments; that the carrier required other operators in the same district to give bonds to secure payment of their monthly account for prepaid freight in money; that pursuant to an agreement between defendant and the carrier, existing before and at the time the prepaid shipments were made, defendant’s monthly bill for such shipments for a certain time amounting to $26,491.05 was paid by delivering to the railroad company in cash $1,491.05 and defendant’s 5 per cent, four-months note for $25,000; that no demand was made by the carrier on defendant for payment of the freight charges in money; and that the note was renewed from time to time until, on April 1, 1910, it was merged with other debts due from defendant to the railroad company into 5 per cent, debenture bonds of defendant company, payable April 1, 1913, delivered to and accepted by the railroad company in payment for such freight. Held, that the term “discrimination” is used in the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 817 [XT. S. Comp. St. Supp. 1909, p. 1138]), in its common sense, as well as with whatever enlarged. or more definite meaning the context of the amendment of 1900 (Act June 29, 1906, c. 3591, 34 Stat. 587 [U. S. Comp. St. Supp. 1909, p. 1149]), gives to it, includes a case where a shipper is permitted to settle his charges by paying a less or “different” compensation to the carrier than other shippers shipping under similar circumstances are compelled to pay, and that the indictment alleged facts showing that defendant had received a discrimination in violation of the act, and was therefore not demurrable.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2099.</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble Robinson C. Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p> <p>2. Payment (§ 67*) — Acceptance ok Note — Antecedent Indebtedness.</p> <p>While the taking of a note for an antecedent indebtedness does not raise a presumption, of extinguishment of that debt, the acceptance of a note for a present indebtedness raises a presumption of payment.</p> <p>I Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 189-194, 198; Dec. Dig. § 67.*]</p> <p>3. Carriers (f 32*) — Interstate Commerce — Discsnn nation — “Different Com pensation.”</p> <p>Where a carrier receives a note from a shipper in payment of freight on shipments in interstate commerce, it thereby receives a “different compensation” from that which only the law authorizes, to wit, money, in violation of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 817 111. S. Comp. St. Supp. 1909, p. 1138]), as amended in 1906 (Act June 29. 1906, c. 3591, 34 Stat. 587 [TT. S. Comp. St. Supp. 1909, p. 1149]), providing that a shipper who is permitted to settle his charges by paying a less or different compensation to the carrier than is required by other shippers operating under the same or similar circumstances accepts or receives a discrimination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Doc. Dig. § 32.*]</p>

<p>In Equity. Suit by the York Haven Paper Company, to the Use of Henry W. Stokes, receiver, against the York Haven Water & Power Company. On final hearing. Decree for complainant.</p>

<p>1. Deeds (§ 196'*) — Fraud or Undue Influence — Burden of Proof.</p> <p>One suing to cancel a deed Las the burden to show that its execution was induced by fraud or undue influence, including, as elements of fraud, falsity of representations made to the grantee by the grantor, knowledge by the grantee of their falsity, intent by him to deceive, and grantor's reliance on the representa lions to his damage.</p> <p>¡Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 587-593; Dec. Dig. § 196.*]</p> <p>2. Contracts (§ 99*) — Transactions'Between Parent and Child — Burden op Proof.</p> <p>Contracts and business dealings between parent and child are not per se fraudulent, and must be treated as transactions between other persons, and, where the bona fides thereof is attacked, fraud must be clearly proved.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 448-453; Dec. Dig. § 99.*]</p> <p>3. Deeds (§ 190*) — Execution—Undue Influence — Burden of Proof.</p> <p>In an action to set aside a deed from a parent to a child, the burden is on complainants to show that defendant exercised undue influence over grantor overcoming grantor’s will, and it must appear that the undue influence was exercised when the deed was executed.</p> <p>I Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 587-593; Dec. Dig. § 19(5.*]</p> <p>4. Deeds (§ 211*) — Execution—Undue Influence — Evidence—Sufficiency.</p> <p>In an action to set aside a deed from a parent to a child, evidence field insufficient to show that defendant secured the deed by fraud or undue influence.</p> <p>(Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 6*37-647; Dec. Dig. § 211.*]</p> <p>5. Deeds (§ 72*) — Execution—Undue Influence — Requisites.</p> <p>Undue influence, to avoid a deed, must be unlawful or fraudulent influence controlling grantor's will, and does not comprehend the natural affection, confidence, and gratitude of a parent, unless such influence is used to confuse his judgment and control Ms will.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. 190-399; Dec. Dig. § 72.*]</p>

<p>In Admiralty. Suit by the Tweediie Trading Company against the New York Central & Hudson River Railroad Company. On exceptions to report of commissioner.</p>

<p>In Admiralty. Suit by the Tweedie Trading Company against Charles D. Barry and others. Decree for libelant.</p>

Suit by the Order of St. Benedict of New Jersey, a corporation, against Albert Steinhauser, individually and as administrator of the goods, chattels, and credits of Augustin Wirth, deceased. Judgment for complainant- (179 Fed. 137), and defendant appeals.

Bill of review by W. R. Hopkins and others against Charles He-bard, the Smoky Mountain Land, Lumber & Improvement Company and others. From a decree dismissing the bill of review, complainants appeal.

<p>1. Contracts (§ 10*) — Requisites and Validity — Mutuality of Obligation.</p> <p>By a written contract, plaintiff, an automobile manufacturing company, purported to grant to defendant for the term of a year the exclusive right to sell its machines within certain territory, and agreed that its machines should be invoiced to defendant at stated prices. The contract required defendant to deposit $1,000, to order at least 50 machines during the, year, and sell under a guaranty for a year and to maintain a repair shop and keep at least one machine in stock for exhibition. Plaintiff did not obligate itself to sell to defendant any machines and reserved the right to. return the deposit and cancel the contract at any time. Held, that whether the contract be regarded as one of sale or agency, so long as it remained executory it was void for want of mutuality and not enforceable against defendant.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21 — 40; Dec. Dig. § 10.*</p> <p>Mutuality in contract, see note to American Cotton Oil Co. v. Kirk, 15 O. C. A. 543.]</p> <p>2. Contracts (§ 63*) — Recital of Consideration.</p> <p>A recital in a contract that each party has paid to the other $1 imports no consideration.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 268; Dec. Dig. g 63.*]</p>

Suit in admiralty by William H. Gibsón and another, as owners of the schooner Emma Eliza, against the Alanetto Company. Decree for respondent, and libelants appeal. September IS, 1909, William H. Gibson and Joseph H. Gibson, appellants, hired to the Manetto Company, appellee, the Emma Eliza, a small 21 or 22 ton schooner. The contract of hiring was minced to writing as follows: “Key West, Fla., Sept. 18th, ’09. “Messrs.

Suit in admiralty by the Compagnie de Navigation Francaise as owner of the French barque Amiral Cecille against Thomas S. Burley and Robert McCullough doing business as the Tacoma Tug & Barge .Company. Decree for libelant (183 Fed. 166) and respondents appeal.

Suit in admiralty for collision by- Charles E. McWilliams and Adolph Dexheimer, as owners of the barge Daisy, against the steam tug Elmer A. Keeler; Elmer A. Keeler, claimant. Decree for libel-ants, and claimant appeals.

<p> {Syllabus by the Court.) </p> <p>1. Carriers (§ 204*) — 28-Hour Law — “Accidental Cause” or “Unavoidable Cause” — “Due Diligence and Foresight” — “IYilleully.”</p> <p>The measure of “due diligence and foresight'’ is that diligence and fore- * sight which persons of ordinary prudence and care commonly exercise under similar circumstances. And the due diligence and, foresight which condition the anticipation and avoidance of the other incidental or unavoidable causes specified in the 28-hour law is that degree of diligence and foresight which reasonably prudent and careful men ordinarily exercise under like circumstances.</p> <p>An “accidental or unavoidable cause” which cannot be avoided by the exercise of due diligence and foresight in the meaning of this law is a cause which reasonably prudent and careful men, under like circumstances, do not and would not ordinarily anticipate, and whose effects under similar circumstances they do not and would not ordinarily avoid.</p> <p>“Willfully” means “purposely or obstinately, and is designed to describe the attitude of a carrier who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.”</p> <p>fTM. Note. — For other cases, see Carriers, Cent. Dig. § 927; Dec. Dig. § 204.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 62Í-70; vol. 8, p. 75(50; vol. 3, pp. 2223-2225; vol. 8, pp. 7(543, 7140', 7408-7481, 7835, 783(5.1</p> <p>2. Cabbucbs (| 37*) — 28-Hous Law — Evidence—Conclusion.</p> <p>A train load of 17 cars of sheep started at 5 in the morning to make a run which ordinarily requires 11 hours. This train and its drawbars were inspected and found in good condition on the morning it started. In order to unload the sheep in time, it was necessary that this train should make the run in 12 hours. It was delayed about 2 hours by the breaking of a drawbar and chain of a train which met and passed it, by the slipping of a knuckle in the coupler which separated it. into two parts and by the pulling out of two drawbars in its cars which made it necessary to draw the two parts of the train upon a side track and recouple them. Upon its arrival the company dragged the sheep out of two of the cars in the dark within the 36 hours, but left 15 of the cars unloaded until the next morning after the expiration of the 36 hours.</p> <p>Held, there was no substantial evidence that the company willfully violated the law, and there was substantial evidence that it was prevented from unloading the sheep within the 36 hours by accidental or unavoidable causes which could not be anticipated or avoided by the exercise of due diligence and foresight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*</p> <p>Liability of carrier for failure to feed, water, and rest live stock and for violation of the 28-hour law, see note to St. Joseph Stockyards Co. v. United States, 110 C. C. A. 435.]</p>

Action by the United States, for the use of Printy & Jones, against W. L. Mosby and others. Judgment for plaintiff, and defendants bring error. Mosby took from the United States a contract for doing certain levee work on the Mississippi river, and Bruce and Cummings became his sureties on his •statutory bond that he would pay all sums for which he became indebted for labor or materials on the job.

<p>1. Breach os Marriage Promise (§ 18*) — Evidence—Admissibility.</p> <p>In an action for breach of marriage promise, wherein plaintiff relied on services in attending to defendant’s business at his request, it was proper to permit her to testify what she received for attending to a third person’s matters at defendant’s request and for his benefit.</p> <p>[Ed. Note. — Jfor other cases, see Breach of Marriage Promise, Cent. Dig. §5 21-25, 48; Dec. Dig. § 18.*]</p> <p>2. Appeal and Error (§ 1048*) — Harmless Error — Exclusion or Testimony.</p> <p>It was not reversible error to exclude a question asked a witness on the ground of indefiniteness, where counsel apparently made the question more definite and it was fully answered.</p> <p>I Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]</p> <p>3. Appeal and Error (§ 1058*) — Cure of Error — Exclusion of Testimony.</p> <p>in an action for breach of marriage promise, any error in excluding testimony for defendant that the parties had tallied about plaintiff’s property affairs was cured by defendant’s immediately following testimony at length concerning conversations between the parties about her business affairs and property.</p> <p>| Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 42UU-4206; Dec. Dig. § 1058.*]</p> <p>4. Evidence (§ 471*) — Conclusions of Witnesses.</p> <p>In an action for breach of marriage promise, it was not error to exclude testimony by defendant as to what he had in mind in writing certain statements to plaintiff, on objection that the question called for conclusion, unless defendant communicated his intention to plaintiff.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>5. Appeal and Error (§ 1058*) — Cube op Eerob — Exclusion op Testimony.</p> <p>Any error in excluding a question asked a witness was cured by his immediately following testimony, which fully answered the question ruled out.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4195, 4200-4206; Dec. Dig.§ 1058.*]</p> <p>6. Breach op Marriage Promise (§ 21*) — Evidence—Admissibility.</p> <p>In an action for breach of marriage promise, it was proper to permit defendant to be asked: “If you did not intend to marry this girl, by these letters and by your own acts as you have detailed here, were you trying to play her, so as to get her time for your own benefit, and to get her influence to gather your aunt’s property for you?”</p> <p>[Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 28-30; Dec. Dig. § 21*]</p> <p>7. Breach op Maebiage Promise (§ 31*) — Damages—Excessiveness.</p> <p>It was not an abuse of discretion to refuse to set aside a $25,000 verdict for breach of marriage promise as being excessive, where plaintiff showed a pecuniary loss of more than $15,000, and testified that defendant told her he was worth more than $125,000, though he testified he was worth only $55,000.</p> <p>[Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. § 47; Dec. Dig. § 31.*]</p>

Action by E. S. Strasser and others against Ella R. Bulkley, executrix of Henry D. Bulkley, deceased. Judgment for defendant, and plaintiffs bring error.

