Volume 196 — Federal Reporter

<p>1. Appeal akd Error (§ 970*) — Trial (§ 67*) — Review—Discretion op Court —Reopening Case.</p> <p>A party cannot as a matter of right aslt the court to reopen a ease for further evidence, after he has rested, hut such a request is addressed to the sound discretion of the court, and its ruling thereon will not be reviewed, unless a clear abuse of discretion is shown.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3S51: Dec. Dig. § 970 ;* Trial, Cent. Dig. § 157: Dec. Dig. § 67.*]</p> <p>2. Corporations (§ 401*) — Representation by Officer — Contract with Another Corporation of which He Was an Officer — Validity.</p> <p>That an officer of a corporation who in its behalf, and acting within his authority, made a contract with another corporation, was also an officer of the latter, does not invalidate the contract where the interests of the two companies were not adverse, and the one for which he acted could be in no way injured by carrying out the contract.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1363, 1364, 1595 ;' Dec. Dig. § 401.*]</p> <p>3.Bills and Notes (§ 493*) — Actions—Defenses—Burden of Proof.</p> <p>Defendant, who was president of a coal company, but resided in another state, on its behalf made an arrangement that it should become a depositor in plaintiff’s bank under an agreement that the bank should pay out the money only on presentation of a particular form of check or order. Being advised of an overdraft, he signed a note therefor on behalf of the company as president, and also indorsed it personally before delivery. Held that, in an action on the note, he was entitled to show as a defense that, in fact, the company was not indebted to plaintiff when the note was given, and that evidence that plaintiff charged to the company's account cheeks aggregating a large amount which were not in the form agreed on, nor signed by the officers required by the agreement, cast upon plaintiff the burden of proof to show that the money so paid out was actually applied to the use and benefit of the company.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1052-1662 ; Dec. Dig. § 493.*]</p>

Petition to Review, and Appeal from, an Order of the District Court of the United States for the Southern District of Ohio. In the matter of bankruptcy proceedings of David Rohrer. On petition of Edward M. Pattison to review, and appeal from, an order of the District Court (186 Red. 997) denying petitioner’s claim as against Charles W. Dale andi others, trustees of the bankrupt, to certain whisky in distillery warehouses, pledged by the bankrupt.

<p>1. Couets (§ 489*) — Jurisdiction or Federal Courts — Suit to Enforce Mechanic’s Lien.</p> <p>A federal court of equity has jurisdiction of a suit to enforce a mechanic’s lien given by a state statute where there is the requisite diversity of citizenship and amount involved, although the statute may designate a particular state court in which such suits shall be brought.</p> <p>LEd. Noté. — For other cases, see Courts, Cent. Dig. §§ 1324^-1330, 1333-1341, 1372-1374; Dec. Dig. §.489.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams. 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Courts (§ 342*) — Suit to Foreclose in Federal Court — Form oe Suit.</p> <p>,Where a federal court has jurisdiction of a suit to enforce a mechanic's lien because of diverse citizenship and the amount involved, the form of the suit, whether in equity or at.law. is determined by the rules governing its own jurisdiction and procedure, and not by the state statute creating the lien.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 912, 913; Dec. Dig. § 342.*]</p> <p>&. Pleading (§ 406*) — Objection That Suit Was Prematurely Brought— Waiver by Failure to Demur.</p> <p>In a suit to foreclose a- mechanic’s lien, where the contract is made a part of the bill, and shows that by its terms the contract price was not due when the suit was brought, the objection should be taken by demurrer. and is waived by an answer to tbe merits wbicb also sets up a counterclaim on which an affirmative judgment is demanded.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1371, 1380; Dec. Dig. § 406.*]</p> <p>4. Contracts (§§ 284, 232*) — Building Contracts — Substantial PERFORMANCE — WaiVEI! OF STRICT PERFORMANCE.</p> <p>Fnder a building contract providing that no alterations from the specifications should be made except on written order of the architects or owner, and, when so made, the value of the work added or omitted should be computed l>y the architects, and, if either party dissented, determined by arbitration where the contract was not strictly observed by either party, some alterations being ordered in writing and others orally, and it did not appear while the work was in progress that there was any difference between them as to the value of extra work, the owner who has taken possession of and used the building cannot defeat a suit for such extra work on technical grounds because written orders thereto? were not always given nor because there was no previous arbitration.</p> <p>[Ed. Noté. — For oilier cases, see Contracts, Cent. Dig. §§ 1292-1302, 1808-1310, 1312-1316, 1326-1338, 1840-1342, 1344-1346, 1350, 1351; Dec Dig. §§ 284, 232.*]</p> <p>5. Contracts (§ 300*) — Building Contracts — Delay in Completion of Work —Liquidated Damages.</p> <p>A provision of a building contract requiring the contractor to pay a stated súm per day as liquidated damages for delay beyond a given date in completing the work is valid, and the courts will not refuse to enforce it because a part of the delay was caused by the owner or other contractors for which he is responsible, where either by competent and satisfactory evidence or by a contractual standard fixed by the parties themselves the delay can be apportioned between them with reasonable certainty.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1372-1381; Dec. Dig. § .300.*]</p> <p>6. Contracts (§ 348*) — Building Contracts — Delay in Completion of Work —Provision for Liquidated Damages.</p> <p>A provision in a contract for a building that the contractor should pay 850 per day as liquidated damages for each day the completion of the building was delayed beyond a specific date, but that he should “have credit for such days as the architects and owner shall certify at the time, as days when the weather forbids work, and credit for each and every day he is delayed by the owner or other contractors employed by tbe owner,” makes the contractor liable prima facie for each day the work was delayed, and he has the burden of proving the days for which he is entitled to credit by certificates from the architects or otherwise.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1095, 1754-1759, 1762-1780; Dec. Dig. § 348.*]</p> <p>7. Mechanics’ Liens (§ 157*) — Bight to Lien — Filing of Excessive Claim.</p> <p>The statutory right to a mechanic’s lien cannot be denied because tbe claimant filed an excessive claim.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 268-27-1; Dec. Dig. § 157.*]</p>

Suit by the Detroit Trust Companj*, trustees of the estate of Charles Coates, bankrupt, against the Pontiac Savings Bank, impleaded with Charles Coates. Decree for complainant, and defendant appeals.

<p>In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action by the United States of Atnerica against the Pacific Creosoting Company. Judgment for plaintiff, and defendant brings error.</p> <p>The government brought this action in the court below, charging in the first count of its complaint that the defendant there (the plaintiff in error here) imported into the United States from London, and on the 3d day of August. 1908, entered at the United States customhouse at the port of Tacoma, state of Washington, 2,181 iron drums containing creosote, and that on November 27, 1909, the entry was duly liquidated by the collector of customs for the district of Puget Sound, and there was found to he due to the plaintiff the sum of $6,507.80 as duties upon the merchandise, which was of the value ol' $11,594, demand for which duty had been duly made and the payment thereof refused. In its second count the plaintiff alleged that on the 29th of August. 1908, the defendant imported, into the United States from London and entered at the United Stares customhouse at the port of Tacoma 1,000 steel drums and 482 barrels, all containing creosote, and that on November 27. 1909, that entry was duly liquidated by the collector of customs for the district of Puget Sound, and there was found due to the plaintiff the sum of 84,402.65 as duties upon tile merchandise, which was of the value of $9.917, and that demand had been duly made for such duty on the defendant, which the defendant refused to pay.</p> <p>In its answer the defendant denied that the entry of the merchandise mentioned in the first count of the complaint was ever liquidated at any time after ¡September 15, 1908, and denied that there ever was found upon liquidation thereof any duty due thereon, and denies that there ever was any such duty due. The answer further set up by way of affirmative defense that more than one year prior to November 27, 1909, and more than one year prior to the alleged and attempted liquidation referred to in the first count of the complaint, the said drums were entered and were passed free of duty by the collector of customs for the district of Puget Sound, and delivered to the defendant, who was the owner and importer thereof. The answer contained similar denials and a similar affirmative defense in respect to the creosote mentioned in the second count of the complaint. A reply filed by the government put in issue the affirmative averments of the answer. Upon the trial, after the evidence was closed, the court, upon motion of the government’s attorney, instructed the jury to return a verdict for the plaintiff, which was done, and the defendant to the action has brought the case here by writ of error.</p>

<p>In Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Action by Napoleon Dubois against the International Paper Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by the Denver Engineering Works Company against John P. Elkin and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Patents (§ 328*) — -Validity and Infkingement — Electric Switch.</p> <p>A preliminary injunction, restraining infringement of the Emmet and Hewlett patent, No. 789,597, for a high potential switch, held properly granted on the evidence.</p>

<p>Patents (§ 328*) — Validity and Infringement — Electric Elevator.</p> <p>The Rowntree patent, No. (16(5,699, for a signaling system: for electric elevators, which enables a single person at the motor to control their movement, covers a new combination and arrangement of known elements, resulting in greatly improved operation and discloses patentable invention; also held infringed.</p>

<p>1. Patiokts (§ 298'*) — Suit for Infringement — Preliminary Injunction.</p> <p>In a patent suit, if tliere appears to be any fair* question as to infringement, a preliminary injunction will not be granted.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 478; Dec. Dig. § 298.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Poos Mfg. Co., 72 C. C. A. 123.]</p> <p>2. Patents (§ 298*) — Suit foe Infringement — Preliminary Injunction— . Plunger Elevators.</p> <p>A preliminary injunction against alleged infringement of the Larsson patent, No. 963.905, for a plunger hydraulic elevator, denied on the ground that infringement was not shown with sufficient certainty.</p> <p>1'Ed. Note. — For other cases, see Patents, Cent. Dig. § 478; Dec. Dig. § 298.*]</p>

<p>In Equity. Suit by the Auto Spring Repairer Company against David Grinberg and Adolph Morris, sued as the Manhattan Storage Company, and Adolph Morris, doing business as the Manhattan Storage Company. On final hearing. Decree for defendants.</p>

<p>In Equity. Suit by Carl Rauhe against Henry D. Justi and Henry M. Justi. On demurrer to bill.</p>

<p>In Equity. Suit by the North Star Lumber Company against John W. Johnson and others. Decree for plaintiff.</p>

In Admiralty. Suit by the Nicholas Transit Company, as owner of the steamer John N. Glidden, against the Pittsburgh Steamship Company, as owner of the steamer Empire City and the barge Magna. Décree for respondent.

<p>1. EVIDENCE (§ 508*) — Suit for Collision — Evidence as to Speed of Overtaking Vessel.</p> <p>While it is a general rule that the testimony of witnesses on board a vessel as to what took place thereon Is entitled to more weight than the testimony of witnesses on other boats, yet the testimony of the officers of an overtaken vessel, who are experienced navigators and know the speed of their own vessel, as to the speed of the overtaking vessel, is entitled to consideration.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2892-2:594-Dec. Dig. § 568.*]</p> <p>2. Collision <M 52, 51*) — Overtaking Vessels — Bulbs Governing.</p> <p>Under rule 20 of the navigation rules for the Great Lakes (Act Feb. 8, 1895, e. 64, 28 Stat. 645 [U. S. Comp. St. 1901, p. 2891]), a vessel which has assented to the passing of an overtaking vessel is bound to keep her course and speed, but by rule 22 the overtaking vessel is required to keep out of the way, and to run at moderate speed in order to reduce the size of her displacement waves and the danger from her suction, especially in narrow channels.</p> <p>[Ed. Note.- — For other cases, see Collision, Cent. Dig. §§ 62, 57-61; Dec. Dig. §§ 52, 51.*</p> <p>Collision by overtaking vessels, see note to The Kebecca, 60 C. C. A. 254.]</p> <p>3. Collision (§ 51*) — Overtaking Vessels — Effect of Displacement Waves.</p> <p>The theory that the displacement waves of a large vessel when passing a smaller may cause the latter to sheer is recognized in the admiralty law of this country, and imposes upon the larger vessel when overtaking the smaller the duty of keeping at such a distance as to avoid the effect of such force.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 57-61; Dec. Dig. § 51.*]</p> <p>4. Collision (§ 66*) — Overtaking Vessels — Fault of Overtaking Steamer.</p> <p>A collision in the Detroit river between the steamer Glidden, passing up and the overtaking steamer Princeton held on the evidence due solely to the fault of the Princeton, which was much the larger vessel, in failing to keep out of the way, and in navigating at such high speed and so close to the Glidden as to cause the latter to Sheer.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 84; Dec. Dig. § 66.*]</p>

<p>In Admiralty. In the matter of the Condor. Suit for wages.</p> <p>B. B. Coyne, for libelants.</p> <p>John M., Woolsey, for claimant.</p>

<p>Proceedings for deportation by the United States against Chin Kee. From an order of deportation, defendant appeals.</p>

In Equity. Suit by Merchants’ National Bank of Baltimore against the Roxbury Distilling Company. On exceptions to report of John Hinkley, Special Master. Held: in an opinion by Robinson, .T. (Alvoy, 0. ,L, dissenting), that a canner could not, by issuing a storage receipt for tomatoes canned by him, make himself a warehouseman and could not be convicted under Act of 1876, c. 262, for unlawfully delivering the goods for which such a receipt had been issued.

<p>In Equity. Suit by Arthur Hirsch and others against the Independent Steel Company of America and.others. On demurrer of Taylor & Robinson to bill.</p>

In Equity. Suit by John O. Ulrich, trustee, against William H. Freedman, prime trustee, Joseph J. Mackeown, trustee, Irene M. Mul-holland and Katherine Meier, administratrices of the estate of John Mulholland, deceased, Irene M. Mulholland and John Mulholland, incorporated. On demurrer to bill.

<p>Application for a writ of habeas corpus by Frank Januszewski for his discharge from imprisonment in the Boys’ Industrial School.</p>

In the Matter of Soloway & Katz, bankrupts. Proceedings to punish the bankrupts for contempt in failing to obey a referee's order requiring them to produce certain missing books and papers for the benefit of the trustee.

In Admiralty. Suit by the Port of Portland against the steamship George W. Elder to recover for services rendered in raising and1 keeping the Elder in diry dock for and while undergoing repairs. The Elder, while navigating the Columbia river below Portland and near Goble, ran upon a rock and sank. This was in January, 1905. Her owners surrendered her to the underwriters, who, in turn, being unable to raise her, sold her at auction to J. H. Peterson.

<p>CORPORATIONS (§ 460*)-BORROWING MONEY — AUTHORITY—Ul/l'RA VlRES.</p> <p>Two thousand shares of the stock of a corporation, having been subscribed and paid for, the subscribers signed a syndicate agreement to take the balance, appointing 13. and W. managers. The subscribers failing to pay tlioir subscriptions, E. and W. bought from the corporation the remaining shares, giving it their own note for $800,000 in payment. The corporation then arranged with them, as syndicate managers, and with a trust company, to deposit the note, and, as security, all of the certificates of stock of the coi’pgration, the syndicate agreement, and certain other securities, pursuant to a scheme to sell certificates of participation in the note, the money received to be paid to the corporation. Participation certificates were sold to the amount of $290,000, leaving the corporation’s interest in the note about $.‘>52,500. whereupon the corporation, in order to prevent the holders of the participation certificates from taking some action to enforce their interest, borrowed $300,000 from a mining company. with which it took up the outstanding participation certificates, and pledged the note to the lender, with certain other property as collateral. Held that, in the absence of fraud, the note given the mining company for the loan was valid, and not ultra vires of the corporation.</p> <p>ri3d. Note. — For other eases, see Corporations, Cent. Dig. § 1813; Dec. Dig. § 460.*]</p>

In Admiralty. Suit by James P\ Dwyer and others, owners of the barge Ryder, against the steamship American and the steamtug St. Patrick for collision. Decree against the American.

In the matter of the United Wireless Telegraph Company, Bankrupt. On motion by John II. Hill, Philip G. Clifford, and Robert IT. Montgomery, Trustees, to stay suit in state court. This is an application by the trustees in bankruptcy of the bankrupt corporation for an order staying the prosecution by the plaintiffs therein of a suit in ihe Supreme Court of the state of New York against the bankrupt corporation, its subsidiary, and the directors of the bankrupt.

<p>At Law. Action by the Board of Chosen Freeholders of Cumberland County against the J. V. Paxson Company. Trial to court. Judgment for plaintiff.</p>

<p>In Equity. Suit by the United States against Thomas Mani, John Mani, and John Ironboy. On demurrer to bill.</p>

<p>In Admiralty. Suit by the Simon Fruit Company against the Danish steamship Ask. On final hearing. Decree for respondent.</p>

<p>Petition by Walter Konrad Geissler.for a writ of habeas corpus and certiorari to obtain his release from arrest in foreign extradition proceedings.</p>

At Raw. Action by Sophia K. Bankson, administratrix of the estate of David E. Bankson, deceased, against the Illinois Central Railroad Company. On motion to require plaintiff to separate petition, into counts and to elect between them.

<p>Eminent Domain (§ 197*) — Proceedings—Dismissal—Vacation op Order.</p> <p>A court may properly in the exercise of its discretion vacate an order made in a proceeding by the United States to condemn land below high-water mark as a site for a lighthouse, and permit it to dismiss, where the law officers of the government have concluded that it has the right to use the land for the purpose without making compensation, and desire to avoid the effect of the order as a precedent.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 527; Dec. Dig. § 197.*]</p>

<p>In Equity. Suit by the Yale & Towne Manufacturing Company against Clement Restein and others. On final hearing. Decree for defendants.</p>

Suit by the Casper Company, Incorporated, against T. N. Angle and others. From a decree for complainant, defendant J. H. Pigg, trustee, and another, appeal. This is a suit in equity instituted on the 22d day of February, 1909, in the Circuit Court of the United States for the Western District of Virginia.

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>Aotion by John R. Hart, as administrator of the estate of Chester B. Starr, deceased, against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Action by S. H. Velie, doing business as the Velie Motor Company, against the American Fidelity Company. Judgment for plaintiff, and defendant brings error. This is an action by the owner against the surety on a contractor’s bond conditioned for the faithful performance by the contractor of a contract to build a garage for the owner.

