Volume 197 — Federal Reporter

In the matter of Benjamin G. Williams, bankrupt. Appeal by the Coal City House Furnishing Company, the Schmulbach Brewing Company, and Edward B. Frauzheim from an order directing a resale of property by George R. Hogue, trustee.

Suit in equity by W. H. Holabird,'as receiver of the California Development Company, and the California Development Company, against the Imperial Water Company No. 5, for cancellation of a written instrument. Decree for complainants, and defendant appeals.

Action at law by the Lucas E. Moore Stave Company against the Mangold Stave & Cooperage Company. Judgment for plaintiff, and defendant brings error. This action was brought by the defendant in error, who, for convenience," will be called “plaintiff,” against plaintiff in error, who, for convenience, will hereafter be called “defendant,” to recover damages for the breach of a contract for the sale and delivery of barrel staves.

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

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action at law by Elizabeth Forrest against the Dunlevy & Bro. Company. Judgment for plaintiff, and defendant brings error.</p>

Action at law by the Sloss-Sheffield Steel & Iron Company against •the Tacony Iron Company. Judgment for plaintiff for part of its claim, and it brings error.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Action by A. E. Schwartzmiller against the Ward-Mackey Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Suit in equity by Henry Baetz against the Schoenlau-Kukkuck Trunk Top & Veneer Company and Frederick Kukkuck. Decree for defendants, and complainant appeals.</p>

<p>In Equity. Suit by the Byron Jackson Iron AVorks against the United Iron Works. On final hearing and petition for rehearing.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Suit in equity by the American Steel Foundries and the J. S. Andrews Company against the Scullin-Gallagher Iron & Steel Company. Decree for defendant, and complainants appeal.</p>

<p>Patents (§ 328*) — Infringement—Clothes Deter.</p> <p>The Barnes patent, No. 684,776, for a clothes drier, in view of the limitations imposed by the language of the claims as allowed and the prior art, must be confined to a drying-room having heating-coils on its sides only and the central part of the room under the conveyer devoid of efficient hcating-coils, and is not infringed where coils furnishing a substantial quantity of heat are placed in the center of the room beneath the conveyer.</p>

<p>In Equity. Suit by the Gilbert Manufacturing Company against the Post & Lester Company. On final hearing.</p>

In Equity. Suit by the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railway Company, petitioners, and the Nashville Grain Exchange and the Nashville Board of Trade, intervening petitioners, against the United States, respondent, and the Interstate Commerce Commission, W. S. Duncan & Co., and others, intervening respondents, to annul an order of the Interstate Commerce Commission. On final hearing.

<p>In Equity. Suit by the Chamber of Commerce of the City of Augusta, Ga., petitioner, against the United States and the Interstate Commerce Commission, respondents. On motion to dismiss.</p>

<p>1. Extradition (§ 10*) — International—Procedure—Preliminary Demand.</p> <p>Tn tlie absence of treaty provisions requiring it, a demand for Hie extradition of a fugitive from justice is not a step necessary to be taken before the institution of proceedings for Ms return, which may be prosecuted before an extradition commissioner by a foreign country, under Rev. St. § 5270 (U. S. Comp. St. 1901, p. 3591), without any precedent formalities.</p> <p>[Ed. Note. — For other cases, see Extradition, Cent. Dig. § 11; Dec. Dig. § 10.*]</p> <p>2. Extradition (§ 12*) — International—Procedure—’Warrant of Arrest.</p> <p>In proceedings for the extradition of an alleged fugitive from justice by a foreign country under Rev. St. § 5270 (ü. S. Comp. St. 1901, p. 3591), it is not necessary to produce before the commissioner any warrant of arrest or other equivalent document issued by a foreign magistrate.</p> <p>[Ed. Note. — For other cases, see Extradition, Cent. Dig. § 13; Dec. Dig. § 12. *J</p> <p>3. Extradition (§ 34*) — International—Procedure—Depositions.</p> <p>Act Aug. 3, 3882, c. 378, § 5. 22 Stat. 216 (U. S. Comp. St. 1901, p. 3595), which provides that, in extradition proceedings, copies of depositions shall be received in evidence if authenticated so as to entitle them to be received in the tribunals of the demanding country which may be shown by the certificate of the principal diplomatic or consular officer of the United States resident in such country, supersedes the requirement of Rev. St. § 5271 (U. S. Comp. St. 1901, p. 3593), that such copies shall be attested by the oath of the person producing them, and such attestation is not necessary.</p> <p>[Ed. Note. — For other eases, see Extradition, Cent. Dig. §§ 15, 16; Dec. Dig. § 14.*]</p> <p>4. Extradition (§ 14*) — International—Hearing Before Commissioner— Evidence.</p> <p>Evidence offered before an extradition commissioner to sustain charges of forgery and the utterance of forged bills of exchange in Bavaria by an alleged fugitive from justice reviewed in a habeas corpus proceeding, and held competent and sufficient to authorize the commissioner to exercise his judgment thereon.</p> <p>[Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 15, 16; Dec. Dig. .§ 14.*]</p> <p>5. Criminal Law (§ 371*) — Admissibility op Evidence — Intent and Knowledge.</p> <p>To sustain charges of forgery and the utterance of forged paper, evidence that the accused had in his possession and disposed of a large number of other forged bills and acceptances of similar character to those upon which the charges are based is competent upon the questions of knowledge and intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dee. Dig. § 371.*]</p> <p>6. Extradition (§ 14*) — International—Scope of Inquiry before Commissioner.</p> <p>In proceedings for the extradition of an alleged fugitive from justice of a foreign country charged with a crime specified in the treaty and also enumerated in Rev. St. § 5270 (U. S. Comp. St. 1901, p. 3591), the commissioner is not required to make extended inquiry as to the scope of the criminal jurisprudence of the demanding country, but is limited to determining whether there is sufficient evidence of criminality to justify holding the accused for the particular offense, as we understand that offense by its description in the treaty and in our laws.</p> <p>[Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 15, 16; Dec. Dig. § 14.*]</p>

, .At Law. Action by H. E. Gaugler and others against the Chicago, Milwaukee & Puget Sound Railway Company. On application for leave to renew a motion to remand to the state court.

<p>1. Master and Servant (§ 256*) — Employer’s Liability Act — Actions— Pleading.</p> <p>Where the plaintiff’s pleading shows a right of recovery under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), it is not necessary that he should expressly allege that he bases his action thereon, since, as to the ground covered, it supersedes all state laws.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.*</p> <p>What law governs master’s liability for injuries to servant, see note to Mexican Cent. Ry. Co. v. Jones, 48 C. C. A. 232.]</p> <p>2. Removal of Causes (§ 19*) — Actions Under Employer’s Liability Act.</p> <p>Under the express language of the proviso to section 28, Judicial Code March 3, 3911. c. 231, 36 Stat. 1094 (U. S. Comp. St. Supp. 1911, p. 140), no cause arising under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), is removable from a state court of competent jurisdiction to a federal court, and no exception can be made of cases sought to be removed on the ground of diversity of citizenship.</p> <p>[Ed. Note.- — For other cases, see Removal of Causes, Cent. Dig. §§ 37 - 46, 48, 52, 53; Dec. Dig. § 19.*]</p> <p>3. Constitutional Law (§ 249*) — Equal Protection of Laws — Removal of Causes.</p> <p>Congress has full power over the subject of removal of causes from state to federal courts in all cases to which the judicial power of the United States extends and the proviso to section 28, Judicial Code March 3, 3.911, c. 231, 36 Stat. 1094 (U. S. Comp. St. Supp. 1911, p. 140), excepting from causes removable actions brought under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 3911, p. 1322), Is not unconstitutional as denying the equal protection of the laws to litigants in such eases.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 710; Dec. Dig. § 249.*]</p>

At Law. Action by James Wilson against the New England Navigation Company. On motion by defendant for a bill of particulars and by plaintiff for an examination and inspection of an object in defendant’s possession.

<p>1. Master and Servant (§ 113*) — Railroads—Negligence—Oars Not in “Olear.”</p> <p>A railroad company is negligent toward a locomotive engineer in leaving cars on a siding within striking distance of his train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 224-227; Dec. Dig. § 113.*]</p> <p>2. Master and Servant (§§ 206, 217, 227*) — “Assumption op Risk” and “Contributory Negligence” Distinguished.</p> <p>While the doctrine of assumption of risk sometimes shades .into that of contributory negligence, there is a clear distinction between the doctrines, an employé being held to assume the risk of ordinary dangers of his occupation, and also those risks which are known to him or are so clearly observable that he may be presumed to know of them, while contributory negligence constitutes omission of an employ® to use those precautions for his own safety which ordinary prudence requires.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 550, 574-600, 668, 669, 672; Dec. Dig. §§ 206, 217, 227*</p> <p>For other definitions, see Words and Phrases, vol 1, pp. 589, 591; vol. 8, pp. 7584, 7585; vol. 2, pp. 1540-1547; vol. 8, p. 7617.]</p> <p>3. Master and Servant (§ 204*) — Railroads—Assumption op Risk.</p> <p>Under federal Employers’ Inability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), which makes interstate common carriers liable for negligent injury to employés, and which provides that an employ® shall not be held to have assumed the risk of his employment where the employer has violated any statute enacted for the safety of employés, if the violation contributed to the injury, an employ® assumes the risks of ordinary dangers incident to bis employment, not including negligent acts of the carrier’s officers, agents, or employés or any defect or insufficiency, due to its negligence, in its cars, engines, appliances, tracks, roadbed, boats, wharves, etc., and a locomotive engineer does not assume the risk of being injured by his employer’s negligence in leaving cars on a siding within striking distance of the engineer’s train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 644r-546; Dec. Dig. § 204.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>1. Habeas Corpus (§ 45*) — Federal Jurisdiction.</p> <p>Federal jurisdiction to review the legality of a prisoner’s restraint of liberty under a state writ should not be exercised before trial, unless the act alleged to have been done or omitted has reference to a law of the United States or an order, process, or decree of a federal court, or where the petitioner is a subject or citizen of a foreign state and domiciled therein, and is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order, or sanction of a foreign state or under color thereof, the validity and effect of which depend on the law of nations, or in such and like eases of urgency involving the authority of the general government, its obligations to, or its relations with, foreign nations, etc.</p> <p>[Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. §§ 1096, 1376-1385; Dec. Dig. § 45.*]</p> <p>2. Habeas Corpus (§ 54*) — Federal Jurisdiction — “Exceptional Case oe Peculiar Ursency.”</p> <p>Petitioner, having been arrested for violating the Wisconsin Usury Law (St. Wis. 1898, § 1691, as amended by Laws 1905, c. 278, and Laws 1907, c. 412), making the collection of rates of interest in excess of those specified a misdemeanor, applied to a federal court for a writ of habeas corpus on the ground that the statute was unconstitutional, and alleged that he had no adequate remedy in the state courts because, if, when tried, he was found guilty, the court would immediately impose- the penalty of imprisonment, and not a fine, having previously inflicted imprisonment as a penalty in other recent cases, and would not stay execution of the sentence pending appeal, that the appeal would be ineffective because the Wisconsin Supreme Court had already decided the statute constitutional and would adhere to its ruling, and that petitioner could not obtain a decision on appeal to the Supreme Court of the United States from tbe decision of the state court before the sentence that would be imposed bad expired. Held, that such petitioner improperly assumed that his trial in the state court would result in a -conviction, and that such court would sentence to imprisonment when it had authority to impose a fine as a penalty and also to order his enlargement pending appeal, and that such allegations were, therefore, insufficient to show that the case was an exceptional one of peculiar urgency sufficient to require the granting of the writ by the federal court.</p> <p>[Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. § 51; Dee. Dig. § 54.*</p> <p>Jurisdiction of federal courts on habeas corpus, see note to In re Huse, 25 C. C. A. 4.]</p>