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina, at Greensboro.</p> <p>Action hy the Chesterfield Manufacturing Company against the Leota Cotton Mills. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. COURTS (§ 405*)- — Federal Courts — Appeal—Rehearing.</p> <p>Tlie strict practice in tbe federal appellate courts permits a petition for rehearing to contain only a brief suggestion of the points sought to be raised without argument. Public Schools v. Waiter, 9 Wall. 603, 19 L. Ed. 650.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1103; Dec. Dig. § 403.*]</p> <p>2. Admiralty (§ 118*) — Review—Questions oe Fact.</p> <p>An appellate court in an admiralty case, while required to give effect to its own judgment on questions of fact, where the evidence is conflicting, or where it is necessary to determine the preponderance to be given to one series of facts over another, may nevertheless give weight to 1he opinion of the District Court, and follow it when it is impossible to say that a contrary finding would be more likely to be correct.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 758-775, 794; Dec. Dig. | 118.*]</p>

Action at law by Mary M. Underwood against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1. (Trial (§ 420*) — Instructed Verdict — Motion—Denial—Waiver.</p> <p>Where defendant moves for an instructed verdict, or a judgment in his favor, at the close of plaintiffs case, and after 'a denial of his motion proceeds to introduce evidence in his own behalf, any exception to the adverse ruling is waived, unless the motion is repeated at the close of all the evidence, again denied, and an exception saved.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 9S3; Dec. Dig. § 420.*]</p> <p>2. Appeal and IJsror (§ G71*) — Assignments oe Error — Record.</p> <p>Assignments of error cannot be reviewed, where they call in question certain alleged erroneous rulings not shown by the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2S67-2872; Dec. Dig. § 671.*]</p> <p>3. Appeal and Error (§ 719*)- — Rulings on Evidence — Assignments oe Error — Necessity.</p> <p>Exceptions saved to rulings on the admission or rejection of evidence cannot be reviewed, where they are not made the subject of an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. § 719.*]</p> <p>4. Appeal and Error (§ 273*) — Exceptions—Scope.</p> <p>Where conflicting evidence is heard in an action at law tried by the court, and a general finding only made thereon, an exception to such finding, or to the judgment rendered, presents nothing for review on a writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1620-1630, 1764; Dec. Dig. § 273.*]</p>

ourt of the United States for the District of North Dakota. In the matter of the Courtenay Mercantile Company, bankrupt. From a judgment adjudging bankruptcy (186 Fed. 352), said bankrupt appeals, adversely to Finch, Van Slyck & McConville and others.

<p>1. Master aed Servant (§ 2<S6*) — Injuries to Servant — Railroads—Explosion op JjOCoaiotive — Negligence—Question for Jury.</p> <p>in an action for injuries t,o a brakeman by the explosion of a locomotive. whether the engineer was negligent in permitting the water in the boiler to get so low as not to cover the crown sheet, the natural result of which would be to cause an explosion, held for the jury.</p> <p>fEd. Note. — For other cases, see -Master and Servant, Cent. Dig. §§ 1001, 100U, 1010-1050; Dec. Dig. § 286.*]</p> <p>2. Appeal and Error (§ 1059*) — Exclusion op Evidence — Fbejudic-e.</p> <p>Where, in an action for injuries to a servant by the explosion of a locomotive, the question of the detective condition of the boiler was withdrawn from the jury, defendant was not prejudiced by the exclusion of evidence to show that the engine itself was in proper condition, and that the explosion must have b.een caused by a lack of water.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4208; Dec. Dig. § 1059.*]</p> <p>3. Trial (§ 200*) — Instructions—Request to Charge.</p> <p>It is not error to exclude requests to charge substantially covered by instructions given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-059; Dec. Dig. § 260.*]</p> <p>4. Evidence (§ 359*) — X-Ray Plates.</p> <p>X-llciy plates, the correctness of which had been verified by competent evidence, are admissible to show the extent and character of an injury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. § 359.*]</p> <p>5. Appeal and Error (§ 1004*) — Questions Reviewable — Excessive Verdict.</p> <p>An objection that the amount of a verdict is excessive cannot be considered by the Circuit Court of Apiieals on a writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944--8047; Dec. Dig. § 1004.*]</p>

Suit by B. B. Davis against the Mobile & Ohio Railroad Company. From a judgment of dismissal on demurrer, plaintiff brings error. The plaintiff in error, plaintiff below, brought suit against the defendant in error, defendant below, to recover damages growing out of an excessive freight charge of 2 cents per hundred pounds on yellow pine lumber in car load lots.

Suit in admiralty by Salvatore Calafiore and others against the Austrian Union Steamship Company, of Trieste, Austria, and others. Decree for libelants, and claimants appeal. This proceeding was commenced by a libel in rem filed on behalf of Salvatore Calafiore against the Austrian steamship called the Gerty.

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Suit by David! Taylor, as trustee in bankruptcy of the Titus Company, against Sebastian S. Kresge. Judgment for plaintiff, and defendant brings error.</p>

Application by B. I. Salinger, individually and as surviving and managing partner of the firm of Salinger & Korte, to impose a lien on certain funds in the possession of Edward R. Mason, Clerk of the Circuit Court of the United States for the Southern District of Iowa, and others. From an adverse decree, petitioner appeals.

the Circuit Court of the United States for the District of South Carolina, at Charleston. Action by the Bank of Brunson against the ¿Etna Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings error. This is an action at law instituted in the Circuit Court of the United States for the District of South Carolina by the Bank of Brunson against; the ¿Etna Insurance Company of Hartford, Conn.

<p>1. Appeal AND Error (§ 237*) — Motion at Trial — Necessity—Sufficiency OF EVIDENCE.</p> <p>On review of a judgment for plaintiff, the Circuit Court, of Appeals cannot determine the sufficiency of the evidence to sustain the recovery, where defendant made no motion for a directed verdict.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cení. Dig. §§ 1386-1388; Dee. Dig. § 237;* Trial, (’em. Dig. 228-252.)</p> <p>2. Appeal and Ebboe (§ 1004*) — Review-—Excessive Damages.</p> <p>On review of a judgment for plaintiff in a personal injury action, tie Circuit Court of Appeals cannot determine whether the verdict was excessive.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]</p> <p>3. Death: (§ 31*) — Action by I-Iusband — Right to Maintain — “Next op Kin.”</p> <p>A husband is his wife’s “next of kin,” where she dies intestate and without children or direct descendants, within Code Civ. Rroc. Kan. § 422a, providing that certain actions for wrongful death may be brought by deceased’s “next of kin.”</p> <p>[Ed. Note. — For other eases, see Death, Cent. Dig. §§ 35-46, 48; Dec. Dig. § 31.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 4798-4804; vol. 8, p. 7732.]</p> <p>4. Coubts (§ 366*) — Federal Courts — Conclusiveness oe State Decisions.</p> <p>A construction of a state statute by the highest court of the state, rendered before the accrual of a particular cause of action, is binding upon the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. § 366.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>5. Costs (§ 260*) — Appeals eor Delay — Damages—Right to.</p> <p>On affirmance of a judgment for personal injury, plaintiff is not entitled to assessment of 10 per cent, damages, under Circuit Court of Appeals rule 30 (150 Fed. xxxv, 79 C. C. A. xxxv), on the theory that the writ of error was sued out merely for delay, where the Circuit Court of Appeals had given a different construction to a statute involved from that given in a subsequent decision of the Supreme Court of the state, which must now be regarded as binding on the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002,1003; Dec. Dig. § 260.*]</p>

Action by the Colonial Trust Company of Waterbury, Conn., as executor of Prank 11. Ludington, deceased, against R. T. Thorpe, receiver of the Ware-Kramcr Tobacco Company, bankrupts, to recover a cigarette machine, or its profits, alleged to have been sold to the bankrupt under a contract of sale, reserving title until paid for. Judgment for defendant, and plaintiff appeals.

<p>1. Evidence (§ 555*) — Experts—Hypothetical Question.</p> <p>Where a physician had been employed to examine plaintiff, to testify as a witness for him, and not to treat him, a hypothetical question, based in part on plaintiff’s history given by him to the witness, was improper, under the rule that, where a physician is called to give testimony, he can only testify to objective symptoms, and not with reference to self-serving declarations made by plaintiff io him, not under oath.</p> <p>1 ltd. Note. — For other cases, see Evidence, Cent. Dig. § 2376; Bee. Dig. § 553.*]</p> <p>2. Evidence (§ 553*) — Experts—Hypothetical Question — Facts Not Proved.</p> <p>Plaintiff testified that on the evening of his injury he noticed that his abdomen was a little bit puffed up, but that it did not swell up enough to make much difference in his size until about the fifth or sixth day after his injury; there being no testimony that within 24 hours after the accident the abdomen was in a badly swollen condition. Meld, that a hypothetical question, assuming that immediately after the Injury plaintiff suffered intense pain in the abdomen and the region of the liver, that it began to swell, so that within 24 hours it was in a badly swollen condition, and within two weeks it became hardened, which condition continued to the present time, was improper, under the rule that a hypothetical question should not embrace facts not proved.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2309-2374; Dec. Dig. § 553.*]</p> <p>3. Damages (§ 170*) — IIelevanoy—Family.</p> <p>In an action for injuries, a question as to whether plaintiff had a family, to which he replied that he had a wife and one child, was improper.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490, 497; Dec. Dig. § 170.*]</p>

Suit in admiralty by the Cornhill Steamship Company, Limited, as owner of the steamship Venus, against the West India Steamship Company, for charter hire. Decree for libelant, and respondent appeals. " On appeal by the respondent, the West India Steamship Company, time charterer of the steamship Venus from a final decree directing the West India Company to pay to the libelant the full amount of the charter hire as stated in the charter.

<p>Master and.Servant (§ 278*) — Injury to Workman — Negligence—Evidence — Sufficiency.</p> <p>Evidence in an action for injury to a workman wliile digging a ditch in a street held to warrant a finding that his employer was negligent in failing to warn him against a defective condition of the soil, known to the employer, but unknown to the workman.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954-972, 977; Dec. Dig. § 278.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>Action at law by Robert Heltman against the Standard Fire Extinguisher Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of bankruptcy proceedings of John Pirvitz. From • an order sustaining objections of John Pithan to the discharge, the bankrupt appeals.

<p>Collision (§ 95*) — Tugs with Tows Meeting — Negligence.</p> <p>A tug, with a tow, which had just passed around tha Battery and started up East River, held solely in fault for a collision between her tow and that of a meeting tug, a little on her starboard, in that, after she had properly given a signal to pass starboard and starboard, which was agreed to, she did not change to port as much as she'should, in view of the fact that the other tug could turn out of her course very little, because of another vessel to the east of her.</p> <p>fEd. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95 *</p> <p>Collision with or between towing vessels and vessels in tow, see nota to The John Englis, 100 C. C. A. 581.]</p>

Suit in admiralty by Jacob Reichert and George W. Kidd, owners of the steam tug Mischief, against the Long Island Railroad Company. Decree for libelants, and respondent appeals. This cause comes bore upon appeal from a decree holding respondent liable for certain injuries to libelant’s tug Mischief, alleged to have been caused by a collision between the Mischief and respondent’s railway bridge over Flushing creek.

Habeas corpus proceeding by the United States of America, on relation of Henry Perelman, against the International Mercantile Marine Company andi others. From the judgment, relator appeals.

<p>TRIAL (§ 419*) - CONCLUSIONS Off TjAW OR FACT - MOTION ffOR NONSUIT-Watvkr.</p> <p>Denial of a motion for nonsuit at the close of plaintiff’s case was waived by defendant’s introduction of evidence on its own behalf.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. § 419. *|</p>

Involuntary bankruptcy proceeding by the American Agricultural Chemical Company and others against W. H. Brinkley. From a decree denying an adjudication of bankruptcy, petitioners appeal.

<p>Appeal ahd Error (§ 1236*) — Affirmance—Judgment'on Supersedeas Bond —When Entered.</p> <p>Judgment on a supersedeas bond, given under rule 13 of the Circuit Court of Appeals (150 Fed. xxviii, 79 C. C. A. xxviii), and Rev. St. § 1000 (U. S. Comp. St. 1901, p. 712), on suing out a writ of error to review a judgment for money not otherwise secured, will not, on affirmance, be entered in the appellate court; the proper practice being to enter such judgment on motion in the trial court after remand.</p> <p>[Ed. Note.' — For other cases, see Appeal.and Error, Cent. Dig. §§ 4778-4784; Dec. Dig. § 1236.*)</p>

Suit in equity by the General Electric Company against the Allis-Chalmers Company and others. From the judgment of dismissal (190 Fed. 145) as to certain defendants, complainant appeals, and defendants move to dismiss appeal.