<p>Insurance (§ 867*) — Life Insurance — Construction of Contract.</p> <p>A life insurance policy provided that, after the payment of three annual premiums “except in ease of failure to pay at maturity a note given for premium or for a loan,’’ no surrender for a paid-up policy having been made, in case of default in payment of a subsequent premium, the reserve to the credit of the policy should be applied to its extension as a paid-up term policy. A further condition was that the failure to pay any notes given for premiums should avoid and nullify the policy. The insured paid four annual premiums and about three-fourths of the fifth, giving short time notes for the remaining fourth, which wore past due and unpaid when he died eight months later. The reserve was more than sufficient to pay two annual premiums. Held that, while the contract was susceptible of a construction by which it was forfeited, taking its provisions together and in view of the rule that forfeiture is not favored, and that any ambiguity should be resolved in favor of the insured, it was not so clear and unambiguous as to justify the court in imputing to the parties an intention to place the insured in a worse position because of his partial payment and giving of the notes for the last premium than would have been tbe case if he had made complete default, but that the notes referred to in such provisions must be limited to such as were given for one of the first three year premiums.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 985, 938; Dec. Dig. § 367.*]</p>

Action by the First National Bank of Cincinnati, Ohio, against W. R. Eelker, doing- business under the name and style of Bank of Rogers. Judgment for plaintiff (185 Fed. 678), and defendant brings error.

Ejectment by Charles E. Gibson against George M. .Ruther and another. From a judgment awarding part of title to the property in controversy to plaintiff and part to defendants, both parties bring error.

Libel by Charles L. Walker against the Monad Engineering Company.

Suit by Robert Eelty, in his own right and as trustee, and others, against C. R. Vasbinder and others, partners trading as the Elk Lick Lumber Company. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from and in Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit by Henry King Sturdee and another against the Cuba Eastern Railroad Company. There was an order and decree denying the claim of John E. Berwind, and he appeals and brings error.</p>

<p>Patents (§ 328*) — Infringement—Chain Tire Grip.</p> <p>The Parsons patent, No. 723,299, for a chain tiro grip for automobile wheels, conceding its validity, he,Id infringed on a motion for preliminary injunction by a chain grip made and sold by defendant constructed substantially like that of the patent, but with which defendant supplies to liurehasers two chain straps to secure the grip from traveling around the wheel, with a circular instructing them to attach such straps, which instructions purchasers may or may not follow; the grip being capable of use without, them.</p>

<p>In Equity. Suit by the Parsons Non-Skid Company against Benjamin M. Asch. On motion for preliminary injunction.</p>

<p>1. Covenant, ■ Action of (§ 12*) — Action for Breach — Pleading.</p> <p>* Counts in a declaration in covenant, which do not allege a breach of covenant, but merely infringement of certain patents, are demurrable.</p> <p>[Ed. Note. — For other cases, see Covenant, Action óf, Cent. Dig. § 16; Dec. Dig. - § 12.*]</p> <p>2; Covenant; Action oe (§ 12*) — Action for Breach — Pleading. .</p> <p>A declaration on a covenant contained in an instrument which is produced cannot be aided by allegations setting forth a covenant different from that in .the original document.</p> <p>[Ed. Note. — For.other cases, see Covenant, Action of, Cent. Dig. § 16; Dec. Dig. §' 12.*]</p> <p>3. Patents (§ 211*) — Licenses—Construction.</p> <p>A provision for • the payment of royalties, in a contract granting a 'license-to use a-patented process for producing glycerine, construed, and held not to amount to a covenant by the licensee- to treat all "its material by such process during the term of the license.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 304r-311; Dec. Dig. § 211.*] ......</p> <p>4. Patents (§ 218*) — Licenses—Construction.</p> <p>A proviso' in .'a contract of license to. use a patented process, requiring the payment of royalties on all the product of the licensee made by such- process,” to be determined from quarterly statements to lie furnished the'licensor, cannot'be regarded as creating a severable eov-énant by the licensee to render such statements.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 330-338; Dec. Dig. § 218.*]</p>

<p>In Equity. Suit by Parsons Non-Skid Company, Limited, Weed Chain Tire Grip Company, and Harry D. Weed against the McKinnon Chain Company. On motion for. preliminary injunction.</p>

At Raw. Action by Henry Gale Cochran, Hallie May Shelton, and Julia Sophia Abbey against Rewis I. Brannan and Henry W. Snow. Oh motion' by plaintiffs to set aside nonsuit taken by them on the trial to reinstate'the cause and for a new trial.

<p>T. Shipping (§ 42*) — Cuartee—Abandonment op Voyage — Bight op Charterer to Kecover por Coal Consumed.</p> <p>Where a charter of a steamship required the charterer to furnish coal, and after she had entered on her voyage, the vessel proved unseaworthy, and was obliged to return to the port of departure and abandon the voyage, the charterer is entitled to recover the value of the coal consumed on the uncompleted voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 156-164; Dec. Dig. §-42.*]</p> <p>2. Shipping (§ 42*) — Charter—Abandonment op Voyage — Cross-Demands op Charterer and Owners.</p> <p>The United-States chartered a steamship for a voyage to Manila, to report for loading at San Francisco at a specified date, the government to furnish her coal. The vessel was at Seattle, and was requested by the government to load bunker coal at Tacoma before proceeding to San Francisco, which she did. After leaving San Francisco, she proved un-se.aworthy and returned, and the voyage was abandoned. Held that, in the absence of any agreement or claim therefor at the time, the vessel was not entitled to freight on the coal carried from Tacoma to San Francisco as a set-off against the claim of the government for the value of the coal consumed on the abandoned voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 156-164; Dec. Dig. § 42.*]</p>

<p>Bankruptcy (§ 170*) — Payments to Attorney — Legality.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 60d, 80 Stat. 562 (U. S. Comp, ot. 1901, p. 3446), which provides that if a debtor shall in contemplation of bankruptcy pay money or transfer property to an attorney “for services to be rendered the transaction shall be re-examined by the court on the petition of the trustee or any creditor, and shall only be valid to the extent of a reasonable amount,” etc., the payment by a bankrupt to an attorney of a reasonable fee for services in relation to his indebtedness is valid, and not preferential, whether such payment was made before or after the services were rendered.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 207, 271; Dec. Dig. S 170.*]</p>

<p>Reference (§ 6*) — Power to Refer in Eedebal Courts — Actions at Law— Appointment of Auditor.</p> <p>A federal court lias no power to appoint a referee to hear and determine all the issues in an action at law in which the defendant is entitled ■to a jury trial, unless waived by stipulation under Rev. St. §§ 648, 649 (U. S. Comp. St. 1901, p. 525); but it may appoint an auditor to simplify the issues, where items of account are involved which are so numerous or complex as to render it necessary for the understanding of the jury.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. § 6; Dec. Dig. § 6.*]</p>

At Law. Action by the Compañía Mexicana de Cemento Portland against Horace A. Waite and another. On motion by defendant Whitney for judgment notwithstanding a verdict for plaintiff.

<p>1. Waters and Water Courses (§ 200*) — Municipal Water Supply — Contracts — Statutes—Application.</p> <p>Bev. St. Mo. 1909, § 336S, which is a part of article 7, relating to manufacturing and business corporations, provides that the municipal authorities of any city are authorized to contract with any such corporations for lighting or supplying with water the streets and public places of the city for a length of time which shall be agreed on, not exceeding 20 years, and that the provisions of the section should apply to all cities, towns, and villages, whether organized by special charter or under the laws of the state, provisions -of any special charter to the contrary notwithstanding, provided that contracts entered into under such section should have no legal form until submitted to a referendum vote and ratified by a two-thirds majority of the legal votes polled at election. Reid, that such section did not confer power on the city to contract with bodies corporate other than therein named, nor with natural persons, and had no application to a contract between a city and certain individuals to whom a waterworks franchise had been granted to furnish water to the city in consideration of a payment of certain hydrant rentals without any limitation as to time, though it was the purpose of the individuals with whom the contract was made; to transfer their rights to a corporation to he formed for that purpose.</p> <p>¡Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 271; Dec. Dig. § 200.*]</p> <p>2. Waters and Water Courses (§ 20!!*) — Purchase of Sui'blies — Order— Absence of Contract — City’s Liability.</p> <p>Rev. St. Mo. 1009, § 2778, provides that no city shall make a contract unless the same shall he within the scope of its powers or be expressly authorized by law, nor unless such contract be made on a. consideration wholly to be performed or executed subsequent to the making of the contract. and the contract including 1 lie consideration shall he in writing and dated when made subscribed by tbe parties thereto, or their agents authorized by law and duly appointed and authorized in writing. Held that, under such section as construed by the Missouri Supreme Court, a city, in the absence of a written contract, could not be made liable for the reasonable value of water furnished to and used by it.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 289. 290-290; Dec. Dig. § 203.*]</p>

<p>In Equity. Suit by the United States against the Golconda Cattle Company. Decree for complainant.</p>

In the matter of bankruptcy proceedings of the Marx Tailoring Company. On petition to review referee’s order denying the petition of Julius Winter, Jr., to reclaim property.

<p>In the matter of the bankruptcy proceedings of McCarthy Portable Elevator Company. On petition to review a referee’s order allowing a claim of Fred C. Keeney.</p>

<p>In the matter of the Monarch Corporation, bankrupt. On trustee’s motion to accept and confirm by action the master’s report concerning a stock assessment. Motion denied.</p>

<p>1. Courts (§ 274*) — Foreign Corporation — Jurisdiction—Service of Process — Carrying on Business — “Doing Business.”</p> <p>The fact that motor cars built by defendant, a foreign corporation located at Detroit, and having no certificate authorizing it to do business in New York, and no established place of business in the state, were shown in a space leased by defendant at a New York automobile exhibition, and that defendant’s officers were present conferring with different persons, including local sales agents, all of the complete cars exhibited, however, being owned by a local concern, did not constitute a doing business in the state which will sustain service of summons upon it therein to give jurisdiction to a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1162-1164, 1167, 1168; Dec. Dig. § 274.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640-7641.</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & 6. Meakin, 33 C. C. A. 585; Ammons v. Brunswiek-Balke-Collender Co., 72 C. C. A. 622.]</p> <p>2. Courts (§ 274*) — Service on Foreign Corporation — Doing Business in State.</p> <p>While the extent to which a foreign corporation must do business in a state to justify the service of process upon it there is not clearly defined, the transaction of some substantial business must be established.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1162-1164, 1167, 1168; Dec. Dig. § 274.*</p> <p>Service of process on foreign corporations, see notes to Eldred v. American Palace-Car Co. of New Jersey, 45 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p>

<p>Civil action by the United States of America against John W. Green. In the matter of taxation of costs.</p>

In the matter of S. C. Osborn, doing business as S. C. Osborn & Co., bankrupt. From a judgment confirming an order of the referee denying a petition of the Purcell Safe Company, it appeals adversely to Nelson W. Parker, trustee. S. C. Osborn, doing business as S. C. Osborn & Co., at Seattle, Wash., was adjudicated a bankrupt and Nelson W. Parker, the appellee, was duly appointed trustee of the bankrupt estate by decree of the District Court entered December 28, 1910.

Criminal prosecution y the United States against Abraham Tucker. Judgment of conviction, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Criminal prosecution by the United States against David Shapiro. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Criminal prosecution by the United States against Philip Blum. Judgment of conviction, and defendant brings error.</p>

In' Error to the Circuit Court of the United States for the Eastern Division, of the Eastern District of Washington. Consolidated actions at law by Wayland Sloan and Lewis Sloan, minors, by J. Sloan, their father and guardian ad litem, against the Great Northern Railway Company. Judgments for plaintiffs, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Action by the Underground Electric Railways Company of Rondon, Limited, against Louis S. Owsley, as executor, etc., of Charles T. Yerkes, Charles Sims, and others, as executors of Mary Adelaide Yerkes, and Charles E. Yerkes and others. Erom a decree dividing a certain fund reserved under a prior decree (190 Fed. 679), Sims and others and Owsley prosecitte cross-appeals.</p> <p>Cross-appeals by Charles Sims and others, as .executors of the will of Mary Adelaide Xerkes, deceased, and by Louis S. Owsley, as executor of the will of Charles T. Xerkes, deceased, from a decree of the Circuit Court, Southern District of New Xork, entered November 11, 1911, dividing a certain fund reserved under a prior decree of said court in said cause.</p> <p>In April, 1909, the Underground Electric Railways Company, a creditor of the estate of Charles T. Xerkes, filed a bill in the Circuit Court praying, among other things, for the appointment of a receiver to take possession of certain real and personal property of'said estate situated in the city of New Xork, and- a receiver was duly appointed. The opinion of the Circuit Court, with respect to the appointment of a receiver, is reported in 169 Fed. 671, and that of this court in affirmance in 176 Fed. 26, 99 C. C. A. 500.</p> <p>At the time of the appointment of the receiver the property was in the possession of Mary Adelaide Xerkes, widow of Charles T. Xerkes, who claimed to own the greater part of it, both the real and personal.</p> <p>In January, 1910, a decree was entered by the Circuit Court in said cause directing, among other things, the sale by the receiver of the real estate aforesaid and the payment to said widow of the cash value of her dower interest therein, in accordance with the provisions of a settlement agreement theretofore entered into by the parties in interest. This agreement provided that the widow should waive any claim of ownership and should receive the cash value of her dower in the real estate in question estimated under a rule of the Supreme Court of New Xork. This amounted to 20.18 per cent, of the cash value of the real estate. The widow had also waived the provisions of the will of her husband giving her the life use in certain of the New Xork real estate.</p> <p>The settlement agreement further provided that during the pendency of the receivership cause and until a sale thereof, the widow should continue to occupy the real estate “without rent or other charge therefor for any period since the death of said Charles T. Xerkes.”</p> <p>The taxes assessed against said real estate during the lifetime of Charles T. Xerkes, and which were' unpaid at his decease, amounted with interest to $81,266.08. The taxes assessed against said real estate after the death of Charles T. Xerkes and down to the time of the sale of the same in pursuance of said decree of January, 1910, amounted, with interest, to $110,113.49.</p> <p>The parties in interest were unable to agree whether any or all of said unpaid taxes should be deducted from the sale price of said real estate before estimating the cash value, of the widow’s dower under the settlement and, consequently, said decree of January, 1910, provided that the incumbrances, including taxes, should be paid by the receiver and that after payment of 20.18 per cent, of the residue to the widow there should be reserved a “further sum of 20.18 per cent, of the amount paid for taxes on said property, it being left to the further determination and order of this court what portion thereof, if any, is payable to the widow in settlement of her dower in said property.”</p> <p>In accordance with the foregoing provision the sum of $38,620.40 was reserved by the receiver from the proceeds of the sale and such sum is now in his hands.</p> <p>The Circuit Court ruled that the taxes which had accumulated during the life of said Charles T. Xerkes were to be disregarded in estimating the cash value of the widow’s dower and, consequently, that the amount reserved as against the payment of such taxes should be paid over to the executors of the widow (she having died during the pendency of the proceedings), but that the taxes which had accumulated after the death of the husband were to be treated as liens upon the real estate superior to the dower and that the amount reserved against such taxes should be paid o'ver to the executor of the husband.</p> <p>The executor of the husband’s estate and the executors of the widow’s estate have taken cross-appeals to this court.</p>

Action at law by I. C. Rogers against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. In October, .1908, Rogers, who, at that time, was 19 years old and was employed as a switchman in the Chattanooga yards of the Railway Company, was struck by a passing train, and he brought this action for damages from the resulting injury.

<p>1. Bankruptcy (§ 467*) — Appellate Proceedings — Review—Findings op Eact.</p> <p>Where the testimony is conflicting in a bankruptcy matter, and the findings of fact of the referee and district judge are the same, the facts will not be inquired into by an appellate court, unless there is plain error.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.)</p> <p>2. Bankruptcy (§ 303*) — Voidable Preference — Evidence.</p> <p>Evidence considered, and held to sustain a finding that a large payment by a bankrupt to a creditor a short time before the bankruptcy and when he knew himself to be hopelessly insolvent was made with intent to give a preference, and accepted by tbe creditor with reasonable cause to believe that it was so intended.</p> <p>|Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458--162; Dec. Dig. § 303.*]</p> <p>8. Bankruptcy (§ 303*) — Preference—Intention of Debtor.</p> <p>If the effect of a payment by an insolvent debtor to a creditor within four months prior to the debtor’s bankruptcy was to create a preference, and such was its natural and necessary consequence, he must be presumed to have intended to give a preference.</p> <p>IK cl. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dee. Dig. § 803.*]</p> <p>4. Bankruptcy (§ 165*) — Preference-—1Trust Funds.</p> <p>Money due from a bankrupt as trustee and which cannot be distinguished from any other money in his possession or under his control, or which is due from him only because he has used trust funds for his own purposes or otherwise misapplied them, cannot be considered as money held by bim in. trust, but constitutes an indebtedness and a payment thereon within four months prior to Ms bankruptcy, and, when insolvent, creates a preference.</p> <p>]Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dee. Dig. § 165.*]</p>

Suit in equity by Henry C. King against U. B. Buskirk, trustee, and Alexander Stafford. Decree for defendants, and complainant appeals.