In the matter of M. C. Simon, individually and as surviving partner of the firm of,Ely Meyer & M. C. Simon, bankrupt. On review of decision of special master.

In the matter of Michael C. Simon, individually and as surviving partner of the firm of Ely Meyer & M. C. Simon, bankrupt. On review of order of referee.

In the matter of the bankruptcy proceedings of the Pittsburg Dick Creek Mining Company of Alaska. On objections to master’s report recommending confirmation of a sale of the assets of the bankrupt.

In the matter of bankruptcy proceedings of Meyer Sabsevitz. Application for confirmation of a composition, to which certain creditors filed objections.

<p>1. Bankkuptcy (§ 410*) — Application fob Disciiab&e — Extension of Time fob Filing — Discketion of Coubt.</p> <p>Under the provision of Bankruptcy Act July 1, 1898, c. 541, § 14a, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), which authorizes the filing of a petition for discharge within six months after the expiration of the year from adjudication, within which it may be filed as matter of right, “if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time,” an application for leave to file such a petition is addressed to the discretion of the judge and may be made without notice to creditors or formalities of practice or procedure, except such as the judge may at the time direct, and in the exercise of his discretion the judge may give a liberal construction to the term “unavoidably prevented’’ to include excusable neglect, reasonable grounds for delay, mistake, possibly inadvertence, and the like.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Oent. Dig. § 694; Dec. Dig. § 410.*]</p> <p>2. Bankkuptcy (§ 413*) — Discharge—Proceedings on Application.</p> <p>Creditors who appear and file objections on the merits to the granting of a discharge to a bankrupt thereby waive objection to any error or irregularity in granting an extension of time for filing the petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712, 718, 725, 727; Dec. Dig. § 413.*]</p>

<p>In the matter of Charles Churchill, bankrupt. On review of order of referee.</p>

<p>Bankruptcy (§ 323*) — Proof of Mortgage — Attorney’s Pees.</p> <p>Under Civ. Code Ga. 1910, § 4252, which gives a mortgagee the right to recover attorney’s fees on foreclosure, 'by previously giving notice of intention to foreclose, stating tlie term of court, the'giving of the notice gives only an inchoate right to recover such fees, which does not. become complete until actual foreclosure at the term stated, and where bankruptcy of the mortgagor intervenes, and the mortgage is proved In the bankruptcy court, the fees are not allowable from the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 503, 505, 513; Dec. Dig. § 323.*]</p>

<p>Equity (§ 346*) — Plea—Burden of Proof.</p> <p>Where a bill in equity in a federal court to recover an interest in the estate of a decedent alleged that defendant, aittiough an alien, had as executor collected assets of the estate and invested the same in bonds, which he held within the jurisdiction of the court, a plea in bar, denying the jurisdiction on the ground that defendant is a nonresident alien, and that all assets of the estate were removed from the United States before the suit was commenced, is a negative plea, being in effect merely a denial of a jurisdictional allegation of the bill, and the burden of sustaining such allegation is on complainant.</p> <p>[Ed. Note. — Ifor other cases, see Equity, Cent. Dig. §§ 725,.726; Dec. Dig. § 346.*J</p>

<p>1, Railroads (§ 350*) — Street Grossing Accidents- — Contributory Negligence — Jury Question.</p> <p>Tn an action against a railroad company for personal injury to a driver at a street crossing, where he was struck by a train, whether he was guilty of contributory negligence held, under the evidence, a jury question.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192: Dec. Dig. § 350.*]</p> <p>2. New Trial (§ 59*) — Special Interrogatories — Disagreement as to Answer.</p> <p>Where, in an action against a railroad company for injuries received in a street crossing accident, special interrogatories were submitted to the jury as to whether the train which struck plaintiff was running faster than 12 miles an hour, and whether the engine was in plain view and hearing at the time and place when and where plaintiff stopped to look and listen, a general verdict for plaintiff is not so inconsistent with the jury’s disagreement on an answer to the second question as to entitle defendant to a new trial, where the first question was answered affirmatively, and where it appeared that not more than six seconds elapsed between the time the train could have been seen by plaintiff and the collision, and that any error of judgment in his action was excusable as being in extremis.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 125; Dec. Dig. § 59.*]</p>

<p>In the matter of William H. Kreuger, bankrupt. On question certified by referee.</p>

<p>In the matter of the San Miguel Gold Mining Company, bankrupt. Heard on exceptions to a report of the special master.</p>

<p>In the matter of Seckler & Silverman, bankrupts. On objections to ■approval of a composition.</p>

Appeals from the District Court of the United States for the District of Massachusetts. Actions at law by Frank P. McDermott, receiver, against Alfred S. Hayes, in which Willard G. Nash intervened. There was an order of the District Court (194 Fed. 902) discharging attachments made by plaintiff, unless he executed a bond to protect the rights of the intervener, and plaintiff appeals.

Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the Western District of Washington, in Bankruptcy. In the matter of Charles Knosher & Co., a corporation, bankrupt. On petition of the Western Dry Goods Company and others to review orders of the District Court. On the 27th day of February, 1911.

In- Error to the District Court of the United States for the' Eastern District, of Oklahoma. ■ Action by the United States against Asa E. Ramsey,.as receiver of tile Oklahoma Central Railway Company. Judgment for defendant, and plaintiff brings error.

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty by the Chelsea Fiber Mills, Robert Balfour and others, and Henry P. Winter and others, respectively, against the steamship Good Hope, Edward R. Norton and others, claimants. Decree for libelants, and claimants appeal. These causes come here upon appeals by the claimants from decrees in admiralty, in favor of the libelants in the above three suits.

Action at law by Theodore R. Converse, receiver, against John A. Stewart. Judgment for defendant (192 Fed. 941), and plaintiff brings error. This cause comes here upon appeal against the plaintiff in error, who was plaintiff below. The judgment followed a verdict, which was directed in favor of defendant at the close of the trial.

<p>Shipping (§ 86*) — Injury to Coaling Baegiu — Nbgligenck.</p> <p>Libelant had a contract for supplying coal to claimants’ steamships, which was done from barges alongside, unloaded by a second company, respondent, employed by claimant, by means of electric elevators, having an iron case, and about 35 feet long. If the foot of an elevator had reached the bottom of a barge when the work ceased at night, it was left standing upright, where it was held by guy ropes. One night when so left one of the elevators fell, sinking the barge. There was no direct evidence as to how the accident occurred, but the elevator was fastened in the usual manner which had been followed for five or six years with safety. Meld, that respondents could only be held liable for the loss of the barge on the ground of negligence, and that the evidence did not show such negligence on the part of either.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Dee. Dig. § 86.*]</p>

Proceeding by the United States to forfeit one Stradivarius Kieser wetter violin, in which Louisine W. Havemeyer and others, as executors, claimed the property. Verdict for claimants (188 Eed. 542), and the government brings error. Writ of error to review a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury in favor of the claimants rendered in accordance with the direction of the court.

In the matter of J. Jungmann, Incorporated, bankrupt. Appeal by the C. A. Becker Company from an order of the District Court denying its petition to reclaim property. This cause comes here upon appeal from an order of the District Court, Southern District of New York. The matter is a reclamation proceeding instituted by the Becker Company which furnished a soda water fountain to the alleged bankrupt.

Suit in admiralty for collision by James P. McAllister and others, owners of steam lighter Scotia, against the ferryboat Elizabeth, the Central Railroad Company of New Jersey, claimant. Decree for respondent, and libelants appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Eclipse Lighterage & Transportation Company and Thomas Cullen, owners of the canal boat Pilgrim, against the tug Luzerne, the Lehigh Valley Transportation Company, claimant, and the tug West Farms, the Red Star Towing Company, claimant. Decree against the Luzerne alone, and her claimant appeals.</p> <p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the tug Luzerne solely at fault for a collision with the canal boat Pilgrim in tow of the steam tug West Farms.</p> <p>The collision occurred in the Gap leading into the Morris Canal Basin, shortly after 6 p. m. The sun set at 5:37, and vessels were si,ill plainly visible. Shortly before tbe collision the Luzerne, which had been made fast by lines on the inside of dock A on the southern side of the gap, east olf her lines for the purpose of proceeding further tip into Morris Canal Basin to pick up a tow. She was lying bow in and backed for the purpose of getting turned and headed up into the gap. The tug Ithaca was maneuvering in very close quarters to her, so she backed further than had been intended, and while backing came into collision with the Pilgrim, which was fast on the port side of the West Farms.</p> <p>The West Farms was bound into the basin and entered the gap diagonally around the end of dock A. Iler lookout was properly stationed on the Pilgrim so as to observe what the pilot of the West Farms could not see to port (in consequence of the house on the canal boat), and to give notice of what be saw. This lookout saw the Luzerne in time and called to the master of the West Farms “port and come ahead on her.” This hail was not heard because the master was a little deaf.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Lathrop, Haskins & Co.. bankrupts. On petition to revise an order denying leave to petitioner, Howard M. Taylor, to file a claim nunc pro tunc. This cause comes here upon petition to revise an order denying the application of the petitioner to be allowed to file nunc pro tunc a proof of claim against the estate.