<p>Patents (§ 328*) — Validity and Infringement — Electrical Translating Device.</p> <p>The Armstrong & Woodbridge patent, No. 726,391, for an electrical translating device, held not anticipated, valid, and infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit iu equity by Michael C. Neenan against the Otis Elevator Company. Decree for complainant, and defendant appeals.</p> <p>The following are the statement of the case and the opinion of the court below:</p> <p>This cause now comes up for final hearing after the taking of more testimony by both sides designed to show the extent of the defendant’s default. The original facts as contained in the testimony first taken are set forth in tho opinion of this court filed on June 2, 1910'. 180 Fed. 997. The complainant took advantage of the leave granted him at that time to submit further evidence designed to show that the defendant’s default extended to the whole consideration. It appeared upon the first hearing that the defendant had paid the sum of $8,009 mentioned in the seventh article of thei contract on April 11, 1907, and that this constituted an election, after the test prescribed in article tenth, to accept the patents and to continue to manufacture elevators under them, although under article eighth the company might cancel the' agreement at any time. It now appears that, besides the four buildings which were considered in the first opinion, the defendant between April 11, 1907, and August 1, 1910, by 27 different contracts installed Otis Drum, Traction, or Worm Gear, elevators in 22 buildings in the city of New York, in each of which the complainant claims his own device would have been more practicable and better suited for the use. Of these 27 contracts, 18 were made before February 5, 10U9, when suit was brought, and 10 before January 1, 1909, which was the date at which Neenan served his notice upon the defendant that he rescinded the contract, and demanded a reconveyance of the patents.</p> <p>His proof iu regard to the suitability of his own device consists of the testimony of one Ryno, who has had a long experience in the city of New York inspecting elevators, and who testifies that in the case of all of the 22 buildings the Neenan device would have saved space either in sectional area through all the floors or at the top where the motor had in fact in some cases been installed. The complainant himself, who went about with Ryno looking at the elevators, corroborates his judgment and enumerates the changes necessary to put in his own device in place of the Otis elevator. These consist of certain eliminations and certain additions the detail of which it is not necessary to state. This testimony is not answered by any of the defendant’s witnesses. The complainant also presented the evidence of an expert electrical engineer, Hanchett, who had had much experience in regard to elevators. In his judgment the Neenan device was superior to the Otis Traction. Worm Gear, or Drum elevators in seven particulars: First, in regard to the application of traction on the ropes; second, in its elasticity and ability to survive shocks; third, the longer life of the cables; fourth, greater safety; fifth, economy of power; sixth, cheaper maintenance; seventh, cheaper installation. The president of the defendant was called and testified that he had submitted bids for Keenan’s device upon only one of- the 27 contracts, the Hendrick Hudson building. He also stated that the fact that the complainant had not yet had a commercial test of the device in actual service was one reason for not submitting a bid upon Neenan’s device, that he had, never advertised the device, and that the defendant did a yearly business of between $1,500,000 and $1,SOO,000 in the direct traction drive type of machine. but that this figure did not represent the business done in Worm Gear and Drum elevators. This was the complainant’s case.</p> <p>The defendant, in answer to this testimony, put on two witnesses — its sales agent, Charles; and the chief of its estimating department, Hollander. Hollander’s testimony contradicts that of Hanchett in respect of the cost of installation, which he believes to be about 12 per cent, greater than for the Otis traction one-to-one equipment. He does not fix the difference in expense between the Neenan system and the Otis Drum, or Worm Gear, elevator, except to say that it is much more expensive. -Upon cross-examination Hollander’s figures did not work out to an exact percentage; that is, he did not succeed, when called on to give details, in making out an exact percentage of 100 from his several items.</p> <p>Charles testified to three efforts made to install Neenan’s device. The first was in the I’ark Row building, in which the defendant offered informally to install one elevator for $5,000. Subsequently they gave to Neenan a bid for ten machines on the same building; $17,500 for the first, and $16,000 for each of the other nine, and last they made a formal proposal to install one machine for $10,000. The negotiations continued after January 1, 1009. and were dropped by the owners themselves. The second proposition -was to install the Neenan device in 42 Wall street. The defendant told the owner that they would be willing in this case also to install a machine for $5,000, hut nothing was ever done by the owner. The third offer was for the.Hendrick Hudson building, in which the defendant formally proposed to put in two Neenan elevators for $22,000, all being high speed, or two Worm Gear low speed elevators for $30,000. The owners .accepted the lower offer. In the case of many buildings the architect expresses some desire for one type, or even actually specifies a given type, though ordinarily the matter is opon for discussion between the elevator builder and the architect. The defendant hesitates in recommending any type of elevator which has not been tried in actual service, and in this case was looking for a place in which to install one elevator and try it out. This would be preferably in an old building in which one could be installed alone, and taken out without too much loss. Upon none of the other contracts' did the defendant make any proposal, nor would it have been willing to do so.</p> <p>HAND, District Judge. It now appears that the defendant has been waiting before putting the elevators into actual operation for an actual service test, in addition to the factory test mentioned in the contract. Nothing of the sort was stipulated, and indeed I have already hold that the defendant was in default in failing to put “said apparatus into practical use” after the tost resulted satisfactorily. However, in my view of the case it may be assumed that the defendant had the right to make a service test before offering the device for general commercial use. It must be remembered, nevertheless, that, if so, this became a condition precedent of its own creation upon which the whole exploitation of the patent depended and that it was bound to active diligence to fulfill it. How has it discharged that obligation? There were 18 opportunities before bill filed besides 3 mentioned in the original opinion, and the defendant has not succeeded in installing the first service elevator in a single case. In saying that there were 18, I do not forget the contention that as to 2 contracts let between January 1st and February 5th the complainant’s notice put them in risk of an infringement; but I think that their fear of such an infringement was not controlling, as is shown by the fact that they made a new offer to put in the elevator in 42 Wall street after January 1st and continued their negotiations on the Park Row building after the same (late, and also because they actually entered Into a contract to manufacture the Neenan device in December, 1910. At that time the case had by no means been decided against the complainant. In regard to those contracts let after February 5, 3009, while it is true that the cause of action must be complete when suit is brought as well in equity as at law,' still the actual intention and attitude of the defendant which is the subject of dispute can be tested by what occurred afterwards as well as by what occurred before. It appears therefore that in all 27 contracts were* let, in each of which Neenan’s device could have been installed. This, indeed, is not disputed hy the defendant so far as the physical adaptation of the device to the buildings goes. Of course, I recognize that no one could say in how many of these they could have succeeded In installing the preliminary and service test elevator; but it had not even installed one, until it learned that the court might hold it to some action. So much, therefore, for its actual discharge of the obligation to put the apparatus to practical use. It has certainly failed in a large number of cases where the patent could be used.</p> <p>AVI mi, however, as to the efforts it has made, for it may well be that mere failure would not be ground for rescission, if the defendant had done what it could. Not only did they not succeed, but they tried in only 4 out of more than 00 contracts, and, perhaps most significantly of all, in one of those 4 succeeded without any difficulty, so far as appears, in December, 1010, in actually letting a contract, not long after they had been put under some pressure. This does not seem to me to be the whole-hearted good faith to which the complainant was entitled. The very existence of his property was limited in time to December 21, 1918, so that when the choice was made in April, 1007, it had only 11% years more to run, which was the only period in which to profit by his discovery. Moreover, it was only from the latter part of that period that the great gains would be likely to come, for we all know that the early years, which Introduce an invention, are apt to be lean. Every year of delay means a year's loss at the end which is the best part of the patent, if it should turn out to be successful, and cuts off the greatest harvests, if there be a future harvest at all. Tt is not, therefore, a question merely of a proportionate loss to Neenan from each year's delay. If time be ever of the essence, It is in a case of this sort. Nor is it an answer to say that Neenan is too sanguine; that may well be true, though it hardly lies in the defendant’s mouth, after being so languid in ascertaining whether or not his hopes are too high. In any ease he bargained for active exploitation in good faith, and I must say it does not seem to me that he has had that. Had the defendant met his proof by showing that they had tried in all the contracts to put in the device, or at least in all those in which there were not. good reasons against it, I should perhaps think differently, even though they were in formal default; hut is it tolerable that thev should let contract after contract without any effort to pul in the mere service test, contracts which they now do not try to show Neenan’s device could not mechanically have filled? Every'allowance ought to be made for a reasonable difference of business judgment and for the necessities of their own manufacture; Neenan was subject to those, when he went in with them; but under the excuse of a reasonable business opportunity, the defendant could not remain indefinitely passive. Their undertaking involved action by them, and Neenan had the right to have them treat his device on an equality with their own. While they were not formally in a fiduciary relation to him, the scope of their obliga lion is fairly to be interpreted with an eye upon the fact that his profits would come from their use of I he property he had conveyed. At least he had a commercial inlerest In the property, nor did the guaranty in the least change the obligation to exploit the patent.</p> <p>I must therefore conclude that the defendant has shown no adequate excuse for the delay of nearly two years in putting in the experimental elevator, and that such efforts as they made were not a sufficient compliance with the obligations of the contract. That delay has been followed by a further delay of nearly two years more, and is corroborative of their disposition towards the patent. A delay of two years goes, as I have shown, to the very heart of the consideration, for, though it amounts to little now, it lops off two years upon the end of the monopoly, which, if it is successful, are its very cream. I think Neenan was not obliged to wait any longer and could sue when, he did.</p> <p>The defendant urges that it has taken long to exploit several of its own machines, and that it can have no motive to discriminate against Neenan. As to the length of time in other cases, X can only say that it might well have been different, if there they had tried and failed, or had even given a reason for not trying; but they have done neither. Charles does say that in a few instances he believes the type of elevator was prescribed by the architect; bist those cases are at most four, and it is extremely doubtful whether in two of those four the situation did not justify at least a suggestion of Neenan’s device. As to motive, it is indeed a circumstance in the defendant’s favor and I try to remember it. While it is not in the least necessary to find a motive, it is quite apparent that if a competing device be safely out of the way, as here, the stimulus for active and aggressive efforts to introduce it does not exist. There is no powerful motive to initiate a new development which is still tentative, when experience has proved the present devices quite satisfactory. Such an experiment certainly involves expense and possibly involves failure, with an attendant incidental injury to the whole business of him who brings it out. Moreover, while the royalties are very small, and could hardly be a determining factor in case of success, they were at least an added burden of 2 or 3 per cent., which, if competition be sharp, might be an inducement. In any case there appear to be possible motives for slackness of action.</p> <p>However that may be, the fact is here that the defendant did not fulfill its obligation, and tho right to rescind is made out.</p> <p>The question of terms can 'in all probability be settled as well now as after a reference.' It must speak as of the time of compliance with the decree and must try to put the parties in statu quo as of that date. Since the defendant has received nothing, it has no profits to account for. On the other hand, the complainant has received all told $13,000 which he must account for. The real question is as to how much of this sum the damages due to the defendant's default can constitute a set-off, and it is so clearly impossible to prove that as to make it idle to direct a reference to ascertain them. Should the defendant be charged with some sum for enjoyment of the patent? There is trouble in assuming that the minimum value to the defendant was at least equal to the guaranty; for it is possible that the royalties were themselves fixed at a lower sum than would have otherwise been the case just because of the guaranty, and, if so, the defendant was pro tanto paying in advance for royalties yet unearned. That is, however, an extremely unlikely supposition, because it was perfectly impossible to estimate even approximately what the future royalties would be, so that one could have any assurance that more than the guaranty would ever be earned at all. Besides the usual way, as in mining royalties, where the intention is that suggested, is to provide that so much of the .guaranty as is not earned in one year may be set off against future royalties in any year in which the royalties exceed the. guaranty. As there is no such provision here, it is less likely that the intention was that the guaranty was in any part payment for future royalties. While the matter is undoubtedly not free from doubt, some means must be struck which will effect substantial justice, and that most nearly in accord with the probable intention of the parties is to say that to value the yearly enjoyment of the patent at no less than $3,000. While this may turn out to be less than the value of the last years of the monopoly, if fruitful, of which Neeñau has been deprived, it is all that can now be ascertained. On the other hand, it would be obviously unjust to make him repay the whole sum he has received, because the defendant has failed to receive what it ought to have tried to get.</p> <p>The initial payment of $2,000 I regard as paid for an option on the patents, involving as it did their retention for three years. The complainant therefore need not be charged with that. The account will therefore charge Nee-nan with $8,000 with interest from April 11, 1907, and with $3,000 with interest from January 1, 1908. Against that he may credit himself with the value of the patent to the defendant from April 11,. 1907, at the rate of $3,000. I do not think that any interest can be added to the credits, since the allowance is neither for profits received, nor for damages suffered. It is rather upon a quantum meruit based upon the estimated value to the defendant of possession of the patents during the period in question. In such cases it is not generally the rule to award interest. Either party against which the account goes will pay to the other the balance due, and the defendant will re-convey the patents.</p> <p>Complainant will have costs.</p> <p>Post Sceiptuw. — Counsel for the defendant has very kindly called to my attention a mistake in this opinion arising from the fact that paragraph 10 of the contract of May 24, 1904, covers only the patent not then Issued, and indeed only issued on February 9, 1909, after the suit W’as brought. I can hardly see, however, that this in any sense changes the reasoning, or the result, for it is as though the patent, instead of having only 11 years, had 19, to run from April 11, 1907. My theory was that as the patent might be commercially successful, or at least as Neenan had the right to assume so, the last years would be the most fruitful, and that every year of delay in starting to exploit it would cut off a corresponding year of high returns. With this in mind, it makes no difference that the years cut off were at the end of 19 years instead of at the end of 11 years, so far as I can see. Indeed, the longer the term of the monopoly after the device becomes profitable, the higher the returns. What might have made a difference would have been for the defendant to stipulate that it might defer manufacture after acceptance till the patent had issued; hut this they did not do, and they were therefore bound, before accepting the patent, to satisfy themselves that it would issue. This they apparently did, and in any case they were entirely protected by the cancellation clause. Besides, there was no commercial reason why the defendant should have waited after 1907 until the patent issued, nor does it urge that as a reason for inaction. There was small likelihood during those two years of the need of an actual patent to protect their* rights, for infringements do not generally arise at the outset; indeed, the delay of issuance in the Patent Office, which was uncommon under the circumstances, was all to the advantage of both parties.</p>