<p>In Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Action by the C. W. Rantoul Company against the Claremont Paper Company. Judgment for plaintiff, and both parties bring error.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the Western District of Washington, in Bankruptcy.</p> <p>In the matter of bankruptcy proceedings against Matt Flatland and Clara A. Flatland,' his wife. Petition by I. H. Jennings, trustee of the bankrupts, for revision, in matter of law, of an order sustaining a chattel mortgage in favor of Winfield S. Mann.</p>

<p>1. INJUNCTION (§ 26*) — Subjects of Belief — Actions at Law — Want of Jurisdiction.</p> <p>It is a general rule that, where a court is proceeding in an action at law without jurisdiction, no injunction will be granted to restrain the plaintiff therein, since the proceeding is void, at law and the law affords an adequate remedy, and such rule applies to a case where the complainants in equity are strangers to the action at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24 — 19, 54-61; Dec. Dig. § 26.*</p> <p>Bestraining proceedings in federal courts, see note to Clapp v. Otoe County, Neb., 45 C. C. A. 591.]</p> <p>2. Injunction (§ 26*) — Suit to Bestbain Action at Law Against Irrigation District — Bight of Taxpayers to Maintain.</p> <p>' Taxpayers residing within an irrigation district organized under St. Cal. 1887, p. 33, known as the Wright Act, cannot maintain 'a suit in equity to enjoin the prosecution of an action at law brought against the district on its bonds on the ground that the bonds are void, that the persons served are not officers of the district, and that it has no officers to represent it, and especially where it is not shown that any application has been made to the board of supervisors of the county to appoint directors for the district as authorized by section 10 of the act in case of vacancies.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24 — 49, 54^61; Dec. Dig. § 26.*]</p> <p>3. Waters and Water Courses (§ 225*) — Irrigation District — Legality of Organization — Collateral Attack.</p> <p>Under the decisions of the Supreme Court of California which are binding on a federal court, the question of the legality of the organization of an irrigation district may not be raised collaterally if the district is acting under color of law and the state acquiesces therein.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 317; Dec. Dig. § 225.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>George W. Emanuel was convicted! of conspiracy to defraud by use of the post office establishment, and he brings error.</p> <p>This cause comes here upon appeal from a judgment of 'the Circuit Court, Southern District of New York, which found plaintiff in error guilty as charged In two indictments out of a number upon which he was tried. Plaintiff in error was one of three defendants below. One of these, Thomas, was acquitted and the other, Larabee, was convicted upon three indictments. All these indictments were also against others as to whom the trial was severed, because one (Samuels) was never apprehended and another (Prince), though apprehended, escaped.</p> <p>’There were in all six indictments, and all of the five defendants above were included in eacli indictment. The first five indictments were for fraudulent-use of the mails under section 5480, IT. S. Rev. Stat. (IT. S. Comp. St. 1901, X>. 3696). while the sixth was for a conspiracy, under section 5440 (U. S. Gomp. St. 1901, p. 3676), to commit the substantive offenses set forth in the other five, and similar offenses as part of the same scheme.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Suit in equity by the Northern Pacific Railway Company against King County, Wash., and others. Decree for complainants, and defendant appeals.</p> <p>The appellee filed its bill to enjoin, tbe appellants from proceeding to collect a tax levied upon its roadbed and operating property by tbe county board of equalization of King county in tbe year 1907. Tbe injunction was sought, on the ground that tbe tax was illegal and in conflict with the statutes of tbe state. The bill alleged that tbe State Board of Tax Commissioners in January, 1906, classified the different railroad properties of tbe state for tbe purpose of assessment and taxation for tbe years 1906 and 1907, and that it did fix tbe valuation and assessment for tbe purposes of taxation of different classes of railway tracks as follows: All railway tracks classified as first class at $14,520 per mile; all railway tracks classified under first class B at $10,560 per mile; all tracks classified as second class at $7,920 per mile; all railway tracks of third class at $4,752 per mile; all railway tracks of fourth class at $2,112 per mile, and all railway tracks classified as second track at $7,920 per mile. Tbe bill further alleged that tbe Board of Tax Commissioners gave tbe various county assessors of tbe state advice and direction to place the said valuation upon the property of railroad companies for assessment purposes, and that those directions were followed throughout tbe state in the year 1906. Tbe bill then alleges that for tbe purposes of assessment and taxation for tbe year 1907 tbe county assessor of King county listed tbe appellee’s lines of tracks at the. valuation as equalized by the county board of equalization in the year 1906, but that in the month of August, 1907, tbe board of equalization of King county, acting at tbe instance and direction of one of tbe members of said Board of Tax Commissioners, who claimed to represent the board, raised tbe valuation of tbe assessment so fixed in tbe year 1906 for the years 1906 and 1907 to $25,410 per mile for first-class railroad tracks, and made similar increase of assessment on other classes of tbe appellee’s property, and that this was done against tbe protest of tbe appel-lee, which was duly made to said board of equalization. Tbe bill alleges that the Board of Tax Commissioners did not give directions to any other assess- or or board of equalization in any other county of tbe state than Iiing county in 1907 to raise the valuation as fixed in 1906, and that, as tbe result thereof, tbe value of tbe lines of the track of tbe appellee was not proportioned among tbe several counties through which its road passes in the proportion that tbe mileage of each county bears to tbe entire mileage of tbe state. It was further alleged in thé bill that the property of the appellee bad been overvalued in tbe assessment complained of, as compared with tbe assessment and valuation of other property in King county; that tbe appellee’s property bad been assessed at SO per cent, of its value, whereas other property bad been assessed at but 25 per cent, of its value. This ground for relief was subsequently abandoned, and counsel for the appellee withdrew from consideration in tbe case that feature of the bill. A separate ground of relief alleged was that for tbe year 1907 tbe assessor of King county assessed tbe appellee’s operating franchise, and placed a valuation thereon of $100,000 as an assessment against its personal property, whereas'the same had been covered by, and formed a part of, the valuation fixed and assessed upon tbe operating property of tbe appellee, tbe result whereof was double taxation upon tbe appellee’s property. Tbe appellee alleged due tender of taxes on its property in King county as it bad been assessed for tbe year 1906. The answer denied that tbe classification made by tbe Board of Tax Commissioners in January, 1906, was made for any other than that year, and it alleged that tbe county board of equalization of King county, in the month of August, 1907, acting at tbe instance and direction of tbe State Board of Tax Commissioners, raised tbe valuation of tbe assessment for tbe year 1907 on all rights of way and substructures and superstructures of tbe appellee situate in King county. Upon tbe issues and the testimony, tbe court enjoined tbe appellants from further proceeding to collect the tax, and directed that tbe appellants issue to tbe appellee upon the payment of the sum tendered a receipt in full for all taxes for the year 1907.</p> <p>Section 2, art. 7, of tbe Constitution, required that tbe Legislature shall provide by law a uniform and equal rate of assessment and taxation of all property in the state, according to its value in money, and shall prescribe such regulation by general laws, as shall secure a just valuation for taxation of all property, so that every person and corporation shall pay a tax in proportion to the value ol Ms, or her, or its property. The Revenue Act of 1897 (Raws 1897. p. 150), in section 32, provides as follows: “The value of the railroad track shall be listed and taxed in the several counties in the proportion that the value of the main line in such county bears to the whole length of the road in the state, except the value of the side or second tracks and all turnouts, and all station houses, depots, machine shops or other buildings belonging to the road, which shall be taxed in the county in which the same are located.’’ Section 34 provides that “the rolling stock shall he listed in the several counties in the proportion that the length of the main track used or operated in said county bears to the whole length of the whole road used or operated by such person, company, or corporation.” Section 42 provides that “all property shall be assessed at its true and fair value in money. In determining the true and fair value of real or personal property, the assessor shall not adopt a lower or different standard of value because the same is to serve as a basis of taxation.” By the Laws of 1905 a Board of Tax Commissioners was created. Laws 1905, p. 224. Subdivision 2 of section 2 provides that the commissioners “shall have power, and it shall be their duty to exercise general supervision over assessors and county boards of equalization, and the determination and assessment of the taxable property in the several counties, cities and towns of the state, to the end that all taxable properly in this state shall be placed upon the assessment rolls and equalized between persons, corporations and companies in the several counties of this state, and between the different municipalities and counties therein, so that equality of taxation shall be secured according to the provisions of existing laws.”</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Eastern District of Washington.</p> <p>Action at law by P. I,. Ramphere, as administrator of the estate of C. Roy Ramphere, deceased, and as the personal representative of said deceased, against the Oregon Railroad & Navigation Company and the Oregon-Washington Railroad &• Navigation Company. Judgment for defendants, and plaintiff brings error.</p> <p>The writ of error in this case brings under review the judgment of the court below, sustaining a demurrer to the complaint of the plaintiff in error. The action was brought by the administrator of the estate of one Lamplieve, deceased, and the complaint alleged, in substance, that the said Immphere was a locomotive fireman in the employment of the Oregon Railroad & Navigation Company; that his duties requirt'd him to respond at any time upon an order to do so; that on December .1, 14)10, at 7:15 p. m., he was ordered by the said railroad company to proceed from his home in the town of Tekoa, Wash., to the depot in that town, to secure transportation there, and go on board a certain interstate train which was due at 7:45 p. zn., and t.o proceed to a certain other town in the state, and there to relieve an engine crew which had been continuously employed for more than 16 hours on an engine hauling an interstate train; that, after receiving said order, he hastened to the depot of the company in Tekoa. and had reached a crossing in the yards of the Railroad Company where the cars were cut, when, without warning, the cars were suddenly closed by reason of other cars being carelessly and negligently kicked against them, and that thereby he sustained injuries which resulted, in his death. The complaint alleged that at the time of the happening of the injury and death of Damphere, “and immediately prior thereto, he was engaged in the performance of his duty in the employment of the said. Oregon Railroad & Navigation Company in doing and performing exclusively the acts and things necessary and properly to be done in the performance of his said duties in obedience to the order of said company, and as a part of the necessities and requirements of said company in aid of and as a part of the operation of its cars, engines, and trains in carrying on its business of interstate commerce by railroad.” The complaint further alleged that; Lam-phere had been for a long time a locomotive fireman in the employment of said company, and that his duties as such fireman reqxzirod him to respond at any time of the day or night when lie should be called upon by said company to perform any of his said duties assigned to him from time to time. The complaint, alleged, also, that the crossing used by said Ramphere was one which had been used by him and other employes of the company in the j>er-formanee of their duties, and l>y the general public of Tekoa and the vicinity.</p>

<p>1. Removal of Causes (§ 45*) — Suits Removable — Suit Agaistst Aliex.</p> <p>A suit brought in a court of one state by a corporation of another state against an alien corporation is removable under Act March 3, 1887, c. 373, § 1, 24 Stat. 552, corrected by Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 509).</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § SO; Dec. Dig. § 45.*]</p> <p>2. Couets (§ 366*) — Federal Courts — Decisions out Validity of State, Statutes.</p> <p>The federal courts are reluctant to declare an act of a state Legislature invalid as in violation of the state Constitution which has not been so declared by the highest court of the state, and especially when the act has been enforced by such court during a number of years.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 951-957, 960-968; Dec. Dig. § 366.*</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>3. Statutes (§ 111*) — Constitutionality—Subject and Title of Act — Ore- ■ gon Child Labor Law.</p> <p>Laws Or. 1903, p. 79, being “An act to regulate the employment of child labor and for the attendance of children at school and to appoint a board to carry out the provisions of said act,” held not invalid as in violation of art. 4, § 20, of the state Constitution, which provides that “every act, shall unbrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.”</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. § 140; Dec. Dig. § 111*1</p> <p>4. Insurance (§ 640*) — Action on Indemnity Policy — Answer.</p> <p>In an action on an employer’s liability insurance policy to recover the amount of a judgment rendered against plaintiff for injury to an employé and paid by it, where the policy expressly provided that defendant should not be liable for indemnity in case the person injured was a minor employed by the insured in violation of law, it is not necessary that an answer pleading such defense should further allege that the violation of the law contributed to the injury, which is irrelevant to the issues.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1609-1612, 1614r-1624; Dec. Dig. § 640.*]</p> <p>5. Master and Servant (§ 95*) — Oregon Child Labor Statute — “Factory.”</p> <p>A sawmill, used for the manufacture of lumber, is a “factory” within the meaning of Laws Or. 1903, p. 79, which prohibits the employment of minors under the age of 16 years in a “factory, store, workshop or mine,” except on compliance with certain specified conditions.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 160; Dec. Dig. § 95.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2642, 2643.]</p>

<p>In Error to the Circuit Court of the United States for the District of Montana.</p> <p>Action at law by the United States against Henry Henkel, Caroline Henkel. George Henkel, William Henkel, Lizzie Henkel, and Mamie Henkel. Judgment for plaintiff, and defendants bring error.</p> <p>The United States brought an action against the plaintiffs in error to recover the possession of about 800 acres of land of the Blackfeet Indian reservation, in Montana. The complaint alleged that prior to November oj 1906, the United States, pursuant to the Reclamation Act (Act June 17, 1902, c. 1093, 32 Stat. 388 |.U. S. Comp. St. Supp. 1911, j). 662]), made surveys for the Milk river irrigation project, in the northern part of Montana, anil that the lands described in the complaint were necessary for flowage and construction purposes in connection With said project; that the plaintiffs in error prior to that date settled on and occupied the said land by virtue of their being wards of the government and members of the Riegan tribe of Indians, with the exception of Henry Henkel, a white man, the husband of Caroline Henkel and the father of the other parties defendant to the action, all of whom resided together on the reservation; that on November 5, 1906, Caroline Henkel, for herself and her two daughters, together with George and William Henkel, made a written proposition to tile Commissioner of Indian 'Affairs to' relinquish to the United States all claim to the lands then occupied by them, being the lands described in the complaint, and all buildings thereon, for the sum of $7,500, reserving to themselves the right to select their allotments of equal area as provided by law from the unoccupied lands of the said reservation; that Henry Henkel, as head of the family, approved said proposition; that on February 15, 1907, the proposition was approved and accepted by the Secretary of the Interior, who paid to Caroline Henkel the said sum of $7,500; that thereupon she, for herself and her two daughters, signed a receipt for said sum, and a relinquishment of all their rights to the land occupied by them, and said receipt was also signed by George and William Henkel, and approved by Henry Henkel. The defendants to the action demurred to the complaint on thg ground that the court had no jurisdiction, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants filed their answer, in which they alleged that they, with the exception of Henry Henkel, were members of the Piegan tribe of Indians and wards of the government, residing upon the reservation, and that for more than 10 years before the commencement of the action they had, with Henry Plenkel, resided thereon, and on the lands described in the complaint; that since the passage of Act March 1,1907, c. 2285, 34 Stat. 1035, providing for the opening of the said reservation they have, and do select from the lands occupied by them, certain lands as the allotment for each, describing the same by their legal subdivisions; that under the provisions of such act they are entitled to have the same allotted to them, but that the allotting officers have refused and declined to allot the same to them; that under protest George, William, and Lizzie Henkel have selected lands elsewhere upon said reservation which have been allotted to them, but which they offer to relinquish and to take In lieu thereof the lands by them first selected; that Garoline Henkel is ready and willing to return the sum of $7,500 to whomsoever may be entitled to the same, with legal interest thereon, and offers to pay the same into the court for the use of the plaintiff. The defendant in error filed a demurrer to the matter so pleaded in the answer on the ground that the same does not state facts sufficient to constitute a defense. The demurrer was sustained, and thereafter judgment on the pleadings was rendered for the defendant in error.</p>

Action by Frederick C. Tiedt against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. Appeal and Error (§ 888*) — Review—Estoppel to Allege Error.</p> <p>On review by an appellate court of a judgment imposing sentences for contempt in disobeying an order which required defendants to produce certain papers before a grand jury, which order was entered with their consent, no question of procedure or of privilege existing prior to such order can be raised, having been waived by their consent thereto.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3611; Doc. Dig. § 883.*]</p> <p>2. Judgment (§ 315*) — Amendment of Record — Power oe Court Aster Term.</p> <p>A court had authority, by a nunc pro tunc order made at a subsequent term, to amend the record of findings on which a judgment for contempt was based, by adding to such findings others which, as shown by the bill of exceptions taken by defendants, were in fact made at the time of the healing.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 613; Dec. Dig. § 315.*]</p> <p>3. Contempt (§ 24*) — Acts Constituting Contempt.</p> <p>A judgment imposing sentences for contempt against defendants for refusing to produce papers before a grand jury in compliance to an order therefor made with their consent held supported by evidence showing that they had the papers in their possession when in the jnry room, but. denied the fact, both then and after being brought into court and sworn.</p> <p>¡Ed. Note.- — For other cases, see Contempt, Cent. Dig. §§ 71-74; Dee. Dig. § 24.*]</p>

Hyman Epstein was convicted of suborning a witness at a hearing in a bankruptcy proceeding to commit perjury, and he brings error.

<p>BANKRuney (§ 353*) — Dividends—Apportionment.</p> <p>Claimant, as bankrupt company’s treasurer, falsely, but without fraudulent intent, stated in a report to a mercantile agency that the company owed nothing excepting current bills. On this report a printing company extended further credit and holds an allowed claim for $25,000. Claimant’s claim was allowed at $325,000, $199,000 of which was due when the mercantile report was furnished. A 3% per cent, dividend having been declared, there remains $12,250 for apportionment between claimant and the printing company. Held, that the fund should be distributed by postponing to the printing company payment of dividends on $199,000 of claimant's claim, and by dividing the fund in the proportion that the balance of claimant’s claim bears to the printing company’s claim; that company not being entitled to claimant’s dividend on the $199,000 as damages for tort, action for which must be tried outside the bankruptcy court.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 541-544; Dec. Dig. § 353.*]</p>

<p>BANKRtnPTCY (§ 426*)-DISCHARGEABLE DEBTS — “PROPERTY” OBTAINED BY Ebaud — Legal Services.</p> <p>That a bankrupt induced plaintiff to render legal services for him by false representations as to his property did not prevent the bankrupt’s discharge from operating as a release from liability for such services, they not constituting “property” within Bankr. Act July 1, 1898, c. 541, § 17a (2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended by Act Feb. 5, 1903, c. 1ST, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1911, p. 149G), excepting liabilities for property so obtained from tbe provable debts dis-chargeable in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 787-791, 807; Dee. Dig. § 426.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]</p>

<p>Sams (§ 81*) — Obdeb fob Delivery— Sotjtci®noy.</p> <p>Under a contract for a sale of vinegar to be ordered by the buyer for shipment before a fixed date, the buyer telegraphed the seller to “prepare for shipment balance our contract see letter following.” The letter stated that the buyer had not determined how the goods would be divided between two grades and promised that he would wire as soon as able to determine. Such advice was never given. Held,, that the "telegram did not amount to an order for shipment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 217-223; Dec. Dig. § 81.*]</p>

<p>Bankruptcy (§ 166*) — Voidable Preference.</p> <p>The collection of a note by a bank by means of an attachment suit and sale of the attached property on execution within four months prior to the bankruptcy of the maker held, on the evidence not collusive nor to constitute a voidable preference, it appearing from stipulated facts that the bankrupt was conducting a mercantile business and stated when he borrowed the money for which the note was given that the amount would pay all of his other creditors and that the reason for the attachment was that he was removing his stock of goods from the state; and there being no evidence showing directly or by fair inference that the bank had knowledge of any other creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 166.*]</p>

Action at law by Tony Curtz, a minor, by Agnes Curtz, guardian ad litem, against the Northern 'Pacific Railway Company. Judgment for plaintiff, and defendant brings error. The defendant in error brought an action against the plaintiff m error to recover damages for personal injuries.

Action by Eugene S. Willard against John W. Eerguson. There was a judgment for plaintiff, and defendant brings error. This canse comes here upon appeal from a judgment in favor of defendant in error, who wus plaintiff lielow, in an action to recover commissions as real estate broker on the sale of the lot and building. No. 135 Fifth avenue, New York.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Habeas corpus by James Cosmas, alias Athanasios Papadakos, against Percy D. Prentis, immigrant inspector in charge at Chicago, and D. Arthur Plumly. From a judgment discharging petitioner, respondents appeal.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Southern District of California.</p> <p>Action by Arshag Shishmanian against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Ltthht. and Slander (§ 87*) — -Complain-l-Falsity op Publication.</p> <p>Whore a complaint for libel charged that the publication was malicious, false, defamatory, and libelous, it sufficiently charged that the matter complained of was untrue.</p> <p>[Ed. Note. — -For other cases, see Libel and Slander, Cent. Dig. § 211; Dec.' Dig. § 87.*]</p>

Appeals from the District Court of the United Stales for the Western District of Tennessee. Suits in admiralty by Mrs. Bessie Schinnerer and by Mrs. Emma ITurst against the Monongahela River Consolidated Coal & Coke Company and the Huntington & St. Louis Towboat Company. Decrees for libelants, and respondents appeal.