<p>1; Costs (§ 215*) — Taxation by Clerk — Appeal—Time to Take.</p> <p>Circuit Court rule 23, providing for the taxation of costs by the clerk and for an appeal therefrom to the court within 10 days “after such taxation by the clerk, but not afterwards,” requires the taking of an appeal within 10 days after the taxation by the clerk.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 797, 802, 816, 826; Dec. Dig. § 215.*]</p> <p>2. Costs (§ 215*) — Taxation by Clerk — Appeal—Time to Take — Waiver. Where an appeal from the taxation of costs by the clerk is taken after the time .xecl by Circuit Court rule 23, and the successful party brings the same on for determination before the court on notice of time of hearing, he does not waive the objection that the appeal was not taken within the 10 days.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 797, 802, 816, 826; Dec. Dig. § 215.*]</p>

In Equity. Suit by the Southern Pacific Company and others, petitioners, against the United States, respondent, Interstate Commerce Commission and the Oregon & Washington Lumber Manufacturers’ Association, interveners. On final hearing.

<p>Patents (§ 328*) — Validity and Infringement — Reinforced Concrete Construction.</p> <p>Tlie Ransome patent, No. 691,580, for a reinforced concrete floor extending to the exterior face of a building, and there forming a belt course, with downward and upward extensions forming lintels to the windows below and sills to those above, was not anticipated, and discloses invention; claims 5 to 10, inclusive, also held infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Binding Machine.</p> <p>The Piper patent, No. 700,81.6, for a device for supporting and delivering paper for wrapping or binding purposes, was not anticipated, and discloses patentable invention. Claims 2 and 5 construed, and heltl infringed. , '</p>

In Equity. Suit by John Davey, Martin E. Davey, James A. Davey, and Wellington E. Davey against Frederick A. Cutter and George Carl Freeman, copartners as Cutter & Freeman, for infringement of letters patent No. 890,968, for a process of treating and dressing a bruise or wound! in the trunk or live branch of a live tree, granted June 16, 1908, to John, Martin E, and James A. Davey. On final hearing.

In the matter of the Fayetteville Wagon-Wood & Lumber Company, bankrupt. On petition by trustee for order to sell property free of lien.

<p>Bankruptcy (§ 166*) — Voidable Preferences — Knowledge of Creditor.</p> <p>Payments by a bankrupt corporation to a creditor held not shown to have been made under such circumstances as to give the creditor reasonable cause to believe that the corporation was insolvent, so as to render them recoverable as preferences.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p>

In the matter of the bankruptcy of Frank C. Clough. The claim of Lee Q. Sargent was overruled by the referee, and he brings a petition for review.

<p>1. Insurance (§ 79*) — Agents—Employment—Rescission by Mutual Consent.</p> <p>Where plaintiff, who had entered into a contract to act as a general agent for defendant insurance company for a term of 10 years, through , his attorneys notified defendant that, owing to its alleged breach of the contract, he had concluded to rescind the same and demanded the return of the consideration he had paid therefor, which notice was accepted by defendant, a rescission by mutual consent was effected, notwithstanding the fact that plaintiff at the same time demanded damages which defendant refused to pay, and plaintiff cannot maintain an action in covenant on the contract to recover damages for its breach.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 104; Dec. Dig. § 79.*]</p> <p>2. .Insurance (§ 85*) — Contracts of Agency — Construction—Breach.</p> <p>A contract by which defendant, a fire insurance company, employed plaintiff as its general agent in two states for a .term of 10 years with the right to" appoint all agents under him, bis compensation to be a percentage of all premiums received from the business done in such states, did not deprive defendant of the right to select such business as in the judgment- of its directors was for its best interest, and give plaintiff a Vested right to insist that it should do all kinds of business that was done by other reputable companies, and an order of the directors that plaintiff should cease writing policies on certain kinds of risks which had proved unprofitable did not constitute a breach of the contract which entitled plaintiff to damages.</p> <p>| Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dee. Dig. § 85.*]</p>

<p>In Equity. Suit, by C. F. Lowther ’ against William Potter and Nancy Potter, his wife. On demurrer to bill.</p>

<p>. In- Equity. - Suit by the Samson dordage Works against the Puritan Cordage Mills. On motion for a temporary injunction.</p>

<p>Iii Admiralty. Suit by the Eogg & Hires Company against the barge Lockport; Peter Hagan & Co., a corporation, claimant.</p>

In the matter of. the Eureka Anthracite Coal Company, bankrupt. On motion to strike from the files petition and answer of D. J. Young,, R. C. Johnston, and J. B. Johnston.'

<p>Injunction (§ 230*) — Violation—Contempt—Evidence.</p> <p>Evidence considered, and held to show that certain of the defendant» intimidated and assaulted an employs of complainant because of his refusal to join in a strike, in violation of an injunction previously issued and served on them, thereby committing a contempt of court.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 502-516; Dec. Dig. § 230.*]</p>

<p>1. Master and Servant (§ 338*) — Labor Strike — Rights of Strikers and of Employer.</p> <p>While employés engaged in a strike have the right to quit the service of the employer singly or in association with others, and even to properly picket or patrol the premises of the employer, and to peaceably induce other workmen to refrain from engaging in his service and to peaceably persuade remaining employés to join them in. the strike, they have not the right, nor has the union of which they are members ihe right, to resort to means which make those workmen who wish to enter or remain in the service of the employer afraid to do so, which is an unlawful interference with his property rights and with the personal rights of the workmen, and will be restrained by injunction.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 338.*]</p> <p>2. Trade Unions (§ 6*) — Dab or Strike — Rights of Unions.</p> <p>It is not unlawful for a local labor union to inaugurate or conduct a strike for the benefit of its members, nor will it lie enjoined because of unlawful acts of its individual members which neither its officers nor eonmittees directed or approved, unless committed in carrying out their orders.</p> <p>[Ed. Note. — For other eases, see Trade Unions, Cent. Dig. § 5; Dec. Dig. % 6.*</p> <p>Restraining boycotts, strikes, and other combinations by employés interfering with commerce or business, see note to Shine v. Fox Bros. Mfg. Co., 8G C. O. A. 333.j</p>

<p>At Law. Action by Charles O’Connor, by next friend, against the Atchison, Topeka & Santa Fé Railway Company. Verdict for plaintiff for $5,000. On motion for a new trial.</p>

In Admiralty. Suit by William Guindbn, owner and master of the steam canal boat Deland, against the cargoes of the canal boats Zenith, Adelphi, and Gold Dust; Western Transit Company, claimant.

In the matter of the Shawmut Finishing Company, a bankrupt. On petition for review of an order allowing a claim of the city of Cranston.

<p>Chattel Mortgages (§ 188*) — -Validity—Fbaud.</p> <p>A chattel mortgage of fixtures used in conducting a store, and of the stock of goods therein, or which shall be brought therein to conduct the business, which provides that the mortgagor shall, until default, remain in possession of the mortgaged chattels, is fraudulent under New York law, because permitting the mortgagor not only to sell at will the mortgaged stock, but apply the proceeds to’his own benefit; and the whole mortgage is void as against creditors.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 393, 404; Dec. Dig. § 188.*]</p>

<p>Bankruptcy (§ 179*) — Fraudulent Transfer of Property — Recovery by Trustee.</p> <p>A trustee in bankruptcy may recover from the wife of the bankrupt, as property transferred in fraud of his creditors, a life insurance policy having a cash surrender value which the bankrupt transferred to her without her knowledge and without consideration while insolvent, and the effect of which transfer was to hinder, delay, and defraud creditors who remained such until the bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 272; Dec. Dig. § 179.*J</p>

<p>At Law. Action by Charles H. Mathews, as receiver of ihe Union National Life Insurance Company, against the Wayne Junction Trust Company. On motion for new trial.</p>

<p>1. Easements (§ 19*) — View—Rights Acquired.</p> <p>Where the proprietors of a town prior to 1750 set apart a common to public use subject to the right to build a church edifice thereon, and a church building was erected in 1762,' and rebuilt in 1845 and 1853, an owner of lots originally set apart to the minister in charge of the church did not have a fundamental right to an unobstructed view across the common.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 56-58; Dec. Dig. § 19.*]</p> <p>2. Easements (§ 19*) — View—Obstructions—Estoppel.</p> <p>Where the view across a common set apart by the proprietors of a town prior to 1750 had been partially obstructed by a church building erected on the common in 1762, and rebuilt in 1845 and again in 1853, and the latter structure was in existence, the principle of estoppel applied to one acquiring lots originally set apart to the minister ih charge of the church, and he could not maintain an injunction to compel an unobstructed view across the common.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 56-58; Dee. Dig. § 19.*]</p>

<p>In the matter of the Jamaica Slate Roofing & Supply Company, an, alleged bankrupt.</p>

In the matter of J. Alfred Klein, bankrupt. Appeal and petition-for review by C. A. Dougherty, trustee, to review an order of the District Court sustaining a chattel mortgage in favor of the First National Bank of Canton, Ohio. The trustee in bankruptcy brings this case here by both appeal and. petition to review.

