Volume 195 — Federal Reporter

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>Action by Philip Tillinghast, receiver of the First National Bank of Ironwood, Mich., against Herman Skud. There was a judgment for plaintiff, and defendant brings error.</p> <p>The judgment in this case was entered upon a directed verdict, the direction having been given at the close of all the evidence, and the failure to submit the case to the jury is distinctly assigned as error. The basis of the suit is a promissory note. The form of the note as contained in the notice given under the money counts of the declaration and as received in evidence is that of an ordinary demand note, bearing date October 1, 1908, payable to the order of the First National Bank of Ironwood, Mich., for 82,500, with interest, at 0 per cent, per annum, and signed by Skud. The defendant, Skud, pleaded the general issue, and in the detailed notice and an affidavit presented thereunder charged material alteration of the note, and denied that the note sued on was executed by him. The charge is that, when the note was executed and delivered, it contained on its left margin these figures and words, “(200) But-1e-Balaklava (100) Shattuck,” and that there was attached to the note certificates representing 200 shares of the capital stock of the Butte-Balaklava <topper (tompary, a corporation of Arizona, and 100 shares of the capital stock of the Shattuck-Arizoua Copper Company, a corporation of Minnesota, but that after its delivery and prior to the commencement of this suit, without Skud’s knowledge or consent, the note was altered by cutting off the figures and words mentioned and removing the certificates of stock. The value of the stock seems to be equal to, if not in excess of, 1 he amount of the note. Skud gave further notice that upon the trial he would recoup and set off as against plaintiff's cause of action a claim for damages in the sum of $3,000, or so much thereof as would bo sufficient, arising and growing out of the alteration of the instrument and failure safely to keep the original note and pledged securities, which in substance and effect represented the transaction into which the bank, through its presiden! and cashier, and Skud entered.</p> <p>The president, .Jahn, and the cashier, Larson, had a controlling interest in the bank, and seem, in fact, to have been the active managers of the bank’s entire business. Larson requested Skud to sign a note for him for $2,500, and Skud refused. Larson told him later that he would secure him by the stock before mentioned; and Skud upon conversing with Jahn was induced to sign the note in the presence of Jahn and Larson, and to leave it with either Jahn or with Jahn and Larson, hut not until on Skud’s demand the figures and words before mentioned had been entered in typewriting on the margin and the certificates representing the stock had been attached to the Jiote by pinning the certificates thereto or fastening them to it by rubber hands. The note thus secured was given for Larson’s accommodation, and to take the place of money that Larson then owed the bank. No question is made as to the good faith of Skud in this transaction, nor is it claimed that he ever received any of the money. Skud testifies that Larson threatened to call an unmatured loan of his unless he would sign the note; but Skud at once paid the substantial part of his loan, and seems to have been influenced at last to sign the note by the memorajidum entered on its margin, the securities attached (which he regarded as having greater value than the face of the note), and the request of Jahn. The evidence clearly shows that the marginal figures and words of the note were clipped off,- and the certificates of stock removed from the note after they were turned over as before stated.</p> <p>Although the note bears date of October 1st, it was not executed until some time between the 8th and 35th of the month; and on November 20th following the hank was examined. The examiner testifies that he made a list of the notes, and that this note appears as an unsecured demand, though he could not remember the particular paper. Another examination was made .Tune 12, 1909, and on the 21st the bank was closed. The receiver took possession on the 241 h. There is testimony that the note was found in its present condition at the later examination, and also at the time the hank was closed. Larson testifies that the memorandum was on the note and the stock in possession of the bank when he left. Larson was displaced as cashier on June 17, 1909, and he with Jahn and Beddow, assistant cashier, were charged with embezzling the assets and collateral securities of tlie hank, and making false entries in its books. Larson pleaded guilty, and was sentenced to imprisonment. Jahn committed suicide. The receiver testifies that securities were converted by Larson, but that the records do not indicate any conversion by Jahn. Skud, in substance, testified without apparent contradiction that in answer to the receiver’s request of him to pay t'he note he said -that he would if it' were presented in its. original condition with the collaterals attached.</p>

Action at law by Millard D. Olds against the Herman H. Hettler Lumber Company. From an order vacating an attachment of defendant’s property and dismissing the suit, plaintiff brings error.

<p>1. Courts (§ 405*)-—Federal Courts—Jurisdiction.</p> <p>Where by demurrer to a declaration in a suit against certain carriers for reparation, defendants sought to raise the question whether it was necessary as a condition precedent to the jurisdiction of the Circuit Court that the declaration allege that an order had previously been made by the Interstate Commerce Commission finding that the particular freight rate in dispute was unreasonable, fixing the amount of plaintiff’s damages, and awarding reparation, such objection constituted a challenge on principles of general law concerning the right of the Circuit Court to entertain the action, and was not a challenge of the court’s jurisdiction as a federal court; the question whether the allegations touching such previous action of the interstate commerce commission were sufficient in law to entitle plaintiff to maintain his suit being one which the Circuit Court could rightfully consider and determine, and that the Circuit Court of Appeals can review.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. § 405.*]</p> <p>2. Courts (§ 405*)—Court to which Proceedings in Error Are Taken— Election.</p> <p>Where a demurrer to a declaration presented a question on the merits as well as one of jurisdiction, the defeated party may elect whether he will take his writ of error or appeal to the Supreme Court on the question of jurisdiction alone, or to the Circuit Court of Appeals on the whole ease.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1097-1099, 11.01, 1103; Dec. Dig. § 405.*]</p> <p>3. Pleading (§ 216*)'—Judicial Decisions—Incorporation—Reference.</p> <p>Where a declaration against carriers for reparation after a freight rate had been declared excessive by the Interstate Commerce Commission did not in terms allege the particular rates that were passed on by the commission, but did set out the citations of the cases where the determination of the commission w.as reported for the purpose of incorporating the pertinent facts of the decisions into the declaration by reference, the court was authorized to examine the facts set out in such decisions in determining the demurrer.</p> <p>[Ed. Note.—For other eases, see Pleading, Cent. Dig. §§ 535-539; Dec. Dig. § 216.*]</p> <p>4. Commerce (§ 92*)—Interstate Commerce—Illegal Rate—Reparation-Time.</p> <p>Interstate Commerce Act Feb. 4, 1887, c. 104, § 9, 24 Stat. 382 (U. S. Comp. St. 1901, p. 3159), provides that any person claiming to be damaged by a common carrier may either make complaint to the commission or bring suit to recover damages in any District or Circuit Court of the United States of competent jurisdiction, but that he shall not pursue both remedies. Section 16 declares that, if after complaint and hearing, the commission shall determine that complainant is entitled to damages, it shall make an order directing the- carrier to pay the sum fixed by a day named, and, in case of noncomplianee, the complainant may enforce it in the Circuit Court of the United States, but that all complaints for damages should be filed with the commission within two years from the time the action accrued and not after, and a petition for the enforcement of ■ an order for the payment of money shall be filed within one year from the date thereof, provided that claims accruing prior to the passage of the ■ act may be presented within one year. Held that, where the Interstate Commerce Commission made an order finding that a certain lumber rate was excessive on February 7. 1905, plaintiff was not entitled to maintain an action, not instituted until May 11, 1909, under section 9, to recover reparation for overcharges on shipments, the last of which was made August 15, 1904.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 142; Dec. Dig. § 92.- I</p> <p>5. Courts (g 405*)—Review—Severance.</p> <p>Where a suit for reparation was brought against several defendant railroad companies, the liability.of each depending on the same ground, and no proceeding was taken by plaintiff or demanded by any of the defendants for a severance, but the case continued as one against all defendants, the entire case might he taken on appeal to the Circuit Court of Appeals, though one of the defendants raised a question of jurisdiction only.</p> <p>[Ed. Note—For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1303 : Dec. Dig. § 405.* ,</p> <p>When summons and severance of parties on appeal or writ of error is authorized or required, see note to City of Detroit v. Guaranty Trust Co., 98 C. C. A. 608.]</p>

<p>1. Railroads (§ 244*)—Crossing Accidents—Liability—Failure to Give Signals.</p> <p>Rev. St. Ohio, § 3337 (Gen. Code, § S856), which makes a railroad company liable for injury caused by neglect to give warnings of the approach of locomotives to highways, does not fix liability for injury to a traveler at a crossing unless failure to give the signals caused the injury; nor in case the traveler was guilty of contributory negligence</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 755; Dec. Dig. I 244.*]</p> <p>2. Railroads (§ 351*)—Crossing Accidents—Instructions.</p> <p>Under Rev. St. Ohio, §§ 3336, 3337 (Gen. Code, §§ 8S53, 8856), which require locomotive whistles to be sounded at least 8© and not more thar 100 rods from highway crossings, and make railroads liable for injury resulting from failure to do so, in an action for death of 'traveler at a street crossing,' it was error to refuse to instruct that if the engineer did not sound the whistle.' between 1,320 and 1,650 feet west of the sireet. etc., the company was negligent, and, if decedent was killed through failure to sound a whistle, plaintiff could recover unless decedent was guilty of contributory negligence, though an instruction that plaintiff claimed that omission to give the signal was negligent was given.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. 1 351.*]</p> <p>3. Trial (§ 261*)—Instructions—Refusal.</p> <p>While a party may not complain of iiie refusal of a requested instruction which does not correctly state the law, the court being under no obligation to reframe a request so as to contain an accurate statement of law. where the meaning of a request is reasonably apparent, and its subject-matter is important and not sufficiently covered by the general charge, the request should not be ignored merely because susceptible to suc-h an interpretation as to make Its proposition not absolutely accurate.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 660, 671, 675; Dec. Dig. § 261.*]</p> <p>4. Railroads (§ 307*)—Crossing Accidents—Negligence.</p> <p>Compliance with Rev. St. Ohio, § 3336 (Gen. Code, § 8853), which requires locomotive whistles and bells to be sounded on approaching crossings, does not relieve a railway company from liability for injury to a traveler at a crossing resulting from negligent failure to take additional precautions by maintaining a watchman, crossing gates, etc., or from negligently running the train at a high ra to of speed.</p> <p>LEd. Note.—For other cases, see Railroads, Cent. Dig. §§ 972-977j Dec. Dig. § 307.*]</p> <p>5. Trial (§ 260*)—Instructions—Refusal—Matters Subsequently Covered.</p> <p>In an action against a railroad company for negligent death of a traveler at a street crossing, it was not error under the facts of the case to refuse to instruct that giving statutory signals did not excuse additional precautions by maintaining a watchman or crossing gates “or some warning sound or bell,” where the subject-matter of the requested instruction was fully given, except that specific mention was not made of the particular instrumentalities referred to in the request.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260;* Carriers, Cent. Dig. § 1407.]</p> <p>6. Railroads (§ 351*)—Crossing Accidents—Instructions—Negligence.</p> <p>In an action against a railroad company for injury to a- traveler at a street crossing, an instruction that, under stated circumstances, it would be the railroad’s duty to maintain at such crossings a flagman, gates, bell, or some such warning signal, etc., as would prevent persons crossing the railroad from being injured, was properly refused, as exacting of the company more than reasonable care.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p> <p>7. Death (§ 58*)—Contributory Negligence—Presumption of Due Care.</p> <p>In an action for negligent death, decedent is presumed to have used reasonable care for his own safety, in the absence of evidence to the con- • trary.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 75-78; Dec. Dig. I § 58.*]</p> <p>8. Railroads (§ 351*)—Crossing Accident—Instructions.</p> <p>In an action against a railroad company for death of a traveler at a street crossing, an instruction that the law presumes that decedent used reasonable care for his own safety, in the absence of evidence to the contrary, should be given in connection with concrete instructions applicable to the particular case.</p> <p>[Ed. Note.—For other eases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p> <p>B. Trial (§ 252*)—Crossing Accidents—Instruction.</p> <p>In an action against a railroad company for death of a traveler at a street crossing, an instruction basing liability “on the theory that the trainmen saw or should have seen decedent’s peril in time to avoid collision” was properly refused, in the absence of applicable evidence.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>10. Evidence (§ 474*)—Opinions—Speed of Train.</p> <p>A witness is qualified to\ give an opinion as to the speed of a train where he has seen several trains a day passing the place during the preceding seven years, had watched other trains on other roads “a little bit,” and always paid attention to the particular train because it was due when he went to work.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>11. Appeal and Error (§ 1058*)—Harmless Error—Exclusion of Testimony.</p> <p>Error in excluding testimony of a witness as to the speed of the train which killed decedent at a street crossing was harmless to plaintiff, where the witness was permitted to testify that the train ran “lots faster than any other train.”</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Bill by Howard Hazlett, administrator of Augustus Pollack, against the Pollack Stogie Company and others. Decree dismissing the bill (188 Fed. 494), and complainant appeals.</p>

<p>1. False Imprisonment (§ 18*)—Civil Liaulsixy—Limitations—Statutes.</p> <p>An action against a sheriff for false imprisonment committed hy his deputies is within Comp. Laws Mich. 1897, § 9729, requiring actions for false imprisonment to he begun within two years after the accrual of the cause of action, and is not within section 9730, providing a limitation of three years for actions against sheriff’s for misconduct of their deputies.</p> <p>[Ed. Note.—For other cases, see False Imprisonment, Cent. Dig. § 84; Dec. Dig. § 18.*}</p> <p>2. Limitation or Actions (§ 75*)—Disabilities—“State Prison”—Imprisonment.</p> <p>. The London, Ontario, Insane Asylum is not the state prison within Comp. Laws Mich. 1897, § 9733, postponing the running of limitations for false imprisonment when the right of action accrues while plaintiff: is imprisoned in the state prison until the removal of the disability.</p> <p>[Ed. Note.—For other eases, see Limitation of Actions, Cent. Dig. §§ 415, 416; Dec. Dig. § 75.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6688-6639; vol. 8, p. 7804.]</p> <p>3. Limitation or Actions (§ 55*)—Accrual or Cause or Action.</p> <p>Limitations prescribed hy Comp. Laws Mich. 1897, § 9729, requiring actions for false imprisonment to be begun within two years after the accrual of the cause of action, begin to run from the time the imprisonment ends, and an imprisonment ends when the detention for which defendants are responsible ceases.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]</p> <p>4. Limitation or Actions (§ 195*)—Burden or Proor.</p> <p>Where a plaintiff, suing for false imprisonment, show-s an imprisonment originally unlawful, the burden is on defendants to show the running of the statute of limitations by proving the termination of the unlawful imprisonment, hut defendants need not introduce the necessary proof, but it is sufficient if the fact is shown by plaintiff’s evidence.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dec. Dig. § 195.*]</p> <p>5. Limitation or Actions (§ 55*)—Acttons—Burden or Proor.</p> <p>Plaintiff was placed in a Canadian asylum as a private patient with her consent. She remained a little over a month, when she was allowed to leave on probation, the term of which expired on a designated date. On the day before defendants took plaintiff into custody, and she was received at thé asylum on the designated date. A deputy sheriff of one of the defendants accompanied plaintiff to the asylum, where they were met by asylum attendants, and where plaintiff was turned over to them. Plaintiff remained at the asylum for some time, until she was taken therefrom by relatives. There was nothing to show that the asylum authorities did not in good faith insist on plaintiff re-entering the asylum at the termination of the probation period. Held that, since the unlawfulness of the confinement in the asylum after the designated date was not shown, limitations against defendants, sued for false imprisonment, began to run from the date of plaintiff’s re-entry into the asylum.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55,*]</p> <p>6. Limitation of Actions (§ 195*)—Actions—Burden of Proof.</p> <p>Plaintiff had the burden of proving the unlawfulness of her confine-ment in the asylum on her return at the expiration of the probation period, in order to prevent the running of limitations in favor of defendants.</p> <p>[Ed. Note.—For other eases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dec. Dig. § 195.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 15*)—Nature of Trade-Marks—Statutes—“Sign.”</p> <p>Under Act Eeb. 20, 1905, c. 592, §§ 1, 16, 33 Stat. 724, 728 (U.- S. Comp. St. Supp. 1909, pp. 1275, 1283), authorizing the registration of trademarks by filing an application specifying the merchandise to which the trade-mark is appropriated, a description of the trade-mark, and a statement of the mode in which the same is applied and affixed to goods, and authorizing an action for the wrongful use of a trade-mark by the use of signs, labels, etc., Intended to be used in connection with the sale of merchandise, a trade-mark is only valid when actually affixed to a commodity, and one may not acquire a trade-inark in a sign placed on a building, the word “sign” being used to indicate a mark, symbol, token or emblem affixed to the article sold.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 18; Dec. Dig. § 15.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6508-6512.]</p> <p>2. Trade-Marks and Trade-Names (§ 53*)—Infringement—Nature of Injury.</p> <p>What is not and cannot be a trade-mark cannot be infringed as a trade-mark.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 61 ; Dec. Dig. § 53.*]</p> <p>3. Courts (§ 300*)—Federal Courts -Unfair Competition—Jurisdiction— OlTIZENSniP.</p> <p>Where the parties are citizens of the same state, the federal courts have no jurisdiction to determine the question of unfair trade in a suit brought by one against the other.</p> <p>[Ed. Note.-—For other cases, see Courts, Dec. Dig. § 300.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>1. Contracts (§ 144*)—Construction—What Law Governs.</p> <p>A contract to he per Conned in Minnesota, and concerning property to be transferred there, is governed by the laws of that state, though made in Illinois.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 724-727; Dec. Dig. § 144.*]</p> <p>2. Chattel Mortgages (§ 5*)—Instruments Constituting.</p> <p>Ditch contractors' agreement with their surety to indemnify the latter ' against loss, and reciting that the contractors agreed that, on their being unable to complete the contract, they would assign and did assign to the surety such plant as they might have on the work, was in effect a chattel mortgage of the plant.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 4-18, 16; Dec. Dig. § 5.*]</p> <p>8. Chattel Mortgages (§ 18*)—After-Acquired I’iiopekty.</p> <p>The chattel mortgage being a Minnesota contract, after-acquired property at the time of purchase by the contractors became subject to the mortgage.</p> <p>[Ed. Note.-—For other cases, see Chattel Mortgages, Cent. Dig. §§ 61-66; Dec. Dig. § 18.*]</p> <p>4. Bankruptcy (§ 188*)—Chattel Mortgages—Rights of Trustee.</p> <p>Where ditch contractors’ surety became vested with title to the contractors’ plant before their bankruptcy under chattel mortgage agreement, and on account of the contractors’ abandonment of their work, they became entitled to the property as against the contractors’ trustee in bankruptcy.</p> <p>(Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 270, 280-295; Dec. Dig. § 188.*]</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>Habeas corpus proceeding by Henry Fair against the United States of America. From a judgment discharging petitioner, the government appeals.</p>

Appeals from the District Court of the United States for the Eastern District of Michigan. Deportation proceedings by the United States against Bak Kun and against Ting Fong. From a commissioner's deportation order, affirmed by the District Court, defendants appeal.

Suit by the Southern Railway Company against Ephraim Simon to restrain the execution of a judgment recovered by Simon against the railway company in a state court. From a decree of the Circuit Court (184 Fed. 959) for complainant, defendant appeals.

Action by Ernest Cornette and wife against the Baltimore & Ohio Railroad Company. There was a judgment for defendant, and plaintiffs bring error.

<p>1. Sheriffs and Constables (§ 138*)—Insufficient Lew—Evidence.</p> <p>Where, .in an action against a sheriff for failing to levy on sufficient property to satisfy a debt, it appeared that after the levy the debtor mortgaged certain chattels, and the nominal mortgagee testified that the mortgage was executed and filed without his knowledge, and that he lent no money to or had no transaction with the debtor, and such testimony was not contradicted, the mortgage was properly excluded.</p> <p>[Ed. Note.—For other cases, see Sheriffs and Constables, Cent. Dig. §§ 290-296; Dec. Dig. § 138.*]</p> <p>2. Trial (§ 260*)—Instructions—Refusal—Matter Covered.</p> <p>Instructions substantially covered by those given are properly refused. [Ed. Note.—For other eases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.*]</p> <p>3. Trial (§ 250*)—Instructions—Refusal—Inapplicability to Case.</p> <p>Instructions inapplicable to the case are properly refused.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. . § 250.*]</p>

Petition by P. H. O’Brien against Max Ely, receiver of the Ferro Concrete Contracting Company, for judgment against the receiver. From orders rejecting the claim of the petitioner in part, and dismissing the bankruptcy proceedings at the cost of the petitioning creditors, petitioner appeals.