Suit in equity by the Atlas Portland Cement Company and the North American Portland Cement Company against the Sandusky Portland Cement Company. Decree for defendant, and complainants appeal. Appellants, owners of patent No. 645,031, to Hurry and Seaman, March 6, 1900, on an application filed February 12, 1896, failed in their suit to hold appellee for an alleged infringement.

<p>1. Witnesses (§ 16*) — Process—Subpoena Duces Tecum.</p> <p>A subpoena duces tecum addressed to a witness whose testimony was taken for use in a case pending in another district goes by the practice in the Second circuit only on order of the court.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 19-27; Dec. Dig. § 16.*]</p> <p>2. Witnesses (§ 16*) — Process—Subpoena Duces Tecum — Discretion.</p> <p>It was proper'exercise of discretion for the court to refuse to issue a subpoena duces tecum, requiring a witness being examined in a suit for an infringement of a patent to disclose a written agreement which could have no possible relevancy to the isshe as to whether the patent was valid and had been infringed, and could serve no purpose except to forward information which might serve as a basis for subsequent actions against other persons.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 19-27; Dee. Dig. § 10.*]</p> <p>3. Coukts (§ 404*)“Jtjkisdtotiox — Federal Courts — Mandamus.</p> <p>Itev. St. § 710 (U. S. Comp. St. 1903, p. 080), provides that the federal court shall have power to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Held that, where a District Court refused to issue a subpoena duces tecum to compel the production of certain documents, the jurisdiction of the Circuit Court of Appeals to review such ruling was by appeal; and hence it could not issue mandamus to compel the trial court to issue the subpoena, even if its action in refusing to do so was erroneous.</p> <p>[Ed. Note.- — For other cases, see Courts, Dee. Dig. § 404.*</p> <p>Appeal or mandamus, see note to James v. Central Trust Co. of New York, 47 C. C. A. 376.]</p>

<p>1. Bankruptcy (§ 476*) — Allowances from Estate — Services of Stenographer.</p> <p>An allowance to a stenographer who took down testimony relating to claims before a referee, exceeding $1 per page for three copies, held excessive, and reduced to 40 cents per page, and other allowances to officers -and attorneys considered.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 898, 899; Dec. Dig. § 476.*]</p> <p>2. Bankruptcy (§ 476*) — Allowances prom Estate — Value op Estate.</p> <p>In making allowances to officers and attorneys for servie'es rendered in a bankruptcy case, the value of the estate must be taken into consideration.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 898, 899; Dec. Dig. § 476.*]</p>

<p>In Bankruptcy. In the matter of the bankruptcy proceedings of Morris Krall. On report of master sustaining exceptions to discharge.</p>

In Admiralty. In the matter of the petition of the Monongahela River Consolidated Coal & Coke Company, owner of the steam towboat Enterprise, and the Huntington & St. Rouis Towboat Company, charterer of said boat, for limitation of liability.

<p>1. Interest (§ 22*) — “Judgment”—Claims Against Decedent’s Estate— ALLO WAN CE — EEEECT.</p> <p>Hurd’s Rev. St. Ill. 1909, c. 3, § 61, provides that whoever has a claim against an estate, and fails to present it for adjustment at the term of court selected hy the executor or administrator, may file a copy thereof with the clerk of the court, whereupon, unless process is waived, the clerk shall issue summons requiring the ekeeutor or administrator to defend at a term specified in the summons which shall be served on the executor or administrator, and the rule of the court of Cook county, Ill., declares that claims, if presented after the adjustment term, shall be by filing a copy of the claim with a praecipe for a summons with the executor or administrator, or by filing with such claim an appearance in writing of the executor or administrator. Held, that where, after the appearance term, a foreign creditor of a decedent, whose estate was administered in the probate court of Cook county, filed the claim in accordance with such provisions, and the same was allowed, such allowance constituted a judgment which merged the claim and thereafter drew interest at 5 per cent, only under Hurd’s Rev. St. Ill. 1909, c. 74, §§ 3, 4, providing that judgments recovered before any court or magistrate shall draw interest at that rate.</p> <p>[Ed. Note. — Eor other cases, see Interest, Cent. Dig. §§ 43-53; Dec. Dig. § 22.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3S27-3842; vol. 8, pp. 7695, 7696.]</p> <p>2. Executors and Administrators (§ 255*) — Allowance oe Claims — Conclusiveness.</p> <p>The allowance of a claim against a decedent’s estate according to the, law of .Illinois is final against the representatives of the estate so far as personalty is concerned, but is merely prima facie evidence of the debt as against realty.</p> <p>[Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 907-909; Dec. Dig. § 255:*]</p> <p>3. Judgment (§ 689*) — Conclusiveness—Persons Concluded.</p> <p>Under the rule that judgments are available by and against parties and privies, and that executors under the same will, but appointed for different "jurisdictions, are privies, an ancillary executor was bound by a judgment allowing a claim against the estate in the domiciliary jurisdiction.</p> <p>riíd. Note. — For other cases, see Judgment, Cent. Dig. § 1212; Dec. Dig. § 689.*]</p> <p>4. Executors and Administrators (§ 43*) — Property—1liras.</p> <p>An executor named in a will takes title to all oí the testator’s personalty wherever situated.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 281; Dec. Dig. § 43.*]</p> <p>5. Executors and Administrators (§ 86*) — Voluntary Payment-Nonresident Debtors.</p> <p>Voluntary payments made to an executor by nonresident debtors constitute a good acquittance.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 323, 359-383; Dec. Dig. § 86.*]</p> <p>6. Executors and Administrators (§ 171*) — Assignment by EXECUTOR — EFFECT.</p> <p>An assignment of a claim by Hie executor of an estate enables his as-signee to sue anywhere.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 649, 050; Dee. Dig. § 171.*]</p> <p>7. Executors and Administrators (§ 255*) — Claims--Allowance—Filing— Effect.</p> <p>Where a decedent’s estate was being administered in the probate court of Cook county, Ill., and a foreign creditor elected to file his claim there in order to reach Illinois funds as well as its own collateral, it was bound by the Illinois judgment allowing its claim, not only as to allowance but as to the rate of interest prescribed by the Illinois laws thereafter to be earned by tbe judgment.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 907-909; Dec. Dig. § 255.*]</p> <p>8. Judgment (§ 815*) — Full Faith and Credit.</p> <p>Where judgment is rendered allowing a claim against a decedent’s estate, full faith and credit can be given to such judgment in the courts sitting in another state only by ascertaining its effect, according to the law and usage in the courts of the state where it has been rendered.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1445-1448; Dec. Dig. § 815.*</p> <p>Giving full faith and credit to judgment jurisdiction of federal courts, see note to Bailey v. Mosher, 11 C. C. A. 318.]</p>

In Equity. Action by Thomas Buck and wife against T. J. Eelder and others. The case was removed to the federal court by the defendant the Columbia Finance & Trust Company for diversity of citizenship, and complainants moved to remand.

Action by the United States of America against the Southern Oregon Company to forfeit certain land granted to the state in aid of the construction of a military wagon road, in which defendant prayed that Douglas and Coos counties, Or., be made parties defendant, and that they and) the sheriff and tax collector of each of the counties be restrained from enforcing the collection of taxes levied on the lands for the years 1909 and 1910.

<p>1. United States (§ 125*) — Actions—Liability to Suit.</p> <p>The United States haring recovered a judgment against complainant for timber trespass on public lands was not subject to suit in the federal courts by complainant to restrain the execution of the judgment on the ground that it had been recovered through a misunderstanding between complainant and the United States attorney.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 133, 11,4; Dec. Dig. § 125.*]</p> <p>2. United States (§ 145*) — Judgment—Process—Action to Restbain — Parties.</p> <p>Where a judgment recovered bj the United States in an action at law has been entered without jurisdiction, process thereon in the hands o£ the marshal is void, and its invalidity may be determined in a suit to which the government is not a party.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 143; Dec. Dig. § 145.*]</p> <p>3. United States (§ 145*) — Judgment—Process—Injunction.</p> <p>Where the federal District Court had jurisdiction of the subject-matter and of the parties in the action in which a judgment was recovered in favor of the United States for timber trespass, the United States was a necessary party to a suit io enjoin the enforcement of the judgment on the theory that it was entered in violation of an agreement entered into between complainant and the United States, attorney.</p> <p>[Ed. Note. — For other cases, see United Stales,-Cent. Dig. § 143; Dec. Dig. § 145.*]</p> <p>4. United States (§ 145*) — Judgment—Enfoboement—Injunction—Pabties.</p> <p>Whore a judgment was recovered by the United States for an alleged timber trespass against complainant, the clerk of the court was not a necessary nor proper party 1o a suit, to restrain its enforcement.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 143; Dec. Dig. § 145.*]</p>

At Law. Action by Mamie E. Oliver, as administratrix of the estate of John A. Oliver, deceased, as his personal representative fot the benefit of herself and minor children, against the Northern Pacific Railway Company. On motion for judgment notwithstanding the verdict for plaintiff.

<p>In the matter of the application of Ad’elard Pouliot and Blanche Robinson, alias Masse, alias Pouliot,</p>

In the matter of the Newfoundland Syndicate, bankrupt. On petition for review of referee’s order dismissing trustee’s petition to have an assessment levied on the capital stock of the bankrupt.

<p>1. Raileoads (§ 381*) — Operation—Injuries to Persons on Track — Contributory Negligence.</p> <p>A pedestrian on a very dark and windy night went on a railroad roadbed between tracks on which a train was liable to come at any time, and he later went from that place, which was probably safe from moving trains, to the middle of one of the tracks and was struck by a train. Had he looked, he would have seen the light of the engine of the train. His companions saw the light and told him of it, and one of them advised him to get off the track, while the other said that no train would come down the track. The train that, came on the track was ordinarily operated on the other track. Held, that the po.dcstrian was guilty of contributory negligence as a matter of law.</p> <p>[Ed. Noto.. — For other cases, see Railroads. Cent. Dig. §§ 1285-129.*}; Dec. Dig. § 38L*1</p> <p>2. Railroads (§ 383*) — Operation—Injuries to Persons on Track — Contributory Negligence.</p> <p>One who voluntarily places himself in such a dangerous place as between the rails of a railroad track is chargeable by law with the duty of looking and listening for trains that may be coming from either direction, and such duty is enhanced when the night is very dark and a strong wind is blowing.</p> <p>[Ed. Note. — For other cases, see 'Railroads, Cent. Dig. §§ 1305-1310; Dec. Dig. § 383.*]</p>

Action at law by Sam Cizen against the Northwestern Lumber Company. Judgment for plaintiff, and defendant brings error. The plaintiff iu error, defendant below, appeals from a judgment rendered against it. and in favor of defendant in error on account of personal injuries sustained by the latter through its alleged negligence. The defendant was the proprietor of a sawmill and shingle mill combined.

Criminal prosecution by the United States against Meyer J. Daniels. Judgment of conviction, and defendant brings error. The plaintiff in error was convicted of perjury under section 125 of the Penal Code. He had been adjudicated an involuntary bankrupt, and the perjury alleged consisted of a false oath concerning a check which he had given to one Hassel for the sum of $1,776.50.

Suit in equity by T. K. Smith Company and others against E. B. Kelley and another. Defendants appeal from orders overruling a motion to quash the service and a demurrer.

Action by Davenport Galbraith and another, Eanny D. Galbraith’s executors, against the Manufacturers’ Automatic Sprinkler Company. Judgment for plaintiffs, and defendant brings error. Fanny D. Galbraith owned a building in which plaintiff in error installed, an automatic sprinkler system. Water was sup]died from a tank oil a steel truss structure erected on the roof.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Isaac Marks. Judgment of conviction, and defendant brings error.</p> <p>Writ of error to review a judgment entered upon the verdict of a jury finding the plaintiff in error (hereinafter called the defendant) guilty of the violation of sections 36 and 37 of the Act of Oct. 1, 1890, c. 1244, 26 Stat. 620 (U. S._ Comp. St. 1901, p. 2226), relating to the manufacture of smoking opium.</p> <p>The relevant sections of the Act of 1890, and also of the Act of February 9, 1909, c. 100, 35 Stat. 614 (U. S. Comp. St. Supp. 1911, p. 741), which are considered in the opinion, -are printed in the footnote.1</p>

<p>Subrogation (§ 23*) — Person Lending Money to Receiver to Discharge iNCmiBRANCE.</p> <p>A complainant who lent money to the receiver for an insolvent coloration to pay off a decree foreclosing a mortgage on property of the corporation, for which under (he order of the court he was entitled to a mortgage on the property, hold not to have established a claimed agreement with the receiver or the owners of a second mortgage that his should be a first lien, and not entitled to be subrogated to the lien of the mortgage, which was satisfied.</p> <p>[Ed. Note. — Eor other cases, see Subrogation, Cent. Dig. §§ 60-66; Dee. Dig. § 23.*]</p>

<p>1. CARRIERS (§ 321*)-INJURIES TO PASSENGERS — DEFECTIVE CAE — SNOW AND Ice — Instructions.</p> <p>Where a passenger was injured by slipping on ice which had accumulated on the step of a street car on which he was riding as he was in the act of alighting, a request to charge that the fact that there was snow and ice on the step of the car constituted no evidence of defendant’s negligence was properly refused, since the fact was a circumstance tending to show such negligence.</p> <p>[Ed. Note.- — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1337, 1343; Dec. Dig. § 321.*]</p> <p>2. Trial (§ 260*) — Instructions—Refusal of Requests.</p> <p>In an action for injuries to a passenger while alighting from a car by slipping on an icy ear step, instructions that it was the duty of the carrier to exercise a very high degree of care which required the cleaning off of ice and snow from the steps of the car when it left the barns in the morning, that it was aiso bound to use ordinary care to Keep the steps free from ice and snow during the day if the snow that accumulated during the day as the movements of the car progressed was snow which should have been removed in the exercise of ordinary care, and, by reason of its being there plaintiff was injured, then that would be negligence, but, if it was an accumulation of snow of such character that the em-ployés of such company in the exercise of ordinary care would not have removed it, but it might be there in spite of 'their exercise of ordinary prudence, then its existence would not be negligence, constituted a sufficient submission of the carrier’s negligence, and warranted the refusal of an instruction that, if the jury found that the accumulation of snow and ice on the step could not have been prevented by ordinary care, it would be their duty to find for defendant.</p> <p>[Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Trover AND Conversion (§ 28*) — Actions—Defenses—Rigiit of Possession in Third Person.</p> <p>It is a complete defense to an action for conversion of property which came lawfully into defendant’s possession that it was delivered to a third person, who was entitled to its possession.</p> <p>[Ed. Note. — For other cases, see Trover and "Conversion, Cent. Dig. §§ 168-106; Dec. Dig. § 23.*]</p> <p>2. Trover and Conversion (§ 28*) — Actions—Evidence.</p> <p>Plaintiff sued for the conversion of collateral by a bank to which he alleged it had been delivered as security for a loan which the bank agreed to make, but later refused to make, and there was evidence tending to support such allegations. Held, that it was error to exclude evidence offered by defendant to show that the arrangement was made with one of the bank’s officers, who agreed personally to advance the money to another hank to make the loan, and did so, and that the collateral was delivered to him.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 168-166; Dec. Dig. § 23.*]</p>

Suit in admiralty by Elmer A. Keeler, owner of the steam tug William E. Gladwish, for limitation of liability. From a decree holding the tug liable for loss of the coal barge P. R. R. No. 701, in tow, petitioner appeals.

<p>In Equity. On petition of the Robert Gair Company, for mandamus.</p>

Appeals from the District Court of the United States for the District of Massachusetts. Suits in admiralty by Adelbert L. Bellatty against the Barrett Manufacturing Company and against C. J. Miers & Son. Decree for respondent in first case, and libelant appeals, and for libelant in second case, from which respondent appeals.

<p>Appeal from the District Court of the United States for the Dis- ’ trict of Massachusetts.</p> <p>In the matter of the Percy Ford Company, bankrupt. From an order allowing claim of the Auto Spring Repairer Company, Harvey H. Pratt and others, trustees, appeal.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York.. Two suits in equity by Parke-Davis & Co. against H. K. Mulford & Co. Decree for complainant, and defendant appeals. This cause comes here upon appeals from two decrees of the Circuit Court, .Southern District of New York. Two suits instituted by appellees for alleged infringement of letters patent were heard in that court and presented here upon one record.

<p>Patents (§ 328*) — Inebingement—Improvement in Looms.</p> <p>The Draper patent, No. 527,014, for an improvement in looms, consisting of mechanism, actuated by a detector, to causo a new supply of filling to be placed in the shuttle when the former supply shall have been exhausted to a predetermined point, construed, and hold, not infringed.</p>

<p>1. Customs and Usages .(§ 15*) — Usage Awecting Construction oe Contract.</p> <p>In an action by the United States to recover an alleged overpayment made to defendants for a quantity of oats under a contract requiring them to be delivered in sacks at 1’ortland, Or., it being alleged that under the contract the weight of the sacks should have been deducted, which through mistake was not done, where the contract is silent on the subject, defendants may plead and prove as a defense a general custom and usage of the port and of all others on the Pacific Coast that in such cases the sacks are to be weighed and paid for.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 30-33: Dec. Dig. § 15.*]</p> <p>2. United States (§ 88*) — Rights op Action By — Estoppel.</p> <p>The United States may recover money paid through errors of its disbursing officers whether of fact or law, when it is equitably entitled to tile same, and cannot be estopped to maintain an action therefor by any action of its officers.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. § 68; Dec. Dig. § 88.*</p> <p>Estoppel against the United States, see note to State of Michigan v. Jackson, L. & S. R. Co., 16 C. C. A. 353.]</p> <p>3. United States (§ 130*) — Actions By — Counterclaim.</p> <p>Under Rev. St. § 951 (U. S. Comp. St. 1901, p. 695), a counterclaim cannot be set up in an action by the United States, unless it is shown to have been presented to the accounting officers oí the treasury, and been disallowed by them.</p> <p>lEd. Note. — For other cases, see United States, Gent. Dig. § 118; Dec. Dig. § 130.*]</p>

<p>Courts (§ 356*) — Procedure in Federal Courts — State Laws — Conformity Statute.</p> <p>The federal conformity statute (Rey. St.'§ 914 [U. S. Comp. St. 1901, p. 684]), requiring the practice, pleadings, forms, and modes of proceeding in civil actions at law in the federal courts to conform as near as may be to those existing at the time in like causes in the courts of the state, does not apply to all matters of detail, the power to regulate which every court is presumed inherently to possess, and does not make it obligatory on a federal court in. Wisconsin to strictly follow St. Wis. 1898, § 3072, requiring a cause which has been reversed and remanded by the Supreme Court to be dismissed unless proceedings are taken therein within one year.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. § 356.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 O. C. A. 392.]</p>

In Admiralty. Suit for collision by British & South American Steam Navigation Company, Limited, as owner of the steamship Hyades, against steamship Gallia, and the tugs W. J. McCaldin, McCaldin Bros., and Walter B. Pollock, impleaded. Decree against the W. J. McCaldin and McCaldin Bros. only.