<p>J, Patents (§ 328*) — Validity and Infringement — Safety Razor.</p> <p>The Gillette patent, No. 775,134, for a razor having a detachable blade of such thinness and flexibility as to require external support to its cutting edge, was not anticipated, and covers a device both original and generic: also, held infringed.</p> <p>2. Patents (§ 107*) — Validity—Proceedings in Patent Office.</p> <p>The withdrawal of an application for a patent and the substitution of another is proper procedure where the inventions claimed are identical, and the second is merely an amplification of the first.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. § 150; Doc. Dig. § 107.*]</p> <p>S. Patents (§ 101)--Validity- — Sufficiency of Claims.</p> <p>A claim of a patent is not invalid because the thing claimed is not in itself an operative device, but only an element of one.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 141; Dec. Dig. § 101.*]</p>

<p> (Syllabus T>y the Court.) </p> <p>1. Patbjvts (§ 02*) — Anticipation—Sufficiency of Evidence.</p> <p>The existence and use of an unpatented anticipating device prior to the inveniion patented may be established by oral testimony only by clear and satisfactory 'evidence sufficient to prove the facts beyond a" reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §. 78; Dec. Dig. § 02.*]</p> <p>2. Appeal and Error (§ 1009*) — Review—Findings of Chancellor Presumptively Right.</p> <p>When the chancellor has considered conflicting evidence, and made his finding and decree thereon, they must be taken to be presumptively right; and unless an obvious error has intervened in the application of the law, or some serious mistake has been made in the consideration of the evidence, they must be permitted to stand.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*]</p> <p>3. Patents (§ 328*) — Patent No. 892,999 to Ljungstrom Void.</p> <p>Claims Nos. 4, 5, 0, 7, and S of letters patent No. S92,999, for improvements in liners for centrifugal bowls for separating cream from milk, issued to Fredrik Ljungstrom July 14, 1908, on an application filed January 18, 1905, were anticipated by a bowl that was made, tested, and found satisfactory by Wilbur W. Marsh, and put into actual use in the autumn of 1903.</p>

Suit in equity by Douis Metzger & Co. against Samuel N. Berlin and Bernhard Trosky. From an order granting an injunction, defendants appeal. Appeal from an order in a suit to restrain the alleged infringement of letters patent No. 964,476, .issued on July 12, 1910, to David Metzger for an improvement in feather plumes.

<p>1. Patents (§ 328*) — Invention—Eracimo Switch.</p> <p>The Wright & Aalborg patent, No. 633,771, for a switch for electric circuits, is void for lack of invention.</p> <p>2. Patents (§ 160*) — Construction—Proceedings in Patent Omeros.</p> <p>As a general rule, and unless limitations are imposed by acquiescence in the rejection of broader claims than those allowed the interpretation to be placed on the claims of a patent is to be determined by the language of the grant, and the proceedings of the Patent Office are immaterial.</p> <p>(Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 234, 235; Dec. Dig. § 160.*]</p>

<p>Patents (§ 328*) — 'Validity and Infringement — Circuit-Breaker for Electrical Distribution System.</p> <p>The Wurts patent. No. 570,416, for a circuit-interrupting means for systems of electrical distribution, claims 3 and 4. which cover a combination in one system of an automatic circuit-closing device actuated by an excessive current in the main or distribution circuit with remote control devices for closing local circuits at the will of the operator, are not for a mere aggregation, but a true combination of substantial utility and disclose invention; also held infringed.</p>

<p>1. Patents (§ 129*) — Suit foe Infringement — Estoppel to Deny Validity.</p> <p>A patentee is estopped to deny tile validity of the patent as against an assignee when sued for its infringement, even though facts which render the patent invalid were known to the assignee at the time the assignment was made.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182y>-18C; Dec. Dig. § 129.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Elevator Door.</p> <p>A preliminary injunction against infringement of the Raskin patent, ■No. 871,735, for an elevator door, granted as against the patentee, hue denied as against a second defendant.</p>

<p>Patents (§ 328*) — Infringement.</p> <p>The Richardson and Langston patent, No. 009,489, for an improvement in railroad tickets, held not infringed, in view of the limitations imposed upon'its scope by the prior'art.</p>

<p>Patents (§ 292*) — Suit for Infringement — Requiring- Disclosure by Defendant.</p> <p>A showing that an alleged infringer makes a device in all essentials similar to that produced by complainant’s patented machine, and inferentially made by the same machine or its equivalent, where defendant refuses to permit an inspection of his machine, or to disclose the contents of his ■ application for a patent thereon, is sufficient ground for an order of the court compelling such disclosure, or permission to make such inspection.</p> <p>(Ed. Note.- — Eor other cases, see Patents, Cent. Dig. § 446; Dee. Dig. § 292.*]</p>

<p>In Equity. Suit by the Weed Chain Grip Company against the Atlas Chain Company. On motion for preliminary injunction.</p>

<p>Petition by the Atlantic Coast Rine Railroad Company and others against the Interstate Commerce Commission, respondent, the United States, the M. C. Kiser Company, and the J. K. Orr Shoe Company, interveners.</p>

At Law. Action by Charles C. Ruckle against the American Car & Foundry Company. On defendant’s motions for judgment non ob-stante veredicto and for new trial.

<p>Corporations (§ 457*) — -Powers- Contracts — Ultra Vires.</p> <p>Defendant was organized and empowered by its charter to acquire mines, mining lights, and lands, to mine, refine, and prepare for market mineral substances and ores of all kinds, and in connection therewith carry on any other operations necessary or incidental thereto, including the purchase and sale of all milling supplies, with the privilege of doing a general merchandise business at tbe place or places where the mining business is conducted or elsewhere. Defendant, having acquired certain mining claims in Missouri from which it expected to produce large quantities of zinc ore, contracted in good faith to sell certain quantities of zinc ore at stated periods to B. & Go., but, being unable to mine all the ore from its own mines, except at a cost greater than the price at which it could purchase ore from others, bought more ore than its own mines produced in order to fulfill the contract. Held, that defendant had incidental power to procure such ore to comply with its contract, and that its act in so doing was not ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1808, 1809 ; Dec. Dig. § 457.*]</p>

<p>In Admiralty. Suit by the Manchester Liners, Limited, owner of the steamship Manchester Miller, against the Virginia-Carolina Chemical Company. Decree for respondent.</p>

<p>In Equity. Suit by the United States against E. Dowden and others. On demurrer to bill and motion for temporary injunction.</p>

At Law. Consolidated actions by John Langdon, by the Hunting-don Coal Company, by the Mt. Equity Coal Company, by Eichel-berger & Co., by Warren H. and Chester D. Reed, by J. Herbert Sweet and William E. Shannon, as executors of the estate of William H. Sweet, deceased, and by the Carbon Coal & Coke Company against the Pennsylvania Railroad Company. On motions for judgments non obstante veredicto and for a new trial.

<p>At Raw. Action by E. Wells Johnson, against the Cadillac Motor Car Company. Judgment for plaintiff. On defendant’s motion to set aside the verdict, directed by the court on special findings of the jury, on the ground that, based on the findings, the verdict was contrary thereto and unsupported thereby, and if the findings in favor of plaintiff would support such verdict, such findings, or the vital one, were contrary to and unsupported by the evidence.</p>

<p>At Law. Action by William A. Clark against the Chicago, Rock Island & Pacific Railway Company and another. On plea to the jurisdiction.</p>

In Admiralty. Suit for collision by the C. F. Harms Company, as owner of the barge Crow, against the steam tugs Golden Rod and Transfer No. 20. Decree for libelant against the Golden Rod alone.

In Equity. Suit by the International Transit Company against the City of Sault Ste. Marie and others. Decree for complainant. The complainant is a corporation organized under the laws of the province of Ontario, Dominion of Canada, and licensed by the Dominion government to operate a ferry called ‘‘Kings Ferry” across St Mary’s river between Sault Ste. Marie, Ontario, and Sault Ste. Marie, Mich. Si.

In Admiralty. Suit by William. J. Conway and Charles A. Fox, as owners of the tug Charles- A. Fox, against the City of New York and the Water Front Improvement Company, brought in by respondent city. Decree for libelants against both respondents.

<p>'In Equity. Bill by William Rich and others against William A. Teasley and others. Decree for complainants.</p>

<p>Post Office (§ 33*) — “Nonmailable Matter” — Newspaper Without Wrapper.</p> <p>A newspaper without a wrapper, the address being written on the paper itself, though containing scurrilous and defamatory matter, marked with blue pencil and so folded'as to expose the same to view, is not “non-mailable matter,” within Or. Code (Act March 4, 1909, c. 321, 35 Stat. 1129 LU. S. Comp. Si. Supp. 1909, p. 1451]) § 212, which provides that all matter otherwise mailable, oil the “envelope or outside cover or wrapper” of which language of a libelous or scurrilous character may be written, is nonmailable, and which prohibits the sending thereof through the mails.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 53; Dee. Dig. § 33.*</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p>

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and the Metropolitan Street Railway Company, and three other cases. On exceptions to report; of Special Master in the matter of the claim of Central Crosstown Railroad Company.

<p>Street Railroads (§ 54*) — Sale Under Foreclosure — Liability for Tort Claims Against Receivers.</p> <p>An application by the purchaser of street railroad property at foreclosure sale for an order requiring the receivers to set aside a sum from the cash fund in their hands arising from their operation of the property to be applied in payment of tort claims against them growing out of negligence in su'cli operation denied in view of the provisions of the decree under which the sale was made.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 133; Dec. Dig. § 54.*]</p>

<p>In Admiralty. Suit for collision by Nathaniel S. Knapp, owner of the canal boat Knapp, against the steam lighter James A. Walsh and the tug Walter B. Pollock. Decree for libelant against the Knapp alone.</p> <p>On August 13, 1909, the tug Walter B. Pollock, with libelant’s canal boat ICnapp in tow alongside, on tbe port side, left Pier 16, Brooklyn, bound for Pier 5, East Paver, New York' City. About tbe same time tbe steam lighter James A. Walsb left Pier 22, Brooklyn, further down tbe river, bound for the Maine Steamship Company’s pier, No. 20, East River, New York. Tbe two vessels came in collision about the middle of tbe river, the Walsh striking the port side of libelant’s boat.</p>

<p>In the matter of Burt H. Michaels, bankrupt. On motion to punish Israel Diness for contempt, he is cited before the court for pun.ishment.</p>

<p>In Equity. Bill by Borden’s Condensed Milk Company against the Borden Ice Cream Company and others. On motion for a preliminary injunction.</p>

<p>In Equity. Bill by the Des Moines Water Company against the City of Des Moines and others.</p>

<p>In Admiralty. Suit by the Barnett & Record Company against the barge Aurora; Henry Wineman, Jr., owner. Decree for respondent.</p>

In the matter of the bankruptcy of Louis Hirshowitz, bankrupt. Heard on exceptions to the report of the master recommending the discharge of the bankrupt.