<p>1. Appeal and Error (§ 954*)—Review—Discretion op Court—Temporary Injunction. «</p> <p>An order granting an injunction pendente lite will not be disturbed on an appeal, allowed by section 7 of Act March 3, 1891, c. 517, 26 Slat. 828 (U. S. Comp. St. 1901, p. 550), unless it is violative of the rules of equity, or there has beeu an abuse of discretion, or the injunction has been improvidently allowed, and. where such injunction is dependent on controverted facts, the court on appeal will not interfere.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3818-3821; Dec. Dig. § 954.*]</p> <p>2. Appeal and Error (§ 1169*)—Disposition op Cause—Reversal with Direction to Dismiss Bill.</p> <p>Where the equity of a bill is challenged on appeal from an injunction, pendente lite, and the appellate court is of the opinion that the bill is without equity or that the lower court was without jurisdiction, a decree for complainant must be reversed with directions to dismiss the bill.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. § 1J69.*]</p>

Suit' by Morgan’s Louisiana & Texas Railroad & Steamship Company against the Railroad Commission of Louisiana and others. From a decree granting a perpetual injunction, defendants appeal.

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>Action by the United States against the Stone, Sand & Gravel Company and another. Judgment for plaintiff, and defendants bring er-. ror.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia.</p> <p>In the matter of Cotton & Preston, bankrupts. Ragan, Malone & Co., creditors, appeal from an order of the District Court.</p>

<p>On petition for rehearing.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey</p> <p>Suit in equity by the Ferry-Hallock Company against the Orange Hat Box Company. Decree for complainant* and defendant appeals.</p> <p>The following is a cut of the patent in suit.</p> <p> </p>

<p>Patents (§ 328*)—Validity and Infringement—Eave foe Greenhouse.</p> <p>The Burnham patent, No. 583,247, for a metal eave, designed specially for use in greenhouses, consisting of an angle iron located between the side wall and the roof, having one member in substantially the same plane as the plane of the roof, with the remainder in the interior of the building, so as to be affected by the temperature therein and to communicate the heat to the outside member, thereby preventing the formation of icicles and the accumulation of ice and snow, was not anticipated, and in view of its superiority, for the important purpose sought, over any structure in the prior art, discloses patentable inventipn, and not merely mechanical skill. Also held infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by Maud R. Davis, administratrix, and others, against the A. H. Reid Creamery & Dairy Supply Company. Decree for defendant, and complainants appeal.</p>

<p>Paienis (§ 328*)—Validity and Inmunoement—Wkdi, Mechanism.</p> <p>The Layne patent, No. 821.653, for improvements in well mechanism, claim 13, held valid and infringed.</p>

<p>1. Patents (§ 328*)—Validity 'and Infringement—IIaik-Clippee.</p> <p>The Oarleton patent, No. 481,2.14, for a hair-clipper having a short push spiral spring in the frame of the clipper to hold the two levers in closed position, discloses patentable invention, but is not infringed by the devices of the Coates patents, Nos. 58S.954 and S02.070, in which a pull spiral spring is used.</p> <p>2. Patents (§ 289*)—Suit fob Infringement—Laches.</p> <p>Delay by the owner of a patent for 13 years after an alleged infringing device had been put on the market, during all of which time it was described in catalogues sent, out to the trade generally, before commencing a suit for infringement held such laches as to bar the right to relief.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 467-469; Dec. Dig. § 289.*</p> <p>Laches as a defense in suit for infringement, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.)</p>

Mandamus proceedings, on the relation of the Stony Fork Coal Company, and others, against the Louisville & Nashville Railroad Company and another; the United States intervening.

<p>1. Costs (§ 134*)—Bond foe Costs—Additional Bond.</p> <p>Where, in a suit to restrain a sale of cemetery lands, complainants had filed a bond for costs in the sum of $500, they would not be required to file an additional bond on the ground that defendants’ costs already proximated the amount of the bond, where such costs included stenographers’ fees, amounting to $139.10, which defendants were not necessarily entitled to tax under rule 23.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 518-52S; Dec. Dig. § 134.*]</p> <p>2, Injunction (§ 148*)—Pbeliminaby Injunction—Bond.</p> <p>Where, in a suit to restrain a sale of cemetery lands by defendant, it appeared that such sale was for the purpose of reorganizing defendant cemetery company, and that its results would nullify the provisions of a prior agreement without the consent of all the shareholders, and it was claimed that this would permit the proceeds of the sale and use of lots in the cemetery to be divided contrary to the provisions of the corporation’s charter, and that the effect of granting a preliminary injunction would not so seriously inconvenience defendant as its denial would be likely to damage complainants, complainants would not be required to give a bond to indemnify defendant against damage under the rule that such bond will only be required in the federal courts when the court is not reasonably satisfied of complainants’ right to the relief prayed for, and is satisfied that the granting of the injunction may cause irreparable injury to the defendant.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 323-381; Dec. Dig. § 148.*]</p>

In the matter of Soloway & Katz, bankrupts. Petition for review of order of referee requiring bankrupts to deliver books and papers to the trustee. The following are the order and report of Henry G. Newton, Referee: Order for tlie Production of Books and Papers.

In the matter of the bankruptcy of Soloway & Katz, bankrupts. Petition for review of a referee’s order to compel the production by the bankrupts of missing books of account.

<p>In Admiralty. Suit by the Shamrock Towing Company, as owner of the steam tug McGuirl, against the steam tug Greenwich.</p>

<p>In Equity. Application by the New York Times Company to punish the Star Company for contempt for violation of an injunction.</p>

<p>In Equity. Suit by Mary Sully and others against the United States of America and another.</p>

<p>In Equity. 'Suit by Narcissus Drapeau and others against the United States of America and another.</p>

<p>'Action at law by Andrew Armstrong, Sr., against W. W. Wood and others.</p>

<p>Municipal Corporations (§ 226*)—Contract with Water Company—Construction and Validity.</p> <p>Under a statute conferring on a city “full power and authority to contract for and procure waterworks to be constructed for the purpose of supplying the inhabitants * * * with water for domestic use, the ex-tinguishment of fires,” etc., the city had authority to contract with a water company for the rental of fire hydrants for any reasonable length of time; and a contract to pay for such service for 20 years, for which term the company was granted a franchise with a reservation to the city of the right to purchase the plant at any time after 10 years, with a further provision that if it did not elect to purchase by the end of the term the franchise and contract should be extended for an additional 20 years subject to the same terms and conditions, including the continued right to purchase, was not beyond its powers, and the provision for extension is valid and enforceable.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 645-650;. Dec. Dig. § 226.*]</p>

<p>1. Shipping (§ 49*)—Charters—Deduction ratox Charter Hire—Delay in Fitting Vessel.</p> <p>A steamer was delivered to a time charterer at New Orleans, and was directed to proceed, to Mobile to load a cargo of timber, and also to remove stanchions from the hold, so that the timber could be put in. When the vessel reached Mobile, the master refused to take out the stanchions until he cabled his owners, which required several days, when they were taken out. Held, that the charterer was entitled to deduct charter hire for the time of the delay, it being shown that it was customary to remove the stanchions for such cargoes, that it did not en-' danger the vessel, and that they could have been removed on the trip from New Orleans, without causing any delay.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 187-202; Dec. Dig. § 49.*</p> <p>Deductions and offsets from charter hire of vessel, see note to Tweedie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.1</p> <p>2. Shipping (p 54*)—Charter—Liability for Injury to Vessel in Loading.</p> <p>A charterer is liable for injury caused to a vessel in loading a cargo of heavy timber in her hold.</p> <p>[Ed. Note.—-For other cases, see Shipping, Cent. Dig. §§ 219-221; Dec. Dig. P 54.*]</p> <p>3. Shipping (p 53*)—Charter—Improper Loading—Liability por Cargo Jettison i5i).</p> <p>A steamer was loaded by a time charterer in gulf ports with a cargo of timber for Scotland, including a deck load piled to a height of J5 feet aft and 17 feet forward. The master protested against the forward deck load on the ground that it rendered the vessel unstable and unseaworthy, but the charterer's agent insisted and had a survey made; the surveyors reporting that it could safely be taken. The underwriters also consenting and giving a certificate of seaworthiness, the master consented, but, after putting to sea, was compelled to jettison a part of the forward dec-k load to save the vessel. Held, that, under the circumstances, the whole responsibility was that of the charterer who should be charged with the entire loss, and also with the expense of unloading and restowing the deck cargo at an intermediate port, and that it was not entitled to a deduction from the charter hire for the time thereby lost, nor for loss of freight on the cargo jettisoned.</p> <p>[Ed. Note.—Por other cases, see Shipping, Cent. Dig. §§ 214-218, 223; Dec. Dig. § 53.*]</p>

<p>At Law. Action by Charles E. Hamilton, as receiver of the EvansfcJohnson-Sloane Company, against Arthur L. Selig.</p> <p>This is an action against the defendant upon his statutory liability as a stockholder of Evans-Munzer-Pickering Company, a corporation organized under the laws of the state of Minnesota. The corporation was incorporated in April, 1902, and on May 10, 1904, its name was changed to Evans-Johnson-Sloane Company. On April 23, 1902, the defendant purchased 50 shares of stock in the corporation of Evans-Munzer-Pickering, which he sold on September 24, 1904, to one Max -Meyer. On September 25, 1905, a petition in involuntary bankruptcy was filed against the Evans-Johnson-Sloane Com», pany, after adjudication a trustee was appointed, and its assets distributed. Thereafter, on May 8, 1906, a creditor of the Evans-Johnson-Sloane Company filed a bill in the district court of Ramsey county, Minn., asking for the appointment of a receiver against the Evans-Johnson-Sloane Company. On June 23, 1906, a receiver was appointed and the proceedings instituted contemplated by chapter 272, Laws of 1899, State of Minnesota, then contained in sections 3184-3190 of the Revised Laws of Minnesota for'1905. On April 20, 1907, the said district court by a decree in that action determined and allowed claims agairist the corporation amounting in the aggregate to $146,169.51 as contained in the schedule of claims thereto annexed. This schedule set forth the names of all the claimants, the number of claims, the amount of the claims, exclusive of interest, the amount of the interest of each claim, and the amount of each claim, including interest. In the case of some of the claims it appears from this schedule that they were incurred prior to September 25, 1904, and that the interest allowed was from a date prior to that time. On July 6, 1906, the receiver appointed in that suit, who is the plaintiff in this action, filed his petition, asking for an assessment upon the stock of all existing stockholders, of whom he alleged the defendant to be one. On the same date the district court of Minnesota ordered that notice should be given to all such stockholders by publishing the same in a daily newspaper in the county, and causing a copy of the order to be mailed to each of such stockholders and creditors, and thereafter, on September 4, 1906, the said district court directed that an assessment equal to the par value of each share be made on each share and against the persons and parties liable as stockholders of said defendant corporation for, upon or on account of such shares, and that every person liable as such stockholder of the defendant pay to the receiver $100. This decree contained the recital that it was made upon proof of due service and notice as prescribed in the petition.</p> <p>In the trial of this action the plaintiff proved that the defendant purchased 50 shares of stock on the 23d day of April, 1902, and sold it on the 25th day of September, 1904. He then put in evidence of the judgment roll in the Minnesota suit, and rested. He did not prove that the transfer of the' defendant was made to avoid the liability of the owner. He did not prove that any of the indebtedness existing at the time of the assessment by the Minnesota court existed on September 25, 3904, except as the roll proved it in that suit. Both parties moved for a verdict.</p>

<p>1. Courts (§ 344*)—United States Courts—Jurisdiction—Service of Process. . •</p> <p>A federal court does not acquire jurisdiction over a foreign corporation unless it is served with process within the jurisdiction of the court and is doing business within the state, unless there is waiver by general appearance or otherwise of want of due process.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. § 344.*]</p> <p>2. Corporations (§ 668*)—Process—Service—Return—Evidence.</p> <p>A return of service of summons on a foreign corporation sued in a state court, which recites the delivery of a true copy on the managing agent of the corporation found in the county, that such managing agent was the only agent of the corporation in the county, that the corporation is a nonresident, and that none of its principal officers reside in the state, and that all of the officers excepting the managing agent are absent from the state, is prima facie evidence of legal service.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. 1 668.*</p> <p>Service of process on foreign corporation, see notes to Eldred v. American Palace Car Co., 45 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p> <p>3. Judgment (§ 828*)—Foreign Judgments—Conclusiveness.</p> <p>Where a foreign corporation sued in a state court moved to quash the service of summons on the ground that it was not doing business in the state, and that the process was not served on an agent representing it in its business, and submitted affidavits in opposition to the return of service, establishing prima facie evidence of legal service, the decision of the state court that it acquired jurisdiction over the foreign corporation by'reason of the service was conclusive on the corporation, and it could not relitigate the question in an action in the federal court on the judgment rendered against it by the state court.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1504-1509, 1515; Dee. Dig. § 828*</p> <p>Conclusiveness of judgment as 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>4. Judgment (§ 818*)—Conouustveness—Fun Faith and Credit.</p> <p>The rule that the full faith and credit clause of Const, art. 4, § 1, does not require the acceptance of the record of judgment as conclusive 'on the facts necessary to give jurisdiction to a state court, and that such judgment may he attacked on jurisdictional grounds, and that the jurisdiction of the state court over the person or subject-matter is always open to question, applies only to cases where the nonresident defendant in the state court was not served with summons, and did not appear or waive the defect in service.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1458-1481; Dec. Dig. § 818.*</p> <p>Giving full faith and credit, jurisdiction of federal court, see note, Bailey v. Mosher, 11 D. C. A. 318.]</p> <p>5. Courts (§ 374*}—United States Courts—State Laws as Hums oe Decision.</p> <p>The rule of law of a state that a special appearance to quash service of summons is converted into a general appearance and a waiver of the defect of service whore an appeal is taken by defendant following trial on the merits must he taken as the law in an action in the federal court on a judgment rendered by a state court against a nonresident defendant who successfully appealed from a former judgment against him after a trial on the merits after the refusal to quash the service of summons, and the federal court must render judgment on the judgment rendered' by the slate court.</p> <p>LE<1. Note.—For other cases, see Courts, Cent. Dig. §§ 981, 982; Dec. Dig. § 374.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>6. OONSTITUTXONATj LAW (§ 309*)—Dim PROCESS OE LAW.</p> <p>The rule adopted by the highest court of a state that a special appearance to quash service of summons on a nonresident is converted into a general appearance and a waiver of defects of service where an appeal is taken from an adverse judgment, following a trial on the merits, does not deprive a nonresident defendant appealing from an adverse judgment, of a state court after specially appearing to quash service of process of due process of law.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig'. §§ 929, 930; Dec. Dig. § 309.*]</p>

In Equity. Suit by W. G. Studebaker against the Salina Waterworks Company, removed into the Circuit Court for the First division of the district of Kansas, by operation of law into the District Court, and heard on motion to remand to state court.

<p>In Admiralty. Suit by Bernard Tucker, as owner of the barge Safety, against Thomas A. Kirkham, and cross-libel against libelant.</p>

<p>In Admiralty. Suit by William D. Dittmar, as owner of the barge W. D. Dittmar, against the steam tug E. D. Haley.</p>

<p>GkiminaTj Law (§ 751*)—Mi stm-au--Misconduct of Accused.</p> <p>Where there was no evidence that jurors repeatedly warned' against reading anything in the newspapers concerning the case had read accounts of proceedings resulting in the placing in the custody of the' marshal during the trial one of the defendants for his misconduct in attempting to corrupt the jury, but without actually influencing any juror, the court would not withdraw a juror, and declare a mistrial.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Dee. Dig. § 751.*]</p>

<p>Injunction (§ 157*)—Pbeumínaky Injunction—Motion—Informality in Service.</p> <p>That an order to show cause, granted on an application for preliminary injunction against a corporation, was served on a person not authorized to represent .defendant, did not affect the jurisdiction of the court to entertain such motion, where service of the subpoena was afterward duly made, and defendant’s attorney appeared at the time set for hearing, which was twice adjourned.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 340. 342; Dec. Dig. § 157.*]</p>

<p>Trade-Marks akt> Trade-Names (§ 3*)—Words Subject to Trade-Mark.</p> <p>The word “Abricotine,’' used in, connection with the sale oí a cordial or liqueur, was an arbitrary coined word, not descriptive oí the goods, and was therefore a proper subject of trade-mark.</p> <p>LEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cení. Dig. §§ 4-7; Dec. Dig. § 3.®</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks'and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.]</p>

Action by L. E. Jung against the American Credit Indemnity Company. There was a judgment of the Circuit Court (180 Fed. 510) for plaintiff entered on a directed verdict, and defendant brings error. This is a suit brought to recover on an indemnity insurance policy issued by the American Credit Indemnity Company to L. E. Jung, indemnifying him, upon certain conditions and limitations, against losses on sales made in Ms business. The contract provided: First.