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Action at law by Frederick Muller, William Schall, Jr., Carl Mul ler, and Edmund Pavenstedt, partners trading as Muller, Schall & Co., against the Century Throwing Company. Judgment for plaintiffs, and defendant brings error.</p>

Action by Walter Penn Shipley, surviving executor of the estate of Thomas P. Cope, deceased, against the United States. Judgment for plaintiff, and the United States brings error.

<p>1. Bankruptcy (§ 446*) — Denial of Involuntary Petition — Petition to Revise — Questions Review able.</p> <p>A petition to revise an order denying an involuntary petition in bankruptcy presents only a question of .law which must arise on the record.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. | 446 *</p> <p>Appeal and review in bankruptcy cases, see note to Fisher v. Cushman, 43 C. C. A. 389.]</p> <p>2. Bankruptcy (§ 89*) — “Creditors”—Who Are.</p> <p>Where creditors petitioning for a revision of an order denying an involuntary petition in bankruptcy declared that a third person was a creditor of tlje alleged bankrupt, and the third person in his verified answer to the petition averred that he was a creditor in a specified sum. above the value of the security held by him, and the answer was not denied, and the special master treated the third person as a creditor, the third person was a creditor within Bankr. Act July 1, 1898, c. 541, § 57, c, h, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), and he could plead to a petition in involuntary bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 120-122; Dec. Dig. § 89.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, P. 7562.]</p> <p>3. Bankruptcy (§ 59*) — “Act of Bankruptcy.”</p> <p>A solvent debtor who mortgages his stock in trade to secure a debt, and who permits his secured creditor to obtain a preference through legal proceedings, does not commit an act of bankruptcy within Bankr. Act July 1, 1898, c. 541, § 3, subds, 2, 3, 30 Stat. 546 (U. S. Comp. St. 1901, p. 2423), making insolvency of the debtor at the time of the transfer with intent to prefer a creditor over others or at the time he permits a creditor to obtain a preference through legal proceedings essential to constitute acts of bankruptcy, and a petition to revise an order denying an involuntary petition in bankruptcy base'd on such acts is properly denied, where it shows the solvency of the alleged bankrupt at the time of the mortgage and preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec.,Dig. ,§ 59.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727;; vol. 8, pp. 7622-7623.]</p> <p>•4. Fraudulent Conveyances (§§ 137, 149*) — Mortgages — Possession by Mortgagor — “Void.”</p> <p>A mortgage of a stock in trade executed by a debtor to his creditor which authorizes the mortgagor to remain in possession, and sell the stock in the usual course of business, without obligating himself to apply the proceeds to the payment of the debt, is constructively fraudulent, and void as to other creditors, within Rev. St. Mo. 1909, §§ 2880, 2881, declaring that any conveyance in trust for the use of person making it or with intent to defraud creditors is void as to creditors, but, in' the absence of actual fraud, the constructive fraud is purged by the mortgagee taking possession before tbe other creditors seize the property or take any action to enforce their rights to it.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Gent. Dig. §1 432-437, 462-463%; Dec. Dig. §§ 337, 149.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7332-7339; vol. 8, p. 7830.]</p> <p>5. Courts (| 367*) — Fraudulent Conveyances — Decisions of State Courts -CONCLUSIVENESS.</p> <p>Where the execution by a debtor of a mortgage is relied on as an act defrauding other creditors, justifying an adjudication of bankruptcy on an involuntary petition therefor, the decisions of the state Supreme Court construing the statute defining fraudulent conveyances and the acts necessary to purge constructive fraud based on such statutes are binding on tbe federal courts sitting in the state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>6. Chattel Mortgages (§ 143*) — Stock in Trade — Property Included in Mortgage.</p> <p>Taking possession by the mortgagee of after-acquired chattels which by the mortgage is pledge.d to secure the mortgagee subjects such property, except as to prior purchasers and attaching creditors, to the obligation of the mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 240; Dec. Dig. § 143.*]</p> <p>Hook, Circuit Judge, dissenting.</p>

In the matter of the Iron Clad Manufacturing Company, bankrupt. From an order of adjudication, the bankrupt brings error. This cause comes here upon writ of error to review a judgment dated December 2, 1911, adjudging the Iron Clad Manufacturing Company to be a bankrupt. The company demanded a jury trial of the issues raised by the petition in bankruptcy, and the same came duly on for trial.

<p>Railroads (§ 229*) — Regulation—Interstate Commerce — Equipment.</p> <p>Safety Appliance Act March 2, 1893, c. 190, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), provides that no common carrier engaged in interstate commerce by railroad shall use on its line any locomotive in moving interstate traffic which is not equipped with a power driving wheel brake ’ and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer can control its speed without requiring the use of hand brakes. Held, that such act did not apply to the switching operations of a railroad in its yard, so that where defendant railroad maintained tracks in Jersey City and Weehawken where trains were assembled and broken up, and from those points taken inland 1% miles from Jersey City and 3% miles from Weehawken to Bergen by yard engines, where the cars were again finally reclassified and trains made up to gp over the road, it was not guilty of violating the act by failing to have such trains equipped as provided.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229 *</p> <p>Duty of railroad, companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.J</p>

<p>Appeal from the Circuit Court of the United States for the East- • ern District of Oklahoma.</p> <p>Action by the United States against Charles E. Noble and others. Judgment for defendants (United States v. Abrams, 181 Fed. 847), and the United States appeals.</p>

<p>1. Infants (| 1*) — Attaining Majority — Time.</p> <p>Under the rule that the law takes no cognizance of fractions of a day, • an infant becomes of full age the first moment of the day before his twenty-first anniversary.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig § 1; Dee. Dig. § 1.*]</p> <p>2. Indians (§ 16*) — Leases by Minor — Vacation — Government’s Right to Sue.</p> <p>Where an Indian minor after reaching majority redated, re-executed, and extended a mining lease on his allotment, the gcwernment had no right to sue to set it aside.</p> <p>[Ed. Note. — For other cases, see Indians, Cent Dig. § 45; Dec. Dig. § 16.*]</p> <p>3. Indians (§ 16*) — Mineral Lands — Leases—Extension—Execution.</p> <p>Where an original lease of Indian mineral lands was signed by both, lessor and lessees, but renewals and extensions were signed by the lessor only, and the lessees accepted the extensions and caused them to be recorded, the government acting for the lessor could not have the extensions set aside under the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 45; Dee. Dig. § 16.*]</p> <p>Adams, Circuit Judge, dissents.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Henry P. Mullen against the Connecticut General Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the CirciW Court of the United States for the District of Oregon.</p> <p>' Suit by Maggie Ellen Parr and others against Eouise Colfax. Judg-. ment for defendant, and plaintiffs appeal.</p>

, In- Er-ror -to- the Circuit Court of the United States for the Northern District of West Virginia, at Philippi. Action at law by the State of West Virginia, on the relation of John Halfpenny and another, against Floyd McDonald and another. There was a judgment for defendants, and plaintiffs bring error.

<p>Bankruptcy (§ 468*) — Practice on Appeal — Findings.</p> <p>On an appeal in a bankruptcy proceeding, findings of fact and conclusions of law will not ordinarily be stated by the Circuit Court of Aplicáis, unless requested, and the request should, be made at the time of argument.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 930; Dec. Dig. § 468.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 a C. A. 9.J</p>

<p>Bankruptcy (§ 468*) — Proceedings for Review — Remand.</p> <p>Where the Circuit Court of Appeals on an appeal has determined the law governing the right of creditors to the allowance of counsel fees for services rendered the estate of a bankrupt, it may properly remand the cáse to permit the amounts to be fixed by the District Court.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 930; Dec. Dig. § 468.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. O. A. 9.]</p>

<p>Patents (§ 328*) — Validity and Infringement — Internal Combustion Engine.</p> <p>The Carlson patent, No. 797,555, claim 1, for Improvements in internal combustion engines, designed to facilitate access to the inside working mechanism for the purpose of adjustment or to make repairs, while for an improvement only, was not anticipated and in the limited field covered discloses patentable invention; also, bold infringed.</p>

Suit in equity by Gilbert, Harris & Co. against Joseph Watzelhan and others. Decree for defendants, and) complainants appeal. This is the usual suit in equity to enjoin the infringement of the complainant's patent No. 765,574, granted July 19, 1,904, to the plaintiff’s assignor, James E. Gilbert. The claims in suit are Nos. 1, which covers the process, and 4, which covers the product. The patent is for an overlay for half-tone printing plates and the method of making it.

<p>In the matter of Harrison Bros., bankrupts. On certificate for review of order of referee.</p>

<p>Courts (§ 327*) — Federal Courts — Jurisdiction—Amount in Controversy —“With Have Effect.”</p> <p>Judicial Code (Act March 3, 1911, c. 231. 36 Stat. 1087 FU. S. Comp. St. Supp. 1911, p. I2S']), which went into effect January 1, 1912, changed the amount required to confer federal jurisdiction from a sum in excess of $2,000 to a sum in excess of $3,000. Section 299 exempted from the operation of the act all pending proceedings and rights accruing or accrued, providing that all such suits and proceedings for causes arising or acts done prior to that date might be commenced and prosecuted within the same time, and with the same effect, as if the repeal or amendments had not been made. Held, that the phrase “with the same effect” must be construed to mean with the same result, or with the same consequence, and .that where a cause of action involving less than $3,000 but more than $2,000. exclusive of interest and costs, arose November 14, 1911, arid suit was brought on January 25th following, if. was governed by the old law, and therefore involved an amount sufficient to sustain federal jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 889; Dec. Dig. § 327.*</p> <p>Jurisdiction of Circuit Courts as determined by the amount in controversy. see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 159; I. J. Lewis Mercantile Co. v. Klepner, 100 C. O. A. 288.)</p>

<p>1. Brokers (§ 11*) — Action for Commission — Breach of Contract.</p> <p>Where plaintiff, a broker, contracted to develop, subdivide, and sell certain of defendant’s land either privately or at auction within one year’ for a cash commission of 15 per cent of the gross sales, plaintiff agreeing to pay all expenses of advertising, surveying, etc., defendant’s declination to “name the day” for a public sale did not constitute a breach of contract entitling plaintiff to recover damages.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 58; Dec. Dig. § 11.*]</p> <p>2. Courts (§ 328*) — Federal Courts- — Jurisdiction.</p> <p>Where a broker’s contract of employment to develop and sell certain land authorized the owner to “call off the sale” on paying the broker $350 liquidated damages, the owner was only liable for such sum, whether he refused consummation after a sale was made or before the first steps to that end were taken, which amount was insufficient to confer federal jurisdiction in the broker’s action for breach of contract.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. § 328.*</p> <p>Jurisdiction of Circuit Courts as determined by the amount in controversy. see notes to Auer v. Lombard, 19 C. O. A. 75; Tennent-Stripling Shoe Co. v. Roper, 36 C. G. A. 459; O. T. Lewis Mercantile Co. v. Klepner, 100 C. C. A. 288.]</p>

At Law. Action by Dennis Scully against the United States. This action was brought to recover $9,932.85, of which $5,189.85 is alleged to be due on contract for surveying certain public lands in central Nevada, and the remainder, $4,743, is claimed for loss of time and- interest. The contract is dated September 26, 1900. It was made by Dennis Scully, the plaintiff, acting for himself, and the United States Surveyor General for Nevada, acting in behalf of the United States.