In the matter of Harry B. Wilson, bankrupt. On certificate for review of a referee’s order disallowing a claim for preference.

Emanuel Komie was indicted for putting out certain postal money orders' without having received the money therefor, and he pleaded autrefois convict, to which the government demurred.

<p>Judgment (§ 622*) — Re& .Tudioata.Questions Concluded.</p> <p>A judgment for a seller for the contract price, rendered after a trial on the merits involving the defense that the sale was by sample and that the goods delivered were not in accordance with the sample, bars a subsequent action by the buyer for damages based on the same claim, though at the former trial he dismissed his affirmative claim for damages based on the same matter.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1136; Dec., Dig. § 622.*</p> <p>Conclusiveness of judgment as dependent on theory of action or recovery, see note to Millie Iron Mining Co. v. McKinney, 96 C. C. A. 163.]</p>

<p>Removal of Causes (§ 102*) — Amount in Controversy — Suit Removed Prior to January 1, 1912 — Remand.</p> <p>Judicial Code (Act March S, 1911, c. 231, 36 Stat. 1091) § 24 gives the District Court Jurisdiction of suits where the matter in controversy exceeds $3,000; and section 28 gives it the same jurisdiction of suits by removal. Section 37 provides that if, in any suit pending in the District Court, removed from a state court, it shall appear to the satisfaction of the court, at any time after removal, that such suit does not involve a controversy properly within its jurisdiction, it shall remand the same. Section 290 provides that suits pending in the Circuit Courts at the time the Code takes effect shall thereupon be proceeded with in the District Courts in the same manner as if originally begun there. Held, that a suit properly removed to the Circuit Court before the Code took effect should not be remanded, on motion made in the District Court after it took effect, because it involved less than $3,000, in view of section 299, which provides that the Code shall not affect any act done, or any right accrued or accruing, or any suit or proceeding pending, at the time it takes effect.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 218-220, 223, 224; Dec. Dig. § 102.*]</p>

<p>In Equity. Suit by the Samson Cordage Works against the Puritan Cordage Mills. On final hearing. Decree for defendant.</p>

<p>Pleading (§ 218*) — Defenses—Demurrer—Rearucment.</p> <p>Where, in a receiver’s suit against stockholders of an insolvent corporation to enforce a stock subscription liability, a demurrer has been overruled to defendant’s answer, and it appears that defendant is entitled to an allowance of a set-off of some sort, in case the facts pleaded are proved, a reargument of the demurrer will not be granted more than six months after the decision thereof, based on a single ground that the demurrer to the set-off pleaded could not, as a matter of technical pleading, have been assumed to admit more than the specific facts of the counterclaim itself.</p> <p>TEd. Note. — For other cases, see Pleading, Cent. Dig. §§ 549-506; Dec. Dig. § 218.*]</p>

<p>Action by Leonard H. Shipman, receiver, against Ella Willard. Judgment for defendant.</p>

Appeals from the Circuit Court of the United States for the Western District of Michigan. Bill by Margaretha Lonstorf against George J. Maas and another. From a decree in favor of complainant for less than the relief demanded, both Margaretha Lonstorf and George J. Maas appeal.

Appeals from the Circuit Court of the United States for the Southern District of Iowa. Suits in equity by the Chicago & Northwestern Railway Company against the First National 'Bank of Carroll, Iowa, and another, and by the Empire State Surety Company and another against Carroll County and others, consolidated. From the decrees, certain parties appeal.

<p>Principal and Surety (§ 100*) — Building Contracts — Discharge of Surety.</p> <p>The surety on. a federal building contractor’s bond was discharged from liability by the government taking possession of the work on the contractor’s default and making a substantially different contract with a third person, though the original contract authorized the government to make changes in the work.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 102-165; Dee. Dig. « 100.*</p> <p>Discharge of surety on building contract by change in obligation or duty of principal, see note to United States v. Walsh, 52 O. C. A. 427.]</p> <p>Gilbert, Circuit Judge, dissenting.</p>

<p>1. Mines and Minerals (§ 44*) — Lode Mining Claims — Patents—ConcluSIVENESS.</p> <p>Under the Colorado statutes, which require one filing a lode mining claim to post a notice at the point of discovery and sink a shaft within 60 days after the discovery, a patent to a claim concludes, on collateral attack, an assertion that the claim was located and patented without the discovery of any vein, lode, or ledge.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 130; Dec. Dig. § 44.*</p> <p>Conclusiveness of patents for mining claims, see notes to Carson City Gold & Silver Min. Co. v. North Star Mining Co., 28 C. C. A. 346; Bunker Hill & Sullivan Mining & Concentrating Co. v. Empire State-Idaho Mining & Developing Co., 48 C. C. A. 674.]</p> <p>2. Mines and Minerals (§ 44*) — Lode Mining Claims — Patents—Conclusiveness.</p> <p>A federal patent to a lode mining claim is conclusive, as against collateral attack, on every' question properly within the jurisdiction of the Land Department.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 130; Dec. Dig. § 44.*]</p> <p>S. Mines and Minerals (§ 40*) — Federal Patents — Duty oe Land Department.</p> <p>In issuing a federal patent to a lode mining claim, the Land Department must take notice, not only of acts of Congress, but of local laws and regulations.</p> <p>[Ed. Note. — For other eases, see Mines and Minerals, Cent. Dig. § 115; Dec. Dig. § 40.*]</p> <p>4. Mines and Minerals (§ 43*) — Lode Mining Claims — Boundaries.</p> <p>Where a lode mining claim is longer than it is wide, the end lines of the claim as fixed in the patent are prima facie at least the true end lines, as affecting extralateral rights.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 125-129; Dec. Dig. § 43.*]</p>

Della Bennett was convicted of violation of the white slave act, and she brings error.

<p>Commerce (§ 82*) — Violation of White Slave Act — Evidence—Sufficiency.</p> <p>On a prosecution for inducing the interstate transportation of women for unlawful purposes, evidence examined, and held to support a conviction.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 47; Dec. Dig. § 82.*]</p>

<p>1. Ptnmio Lands (§ 114*) — Grants—Hiparían Rights.</p> <p>Rights of owners of lands bordering an inland navigable lake, being governed by the laws of the state, subject to the paramount public right of navigation, a federal patent to such lands does not convey anything below tlie ordinary high-water mark.</p> <p>[ltd. Note. — For other cases, see Public Lauds, Cent. Dig. §§ 314-822; Dec. Dig. § 114.* 1</p> <p>2. Navigable “Waters (§ 30*) — Waters and Water Courses (§ 89*) — Hipa-rían Rights.</p> <p>In Idaho, a riparian owner on navigable water takes title to the thread of the stream, or lake, subject to the public right: of navigation.</p> <p>[Ed. Note. — For other cases, see Navigable Waters. Cent. Dig. §§ 180-20Ó; Dec. Dig. S 30;* Boundaries, Cent. Dig. $$ 108-112, ll.l-lU, 121, 122; Waters and Water Courses. Cent. Dig. §§ 91, 92; Dec. Dig. § 8!).*]</p> <p>3. Navigable Waters (§ 40*) — Riparian Rights — Separarle Character.</p> <p>Riparian rights incident to ownership of lands in Idaho bordering on a navigable lake are separable from the lands by conveyance, condemnation, relinquishment, or prescription.</p> <p>[Ed. Note. — -For other cases, see Navigable Waters, Cent. Dig. §§ 283-293; Dec. Dig. § 40.* 1</p> <p>4. Navigable Waters (§ 46*) — Riparian Rights — Estoppel.</p> <p>Plaintiff is not estopped to claim riparian rights conveyed apart from the lands to which they were appurtenant, where each party had notice of the other’s claims and of their dispute as to what their legal rights were.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 283-293; Dec. Dig. § 46.*]</p> <p>5. Navigable Waters (§ 37*) — Riparian Rights — Conveyance.</p> <p>A deed to all the riparian and water rights in front of and belonging to specified lots bordering a navigable lake, fixing the average high-water line for five years as the division line, passed title to the soil under the lake to the middle thereof.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 201-227, 285; Dec. Dig. § 37;* Boundaries, Cent. Dig. §§ 108-112, 115-117, 121, 122.]</p> <p>6. Navigable Waters (§ 36*) — Riparian Rights — Ejectment.</p> <p>Ejectment lies to oust possession of the soil under a lake and structures erected thereon.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by Antone Brown against E. N. Weigel. Judgment for plaintiff, and defendant brings error.</p>

Petition to Review Order of the District Court of the United States for the Western District of Michigan. In the matter of J. W. Fleming Company, bankrupt. On petition of Thomas Ransfordl to review an order of the District Court enjoining the collection of a garnishee judgment.

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Greensboro.</p> <p>Sidna Allen was convicted of perjury, and brings error.</p>

Action by T. Gilbert Wood, who sues for the benefit of himself and others, against the Spring Garden Insurance Company of Philadelphia, Pa. There was a verdict for plaintiffs, and defendant brings error.

Suit in admiralty by the Red Star Towing & Transportation Company against the Snare & Triest Company. Decree for libelant, and respondent appeals. Appeal from a final decree awarding damages to the libelant for injuries sustained on December 11, 1905, by its steam tug C. F. Roe in collision with a bunch of. submerged piles belonging to the respondent in the waters of Blushing creek, Long Island.

<p>Collision (§ 102*) — Steam Vessels Meeting in Bbidge Dbaw — Mutual Fault.</p> <p>Two steam vessels, which came into collision when passing through the draw of a bridge on Harlem River in the evening, after exchanging signals to pass port and port, both held in fault; one, which was moving slowly against the tide close to the north side of the center pier, for not reversing to permit the other to pass across her bow to the port side, and the other for not porting more and allowing for the set of the tide, which carried her down upon the other’s bow.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 302.*]</p>

Action by I. D. Block and others against the City of Meridian and others. Judgment for defendants, and plaintiffs bring error.

<p>1. Account Stated (§ 12*) — Pkooekbtngs to SURCHARGE and PAnsmr Accounts — Equitable Ru ms.</p> <p>The chancery rules governing proceedings to surcharge and falsify accounts are applicable only where an account has been stated between the parlies, or where something equivalent thereto has been done.</p> <p>[Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 73-76; Dec. Dig. | 12.*]</p> <p>2. Account Stated (§ 1*) — Acts Constituting.</p> <p>A statement made by an agent shewing the sums paid out by a principal not tendered as a formal account does not become; an account stated ; he not being prepared to say that he did not give the statement on condition that it should not be used against the principal.</p> <p>[Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 1-8; Dec-Dig. § 1.*]</p> <p>3. Money Received (§ 1*) — Liability.</p> <p>Where one has without right the money of another, the law presumes that he received it for the latter, and holds it for his use, and he must be decreed to pay it over.</p> <p>[Ed. Note. — For other cases, see Money Received, Cent. Dig. § 1, Dec. Dig. § 1.*]</p>

Suit in admiralty by Bonaparte Shoe, managing owner of the schooner Matilda Borda, against George F. Craig & Co. Decree for libelant for part damages, and he appeals.

Suit in equity by Gould & Eberhardt against the Cincinnati Shaper Company. Decree for defendant, and complainants appeal. Following is the opinion oí the Circuit Court by Sater, District Judge: The bill charges the infringement of patent No. 541,476, granted lime 25, I8ÍJ5, to the complainant's assignors.