<p>1. Fixtures (§ 20*)—Priorities—Conditional Sales—Prior Mortgage Containing After-Acquired Property Clause.</p> <p>In the absence of any agreement as between the vendor in a conditional sale of personal property and the bondholders or mortgagees of the purchaser under a prior mortgage containing an after-acquired property clause, the true test for determining whether or not the lien of the .conditional sale vendor is inferior to the lien of the mortgagee is whether the personal property has been so attached to the real estate mortgaged as to become a part of the realty.</p> <p>[Ed. Note.—For other cases, see Fixtures, Cent. Dig. §§ 44r-46; Dec. Dig. § 20.*]</p> <p>2. Fixtures (§ 20*)—Conditional Sales—Prior Mortgage Containing After-Acquired Property Clause.</p> <p>Bankrupt, which was an oil refining company, purchased from claimant certain machinery to equip a plant for treating a by-product. Claimant installed the machinery in a building constructed for the purpose, and it was attached to the cement floor by bolts. It was furnished under a conditional sale contract reserving title in claimant until fully paid for, and providing that if .should remain personalty, which contract was recorded, and, under Gen. Ht. Kan. 1909, § 5237, became valid as a chattel mortgage, which remained in force until full payment of the purchase price. The machinery could be removed without injury to the real estate, or to the remainder of the plant. Held lhat, under such statutory provision and the express agreement of the parties, the machinery remained personalty and claimant's lien thereon was superior to that of a prior mortgage given by the bankrupt io secure bonds and containing an after-acquired property clause, which under the law of the state was ineffective as a chattel mortgage upon after-acquired property.</p> <p>[Ed. Note.—For other oases, see Fixtures. Cent. Dig. §§ 41-16; Dec. Dig. § 20.*]</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>In the matter of the Sunflower State Refining Company, bankrupt. From an order in favor of the Carbondale Machine Company, the National .Rank of Commerce of Kansas City, Mo., and others appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri.</p> <p>In the matter of bankruptcy proceedings of the Jackson Brick & Tile Company. From an order of the District Court affirming an order of the referee in bankruptcy allowing the claim of, the Sturdivant Bank as an unsecured claim, and denying the bank’s prayer that the claim be allowed as a secured claim, it appeals.</p> <p>This is an appeal from an order of the United States District Court for the Eastern District of Missouri affirming an order of the referee in bankruptcy which allowed the claim of the Sturdivant Bank as an unsecured claim against the estate of the Jackson Brick & Tile Company, a bankrupt, and denied the prayer of the bank that its claim be allowed as a secured claim. The Sturdivant Bank presented its claim against the Jackson Brick & Tile Company to the referee for allowance in the sum of $.15,410, and set forth in said claim that it held as security for said indebtedness 25 promissory notes, each for the sum of $500, executed by the Jackson Chemical ■ Manufacturing Company, and secured by a deed of trust also executed by said company upon 117 acres of land, and also upon two lots in Cape Girardeau county, Mo. The facts upon which the validity of the security claimed by the hank depends. as found by the referee and the District Court, are as follows:</p> <p>The English Mining & Manufacturing Company was incorporated under the laws of Missouri in April, 1897, and in December, 1902, changed its name to the Jackson Brick & Tile Company. From the time of its original incorporation until 1906 it was engaged in the business of manufacturing brick, fire brick, and drain tile near Jackson, Mo., and had a manufacturing plant and certain lands in that locality. Henry R. English was the organizer and principal stockholder in the company, and during the time above mentioned was its president, and in complete control of its affairs.</p> <p>On September 12, 1902, Henry It. English caused a corporation to be organized under the laws of Missouri by the name of the Jackson Chemical Manufacturing Company, with a purported fully paid capital stock of $20,000. No part of this capital, however, was ever paid in, and the company seems to have been incorporated by English for the purpose of borrowing money for the English Mining & Manufacturing Company, above mentioned, as it never transacted any business with the exception of the execution of the deed of trust: hereinafter mentioned.</p> <p>Immediately upon'the incorporation of the Jackson Chemical Manufacturing Company, the English Mining & Manufacturing Company executed a warranty deed dated September 12, 1902, conveying to the Jackson Chemical Manufacturing Company 117 acres of land and two lots in Cape Girardeau county, Mo., for the expressed consideration of $15,000. The deed was acknowledged by English as president of the English Mining & Manufacturing Company on September 18, 1902, and, after being so acknowledged, was left by English in the possession of one Limbaugh, the notary who took the acknowledgment, and the deed remained in the possession of the notary for several months, and was then returned by the notary to English, who placed it in his box in the vault of the Jackson Exchange Bank, at Jackson, Mo., where it remained until July. 1906, when it was taken out and afterwards recorded as hereinafter stated.</p> <p>On September 16, 1902, the Jackson Chemical Manufacturing Company executed a deed of trust, whereby it conveyed the 117 acres of land and the two lots, being the same property described in the warranty deed before mentioned, to onp Henry L. Jones, as trustee, to secure the payment of 25 promissory notes for the sum of $500 each, executed by the said Jackson Chemical Manufacturing Company and payable five years after date to the English Mining & Manufacturing Company. English was the president of both companies, and controlled and managed their affairs. He executed and acknowledged. as president, each of the above-mentioned instruments.</p> <p>On December 4, .1902, the English Mining & Manufacturing Company borrowed $8,500 from the Sturdivant Bank, and pledged to the bank as collateral security for the loan the 25 notes of the Jackson Chemical Manufacturing Company before mentioned. In negotiating this loan, the English Mining & Manufacturing Company was represented by Henry R. English, who informed the hank that the notes were secured by a deed of trust upon certain lands formerly owned by the English Mining & Manufacturing Company, and that said company had conveyed said lands io the Jackson Chemical Manufacturing Company by warranty deed. At the time the loan was obtained from the Sturdivant Bank, Henry U. English forwarded to the bank by mail the deed of trust executed by the Jackson Chemical Manufacturing Company to secure the collateral notes, and requested that the bank return the deed of trust to him, saying that he would have the same recorded. The Sturdivant Bank on December 4, 3902, mailed the deed of trust to English and requested him to place it of record.</p> <p>The English Mining & Manufacturing Company from time to time renewed the note, evidencing the debt owing by it to the Sturdivant Bank, and prior to October 16, 1905, increased its debt to the hank by borrowing additional money to the sum of $15,000, for which the Sturdivant Bank held as collateral security the 25 notes executed by the Jackson Chemical Manufacturing Company, and secured by the deed of trust hereinbefore mentioned. When the deed of trust executed by the Jackson Chemical Manufacturing Company was returned by the Sturdivant Bank to Henry R. English, on December 4,1902, English did not file the deed for record, but placed it in his box in the vault of the Jackson Exchange Bank, where it remained until some timé in July, 1906, when it was taken out and recorded as hereinafter stated. English testified that the reason he did not record the warranty deed from the English Mining & Manufacturing Company to the Jackson Chemical Manufacturing Company, and the deed of trust from the latter company to Jones, as trustee, was that he, English, was advised by his attorney not to do so, that he thought the recording of the instrument might affect the interests of the Jackson Exchange Bank, of which he was president, and that he was at the time negotiating with parties in St. Louis to secure money, and expected to take up the loan in a short time.</p> <p>About July 19, 1906, the Sturdivant Bank learned that the Jackson Brick & Tile Company was in financial difficulties and unable to proceed with its business; that the deed from the English Mining & Manufacturing Company to the Jackson Chemical Manufacturing Company, and the deed of trust from the Jackson Chemical Manufacturing Company to Jones, trustee, had never been recorded; and that the Jackson Brick & Tile Company owed about $69,-000, and was insolvent.</p> <p>On August 8, 1906, Mr. Miller, the attorney of the Jackson Brick & Tile Company, filed for record the deed from the English Mining & Manufacturing Company to the Jackson Chemical Manufacturing Company, and the deed of trust of the Jackson Chemical Manufacturing Company to Jones trustee. On October 31, 1906, the Jackson Brick & Tile Company was adjudicated a bankrupt on the petition of creditors, filed October 8, 1906. Over $25,000 of the total indebtedness of the bankrupt arose after the Sturdivant Bank had received the collateral notes delivered to it by the Jackson Brick & Tile Company and before the recording of the deeds above mentioned.</p> <p>Henry R. English, president of the Jackson Brick & Tile Company, withheld the warranty deed from the English Mining & Manufacturing Company .to the Jackson Chemical Manufacturing Company, and the deed of trust from the latter company to Jones, trustee, from record, in order that the Jackson Brick & Tile. Company might obtain credit upon its apparent ownership of the property described in such conveyances. The debt due from the Jackson Brick & Tile Company to the Sturdivant Bank was created in good faith, and the bank gave a present cash consideration for the collateral notes secured by deed of trust from the Jackson Chemical Manufacturing Company to Jones, trustee. In making the loan and in taking the collateral security the bank was not guilty of any actual fraud. The warranty deed executed and delivered by the English Mining & Manufacturing Company to the Jackson Chemical Manufacturing Company, and the deed of trust from the latter to the former securing the notes pledged to the Sturdivant Bank, were not withheld from record in pursuance of any agreement or understanding between the Sturdivant Bank and the English Mining & Manufacturing Company or its successor, the Jackson Brick & Tile .Company. The bank supposed that both instruments had been duly recorded.</p> <p>There is no evidence or finding in the record that any creditor now objecting to the allowance of the claim of the bank as a' secured claim ever examined the records for the purpose of ascertaining whether there were any incumbrances of record against the property now in controversy and extended credit to the Jackson Brick & Tile Company in reliance thereon. The creditor, Quinn, who asked and obtained leave to intervene in the proceeding brought by the referee in bankruptcy to establish the claim of the bank, had full knowledge of all the transactions of the Jackson Brick & Tile Company and its predecessor, the English Mining & Manufacturing Company. This knowledge not only appears from the record in this case, but this court found that the same existed in the case of McAtee v. Shade, 185 Fed. 443, 107 C. C. A. 512. As to the Whitewater Bank and John S. Medley, its cashier, the record fails to show that they, or-either ,of them, ever presented or proved a claim against the bankrupt estate.</p> <p>The land described in the trust deed on which the Sturdivant Bank claims its security is now in the possession of the United States District Court for the Eastern District of Missouri, through its referee and trustee in bankruptey. The bank was not a party to the withholding of the deeds from record by English, and was in no way benefited thereby.</p>

In the matter of bankruptcy proceedings of the Jackson Brick & Tile Company. Application by the Merchants’-Laclede National Bank for the allowance of a claim as secured against the bankrupt’s estate, to which William F. Schade, trustee, filed objections. From an order of the District Court, affirming a referee’s order allowing the claim as a nonsecured claim, the bank appeals, and also files an original petition to reviso, under Bankr.

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Suit in equity by Griffin T. Miller "and others against Roger W. Butterfield and Thomas M. Peck. Decree for complainants, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Eminent Domain (§ 152*)—Lands—Right or Wat—Compensation.</p> <p>Where a railroad company is compelled to, and does, pay to allottees of lands in the Creek Nation full compensation for the taking of its right of way and the construction of its railroad across their allotments, and that right of way was not located over such allotments until after the allottees had become the exclusive owners thereof, such company is not liable under Act March 3, 3899, c. 453, 30 Stat. 3308, to pay to the Creek Nation, or to the United States for that nation, $50 per mile, or any other sum, on account of its railroad right of way across such allotments.</p> <p>[Ed. Note.—For other cast's, see Eminent Domain, Cent. Dig. 403-400, 426; Dec. Dig. § 152.*]</p>

Summary proceedings by F. J. Spencer, trustee in bankruptcy of the Johnston Motor Sales Company, a bankrupt, against William hi. Johnston. From an order requiring defendant to turn over to the trustee a specified sum, he appeals.

Action by Thomas J. Dockery and' another against the Chicago, Burlington & Quincy Railroad Company. Theré was a judgment for plaintiffs, and defendant brings error.

Petition for Revision of Proceedings in the District Court of the United States for the Northern District of Illinois. In the matter of the Metals Extraction & Refining Company, a bankrupt. Petition by Harris Stern and cross-petition by John M. Clark to review an order directing Harris Stern to pay a specified amount to the trustee and ordering the trustee to pay the claim of cross-petitioner out of funds in his hands.

Action by Frank Rotolo against the Norfolk & Atlantic Terminal Company. There was a judgment for plaintiff, and defendant brings error. This is the third time this case has been before the court here. The first time several points arising upon the pleadings, and in the trial of the cause, were passed upon by this court. See Norfolk & Atlantic Terminal Company, Plaintiff in Error, v. Eotolo, Defendant in Error, 179 Fed. 639, 103 C. C. A. 197.

Action by A. Y. Bayne and others, copartners as Bayne & Hewett, against the United States of America. There was a judgment granting insufficient relief, and plaintiffs bring error.

<p> (Syllabus by the Court.) </p> <p>1. Penalties (§ 32*)—Negativing Exceptions—Transportation of Dive Stock—Twenty-Eight Hour Law.</p> <p>It is not essential to the recovery of a penalty under the Twenty-Eight Hour Daw (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1909, p. 1178]) that the government should negative the excuse embodied in section 3. That excuse is a separate topic, a defense, and the burden is on the defendant to establish it.</p> <p>[Ed. Note.—For other cases, see Penalties, Cent. Dig. §§ 26-30; Dec. Dig. § 32.*]</p> <p>2. Carriers (§ 37*)—Transportation of Live Stock—Twenty-Eight Hour Law—Enjoyment of Food, etc., by Animals Essential to Excuse.</p> <p>That excuse is that the animals can and do have proper food, water, space, and opportunity to rest in the cars which transport them.</p> <p>The facts that their owner or caretaker, who accompanies them, agrees with the railroad company to care for, feed, and water them, and that food and water with which he might have performed his contract were easily accessible to him on his way, are insufficient to establish this excuse, where the animals are knowingly and willfully confined by the company more than 28 hours, and they do not actually have proper food and water or space and opportunity to rest during the transportation.</p> <p>[Ed. Note.—For other eases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*]</p> <p>3. Carriers (§ 37*)—Transportation of Live Stock—Twenty-Eight Hour Law—Knowingly and Willfully Confining Animals That Lack Proper Food Constitutes Offense.</p> <p>It is not essential to the recovery of the penalty that proof be made that the defendant knew that the animals did not have proper food, water, or space to rest in the cars which carried them. It is sufficient that it knowingly and willfully confined them more than 28 hours, and the animals did not have proper food, water, space, and opportunity to rest in the cars which transported them.</p> <p>[Ed. Note.—For other casés, 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>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1092*)—Bill of Exceptions—Timely Settlement-Stricken When Too Late.</p> <p>A statute of New Mexico provided that a bill of exceptions should be settled and signed by the trial judge at least 10 days before the term of the Supreme Court in which the cause should-be first docketed, unless for cause satisfactory to him he should delay the same and that in that event he should settle and sign it as soon as possible. Comp. Laws 1897, § 890. An appeal was docketed in January, 19u3, for the term commencing January 7, 1903. There was no evidence of any delay of the settlement of the bill of exceptions, or of any extension of time therefor by any order of, or for any cause satisfactory to, the judge, and the only proof was that it was submitted to and settled by him on December 24, 1903.</p> <p>Held, the bill of exceptions was settled too late, and it was properly stricken from the record. ___</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2SG1, 2919; Dec. Dig. § 1092.*]</p> <p>2. Criminal Law (§ 1092*)—Appeal—Docketing and Dismissing by Appellant—No Transcript Requisite in New Mexico.</p> <p>A rule of the Supreme Court of New Mexico directed the clerk to enter cases upon the docket in the order in which the transcripts in appeals and the pi'tecipes in cases presented by writs of error were filed, and a statute provided that at any time before a motion by appellee to docket and affirm the judgment the appellant might docket and either perfect his record within 30 days thereafter or dismiss his appeal and take another. Laws 1901, c. 99, § 1.</p> <p>Held, the appellant had the right to docket and dismiss his appeal without filing a transcript of the record, and where he did so, and then took a new appeal, his cause was first docketed under his first appeal, and it was too late first to settle his bill of exceptions more than 11 months after that docketing.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]</p>

<p>1. Internal Revenue (§ 38*)- 'ilegal Tax—Recovery—Conditions—Appeal to Commissioner—Sta . utes.</p> <p>Rev. St. § 3226 (U. S. Comp. St. 1901, p. 2088), providing that no suit shall be maintained to recover any internal tax alleged to have been erroneously or illegally assessed or collected until an appeal shall have been taken to the Commissioner of Internal Revenue, and a decision of the Commissioner had therein, is applicable to the collection and enforcement of the specific tax imposed on oleomargarine by Act Aug. 2, 1886, c. 840, 24 Stat. 209 (U. S. Comp. St. 1001, p. 2228).</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dee. Dig. § 38.*]</p> <p>2. Internal Revenue (§ 38*)—Tax—Illegal Assessment—Review by Commissioner.</p> <p>Where, after the assessment of an alleged illegal oleomargarine tax, an application was made to the Commissioner of Internal Revenue for review, and the Commissioner overruled the application and refused to abate the tax, plaintiff was not bound, after paying the tax, to again appeal to the Commissioner, as provided by Rev. St. § 3226 (U. S. Comp. St. 1901, p. 2088), as a condition precedent to his right to sue the collector to recover the amount so paid; the application to abate the assessment fulfilling every purpose of such an appeal.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. § 38.*]</p> <p>.3. Internal Revenue (§ 16*)—Oleomargarine Dealers—Taxation—“Wholesale Dealer.”</p> <p>Plaintiff and his brother were both retail dealers in oleomargarine, and had paid the tax for the first six months of 1910. During that time, a wholesale shipment ordered by plaintiff not having arrived, he borrowed an unbroken package of the same material from his brother, which the latter had obtained from the same wholesale dealer from whom plaintiff’s supply had been ordered, and on arrival of plaintiff’s order tbe precise amount borrowed of the same product and brand was returned. Held, that such transaction did not constitute plaintiff a “wholesale dealer” in oleomargarine, nor subject him to a tax imposed on wholesalers.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7450, 7451.]</p>

• In the matter of Frank H. Sweeney, bankrupt. From an order rejecting a claim, the Colman Company appeals. On March 31, 1909, Frank H. Sweeney filed his voluntary petition in bankruptcy, and on April 3, 1909, he was adjudged a bankrupt. He and the Col-man Company, a corporation, were jointly liable on a lease of a building, and at the time of the adjudication in bankruptcy the lease had not expired.

Action at law by the United States against Bev Hunter, C. D. Jensen, and J. C. Miller to recover on a forfeited recognizance. Judgment for plaintiff, and defendants bring error.

<p>1. Master and Servant (§ 332*)—Existence of Relation—Jury Question. Whether a chauffeur was acting for the owner of an automobile or for a company which was repairing it, when he negligently drove the car against plaintiff, held, under the evidence, a jury question.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Gent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]</p> <p>2. Master and Servant (§ 332*)—Existence of Relation—Jury Question.</p> <p>An issue as to the existence of the relation of master and' servant between defendant and one for whose negligence it is sought to charge him should be taken from the jury only when the evidence is clear and unequivocal.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action by David C. Roberts against the Chicago, Milwaukee & St. Paul Railway Company. There was a judgment for defendant, and plaintiff brings error.</p>

Action by the New Jersey Terminal Dock & Improvement Company and another against estates of Long Beach. Judgment for plaintiffs, and defendant brings error. The following is the opinion of Chalfield, District Judge: Under stipulation and according to the terms of the. order of reference the report of the referee must be considered by this court, and judgment can only be entered in accordance with the determination of the court upon the report.

<p>In Error to the Circuit Court of the United States for the Southern District of Georgia.</p> <p>Actions at iaw by George P. Northrop and others, executors, against Joshua Troup and against J. B. Clements. Judgments for defendants, and plaintiffs bring error.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Florida.</p> <p>Action by Willie M. Whilden against the Atlantic Coast Fine Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity by the United States Consolidated Seeded Raisin Company against the Selma Fruit Company. Decree for defendant, and complainant appeals. The complaint alleges the ownership by the complainant of patent No. 611,782, dated October 4, 189S, granted to William Forsyth and its infringement by the defendant.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>Suit in equity by John R. Parks and Richard R. Parks against the Colorado Tent & Awning Company and others. Decree for complainants, and defendants appeal.</p>

Suit in equity by the General Electric Company against Frederick C. Sutter and others, trading as the Pittsburgh Transformer Company. Decree for defendants, and complainant appeals.

<p>In Equity. Suit by the Westinghouse Air Brake Company against the New York Air' Brake Company for infringement of two patents. On final hearing.</p>

<p>1. Patents (§ 318*)—Suit foe Infringement—Accounting—Measure of Profits Recoverable.</p> <p>Where a patent is for a separable improvement on an old device, on an accounting by an infringer the patentee must clearly separate defendant’s profits and his own damages between the patented and the unpatentod features by showing that defendant made profits or sales by the use of the patented improvement which he would not have made by the use of any other device open to him.</p> <p>[Ed. Note.—-For other eases, see Patents, Gent. Dig. §§ 566-576; Dec. Dig. § 318.*</p> <p>Accounting by infringer for profits, see note to Briekill v. Mayor, etc., of Oity of New York, 50 G. O. A. 8.]</p> <p>2. Patents (§ 318*)—Suit for Infringement—Accounting by Infringer.</p> <p>On such an accounting, in which the burden of proof rests on complainant, the defendant cannot be required to furnish at its own expense, where such expense would be great, detailed statements containing all the information required to prove complainant’s case. Equity rule 79, respecting ordinary accounting between debtor and creditor, is not applicable to such case.</p> <p>[Ed. Note.—For other eases, see Patents, Gent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p>

<p>In Equity. Suit by the United States Fire Escape Counterbalance Company against the Joseph Halsted Company.</p>

<p>Contempt proceedings against William Steiner and others. On motion to dismiss.</p> <p>This cause .comes here upon a hearing on return of an attachment against William Steiner, Herbert L. Miles, Joseph R. Miles, Charles Y. Henkle, and Leon Wagner. The acts charged to have been committed, and which it is contended constituted a contempt, are:</p> <p>(1) That each and all of the five persons above named swore to affidavits which contained statements material to issues before the court which were false and known to them to be false when they swore to them.</p> <p>(2) That four of these five persons, being defendants, subsequently caused these affidavits to be presented to the court in opposition to a motion, which was being heard in a suit against the Yankee Film Company and themselves.</p> <p>(3) That the same four persons disobeyed an order of the court which required them to deliver to their counsel all infringing cameras in their possession or under their control, to be kept in the care and custody of said counsel unused until the further order of the court.</p>

<p>Towage (§ 11*)—Liability con Injury to Tow—Plaojng at Dock.</p> <p>An owner, who sends a coal barge to be unloaded at a place where she will be compelled to lie on the bottom at low tide, assumes the risk of such inadvertent happenings as are likely to occur from such use and conditions; while, on the other hand, the captain of a towboat, who takes a barge to such a position, is bound to use judgment and reasonable care in-placing her. Evidence held insufficient to show that.an injury to a barge while so lying was due to any fault of the tug which towed her there.</p> <p>[Ed. Note.—For other eases, see Towage, Cent. Dig. §§ ll-23j Dec. Dig. § 'll.*]"</p>

<p>United States (§ 67*)—Publics Improvements—Contractor’s Bond—Accrual op Cause op Action.</p> <p>Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), which provides that, if no suit is brought on a federal contractor’s bond of tbe United States within six months from the completion and final settlement of tbe contract, any creditors for whose benefit tbe bond was taken may sue thereon in tbe name of tbe United States, provided tbe suit shall not be commenced until after the complete performance of tbe contract and final settlement thereof, gives to a subcontractor of a contractor of public work tbe right to sue six months after the work is completed and settled for, without regard to guaranties or stipulations by tbe contractor for repairs, and tbe reservation by tbe government of a specified sum for one year after tbe completion and acceptance of tbe work.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p>

<p>Salvage (§§ 31, 38, 10*)—Salvage Sebvice—Moving Vessel fbom Vicinity of Fire.</p> <p>The moving of a float, moored in the vicinity of a fire which consumed property on a pier and spread to a number of vessels and lasted all night notwithstanding the continuous work of fire boats and tugs, Mid to constitute a salvage service which entitled the vessel performing the service to an award of 10 per cent, of the value of the float, to be equally divided between the owners and crew.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 75-77, 93-102, 18-20; Dec. Dig. §§ 31, 38, 10.*</p> <p>Salvage awards in federal courts, see note to The Lamingtou, 30 C. C. A. 280.]</p>

<p>In Admiralty. Suit by John F. Carberry against the steamer Henry B. Smith; the Acme Transit Company, claimant. On exceptions to libel.</p>

<p>At Law. Action by Charles A, Strout, trustee of the Goddu Sons Metal Fastening Company, against the United Shoe Machinery Company and others.</p>

In the matter of Daniel Casey, bankrupt. Application for a rule or order vacating and setting aside or revoking an order heretofore made herein extending the time in which the bankrupt might file his application for a final discharge iii bankruptcy, and which order allowed the-bankrupt to file his application for. a final discharge after the expiration of a year from the date of his adjudication.