<p>1. Corporations (§ (¡8*) — Preferred Stock — Conversion into Bonds — Statutes.</p> <p>P. L. (N. J.) 1902, p. 217, prescribing the form in which New Jersey corporations may convert preferred stock into bonds, was applicable to all subsequent conversions of that character.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 181, 183, 449; Dec. Dig. § 68.*]</p> <p>2. Corporations (§ 152*) — Dividends—Payment—Borrowing Money.</p> <p>Evidence that some of the money actually paid to stockholders by a corporation as dividends was borrowed for that purpose did not show that the dividend declared and paid had not been earned.</p> <p>LEd. Note. — For other cases, see Corporations, Cent. Dig. §§ 564-567; Dec. Dig. § 152.*]</p> <p>3. Corporations (§ 68*) — Preferred Stock — Exchange for Bonds — Meetings of Stockholders.</p> <p>Where at certain meetings of stockholders of a corporation all that was done with reference to a proposed conversion of preferred stock into bonds was to vote that some of the stock which the stockholders originally intended to redeem should not be converted, and all of the exchanges which were ever made wore consummated some months before such meetings were held, it could not be said that the exchange was illegal because authorized at such meetings, and that at that time the corporation’s floating debt was such that the exchange could not be legally made.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 181-183, 449; Dec. Dig. § 68.*]</p> <p>4. Corporations (§ 68*) — Preferred Stock — Change into Bonds.</p> <p>Where the affidavit of the treasurer and auditor of a corporation, stated that the time a vote was taken authorizing the conversion of certain preferred stock into bonds, the company's floating indebtedness exceeded 10 per cent, of its outstanding capital stock, so that pursuant; to P. L. (N. J.) 1902, p. 217, the conversion could not be authorized, lrat it appeared that if the auditor had not included an item for taxes and interest on bonds, not shown to bo due, and for certain proportionate salaries not shown to have been earned, the floating debt would not have exceeded the statutory amount, such affidavit was insufficient to show that such was the fact.</p> <p>[Ed. Note. — For other cases, see Corporations, Gent. Dig. §§ 181-183, 449; Dec. Dig. § 68.*]</p> <p>5. Corporations (§ 68*) — Preferred Stock — Conversion into Bonds — Time.</p> <p>Where a corporation voted to convert certain preferred stock into bonds, as authorized by P. L. (N. J.) 1902, p. 217, the statute not having prescribed any particular period within which such conversion should be .accomplished after having been .voted, the fact that it did not consummate the transaction until 17 or 18 months after the vote did not invalidate it.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 181-183, 449; Dec. Dig. § 68.*]</p> <p>6. Corporations (§ 68*) — Preferred Stock — Conversion into Bonds — Floating Indebtedness — Reduction.</p> <p>P. D. (N. J.) 1902, p. 217, authorizes corporations to convert preferred stock into bonds at a time when the floating indebtedness does not exceed 10 per cent, of such stock. Held that, where a corporation had cash in its treasury sufficient to reduce its floating indebtedness to an amount less than such 10 per cent, limit at the time such conversion was actually made, the transaction was not invalid because the indebtedness at that time was slightly in excess of the legal limit; it having been within the limit when the conversion was voted.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ .181-183, 449; Dec. Dig. § 68.*]</p> <p>7. Corporations (§ 68*) — 'Preferred Stock — Conversion into Bonds— Rights of Stockholders.</p> <p>A preferred stockholder of a corporation cannot be compelled to exchange his stock holdings for bonds in pursuance of a corporate resoluj tion under authority conferred by N. J. Pub. Daws 1902, p. 217.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 181-183, 449; Dec. Dig. § 68.*]</p> <p>8. Corporations (§ 68*) — Preferred Stock — Exchange for Bonds — Abrogation of Plan — Delay.</p> <p>Where the stockholders of a corporation authorized the conversion of preferred stock into bonds as provided by P. D. (N. J.) 1902, p. 217, the action of the directors in thereafter voting to postpone such conversion indefinitely and to return the shares of preferred stock deposited under the agreement because of a stringency in the money market did not necessarily abrogate the plan, nor deprive them of the authority to subsequently proceed with the conversion at a more favorable opportunity.</p> <p>' [Ed. Note- — For other cases, see Corporations, Cent. Dig. §§ 181-183, 449; Dee. Dig. § 68.*]</p> <p>9. Corporations (§ 68*) — Preferred Stock — Conversion into Bonds — Change of Plan.</p> <p>Where a corporation voted to convert its preferred stock into bonds, and thereafter the directors changed the plan so as to make a partial conversion only, such change was not objectionable except at the instance of a stockholder denied his right to exchange.</p> <p>[Ed. Note. — For o.ther cases, see Corporations, Cent. Dig. §§ 181 — 183, 449; Dec. Dig. § 68.*]</p> <p>10. Corporations (§ 471*) — 'Preferred Stock — Conversion into Bonds — Statutory Conditions — Compliance—Estoppel.</p> <p>Where a corporation converted certain of its preferred stock into bonds without filing a certificate that the corporation’s indebtedness did not exceed 10 per cent, of its preferred stock as required by P. D. (N. J.) 1902, p. 217, such bonds so issued having been treated as valid by the corporation for more than seven years, and having been bought, sold, exchanged, and pledged, without their validity being in any wise questioned, the corporation was estopped ’to deny that they were valid because .of a failure to file such certificate.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1833-1836, 1838, 1840; Dec. Dig. § 471.*]</p> <p>11. Corporations (§ 68*) — Preferred Stock — Exchange for Bonds — Ultra Vires. _ .</p> <p>_ An exchange of corporate preferred stock for bonds, having been authorized by P. L. (N. J.) 1902, p. 217, such conversion could not be held contrary to public policy or immoral.</p> <p>LEd. Note — For other cases, see Corporations, Cent. Dig. §§ 181-183, 449; Dec. Dig. § 68.*]</p> <p>12. Corporations (§ 487*) — Contracts—Invalidity—Ultra Vires.</p> <p>Where a contract or transaction by a corporation is ultra vires in the sense that the corporation has no power so to act at all, the courts of the United States will not enforce the invalid transaction nor can any defense be predicated thereon, but, if there is nothing essentially immoral therein, the court will strive to do justice between the parties so-far as it can he done, without in any wise relying on the illegal act.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893-1898; Dec. Dig. § 487.*]</p> <p>13. Corporations (§ 385*) — Ultra Vires Acts — Executed Transaction.</p> <p>Where an ultra vires transaction has been consummated by a corporation. so that the usurpation of power is at an end and each party has received from the other what he bargained for, the courts will leave the parties where it found them.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig.'§§ 1545-1547; Dec. Dig. § 385.*]</p> <p>14. Corporations (§ 388*) — Ultra Vires Act — Estoppel.</p> <p>Where a transaction accomplished by a corporation was ultra vires only in the sense that it was not performed in a proper way, power to do it in a prescribed way having been expressly conferred, the corporation as against third persons would be estopped to deny that the method prescribed was pursued.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. § 388.*]</p> <p>15. Courts (§ 366*) — Federal Courts — State Daws as Bules oe Decision.</p> <p>Since the only reason for holding illegal or ultra vires contracts of state corporations made and to be performed within the state of their incorporation is that to give them validity would be contrary to the policy of the state, what that policy is is for the determination of the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954r-957, 960-968; Dee. Dig. .§ 366.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>16. Injunction (§ 108*) — Conditions Precedent — Tender.</p> <p>A corporation having issued certain second-mortgage bonds in exchange for preferred stock without having filed the requisite certificate with the Secretary of State, years after the exchange sought to borrow $330,000 from defendant trust company, having every means of knowing that the certificate had not been filed, and also that defendant held a very large amount of the second-mortgage bonds, obtained the money, and pledged as collateral for the payment thereof a million and a quarter of its third-mortgage bonds, the validity of which was not denied. Held, that the corporation on making default in the payment of the loan was not entitled to an injunction restraining a kale of the collateral on the ground that the second-mortgage bonds were invalid, without offering to pay the amount of the debt.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 184-186; Dec. Dig. § 108.*]</p>

<p>In Equity. Bill by S. M. Mills and another against Joseph R. Keep and others.</p>

<p>In the matter of Interstate Paving Company, bankrupt. On petition by Alfred G. Smith to review an order refusing to' direct the trustee to indorse over to petitioner certain municipal warrants.</p>

<p>At Law. Action by Simon Taylor and others against Joe Anderson and) others. On demurrer to petition.</p>

<p>At Law. Action by the Carolina Glass Company against W. J. Murray and others.</p>

<p>In Equity. Bill by Ada J. Everitt and another against John S. Duss and another for discovery and accounting.</p>

<p>In Equity. Suit by E. R. Goshorn against Charles C. Murray, receiver of the Cosmopolitan National Bank. On final hearing.</p>