<p>Appeal from the Circuit Court of the United States for the Western District of Michigan.</p> <p>Suit in equity by Frank P. D’Arcy against the Sheffield Car Company. Decree for complainant, andl defendant appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Plunger Elevator Company against William G. and David E. Park. Decree for defendants, and complainant appeals.</p>

<p>Patents (§ 328*) — Invention—Design foe Muffler.</p> <p>The only feature of the design shown' in the Mead patent, No. 39,347, for a design for a neck scarf, which was subject to patent under Rev. St. § 4929, as amended by Act May 9, 1902, c. 783, 32 Stat. 193 (U. S. Comp. St. Supp. 1909, p. 1274), which authorizes the granting of a patent for a “new, original and ornamental” design, was in the configuration and surface ornamentation of the two connected aprons forming the front portion of the scarf; the connecting neck portion being functional only and not visible when the scarf is worn. As so construed, the patent is void for lack of invention and novelty in view of the prior art.</p>

<p>In Equity. Suit by the Phoenix Knitting Works against Eouer Brothers. On motion for preliminary injunction.</p>

<p>Patents (§ 328*) — Tnfrindement—Dest gn for Neck Scarf.</p> <p>The Mead design patent, No. 89,347. for a design for a neck scarf, held valid and infringed on motion for preliminary injunction.</p>

<p>In Equity. Suit by the Phoenix Knitting Works against the Hygienic Fleeced Underwear Company. On final hearing. Decree for defendant.</p>

<p>In Equity. Suit by the Phoenix Knitting Works against Nathan J. Rich and others. On final hearing. Decree for defendants.</p>

<p>1. Patents (§ 81*) — Paro» Use — Evidence.</p> <p>In order to establish prior use of an invention to defeat a patent, the date of the alleged antieipaiion must be shown by evidence that is clear, certain, and precise, and beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 101; Dee. Dig. § 8.1.*]</p> <p>2. Patents (§ 168*) — Validity—Change in Language of Claim.</p> <p>A claim of a patent is not invalid because its language was changed to meet 1lie views of the examiner in the Patent Office, where the invention covered is the same described and claimed in the application.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dee. Dig. § 168.*</p> <p>Amendment of application, see notes to Cleveland Foundry Co. v. Detroit Vapor Stove Co., 68 C. C. A. 239; ITestonville, M. & F. Pass. Ry. v. McDuffee, 109 O. O. A. 613.]</p> <p>3. Patents (g 328*) — Validity and Inebingement — Muttlek.</p> <p>The Mead patent, No. 963,235, for an improvement in mufflers, held not anticipated, valid, and infringed.</p>

In Equity. Suit by the Phoenix Knitting Works and the Bradley Knitting Company against Nathan J. Rich, Henry J. Rich, and Samuel S. Sampliner, doing business under the firm name of N. J. Rich & Company. On final hearing. Decree for defendants.

<p>In Equity. Suit by Ferdinand W. Starr against Charles C. Houser and the Historical Publishing Company. On final hearing. Decree for complainant.</p>

<p>1. Banks and Banking (§ 179*) — Loans—Security.</p> <p>Where a note given to a bank for a loan of §20,000 declared that the maker had deposited collateral as security for the payment of the note and every other liability of the undersigned to the bank, direct or con-ttngent. due or to become due, or which might thereafter be contracted or existing, followed by a specific description of the collateral, such collateral was pledged to secure not only the $20,000 note, but also the other indebtedness of the maker to the bank.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Dec. Dig. § 179.*]</p> <p>2. CORPORATIONS (§ 566*) — INSOLVENCY-SECURED CLAIMS.</p> <p>Where an insolvent corporation deposited collaterals with claimant bank as security for its entire indebtedness, the bank on administration of the corporation's estate in equity was entitled to prove its claim for the full amount of its debt and to receive dividends up to the balance due after crediting the proceeds of the sale of the collaterals.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.*]</p>

<p>In Equity. Action by the Commercial & Savings Bank against the Robert H. Jenks Lumber Company. On petition for instructions to receiver.</p>

In Admiralty. Suit by the Chelsea Iron Works against the steam tug Glen Island, with 11 other actions against the same tug. On determination of priority of liens. Each of the libels above mentioned asserts a lien against the tug, which has been sold under decree obtained in the first cause. All the libels were filed before sale. One is for seaman’s wages, and is admittedly entitled to preference.

<p>Bemovat, of Causes (§ 3*) — Actions under Employee's Liability Act— Construction of Statute.</p> <p>The provision of .Employer's Liability Act April 22, 1908, c. 149, § 6, 35 Stat. 66 (U. S. Comí), St. Shipp. 3909, p. 3173), as amended by Act April 5, 1910, c. 143, § 1, 36 Stat. 291, that “no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States,” prevents the removal of such a ease on any ground whatever.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]</p>

In the matter of the Swain Company, bankrupt. On review of an order of the referee allowing the claim of Geo. O. Ormsby as preferred.

In the matter of the bankruptcy of H. W. Hawley, a bankrupt. On petition for review of a referee’s decision rejecting an unliqui-dated claim.

Action by J. Truman Swager against Harvey F. Smith, as trustee in bankruptcy of William H. Tompkins and another, trading as Tompkins & Geary. From a judgment in favor of defendant, plaintiff appeals. It appears from the evidence that .7. Truman Swager was the owner of a hotel and restaurant in Clarksburg, W. Va., which he occupied and conducted personally.

<p>1. Müiíioipai. Corporations (,? 727*) — Liability fob Torts — Failure to Perform Duties Imposed "by Statute — “Power”—“Authority.”</p> <p>finder the law of Maryland, as settled by decision, a legislative delegation of “power and authority” to a municipal corporation, to be exercised for the public benefit or protection, is not permissive merely, but imperative, and imposes a duty and obligation on tbe municipality for the nonexorcise or negligent exercise of which, resulting in private injury, it is liable in damages.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1545; Dec. Dig. § 727.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. <546-618; vol. 6, pp. 5477, 5478; vol. 8, p. 7758.]</p> <p>2. Municipal Corporation's (§ 733*) — Liability eor Torts — Failure to Perform Dunns Imposed by Statute.</p> <p>Act March 30, 1908 (Laws Md. 3908, c. 148) § 3, confers general powers on the city of Baltimore with respect to the Patapsco river, including the power to make such regulations as it may deem proper respecting wharves, bulkheads, piers, and piling, and the keeping of the same in repair so as to prevent injury to navigation or health, which powers the city assumed to exercise by the passage of an ordinance on April 10, 3399, vestipg its harbor board with authority to grant permits for private wharves, etc., and to regulate and supervise their construction and repair. It required permittees to observe such regulations, under penalty, and to indemnify the city against liability for damages by reason of injuries to person or property resulting from negligence on the part of the permittee, and provided for the appointment of officers and agents for the enforcement of its provisions. The harbor board licensed a riparian owner on the river to construct piers in front of his property extending (¡00 feet into the river, and to connect the outer ends of the same by a bulkhead 700 feet long. In the construction of such work the owner drove rows of piles which for a distance had been cut off two feet below the surface of the water and left wholly unguarded and unmarked, and a motor boat filled with passengers properly navigating the river struck such submerged piles and was sunk; a number of the passengers being drowned, and others injured. The city had taken no percautions' whatever to supervise the construction of the work or to see that it was done with due regard to the safety of those lawfully navigating the river. Held, that under the law of the state the city was liable in damages to the persons so sustaining.injuries as the result of its failure to perform such duties which were imposed on it by the statute.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549 ; Dec. Dig. § 733.*]</p> <p>3. Admiralty (§ 18*) — Torts—Liability Under Admiralty Law — Negligent Obstruction of Navigable Stream.</p> <p>A city vested by statute with authority to license, regulate, and supervise structures in a navigable river is liable under the admiralty law for injuries to persons or vessels lawfully navigating tlie river caused by obstructions negligently created in the building of a structure which it authorized and which it was its duty to supervise.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 206-221; Dec. Dig. § 18.*]</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of California, in Bankruptcy.</p> <p>In the matter of bankruptcy proceedings of J. A. Folger. Petition for revision of a judgment overruling a demurrer of Kate C. Putnam, as administratrix of the estate of Fred C. Putnam, deceased, and others, praying that petitioner be adjudged a bankrupt.</p> <p>This is a petition to this court for a revision of the judgment of the District Court overruling a demurrer to a petition in bankruptcy praying that the petitioner herein, J. A. Folger, be adjudged a bankrupt. The petition for the adjudication was filed November 2, 1910, and sets forth, among other things:</p> <p>“That within four months next preceding the filing of this petition said J. A. Folger committed an act of bankruptcy, in that he suffered and permitted, while insolvent, a creditor, one Charles C. Moore, to obtain a preference through legal proceedings, and did not, within five days before the final disposition 'of the property affected by said preference, or at all, vacate or discharge the same.</p> <p>“That on the 2d day of July, 1910, one Charles C. Moore commenced an action in the superior court of the state of California, in and for the city and county of San Francisco, against said J. A. Folger, to recover the sum of $21,443.75, together with accrued interest thereon, which action ever since has been mid is now pending in said court, and has never been dismissed or determined adversely to the plaintiff herein. That said action was brought by said Charles C. Moore for the purpose of obtaining from J. A. Folger contribution of the amount due as a joint indorser of a promissory note, made, executed, and delivered by the Ocean Shore Railway Company, to the Mercantile Trust Company of San Francisco for the sum of $120,000 payable at the said city and county of San Francisco, on June 27, 1910, and indorsed by said Charles C. Moore and J. A. Folger. That said Ocean Shore Railway Company failed and neglected to pay said note, and that said Charles C. Moore was required to and did pay the sum of $84,975 on account thereof. That said action is brought to enforce a just and valid indebtedness due from said J. A. Folger, and that he has no good legal or equitable defense thereto.</p> <p>“That on said 2d day of July, 1910, said Charles C. Moore caused the clerk of said court in which said action was brought to issue a writ of attachment in said action, and said clerk duly issued the same in' the sum of $21,443.75, which writ was thereupon duly delivered to the sheriff of said city and county of San Francisco, who thereupon duly levied the same upon property there and then belonging to said J. A. Folger, and consisting of all stock owned by him in the Ocean Shore Railway Company. That thereafter alias writs of attachment were duly issued in said action and duly levied by said sheriff on jjroperty there and then belonging to said J. A. Folger and consisting of shares of stock in the Folger Estate Company, a corporation, and shares of stock in the J. A. Folger & Co., a corporation, and on money, credits, goods, effects, debts, and property due from said ,7. A. Folger & Co. a corporation, to said J. A. Folger. That said property was of tlie value of upwards of $50,000.</p> <p>“That the attachments so levied have never been released, determined, or vacated, or discharged, but that they ever since have and do now constitute subsisting liens upon the property of said J. A. Folger, and that, on November 3, 1910, said liens will become a preference not to be released or avoided by bankruptcy proceedings, and that said attached property will become and be finally disposed of and sequestrated by said Charles O. Moore, and that your petitioners and the general creditors of said J. A. Folger will be deprived of said property and of the value thereof.”</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Louisiana. Held: “Libelants allege that the stevedores, respondent's employes, while loading the ship, caused the wire runner leading from winch No. 2 to the end of a derrick to be negligently and improperly led into the hold from the starboard side, then under two deck beams and over the angle bars leading fore and aft, and thence to the port side…

Action by Eizzie Winfrey against the Missouri, Kansas & Texas Railway Company. There was a judgment for defendant, and plaintiff brings error. This was an action by Lizzie Winfrey, widow of William Winfrey, for damages occasioned to her by the death of her husband caused by the negligence of defendant Railway Company.

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina, at Greensboro.</p> <p>Bill by the Broad River Lumber Company against Katherine Mid-dleby and others. From á decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap.</p> <p>George Burchett and others were convicted of conspiring to prevent a witness from attending and testifying, and they bring error.</p>

<p>In Error to the District Court of the United States for the District of South Carolina.</p> <p>Milton A. Carlisle was convicted of violating the National Banking Act, and he brings error.</p>

In the matter of bankruptcy proceedings of J. Garland Hurst. On petition of J. E. Tearney and another, the surviving executors of Edward Tearney, deceased, to revise the decision of a referee requiring repayment of dividends received by them on a claim in proceedings instituted by S. W. Washington and another, surviving trustees of the bankrupt. From a decree reversing the ruling of the referee (188 Fed. 707), the trustees appeal.

Suit in equity by Harold Harris against the Northern Blue Grass Rand Company. On petition for an order directing a receiver of defendant to issue an assessment on the holders of defendants common stock, to pay into court the par value of the stock held by them. From an order denying such application and dismissing the petition (185 Red. 192), the Central Wisconsin Trust Company, as receiver of defendant corporation, appeals.