Action by the First Trust & Savings Bank, trustee, against the Southern Indiana Railway Company and others, in which the A. B. Meyer & Co. filed a petition for intervention.

<p>Application of Michael Schorer for a writ of habeas corpus.</p>

<p>At Law. Action by Seymour P. Thomas, trustee in bankruptcy of the Scofield Company, against the Birmingham Railway, Light & Power Company.</p>

<p>Indians (§ 15*)—Allotments—Homestead Rights.</p> <p>Under the Original Creek Agreement (Act Cong. March 1, 1901, c. 676, 31 Stat. 861), providing for the allotment of lands among the citizens of the Creek Tribe, declaring that lands allotted shall not be alienated by the allottee before a specified period, and that each citizen shall select from his allotment 40 acres as a homestead, which shall not be alienable for an additional period, and providing that all citizens living on April 1, 1899, entitled to be enrolled, shall be placed on the rolls, and that if any such citizen has died since that time, or may subsequently die before receiving his allotment, the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, etc., an allotment Of a citizen dying in May, 1899, intestate and before selection, descends to his heirs and vests in its undivided entirety among the heirs, and a practice of the Dawes Commission in dividing an allotment into separate tracts, designating one the homestead and the other the surplus, followed by a patent of one part as a homestead, Is void, and the entire allotment Is within Act Cong. April 21, 1904, c. 1402, 33 Stat. 189, removing restrictions from Indian lands, and a conveyance by the heirs is valid.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 17, 37-14; Dec. Dig. § 15.*]</p>

<p>At Eaw. Action by Gabriel Astruc against the Star Company.</p>

At Law. Action by the Puget Sound Sheet Metal Works and others against the Great Northern Railway Company to recover damages for an alleged tort. On motion to remand to state court.

<p>1. Conspiracy (§ 28*)—Concealment of Bankrupt’s Assets.</p> <p>Bankr. Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 (U. S. Comp. St. 1901, p. 3433), provides tliat ft person shall be punished by imprisonment on conviction of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from ids trustee, any of the property belonging to his estate in bankruptcy. Held, that an indictment for conspiracy to conceal assets in contemplation of bankruptcy was not objectionable because there was no existing bankruptcy when the conspiracy was originated. Alkon v. United States, 163 Fed. 810, 90 C. C. A. 116, followed.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. § 28.* 1</p> <p>2. Conspiracy (8 40*)—Concealment of Bankrupt’s Assets—Individual Conspirators.</p> <p>Cohen v. United states, 157 Fed. 651, 85 O. G. A. 113, followed, to the effect that individuals may be guilty of conspiracy which included in its purpose a fraudulent concealment of Hie assets of a bankrupt corporation, even if the corporation may not be charged as a conspirator.</p> <p>[F,d. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 73, 75-78; Dec. Dig. § 40.*]</p> <p>3. Conspiracy (§ 25*)—Concealment of Bankrupt's Assets.</p> <p>The rule that one is responsible, for the result of his intentional tort, though the injury be sustained by one lie did not have in mind, makes conspirators Cor a fraudulent concealment of assets liable as for concealment from the trustee in future bankruptcy, whether that particular injury was intended or not.</p> <p>LKd. Note.—For other cases, see Conspiracy, Cent. Dig. § 35; Dee. Dig. § 25.*]</p> <p>4. Conspiracy (§ 47*)—Concealment of Bankrupt’s Assets—Evidence-Sufficiency.</p> <p>In a trial for conspiring to conceal assets in bankruptcy, evidence held insufficient to show that a particular defendant committed any unlawful act in the district.</p> <p>[Ed. Note.—For other eases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*]</p> <p>5. Criminal Law (§ 552*)—Proof Required to Convict.</p> <p>The rule applied that while it is unnecessary that any particular circumstance should of itself be sufficient to prove a criminal case beyond reasonable doubt, each circumstance offered as a part of the combination of proofs must be maintained beyond reasonable doubt, and at least be free from the condition of being as consistent with innocence as with guilt.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1257, 1259-1262; Dee. Dig. § 552.*]</p> <p>6. Criminal Law (§ 422*)—Conspirators—Declarations—Admissibility.</p> <p>In a trial for conspiracy to conceal assets of a bankrupt, the trial judge did not abuse his discretion in admitting evidence of acts and declarations by one defendant concerning another bankruptcy proceeding a year before the particular offense, where the evidence tended to show his opportunities for assisting in concealing goods.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.*]</p>

, Action by N. Leslie Carpenter and others, trading under the firm name of Carpenter, Baggot & Co., against A. W. Lawton. Judgment for plaintiffs, 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 to recover the sum of $4,621.69.

<p>Appeal and Error (§ 866*)—Instructed Verdict—Motion bt Both Parties ■ —Review.</p> <p>Where both parties moved for an instructed verdict without more, and the court directed a verdict for plaintiff on the theory that the case involved only a question of law, the court’s action would be sustained on appeal if there were any facts which would sustain the court’s application of the law.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475; Dec. Dig. § 866.*]</p>

In 'Error to the Circuit Court of the United States for the Southern District of West Virginia, at Charleston. Action by Gail V. Lynch against the Wylie Permanent Camping Company. Held: “In an application to set aside a judgment under section 390, R. S. 1881, it must not only appear that the party has a defense, but that the judgment was taken against him through his mistake, inadvertence, surprise, or excusable negligence.

Ejectment by Christian Seybold against Henry G. Davis and others. Judgment for plaintiff, and defendants bring error. This is an action of ejectment. The plaintiffs in error were the defendants below and will be hereafter referred to as the defendants, and the defendant in error (plaintiff below) will be referred to as the plaintiff.

In the matter of J. Gaines Phipps, bankrupt. From an order of the District Court, deciding certain matters in favor of Sam E. King arid M. W. Dickey, trustee, Rode & Horn bring error.

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Michigan. In the matter of the National Construction Company, bankrupt. On petition of the Hooven-Owens-Rentschler Company to review an order of the District Court.

Petition to Revise Proceedings oí, and appeal from, the District Court of the United States for the Northern District of West Virginia, at Philippi, in Bankruptcy. In the matter of C. D. Gillaspie, bankrupt.

Creditors’ bill by William D. Bidwell and another against W. A. Huff and others. From a decree allowing solicitor’s fees, defendants appeal.

<p>Mines and Minerals (§ 81*)—Indispensable Parties—Persons Necessary to Complete Determination.</p> <p>An oil company, which is assignee of an undivided half interest in an oil lease and is in exclusive possession and operating the property, is an indispensable party to a suit to establish the validity of a prior lease, the necessary effect of which would be to invalidate its own, and also, even if it were not a party, to interfere with its exclusive possession.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. § 211; Dee. Dig. § 81.*]</p>

Libel by the United States against Twenty-Five Packages of Panama Hats; Maximo Castillo, claimant. Judgment for claimant, and libelant brings error.

Action by Klwyn H. Grice against the Quaker Oats Company. There was a judgment for plaintiff, and defendant brings error. This cause comes here upon a writ of error to review a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below.

Bill by the Detroit Steel Cooperage Company against the Sisters-ville Brewing Company and others. Decree dismissing the bill, and complainant appeals.

Suit by Newton D. Backus and others against George D- Brooks and others. From a decree of the Circuit Court (189 Fed. 922) sustaining demurrers to the bill of complaint and dismissing the. bill, complainants appeal. Appeal from a decree sustaining demurrers filed by different defendants to a bill of complaint and dismissing such bill.

Suit by the New York Central & Hudson River Railroad Company against the Bank of Holly Springs, in which defendant filed a cross-bill. From a decree for defendant, complainant appeals.

' In Error to the Circuit Court of the United States for the District of Minnesota. Action at law by Francesco Eranchina, as administrator of the estate of Antonio Sirignano, deceased, against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiff brings error.

<p>1. Mechanics’ Liens (§ 132*)—Notice or Lien—Filing—Time.</p> <p>Under Lien Law New York (Consol. Laws 1909, c. 33) § 10, which requires notice of lien to he filed within 90 days after the last item of work or materials is furnished, touching up bare places on the brick floor of a railroad bridge, under a contract requiring a covering of hot waterproofing materials, did not constitute an item, if the bare places were produced, after the contractor’s work was fully done, by causes for which he was not responsible.</p> <p>[Ed. Note.—For other eases, see Mechanics’ Liens, Cent. Dig. §§ 190-207; Dee. Dig. § 132.*]</p> <p>2. Mechanics’ Liens (§ 132*)—Notice of Lien—Filing—Time. '</p> <p>A contractor for work on bridges built by a railroad company over highways is not entitled to a lien if notice of the lien was not filed within 90 days after the last item of work or labor was furnished, as required by Lien Law New York (Consol. Laws 1909, e. 33) § 10.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 190 207; Dec. Dig. § 132.*]</p> <p>3. Mechanics’ Liens (§ 132*)—Notice of Lien—Filing—Time.</p> <p>Furnishing wood blocks for the floor of a bridge over railroad tracks, after other blocks had been rejected as not conforming to contract, constituted a furnishing of material within Lion Law New York (Consol. Laws 1909, c. 33) § 10, which requires notice of lien to be filed within 90 days after the last item of work or material is furnished under a contract.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 190-207; Dec. Dig. § 132.*]</p>

Petition in admiralty by O’Brien Bros., a corporation, as owner of the scow Sunbeam, for limitation of liability. From the decree, libel-ant appeals. This a proceeding commenced by O’Brien Bros., a corporation, owner of the scow Sunbeam, to limit its liability for the alleged negligence of its agents and servants in causing the death of Emil H. Sfauolinger, an engineer, employed by the city of New York as inspector of the work in which the íhmbeam was being employed.

<p>Mandamus proceeding on relation of Charles A. Thatcher against the Honorable John M. Killits, District Judge.</p>

Action by the J. B. Sparrow Theatrical Amusement Company, Limited, against J. Herbert Mack. There was a judgment for defendant, and plaintiff brings error. This cause comes here upon writ of error to review a judgment in favor of defendant in error, who was defendant below. Plaintiff was the owner of a theater in Montreal. Defendant was the manager and proprietor of a burlesque show.

<p>In Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Action by Sadie J. Lombard against the Maguire-Penniman Company. Judgment for plaintiff, and defendant brings error.</p>

Actions by the Union Trust Company, as trustee, and others, by Eleanor Campbell O’Kelley, executrix, by Henry Rosenfeld and others, trustees, by George D. Bliss, Jr., executor, and by Alfred Friederich and others against August E. Muenter, Collector of Internal Revenue. Judgments for plaintiffs and defendant brings error.

Petition in admiralty for limitation of liability by the Baltimore & Boston Barge Company, owner of the steam tug Murrell. From a decree in favor of the Eastern Coal Company and others, claimants, petitioner appeals.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Trayna & Cohn, bankrupts. • On petition by Samuel Z. Shodorov to revise an order enjoining him from prosecuting an action against E. Crosby Kindleberger, receiver.</p>

<p>1. Depositions (§ 9*)—Testimony De Bene Esse—Right to Take.</p> <p>The right of a party under Rev. St. § 863 (U. S. Comp. St. 1901, p. 661), to have testimony taken de bene esse where the witness lives more than 100 miles from the place of trial, etc., cannot be taken away by a federal District Court or any judge.</p> <p>[Ed. Note.—For other cases, see Depositions, Cent. Dig. § 4; Dec. Dig. § 9.*]</p> <p>2. Equity (§ 349*)—Testimony in Open Court—Right to Compel.</p> <p>Under Supreme Court rule 67, as amended in 1861 (1 Black. C), so as to provide that, on notice by either party in equity that he desires the testimony to be adduced orally, the witnesses shall be examined before one of the examiners, and as amended in 1893 (149 U. S. 793, 13 Sup. Ct. iii, 37 „L. Ed. 1235), providing that, on notice, the court may permit the whole or any part of the evidence to be adduced orally in open court on final hearing, either party may compel the taking of all the testimony, except de bene esse, orally by giving notice; the court being empowered in its discretion to take the place of the examiner, as to the whole or any specific part of the evidence.</p> <p>[Ed. Note.—For other cases, see Equity, Ceut. Dig. §§ 731, 732; Dec. Dig. § 349.*] ■</p>

<p>1. Collision (§ 38*)—Rules of Navigation—Right to Assume Reopee Navigation.</p> <p>A privileged vessel is entitled to assume that, although the burdened vessel may at first propose to exchange rights of way, it will, if such proposal be rejected, conform to the rules of navigation.</p> <p>[Ed. Note.—For other cases,-see Collision, Cent. Dig. §§ 37, 38; Dec.Dig. § 38.*]</p> <p>2. Collision (§ 137*)—Suit Against United States—Special Act of Congeess Authorizing.</p> <p>Under a special act of Congress for the relief of the owner of a lighter injured in collision with a government vessel, and ,of her cargo, which was lost, authorizing a court of admiralty to pass on the case, and. if it should determine that the government vessel was in fault, providing that the vessel and cargo owners should be reimbursed for their damages and loss, recovery for loss of the cargo is not precluded, because it was insured and the insurance collected.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 291; Dec. Dig. § 137.*]</p>

<p>1. Bankruptcy (§ 160*)—“Act of Bankruptcy”—Preferences.</p> <p>Transfer of property by a debtor with intent to prefer creditors does not constitute an act of bankruptcy within Bankr. Act July 1, 1S9S, c. 541, § 3a, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), unless he is insolvent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 249-258; Dec. Dig. § 160.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.)</p> <p>2. Bankruptcy (§ 91*)—Preferences—Evidence—Sufficiency.</p> <p>On petition for an adjudication of bankruptcy, evidence held to sustain a finding that the alleged bankrupt was solvent when he made certain transfers.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 137-139; Dec. Dig. § 91.*]</p>

Action by John Hogan against the American Agricultural Chemical Company.. There was a judgment for defendant, entered on a directed. verdict, and plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the District of Kan.sas.</p> <p>Action by the Mexico International Land Company against C. H. Larkin. Judgment for defendant, and plaintiff brings error.</p>

<p>Collision (§ 95*)—Steam Vessels Crossing—Violation of Rules.</p> <p>A collision in East River between two tugs, with tows alongside, on crossing courses, held due solely to the fault of the one having the other on her own starboard side, and therefore bound to keep out of the way, while the other kept her course and speed, instead of which she gave a sign»] of two blasts and tried to cross the other's bows.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 200-202; Dee. Dig. S 95.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 O. C. A. 581. |</p>

<p>1. Patents (§ 30*)—Invention—Reduction to Practice.</p> <p>Drawings and verbal description of an invention, however completely they may show conception, • are insufficient to establish reduction to practice, unless filed-as an. application foy a patent, when they are accepted as a constructive reduction to practice.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 34; Dec. Dig. § 30.*]</p> <p>2. Patents (§ 76*)—Validity—Invention “on Salk” for Mokk Than Two Years.</p> <p>I‘roof of a mere contract to construct from plans, and to deliver in the future, a machine or manufacture not shown to have been previously built, is insufficient to establish that the machine or manulacture was “on sale” within the meaning of Rev. St. § 4886 (U. S. Comp. St. 1901, p. 3382), so as to defeat a patent therefor not applied for'until more than two years after such contract; was made, in the absence of any evidence that the invention had been reduced to practice at the time the executory contract was made.</p> <p>riSd. Note.—Por other cases, see Patents, Cent. Dig. §§ 92, 98; Dee. Dig. S 76.*]</p> <p>8. Patents (§ 191*)—Infringement—Attachment of Infringing Article to Realty.</p> <p>The attachment of patented machinery to a building so that it becomes part of the realty does not give rise to rights of use against the patentee.</p> <p>I Mil. Note.—Por other cases, see Patents, Cent. Dig. § 268; Dec. Dig. § 191.*]</p> <p>4. Courts (§ 303*)—Jurisdiction of Federal Courts—Suit Against State.</p> <p>A suit by the owner of a patent for a ventilating apparatus against county commissioners to enjoin the use of an infringing apparatus, which has been installed in a county courthouse in Massachusetts, is not a suit against the state so as to be beyond the jurisdiction of a federal court, under Const. Amend. 11, since the state has no title to the property affected, which is in tlie county, and although the building is to some extent devoted to state uses, it cannot bo assumed that an injunction would interfere with such use.</p> <p>1 lid. Note.—Por other cases, see Courts, Cent. Dig. §§ 191, 192; Dec. Dig. § 303.*</p> <p>What are suits against states within the meaning of constitutional amendment 11, see noto to Murray v. Wilson Distilling Go., 92 C. C. A. 25.]</p>

, ' , Suit in equity by the Computing Scale Company against the Standard Computing'" Scale Company, Limited. Decree for defendant, and complainant appeals.

<p>1. Patents (§ 312*)—Validity—Presumption and Burden of Proof.</p> <p>The grant of a patent is prima facie evidence that the patentee was the first inventor of the device or discoverer of the art or process de-' scribed, and of its novelty, and the burden rests on a defendant denying its validity to establish such defense beyond a reasonable doubt.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.»</p> <p>Presumptions and burden of proof of invention, see note to American Sulphite Pulp Co. v. De Grasse Paper Co., 87 C. C. A. 294.]</p> <p>2. Patents (§ 328*)—Validity and Infringement—Process of Casing Wood with Metal.</p> <p>The Beyrle patent, No. 887,995, for a process of easing wooden moldings, etc., with metal, by means therein described, while for an improvement in the art, was not anticipated, and discloses invention, the method shown effecting a saving in labor and time and in material; also, held infringed.</p>

Suit in equity by Graff, Washbourne & Dunn against Frederick H. Webster, and Hawley J'. Webster. Decree for complainants, and defendants appeal. The decree of the Circuit Court held valid and infringed two design patents, granted to Charles Graff on May 18 and May 25, 1909, respectively, for a design for a dish and for a border section of a dish, preferably made of silver. ■ The opinion below is reported in 189' Fed. 902, where the designs are reproduced.

Northern District of Illinois. Suit in equity by the Five Poultry Transportation Company against the Ryan Gar Company and the Femac Carriers’ Company for infringement of patent No. 539,229 to Francis X. Mudd, May 14, 1895, for an improvement in poultry cars, assigned to complainant. Decree for complainant, and defendants appeal.

<p>Tbade-Mabks and Trade-Names (§ 10*)—Names Subject to Appropriation —Names oe Patented Article.</p> <p>The rule applied that the owner of a patent cannot, by registering the name of the patentee, by which the patented article was known, acquire the exclusive right to use the same as a trade-mark for such article after the patent has expired. Gray v. Grinberg, 159 Fed. 138, 86 G. C. A. 328, and G. & G. Merriam Co. v. Ogilvie, 170 Fed. 167, 95 G. G. A. 423, applied.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Gent. Dig. § 14; Dec. Dig. § 10.*]</p>

In Equity. Suit by the Moore Filter Company against the Tonopah-Belmont Development Company for infringement of two patents issued to George Moore, No. 748,088, granted December 29, 1903, for improvement in filtering system, and No. 764,486, granted July 5, 1904, for improvement in filtering processes. On final hearing.

<p>Patents (§ 328*)—Validity and Infringement—Design fob Clothesbrtjsh.</p> <p>The Webster design patent, No. 40,789, for a design for a elothesbrush, known in the trade as a “thin model” brush, discloses novelty and a patentable degree of artistic invention; also held infringed.</p>

<p>In Equity. Suit -by Clarence Omeliah against the American Cap Front Ai anufácturing Company. On motion to punish defendant and F. B. Frankenberg for contempt.</p>

Suit by the Louisville & Nashville Railroad against the Interstate Commerce Commission, respondent, the United States intervening respondent, to annul an order made by the commission. For opinion of Interstate Commerce Commission, see 17 Interst. Com. Comm. R. 231.