<p>1. Post Office (§ 50*) — Nonmailable Matter — Prosecution.</p> <p>In a prosecution under Penal Code March 4, 1909, c. 321, § 211, 35 Stat. 1129 (TI. S. Comp. St. Supp. 1911, p. 1051), for mailing nonmailable matter, whether the matter so mailed comes within the inhibited classes is ordinarily a question for the jury under proper instructions, but, if it is such that it could not by any reasonable judgment be held within the statute, it is the duty of the court to so determine as matter of law on a motion to quash, if "the language is set out in the indictment or in a bill of particulars.</p> <p>I Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 87-89; Dec. Dig. § 50.*</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; United States v. Sprung, 110 C. C. A. 48.j</p> <p>2. Constitutional Law (§ 90*) — •Nonmailable Matter — Prosecution — Freedom of the Press.</p> <p>The first constitutional amendment prohibiting the passage of any law abridging the freedom of the press cannot be invoked as a defense to a prosecution under Penal Code March 4, 1909. c. 321, § 211, 35 Stat. 1129 (TI. S. Comp. St. Supp. 1911. p. 1051), for mailing a newspaper containing obscene, lewd, and lascivious or indecent matter.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 172; Dec. Dig. § 90.*]</p> <p>3. Post Office (§ 31*) — Nonmailable Matter — Newspaper Publications.</p> <p>The sending through the mail of copies of a reputable newspaper containing accurate reports of testimony Taken in open court during the progress of a judicial trial should uot be held, a criminal offense within Penal Code March 4, 1909, c. 321, § 211, 35 Stat. 1129 (U. S. Comp. St. Supp. 1911, p. 1651), unless the matter so published is clearly and palpably within the prohibition of the statute.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. § 31.*]</p>

<p>In Equity. Suit by Andrew Reed against Edwin A. Welty. On demurrer to bill.</p>

<p>At Law. Action by the Phoenix Lumber Company against the Regents of the University of Idaho. Ón demurrer'to the complaint.</p>

<p>1. United States (§ 67*) — Contractors’ Bonds — Action fob Benefit ot Subcontractor — Defenses.</p> <p>In an action by one furnishing material to a subcontractor for a government building, on the bond of the principal contractor conditioned as required by Act Feb. 24, 1905, e. 778, 83 Stat. 811 (U. S. Comp. St. Supp. 1911, p. 1071), to recover a balance due for sueh material, the surety or the bond cannot set oft a claim for damages alleged to have been sus tained by the subcontractor because of plaintiff’s delay in furnishing the material, where no such claim was made by the subcontractor itself which accepted and used the material and later promised to pay for the same.</p> <p>[Ed. Note. — For other eases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. United States (§ 67*) — Contractors’ Bonds — Action for Benefit of S U B CONTRACTOR-DEFENSES.</p> <p>In an action by a subcontractor on a government building against the surety on the bond of the principal contractor under x\ct Feb. 24, 1995, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1911, p. 1071), where one who furnished material to such subcontractor joins in the ad ion and is a< ■ judged entitled to recover a balance due therefor, defendant is entitled to a deduction of the.amount of such recovery from the amount which would otherwise be recoverable by the subcontractor.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dee. Dig. § 67.*]</p>

In Equity. Suit by the Citizens’ Insurance Company against Matt C. Clay and others. On motion for preliminary injunction.

In the matter of Joseph A. McConnell, a bankrupt. On review of the decision of John B. Muzzy, special master, to whom a matter was referred for report with findings of fact and conclusions of law, subject to review.

In Equity. Action by the Wabash Railroad Company against the West Side Belt Railroad Company. Application of the Pittsburgh Construction Company for an order directing the sale of the property rand franchises of defendant.

Action by the United States against the Terminal Association of St. Louis and others. There was a decree of the Supreme Court reversing a decree dismissing the bill and remanding the case for a decree.

<p>Bankruptcy (§ 424*) — Debts Unaffected by Discharge —Liability for “Willful and Malicious Injury.”</p> <p>Where a lessee assigned his lease to his wife, and the landlord recognized her as the actual tenant and subsequently obtained possession under process of dispossession issued against the lessee and retained possession against the wife wrongfully and by means of force and threats inspiring fear, a judgment for the wife against the landlord in forcible detainer, entered on a verdict returned under instructions allowing only a recovery for the value of the lease for the term above the rent to be paid, was for a liability for “willful and malicious injury” to property rights within Bankruptcy Act July 1, 1898, c. 541, § 17, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), providing that a discharge in bankruptcy does not release the bankrupt from judgments for willful and malicious injuries to the property of another, though there was no evidence of express malice, and though express malice could not be implied from the forcible détainer, since there was a disregard of the duty which the landlord owed to the wife.</p> <p>[Ed. Note. — For other cases, see Bánkruptcy, Cent. Dig. §§ 787, 818; Dec. Dig. § 424.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 746S-7481, 7835, 7836.]</p>

In the matter of the Manistee Watch Company, a bankrupt, on petition of trustee for leave to sell property free of the lien of a mortgage to the City oí Manistee, and a cross-petition of the city to have its claim given priority over claims of other creditors.

In Bankruptcy. In the matter of bankruptcy proceedings of the Britannia Mining Company. The referee denied the petition of G. R. Nickey, a creditor, to set aside a sale of certain of the bankrupt’s real estate in Montana subject to a mortgage, and he filed a petition for review.

<p>In Equity. Suit by E. A. Martin against the City Water Company of Chillicothe, Mo.</p>

<p>In Equity. Bill by John F. Smith against the Chase & Baker Piano Manufacturing Company and others. On demurrer to an amended bill.</p>

In Bankruptcy. In the Matter of Jacob E. Gutman, bankrupt. On petition to review a referee’s order denying the claim of Right Reverend Cleland K. Nelson, Episcopal Bishop of the Diocese of Atlanta, as trustee of the fund for the support of Episcopal missions of the said diocese, and the Protestant Episcopal Church in the Diocese of Georgia, a corporation, as trustee of the fund for the support of the indigent widows and orphans of deceased clergymen of the diocese of…

<p>In Equity. Suit by Charles B. Perkins against Apollo Bros., Incorporated.</p>

<p>Collision (§ 105*) — Evidence—Weight—Sufficiency.</p> <p>On libel for damages sustained in- collision in the Elizabeth river between a barge and a car float, evidence held to show that the collision was caused by negligence of the steam tug which was towing the barge in cutting loose her tow and proceeding to anchor the same, under such circumstances as to cause it in the then condition of the wind and weather to in effect occupy the entire channel, that the barge was at fault for failing to have and maintain proper anchor lines, and that the car float and tug which was towing it were free from fault.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 105.*</p> <p>Collision with or between towing vessels and vessels in tow. See note to The John Englis, 10 C. C. A. 581.]</p>

<p>Criminal prosecutions by the United States against John E. Stone, John W. Miller, and John M. Dulany.</p>

At Law. Action by E. Wells Johnson against the Cadillac Motor Car Company. On motion for an order setting aside the verdict and denying a new trial.

<p>At Law. Action by Cassie E. Hall and another against the Great Northern Railway Company. On motion to remand to the state court.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Elmer Lutz. On petition to review a referee’s order allowing the intervention claim of Julius and Mary Zinn to recover certain property sold to the bankrupt under conditional sale or the proceeds thereof.

<p>Courts (§ 418*, New, vol. 14 Key-No. Series) — United States District Court — Jurisdiction.</p> <p>Under the old federal statute which gave the United States Circuit Court jurisdiction of certain actions involving more than $2,000, exclusive of interest and costs, or under Federal Judiciary Act (Act March 3, 1911, e. 231, § 289, 36 Stat 1167 [U. S. Comp. St. Supp. 1911, p. 243]), abolishing the Circuit Court and conferring its jurisdiction on District Courts, but fixing the minimum jurisdictional amount at $3,000, exclusive of interest and costs, and under section 299 of that act, which provides that the repeal of existing laws by that act shall not affect accrued rights, the District Court has jurisdiction of an action on a note for $2,002.09. exclusive of interest and costs, where the right of action accrued June 15,1911.</p>

Action by John A. Docker and another against the American Tobacco Company and others. On motion for leave to amend summons by inserting the names of the Liggett & Myers Tobacco Company and the P. Dorillard Company as codefendants, and to amend the complaint by inserting various allegations as to acts done by them.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>Suit in equity by the American Association, Incorporated, against W. D. Williams, II. Y. Hughes, J. T. Hughes, and John P. Davis. Decree for complainant, and defendants appeal.</p>

.for thé Southern District of New York. Criminal prosecution by the United States against A. Gero Marshall. Judgment of conviction, and defendant brings error. On writ of error to the Circuit Court for the Southern District of New York to review a judgment of conviction entered upon the verdict of a jury finding the defendant guilty under section 5480 of the TJ. S. Revised Statutes (U. S. Comp. St. 1901, p. 3696).

<p>1. Constitutional Law (§ 297*) — Requiring Construction of Viaduct by Railroad Company — Constitutionality op Ordinance,</p> <p>A city ordinance, passed under authority conferred by statute, requiring a steam railroad company to build a viaduct on a street over its tracks, and prescribing the material, strength, anil dimensions thereof, cannot be held unconstitutional as depriving the company of its property without due process of law, because the structure specified is to be of sufficient width and strength to carry the traffic of a street railroad without requiring a street railroad company having a franchise to operate its road on the street to contribute to the cost.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 847; Dec. Dig. § 297.*]</p> <p>2. 'Railroads (§ 99*) — Exercise op Police Powers — Review by Courts.</p> <p>Where authority is conferred on a city by statute to exercise the police power of the state by requiring the construction of viaducts over railroad crossings of streets for the safety and convenience of the public and prescribing the materials and dimensions of such structures, a case must be a clear one of abuse of discretion to justify the courts in interfering with the. exercise of such power, and such abuse is not shown by the fact that an ordinance ordering such a viaduct built by a railroad company required the extension of one of the approaches further than would otherwise be necessary in order to clear el proposed boulevard not yet constructed by the city.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 293-295, 297-304; Dec. Dig. § 99.*]</p> <p>3. Railroads (§ 99*) — Ordinance Requiring Construction op Railroad Viaduct — Validity.</p> <p>It is not essential to the validity of an ordinance requiring' a railroad company to construct a viaduct on a street over its tracks that the grade crossing beneáth should be entirely vacated and abandoned, but in the discretion of the city council it may be left for the convenience of owners of adjoining property. 4l</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 293-295, 297-304; Dec. Dig. § 99.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the District of New Jersey.</p> <p>Action by Anastasia Swiderski against the Erie Railroad Company, Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Middle District of Tennessee.</p> <p>Action at law by Lelia Lyddy, administratrix of William F. Lyddy, deceased, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

.'In. Error to the Circuit Court of the United States for the Western Divisiqn of the Northern District of Ohio.’ Action at law by Thorn W. Mitchell, administrator of the estate of Henry Cary, deceased, against the Toledo, St. Louis & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Suit in equity by the U. E. Waterman Company against the Modern Pen Company. Decree for complainant, and defendant appeals. Cross-appeals in favor of the complainant in a suit charging infringement of trade-marks and unfair competition. This case has been before this court before upon an appeal from an order granting a preliminary injunction; the opinion of this court being reportéd in 183 Fed. 118, 105 C. C. A. 408.