<p>Corporations (§ 480*) — Mortgages—Transfer of Matured Coupons — Priority of Lien.</p> <p>The trustee in a mortgage given by a corporation to secure bonds was also the owner of the larger part of the bonds and held the coupons from the remainder for collection. It transferred the coupons which had matured on a certain date to the president of the mortgagor, who paid the amount due thereon; the trustee having knowledge of the fact that the corporation did not furnish the money. The mortgage provided for the payment of the coupons before the principal. Held, that the transaction did not operate as a cancellation of the coupons, but amounted to an agreement, binding on the trustee and the other bondholders for whom it acted, that they should remain in foree and should retain their preference as a lien over the principal of the bonds.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 480.*]</p>

<p>At Raw. Action by Henry Shaffer against the American Car & Foundry Company. On motion by defendant for judgment non ob-stante veredicto.</p>

<p>At Law. Action by the Buckeye Powder Company against the E. I. Du Pont de Nemours Powder Company and others. On motion to strike out declaration.</p>

In Equity. Bill by the Farmers’ l,oan & Trust Company against the Burbank Power & Water Company and the Public Service Commission of the State of Washington, intervener. On petition for the issuance of receivers’ certificates for improvements in the Burbank irrigation system.

In Equity. Bill by James M. Hunnewell against the New York Central & Hudson River Railroad Company and another. On motions for temporary injunction and for appointment of receivers.

<p>1. Navigable Waters (§ 20*) — Bridges—Care in Construction..</p> <p>The owner of a bridge over a navigable stream, although licensed by Congress to maintain it, has no right unnecessarily to make it or its approaches dangerous to vessels passing throjigh the draw.</p> <p>[Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. §§ 73-99; Dec. Dig. § 20.*]</p> <p>2. Navigable Waters (§ 20*) — Bridges—Injuries from Collision with Bridge.</p> <p>The owner of a bridge across the Potomac river held liable for an injury to a barge passing through the draw as part of a tow by striking an iron-shod timber 6 feet under water, which projected 12 inches beyond any other part of the pier, there being no evidence to show that it was necessary or served any useful purpose. The .barge held not in fault because of alleged negligent steering.</p> <p>[Ed. Note. — Eor' other cases, .see Navigable Waters, Cent. Dig. §§ 73-99; Dec. Dig. § 20.*]</p> <p>3. Navigable Waters (§ 20*). — Bridges—Danger to Navigation.</p> <p>The owner of a bridge over navigable water must adequately guard vessels navigating in its vicinity from any concealed danger to which the bridge exposes navigation.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 73-99; Dee. Dig. § 20.*]</p>

<p>Towage (§ 11*) — Liability op Tug fob Injuby to Tow — Docking in Unsafe Place.</p> <p>A towing tug which left a barge loaded with ice for the workhouse on Blackwell’s Island in the night at a small dock, where she could not lie safelv, but settled on the rocks on the falling of the tide and was injured, hold, on the evidence, to have been negligent, and to be liable for the injuries resulting directly from such negligence, but not for further injuries sustained while a wrecking tug was attempting to release the barge.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-28; Dec. Dig. § 11.*]</p>

In Equity. Bills by the Southern Railway Company and six other Railroad Companies against the Railroad Commission of Alabama and others. On motion to dismiss and to discharge injunction bonds.

<p>In Equity. Suit by the United States against Leonard Olsson for cancellation of certificate of citizenship. On final hearing. Decree for complainant.</p>

<p>1. Bankruptcy (§ 136*) — Fraudulent Concealment of Property.</p> <p>Evidence held to fully sustain the finding of a referee that a bankrupt had in his possession or under his control a large sum of money which belonged to his estate and an order requiring him to turn the same over to his trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p> <p>2. Bankruptcy (§ 136*) — Order to Surrender Property — Sufficiency op Evidence.</p> <p>Where the only reasonable conclusion to be drawn from the evidence before a referee is that a bankrupt has in his possession or under his control money which belongs to his estate and he has destroyed the books which should show the facts, his mere denial is not entitled to weight.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p>

<p>1. Waters and Water Courses (§ 231*) — Reclamation Act — Authority or Secretary of Interior.</p> <p>Under Reclamation Act .Time 17, 1902, c. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1911, p. 662), which sets apart the proceeds of public lands in certain states and territories as a reclamation fund, to be used by the Secretary of the Interior in .constructing, maintaining, and operating irrigation projects, the estimated cost of which is to be charged upon the lands irrigated and returned to the fund in annual installments, and which further provides that, when such payments have been made for the major portion of the lands irrigated from any works, the management and operation of the same shall pass to the owners of the lands, the Secretary has authority to levy and collect assessments on the lands to defray the cost of maintenance prior to that time; it being the intention of the act that the fund should be fully reimbursed for expenditures made therefrom and kept intact.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 320; Dec. Dig. § 231.*]</p> <p>2. United States (§ 125*) — Jurisdiction—Suits Against United States.</p> <p>A suit against government officers to restrain acts claimed to be with- • out authority of law, by which complainant will be deprived of rights accorded to him by the law, is not one against the United States.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 113, 114; Dec. Dig. § 125.*]</p>

<p>In the matter of Charles F. Warth, bankrupt. On motion by Elsa Gutfreund to vacate an order of stay.</p>

Indictment of one Phillips tinder Bankruptcy Act July 1, 1898, c. 541, § 29b (1), 30 Stat. 554 (U. S. Comp. St. 1901, p. 3433), charging that, while a bankrupt, he knowingly concealed from his trustee eight parcels of pearls of the value of $2,800. On motion to quash and plea in bar and replication thereto.

<p>In Equity. Suit by John R. Buchser against John W. Morss, Fred T. Morss, Alfred G. Morss, Annie !\1. Buchser, Roland H. Buchser, and Hillman A. Buchser. On demurrers to bill.</p>

'Oliver O. Rush was indicted for impersonating an employé acting under the authority of the United States. On demurrer to the indictment.

<p>In Equity. Suit by Jesse S. Plain against P. F. Horne and others. On motion to dismiss for want of jurisdiction.</p>

<p>1. Lis Pendens (§ 8*) — Commencement of Suh^-Serviceof Process.</p> <p>A suit in equity by tbe United States to cancel patents to lands is not pending so as to charge a purchaser from defendant with notice until service of process on defendant or his voluntary entry of an appearance.</p> <p>{Ed. Note. — For other cases, see Lis Pendens, Cent. Dig. §§ 13-19, 25; Dec. Dig. § 8.*]</p> <p>2. Process (§ 58*) — Acceptance of Service — Power of Attorney.</p> <p>An attorney cannot accept service of a subpoena in an equity suit for a defendant.</p> <p>[Ed. Note. — For other cases, see Process, Dee. Dig. § 58.*]</p> <p>3. Public Lands (§ 120*) — Suit for Cancellation of Patent — Parties.</p> <p>In equity, the effect of an executory contract for the sale of lands is to vest the purchaser with the equitable title, and he is an indispensable party to a suit by the United States to cancel the patent to the lands.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p>

Criminal prosecution by the United States against Sidmond Mc-Hie and others. On motion by the Capital Investment Company to vacate order impounding books and papers.

<p>Bankruptcy (§ 118*-) — Fraudulent Transfers.</p> <p>A chattel mortgage taken by a creditor of a bankrupt from a corporation organized to take over the business of the bankrupt after tbe latter had made fraudulent transfers of property to tbe creditor's knowledge held fraudulent and void, alt bough nominally given to secure payment for stock of the. corporation issued to and afteiwvards surrendered by the creditor.</p> <p>fEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 204-274, 288, 284; Dec. Dig. § 178.*]</p>

In Admiralty. Suit by Frederick Mason against the steamship Gloria de Larrinaga for wages and for bad provisions, the latter pursuant to section 199 of the British Merchants Shipping Act of 1894.

<p>In Admiralty. Suit by the West India Steamship Company against the Field Line, Limited. On exception to second article of answer.</p>