<p>In Equity. Suit by William Wrigley, Jr., Company against L. P. Larson, Jr., Company and L. P. Larson, Jr. On motion for preliminary injunction.</p>

<p>1. Judgment (§ 707*)—Res Judicata—Discharge of Bankrupt—Issues—Estoppel.</p> <p>A judgment, in an action in a state court to recover a preferential payment to which the bankrupt was not a party, does not operate as an estoppel or a bar against the bankrupt seeking a discharge.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1230; Dee. Dig. § 707.*]</p> <p>2. Bankruptcy (§ 433*)—Discharge—Objections—Sufficiency.</p> <p>A specification that a bankrupt lias committed an offense punishable by imprisonment under the Bankruptcy Daw, in that he did knowingly make false oaths in relation to proceedings in bankruptcy, interposed false answers to the petition for his adjudication as a bankrupt, made false oaths as a witness in the proceeding resulting in his adjudication in bankruptcy, and that on his examination to ascertain what property belonged to the bankrupt estate he made false answers under oath, does not set forth the offense defined in Bankruptcy Act July 1, 1898, c. 541, § 29, 30 Stat. 554 (ü. S. Comp. St. 1901, p. 3133), since it fails to state, either in the words of the statute or in equivalent words, that, the bankrupt intentionally and fraudulently made a false oath in any proceeding in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 712-728; Dec. Dig. § 413.*]</p> <p>3. Bankruptcy (§ 41.5*')—Discharge—Objections—Hearing.</p> <p>A special master directed to take proof and make a report on exceptions to a bankrupt’s petition for discharge must exercise an independent judgment on the fads brought before him, and should not follow the judgment of another tribunal on facts brought before it, though the identical question may have been tried out before such tribunal on substantially the same facts.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 698-709, 719, 723-728; Dec. Dig. § 415.*]</p> <p>4. Bankruptcy (§ 435*)--Discharge—Objections—Finding of Special Master—“False Oatii.”</p> <p>A finding of a special master, directed to take proof and make report, on exceptions to a bankrupt’s petition for discharge, that in verifying the answer and in giving his testimony the bankrupt made a false oath either in one or the other, is not a finding that the bankrupt made a “false oath” within Bankruptcy Act July 1, 1898, c. 541, § 29. 30 Stat 554 (U. S. Comp. St. 1901, p. 3433), and it does not justify a refusal to discharge him.</p> <p>[Ed. Note.—For oilier cases, see Bankruptcy, Cent. Dig. §§ 698-709, 719, 723-728; Dec. Dig. § 415.*]</p>

<p>In the matter of Joseph Noethcn, individually and as surviving partner of the firm of Heyl & Noethen, bankrupt. Submission on agreed facts.</p>

<p>1. Bankruptcy (§ 140*)—Adverse Claivs to Property—Rights of Trustee.</p> <p>A trustee in bankruptcy has the rights of the bankrupt only as to property adversely claimed by a third person.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 221, 225; Dec. Dig. § 140.*]</p> <p>2. Bankruptcy (§ 207*)—Attachment Liens—Preservation for Benefit of Estate.</p> <p>Where it is desired to preserve an attachment or execution lien on the property of a bankrupt for the beiieht of the estate, under Bankruptcy Act July 1, 1898, c. 541, § 67f, 80 8tat. 565 (U. S. Comp. St. 1901, p. 3450), steps must be taken to that end before the lien is discharged, and the subrogation of the trustee as plaintiff in' the attachment suit after the lien has been discharged as the effect of the adjudication does not revive the lien.</p> <p>[Ed. Note.-—For other cases, see Bankruptcy, Dec. Dig. § 207.*]</p>

<p>1. Indictment and Information (§ 125*)—Sherman Anti-Trust Act—Construction—Indictment.</p> <p>Sherman Anti-Trust Act (Act July 2, 1890, c. 647, § 1, 26 Stat. 209 [U. S.-Comp. St. 1901, p. 3200]) provides that every‘person who shall make any contract in restraint of trade or commerce or engage in any such combination or conspiracy shall be deemed guilty of a misdemean- or, and, on conviction, shall be punished, etc. Held, that the offense under such section permits in one count of an indictment an allegation of hut a single transaction, to wit, the allegation of making one contract or engaging in one combination or conspiracy, although such a combination or conspiracy when once effected may he continuous.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p> <p>2. Indictment and Information (§ 150*)—Demurrer.</p> <p>Where the questions raised by demurrer to an indictment are both intricate and doubtful, the demurrer may be overruled, and their decision postponed until the trial on the merits. Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 497; Dee. Dig. § 150.*]</p> <p>S. Corporations (§ 369*)—Officers—Criminal Liability.</p> <p>Officers or directors of a corporation cannot protect themselves from criminal liability behind the corporate organization where they are the actual, present, and efficient actors in the commission of the offense.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1510; Dec. Dig. § 369.*]</p> <p>4. Criminal Law (§ 59*)—Misdemeanors—Principals.</p> <p>All parties who are active in promoting a misdemeanor, whether agents or not, are indictable as principals.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 71-74, 76-81; Dec. Dig. § 59.*]</p> <p>5. Indictment and Information (§ 106*)—Allegation of Documents.</p> <p>Where, in an indictment, it is necessary to plead numerous documents which in themselves were not directly the subject-matter of the litigation, it is not necessary to set out each instrument by its tenor.</p> <p>[Ed. Note.—For other cáses, see Indictment and Information, Cent. Dig. § 283; Dec. Dig. § 106.*]</p> <p>6. Monopolies (§ 31*)—Indictment—Intent.</p> <p>The rule applied that an indictment for an illegal combination and conspiracy must necessarily allege facts in detail to enable the court to determine for itself whether or not the alleged combination or conspiracy is to be carried out by what are in truth unlawful methods.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 20; Dee. Dig. § 31.*]</p> <p>7. Monopolies (§ 10*)—Sherman Anti-Trust Act—Constitutionality.</p> <p>Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St.. 1901. p. 3200]), making it a criminal offense to make any contract or engage in any combination or conspiracy in restraint of interstate trade or commerce, or to monopolize, or attempt to mouoijolize, or conspire with any person to monopolize, any part of such trade or commerce, was not unconstitutional for indefinitenoss in so far as sought to form' the basis of a criminal proceeding.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 9; Dec. Dig. § 10.* 1</p> <p>8. Inbictxient and Information (§ 99*)—Incorporation by Reference.</p> <p>The rule applied that later parts of an indictment may incorporate the details of matters properly set out in the earlier parts by reference, subject, however, to the rule that duplicity and repugnancy must be avoided.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 270, 270% ; Dec. Dig. § 99.*]</p> <p>9. Monopolies (§ 10*)—Restraint of Trade—Statutes—Construction.</p> <p>Sherman Anti-Trust Act (Act July 2, 1890, c. 047, § 1, 26 Slat. 20.9 [U. S. Comp. St. 1901, p. 8200J) is subject to the rule that statutes are not to be interpreted to change the common law except so far as a purpose to do so is necessarily implied; therefore it is hdij, lhat the act xvas not intended to prohibit those minor contracts in partial restraint of trade which the common law had affirmed as reasonable, but xvas to be construed in accordance with the common law, developed along reasonable lines in accordance with modem commercial advance.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 9; Dee. Dig. § 10.*]</p> <p>10. Monopolies (§ 20*)—Combination in Restraint of Trade—Nonoompeting Industries.</p> <p>Combination of several corporations, each selling or leasing machinery intended for different operations, not competing, but supplementing each other, does not ordinarily constitute a monopoly in restraint of trade.</p> <p>[Ed. Note.—For other cases, see Monopolies, Dec. Dig. § 20.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4574.]</p> <p>11. Committee of Privy Council—Decisions—Concluslveness—Monopolies —Demurrer.</p> <p>The business of the United Shoe Machinery Company is conducted by a system of leases, which are substantially the same as those described in United Shoe Machinery Company v. Brunet [1909] App. Cas. 390. It is claimed in these indictments that the provisions of those leases are unreasonable, and unlawfully operate to build up the alleged monopoly of the United Shoe Machinery Company. It is claimed by the respondents that United Shoo Machinery Company v. Brunet should be applied here, and that in harmony therewith the leases in question here should bo declared valid. United Shoe Machinery Company v. Brunet was decided by a very able court, yet it xvas a decision of ihe judicial committee of iho Privy Council, and therefore not authoritative as the decisions of . the established courts of Great Britain. Independently of these considerations, the pleadings in these indictments do not permit us to so apply on this demurrer United Shoe Machinery Company v. Brunet to such extent ns to support the demurrer.</p>

<p>1. Explosives (§ 7*)—Injuries prom Accidental Explosions—Diabilitv op Oarriers.</p> <p>In modern times when vast quantities of substances liable to explode, such as dynamite, gunpowder, and petroleum products, are used and required to be transported, a carrier of such explosives cannot be held an insurer against injuries which may result to others from their accidental explosion while in course of transit, but is liable only on the ground of negligence.</p> <p>[Ed. Note.—For other cases, see Explosives, Gent. Dig. § S;- Dee. Dig, § 7.*]</p> <p>2. Explosives (§ 7*)—Injuries from Accidental Explosion- -Liability.</p> <p>The question whether or not a railroad company is responsible for damage caused by an explosion of dynamite delivered into its possession as a carrier, and which was in a car standing on a pier, depends in the first place on whether the locality where it was kept and all the existing circumstances made it a nuisance per se, and, if not, whether there was negligence in leaving it or in the manner of handling and keeping it on the pier.</p> <p>[Ed. Note.—For other cases, see Explosives, Cent. Dig. § 3; Dec. Dig. I 7.*]</p> <p>3. Explosives (§ 7*)—Injuries from Accidental Explosion—Liability.</p> <p>Respondent railroad company transported a car containing dynamite to Jersey City, where it was run out to the end of one of the company’s piers for the purpose of having the dynamite transferred to a steamer expected to sail the next day. The sailing was delayed from day to day, and, as customary, the dynamite was left to be loaded last. On the sixth day after its arrival while it was being transferred to a lighter employed by the shipper, an explosion occurred which caused loss of life and large damage to property, including the wrecking of libelant’s ship, which lay on the other side of the pier. The bill of lading provided that property not removed within 48 hours might be held by the company in storage or stored in a public warehouse at the owner’s expense, but it was the custom to permit property intended to be loaded on vessels for foreign shipment to remain in the cars for ten days without demurrage. Held that, at the time of the explosion, the dynamite was in course of transportation and not in storage, and, it appearing that respondent was not chargeable with any negligence or violation of law as to the place where it was left, that it was not liable for the injuries caused by the explosion; also held that there was no evidence to charge either the maker of the dynamite, which was also the shipper and consignee, or the lighterage contractor with negligence, the cause of the explosion not being shown.'</p> <p>[Ed. Note.—For other cases, see Explosives, Cent. Dig. § 3; Dec. Dig. I 7.*]</p> <p>4. Explosives (§ 7*)—Injuries from Accidental Explosion—Liability of Carrier.</p> <p>In the absence of any statute on the subject, a railroad company cannot be required to establish and maintain a separate and isolated pier for the transference from its line to vessels of explosives.</p> <p>[Ed. Note.—For other cases, see Explosives, Cent. Dig. § 3; Dec. Dig. § 7.*]</p> <p>5. Commerce (§ 8*)—Interstate Commerce—Carriage of Explosives—Regulations Governing.</p> <p>Section 233 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1135 [IT. S. Coxnp. St. Supp. 1911, p. 1660]), by authority of which the Interstate Commerce Commission has formulated and issued regulations for the transportation of explosives by land, governs as to all such transportation in interstate or foreign commerce to the exclusion of state laws.</p> <p>[Ed. Note.—For other cases, see Commerco, Cent. Dig. § 5; Dec. Dig. § 8.*]</p>

<p>1. Salvage (§ 1*)—Towage (§ 1*)—Distinction Between “Salvage Service” and “Towage Service.”</p> <p>■ A “salvage service” is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger, either present or to be reasonably apprehended, while a “towage service” is one which is rendered for the mere purpose of expediting her voyage, without reference to any circumstances of danger.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 1, 3, 4; Dec. Dig. SI;* Towage, Cent. Dig. § 1; Dee. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6316-6318; vol. 8, p. 7018.]</p> <p>2. Salvage (§ 26*)—Nature op Service.</p> <p>The value of a service performed is not to be estimated in the light of subsequent events, but of the facts which seem to surround it at the time.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 57-64, 68, 84; ■ Dee. Dig. § 26.*]</p> <p>3. Salvage (§ 47*)—Towage (§ 8*)—Action por Compensation—Issues and Proop.</p> <p>■ Where the nature of a service rendered was in fact salvage, the burden rests on one who claims it to have been a towage service to plead and prove a binding contract for the towage.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. § 121; Dec. Dig. § 47 ;* Towage, Dec. Dig. § 8.*]</p> <p>4. Compromise and Settlement (§ 17*)—Salvage Service—Rights op Crew —Settlement by Owner.</p> <p>While the owner of a vessel which has performed a salvage service may settle for the vessel’s share in the compensation, he cannot exclude the crew from obtaining theirs.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 66-74; Dec. Dig. § 17.*]</p> <p>5. Salvage (§§ 13, 34*)—Nature op Service—Moving Vessel prom Fire—! “Salvage Service.”</p> <p>Respondent steamship was moored to the pier of an oil company, extending from its yards in which there were a large number of tanks, when one of the tanks exploded with great violence, the oil became ignited, and created a large fire. The tank was about 1,400 feet from the vessel, but there were other tanks between and 15,000 cases of oil on the pier awaiting loading on the ship. It was dark, and the engines of the vessel, were not connected with the steam. Held, that the services of a tug which towed her away to a safe place of anchorage were salvage services, although the fire did not in fact reach the pier, and that the crew wore entitled to recover salvage in the sum of $600; the owner having settled his claim.</p> <p>[Ed. Note.—Eor other cases, see Salvage. Gent. Dig. §§ 28-25, 80-83; Dec. Dig. §sj 13, 34.*</p> <p>Salvage awards in federal courts, see note to The Lamington, 80 G. O. A. 280.1</p>

<p>In the matter of Harry Arenson, a bankrupt. Heard on objections to discharge the bankrupt.</p>

<p>Street Railroads (§ 55*)—Rights of Purchaser at Foreclosure Sale-Construction of Decree.</p> <p>A petition by the purchasers at foreclosure sale of street railroad property which had been operated by receivers for an order requiring the receivers to pay such proiiortion of certain charges against the property, such as taxes and sums due under leases falling due after the property was turned over, as accrued prior to that time, as operating expenses equitably chargeable to the receivers, denied on the ground that by the decree under which the sale was made the purchaser was required to pay such charges and under a proper construction thereof, was not entitled to have the same prorated, as to most of the items claimed, and on the further ground that it did not yet appear that the receivers would, have any surplus applicable to such payment.</p> <p>[Ed. Note.—For other cases, see .Street Railroads, Cent. Dig. § 134; Dec. Dig. § 55.*]</p>

<p>1. Indictment and Information (§ 125*)—Duplicity.</p> <p>An indictment under Pen. Code, § 213 (Act March 4, 1909, c. 321, 35 Stat. 1129 [U. S. Comp. St. Supp. 1911, p. 1652]), punishing the depositing in the United States mails of letters concerning lotteries, which alleges that accused “deposited or caused to be deposited in the post office” a letter set out, is not bad for duplicity.</p> <p>[Ed. Note.—Eor other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dee. Dig. § 125.*]</p> <p>2. 'Post Office (§ 48*)—Offenses—Use of Mails foe Lottery Purposes—' Indictment.</p> <p>An indictment, alleging that accused did “unlawfully and knowingly deposit and cause to be deposited in” a post office a letter concerning ' a lottery, sufficiently charges knowledge of accused of the contents of the letter; the word “knowingly” qualifying not only the verb “deposit,” but the whole matter described subsequently in the indictment.</p> <p>[Ed. Note.—Eor other cases, see Post Office, Cent: Dig. §§ 66-80; Dec. Dig. § 48.* . .</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. G. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p> <p>3. Lotteries (§ 3*)—Acts Constituting.</p> <p>A company operated a scheme containing investment and loan features. The opportunity to obtain a loan was determined to a large extent by the way in- which the applications were received at the office of the company, and where a number of applications were received at the same time they were put ou the records of the company as they were opened nnd recorded. The investment features were not particularly attractive, and the main feature of the scheme was the loan feature, and the proposed loan contracts contained attractive terms. iSeld, that the scheme was a lottery because of a consideration and because of the existence of chance, based on obtaining a low number and thereby obtaining a loan, and because the obtaining of a loan at an early date was the prize in the scheme, since to constitute a lottery there must be a consideration, chance, and prize.</p> <p>[Ed. Note.—Eor other cases, see Lotteries, Cent. Dig. § 3; Dec. Dig. § 3*</p> <p>. ’ Eor other definitions, see Words and Phrases, vol. 5, pp. 4245-4252; vol. 8, pp. 7710, 7711.]</p>

<p>1. Shipping (§ 16*)—Forfeiture op Vessel poe False Registry.</p> <p>In case of the forfeiture of a vessel for false registry, under Rev. St. §§ 4143, 4163, or 4189 (U. S. Comp. St. 1901, pp. 2S09, 2825, 2836), the forfeiture dates from the time of seizure, and not from the date of the illegal act.</p> <p>TEd. Note.—For-other cases, see Shipping, Cent. Dig. §§ 30-44; Dec Dig. § 16.*]</p> <p>2. United States (§ 76*)—Disks—Priorities.</p> <p>Where a vessel was seized, forfeited, and sold for false registry after she was loaded and was about to sail on a voyage, the fund realized from the sale is chargeable with the payment of such claims as constitute maritime liens such as for seamens’ wages and for supplies and of claims of shippers and passengers for freight and passage money paid for the voyage, but claims for money deposited with the managing owner to pay the passage of certain persons on the return voyage are not allowable because whether the relation of ship and passenger would ever arise was a matter of such uncertainty that no present lien arose.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. § 59; Dec. . Dig. § 76.*]</p> <p>3. Subrogation (§ 23*)—Diens—Priorities.</p> <p>When a vessel is forfeited for false registry one who in her behalf had paid the head tax due on alien passengers brought in by her, which is made a lien on the vessel by Immigration Act February 20, 1907, c. 1134, | 1, 34 Stat. 898 (U. S. Comp. St. Supp. 1911, p. 499), is entitled to be subbrogated to such lien and to payment from the proceeds of the vessel.</p> <p>[Ed. Note.—For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dee. Dig. § 23.*]</p> <p>4. Maritime Diens (§ 37*)—Priorities.</p> <p>A purchaser of a part interest in a vessel after she has become liable to forfeiture for false registry, but before her seizure, conceding that he might under some conditions be entitled to a standing as a lienor, c’annot be allowed to displace maritime liens on the vessel.</p> <p>[Ed. Note.—For other cases, see Maritime Diens, Cent. Dig. §§ 58-70; Dec. Dig. § 37.*]</p>

<p>Application to punish F. M. Shores, Sheriff of Blackhawk County, Iowa, for contempt of court.</p>

In the matter of Nicholas Camelo, a bankrupt. Application for an order to vacate an order staying the prosecution of a suit in the Supreme Court of the state of New York by Joseph Payette and another as plaintiffs against the bankrupt.

<p>Corporations (§ 316*)—Transactions with Directors—Validity.</p> <p>A Corporation has no right of action against directors who sold to it all 'the outstanding stock of another company at an undisclosed profit, though-a popular stock subscription was contemplated, and though associates of the directors did not know of an additional profit obtained by the managers of their syndicate.</p> <p>I Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1401-1415; Dec. Dig. § 316*</p> <p>Acquisition by corporation of stock of other corporation, see note to Anglo-American Land Mortgage & Agency Co. v. Lombard, 68 C. C. A. 120.1</p>

<p>Bankruptcy (§ 100*)—Ad.judication on Involuntary Petition—Vacation —Grounds.</p> <p>A bankrupt who expressly agreed that the prayer of the involuntary petition in bankruptcy should be granted, and that a receiver should be appointed, who made no defense to the adjudication in bankruptcy, and who tiled his schedule in bankruptcy and appeared generally before the court in person and by attorney throughout the various stages of the proceedings, was not-entitled to a vacation of the adjudication by merely showing that he was induced to go into bankruptcy on the idea that the bankruptcy proceedings would remain in statu quo and that he would be allowed as was done to use properly which he liad used in specified work, but he must show that fraud was practiced in bringing about his consent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dee. Dig. § 100.*]</p>

<p>1. Aliens (§ 61*)—Naturalization—Right to.</p> <p>Under the naturalization law. -which authorizes naturalization only of white persons or Africans, or persons of African descent, an alien’s right to citizenship depends upon parentage and blood, and not upon nationality or status.</p> <p>[IM. Note.—For other cases, see Aliens, Cent Dig. §§ 119-122; Dec. Dig. § 61.*]</p> <p>2. Aliens (§ 61*)—Naturalization—“White Person.”</p> <p>An alien born in Japan, at a place under German dominion, of a German fatlier, but of a .i ayanese mother, is not entitled to naturalization as a “white person.”</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § Cl.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7446, 7447.]</p>

<p>At Law. Action by Líiura Warren Howard against Margaret A. Carroll</p>

<p>Bankruptcy (§ 293*)—Suits by Trustee—Jurisdiction of Bankruptcy Court.</p> <p>Under Bankr. Act July 1, 1S98, c. 541, § 23b, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3431), as amended by Act June 25, 1910, c. 412, § 7, 36 Stat 840, which provides that suits by trustees shall only be brought in courts where the bankrupt might have brought or prosecuted them, unless by consent of the defendant “except suits for the recovery of property under * * * section 70, subdivision e,” a suit to avoid a transfer of property under the latter section, as amended by Act Eeb. 5, 1903, e. 487, § 16, 32 Stat. 800 (U. S. Comp. St. Supp. 1909, p. 1316), which gives courts of bankruptcy and state courts concurrent jurisdiction thereunder, may be maintained by a trustee in a court of bankruptcy in another state against a defendant residing therein without his consent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dee. 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>

In the matter'of the O’Gorman Company, bankrupt. On petition for review of an order of the referee allowing William Schloss’ claim.