<p>Appeal from the District Court of the United States for the-Southern District of New-York.</p> <p>■ Action by the F. E. Waterman Company against the Modern Pen Company. From the decree complainant appealed. On motion for amendment of mandate (197 Fed. 534).</p>

<p>1. Commerce (§ 27*) — Employer’s Liability Act — Construction and Scope.</p> <p>The federal Employer’s Liability Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), applies only to injuries suffered by employés while the carrier is engaged in an act of interstate transportation and to such employés only as at the time of injury have a real and substantial connection with such act of interstate transportation.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. •i 27.*]</p> <p>2. Commerce (§ 27*) — Employer’s Liability Act — Interstate Commerce.</p> <p>Where an iron worker, employed on a railroad bridge on which an additional track was being placed for use by the railroad company in both interstate and intrastate business, was struck and injured by a local intrastate train on the old track where he had gone while after some rivets, the company was not engaged in interstate commerce, nor was the employé employed in such commerce at the tim'e of the injury within the meaning of Employer’s Liability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), and an action to recover for the injury cannot be maintained thereunder.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Doc. Dig. § 27.*]</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Wheeling.</p> <p>Suit in equity by the Coffield Motor Washer Company against the A. D. Howe Machine Company. Decree for complainant (190 Fed. 42), and defendant appeals.</p>

Suit in equity by the Republic Rubber Company against Morgan & Wright. Decree for complainant, and defendants appeal. Appeal from a decree sustaining' the validity of the first claim of letters patent No. 898,907, issued to Tod H. Mell, assignor of the complainant, on September 15, 1908, for an improvement in tires for vehicle wheels.

<p>In Equity. Suit by James V. Washburne against the Consolidated Safety Pin Company. On final hearing.</p>

<p>In Equity. Suit by the General Electric Company against the Allis-Chalmers Company. On final hearing.</p>

<p>In Equity. Suit by the Cheatham Electric Switching Device Company' against the Transit Development Company, Nassau Electric Railroad Company, and American Automatic Switch Company.</p>

<p>1. Patents (§ 141*) — Reissues—New Claims fop Separate and Distinct Parts of Invention.</p> <p>Under the provision of Rev. St. § 4916 (U. S. Comp. St. 1901, p. 3393), authorizing reissue of defective patents, that “the Commissioner may, in his discretion, cause several patents to be issued for distinct and. separate parts of the thing patented, upon demand of the applicant,” he may also allow new and separate claims for such separate and distinct parts.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dee. Dig. § 141.*</p> <p>Grounds for reissue of patents, see note to General Electric Co. v. Richmond St. &.I. Ry. Co., 102 C. C. A. 145.]</p> <p>2. Patents (§ 141*) — Reissue—Validity—Identity of Invention — “Same Invention.”</p> <p>The question whether a reissue patent is for the “same invention,” within Rev. „ St. § 4916 (U. S. Comp. St. 1901, p. 3393), should be considered not merely as a verbal question, but as a substantial question to be solved by reference to the structure itself as well as to the specification and claims. The reissue may properly correct insufficiency of description of what is clearly shown in drawings as an obvious feature of the structure and may add claims adequate to protect the substance of an invention or inventions that fairly appear in the original and which the inventor sought to protect.</p> <p>[Ed. Note. — Ifor other cases, gee Patents, Cent. Dig. §§ 206-211}; Dec. Dig. § 141.*</p> <p>For other definition's, see Words and Phrases, vol. 7, p. 6323.]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Stop-Motion fob Dooms.</p> <p>The Coldwell & Gildard reissue patent, No. 11,923 (original No. 637,-234), for a stop-motion for looms, covers, as did the original, as a separate invention, a special form of drop-bar capable of use with either mechanically or electrically operated stop-motions which diseloses patentable invention and merit in that it prevents the chafing of the warp threads. Such feature is more fully covered in the new claims of the reissue, which are within the invention of the original patent, and valid; also, held infringed.</p>

<p>In Equity. Suit by the Gillette Safety Razor Company against the Durham Duplex Razor Company. On motion for preliminary injunction.</p>

<p>In Equity. Suits by the Corrugated Metal Company against E. H. Pattison and others and against the Martin Metal Manufacturing Company, originally brought in the Circuit Court and by operation of law transferred to the District Court and heard on exceptions to answers.</p>

<p>Commerce (§ 27*) — Employer’s Liability Act — Emfloyjé “Employed in Interstate Commerce.”</p> <p>An employe of a railroad company engaged in interstate commerce, who was killed in a collision while riding to his home by permission on one of the company’s trains, but who was not at the time and so far as appeared had not just previously been employed in interstate commerce, was not within Employer’s Liability Act April 22, 1908, c. 149, § 1, 35 Stát. 65 (U. S. Comp. St. Supp. 1911, p. 1322), and there can be no recovery for his death thereunder.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2377-2380; . vol. 8, p. 7649.</p> <p>Injuries to servant while not on duty. See note -to Ellsworth v. Metheny, 44 C. C. A. 489.]</p>

<p>At Eaw. Actions by Clara Heimbach, administratrix, and by Eavina Eclc, administratrix, respectively, against the Eehigh Valley Railroad Company. On motions by defendant for judgments notwithstanding the verdicts.</p>

<p>Commerce (§ 27*) — Employer's Liability Act — Employ!!; “Employed in Interstate Commerce.”</p> <p>An extra conductor in the employ of a railroad company directed on reporting for work to ride to another point within the same state for service on a work train, and who was injured while proceeding to his train, was not at the time employed in interstate commerce within Employers’ Liability Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2377-2380; vol. 8, p.: 7649.]</p>

<p>At Law. Action by J. Lewis Grant, as trustee in bankruptcy of the Cayuga Construction Company, against the National Bank of Auburn.</p>

In the matter of Israel Podolin, Louis Brod, and Benjamin Dein, individually and as partners trading as the Franklin Suit & Skirt Company, alleged bankrupts. On report of special referee. Report confirmed, and order made requiring S. Rudsky, S. Silversteín, and H. Cupersmith to turn over property to receiver.

<p>In Equity. Suit by T. G. Tinsley against the Etowah Power Company and Zephaniah Abernathy.</p>

<p>1. Public Lands (§ 47*) — Reservation of Right of Way for Ditches and Canals — Varidity and Effect.</p> <p>The provision of Act Aug. 30, 1890, c. 837, § 1, 26 Stat. 391 (Ü. S. Comp. St. 1901, p. 1570), that in all patents for lands thereafter taken up under any of the land laws west of the one hundredth meridian, it shall be expressed that there is reserved from the lands a right of way thereon for ditches or canals constructed by the authority of the United States, must, be construed in the light of the known purpose of the government to reclaim its arid lands by conducting water upon them, and the provision is not void for indefiniteness because the right of way reserved is not specifically described but is within the undoubted powers of Congress and valid, and all subsequent entrymen took their lands subject to the right of the United States to construct ditches and canals over it whenever and wherever required in carrying out any of its reclamation projects.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 133, 137; Dec. Dig. § 47.*]</p> <p>2. Public Lands (§ 47.*) — Reservation of Right of Way fob Ditches and Canals — Unallotted Indian Lands.</p> <p>Act June 15, 1880, c. 223, § 3, 21 Stat. 203, providing for allotment in severalty of lands of the Ute Indian Reservation in Colorado, further provides that “all lands not so allotted shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands at the same price and on the same terms as other lands of like character, * * * provided that ■ * * * said -lands *• * * shall be subject to cash entry only in accordance with existing law.” Held, that it was competent for Congress to change the manner of disposition of such lands in so far as third parties were concerned, and that persons taking pre-emptions thereon after the passage of Act Aug. 30, 1890, c. 837, § 1, 26 Stat. 391 (U. S. Comp. St. 1901, p. 1570), reserving from all public lands thereafter taken up right of way for ditches and canals constructed by authority of the United States, took subject to such provision.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 133, 137; Dec. Dig. § 47.*]</p> <p>3. Courts (§ 493*) — Actions by — Prior Judgment as Bab.</p> <p>An injunction issued by a state court in a suit brought against the engineer in charge of a government irrigation project and his foreman, as individuals, restraining the defendants and all persons under their control from entering upon certain lands and constructing a government canal across the same, is not a bar to a suit in a federal court by the United States to establish its right to construct such canal under the reservation of right of way therefor contained in Act Aug. 30, 1890, c. 837, § 1, 26 Stat. 391 (U. S. Comp. St. 1901, p. 1570), and to enjoin the owners of said lands, which were acquired under the public land laws after the passage of such act, from interfering with such construction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1346-1352; Dec. Dig. § 493.*]</p> <p>4. Waters and Water Courses (§ 33*) — Rights of Way for Ditches — Ju- . bisdiction — Protection of Easement.</p> <p>Equity has jurisdiction of a suit by the United States against the owners- of lands acquired-under the public land laws "after the passage of Act Aug. 30, 1890, c. 837, § 1, 26 Stat. 391 (U. S. Comp. St. 1901, p. 1570), to enjoin them from interfering with its construction of an irrigation canal over such’ lands under the reservation of right of way therefor contained in said act.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 23-26; Dec. Dig. § 33.*]</p>