<p>1. CORPORATIONS (§ 507*) — PROCESS AND NOTICE — SUIT TO CANCEL PATENTS —Limitation—Fraudulent Conveyance to Corporation — Service on Owner of Stock.</p> <p>Public lands fraudulently acquired under the Stone and Timber Act were conveyed by tlie purchasers as soon as final proof ivas made to various persons in trust for an individual defendant who was cha ivied with knowledge of the fraud. Such defendant later organized a holding corporation under the laws of another state to which he caused the lands to be conveyed In exchange for its capital stock, all of which was issued to him except two shares of 8100 each, one of which was issued to his wife and one to his attorney. He was elected president, and all of the officers and directors were members of his family. The deeds to the corporation were withheld from record, and in fact were not delivered to the corporation, but wore retained by such defendant. Suits were brought by the United States to cancel the patents, and service was made on such individual defendant within the six years’ limitation period prescribed for such suits by Act March 3. 1891, c. 559, 20 Stat. 1093; but the corporation was not at that time made a party, its existence or interest in the lands being unknown to the government officers. It wras later brought in and served, but- after 1he running of the period of limitation. Held, that for the purposes of the statute in such case the corporation and such individual defendant were identical, and that the service on him hound the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1971-2000; Dec. Dig. i 507.*]</p> <p>2. Corporations (§ 1*) — Separate Entity — Disregard oe Doctrine in Equity to Prevent Fraud.</p> <p>The doctrine of the separate legal entity of a corporation, as distinguished from its members, cannot be invoked in a court of equity as a cover for fraud; but in such case the court will look beyond the corporate form to the purpose of it, and whatever would be binding upon tlie persons composing it will be held binding upon the corporation.</p> <p>I Ed. Note. — For other cases, see Corporations. Cent. Dig. §§ 1, 3-0; Dec. Dig. § I .* I</p> <p>3. Limitation of Actions (§ 100*) — When Limitation Begins to Run— Fraud — Withholding Deed from Record.</p> <p>The fact that a deed is withheld from record or is otherwise concealed is a badge of fraud, and when accompanied by other evidences of fraudulent intent will prevent the statute of limitations from running in favor of the grantee against a suit affecting the property during such concealment.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-193; Dec. Dig. § 100;* Fraudulent Conveyances, Cent. Dig. il 733, 734.] ‘ '</p> <p>4. Public Lands (§ 120*) — Suit for Cancellation of Patents — Defenses by Corporation.</p> <p>A corporation, which is not itself an innocent purchaser of land fraudulently acquired from the United States, cannot defend a suit by the government for cancellation of the patents on the ground that stockholders purchased their stock in good faith and in ignorance of the fraud, or that its stock has been jdedged as security for loans.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Oregon.</p> <p>Suit in equity by H. E- Pittock and Georgiana Pittock against J. Whyte Evans and W. D. Wood. Decree for complainants, and defendants appeal.</p> <p>The appellees were complainants in the court below, and by ¿heir bill sought to obtain a decree canceling a certain written lease and directing the defendants to the suit, who are the appellants here, to surrender the lease for cancellation.</p> <p>The bill alleged that on the 23d of February, 1907, the complainants were the owners in fee of a certain block of land in the city of Portland, Or., known as block numbered 215, and leased the same to the defendant Evans for the period extending from February 1, 1907, to December 31, 2005, at agreed specified rentals payable in monthly installments in advance, which rentals aggregated $30.000 per year from February 1, 1907 to .January 1, 1917, and gradually Increased for different specified periods, reaching the aggregate sum of $103,568.10 per year from January 1, 1997, to December 33, 2005, in addition to the agreed payment by the lessee during the entire term of ‘‘all rates, taxes, charges and assessments for revenue and otherwise, general and special, ordinary and extraordinary of every nature and kind whatsoever, including water rates, which may be taxed, charged, assessed, levied or imposed during the continuance of said lease on the premises therein demised, and upon any and all buildings or improvements thereon of any kind which were then upon or which might after the date of said lease and before its expiration be erected, made or placed upon said demised premises, and upon the leasehold estate granted in said lease,” and that' the lessee “would keep said property free from all liens of every kind and description that may have priority over the title or interest of the lessors, and that a failure to pay and discharge any delinquent liens within sixty (60) days after demand for payment thereof made after delinquency by the lessors or their successors in interest, should be deemed a breach of covenant underpaid lease, and the lessors might at their option • then terminate said lease.”</p> <p>The bill alleged that the agreement of lease contained this, among other, covenants:</p> <p>“Fourth. The lessee further covenants and agrees to and with the lessors to erect, finish and complete upon said premises, at his own expense, a substantial, first-class, fireproof building or buildings, of steel or reinforced concrete construction, or a combination thereof, of the aggregate value of not less than $500,000.00, the construction of said building or buildings to be commenced on or before the 1st day of July, 1908, and to be prosecuted continuously and diligently until the completion thereof,- without interruption or delay save and except such interruptions or delays as may be caused by strikes, unavoidable delays in the securing or transportation of materials, delays resulting from the action of the elements or weather, or by any unavoidable casualty; said building or buildings as constructed to become security for the payment of the rent accruing under the terms of this lease, and for the fulfillment of all the conditions and covenants herein contained.” The lease further provided that, upon its expiration or other determination of the same, “all buildings, fixtures, and improvements then situated upon said premises should belong to and be the property of the said lessors without any payment therefor by them, and that the lessee would convey said building or buildings by good and sufficient conveyance to the lessors”; that no limitation should exist upon the right of the lessee or his successors to assign the lease or to sublet the whole or any part of the premises, with certain limitations not necessary to be stated; that all rents accruing under the lease and all proper advancements and payments made by the lessors thereunder “should be a first lien upon any and all buildings and improvements placed upon said premises at any time during the term of said lease and upon the leasehold estate created by said lease and upon the rents of all buildings and improvements placed or situated on said leased premises at any time during the term of said lease.”</p> <p>The bill then set out the twenty-third, twenty-fourth, and twenty-fifth paragraphs of the lease, as follows:</p> <p>“Twenty-Third. It is further understood and agreed that time is deemed and made the essence of this lease, and, if default shall be made in any or either of the- covenants herein contained to be kept by the said lessee and such default shall continue for sixty (60) days after notice thereof in writing by the said lessors to the said lessee, then and in case of such default the said lessors may at their election declare said lease terminated, and may re-enter ¿aid demised premises or any part thereof either with or without process of law, and may remove and expel from said premises the -said lessee and any and all persons occupying the same, and repossess and enjoy the said premises as of their former estate, and if, at any time, said lease shall be ended at such election, of the said lessors as aforesaid, the said lessee does hereby covenant and agree to surrender and, deliver up said above-described premises with all buildings and improvements situated thereon, peaceably to said lessors, immediately upon the termination of said lease as aforesaid and without any compensation being paid for any buildings or improvements placed thereon.</p> <p>“Twenty-Fourth. It is hereby agreed that no waiver of a breach of any covenant or provision of this lease shall be construed to be a waiver of any succeeding breach of the same or any covenant or provision thereof.</p> <p>“Twenty-Fifth. It is hereby mutually agreed that each of the expressions, phrases, terms, conditions, provisions, stipulations, agreements, and obligations of this lease shall extend to and bind or inure to the benefit of, as the ease may be or require, not only the parties hereto, but each and every of the heirs, executors, administrators, assigns and successors of the respective parties hereto, and wherever in this lease a reference to either of the parties hereto is made, such reference shall be deemed to include, wherever applicable, also a reference to the heirs, executors, administrators, assigns and successors of such party, the same as if in (ivory case expressed, and all the conditions and covenants contained in this lease shall he construed as covenants running with the land.”</p> <p>Due execution and recording of the lease is then alleged, as well as its assignment in the year 1907 by Evans to the defendant Wood. It is then alleged that the defendants have failed, neglected, and refused to commence the construction of any building upon the leased premises or to take any steps towards such construction; that they have failed, neglected, and refused to pay any part of the rentals provided for in the lease “except the rentals falling due prior to September 1st, 1907, and the sum of §10,000.00 subsequently paid upon account”; that they have failed, neglected, and refused to pay the taxes assessed upon the premises for the years 1907 and 1908, amounting to §13,450.50, which amount the complainants were compelled to and did pay to prevent a sale of the premises for delinquent taxes. The eighth, ninth, and tenth clauses of the bill are as follows:</p> <p>“(8) That on the 10th day of August. 1909, in accordance with the provisions of said lease, plaintiffs gave notice In writing to the defendant W. D. Wood that default had been made iu the covenants of said written agreement of lease to be kept and performed by the lessee named therein, and that if such default should continue for sixty (60) days thereafter that plaintiffs would declare said lease terminated; that notwithstanding said notice in writing a default in the covenants of said lease referred to in said notice has continued, and that no attempt has been made on the part of either of the defendants herein to carry out the provisions and covenants of said lease, but, on the contrary, further default has been made in the payment of taxes assessed against said leased premises.</p> <p>“(9) That plaintiffs have declared said written agreement of lease terminated, and are now occupying said premises as of their former estate.</p> <p>“(10) That no possession of said premises was ever taken by the defendants or any one under said lease, hut that notwithstanding that fact and the default, and failure, neglect, and refusal of the defendants in carrying' out the covenants of said lease, said defendants claim some interest in and to said leased premises under and by virtue of said lease adverse to the plaintiffs, which said lease is in the possession of the defendant W. D. Wood and constitutes a cloud upon .plaintiffs’ title to the real property hereinbefore described.”</p> <p>No question is made by the answer of the defendants as to the ownership in fee by the complainants of the leased premises, nor in respect to the execution of the lease, a copy of which is annexed to and made a part of the answer, nor of its assignment by Evans to Wood.</p> <p>The eighth paragraph of the answer is as follows:</p> <p>“(8) For answer uuto paragraph 8 of the complaint, this defendant (Wood) admits that on the 10th day of August, 1909, the plaintiffs gave a notice in writing to the defendant W. D. Wood that certain defaults had been made in the covenants of said written agreement of lease to be kept and performed by the lessee named therein, and that if such default should continue for 60 (lays that plaintiffs would declare said lease terminated, but the defendant Wood denies Mint there was any default, or that, notwithstanding said notice iu writing, the default in the «mamuts in said lease referred to in said notice occurred or has continued, and this defendant denies that no attempt has been made on the part of either of the defendants herein to carry out the provisions in the covenants of said lease, but this defendant admits that the assessment of general taxes against the said property has not in fact been paid by either defendant, and defendant alleges the truth to be as is hereinafter more particularly set forth in articles 11 to 17 of this answer, both inclusive.”</p> <p>Paragraphs 11 to 17 of the answer, both inclusive, are as follows:</p> <p>“(11) And, further answering plaintiffs’ complaint herein, defendant alleges the truth and the facts to be as follows: That by and under paragraph fourteenth of said agreement of lease hereto annexed as Appendix‘A,’and specially referred to, it was provided as follows: ‘Fourteenth. The lessee shall on or before the 15th day of July, 1907. file with the lessors a bond in the amount of §150,000 with good and sufficient surety or sureties conditioned that the said lessee, liis assigns or legal representatives, will construct' a building or buildings upon said premises within the period and oí the kind herein provided, and will protect said property from any liens, claims or demands on account of material or labor and all demands of every kind and description on account of the construction thereof and pay the rental herein provided to be paid until the completion of said building and possession of said property shall be delivered to the lessee or his assigns upon the filing of said bond with the lessors.’ The defendant Wood avers that the bond mentioned in the said paragraph of the lease above set forth was duly and properly executed by the defendant W. D. Wood with the Trustee Securities Company, a corporation, as. surety; that the said the Trustee Securities Company are a good and sufficient surety, and that the said surety was satisfactory to and approved by the plaintiffs herein, and that the said bond, after being properly signed, sealed, witnessed, and executed and approved by the defendant Wood and the Trustee Securities Company, was duly delivered and accepted by the plaintiffs herein on July 10, 1907, and approved by them on July 16, 1907; that by the terms of the provisions of the lease hereto annexed as ‘Appendix A,’ and specially referred to, it was incumbent on the plaintiffs upon the execution and delivery of the said bond to deliver possession of said property to the lessee or his assigns, but this defendant has never been put in possession of said property. Neither has possession been tendered to him, but, on the contrary, the plaintiffs and each of them have wholly failed and neglected, and ever since have wholly failed and neglected, to deliver possession of the said premises to the defendant or to any one in his behalf, but, on the contrary, the said plaintiffs continued to hold and now hold possession of the said premises. The defendant W. D. Wood avers that the plaintiffs herein have since July 10, 1907, occupied and still occupy said premises as tlieir sole and only family residence; that the plaintiffs have since July 10, 1907, maintained fences around all of the said premises, and have continuously and exclusively inclosed the same during all of the time since said date, to wit, July 10, 1907, occupied, cultivated, and used said premises and the whole thereof, except that- portion occupied by other buildings as hereinafter set forth, as a garden, orchard, and lawn. The defendant W. 1). Wood avers that, in addition to the residence building occupied by the said plaintiffs on said premises as above set forth, there has been on said premises ever since July 10, 1907, and there now is, the additional residence building which this defendant alleges upon information and belief has been ever since' said date, to wit, July 10, 1907, leased by said plaintiffs to other parties unknown to this defendant for a valuable consideration unknown to this defendant, which valuable consideration has been received and retained by the plaintiffs herein. This defendant further avers that the plaintiffs have made no accounting; neither have they offered to make an accounting for the value and use of the said premises since July 10, 1907, but, on the contrary, have retained and controlled the said premises to their exclusive use and enjoyment, and have received and accepted all of the profits accruing from the said premises since July 10, 1907, without any accounting therefor to the defendant W. D. Wood.</p> <p>“(12) That by and under the terms of said agreement of lease hereinafter more specifically set out and attached hereto as ‘Appendix A,’ and specially referred to, it was provided by paragraph seventeenth as follows: ‘Seventeenth. It is further understood that the lessors shall have the privilege of removing, at their own cost, any building or buildings now upon said premises as they may desire or any other material therefrom, or any of the trees or shrubbery thereon, but that such removal shall be made so as not to interfere with the excavation for the foundation of the building or buildings to be constructed upon said premises.’ This defendant avers that by and under the paragraph in the lease above set forth the plaintiffs herein reserved the right to and were given the privilege of removing the buildings, trees, and shrubbery from the said premises, but these plaintiffs have never waived their said right in the premises, nor have they removed said buildings, trees, or shrubbery, but, on the contrary, the buildings, trees, and shrubbery are in the same condition and position that they were at the time of the execution of the said lease, and it would not be possible to remove said shrubbery except in the spring of the year for purposes of replanting, and the plaintiffs herein have never put the premises in such condition as is called for by the above paragraph of the lease so as to deliver possession of the said premises as was in this lease contemplated.</p> <p>“(13) This defendant further alleges that since, to wit, the year 1908, inclusive, that he has been greatly interested and engaged1 in and that he is constructing in the city of rortland, Or., a large and costly building called the Olds, Wortman & King Building, and that he is now at this time engaged and occupied in constructing and erecting the said building; that, the said Olds, Wortman & King Building is a large five-story building covering a whole block of property bounded by Morrison street, Tenth street, Alder street, and West Bark street, all in said city of Portland, county of Multnomah and state of Oregon, and that said building is of costly construction; that the defendant herein, W. I). Wood, was greatly occupied in tlie financing, construction, and erection of the said Olds, Wortman & King Building, as plaintiffs well knew; that tlie years 1907, 1908, and part of 1909 were years of panic and financial stringency, and because of this fact and because of the construction of the said Olds, Wortman & King Building the said W. I). Wood, to wit, on December 28, 1908, and tlie J3th day of May, 1909, offered to the plaintiffs to release the plaintiffs herein from the said agreement of lease on the said described property, to wit, block 215 in the city of Portland, county of Multnomah and state of Oregon, and the defendant offered to cancel said lease, but the plaintiffs and each of them refused to cancel said lease, but, on the contrary, knowing of the financial stringency and tlie burdens upon W. 1). Wood as aforesaid, elected and agreed to continue said lease and to treat the same as of full force and effect except as to the conditions of time of performance, and to demand Hie payments due therejmder, but at no time offered to put defendants or either of them into possession, but, on the contrary, these plaintiffs have held and now continue to hold exclusive possession of the said premises, and these plaintiffs continue to enjoy and now enjoy file exclusive use and profits of said property.</p> <p>‘•(14) That on the 9th day of August, 1909, tlie plaintiffs herein served on the defendant W. D. Wood a notice in writing that unless defendant completed and performed certain covenants of the lease, Including the erection of the building in said lease provided for, within (SO days from tlie date of said notice that suit would be begun to terminate all of the rights which the defendant had in tlie said leased properly herein more particularly described, and to cancel the said agreement of lease; that, by the terms of the said written agreement of lease, it was provided, among other things, that the building or buildings specified in said lease to be erected by the lessee was to be of fireproof construction and to lie of ilie value1 at least equal to 8500,-000,- and this defendant alleges that the notice and demand for the erection of such a building within 00 days, as specified in the notice and demand above described, was entirely inequitable, unreasonable, and physically Impossible; of accomplishment within the time specified and limiied by the notice. This defendant further avers that tlie notice aberre described was not served, neither was this suit begun in good faitli, hut was intended to surprise this defendant and force upon him a cancellation of said lease and a forfeiture of the moneys paid to the plaintiffs thereunder, and lfiaiutiffs so moved against defendant Wood because times have improved and Portland real estate values have suddenly greatly arisen, and plaintiffs liad encouraged defendants to continue under the burden of said lease during dull times, but sought to suddenly enforce a forfeiture of said lease that plaintiffs might reap the liroiit and advantage of said increased values, and the commencement of tills suit was intended to injure the credit of tlie defendant, and by the public notoriety and general knowledge of the public at large of the fact of the said suit to embarrass the defendant in the construction of the said Olds, Worr-man & King Building did injure tlie credit of the defendant, and caused much delay and complications in tlie conduct, of defendant's other business interests, and more particularly in the erection, construction, and completion of the Olds, Wortman & King Building, so that, defendant Wood has been and is damaged in the sum of 850,000.</p> <p>“(15) This'defendant avers that block 215 in the city of Portland is property situated in the midst of the active retail district of the said city, and that, owing to tlie increasing population of the city of Portland and the enlargement of the retail business district of said city, the value of the said property, to wit, block 215 in the city of Portland, had, to wit, on October 21, 1909, suddenly and greatly increased in value at the time of the commencement of this suit, .and that said property is now worth nearly double the amount of its estimated value at the time that the said lease herein more particularly set out was entered into; that, as aforesaid, plaintiffs have acquiesced in all things done by defendant and refused to release defendant, and, as aforesaid, .the purpose of this suit is by surprise and sudden and inequitable advantage taken of the defendant to now deprive the defendant of the advantages of the said lease and cause him to forfeit and lose the valuable rights acquired under said lease, and to forfeit and lose the large sums of money which have been paid to the plaintiffs herein by defendant on account of said lease and accepted by said plaintiffs as sufficient performance by defendant on account of those things by him to be performed under said lease; that the plaintiffs refused, as aforesaid, to release this defendant from the terms and effect of said lease or to cancel the same when requested so to do during the times of depression and low value, but elected to continue the same in full force and effect and demanded the payments due thereunder; that said defendant because of the insistence of plaintiffs in holding the lease in full force and effect as aforesaid, and relying upon the promises of plaintiffs not to forfeit or cancel said lease, has, at great inconvenience and hardship to himself, paid to the plaintiffs large sums of money on account of said lease, to wit, more than $30,000, which said payments of money have been by plaintiffs accepted as payments on account of said lease, and said lease has been treated by plaintiffs and this defendant mutually at all times prior to the cpmmencement of this suit as in full force and effect and partly executed, and plaintiffs have encouraged defendant to believe that the express terms of said lease were waived, and 'that defendant would be protected in his interest in the premises, and defendant avers that it would be grossly inequitable to permit plaintiffs to recover any advantage by this suit or to deprive defendant of any right in the premises, and plaintiffs ought to be and are estopped from asserting any forfeiture of cancellation of said lease or taking any advantage in the premises.</p> <p>“(16) The defendant W. D. Wood alleges that by reason of the fault of the plaintiffs as to delivery of possession of said premises, as is hereinbefore more particularly set forth, and by reason of the acquiescence of plaintiffs in the continuation of said lease and the waiver of its exact performance as to time of performance, and by reason of the other acts aforesaid by plaintiffs and defendant, herein more particularly set forth, that said defendant is clear and free of any default or breach of covenant under said lease as to the payment of rent or as to the payment of taxes or. assessments or as to the beginning the construction of a building or buildings on said premises or as to breach of any other requirement .or covenant under said lease, and defendant Wood alleges that the sums paid to plaintiffs were paid by him and accepted by the plaintiffs under the express understanding and agreement that defendant was not able to proceed under the provisions of said lease, but was, as aforesaid, in embarrassed circumstances financially, and that, by reason of said partial payments, the strict terms of said lease were abrogated as to time of performance, and defendant would be permitted to take up the performance under said lease after he was relieved of the immediate pressure upon him by reason of the general financial stringency and the construction of the said Olds, Workman & King Building. And the defendant W. D. Wood avers that he is now ready, willing, able, and anxious to proceed under and in accordance with the terms of said lease and with due and reasonable promptness to comply with all of the provisions and requirements of the said lease, provided the unqualified and unlimited possession of the said premises be delivered to him.</p> <p>“(17) The defendant W. D. Wood further avers that he is ready, willing, and able and will abide by any decree made by this honorable court as to any sum or sums due from him to the plaintiffs herein on account of or because of any sums which may be due, owing, and payable from him to the plaintiffs or to either of them, or any other act or thing which this court may decree he ought to do or perform, and defendant Wood avers that it would be grossly inequitable to permit the plaintiffs to cancel said lease and refuse to permit defendant to,perform thereunder, at the same time to forfeit and retain the said moneys, to wit, $-, paid to plaintiffs by defendant in per formance oí said lease and accepted by plaintiffs as aforesaid.”</p>

Action at law by R. P. Dunlap against the Montana Tonopah Mining Company. Judgment (192 Fed. 714) for plaintiff, and defendant brings error. Held: and that there was nothing owing from the defendant to the plaintiff. By a further amended answer the defendant pleaded the statute of limitations against the claim of the plaintiff for any services rendered prior to a date four years before the commencement of the action.

Action at law by J. F. Van Ilooser against A. A. Robinson and others. Judgment for plaintiff, and defendants bring error. This is a proceeding to reverse a judgment of $2,500 recovered by defendant in error (hereinafter called plaintiff) against plaintiffs in error (19 in number, and hereinafter called defendants).

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>Suit in equity by Jacob A. Roseboom and Helen D., Roseboom against Samuel R. Corbitt and William S. Biles. Decree for defendants, and complainants appeal.</p>

Action at law by Sarah J. Elintham, by Jennie Cook, her next friend, against Judson Harmon, receiver of the Pere Marquette Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>Action at law by Charlotte W. Crosley against Mary II. Reynolds. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Corporations (§ 252*) — Stockholder's Liability — Nature and Character.</p> <p>Const. Cal. art. 12, § '3, provides that each stockholder of a corporation shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred during the time he was a stockholder as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation. Held, that the stockholder’s liability under such section was a primary and absolute one, attaching at the moment the debt was created, to enforce which the creditor might proceed directly against the stockholder, without first exhausting its remedy against the corporation.</p> <p>[Ed. Note. — For other’ cases, see Corporations, Cent. Dig. §§ 1016-1023 ;• Dec. Dig. § 252.*</p> <p>Stockholder’s liability to creditors in equity, see notes to Riekerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 23 C. O. A. 315; Scott v. Latimer, 33 C. C. A. 23.]</p> <p>2. Corporations (§ 252*) — Stockholders—Individual Liability — Mortgages.</p> <p>Const. Cal.,,art. 12, § 3, creates a primary and absolute stockholder’s liability for corporate debts, and Code Civ. Proc. Cal. § 726, relating to mortgages, provides that there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage on real or personal property, which must be in accordance with the provisions of the chapter. Held that, where a corporation borrowed money and secured the same by a mortgage on its real property, the mortgagee’s obligation to first enforce payment by foreclosure proceedings and charge the corporation with a personal liability for the deficiency only was an obligation to the corporation alone which did not affect the mortgagee’s right to pursue the statutory liability of stockholders, and hence the mortgagee was not bound to foreclose before proceeding.to enforce such stockholder’s liability.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1016-1023; Dee. Dig. § 252.*]</p> <p>Ross, Circuit Judge, dissenting.</p>

.Appeal from the District Court of the -United States for the Eastern District of ■ Michigan. Suit in admiralty by Charles Whitaker and others, owners of the steamer Whitaker, against the steamer Gault, Frank S. Upton, claimant. Decree for libelants, and claimant appeals. In Detroit river, a few miles below Detroit, is situated an artificially improved channel in connection with what is known as the “Lime Kiln Crossing.” In May, 1907, the improvement work was in progress.

Petition to Review Order of the District Court of the United States for the Eastern Division of the Southern-District of Ohio. ‘ In the matter of Margaret Alice Throckmorton, bankrupt. On petition of bankrupt and certain creditors to revise orders bf District Court.

<p>Corporations (§ 432*) — Action for Deceit — Proof of A&ency.</p> <p>To entitle plaintiffs to recover in an action against a corporation for fraud and deceit in inducing plaintiffs to enter into a contract alleged to have been made for defendant’s benefit, but which on its face was one between plaintiffs and an individual, who is alleged to have made the false representations, it must be proved that such person was the authorized agent of defendant in making the contract, and that defendant then intended to cheat and defraud plaintiffs.</p> <p>• [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.*]</p>

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and another; the Farmers’ Loan & Trust Company against the Metropolitan Street Railway Company… Held: however, and in its holding was followed on the appeal, that it was a payment intentionally made without consulting the receivers of the City Company, and for that reason refused to allow it as a credit.

In Bankruptcy. In the matter of Jacob Logan, bankrupt. , On review of order of referee.

In Equity. Suit by the Baltimore & Ohio Railroad Company against the Railroad Commission of Indiana. On exceptions to report of special master.

<p>1. TELEGRAPHS AND TELEPHONES (§ 34*).-DUTY TO FCTBNISH CONNECTIONS TO Other Companies — Contracts.</p> <p>While a telegraph or telephone company is a common carrier of intelligence and must give the same service on the same terms to all applicants without discrimination, a telephone company is not hound to give another company, or its patrons, connection with its switchboard on an equality with its own patrons, such connection being a privilege to be accorded only as the result of private contract or in obedience to sonv' constitutional or statutory provision; nor does the fact that it has granted such right to one company entitle others to the same privilege.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. § 34.*]</p> <p>2. Monopolies (§ 12*) — Contracts Between Telephone Companies — Validity.</p> <p>A contract between a local telephone company and one operating long distance lines, by which a connection ivas established between them, and for an exclusive interchange of business, the local company agreeing that no other company should he permitted to make connection with its lines, and each binding itself to send messages only over the lines of the other to points on such lines, is not illegal as creating a monopoly, but is valid and enforceable.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p>

In the matter of one Kreuger, bankrupt. On petition by C. C. Cullen & Co., as creditors, to review an order refusing to approve the appointment of a trustee, and on review of a petition of W. F. Bau-meister, trustee, to require the receivers to pay over funds.