<p>In Equity. Suit by Mary E. Mcllhenny and others against Frank P. Hathaway and others. On demurrer to the complaint.</p>

<p>In the matter of Meyer & Bleuler, bankrupts.</p>

<p>Application by Frederico Barbarossa for a writ of habeas corpus for the discharge of aliens from custody.</p>

<p>Action by E. H. Sawyer against Hugo Osterhaus.</p>

<p>In Error to the District Court of the United States for the District ®f Minnesota.</p> <p>Information by United States of America to forfeit Eleven Thousand One Hundred arid Fifty Pounds of Butter claimed by the Milton Dairy Company. From a judgment of dismissal (188 Fed. 157), the prosecution brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action by the Guaranty Trust Company of New York against Hugo A. Koehler and others. From the judgment (187 Fed. 192), both parties bring error.</p>

Iii Error to the Circuit Court of the United States for the District of South Carolina, at Charleston. Action by P. P. Einn against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. On the 17th day of November, 1905, the plaintiff below, Finn, had been for a number of years, in the employ, as engineer, of the railroad company, defendant below. At the time, however, lie was suspended under charges of an alleged dereliction of duty.

<p>Appeal from thé Circuit Court of the United States for the Southern IHvision of the Eastern District of Michigan.</p> <p>Petition by Samuel Eewis for a writ of habeas corpus against G. Oliver Erick, United States Immigration Inspector. Order for discharge of petitioner, and respondent appeals.</p> <p>This appeal is from a judgment in habeas corpus holding a warrant for deportation to be void. It was agreed in the court below that the facts of the case might be considered as they are stated in the opinion. The opinion shows (189 Fed. 146) that on November 17, 1910, Lewis “went across the river, from Detroit, to Windsor, remained not more than an hour or so, and brought back with him, into the United States, a woman claimed to be his wife. On this occasion he made to the immigration officers a statement as to the woman and her recent history, some part of which statement was concedodly untrue. In December following he was indicted by the grand jury for violation of section 3 of the immigration law, * * * the sole charge being that in bringing this woman across the river on November 17th she was by him imported for an immoral purpose. This indicbnent duly came on to be tried in the District Court of this district, and on March 23, 1911, the trial jury rendered a verdict of not guilty. The issue was whether the woman was in fact, or was believed to be, his lawful wife. On November 24, 1910, he was arrested by an immigrant inspector upon a warrant of arrest issued by tbe Department of Commerce and Labor, specifying, as its moving causes (1) that he had been convicted of or admitted having committed a felony or other crime or misdemeanor involving moral turpitude prior to his entering the United States; (2) that ho had brought into the United States a woman for immoral purposes; (3) that at the time of his entry (November 17, 19LO) he was likely to become a public charge; and (4) that he entered without inspection, and hence was unlawfully in the country. Certain hearings and examinations were held before the inspectors. * * * What I understand to be a complete file copy of the department proceedings does not show any formal finding by the department upon the charges made, but that is, probably, not material, because on February 14, 1911, the Secretary of Commerce and Labor issued his warrant of deportation, reciting that, after due hearing, he had become satisfied that Lewis, who landed at Detroit, Mich., from Canada, November 17, 1910, was in thie country in violation of the immigration law as amended March 26, 1910, in this, to wit: ‘That the said alien was a member of the excluded classes, in that he has been convicted of and admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States; that he procured, imported, and brought into the United States a woman for an immoral purpose; that at the lime of his entry into the United States he was a person likely to become a public charge; and that he is unlawfully within the United States, in that he secured admission by false and misleading statements thereby entering without the inspection contemplated by law; and may be, deported in accordance therewith.’ Thereupon, the warrant directed that he be taken to New Vork and be from there deported to Kussia.”</p> <p>After alluding to a stay directed by the department pending proceedings under the Indictment and also to a further stay for ten days to enable Lewis “to submit additional information,” the trial judge said: “Lewis, by his attorney, submitted to the department, at Washington, a showing that he had been acquitted on the indictjnent, and also some character evidence, April 13th, and it is to be assumed after this additional showing the Secretary withdrew the stay, and directed Mr. Frick (the inspector) to execute the warrant immediately.”</p>

Habeas corpus by Augusto Siniscalchi against Thomas Thomas, Immigration Inspector of the Department of Commerce and Labor of the United States. From an order dismissing the petition, petitioner appeals. This is a proceeding in habeas corpus. The court below dismissed the petition, and appeal was taken. Appellant is an Italian, who, as found by the Secretary of Commerce and Labor, landed in this country at some unknown port after February 4, 1909.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Action by the United States against Lizzie Jacobs and others. Judgment for plaintiff for a part only of the relief, and it appeals.</p>

Suit in admiralty by the Cuban Steamship Company, Limited, owner of the steamship Cayo Domingo, against the Galveston Towing Company and others. Decree for libelant, and respondents appeal.

<p>1. Theaters and Shows (§ 6*)—Keepers of Wild Animals.......Duty of Care to Prevent Injuries to Persons.</p> <p>A keeper of wild animals for exhibition is bound to the exercise of a high degree of care to prevent injury by them to persons who attend such exhibitions.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Cent. Dig. § 6; Dee. Dig. § 6.*]</p> <p>2, Theaters and Shows (§ (>*)—Injury by Wild Animals—Duty of Cake to Prevent.</p> <p>Plaintiff went to defendant’s wild animal exhibition for the purpose of going home with a friend who was employed as a trainer or exhibitor. At the request of her friend, she was admitted, and while waiting for her friend after the performance a lioness readied through the bars of a cage and seized her by the head, seriously injuring her. Held, that she was not a trespasser, but was lawfully in the placo with defendant’s consent, and that he owed the same degree of care to protect her from injury as to other visitors.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*]</p> <p>3. Evidence (§ 204*)—-Admissions.</p> <p>In an action to recover damages for an injury inflicted by a wild animal owned and kept by defendant, statements made by defendant in letters to employes that the injury was due to carelessness were admissible as admissions against interest.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 697, 698; Dec. Dig. § 204.*]</p> <p>4. Theaters and Shows (§ 6*)—Action fob Injuries by Wild Animals— Instructions.</p> <p>In such action, an instruction that, if defendant used such care as was ordinarily used by showmen, plaintiff could not recover, was properly refused.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Cent. Dig. § 6; Dee. Dig. § 6.*]</p> <p>5. Theaters and Shows (§ 6*)—Action fob Injuries by Wild Animals— Instructions.</p> <p>Instructions asked as to negligence and contributory negligence in an-action to recover damages for injuries inflicted by wild animals kept by defendant for exhibition purposes, considered, and held properly refused.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*]</p>

Tn Error to the Circuit Court of the United States for the Eastern District of North’ Carolina, at New Bern. Action at law by M. E. Eure and S. W. Harris, trading as Eure, 1 Larris & Co., against E. W. Sabiston. Judgment for defendant, and plaintiffs bring error.

<p> (Syllabus by the, Court.) </p> <p>JL Master and Servant (§ 203*) —Injury to Servant—Assumption of Risk.</p> <p>A servant, by entering and continuing in the employment of a master without complaint, assumes the ordinary risks and dangers'of the employment and the extraordinary risks and dangers which he knows and appreciates. ,</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*] '</p> <p>2. Master and Servant (§ 217*)—Assumption of Risk of Master’s Negligence.</p> <p>Although the risk of the master’s negligence and of its effect unknown to the servant is not one of the ordinary risks of the employment which he assumes, yet, if the negligence of the master or its effect is known and appreciated by the servant, or is “so patent as to be readily observed by him by the reasonable use of bis senses, having in view his age, intelligence, and experience” (United States Smelting Company v. Parry, 166 Fed. 407, 410, 92 C. C. A. 159, 162), and he enters or continues in the employment without objection, he elects to assume the risk of it, and he cannot recover for the damages it causes.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 574 600; Dec. Dig. § 217.*]</p> <p>8. Master and Servant (§ 219*)—Appreciation of Danger—'When Servant Estopped from Denying.</p> <p>When a defect is obvious or “so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience,” and the danger and risk from it are apparent, he cannot be heard to say that he did not realize or appreciate them.</p> <p>TEd. Note.—For other eases, see Master and Servant, Cent. Dig. §§ 610-624; Dee. Dig. § 219.*[</p> <p>4 Master and Servant (§ 155*)—No Duty to Warn of Apparent Dangers.</p> <p>No duty rests on the master to warn a servant of defects, risks, or dangers which are “so patent as to be readily observed by him by the reasonable use of bis senses, having in view his age, intelligence, and experience.”</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. § 155.*]</p> <p>5. Master and Servant (§ 222*)—Assumption of Risk—Master’s Order No Release Where Defects and Dangers Obvious.</p> <p>The direct order of the master or of the foreman to the servant to work at a specified place, or with certain appliances, does not release him from his assumption of the apparent risks and dangers of defects in the place, structure, or appliances that are “so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.”</p> <p>[Ed. Note.—For other cases, see Master and Servant, Gent. Dig. §§ 648 ■ 651; Dec. Dig. § 222.*]</p> <p>6. Master and Servant (§ 203*)—Assumption of Risk Inheres in Employment—No Further Pleading or Proof Requisite.</p> <p>The agreement of a servant to assume the ordinary risks of his employment and the extraordinary risks thereof that are apparent inheres in and is an inextricable part of his contract of employment, and when the latter is proved or admitted the assumption of these risks is proved, and no pleading or proof on the part of the defendant Is necessary to establish it.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 643; Dec. Dig. § 203.*]</p> <p>7. Master and Servant (§ 288*)—Assumption op Risk—Directed Verdict When Demanded.</p> <p>When the uncontradicted evidence discloses the fact that the defects in the place, structure, or appliances were “so patent as to be readily observed by the plaintiff by the reasonable use of his senses, having in view his age, intelligence, and experience,” , and the risks and dangers from them were apparent, and the servant entered upon and continued in the service without complaint, his assumption of the risk is conclusively established, and .the court should instruct the jury to return a verdict for the defendant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1005, 1068-1088; Dee. Dig. § 288.*]</p> <p>8. Master and Servant (§ 219*)—Assumption op Risks—Facts—Conclusion.</p> <p>An experienced carpenter, in the employment of the defendant, who was receiving top wages, was directed to assist in placing joists upon the walls of a building 25 feet high, the support of which in the middle consisted of a stringer composed of pine lumber 2x6, sustained by posts made of two pieces of lumber 2x8, spliced together and braced, to which the stringer was nailed. Joists had been placed on the walls and stringer over one-third of the building. The servant knew the size and kind of material of which the posts and stringers were composed, how they were made and fastened together, and he had done work of this kind before. There was no latent defect in the structure, and its method of construction and component parts were plain and obvious. He went out on the stringer with another workman beyond the joists, drew up 8 or 10 pieces of lumber to make 4 or 5 joists, and he and his fellow workman were nailing these together on the stringer, when an upright below gave way and he fell.</p> <p>Held, the defects of the structure were obvious, the dangers of its use apparent, and the servant assumed the risk.</p> <p>[Ed. Note..—Eor other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Contracts (§ 147*)—Construction-—Intention of Parties tiie Desideratum-.</p> <p>The purpose of a writter agreement is to record the intention of the parties.</p> <p>The object of all construction is to ascertain and enforce the intention of the parties, the sense and meaning of the words they used upon which their minds mot when they made it, and the court should, so far as possible. put itself in the place of the parties to find this intention.</p> <p>fTlcl. Note.—For other cases, see Contracts, Cent. Dig. §§ 730, 748; Dec. Dig. § 147.*]</p> <p>2. Contracts (§ 154*)—More Reasonable and Probable Meaning PeeIsTIRHHD.</p> <p>Where the language of a contract is obscure or ambiguous, or its meaning doubtful, so that it is susceptible of two constructions, that interpretation which is the more natural, probable, and reasonable should be adopted.</p> <p>TEA Note.—For other cases, see Contracts, Cent. Dig. § 735; Dec. Dig. § 154.*]</p> <p>8. Mines and Minerals (§ 73*)—Osage Mining Lease—“Cultivated Inolosure” Therein Includes One Made Subsequent to Lease.</p> <p>The term “cultivated inclosure” in the clause of the mining lease made by the Osage Nation on March 16, 1896, to Foster, which prohibits boring wells on the Osage Indian reservation for oil and gas on such inclosures, includes those made after as well as those which were in existence at the date of the lease.</p> <p>[Fd. Note.—For other eases, see Mines and Minerals, Cent. Dig. §§ 201, 210; Dee. Dig. § 73.*]</p> <p>4. Minus and Minerals (§ 73*)—Lessee May Operate UncuCttvated Fart of “Cultivated Inolosure.”</p> <p>An inclosure which contains a cultivated tract and an uncultivated tract is a cultivated inclosure, and the lessee may not prospect or bore wells on the former, but he may do so on the latter if his operations do not unnecessarily interfere with the use of the cultivated tract for agricultural purposes.</p> <p>[Kd. Note.—For other eases, see Mines and Minerals, Cent. Dig. §§ 201, 210; Dec. Dig. § 73.*]</p> <p>5. Mines and Minerals (§ 73*)—Uncultivated Tracts—Cultivator Against Lessee oe Mining Privilege—Prior Proceeding Gives Superior Eight.</p> <p>Between the cultivator of the land and the lessee of the mining privilege, he who first, by an open and notorious act in good faith commences, • and with diligence, proceeds to subject an uncultivated tract to his use, has the superior right to it. His subsequent acts relate back to the initiation of his proceeding.</p> <p>[Ed. Note.—Por other cases, see Mines and Minerals, Cent. Dig. §§ 201, 210; Dec. Dig. § 73.*]</p>

<p>In Error to the Circuit Court of the United States' for the District of Massachusetts.</p> <p>Action by Quiñtino Galvao against the Eastern Expanded Metal Company. There was a judgment for plaintiff, and defendant brings error.</p>

Petition in admiralty by the New York & Dong Branch Steamboat Company, charterer of the steamboat Little Silver, for limitation of liability. From a decree awarding damages to claimants, Borrea Johnson and Hans Johnson, petitioner appeals.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Frank Sullivan Smith, receiver of the Pittsburgh, Shawmut & Northern Railroad Company, against J. H. Friday. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity by the General Compressed Air & Vacuum Machinery Company and John S. Thurman against the American Air Cleaning Company. Decree for complainants (177 Fed. 272), and defendant appeals.

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>Suit in equity by the Louden Machinery Company against Frank B. Strickler. Decree for defendant, and complainant appeals.</p> <p>Appellant’s bill for infringement of patent No. 555,605, March 3, 1896, to Louden, for improvements in hay-carriers, was dismissed for want of equity. Figures 1, 2, and 4 of the patent are herewith reproduced:</p> <p> </p> <p> </p> <p>Structure and operation are described in the specification as follows:</p> <p>“A represents the carrier, and B the track which it traverses. The style of the carrier is that commonly known as a ‘swivel,’ which is provided with an upper and a lower frame swiveled together. The upper frame is provided with arms or brackets D, which are fitted with wheels W to run upon the edges of the track-rail in the usual manner. The upper frame may be all cast in one piece, in which case the arms on opposite sides of the track will be joined together by the parts C. or it may be made in two separate pieces and be joined together .by the'bolts or rivets b. In the central part of the upper frame is a vertical opening E, in which is fitted a vertically-sliding dog F (most plainly shown in Fig. 4 in perspective), consisting of two upwardly-extending arms <i, secured to an annular lip or base (7, and each arm carrying a laterally-projecting lug d. A stop £ is secured to the track-rail B and is provided with inclines or cam-faces f and laterally-projecting lugs g. The lugs d of the dog F are adapted to slide up the incline’s f and to catch against the lugs g of the stop 8, while the annular lip or base (7 will be free to engage a pulley catch or hook at any point on its circumference, as will be hereinafter explained.</p> <p>“The lower frame of the carrier is made in two parts 1 (one of the parts only being shown in the drawings), which are joined together by the bolts or rivets J, and are provided on the inner sides of their upper edges with semicircular lips or flanges K. The upper frame of the carrier is provided on its lower outside edge with an annular lip or flange H, and the lips or flanges K are adapted to catch over and turn upon the lip or flange H, thus permitting the position of the lower frame to be reversed with regard to the upper frame and to the track.</p> <p>“In the lower frame I a sheave A is journaled, and over this sheave a ■hoisting-rope Mis passed. - A bent arm on hook A is pivoted in the opposite end of the lower frame I, and to the outer end, n, of this arm the rope M is connected. The upper end A2 of this arm or hook A is made concentric with its pivot, and is adapted to support the dog F in elevated position, while its upper end is presented to the annular base of the dog. Upon the loop of the rope M, between the sheave L and the arm A, pulleys 0 are mounted, and ;are fitted with hooks h or other equivalent means to hold the load to be elevated. A catch P may also be pivoted in the end of the lower frame adjacent to the sheave A,'the office of which will be hereinafter explained.</p> <p>“The operation is as follows: The carrier being in the position shown in Fig. 1, with the concentric end of the arm A bearing against one side of the under edge of the annular base (7, the dog F will be held in elevated position, and its lugs d will be-held in engagement with the lugs g of the track-stop ¡S, and the carrier will be held stationary upon the track. The catch P being used, its upper end P2 will stand under the opposite edge of the annular base (t, and will also support the dog F in its elevated position. Rower being applied to the free end of the rope M, the arm A* will be drawn into the frames of the pulley-blocks 0, as shown in Rig. 2. and at the same time the concent ric end of the arm A7 will be drawn from under the annular baso fr. The pulley block O, being drawn against the arm I" of the catch P, will push its upper end R2 from under the base of the dog F and allow it to drop between the arm A7 and the catch P and release the carrier from the stop 8, the annular vase of the dog at the same time lidding the arm A7 and catich P in the position shown in Rig. 2, thus supporting the pulley-block O in position. The carrier being drawn back to the stop, the dog will he lifted by the cam /, and the arm A7 and catch P will again assume the position in Fig. 1.</p> <p>“The principal office of the catch P is to support the lower end of the arm A7 and prevent it from giving way under the strain of a heavy load. It is so arranged that after the arm A7 has been drawn up by the hoisting-rope its lower end. Rs, will catch under the projecting end, n, of the arm A7 and hold it in position. It also aids in holding the dog F in elevated position and helps to equalize the strain upon the dog while the carrier is supporting the load.</p> <p>“In Fig. 2 the concentric part of the upper end of the arm A is omitted, in which case the catch P is depended upon entirely to hold the dog F in elevated position.</p> <p>“It is evident that the swiveling of the lower frame I will not in the least interfere with the operation of the dog F. Whatever may be the relative positions of the upper and lower frames in respect to each other the annular iip G will always be in the proper position for the engagement of the arm N and catch P. In case the catch P should be discarded and the strain all placed upon one side of the dog the opening E in the upper frame of the carrier is made circular to fit and support the base G, and the dog may be further held in position by means of the flanges l at each side of the arm a, as shown in Fig. 3.</p> <p>“Tt is evident that the dog F with its annular lip G may be used with any kind of pulley-supporting hook or catch adapted to co-operate with said annular lip, and therefore in the use of said dog I do not wish to be limited to the exact form of pulley-support herein set forth. Either one or two pulley-blocks may be used' with my invention as required by the nature of the load to be elevated."</p> <p>Four claims are in suit:</p> <p>“1. The combination of an upper frame adapted to run on a track, a lower irame swiveled to the upper frame and carrying pulley-supporting mechanism, and a dog having an annular lip adapted to engage said mechanism at any point on its circumference.</p> <p>“2. The combination of an upper frame adapted to run on a track, a lower frame swiveled thereto and carrying pulley-supporting mechanism, a dog having upwardly-extending arms and an annular lip adapted to engage said pulley-supporting mechanism at any point on its circumference, and a stop to engage the upwardly-extending arms, substantially as set forth.</p> <p>“3. The combination of an upper and a lower frame swiveled together, a dog mounted in the upper frame and having an annular lip, and a hook or arm pivoted in the lower frame and adapted to engage the lip of the dog at all points on its circumference, substantially as and for the purpose set forth.</p> <p>“4. The combination of an upper and a lower frame swiveled together, a sheave journaled in said lower frame, a rope passed over said sheave so as to form a loop, a pulley-block hung in said loop, a pivoted hook or arm to euaage and support said pulley-block, and a dog having an annular lip adapted u> hold the hook or arm in engagement with the pulley-block at all points on its circumference, substantially as set forth."</p> <p>Prior art patents, to overcome or limit the Louden claims, were introduced in evidence:</p> <p>No. 137.763. H. W. Hoffman. September 14, 1875; No. 273,455. G. W. Brower, March 6, 1883; No. 274,317. E. L. Hall, March 20, J883; No. 279,889, F. B. Strickier, June 19, 1883; No. 288,839, R. Miller, November 20, 1883; No. 300,687, J. M. Boyd, June 17, 1884; No. 308,848, J. Ney, December 2, 1884; No. 515,296, W. Louden, February 20, 1894; No. 555,605, W. Louden, March 3, 1896; No. 620,467, W. Louden, February 28, 1899.</p> <p>On the record it is clear, and at the argument counsel virtually agreed, that infringement, as alleged, cannot be found unless the following contentions of appellee are unwarranted:</p> <p>(1) That the “pulley-supporting mechanism” of claims 1 and 2 is anticipated, and these claims therefore are -invalid unless the dog with a cut-out base gives novelty to the respective combinations.</p> <p>(2) That the element, “a dog having an annular lip,” is limited to a dog (figure 4 of the drawings) having a cut-out base as shown, and therefore no claim is infringed by a device in which the dog, like appellee’s, has a solid base.</p> <p>(3) That claims 3 and 4 are limited to a single hook for supporting the pulley-block, and therefore are not infringed by a structure, like appellee's, ■which has two hooks or arms to support the pulley-block.</p> <p>Figure 4 of the Miller patent, No. 288,839, is as follows;</p> <p> </p> <p>Cuts showing a comparison that appellee makes between Louden and Miller sre subjoined: 1</p> <p> </p> <p> </p> <p> </p> <p> </p>

Suit in equity by Luther P. Friestedt and the Carnegie Steel Company against the National Interlocking Steel Sheeting Company. Decree for defendant (182 Fed. 836), and complainants appeal. Reversal is sought of the Circuit Court decree which dismissed for want of equity appellants' bill for infringement of patent No. 707,837, August 20, 1902. to Friestedt,. for improvements in sheet-piling. Claims in suit were the following: “1.