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by Charles IV1. Iiibbert against E. Allen Wilson. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Bill by John A. Lewis and another, as executors of the will of John A. Dowie, deceased, against William B. Holmes and others. From an order dismissing the bill and striking the same from the files, complainants appeal.</p> <p>The appellants filed in the Circuit Court a bill of review, for alleged errors apparent on the face of the record, under a prior bill of complaint filed therein by the appellee Holmes against their testator and other ’parties named, and another bill filed by their testator against Wilbur Glenn Voliva and other defendants named, together with certain bankruptcy proceedings ppünst the testator, involved therewith — all consolidated, heard, and decided together, under stipulations by the parties — and involving (as alleged) all parties named defendants in the bill of review. On motion of the appellee Wilbur Glenn Voliva, the court ordered that such bill of review be stricken from the files, and that the cause be dismissed, and this appeal is from the order or decree accordingly, reading as follows: “This cause coming on this day to be heard upon the entry of a special appearance and motion of the solicitor for Wilbur Glenn Voliva, one of the defendants to this cause, to strike the bill of comida int in this cause from the files and dismiss said cause, and said motion coming now on to be heard, and it appearing to the court that due notice of the time and place of said motion has been given to the solicitors representing the complainants in this cause, and said motion coming on for argument of counsel for the respective parties complainant and said defendant, and the court having heard tthe argument of counsel for and against said motion, the attention of the court in said argument, having been among other things directed to certain records and proceedings of this court in the cause entitled John A. Lewis, Executor and Trustee, etc.. et al., v. William B. Holmes et al., Gen. No. 25,109, and the court having inspected the bill of complaint filed in this cause as well as the complaint filed in this court by the same complainants Gen. No. 25,409, being fully advised in the premises, finds that the complainants in this cause heretofore on April 10. 1909, in the same character as executors and trustees under the last will and testament, of John Alexander Dowie, deceased, exhibited their bill of complaint in this court, Gen. No. 25.409. to review the orders and decrees of this court entered in the suit of William 1>. Holmes v. John Alexander Dowie et al., upon certain specified errors of law apparent upon the record in said proceedings of Holmes v. 'Dowie et al., and that said bill of review in said causo, Gen. No. 25,40!), so instituted by said complainants, is still pending in this court and undisposed of.</p> <p>“The court further finds from an inspection of the bill of complaint so filed by said complainants in this cause that said complaint is a bill exhibited bj said complainants to review the record and proceedings of this court had in said suit of William B. Holmes v. John Alexander Dowie et ah, being the same record and proceedings also sought to he reviewed by said complainants by thfc bill exhibited in Gen. No. 25,409, on April 10, 3909, and which is now pending and undisposed of.</p> <p>“And the court further finds from an inspection of the bill of complaint in this cause that the complainants John A. Lends and Fielding II. Wilhite, as executors and trustees under the last will and testament of John Alexander Dowie, deceased, have not in and by their bill of complaint made or stated such a state of facts as discloses upon the record in this cause that said complainants or either of them, have or hold any such a right or title .to. or interest in, the subject-matter of the suit of William B. Holmes v. John Alexander Dowie et al. as entitle them, or either of them, to file or maintain a bill of review to review the record and proceedings in said suit of Holmes a'. Dowie et al.</p> <p>"And the court further finds from an inspection of the complaint filed in this cause that the said bill of complaint is not verified, and does not conform with or to the established practice as a bill of review for newly discovered evidence, and contains no averments selling out or alleging any newly discovered evidence, and was filed and exhibited in this court by said complainants without hating first had and obtained the leave of this court so to do, in accordance with the practice in such case made and provided.</p> <p>"And the court further finds that the bill of complaint in this cause fails to conform with the practice of this court as a bill of review for errors of law' apparent, In that there are no specified assignments of error in said bill of complaint contained wherein or whereby it is alleged or claimed by said complainants any error of law apparent has intervened upon the said record and proceedings of Holmes v. Dowie et al., to the damage or injury of said complainants or either of them.</p> <p>"And the court further finds that it nowhere appears from any of the averments contained in the bill of complaint in this cause that the rights of any of the defendants to this suit would be conserved by the further prosecution of this suit, or that the rights of any of the defendants to this suit would be in any manner or to any extent injured or prejudiced upon the dismissal ■ of this suit, and that the motion of said defendant should be granted and sustained.</p> <p>“It is therefore ordered, adjudged, and decreed that the motion of the defendant Wilbur Glenn Yol iva to strike the bill of complaint ■ in this cause from the files and to dismiss said cause be, and the same is hereby, granted, allowed, and sustained; and it is further ordered, adjudged, and decreed that the bill of complaint exhibited in this cause be, and the same is, hereby stricken from the files of this cause, and this cause be and the same is hereby •dismissed.</p> <p>“To the entry of which order and decree striking the bill of complaint from the files in this cause and dismissing this suit the complainants by ■their counsel object and except, and pray an appeal from said order and decree to the United States Circuit Court of Appeals in and for the Sev.enth Judicial Circuit, which said appeal be, and the same is hereby, granted and .allowed by the court, upon condition that complainants file their appeal bond, conditioned as by law provided with good and sufficient sureties to be approved by this court, in the sum of one million one hundred thousand ($1,100,000) dollars within 30 days from the date of the entry of this decree, and that complainants be, and they are also, granted 30 days from the entry of this decree in which to prepare, present for approval, and file their certificate of evidence in this cause.”</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of Wisconsin, in Bankruptcy. In the matter of bankruptcy proceedings against William D. Hogan. Original petition to revise an order in bankruptcy requiring the bankrupt to transfer to his trustee (186 Fed. 537) the proceeds of certain notes obtained by him since adjudication. The bankrupt, William T).

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Action at law by the Central Glass Company, Limited, against the Guardian Fire Insurance Company, of Pennsylvania. Judgment for plaintiff, and both parties bring error.</p>

<p>In "Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Actions by B. J. Wolf & Sons against the Royal Insurance Company, Limited, of Liverpool (No. 2,209), by the Northern Assurance Company, of London, England, against the Central Glass Compan}, Limited (No. 2,220), by the liartford Eire Insurance Company, of Hartford, Conn., against the Central Glass Company, Limited (No. 2,222), by the Michigan Commercial Insurance Company, of Lansing, Mich., against the Central Glass Company, Limited (No; 2,223), by the Dixie Eire Insurance Company, of Greensboro, N. C., against the Central Glass Company, Limited (No. 2,225), by the Detroit Fire & Marine Insurance Company, of Detroit, Mich., against the Central Glass Company, Limited "(No. 2,226), by the Shawnee Fire Insurance Company, of Topeka, Kan., against the Central Glass Company, Limited (No. 2,230), by the Central Glass Company, Limited, against the Shawnee Fire.Insurance Company (No. 2,259), by the Central Glass Company, Limited, against the Detroit Fire & Marine Insurance Company (No. 2,260), by the Central Glass Company, Limited, against the Hartford Fire Insurance Company, of Hartford (No. 2,261), by the Central Glass Company, Limited, against the Michigan Commercial Insurance Company (No. 2,262), by the Central Glass Company, Limited, against the Dixie Fire Insurance Company (No. 2,263), by the Central Glass Company, Limited, against the Northern Assurance Company'' (No. 2,264). Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina, at Greensboro.</p> <p>Bill by D. C. Foster and another against George H. Brown, Collector of Internal Revenue, and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Bankruptcy (§ 495*) — Concealment of Assets — -Criminal Diability— Burden of Proof.</p> <p>In a prosecution of a bankrupt for concealment of assets, the burden was on the government to establish defendant’s guilt beyond a reasonable doubt.</p> <p>[Ed. Note. — For other oases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. § 495.*]</p> <p>2. Bankruptcy (§ 496*) — Instructions—Reasonable Doubt.</p> <p>In a prosecution of a bankrupt for concealment of assets, in that he failed to disclose an' alleged interest in certain real property which he had conveyed to another, he was entitled to an instruction that, if the jury found from the evidence that the bankrupt had conveyed to the grantee the property in question by warranty deed, the law presumes that in so doing he acted legally and in good faith, and that the jury should give him the benefit of such presumption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 913; Dee. Dig. § 496.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by.John E. Devine, as administrator of the estate of Peter Argiriou, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Insurance (§ 669*) — Life Policies — Statements bt Insured — Effect.</p> <p>In an action on a life policy, which provided that statements by insured should be deemed representations, and not warranties, in the absence of fraud, it was not error to instruct that, in the absence of fraud, no false statement as to an immaterial matter, or not constituting an inducement of the contract, would be a defense, and that representations through mistake would not avoid the policy, unless made with a fraudulent purpose; insurer not being entitled to an instruction that a misstatement or misrepresentation in a material matter would avoid the policy, although such misstatement may have been honestly made.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.*]</p> <p>McDowell, District Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Gustav Adolph Larsen against Frank W. Neal and another. There was a judgment for defendants, and plaintiff brings error.</p>

<p>Corporations (§ 426*) — Assignment by President — Ratification.</p> <p>Three persons owned all of the stock of a corporation, and composed the hoard of directors. One who was the president in the name of the corporation executed an assignment of an application for a patent which had been made by him, and had been assigned to the corporation, and of which the assignee claimed to be the owner. One of the other directors was present and signed as a witness, and the other had knowledge of it soon after, but no notice was given to the assignee of any dissent, although the parties had further business transactions together, during which there was a settlement and mutual receipts, and releases of all claims and demands were given. Held, that such conduct amounted to a ratification of the assignment by the corporation, and that it could not thereafter make a valid assignment of the application to another.</p> <p>TEd. Note. — Eor other cases, see Corporations, Cent. Dig-. §§ 1590, 1702-1704, 1707, 1708, 1710-1710; Dec. Dig. § 420.*]</p>

<p>1. Patents (§ 28*) — Designs—'Requisites to Validity.</p> <p>The exercise of the inventive faculty, as well as originality and beauty, are all essential to the patentability of a design.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 33; Dec. Dig. § 28.*]</p> <p>2. Patents (§ 310*) — Suit fob Infringement — Demurrer for Invalidity of Patent.</p> <p>The question of want of novelty and invention as disclosed by the specification of a patent may be raised by demurrer by a defendant charged with its infringement, and in a clear case, where, taking into consideration the common and general knowledge with respect to the art, the court can say (hat the want of novelty and invention is so palpable that it is impossible that evidence could show the fact to be otherwise, the bill may be dismissed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-510; Dec. Dig. § 310.*</p> <p>Pleading in infringement suits — demurrer for want of novelty and invention. see note to Caldwell v. Powell, 19 C. O. A. 595.]</p> <p>8. Patents (§§ 45, 49*) — Novelty—Evidence.</p> <p>Extensive or general use of a patented article is evidence of Its utility, but is not conclusive in that respect and much less of its patentable novelty.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 51-53, 59-62; Dec. Dig. §§ 45, 49.*</p> <p>Utility, extent of use. and commercial success as evidence of invention, see note to Doig v. Morgan Mach. Co., 59 O. C. A. G20.]</p> <p>4. Patents (§ 328*) — Validity—Design for Bottle.</p> <p>The Boldt design patent, No. 39,021, for a design for a bottle, is void on its face for lack of patentable novelty and invention.</p>

<p>Appeal from the Circuit Court of the Uniied States for the District of New Jersey.</p> <p>Suit in equity by Edward V. Hartford, George H. Hartford, and the Hartford Suspension Company against the Westen Manufacturing Company and Christian H. Westen. Decree for complainants (172 Fed. 676), and defendants appeal.</p>

<p>1. Patents (§ 167*) — Scope—Devices within Principle op Invention.</p> <p>A patentee, who describes and illustrates wbat lie deems the best embodiment of his invention, is not confined to such form, but is entitled to any other form which is within the principle of operation of his invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243: Dec. Dig. § 167.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Feeding Device for Grass Twine Machine.</p> <p>The Jerrems patents, No. 745,625 and No. 824,S71, for feeding mechanism for grass twine machines, having as elements opposing blades, both having serrated edges and one a vibratory motion, while valid and meritorious and showing a considerable advance in the art, cannot be construed to cover a device for handling the grass stems by what is called the rotary system, which was in the prior art. As so construed, held not infringed by a device having a rotary member instead of the reciprocating blade of the patent and the opposing blade without serration.</p>

<p>In Equity. Suit by the Oshkosh Grass Matting Company against the Waite Grass Carpet Company. On final hearing. Decree for defendant.</p>

<p>In Equity. Suit by the Westinghouse Electric & Manufacturing Company against Frederick C. Sutter and others, trading as the Pittsburgh Transformer Company. On final hearing. Decree for defendants.</p>

In Equity. Suit by the National Electric Signaling Company against the Telefunken Wireless Telegraph Company and! others. On demurrer to bill, and motions to set aside service and to vacate suspension of injunction.

Proceedings by the United States of America against Sidmon Mc-Hie and others. On petition of the Capital Investment Company for the return of certain personal property seized by federal officers in a raid on an alleged bucket .shop operated by the Capital Investment Company.