<p>Fraud (§ 36*) — Action ros Fraud and Deceit — Defenses.</p> <p>A plaintiff who was induced by falso and fraudulent representations of defendants to purchase from them, and pay for, bonds which were in fact of no value whatever, was damaged in the amount he paid for the bonds, bis damage being complete, in a legal sense, when the transaction was closed by delivery of the bonds and payment therefor: and it is no defense lo an action of fraud and deceit to recover such damage that plaintiff sold the bonds to others for as much as, or even more than, he paid for them.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. 31, 32; Dee. Dig. § 36.*]</p>

<p>1. Abatement and Revival (§§ 39, 55*) — Causes of Action Which Survive —Trover.</p> <p>A cause of action in trover to recover tbe value of ore alleged to bave been mined and removed from plaintiff’s lands survives tbe death of defendant, or its dissolution if a corporation, both under tbe common law and Rev. St. Colo. 1908, § 7258, which provides that “all actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real property shall survive to and against executors, administrators and conservators.”</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 194-204, 255-278, 282, 285, 292, 293; Dec. Dig. §§ 39, 55.*]</p> <p>2. Abatement and Revival (§§ 39, 49*) — Causes of Action Which Survive —What Law Governs.</p> <p>The question whether or not an action in a federal court, which has abated by the death of the defendant, or its dissolution if a corporation, may be revived, depends on the laws of the slate in which the action is brought.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 194-204, 246, 247; Dec. Dig. §§ 39, 49.*]</p> <p>3. Abatement and Revival (§ 39*) — Construction of Statute.</p> <p>Mills’ Ann. Code Colo. § 15, which provides: “An action shall not abate by the death or other disability of a party, * * * if the cause of action survive or continue.' In case of the death or other disability of a party the court, on motion, may allow the action to be continued by or against his representative or successor in interest” — authorizes a revival only in favor of or against those who acquire, either by operation of law or otherwise, an interest in the subject-matter of the action; and an action of trover against a corporation to recover the value of ore alleged to have been converted, which has abated by reason of the dissolution of defendant, cannot be revived thereunder against another eor-poration which succeeded by purchase to the property of defendant, but is not alleged to have received the ore converted, or its proceeds or value.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 194-204; Dee. Dig § 39.*]</p> <p>4. Parties (§ 62*) — Substitution1—Amendments.</p> <p>Neither Rev. St. § 954 (U. S. Comp. St. 1901, p. 696), nor Mills’ Ann. Code Colo. § 75, both of which provide for amendment of pleadings, permits the striking out of a sole defendant and the substitution of another in his stead, especially where the causes of action against the two are different.</p> <p>[Ed. Note. — For other cases, see Parties, Cent Dig. § 98; Dec. Dig. § 62.*]</p>

In the matter of Michaelis & Eindeman, bankrupts. On motion by receiver for an order against the American Exchange National Bank.

<p>In Error to the Circuit Court of the Unitedl States for the Western District of Virginia, at Abingdon.</p> <p>Action by David E. Hagan against the Pulaski Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. JUDGMENT (§ 713*)-CONCLUSIVENESS.</p> <p>Where an action is sought to be maintained on a claim involved in a prior action, the judgment in the prior action concludes every fact necessary to uphold it, and extends not only to matters actually determined, but to every other matter which the parties might have litigated and have had decided as connected with the subject-matter of the litigation; but, where the second action is sought to be maintained on a different claim, the prior judgment operates only as an estoppel against matters actually litigated, or as to facts distinctly in issue and on which the judgment is predicated.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.*]</p> <p>2. Judgment (§ 720*) — Conclusiveness.</p> <p>A judgment on a question directly involved in one action is conclusive as to that question in another action between the same parties, where it appears from the record or by extrinsic evidence that the precise question was raised and determined in the prior action, and any uncertainty on the subject must be dispelled by proof; otherwise, the entire subject-matter of the subsequent action is open to litigation.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1251; Dee. Dig. § 720.*]</p> <p>3. Judgment (§ 715*) — Conclusiveness—Deportation Proceedings — Es-toppel.</p> <p>Where, in a proceeding to determine the right of a Chinese person to re-enter the United States, it was found that he had been a resident of the United States prior to November 18, 1880, and hence entitled to re-enter, but the question of his nativity was not directly involved nor determined, a judgment permitting him to resume his residence in the United States did not estop the United States to thereafter deny, in a subsequent deportation proceeding, that he was a natural-born citizen.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1246; Dec. Dig. § 715.*]</p> <p>4. Aliens (§ 32*) — -Right to Enter United States — Decisions oe Executive Oeeicers op Federal Government — Conclusiveness.</p> <p>The executive officers of the federal government, when so empowered, may examine into and determine finally as to the facts on which depend the rights of aliens to enter or to remain within the United States, and, when they have acted within the scope of their authority, their findings are conclusive and not subject to re-examination by any other tribunal except as are expressly authorized by law.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 93-95; Dec. Dig. § 32.*]</p> <p>5, Aliens (§ 32*) — Right to Enter United States — Decisions of Executive OmTOKBS OE FEDERAL GOVERNMENT-CONOLUSIVENESS.</p> <p>Where the decision of immigration officers is favorable to the right of Chinese persons to enter the United States, the decision is not reviewable ’ by the Secretary of the Treasury or the Secretary of Commerce and Dabor, under Act Aug. IS, 1894, c. 300, 28 Stat. 372 (U. S. Comp. St. 1901, p. 3313), and is not conclusive of the jurisdiction of the federal courts.</p> <p>[Ed. Note. — For other cases, see Aliens, Gent. Dig. §§ 84, 93-95; Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 O. C. A. 538.]</p> <p>6. Aliens (§ 32*) — Deportation—Department of Immigration — Decision —Conclusiveness.</p> <p>Cinder Act Fob. 14, 1903, c. 552. 32 Stat 825 (U. S. Comp. St. Supp. 1911, p. 114), transferring jurisdiction of immigration affairs from the Secretary of the Treasury to the Secretary of Commerce and Dabor, and Act Feb. 20, 1907, c. 1134, § 25, 34 Stat. 906 (U. S. Comp. St. Supp. 1911, p. 515), providing that where an alien is excluded the decision of the immigration officers shall be final unless reversed on appeal to the Secretary of Commerce and Dabor, a decision of the Commissioner of Immigration admitting a Chinese person into the United States on the theory that he is a native of the United States and entitled to reenter as such, is not res judicata as against an action of the board of immigration looking to a deportation of him, as being unlawfully within the United States, within three years after his re-entry, nor does it estop the United States from proceeding in the courts to determine his right to remain in the United States, and the prima facie effect of the certificate which be produced to the Commissioner of Immigration is subject to be controverted, and the facts therein stated disapproved by the government authorities.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 93-95; Dec. Dig. § 32.*]</p>

Action at law by Ole H. Lund against the Republic Elevator Company and the Northern Pacific Railway Company. Judgment for plaintiff against the Elevator Company alone, and it brings error. This was a suit for damages for personal injuries.

<p>Appeal from' the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Cornelius A. Davis and others against the Smokeless Fuel Company. Decree for libelants, from which they appeal.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern Division of the Southern District of Iowa. In the matter of the Reliable Foundry & Machine Company, bankrupt. On petition by Roger Brown & Co. and John E. Benbow to revise an order of the District Court.

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Action at law by Abraham R.'Byrd against George Allen Hall and the Decatur Egg Case Company. Judgment for defendants, and plaintiff brings error.</p>

Action at law by Clyde P. Sugg and others against John Eskew. and the Deeatur Egg Case Company. Judgment for defendants, and plaintiffs bring error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Actions at law by the United States against the Waters-Pierce Oil Company. Judgments for defendant, and the United States brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>Suit in equity by William S. Richards against James Harrison and Hettie W. Harrison. Decree for complainant, and defendants appeal.</p>

<p>In Error to the Circuit Court oí the United States for the District of North Dakota.</p> <p>Action at law by William A. Hanson against Eot Lachenmaier and Adam Nagel, Jr. Judgment for plaintiff, and defendants bring error.</p>

<p>Petition to Revise Order of District Court of the United States for the Eastern District of Arkansas.</p> <p>In the matter of bankruptcy proceedings of Sam Simon, bankrupt. Petition by F. C. Mullinix, trustee, to review an order for an exemption of $500 out of the proceeds of a sale of the bankrupt’s property.</p>

<p>Eminent Domain (§ 47*) — Contracts—Eptot>l>ee.</p> <p>A contract between a city and a railroad company, pursuant to which the city vacated and conveyed to the '•ompany certain street crossings, for which it received a consideration in improvements made by the company, at least in the absence of express provision therefor, does not preclude the city from subsequently reopening some of such streets by condemnation proceedings in the exercise of the power vested in it by statute.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-12Ó; Dec. Dig. § 47.*]</p>

<p>1. Criminal 'Daw (§ 1177*) — Appeal and Error — Review—Harmless Error.</p> <p>Where the sentence imposed on a defendant convicted on a number of counts was no greater than might have been imposed on any single count, if he was properly convicted of one-of the offenses charged, error with respect to the others is not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3183-3189; Dec. Dig. § 1177.*]</p> <p>2. Conspiracy (§ 38*) — Criminal Prosecution — Defenses.</p> <p>It is no defense to a criminal prosecution for conspiracy to commit an offense against the United States that defendant acted in his professional capacity as an attorney.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig.' §§'71, 72; Dec. Dig. § 38.*]</p>

<p>Appeax, and Eeeob (§ 265*) — Exceptions to Findings or Fact.</p> <p>Findings of fact, made by a Circuit Court in an action at law in which a Jury was waived, cannot he reviewed by the appellate court, in the absence of exceptions or requests for other findings.</p> <p>TIM. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1536-1551; Dec. Dig. § 205.*]</p>

<p>Patents (§ 328*) — Validity and Inebingeiient — Shaet-Hanger.</p> <p>The Wood patent, No. 790,609, for a shaft-hanger, was not anticipated, and discloses invention, and the device is one of utility and merit; also held infringed.</p>

<p>In Equity.. Suit by William,M. Decker, doing business as the Hy-geia Nursing Bottle Company, against De Wane B. Smith, doing business under the name of the Yankee Company. On final hearing. Decree for complainant.</p> <p>Suit to restrain alleged infringement of claims 1 and 3 of United States letters patent No. 521,773, dated June 19, 1894, to William M. Decker for “nursing bottle,” and alleged infringement of the sole claim of United States letters patent No. 587,939, dated August 10, 1897, to said Decker, for “nursing nipple,” and for an accounting.</p>

<p>1. Patents (§ 107*) — Validity—Recitals o» Peioe Aet.</p> <p>Recitals of the prior art in the specification of a patent can no more be taken as conclusive to negative novelty and invention than the claims of novelty and invention therein to establish the same.</p> <p>FEd. Note. — Por other cases, see Patents, Cent. Dig. § 243; Dec. Dig. % 167.*]</p> <p>2. Patents (§ 167*) — 'Validity.</p> <p>Where a patented device consists of an organized mechanism, the beneficial results secured by the invention cannot be ascertained by a scrutiny of the patent specification in the light of common popular knowledge.</p> <p>LEd. Note. — Por other cases, see Patents, Cent. Dig. § 243; Dec. Dig. § 167.*]</p> <p>3. Patents (| 47*) — Validity—Tests or Invention.</p> <p>The presence of patentable invention or its breadth or importance does not depend on the mere extent or eompletenéss with which the inventor has modified or altered existing devices, bnt rather on the new and beneficial result accomplished in its particular art.</p> <p>[Ed. Note. — Por other cases, see Patents, Cent. Dig. § 56; Dee. Dig. § 47.*]</p> <p>4. Patents (§ 328*) — Invention—Hoisting Appaeatus.</p> <p>The Norris patent, No. 722,613, for improvements in hoisting apparatus for unloading coal, is not invalid on its face for lack of patentable invention.</p>

<p>1. Statutes (§ 54*) — Legislation—Escheat.</p> <p>In the absence of congressional action on the subject, a territorial Legislature had power to pass Wash. Ter. Laws 1862-6:1, p. 201, § 340, providing that, if an intestate shall leave no kindred, his estate shall escheat to the county in which the estate may be situated.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 52; Dec. Dig. § 54.*]</p> <p>2. Statutes (§ 55*) — Legislative Power — Disposal or Soil.</p> <p>Wash. Ter. Laws 1862-63, p. 261, § 340, in so far as it provided for the escheat of lands to the county in which the lands were situated, was not in violation of Washington Organic Act, providing that the Legislature should pass no law interfering with the primary disposal of the soil, the term “primary disposal of the soil,” as used in such act, having reference only to the disposal of public lands of the United States by the officers or agents of the government to some person, who, having the qualifications to acquire such lands, and having complied with the terms of the law, is entitled to a conveyance by patent or deed without any reserved authority in the government or its officers to withhold the same.</p> <p>[Ed. Note. — For other cases, see Statutes, Dee. Dig. § 55.*]</p> <p>3. Statutes (§ 124*) — Title - Probate Practice Act.</p> <p>Wash. Ter. Laws 1862-63, p. 198, entitled “An act defining the jurisdiction and practice in the Probate Courts of Washington Territory,” was not invalid in so far as it provided for the distribution of estates, in that the provision for escheat to the county in which an estate might be situated in case an intestate died without kindred was not within the title of the act.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 184-186; Dec. Dig. § 124.*]</p> <p>4. Escheat (§ 6*) — Probate Courts — Jurisdiction.</p> <p>Wash. Ter. Laws 1862-63, p. 198, defining the jurisdiction and practice in the probate courts in. Washington Territory (section 317), provided that,- on the settlement of the accounts of an executor or administrator, the court shall proceed to distribute the residue" of the estate among the persons who are by law entitled thereto, and section 318 declares that in the decree the court shall name the person and the portion or parts’to which each shall be entitled, and such persons shall have the right to demand and recover their respective shares from the executor or administrator having the same in their possession. Section 340 provides for the descent of real property, and subdivision 8 declares that, if the intestate shall leave no kindred, his estate shall escheat to the county in which such estate may be situated. Hold, that the probate court had jurisdiction to determine that there were no children or lineal descendants of an intestate, and that intestate’s real, property, therefore, es-cheated to the county.</p> <p>[Ed. Note. — For other cases, see Escheat, Cent. Dig. § 9; Dec. Dig. S 6.*]</p> <p>6. Names (§ 20*) — Change oe Name — Legal Proceedings.</p> <p>A man may lawfully change his name without resorting to legal proceedings, and for all purposes the name assumed by him will constitute his legal name, and legal proceedings instituted against him under the assumed name will bind him and those claiming under 'him.</p> <p>[Ed. Note. — For other cases, see Names, Cent. Dig. § 54; Dec. Dig. $ 20.*]</p>

<p>1. Constitutional Law (§ 242*) — Carriers (§ 12*) — Governmental Regulation of Rates — Principals Governing.</p> <p>The power of the government to regulate railroads to preserve the just relation between the public and the corporations serving it is undoubted. The right of the public is to have reasonable and uniform rates, and the right of the railroads is to have an equal protection of the laws with citizens generally and fair returns on their investments.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. § 691; Dec. Dig. § 242 ;* Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>2. Constitutional Law (§ 242*) — State Regulation op Rates — Classification.</p> <p>The principles governing the right to classify railroads for the purpose of prescribing rates are somewhat similar to those applicable to their classification for purposes of taxation, but, in the exercise of this right in either case, the classification must have regard to, and be based on, some real and substantial distinction bearing a reasonable and just relation to the, things in respect to which such classification is imposed, and the grounds of classification must be such as are discoverable and understood to be reasonable on full investigation by competent persons.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. § 691; Dec. Dig. § 242.*]</p> <p>8. Constitutional Law (§ 242*) — State Regulation of Rates — Classification— Constitutionality of Alabama Statute.</p> <p>Act Ala. Nov. 23, 1907 (Acts Sp. Sess. 1907, pp. 91-159), prescribes certain maximum rates to be charged by railroads in the state on intrastate business. It divides the roads doing business in the state by name into four classes, and authorizes those in class 1 to charge the maximum rate plus 5 per cent., class 2 plus 20 per cent., class 3 plus 25 per cent., and class 4 plus 50 per cent. It authorizes the State Railroad Commission to change the classification, and -provides that, when any railroad in class 1 shall own or operate any other road or own a majority of its stock, the latter shall itself be placed in class 1. In a suit by certain railroads to enjoin enforcement of such act, the evidence showed without contradiction that the classification made was not based upon any substantial difference, between the several roads, such as the relative cost of construction and maintenance or earnings from intrastate business, but that roads between which there was no difference discoverable by experts were placed in different classes, giving to some a large advantage in rates over others; that the lines of one of complainants in the state, which were largely branch lines, and which were well conducted and managed but earned little or nothing above expenses on intrastate business and ranked fourth in net earnings per mile from all business, were placed in class 1, while others making larger earnings were placed in lower classes; that certain companies which were originally parties to .the suit but withdrew by agreement with the Governor were placed by the commission in more favorable classes. There was no evidence tending to show upon what basis, if any, the classification was made. Held, that complainants were required to establish the unreasonableness of the classification by a preponderance of the evidence only, and that on the evidence, and in view of the manner of its enforcement by the administrative officers of the state, the act made an arbitrary and unreasonable classification, and was uiuonstitutional and void, as depriving complainants of the eaual protection of the laws.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 091 ; Dec. Dig. § 242.*]</p> <p>4. Carriers (§ 12*) — State Regulation op Kates — Reasonableness op Bates — Valuation of Property.</p> <p>In ascertaining the value of a railroad for the purpose of determining the validity of a rate regulating statute, the most reliable test ordinarily is the cost of reproduction of the road as it exists at the time when the statute was enacted, taking the value of property at that time, without regard to what may have been its value when the road was constructed. The original cost and market value of the stock and bonds of the company, viiile they may be taken into consideration, are subject to so many collateral considerations that they are ordinarily of little assistance.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>6.Carriers (§ 12*) — State Regulation of Kates — Valuation op Property —Franchises.</p> <p>In valuing the property of a railroad company for the purpose of determining- the validity of a state statute regulating rates, the value of the company’s franchise is to be included, aiid where the state, by its Tax Commission, has placed a value on such franchise for taxation purposes, it may fairly be taken by the court as a basis for its finding.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Doc. Dig. § 12.*]</p> <p>6. Carriers (§ 12*) — State Regulation oe Rates — Validity—Reasonableness op Kates.</p> <p>For the purpose of determining whether or not a state statute fixing railroad rates is reasonable or confiscatory as to a particular company, it is necessary io ascertain the value of all of its property devoted to its business as carrier in the state, and to apportion such value between its interstate and intrastate business, and it is entitled to earn a fair return from its intrastate business on the value of the property devoted to such business, regardless of its interstate earnings.</p> <p>TEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dee. Dig. § 12.*]</p> <p>7. Carriers (§ 12*) — State Regulation op Kates -Reasonableness of Rates.</p> <p>Methods of apportioning the value of the property of railroad companies between their interstate and intrastate business considered.</p> <p>LEd. Note. — For other eases, see Carriers, Cent. Dig. §§ 7~11, 15-20; Dec. Dig. § 12. *j</p> <p>8. Carriers (§ 2*) — State Statute Fixing Rates — -Constitutionality—Reasonableness op Rates.</p> <p>Act Ala. Nov. 23, 1907 (Acts Sp. Sess. 1907, pp. 91-159), fixing maximum rates to be charged by railroads in the state on intrastate shipments, held confiscatory and unconstitutional and void as to complainant railroad companies, on evidence showing that, prior to its enactment, their intrastate business was either done at an actual loss or their net profit was only a fraction of 1 per cent, on Hie value of the property devoted to such business, and that the then prevailing rates, which were not unreasonably high, were reduced by the act.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 2; Dec. Dig. § 2.*]</p> <p>9. Carriers (§ 12*) — State Statute Fixing Kates — Reasonableness of Kates — Return on Investment.</p> <p>Railroads in Alabama are entitled to earn a net profit of 8 per cent, on the value of the properly employed by them in intrastate business, so long as the business is done without discrimination and at reasonable rates.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>10. Carriers (§ 12*) — State Statutes Regulating Rates — Confiscatory Rates.</p> <p>A railroad has the right to change rates which to meet an exigency-have been made so low as to be unremunerative, when the necessity therefor has ceased to exist, and a statute which prohibits the increase of such rates is unconstitutional as confiscatory.</p> <p>[Ed. Note. — ^Por other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p>

<p>In Equity. Suit by the Keystone Bank against Edward J. Don-nelly and others. On final hearing. Decree for complainant.</p>

<p>In the matter of Knowltou & Co., a partnership, bankrupt. On certificate of referee.</p>

In Admiralty. Suit by James E. Perkins, master and owner of the steam tug Startle, against the steam yacht Navis; Charles A. Plum-mer, claimant, and Joseph T. Davidson, respondent under admiralty rule 59. Suit by Joseph T. Davidson against Charles A. Plummer. Decree for libelant in first case against the yacht Navis, and for li-belant in second case. In No. 149: In No. 150:

Petition by Marc Huhbert, for the use and benefit .of Lewis Ap-person, against E. N. Tucker and others, for a mandamus. From an order granting the writ, defendants bring error.