<p>Patents (§ 328*)—Infringement— Sheet-Piling.</p> <p>The Simon patent, No. 500,780, for a metal sheet-piling, is limited to a piling in which a hollow beam forms interlocking means, and is not infringed by the device of the Eriestodt patent No. 707,837.</p>

Suit in equity by the Schmertz Wire Glass Company and the Mississippi Wire Glass Company against the Western Glass Company. Decree for defendant (188 Fed. 436), and complainants appeal. Appellants failed in their suit to hold appellee for an alleged infringement of claims 1, 2 and 6 of the Schmertz reissue patent, No. 12,443, Jantiary 30, 1906, for apparatus and process for manufacturing wire glass. Tiie claims read as follows: “1.

<p>Patents (§ 328*)—Validity and Inekincjement—Muffles. The Mead patent, No. 963,285, for a muffler, held valid and infringed.</p>

<p>1. Patents (§ 202*)—Title—Assignment:</p> <p>An assignment of the right to a patent pending the application and before its issuance vests the title in the assignee, although it is issued in the name of the assignor.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 281-289; Dec. Dig. § 202.*]</p> <p>2. EvinENCE (§ 183*)—Proof of Assignment—Secondary Evidence.</p> <p>Proof that an assignment of a patent was used in evidence in other cases, and that it cannot be found, held sufficient to authorize the introduction of a certified copy of the record thereof in the Patent Office.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. ' Dig. § 183.*]</p> <p>3. Patents (§ 312*)—Suit for Infringement—Title to Support.</p> <p>Where an assignment of the right to a patent, application for which was pending, did not give the number of the application nor otherwise identify the same except by stating the general subject-matter, a subsequent assignment by the inventor executed more than a year after the patent was granted to the same assignee and describing the patent, without proof that no previous assignment had been made to another, is not sufficient to establish the right of the assignee to maintain a suit for infringement.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.*]</p> <p>4. Patents (§ 312*)—Infringement—Sufficiency of Proof.</p> <p>A bill for infringement of a patent is not sustained by evidence of the sale of any number of the elements of the patented structure less than the whole, where there is no allegation or proof of contributory infringement, nor as to when the sales were made, and especially where the suit is in a district in which neither party resides, so that the matter is jurisdictional.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.*]</p>

<p>In Equity. Suit by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against tlie Republic Rubber Company. On final hearing.</p>

<p>In Equity. Suit by the Gibson Oat Crusher Company against the City Fuél Company. On final hearing.</p>

<p>In Equity. Suit by William A. Murray against the Detroit Wire Spring Company. On final hearing.</p>

<p>Patents (§ 328*)—Invention—Trousers and Belt Fasteners.</p> <p>The Noetzel patent, No. 871,881, for trousers and belt fasteners, consisting of a small vertical loop on the front of the waistband of the trousers to receive the buckle tongue before it is made to engage the other end of the belt, in view of the prior art, is voi”d for lack of patentable invention.</p>

The New Departure Manufacturing Company and others were indicted. Plea in abatement filed by individual defendants overruled, and defendants directed to plead over.

<p>Petition for habeas corpus by J. Wesley Glasgow for his discharge from the United States penitentiary at Atlanta, Ga.</p>

<p>.Master and Servant (§ 13*)—Hours of Service—Interstate Carriers— Statutes—“On Duty.”</p> <p>An employe is on duty within the statute making it unlawful for any interstate carrier to require or permit any employs to bo or remain on duty for a longer time than 16 consecutive hours, where he is at his post in obedience to rules or requirements of his superior and ready and willing to work, whether actually at work or awaiting orders, or the removal of hindrances from any causo, and the limitation of time of continuous service when applied to trainmen includes the time of duty preceding and subsequent to tbe time of service in actual operation of trains, as required by tlie rules of the employment.</p> <p>|Ed. Note.—Tor other cases, see Master and Servant. Cent. Dig. §§ 809 ■ 854; Doc. Dig. § 13.*]</p>

<p>At Law. Action by S. F. Cayce against the Southern Railway Company. On motion to remand.</p>

<p>In Equity. Suit by Clarence H. Venner against the Chicago City Railway Company and others.</p>

<p>In Equity. Suit by the United States against Louis Hemmer, William W. Fletcher, J. E. Peart, the Richards Trust Company, the Iowa & Dakota Land Company, Fred D. Henderson, as treasurer of Moody County, S. D., E. A. Hornby, as Auditor of said county, Job Robinson, S. W. Ballard, and L. W. Ballard, copartners as Ballard & Son, and Moody County, S. D. On final hearing.</p>

<p>In Equity. Bill by William H. Nichols against the Waukesha Canning Company, with cross-bill by First Savings & Trust Company, and answers thereto.</p>

<p>1. Forcible Entry and Detainer (§ 5*)—“Forcible Detainer”—Nature of.</p> <p>A “forcible detainer" implies tlie use of force or throats of violence by words or conduct inspiring fear of bodily harm or terror to some degree, and to make out n forcible detainer the guilty person must be wrongfully on the premises or wrongfully in temporary possession thereof.</p> <p>lEd. Note.—For other eases, see Forcible Entry and Detainer, Cent. Dig. §§ 28-28; Dec. Dig. § 5.®</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2872, 2873.J</p> <p>2. Bankruptcy (§ 424*)—Debts Not Affected by Discharge—“Willful” —“Malice.”</p> <p>Where a lessee assigned his lease to his wife with the consent of the landlord, and tlie landlord subsequently instituted summary proceedings to dispossess the lessee without making the wife a party, and under the judgment of dispossession the landlord, through agents, took possession of ihe premises and removed the wife’s property and forcibly removed the wife, a judgment for the wife for damages for the acts of the landlord was based on “willful” and "malicious” acts, within Bankruptcy Act July 1, 1898, c. 541, § 17, ,80 8tat. 550 (U. S. Comp. St. 1901, p. 3428), providing that a discharge in bankruptcy does not release the bankrupt from judgments for willful and malicious injuries to the person or property of another; the word “willful" meaning nothing more than “intentional,” and the word “malice” in its legal sense meaning a wrongful act done intentionally, without just cause or excuse (citing 5 Words & Phrases, pp. 4298-4312).</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 787, 818; Dec. Dig. § 424 *1</p> <p>3. Bankruptcy (§ 217*)—Restraining Proceedings in State Courts.</p> <p>Where a holder of a judgment against a bankrupt not affected by a discharge institutes proceedings supplementary to execution against the bankrupt, the bankruptcy court will not restrain such proceedings except in so far as they will interfere with the due administration of the estate of the bankrupt under the bankruptcy law.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 323, 330, 340; Dec. Dig. § 217*</p> <p>Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank of Providence, 16 G. C. A. 90; Central Trust Co. of New York v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>4. Bankruptcy (§ 212*)—Actions—Jurisdiction.</p> <p>Where property claimed by one as his own had been replevied from a bankrupt and not reclaimed or retaken, the referee in bankruptcy could properly permit the question of title to be settled in the action of replevin; but where the property claimed came into the possession of the trustee in bankruptcy, the title might be • determined in the bankruptcy court.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. § 236; Dec. Dig. § 212.*]</p>

<p>Judgment (§ 828*)—Proceedings in State Court—Ooncuusiteness.</p> <p>Where a bankrupt’s trustee instituted proceedings in a state court to set aside as fraudulent an assignment of an alleged interest in certain property under the will of her grandfather, and to establish his right thereto as trustee, and the bankrupt duly defended such action, in which the trustee was successful, the judgment, in the absence of an appeal therefrom, was conclusive, and could not be collaterally attacked or reviewed for error in the bankruptcy proceeding.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dec. Dig. § 828*</p> <p>Conclusiveuess 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’ Rank v. City of Memphis, 49 C. C. A. 468.]</p>

<p>At Law. Action by Luella Stone against the Chicago, Burlington & Quincy Railroad Company. On motion to remand to state court.</p>

<p>Commerce (§ 40*)—Interstate Commerce—Intoxicating Liquors.</p> <p>Under tbe interstate commerce clause of tbe Constitution, intoxicating liquors, lawfully purchased in good faitb in one state by a resident of another state, may lawfully be delivered to tbe purchaser in tbe state of his residence, and tbe carrier and tbe persons and equipment employed in such carriage are entitled to protection by tbe courts from unlawful interference in the state of delivery as instruments of interstate commerce, whether or not such interference proceeds from those; assuming to act under authority of state laws.</p> <p>jEd. Note.---For other cases, see Commerce, Cent. Dig. || 29, 30; Dec. Dig. S 40.* ]</p>

<p>In Equity. Suit by the City Trust Company against the Sedalia Eight & Traction Company. On demurrers of complainant to bills of intervention filed by the Missouri, Kansas & Texas Railway Company, the Stanley Coal Company, and United States Fidelity & Casualty Company.</p>

<p> (Syllabus by the Court.) </p> <p>1. Public Lands (§ 111*)—Patents—Coal Land—Entries—“Pre-emption Laws.”</p> <p>The proviso to section 7 of the Act of March 3, 1891, é. 561, 26 Stat. 1098 (U. S. Comp. St. 1901, p. 1521), giving the right to patent where no contest or protest has been filed within two years after receiver’s receipt “upon the final entry of any tract of land under the homestead, timber culture, desert land, or pre-emption laws,” does not include coal land entries.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 310; Dec. Dig. § 111.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Public Lands (§ 111*)—“Pre-emption.”</p> <p>The word “pre-emption” has a varied meaning. At common law it expressed the king’s right to buy provisions and other necessaries for his household in preference to others. In international law, it expresses the right of a nation to detain goods of a stranger in transit so as to afford its subjects a preference. Webster gives, among other definitions, the right of purchase before another, but the word “pre-emption” in Act March 3, 1891, e. 561, § 7, 26 Stat. 1098 (U. S. Comp. St. 1901, p. 1521), relating to homestead entries, has another well-defined technical meaning, familiar to all.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 310; Dec. Dig. § 111.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5496, 5497.]</p>

<p>1. Bankruptcy (§ 177*)—Fraudulent Sales by Bankrupt—Right of Trustee.</p> <p>A fraudulent sale by a bankrupt after the filing of tbe petition in bankruptcy made to the agent of the buyer is voidable at the option of the trustee by an appropriate proceeding where the agent had knowledge of facts, charging him with knowledge of the fraud.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 177.*]</p> <p>2. Bankruptcy (§ 288*)—Bankruptcy Court—Fraudulent Transfer of . Property by Bankrupt—Recovery—Jurisdiction.</p> <p>Where a bankrupt after the filing of the petition in bankruptcy sold goods in his possession through a bailee to one chargeable with knowledge of the fraudulent transaction, the bankruptcy court has jurisdiction by summary proceeding to compel the restoration of the property or the proceeds thereof to the trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. § 288.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>3. Bankruptcy (§ 186*)—Fraudulent Sales—Measure of Damages.</p> <p>Where a bankrupt after the filing of the petition in bankruptcy sold merchandise in his possession through a bailee to a buyer chargeable with knowledge of the facts, the bankruptcy court properly required the buyer to restore to the trustee the value of the goods as invoiced instead of the price the buyer paid; the evidence as to value being conflicting, and the bankrupt testifying that the goods were new and worth the invoice price.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 285, 319; Dec. Dig. § 186.*]</p> <p>4. Bankruptcy (§ 288*)—Fraudulent Sales—Liability of Agent.</p> <p>Where a bankrupt after the filing of the petition in bankruptcy sold merchandise in his possession through a bailee to an agent, who surrendered possession to his principal, the bankruptcy court in summary proceedings against the agent and principal to compel the restoration to the trustee of the goods, or the proceeds thereof, should not order the agent to restore the property to the trustee..</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. § 288.*]</p>

<p>1. Bankruptcy (§ .399*)—-Exemptions- Right to Exemptions.</p> <p>Fueler Code Ala. 1907, §§ 4180, 4184, requiring an execution debtor claiming exemption to schedule all ills personalty and deliver it to the officer, and providing that, if on a contest of his exemption he is shown to have personalty not scheduled nor delivered to the officer, the court must set aside his exemption from the omitted and undelivered property, a referee may on a contest of a bankrupt’s exemption charge his exemption with any property shown to have been in the bankrupt’s possession at the time of the institution of bankruptcy, and not disclosed by his inventory or surrendered to the trustee, but property fraudulently transferred by the bankrupt prior to the filing of the petition in bankruptcy cannot be treated as a part of his exempt properly, nor can exemption be denied as a punishment for fraudulent, conduct on the part of the bankrupt.</p> <p>TEd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. § 399.*]</p> <p>2. Bankruptcy (§ 400*)—Exemptions- -Right to Exemptions.</p> <p>Where, on a contest of a bankrupt's exemption, the evidence showed a systematic attempt on the bankrupts part to fraudulently withhold from his trustee what goods he could secrete, and that part of the goods traced to his possession within six wombs of his bankruptcy were unaccounted for. and that he had concealed from his trustee for íiis own benefit other goods, the trustee, to require the referee to charge the exemption with any property shown to have been in the bankrupt’s possession at the time of the institution of bankruptcy and not surrendered to him, need not identify the undiscovered goods, since the facts are peculiarly within the knowledge of the bankrupt who must explain what became of the property.</p> <p>Did. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 670, 671 675; Dec. Dig. § 400.*]</p>

<p>Shipping (§ 17*)—Wireless Equipment op Passenger Vessels—Prosecutions—Plea.</p> <p>In tlie prosecution of tlie captain of a steamship under Act June 24. 1910, c. 379, 36 Stat. 629 (U. S. Comp. St. Supp. 1911, p. 1265). which makes it a punishable offense for the master of any ocean-going vessel carrying passengers, and carrying 50 or more xiersons, including liassengers and crew, to leave any port of the United States on a voyage of more than 200 miles, unless equipped with a wireless telegraph apparatus, a plea setting up that the vessel did not carry passengers is insufficient, where it also admits that the vessel carried to Europe four persons, not members of her regular crew, who contributed a fund of $200 to one of the officers for extra food and accommodations, but avers that they paid nothing for transportation, but were signed as members of the crew at a shilling a month although they were not paid and performed no services; the question of whether they were or were not in fact passengers being one for the jury under the facts.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 45-49; Dec. Dig. § 17.*]</p>

<p>In Admiralty. Suit by the schooner Earl P. Mason against the steamship Shawmut for collision, and cross-suit.</p>

Bankruptcy proceedings against Michael C. Simon, individually and as surviving partner. Petition in intervention by the Fidelity Trust Company against Ron H. Gaskell, ancillary receiver. From a judgment for the receiver, the intervener appeals.

<p>1. Banks and Banking (§ 253*)—National Banks—Liability of Officers and Directors.</p> <p>The making and publishing by a national bank of the reports required by statute are not merely for the information of the comptroller, but are to guide so much of the public as may have occasion to act thereon, and one who buys from another stock in the bank in reliance upon a false report of its condition, and suffers damage thereby has a right of action against any officer or director who, knowing its falsity, authorizes such report, under Rev. St § 5239 (U. S. Comp. St. 1901, p. 3515), which makes them individually liable for damages sustained by the association, its stockholders, ‘'or any other person.”</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 944-919; Dec. Dig. § 253.*]</p> <p>2. Banks and Banking (§ 254*)—National Banks—Action for Damages Against Officer or Director.</p> <p>The damages in such a case are personal with plaintiff who sues in his own individual', right, and not in that of the association.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 950-957; Dec. Dig. § 254.*]</p> <p>3. Banks and Banking (§ 254*)—National Banks—Action Against Directors—Issues and Proof.</p> <p>Such an action against directors involves no direct issue of negligence, the sole xirtmary issue being whether a defendant caused or permitted to be made a statement of the bank’s condition on which plaintiff relied to his injury, and which statement defendant knew was materially false. The liability of the directors is several, and plaintiff may sue one or more, but must make out a sufficient caso against each one to authorize a recovery against him, and, in general, the detailed history of the entire transaction and of each defendant's connection with the same is admissible.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 950-957; Dec. Dig. § 254.*]</p> <p>4. Banks and Banking (§ 253*)—National Banks—Action Against Directors—Making False Statements.</p> <p>In such an action, where the falsity of the statement consisted in its including as resources in the loans and discounts paper to a large amount which was worthless, the making and publishing of the statement, which under the general custom are merely the automatic result of the bookkeeping, do not constitute the underlying wrong, and any director who participated in or approved the continued carrying on the books of such paper as assets at its face value to an amount sufficient to affect the standing of the bank and knowing its worthlessness is bound to know that under the prevailing practice the statements will be substantially false, and is responsible therefor.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 944-949; Dec. Dig. § 253.*]</p> <p>5. Banks and Banking (§ 253*)—National Banks—Liability of Directors.</p> <p>While the duty of charging off such worthless paper is that of the board of directors as an entity, and in such matter it has a reasonable discretion, when the duty exists and is wholly unperformed, an individual director who is engaged generally in the performance of his functions may be personally liable because of his participation in the failure to act by failing to make reasonable personal efforts to Induce the proper action.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 944-949; Dee. Dig. § 253.*</p> <p>Personal liability of directors of bank, see note tó Kobinson v. Hall, 12 C. C. A. 080; Warner v. Penoyer, 33 O. O. A. 230.]</p> <p>6. Banks and Banking (§ 254*)—Action Against Directors—Evidence.</p> <p>An action against directors of a national bank to recover damages sustained by plaintiff because of the making and publication by the bank of statements including as assets, a large amount in worthless notes, in reliance on which statements plaintiff purchased stock at more than its actual value, is not supported by evidence that such notes were for loans to the maker in excess of the 10 per cent, permitted by Rev. St. § 5200 (ü. S. Comp. St. 1901, p. 3494), since that fact does not affect their collectibility, but evidence to show motive, as that defendants were themselves selling their stock at a high price, is- material.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 950-'957; Dec. Dig. § 254.*]</p> <p>7. Evidence (§ 215*)—National Banks—Action Against Directors—Evidence.</p> <p>In suc-h an action, the fact that plaintiff subsequently became a director and joined in attesting statements which included as assets some of the same paper was admissible as in the nature of an admission that such paper was not so clearly worthless as to make defendants’ acts unlawful ; its weight being for the jury.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 75-t-759; Dec. Dig. § 215.*]</p> <p>8. Banks and Banking (§ 254*)—National Banks—Action Against Directors—Measure of Damages.</p> <p>The general rule of damages in actions of deceit that one induced by false representations to purchase property at more than its value is entitled to recover the difference between what the property was actually worth and what it would have been worth if the representations had been true, not exceeding the sum paid, is not applicable to an action against directors of a national bank under Rev. St. § 5239 (U. S. Comp. St. 1901, p. 3515), by one who purchased stock of the hank in reliance on published statements of its condition which were false, in that they included as assets in the loans and discounts a large amount of worthless paper; since, under such section, defendants are liable only for knowing violations of the law. In such case the measure of plaintiff’s recovery is the difference in the fair market value of his stock if all the paper had been of a character entitling it to be reported as assets, and that sum which would have been its fair market value if the directors, in the exercise of due care and good faith, had charged off the books, and not reported so much of the paper as they knew or had good reason to believe was uncollectible, assuming that defendants participated in or assented to such nonaction.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 1004; Dec. Dig. § 254.*]</p> <p>On Motion to Modify.</p> <p>9. Appeal and Error (§ 1140*)—Disposition of Cause—Affirmance on Remission of Part of Recovery.</p> <p>It is a good practice in a proper case to permit a plaintiff to enter a remittitur, and as so modified to affirm a judgment in his favor, which must otherwise be reversed for error occurring at the trial, but such practice can only be followed where it appears from the record that certain elements of the verdict might have been affected by the error, and that the remainder of the verdict could not have been so affected.</p> <p>|Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 4462-4478; Dec. Dig. § 1140.*]</p>

' In Error to the Circuit- Court of the United States for the District of Vermont. Action by Elijah D. Sowles against the Norcross Bros. Company. There was a verdict for defendant, and plaintiff brings error. Writ of error to review a judgment of the Circuit Court,-District of Vermont, in an action by a servant to recover damages from a master for personal injuries. The verdict below was directed by the court in favor of the defendant.