<p>In Admiralty. Suit for collision against the tug American, in which the tug Gizzie Crawford was also joined. Decree against both tugs.</p>

<p>In Admiralty. Suit by Louis Hazzard and another against the steam tug Buffalo and steam ferryboat Chautauqua; Erie Railroad Company, claimant. Decree for libelants.</p>

<p>At Law. Actions by Frank P. McDermott, receiver, against Alfred S. Hayes. On intervening petition and demurrer thereto. Order requiring plaintiff to give bond.</p>

<p>1. Customs Duties (§ 123*) — Opitnr—Importation—Elements oe Opeenseí.</p> <p>Act Cong. Feb. 9, 1909, c. 100, § I, 35 Stat. 614 (U. S. Comp. St. Supp. 3909, p. 658), prohibits the importation of opinin' into the United States except for medicinal purposes under regulations, and section 2 provides that if any person shall knowingly import or bring into ilie United States any opium contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation and concealment or sale of such opium, or derivative therefrom, after importation, he shall be guilty of an offense. Held, that the offense described in section 2 is committed whenever smoking opium is fraudulently and knowingly brought by the offender within the territorial limits of the United States; the offense being complete, though the opium may not have been landed from the ship, or carried across the customs lines.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 266; Dec. Dig. § 125.*]</p> <p>2. Customs Duties (§ 134*) — Opium—'Wrongful Importation — Possession.</p> <p>Act Cong. Feb. 9, 1909, c. 100, 35 Stat. 614 (U. S. Comp. St. Supp. 1909, p. 658), prohibits the importation of smoking opium, and declares that, whenever a defendant is shown to have or to have had possession of opium or a preparation thereof, such possession shall be deemed sufficient to authorize a conviction, unless defendant shall explain the same to the satisfaction of the jury. Held, that where the steward of a vessel, bound for Philadelphia, was found to have smoking opium in his possession as the vessel was proceeding up Delaware Bay, such possession was sufficient to sustain a conviction for violating the act.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 336-339; Dec. Dig. §.134.*)</p>

<p>1. Bankruptcy (§ 293*) — Recovery op Assets — Plenary Suit — Jurisdiction.</p> <p>A plenary suit against a third person to assert title to money or property claimed as assets of the bankrupt can be brought only in a court having jurisdiction generally over such a suit, and cannot be maintained as a step in the bankruptcy proceedings.</p> <p>|Ed. Note.' — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Doc. Dig. § 293.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Bankruptcy (§ 293*) — Recovery op Assets — Bankruptcy Court — Jurisdiction.</p> <p>The bankruptcy court, in the exercise of its jurisdiction to cause the assets of the bankrupt to be collected, may compel the bankrupt or his agent to deliver money or assets of the bankrupt’s estate, and by summary proceedings compel the surrender of the property where'.there is no bona fide claim of adverse title, but not so if the person in whose hands the property is claims a right of property vor possession therein in good faith.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. § 293.*]</p> <p>3. Bankruptcy (§ 293*) — Assets—Possession—Administration.</p> <p>A court of bankruptcy may recover property of the bankrupt in summary proceedings if it is held by the bankrupt’s agent or bailee without claim of title, or if it has been fraudulently transferred to some other person, and can be traced into the hands of the latter and the court’s jurisdiction is consented to. or in spite of objection if the fraud is indisputable on the record, or where it appears that an independent corporation or agent has property to which no title is claimed or over which it is necessary to extend a restraining order or receivership to prevent irreparable injury until the property over which the court has jurisdiction can be located and disposed of.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. § 293.*]</p> <p>4. Bankruptcy (§ 288*) — Property op Bankrupt — Recovery—Summary Proceedings.</p> <p>Facts held insufficient to show 'that the claim of third persons to certain assets, alleged to belong to the bankrupt, was so clearly unfounded on the face of the record as to authorize a determination thereof by a court, of bankruptcy in summary proceedings.</p> <p>[Ed. Note. — For' other cases, see Bankruptcy, Cent. Dig. §§ 444-447; Dee. Dig. § 288.*]</p>

<p>Shipping (§ 181*) — Construction of Charter — Computing Demurrage or Dispatch Money.</p> <p>A charter party, which provided the lay days for loading, and also provided for demurrage and dispatch money, contained a provision that “charterers may finish loading on the day the steamer is cleared at the custom house, without counting it as a iay day used, neither shall it count for dispatch money.” Held, that the meaning of such provision was neither obscure nor doubtful, but that by the plain meaning of the words used its effect was that, in case the charterer did not finish loading within the lay days fixed, but finished on the same day the vessel cleared, such day should not count in computing demurrage, while in case it completed loading within the lay days, and on the day the vessel cleared, the charterer could not count such day as one saved in computing dispatch money earned.</p> <p>[Ed. Note. — For other cases, see Shipping, Gent. Dig. §§ 589-592: Dec. Dig. § 181.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 0. O. A. 657; Randall v. Sprague, 21 C. O. A. 337; Hagerman v. Norton, 46 C. O. A. 4.]</p>

Petition in involuntary bankruptcy by Fred M. Colston and others against the Austin Run Mining Company. From a decree of dismissal, rendered after sustaining a demurrer to the petition, petitioner named appeals. The following is the opinion of the court below, by Bradford, District Judge. This case is before the court on demurrer to a petition in involuntary bankruptcy filed by Thomas M. Mackey and others against fhe Austin Run Mining Company, a corporation of Delaware.

Suit in admiralty by William Munroe, the Michigan Trust Company, trustee of the estate of Thomas Munroe, William Brinen, A. F. Temple, and W. J. Brinen, as owners of the steamer Markham, against the City of Chicago. Decree for respondent (186 Fed. 564), and libelants appeal.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>Action by the National Home for Disabled Volunteer Soldiers and another against J. E. Parrish. Erom the judgment, plaintiffs appeal.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the Southern .District of Illinois, in Bankruptcy. In the matter of bankruptcy proceedings of Charles V. Chandler and another, copartners doing business under the name of C. V. Chandler & Co., Bank of Macomb. Petition by Fred H. Fitch to review an order of the District Court confirming a sale of the bankrupt’s assets to another than petitioner.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Suit in equity by Mrs. E. L. Taylor and others against W. S. Hern-don. Decree for defendant, and complainants appeal.</p>

<p>Appeal from the Circuit Court of the United Slates for the Western District of North Carolina, at Greensboro.</p> <p>Suit by the United Cigarette Machine Company, Limited, against the Winston Cigarette Machine Company and another. From a decree of dismissal, complainant appeals.</p>

Actions at law by the Cheatham Electric Switching Device Company against the Transit Development Company and the Nassau Elec-Lric Railroad Company, respectively. Judgments for plaintiff, and defendants bring error. These two' actions come before this court for review upon writs of error to the Cii cult Court. The actions were tried together as one action in the trial court, and assignments of error have been argued together in this court.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the McCaskey Register Company against John R. Divens. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the Circuit Court -of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by Francis E. Myers and Phillip A. M.yers, partners as E. E. Myers & Bro., against Fairbanks, Morse & Co. Decree for defendant, and complainants appeal.</p>

<p>Public Lands (§ 29*) — Forest Reserve — Exchange fob Lieu Land — Vested Rights.</p> <p>Complainant, owning certain land within a forest reserve, pursuant to Act Cong. .June 4, 1897, c. 2, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541), authorizing a selection of other lands in lieu thereof, filed deeds conveying the reserved, bind to the United States, with the requisite abstracts of title, and at the same time selected certain land in controversy, which was then vacant unappropriated land of the United States,, open to settlement. Before the applications for exchange had been accepted or acted on by the local land office, defendant applied to enter the land so selected under the Timber and Stone Act (Act June 3, 1878, c. litl, 20 Stat. 89 [IT. S. Comp. St. 180.1, p. 154«T|). Held, that complainant, by filing the deeds to the forest reserve land, with his lieu land selection, did not thereby acquire a vested right to the lieu land so selected, until the selection had been approved by the Commissioner of the General Land Oifiee, prior to which time such Commissioner had power to disapprove the selection and award the land to defendant under his timber and stone application.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 4V47; Dec. Dig. § 29.*]</p>

<p>Contracts (§ 204*) — Damages (§ 120*) — Construction—Obligation op Parties.</p> <p>A contract binding defendant to pay plaintiff a weekly salary for five years, in consideration of plaintiff furnishing appropriate paragraphs for advertising purposes of the quality and standard evidenced by a book written and published by plaintiff, and giving defendant the exclusive right to the services of plaintiff for five years, and the exclusive right to use any of the material in the book published, requires plaintiff to furnish paragraphs for advertising purposes of the quality and standard evidenced by the book, and plaintiff, who is ready and willing to carry out the contract and furnish suitable paragraphs, is entitled to recover as damages for breach of contract by defendant the full amount which he would have received under the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 916, 917; Dec. Dig. § 204;* Damage?, Cent. Dig. §§ 291-305; Dec. Dig. § 120.*]</p>

In the matter of the application of N. K. Fairbank Company for a change of judge. This was an application on behalf of the N. E. Fairbank Company that the presiding judge recuse himself, on the trial of the ease of the Jackson Lumber Company v. N. K. Fairbank Company.

<p>1. Witnesses (§ 149*) — Competency—Transaction with Person Since Deceased.</p> <p>In n suit to imposo a trust on a part of the residue of an estate, willed by testator to his widow, subject to the alleged trust, against the executor of the widow, evidence of complainant, the alleged beneficiary, with reference to statements and conversations had between her and the widow, were incompetent under Rev. St. § 858 (U. S. Comp. St. 3901. p. 659), prohibiting testimony by any party in any suit against, an executor concerning any transaction with or statement' by the testator: but evidence of declarations of testator are admissible, his executor not being a party to the suit.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 651, 652; Dec. Dig. § 149.*]</p> <p>2. Evidence (§ 317*) — -Hearsay—Declarations of Decedent.</p> <p>Declarations of a testator as to his intentions with respect to the making of his will are inadmissible to establish an intent on his part to create a trust in favor of complainant; such declarations being hearsay.</p> <p>|Ed. Koto. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p> <p>3. Widls (§ 487*) — Evidence—Declarations oj? Testator.</p> <p>Declarations of a testator as to his intentions with respect to the making of his will are inadmissible to show his intention to create a trust in favor of complainant, as sucli declarations would be in effect the establishment of a testamentary disposition by parol.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1020-1032; Dec. Dig. § 487.*]</p> <p>4. Trusts (§ 25*) — Express TrusTt-Act Constituting.</p> <p>Testator at the deathbed of his son agreed to carry out the dying request of the son that the share of the father’s estate that would have gone to the son if he had survived the father should go to the son’s surviving wife. Testator, having failed to mention the son’s wife in his will, stated that, though she was not remembered in the will, he had made arrangements with his wife to make the trust which he had promised in favor of the son’s wife, and that she should have the full share of what the son would have received if he had lived. Held, that testator’s statements were insufficient to establish the trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 34r-37; Dee. Dig. § 20.*]</p> <p>6. Trusts (§ 44*) — Parol Trust — Proof.</p> <p>Evidence held insufficient to show the creation of a trust by which . testator and his widow were to give a part of testátor’s residuary estate devised to" the widow to complainant or to show the specific amount of the residuary estate to be charged.</p> <p>rEd. Note. — For other cases, see Trusts, Cent. Dig. §§ GC-CS; Dec. Dig. § 44.*]</p> <p>•6. Limitation op Actions (§ 83*) — Death and Appointment oe Executor.</p> <p>Where complainant claimed that testator created a trust of a portion of his residuary estate, bequeathed to his widow, for complainant's benefit, which residue consisted of both real and personal property, complainant’s right to sue to enforce the trust did not accrue until one year after the appointment of testator’s executors, and was therefore not barred until the expiration of ten years thereafter.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 426, 431-438; Dec. Dig. § S3.*]</p> <p>7. Equity (§ 87*) — Stale Demands.</p> <p>The defense that an equitable claim is stale is now generally governed by tbe question whether the statute of limitations applies.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 242-244, 390; Dec. Dig. § 87.*]</p>

At Raw. Action by the Pennsylvania Steel Company against the Washington & Berkeley Bridge Company. On demurrer to declaration.

<p>In Admiralty. Suit by William E. Farrow, as master of the schooner Florence Howard, against the American Agricultural Chemical Company. Decree for libelant.</p>

<p>Appeal from the District Court of the United States for the Southern District of Texas.</p>

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

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

<p>Appeals from the District Court of the United States for the Eastern District of New York.</p>

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

<p>Appeal from the Circuit Court of the United States, for the Middle District of Alabama.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Louisiana. Action at law by W. H. Knight and others against the Lutcher & Moore Lumber Company and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Mississippi.</p>

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

<p>Appeals and Cross-Appeal from 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 Southern District of New York.</p>

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