In the matter of William H. Jones, alleged bankrupt. From an order of adjudication, on petition of W. W. Coates, after a jury trial, defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action at law by Frank A. Newell against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>. Real action by Benjamin W. Hubbard against the Worcester Art Museum. There was a judgment for the tenant (179 Fed. 406), and demandant brings error.</p>

In 'Error to the District Court of the United States for the Eastern Division of the Eastern District of Washington. Criminal prosecution by the United States against C. E. Mitchell. From a judgment of conviction, defendant brings error.

<p>1.. Negligence (§ 83*) — Contributory Negligence — Last Chance Rule.</p> <p>. What is known as the last chance rule in actions for negligence does not destroy or supplant the doctrine of contributory negligence, but is an exception or qualification which presupposes negligence of the defendant and contributory on the part of the person injured, and imposes liability if, after perceiving the dangerous position in which the latter has negligently placed himself, the injury might then have been avoided by the defendant by the exercise of reasonable care. It does not apply where there is no negligence of defendant occurring after that of the person injured or where the defendant does not discover his exposure to danger in time to prevent the injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent Dig. § 115; Dee. Dig. § 83.*]</p> <p>2. Railroads (§ 282*) — Operation op Railroad Trains — Flying Switch.</p> <p>The rule that the making of a flying switch on a railroad is negligence ás a matter of law is not of universal application, but has reference to travelers on public roads and others rightfully crossing the track who are entitled to appropriate signals of approaching trains or cars, and in' other cases whether such method of switching is negligent depends on the circumstances and the way the work is done.</p> <p>I Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p> <p>3. Railroads (§ 278*) — Injury to Licensee on Tract — Ik juey Avoidable NOTWITHSTANDING CONTRI BL’TOBY NEGLIGENCE.</p> <p>Plaintiff’s intestate shipped a car of household goods and live stock on defendant’s railroad under a contract which permitted him to accompany the shipment free of charge, but contained an agreement on his part to remain in the caboose while 1he train was in motion, and that he would not be on any freight car while switching was being done, and provided that defendant should not be liable for his injury while violating such conditions. He was riding in his car, however, when it reached its destination, and was shunted upon a siding, and was killed by its coming into violent collision with another ear. .Tust before the switch was made, he was seen in the ear by the conductor. The car was ridden by a brakeman, but, when he attempted to stop it, a bolt in the brake mechanism broke, and he lost control of it. The brake had been examined and tested by the conductor and brakeman just before the switch was made and found in apparently good order; the defect being one not readily discoverable. Hold that, after the presence of deceased in the car was discovered, there was no negligence on the part of defendant which rendered it liable for his death.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 891-900; Dec. Dig. § 278.*</p> <p>Injuries to licensees on train, see note to Chamberlain v. Pierson, 31 C. C. A. 164.]</p>

<p>In Error to the District Court of the United States for the District of Montana.</p> <p>Action by the United States against the Chicago, Milwaukee & Puget Sound Railway Company. Judgment for plaintiff.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action at law by the City of Omaha against Armour & Co. Judgment for defendant, and plaintiff brings error.</p>

In Efror to the District Court of the United States for the Eastern Division of the Eastern District of Washington. Criminal prosecution by the United States against Dan Kalen. Judgment of conviction, and defendant brings error.

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Suit in equity by the Charles E. Hires Company against August P. Villepigue. Decree for defendant, and complainant appeals.</p>

Company against the City of Grand Rapids and Edward W. Seamans. From an order entered on a motion for preliminary injunction, defendants appeal. This ease is here on appeal from an order granting a temporary injunction.

<p>In Equity. Suit by William A. Eraser against Thomas C. Duffey and others. On final hearing. Decree for complainant.</p>

On Application I'oi New Trial.) In Bankruptcy. Petition by the Louisiana National Life Assurance Society and others against Jacob Segen for the adjudication of defendant a bankrupt. Decree adjudicating defendant a bankrupt ordered.

<p>In Equity. Suit by the Winton Motor Carriage Company against the Curtis Publishing Company. On motion for preliminary injunction.</p>

In Bankruptcy. In the matter of Marlette Crouse, bankrupt. On petition of George A. Mathews to review order of referee confirming a sale of the interest of bankrupt in the estate of Florence M. Crouse under her last will and testament.

<p>Bankruptcy (§ 396*) — Exemption.</p> <p>Where a bankrupt made bis claim to specific exemptions under the Pennsylvania statute in due time after receiving notice of the adjudication, which was involuntary, but the property had been sold by a receiver, it was within his right to claim the $300 value allowed by the statute in money as an alternative.</p> <p>| Ed. Note. — Por other eases, see Bankruptcy, Cent. Dig. §§ 659-668; Doc. Dig. § 396.*']</p>

<p>Judgment (§ 677*) — Peesons Concluded — Pebsons Represented by Parties.</p> <p>Complainants, I. W. Rowe and wife, purchased and took a warranty deed for a tract of land, with knowledge of an adverse claim by defendant to a portion of the tract arising out of a dispute as to the boundary of an older grant from the state owned by defendant. Before their deed was recorded, defendant brought suit in a state court to quiet her title against their grantor, also making J. W. Rowe, as she understood the name of the purchaser to be, a defendant. Complainant’s grantor defended the suit in his own name and that of J. W. Rowe; the result being a judgment establishing defendant’s boundary which was affirmed on appeal. Held, on evidence, that complainants knew of the suit' and relied on their grantor to defend it pursuant to his warranty, that they were bound by the judgment, and could not subsequently maintain a suit in a federal court to again litigate the same issue.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1062, 1193; Dec. Dig. § 677.*]</p>

<p>In Admiralty. Suit by the Steamship Rutherglen Company, limited, against Howard Houlder and Partners, Incorporated, with cross-libel. Decree for libelant.</p>

<p>In Admiralty. On petition of P. Sanford Ross, Incorporated, for limitation of liability.</p>

<p>Copyrights (§ 76*) — Musical Compositions — Records for Mechanical Production — Piracy—“Person Aggrieved.”</p> <p>Copyright Act March. 4, 1909, c. 320, § le, 35 Stat. 1075 (U. S. Comp. St. Supp. 1911, p. 1472), gives the owner of a copyright for a musical composition the exclusive right to make or license another to make perforated music rolls or records for mechanically producing such composition, subject to the condition that, if he shall make or authorize the making of such records, any other person may make similar use of the work on payment of a fixed royalty. The right so given to a subsequent maker, however, does not authorize him to copy the record of the first maker, but his work must be done from the original composition, and under section 36 of the act, which authorizes a suit in equity by any person aggrieved to enjoin the violation of any right secured thereby, the original maker, whettier the proprietor of the copyright or his licensee, is entitled to an injunction to restrain such copying or reproduction of his records.</p> <p>[I-ld. Note. — For other cases, see Copyrights, Cent. Dig. § 68; Dec. Dig. § 70.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 271-278; vol. 8, p. 7569.]</p>

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action at law by Elizabeth G. Weldy, administratrix of Jacob E-Weldy, Jr., deceased, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

' Suit by. the receiver of the National Bank of North America, continued in the name of John W. McKinnon, shareholders’ agent, against Clarence.W. Barron. Judgment for plaintiff, and defendant brings error.

Action at law by Belinda O’Hara against the Mahoning Valley Railway Company. Judgment for plaintiff, and defendant brings' error. The defendant in error was plaintiff in the court below, and recovered against the railway company a judgment for damages from an injury received by her in alighting from the company’s street car, in Youngstown, Ohio.

of the United States for the District of New Jersey. In the matter of the B. Jacobson & Son Company, bankrupt. From order confirming composition, the Georgia Pine Company appeals.

the Eastern Division of the Northern District of Ohio. Suit in equity by the Parsons Non-Skid Company, Limited, the Weed Chain Tire Grip Company, and Harry D. Weed, against Dorsey E. Eoote. From an order continuing and refusing to dissolve a preliminary injunction, defendant appeals. On petition to intervéne and motion to dismiss appeal.

<p>1. Trade-Marks and Trade-Names (§ 93*) — Infringement—Injunction.</p> <p>Proof of sales by defendants as dealers of articles bearing infringements of complainant's trade-marks, although to agents of complainant only, together with proof that defendants had other similar articles displayed for sale in their store, is sufficient to entitle complainant to an injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.*</p> <p>Restraining infringement of trade-mark or trade-name as dependent on knowledge or intent of infringer, see note to Hutchinson, Pierce & Co. v. Loewy, 90 C. C. A. 4.]</p> <p>2. Trade-Marks and Trade-Names (§ 93*) — Liabilitv of Dealers for Infringement — Presumption of Intent.</p> <p>Dealers buying from manufacturers are to a certain extent put upon inquiry and must be on their guard to ascertain whether the marks and labels on packages may be infringements of the trade-marks of other manufacturers, and are not protected from liability for selling articles bearing such infringing trade-marks by the fact that it is not conclusively shown that they intentionally deceived purchasers, which on proof of the sales must be presumed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104=106; Dec. Dig. § 93.*]</p>

<p>In Equity. Suit by the Gorham Manufacturing Company against Bernard Di Salvo and John Di Salvo. On final hearing. Decree for complainant.</p>

<p>1. Trade-Marks and Trade-Names (§§ 21, 97*) — Masks Subject os' Ownership — Use in Foreign Country.</p> <p>A manufacturer of silver ware in the United States is not preeluded from adopting as a trade-mark a combination of emblems, consisting of a lion passant, an anchor, and the letter G in old English, by the fact that each was previously used as an English hall-mark, and that used In combination they constitute the hall-mark of the Birmingham 'Assay Office, where-such hall-marked ware was not shown to have been imported into this country to any considerable extent previous to such adoption, and its use of such trade-mark for 50 years during which it has become well known as indicating ware of its manufacture entitles it to protection by injunction against infringement by another American manu-, faeturer.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 24, 110, 111; Dec. Dig. §§ 21, 97.*]</p> <p>2. Common Law (§ 7*) — English Statutes — Hall-Marks.</p> <p>The English statute of 1773 relating to hall-marks is not in force in the United States.</p> <p>[Ed. Note. — For other cases, see Common Law, Cent. Dig. § 7; Dec. Dig. § 7*1</p> <p>3. Trade-Marks- and Trade-Names (§ 45*) — Common-Law Trade-Marks.</p> <p>A manufacturer is not deprived of his right to a common-law trademark by the registering of other additional trade-marks.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 53; Dee. Dig. § 45.*]</p> <p>4. Trade-Marks and Trade-Names (§§ 70, 97*) — Unfair Competition — Injunction.</p> <p>Manufacturers of silver-plated ware, who made and sold articles resembling in design and general appearance solid or sterling silver ware made by complainants and at the request of customers who -were dealers stamped thereon imitations of the trade-marks or other identifying marks by which complainant’s ware was known to purchasers, for the purpose and with the effect of creating confusion, are chargeable with unfair competition whidh entitles complainant to an injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 81, 110, 111; Dec. Dig. §§ 70, 97.*'</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Mueller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 O. C. A. 376.]</p>

<p>At Law.. Action by George J. H. Crowe, as trustee of the estates of Pappas & Karahall, a copartnership, and Nicholas Pappas and Peter Karahall, individuals, bankrupts, against Frederick H. Bau-mann. On demurrer to second amended complaint.</p>

<p>1. Bankruptcy (§ 211*) — State Courts — Jurisdiction to Determine Questions Arising under Bankruptcy Act.</p> <p>In a suit in a state court to quiet title, brought under Ky. St. § 11, which authorizes such a suit by any person having both the legal title and possession of land against any other person setting up claims thereto, the court has jurisdiction to determine a claim set up by a defendant as the trustee in bankruptcy of plaintiffs grantor that the conveyance to plaintiff was in fact a mortgage, and void as an illegal .preference, under Bankr. Act July 1, 1898, c. 541, §. 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1506), especially in view of the provision of such section giving the state courts concurrent jurisdiction with courts of bankruptcy of suits to avoid preferences.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 321, 323; Dec. Dig. § 211.*]</p> <p>2. Bankruptcy (§ 211*) — Federal and State Courts — Priority oe Jurisdiction.</p> <p>Where, in such case, the trustee set up his claim by answer, the state court acquired jurisdiction of the controversy to the exclusion of that- of a federal court in a suit subsequently commenced therein by the trustee to avoid the transfer which will be stayed until the state court has determined the matter, unless there should be such delay as to interfere seriously with the settlement of the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent, Dig. §§ 321, 323; Dec. Dig. § 211.*</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>1. Trade-Marks and Trade-Names (§ 95*) — Unfair Competition — Use or Name — ( 'oxsiruction oír Contract.</p> <p>Where a contract, conveying the business, good will, and rights of a manufacturer of chewing gum, and binding the sellers not to engage in the business for 10 years, made no mention of the name of the sellers which had previously been used on the packages of gum sold, in connection with names adopted for the different brands, the question whether they were precluded from using such name in a similar business after the expiration of the 10 years is not sufficiently clear to entitle the purchaser to a preliminary injunction to restrain such use.</p> <p>rihl. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p> <p>2. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition — Imitation of Dress.</p> <p>Defendants held, on tbe showing made, to have intentionally imitated packages, dress, and advertisements of chewing gum made and sold by complainant to such extent as to constitute unfair competition and entitle complainant to an injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>1. Parties (S 32*) — Indispensable Partees.</p> <p>To a suit in equity by the owner to obtain possession of certain bonds which have been seized by one of the defendants as sheriff under attachments issued in several actions against complainant, on the ground that the bonds were not subject to attachment, the plaintiffs in the attachment suits are indispensable parties.</p> <p>[Ed. Note. — For other cases, see Parties, Dec. Dig. § 32.*]</p> <p>2. Courts (§ 497*) — Conflicting- Jurisdiction — Federal and State Courts.</p> <p>A federal court of equity is without jurisdiction of a suit to obtain possession of certain bonds which have been attached under writs issued by a state court, in actions against the complainant.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1386, 1397, 1398, 1404-1406; Dec. Dig. § 497.*</p> <p>Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. 0. A. 356.]</p>

<p>Bankruptcy (§ 224*) — Jurisdiction of Referee — Adverse Claims to Property.</p> <p>Where a bank in good faith asserted an adverse claim to stocks pledged. to it by a bankrupt, subject to a prior pledge to another bank which had actual possession of the stocks, a referee was without jurisdiction to determine its right to them in a summary proceeding over its objection filed when it appeared; nor did it waive such objection by pleading to the merits at the same time, and the good faith of the bank’s claim is sufficiently established to defeat the jurisdiction in such proceeding by a decree of a state court establishing its lien in a suit between it and the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 383; Dec. Dig. § 224.*]</p>

<p>Bankruptcy (§ 140*)- — Rights of Trustee — Unrecorded Conditional Sale.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 47a(2), 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), which provides that “trustees, as to all property in the custody or coming into the custody of the bankruptcy court shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon,” was intended to protect general creditors against holders of unrecorded mortgages and conditional sale contracts, and, under such provision, the right of a trustee to property held by the bankrupt under a contract of conditional sale nob recorded as required by Civ. Code Ga. 1910, § 3319, or the proceeds of such property, coming into his hands, is superior to that of the seller.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p>

At Taw. Action by William W. Niles, as administrator, against the Tudlow Valve Manufacturing Company. On motions by both parties for directed verdict. Verdict directed for defendant.

<p>Action by the United States against George W. Farr’s executor to recover legacy tax. Judgment for plaintiff.</p>

In the matter of bankruptcy proceedings of Samuel and Jacob Karp. Application by the bankrupts to be purged of contempt and be released from jail.

<p>1. Courts (§ 359*) — Federal Courts — Rules of Decision — Policy of State. The federal courts consider the policy of the state in which they are situated in determining the enforceability of statutes of other states.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. § 359*</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>2. Death (§ 35*) — Statutes—Foreign Statutes — Enforcement—Public Policy.</p> <p>A Florida statute creating a cause of action for wrongful death pro-, vides that, where the decedent leaves no widow, minor child, or person dependent on him for support, an action may be maintained by his executor or administrator, and the recovery is an asset of the decedent to be distributed as if it were an actual asset belonging to the decedent at the time of his death. Held, that such act construed by the Florida courts to authorize a distribution of the amount recovered to creditors was contrary to tie policy of the state of New York, and would not therefore bo enforced in a federal court sitting in Now York.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 50; Dee. Dig. § 85.*</p> <p>What law governs actions for wrongful death, see note to Burrell v. Fleming, 47 O. C. A. 606.]</p>

<p>In Admiralty. In the matter of petition of Jeremiah Smith & Sons, Incorporated, for limitation of liability. Hearing on claim of Edward O’Neil for damages.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of North Carolina, at Raleigh.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the Circuit Court of the United States for the District of Delaware. In Equity. Suit by Frank R. Baker and James K. Mitchell against the Federal Oil & Gas Company. From a decree of dismissal complainants appeal.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. In Bankruptcy.</p>

This cause comes here upon additional testimony taken in compliance with opinion of this court filed November 20, 1911 (191 Fed. 800, 112 C. C. A. 286).

<p>Appeal of UNITED STATES.</p> <p>Appeal from the District Court of the United States for the Southern District of New York.</p>

<p>Petition for review to Western District of Kentucky.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p>

<p>Appeal from the District Court of the United States, for the District of Kansas.</p>

<p>In Error to the Circuit Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in Bankruptcy.</p>

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