<p>In Error to the District Court of the United States for the Western District of Oklahoma...</p> <p>Criminal prosecution by the ‘United States against J. E. Stanley, A. J. Kliné, and R. A. Porter. Judgment of conviction, and defendants bring error.</p>

<p>' In Error to the Circuit Court of the United States for the District of Utah.</p> <p>Action at law by Lillian Light against the Supreme Lodge of the Fraternal Union of America. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment (§ 720*)—Res Judicata—Identity or Issues.</p> <p>Where, in an action on coupons taken from municipal bonds, defendant pleaded as a defense that the bonds were void because the ordinance under which they were issued was not published as required by the statutes of the state, and such issue was specifically considered and determined by both the trial and appellate courts which held the bonds valid, the judgment in such action is conclusive in a. subsequent action between the same parties on the bonds themselves, or on subsequent maturing coupons.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1251; Dee. Dig. § 720.*]</p> <p>2. Judgment (§ 720*) — Conclusiveness oe Adjudication — Matters Concluded.</p> <p>A question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is upon a different cause of action, the right, question, or fact so determined must, as between the parties or their privies, be taken as c.onclusively established, so long as the judgment remains unmodified.</p> <p>[Ed. Note.—Eor other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p>

Action at law 'by Willard Nichols against the Chesapeake & Ohio Railway Company. Judgment for-defendant, and plaintiff brings error. ■ Nichols was a brakeman in the employ of the Railway Company. In March, 1904, while switching, he was injured. He brought an action in the ■state court 'against the Railway Company. It was removed to the federal court, and then, by plaintiff, voluntarily dismissed.

<p>1. Master and Servant (§ 270*)—Injuries to Servant—Defective Appliance—Prior Accident with tiie Save Tool.</p> <p>Th an action, for injuries to a servant by the telescoping of a car jack, evidence that a jack identified as the same one had slipped nearly three weeks before and injured another servant was admissible.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>2. Master and Servant (§ 265*)—Injuries to Servant—Defective Appliance—Res Ipsa Uoquitur.</p> <p>The rule that the doctrine of res ipsa loquitur has little, if any, application between employer and employe, is not of unvarying application.</p> <p>[Ed. Note.—For other cases, see Masier and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265*</p> <p>Application of doctrine of res ipsa loquitur in actions for injuries to servants, see note to Carnegie Steel Co. v. Byers, 2 C. C. A. 121.]</p> <p>3. Master and Servant (§ 286*)—Injuries to Servant—Defective Appliance-Question for Jury.</p> <p>Where a servant was injured by the sudden telescoping of a car jack which had failed to work in the same manner before, which was not produced and the working machinery of which was inclosed, so that no one could tell in just what way it was defective, whether defendant was negligent in furnishing such a jack for use was for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>4. Master and Servant (§ 264*)—Injuries to Servant—Defective Appliance-Specific Defect.</p> <p>In an action for injuries to a servant by the telescoping of a car jack, plaintiff alleged that the jack was old, worn, and defective; that the dogs and ratchets were worn, and on that account it was liable to slip when a weight was placed thereon, and that the jack, by reason of its weakness and its defects, suddenly slipped, and let the car down on plaintiff’s hand. It was proved that the jack had slipped before and injured another servant; and that the working machinery was inclosed, so that one could not tell in just what way the jack was defective. Defendant’s superintendent testified that tile jack was capable of lifting tbo load, and that just what defect or weakness induced the accident would be difficult to determine. Defendant also concealed the jack and did not produce it at the trial. Held, that the general allegations that the jack was old, worn, and defective, and that it telescoped by reason of weakness, were not limited by tbe allegations as to the dogs and the ratchets.</p> <p>LEd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>5. Trial (§ 191*)—Instructions—Assumption of Facts.</p> <p>In an action for injuries to a servant by tbe telescoping of a car jack, an instruction assuming that defendant, charged with the duty of exercising ordinary care to furnish reasonably safe appliances, discharged that duty by furnishing for use together safe and utterly unsafe appliances, and was free from blame if the servant selected the unsafe one, the lack of safety of which was wholly concealed, was properly refused.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dee. Dig. § 191.*]</p> <p>6. Trial (§ 296*)—Instructions—Error Cured by Other Instruction.</p> <p>Where a servant was entitled to recover some amount if defendant knew of the defective condition of a jack by the collapse of which the servant was injured, or ought in the exercise of ordinary care to have known it, and such question was properly submitted-to the jury, defendant was not prejudiced by an instruction erroneously charging that the master owed a positive duty to furnish reasonably safe appliances.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 710, 718; Dec. Dig. § 296.*]</p>

<p>1. Criminal Law (§ 1151*)—Review on Appeal—Matters of Discretion-Denial of Continuance.</p> <p>It is the settled rule in the federal courts that a trial court, in denying an application for a continuance in a criminal case, whether on behalf of the prosecution or the accused, acts within its own discretion, and its ruling will not be disturbed, except in a case of clear abuse of discretion.</p> <p>[Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. § 1151.*]</p> <p>2. Criminal Law (§ 95*)—Comitt—Federal and State Courts—Criminal Gases.</p> <p>The rule of comity between the federal and state courts is the same in criminal as in civil cases, and, where each can take jurisdiction, the one which first gets it holds it to the exclusion of the other.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 167-175; Dec. Dig. § 95.*</p> <p>Conflict of jurisdiction of federal courts with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 356.]</p> <p>3. Criminal Law (§ 95*)—Continuance—Grounds—Defendant Under Sentence in State Court.</p> <p>A defendant in a criminal ease in a state court, who, while at large on bail pending an appeal from a judgment of conviction which is afterward affirmed, commits a crime against the United States, cannot be heard himself to ask for a continuance of the trial of the case against him in the federal court, on the ground that he has not served the sentence imposed by tbe state court.</p> <p>[Ed. 'Note.—For other cases, see Criminal Law, Cent. Dig. §§ 167-175; Dec. Dig. § 95.*]</p>

<p>Bankruptcy (§ 308*)—Claims—General Creditors.</p> <p>Pursuant to the articles of incorporation of the bankrupt and its bylaws, a contract was made between it and the claimant, by which the latter sold to the corporation Ms stock of merchandise, valued at $5,-427.36. and agreed to take In pay therefor excess shares of the stock of the corporation, which by the terms of the articles of incorporation, its by-laws, and the contract were to remain in the control of the corporation and sold by it, the proceeds to be paid to the claimant. Enough had been sold to pay to claimant $2,391.12, when the corporation went into bankruptcy. Reid, that claimant under such transaction did not become a general creditor of the corporation so as to authorize proof of his claim for the balance against the bankrupt’s estate.</p> <p>LEd, Note.—For other cases, see Bankruptcy, Gent. Dig. §§ 496-507; Dec. Dig. S 308.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by tRe Tweedie Trading Company against the. Strong & Trowbridge. Company. Decree for libelant (157 Fed. 304), from which it appeals.</p>

<p>Trade-Marks and Trade-Names (§ 57*)—'Unfair Competition—Imitation in Appearance and Form op Another’s Goods.</p> <p>A manifest imitation in details of construction by one manufacturer of an article made by another, with a consequent likelihood of confusion, should be enjoined, unless the points of resemblance are the necessary result of an effort to comply with the physical requirements essential to commercial success.</p> <p>fEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 65; Dec. Dig. § 57.*</p> <p>Unfair competition in use of trade-mark or trade-name, see note to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Muller Bros., 30 C. C. A. 376.]</p>

<p>Patents (§ 328*)—Anticipation—Typewriter Escapement.</p> <p>The Hillard patent. No. 580,281, for improvements in typewriter escapements, held anticipated by a machine made by Diss in 1890, which embodied the essential features of the patented device.</p>

Suit in equity by the Hardinge Conical Mill Company against the Abbe Engineering Company and others. The following is the opinion of the trial court by Hazel, District Judge: The •complainant is the owner by assignment of patent No. 908,861, granted to H. W. Hardinge, on January 5, 1909, lor apparatus for disintegrating ores and other materials, and the defendants are charged in the bill with infringement of claim 5 thereof.

<p>1. Patents (§ 159*)—Validity—Sufficiency of Description—Admissibility of Parol Evidence.</p> <p>Where a mechanical patent does not disclose, on its face the real invention of the patentee, but the element of the combination in which only such invention resides, although described and claimed, and shown in the drawings, in combination with the other elements shown, and so far as appears from the specification and claims, is wholly without use or function, it cannot he aided by the oral testimony of the patentee explaining the problem to he met and how he solved it, although such testimony shows that he made an actual invention of merit.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 233, 236; Dec. Dig. § 159.*]</p> <p>2. Patents (§ 328*)—Validity—Car Truck.</p> <p>The I-Iardie patent, No. 569,044, for a metallic car truck, is void because it does not disclose the actual invention which was of a truck adapted for use with any bolster then known, and especially the type having column guides, whereas such feature is nowhere explained, nor is it necessary or useful with the type of holster shown in the drawings.</p>

<p>1. Patents (§328*)—Validity and Infringement—Bedstead Fastening.</p> <p>The Hall and Tilley patent, No. 625,164, for a bedstead fastening, for securing the spring section of a metal bedstead, in which the side bars are rigidly connected by means of the spring frame to the end pieces or post sections, discloses patentable invention, but, in view of the prior art, must be narrowly construed and limited to the exact combination shown. As so limited, held not infringed by the device of the Frank patent, No. 650,311.</p> <p>2. Patents (§ 289*)—Suit foe Infringement—Laches.</p> <p>A delay of nine years by the owner of a patent, after having knowledge of the manufacture and sale of a claimed infringing article, before bringing suit, constitutes such laches as will defeat the suit, unless excused; and it is not a sufficient excuse that complainant was prevented from sooner bringing the suit by his partner in the ownership of the patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 467—469; Dec. Dig. § 289.*</p> <p>Laches as a defense in suits for infringement of patent, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p>

Petition by the Norfolk & Western Railway Company and others against the United States, in which the Interstate Commerce Commission and the Corporation Commission of North Carolina intervene. On final hearing.

Petition by the Baltimore & Ohio Southwestern Railroad Company and the Norfolk & Western Railway Company against the United States and the Cincinnati & Columbus Traction Company, in which the Interstate Commerce Commission intervenes. On motion to dismiss.

<p>Petition by the Denver & Rio Grande Railroad Company against the Interstate Commerce Commission, in which the United States intervenes. On final hearing.</p> <p>For opinion of Interstate Commerce Commission, see Baer Bros. Mercantile Co. v. Missouri Pac. Ry. Co., 17 Interst. Com. Com’n R. 225.</p>

<p>1. Bribery (§ 1*)—Statutory Qpeense—“Ueeioer of the United States”— “United States Officer.”</p> <p>Under Const, art. 2, § 2, providing for tlie appointment of officers of tlie United States, an “officer of tlie United States,” within Pen. Code, § 117 (Act March 4, 1909, c. 321, 35 Stat. 1109 [U. S. Comp. St. Supp. 1911, p. 1623]), punishing the' acceptance of bribes by any officer of the United States, is one who is either appointed by the President by and with the advice and consent of the Senate, or by the President alone, the courts of law, or heads of some executive department of the government, and a special officer appointed by the' Commissioner of Indian Affairs for the suppression of the liquor traffic among the Indians, is not an “officer of the United States.”</p> <p>[Ed. Note.—For other eases, see Bribery, Cent. Dig. §§ 1-3; Dec. Dig. § 1*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7184.]</p> <p>2. Statutes (§ 241*)—Penal Statutes—Construction.</p> <p>Pen. Code, § 117 '(Act March 4, 1909, c. 321, 35 Stat. 1109 [U. S. Comp. St. Supp. .1911, p. 1623]), punishing any officer of the United States accepting a bribe to influence official action, is highly penal and must be construed at least with reasonable strictness, and unless the act charged to have been done by accused is a violation of some act of Congress or some departmental rule or regulation authorized by Congress, the violation of which is declared by it to be an offense, no crime has been committed.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]</p> <p>3. Indictment and Information (§ 110*)—Statutory Offense—Requisites.</p> <p>It is not sufficient to charge an offense in the words of a statute creating the offense, unless they of themselves directly and with the requisita certainty set forth every essential fact necessary to constitute an offense.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 289-20-1; Dec.. Dig. § 110.*1</p> <p>4. Bribery (§ 1*)—Indictment—Requisites.</p> <p>An indictment for bribery, alleging that accused had been appointed by the Commissioner of Indian Affairs as a special officer for the suppression of the liquor traffic among Indians; that he was called on to assist in procuring testimony for the conviction of persons unlawfully selling liquor to Indians and to assist in securing their punishment; that three persons had been convicted of selling liquor to the Indians; that the presiding judge and district attorney had announced that the sentence of line and imprisonment imposed on them would not he changed unless recommendation to that effect was made by the Bureau of Indian Affairs; and that accused accepted a bribe of $75 to influence him in his oifleial action to recommend to his superior officer that the sentences should be changed—does not charge a violation of Pen. Code, § 117 (Act March 4, 1909, c. 321, 35 Stat. 1109 [IT. S. Comp. St. Supp. 1911, p. 1623J), punishing bribery, since no act of Congress or rule of the Department of tho Interior adopted under the authority of Rev. St. §§ 161, 463, 405 (U. S. Comp. St. 1901, pp. 80, 262, 264), imposed on such official any duty in making recommendations as to punishments, though accused was employed under the acts of Congress making appropriations to enable the Commissioner of Indian Affairs to suppress the liquor traffic among the Indians, since one cannot, he convicted of accepting a bribe to influence his official action on a matter not required of him by law.</p> <p>[Ed. Note.—For other cases, see Bribery, Cent. Dig. §§ 1-3; Dee. Dig. § l.»J</p>

<p>Thomas E. Brents was indicted for bribery.</p>

<p>Indictment against W. N. Birdsall for bribery.</p>

<p>United States Commissioners (§ 3*)—Compensation—Statutes—“Made.” Ac! March 4, 1904, c. 394, 33 Stat. 59 (U. S. Comp. St. Snpp. 1911, p. 595), providing that proofs, affidavits, and'oaths required under the public land laws may be made before any United States Commissioner, and that the fees for entries and for final proofs when made before him shall be for each affidavit 25 cents, for each deposition of claimant or witnesses when not prepared by the officer 25 cents, and for each deposition prepared by the officer $1, and making it a misdemeanor to demand or receive a greater sum. fixes the fees of United States Commissioners for administering the oath and attaching the jurat to affidavits required under the land laws, but it is not part of their duty to draft affidavits, in whole or in part, and a United States Commissioner who drafts an affidavit or any part thereof, or who completes the application part of a combined application and affidavit under the land laws, may charge compensation therefor as services beyond his official duty; an affidavit being “made’' before an officer when subscribed and sworn to before Mm by whomsoever drafted.</p> <p>fKd. Note.—For other cases, see United States Commissioners, Cent. Dig. §§ 5-15; Dec. Dig. § 3.* '</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4209-4270.]</p>

<p>1. Costs (§ 154*)—Taking qe Depositions—Evidence Used in More Than One Case.</p> <p>Wbere a deposition is originally taken under a stipulation that it shall be used in more than one case, a separate fee therefore may be taxed in each; but where it is originally taken in one case only, and subsequently by stipulation is used in another case, separate fees cannot be taxed.</p> <p>[Ed. Note.-—For other eases, see Costs, Cent. Dig. §§ 596-004; Dec. Dig. § 154.*]</p> <p>2. Admiralty (§ 124*)—Costs—Docket Fee—Cross-Libels.</p> <p>Two docket fees are taxable in an admiralty case, where there is a libel and cross-libel, although there is but one trial.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 836-857; Dec. Dig. § 124.*]</p>

<p>Fixtures (§ 27*)—Landlord and Tenant—Construction of Lease.</p> <p>A covenant in a lease, that “all improvement’s or additions made by the lessee shall not be detached from the property, but shall remain for the benefit of the lessor,” held to cover machinery of an ice cream plant operated by power, and to be binding on the parties, regardless of the general law of fixtures.</p> <p>[Ed. Note.—For other cases, see Fixtures, Cent. Dig. §§ 5, 22, 25, 44, 45, 54; Dec. Dig. § 27.*]</p>

In Equity. Suit by David A. Nease against the Coal & Coke Railway Company and others. On the 25th day of November, 1899, Henry C. Jackson, Albert B. White, and Y. B. Archer were the owners of a majority of the stock of the Little Kanawha Railroad Company. H, was desired by them to obtain a loan whereby this road could be extended, and its outstanding obligations could be liquidated.

In Admiralty. Suit for collision by Frederick Hale, master of the barge Elizabeth E. Vane, against the steamship Columbia, the Chesapeake Steamship Company, claimant, and the tug Howard Reeder, brought in under admiralty rule 59 (29 Sup. Ct. xlvi).

<p>Waters and Water Courses (§ 179*)—Obstruction oe Stream—Action fob Damages.</p> <p>While one who obstructs the natural flow of a stream is liable for damages thereby caused by flooding the lands of another, to entitle the latter to recover, it is not sufficient to prove the obstruction and that there was an overflow; but it must be further shown that the overflow would, not liave occurred, but for the obstruction, and the extent of the damage resulting from the overflow attributable to the obstruction must be traced.</p> <p>[Ed. Note.—For other cases, seo Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. § 179.*]</p>

<p>In Admiralty. Suit by G. D. Henrichs against the gasoline launch Ha Ha.</p>

In Admiralty. Suit by T. R. Symons, master of the British hark Port Caledonia, against 10,466 Barrels of Cement, to enforce a lien for freight, demurrage, and expenses claimed under a contract of affreightment. The British bark Port Caledonia was chartered for a voyage from Antwerp to Seattle and Tacoma.

<p>1. Bankruptcy (§ 57*)—"Act of Bankruptcy”—Concealment of Assets— “Concealed.”</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 3a (1), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), provides that acts of bankruptcy by any person shall consist of having conveyed, transferred, “concealed,” or removed, or permitted to be concealed or removed, any part of his property with intent to delay or defraud his creditors, or any of them. Held, that the word “conceal” means to hide or withdraw from observation, to carry or keep from sight, to prevent discovery of, or to withhold knowledge of; and hence a petition alleging that the bankrupt did deny and conceal ownership of a particular bank, so that the creditors, by virtue of deposits carried by them in the bank, were, by the acts and declarations of the bankrupt, misled into the belief that the bank belonged to another, and that within four months the petitioner concealed the assets of the bank by turning the same over to the executrices of decedent, to be by them administered as his property, sufficiently alleged concealment of property with intent to defraud creditors, and constituted an “act of bankruptcy.”</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 57, 66, 69-79; Dec. Dig. § 57.»</p> <p>For other' definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, pi 7562; vol. 2, pp. 1377-1384.)</p> <p>2. Bankruptcy (§ 57*)—Act of Bankruptcy—Concealment of Assets—In- . TENT.</p> <p>Where a bankrupt assigned- to the executrices of a decedent, to be administered as the property of his estate, the assets of the bank, which she, in fact, owned, undoubtedly for the purpose of conserving it in some manner for her own use, retaining an equity in the same to redeem in case there- was more property thán sufficient to pay the creditors, her intent concerning the bank and its assets must be regarded as one to conceal her property, whether she had any right to or control of all her property during the time of such concealment not being material as to the question of her intent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 57, 66, 69-79; Dec. Dig. § 57.*]</p>

<p>Salvage (§ 10*)—Services Entitled to- Compensation—Moving Vessel from Eire.</p> <p>Services rendered by vessels and doekmen in moving a vessel, which was in danger of fire by communication from another vessel, although rendered in connection with the salving of such other vessel, held salvage services, and entitled to compensation as such.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 18-20; Dec. Dig. § 10.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling. On petition for rehearing.</p>