<p>In Equity. Suit by Earnest W. Kramer against Charles A. Lyle and Ruth Kramer. On- bill and answer.</p>

<p>1; Commerce (§ 27*) — Railroads—Hours of Service Act — Interstate Com- • merge — “Employed in Interstate Commerce.”</p> <p>Employes of a- railroad company engaged in hauling freight from some intermediate .point on its line to another point where it is taken up by regular trains for interstate shipment are “emplos'ed in interstate eommerce” within the meaning of Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. Supp. 1911, p. 1321), regulating the hours of service of employes. •</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig..§ 25; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2377-2380; vol.. 8, p. 7649.]</p> <p>2. Master and Servant (§ 13*) — Hours op Service Act — Construction.</p> <p>Under Honrs oí Service Act of March 4, 1907. c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. Supp. 1911, p. 1321), making it unlawful for any interstate carrier subject to the act to require or permit an employé to remain on duty for a longer period than “sixteen consecutive hours," the fact that brief times were given employés for ineals, of no more than an hour each, did not break tbe continuity of tbe service, nor did the laying off of a train crew while waiting for a helper engine for an indefinite time, which proved to he about three hours.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 230*) — Operation—Sixteen-Hour Daw — “On Duty.”</p> <p>The expression “on duty,” as used in the Hours of Service Law, otherwise known as the Sixteen-I-Iour Law. of March 4, 1907 (chapter 2939, 34 St. pp. 1415, 1416 [U. S. Comp. St. Supp. 1911, p. 1321]), means “to be actually engaged in work or to be charged with present responsibility for such should the occasion for it arise.”</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 744; Dec. Dig. § 230.*]</p> <p>2. Railroads (§ 230*) — Operation—Sixteen-Hour Law — “On Duty.”</p> <p>Where members of a train crew conforming to a rule of the railroad company report for duty 15 minutes before the starting time, during which time they are engaged, in work preliminary to the trip, they are during such 15 minutes “on duty” within the meaning of section 2 of the Hours of Service Law (chapter 2939, 34 St. p. 1416 [U. S. Comp. St. Supp. 1911, p. J321]), and this notwithstanding their pay begins only upon the starting time.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 744; Dec. Dig.. § 230.*]</p> <p>8. Railroads (§ 230*) — Operation—Sixteen-Hour Daw — “On Duty.” '</p> <p>Where a train is held upon a siding at a station for 55 minutes to allow another train to pass, the .exact time of arrival of the latter train-being uncertain, and the duty existing upon the crew of the former train to resume the journey immediately upon such arrival, such crew is “on duty” during the period of waiting within the meaning of the Hours of Service Act, and such interval in the operation of the train does not constitute a break in “the sixteen consecutive hours” necessary to a violation of said act.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 744; Dec. Dig. § 230.*]</p> <p>4. Railroads (§ 230*) — Operation—Sixteen-Hour Daw — “On Duty.”</p> <p>The principle last stated is not interfered with by the fact that during such period of waiting the switch was locked, the headlight of the waiting train was extinguished, its conductor was reading, its brakemen were asleep.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 744; Dec. Dig. § 230.*]</p>

<p>1. Garnishment (§ 44*) — Property Subject to — Judgments.</p> <p>A judgment recovered in a court of one jurisdiction is not subject to garnishment 'in proceedings in a court of another jurisdiction, and a judgment of a federal court is not subject to garnishment in an action against the judgment creditor in a state court.</p> <p>[Ed. Note. — For other cases, see Garnishment, Gent. Dig. § 90; Dec. Dig. § 44.*]</p> <p>2. Execution (§ 158*) — Stay Against Issuance — Discretion of Court.</p> <p>Where a judgment of one court is levied on under a garnishment writ from another court, the granting of a stay of the issuance of an execution in the original action at the instance of the judgment debtor rests in the discretion of the court, which must ascertain whether the garnishment was prosecuted for a bona fide debt and without collusion with the judgment debtor.</p> <p>[Ed. Note.' — For other cases, see Execution, Cent. Dig. §§ 442-459; Dec. Dig. § 158.*]</p> <p>3. Execution (§ 158*) — Stay Against Issuance — Discretion of Court.</p> <p>Where in actions at law in a state court plaintiff obtained writs of attachment by garnishment for levy on a judgment of a federal court, and on the day the papers in the actions eame into the hands of the sheriff for execution he found the judgment debtors in the office of plaintiff’s attorney, who had been the attorney of the judgment debtors, and he served the garnishment notice in the actions on the same day, date, and hour, except one minute difference in time of service in the cases, and the presence of the judgment debtors at the office of plaintiff’s attorney was unexplained, the court would not grant a stay against the issuance of an execution on the judgment because not satisfied of absence of collusion between the plaintiff and the judgment debtors.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 442-459; Dec. Dig. § 158.*]</p> <p>4. Malicious Prosecution (§ 4*) — Execution—Stay—Mistake in Service oe Civil Process.</p> <p>Where a summons in a civil action issued against a person described as a citizen of a designated county was erroneously served on a person of the same name residing in another county, and plaintiff, on discoveringthe mistake, took a voluntary nonsuit, an action for malicious'prosecution by the person erroneously served was without merit, and did not justify the granting of a stay of execution on the judgment obtained by plaintiff against other defendants, though such judgment was attached by garnishment in the action for malicious prosecution.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 4; Dec. Dig. § 4.*]</p>

In Equity. Bill by Francisco Garcia and another, partners as F. Garcia & Bros., against Frank Garcia, trading' as ^F. Garcia & Bros. In June, 1886, Jose, Francisco, and Antonio Garcia, brothers, associated as partners under the firm name and style of “F. Garcia & Bros.” in the manufacture of cigars, and so continued until about the year 1900 or 1901, when Antonio retired from the firm; but, with the exception of such change, the business so'established had been continuously…

<p>1. Courts (§ 276*) — Federal Courts — Jurisdiction—Objections—Waiver.</p> <p>While the objection of want of jurisdiction of a controversy by a federal court cannot'be waived, the right to have the action brought in a particular district may and will he waived unless timely objection is made; but, unless the acts of the parties are such as to evidence a waiver of the objection by both, no jurisdiction obtains, if the action is brought in the wrong district.</p> <p>)Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. $ 276.*</p> <p>Waiver of right as to district in which suit may be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & MeGinty Co. v. Union Pac. R. Co., 87 C. C. A. 634.]</p> <p>2. Removal of Causes (§ 12*) — Federal Courts — Alien.</p> <p>Since the provision of the Judiciary Act (Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508]), requiring suits in federal courts to be brought in the district of which the defendant is an inhabitant, has no application to suits by an alien against a citizen, and such alien has no interest in having the venue laid in the district of the defendant’s residence and his waiver is not necessary to give proper venue in a district other than that of the defendant’s residence, an alien, having brought suit in a state court against a citizen who is a nonresident of the state and federal district, cannot object to defendant’s removal of the cause to the federal court of that district on the ground that the controversy is between an alien and a citizen.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32, • 33; Dec. Dig. § 12.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Bar-net Mintzer. On objections to the bankrupt’s discharge. Overruled.</p>

Jn the matter of the bankruptcy of the Mexico Hardware Company on petition for review of the rulings of the referee on the claims of the Porter Hardware Company. Petition denied without prejudice.

<p>Collision (§ 105*) — Steam and Sailing Vessels Meeting — Mutual Faults.</p> <p>A collision in the early morning in Chesapeake Bay between the steamer Gloucester passing np and the schooner Maxwell passing down, in which the latter was sunk, held, on conflicting evidence, to have been due to the fault of both vessels; the schooner being in fault for changing her course to port after she should have seen the lights of the steamer ahead, and the steamer because she did not check her speed of 13 or 14 knots after she saw the danger.</p> <p>[Ed. Note.- — For other cases, see Collision, Dec. Dig. § 105.*]</p>

<p>In Admiralty. Suit by the Home Industry Iron Works against the Steamship Colombia. Decree for libelant.</p>

<p>At Law. Action by George H. Darr against the Baltimore & Ohio Railroad Company. On motion by defendant for new trial. Overruled.</p>

In Equity. Suit by Paul T. Brady against the South Shore Traction Company. In the matter of the application of Paul T. Brady and Willard V. King,, as receivers of the South Shore Traction Company, for an order restraining the Third Avenue Bridge Company, its lessees, etc., from operating certain cars over the Queensboro Bridge, in competition with petitioners, for a three-cent fare.

<p>1. Shipping (§ 49*) — Charters—Construction—Delivery oe Vessel.</p> <p>Under a time charter party for a steamship providing that charter hire should commence “from the day on which she is delivered or placed at the disposal of the charterers at * * * or * * * in such dock or such safe wharf or place as charterers may direct,” the vessel was delivered when, by direction of charterers’ agent, she proceeded to one of the designated ports and as near as possible to a jpoaling wharf to await her turn to coal, and the charter hire then commenced, although she was obliged to wait several days for a berth.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 187-202; Dee. Dig. § 49.*]</p> <p>2. Shipping (§ 49*) — Time Charter — Construction—Charter Hire.</p> <p>A provision of a time charter party that “in the event of the loss of time from deficiency of men or stores, breakdown of machinery, collision, docking, stranding or other accident or damage preventing the working of the vessel for more than 24 consecutive hours, the time lost shall be allowed to the charterers,” did not relieve the charterers from the payment of charter hire while the vessel was “docked” for receiving or discharging cargo or taking on bunker coals.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 187-202; Dec. Dig. § 49.*]</p>

<p>Trade-Marks and Trade-Names (§ 70*) — Unlawful Competition — Moxie.</p> <p>Complainant widely advertised and sold a beverage called “Moxie” in bottles of transparent glass, of a novel distinctive shape, with a metal top holding over the neck of the bottle through pressure. Complainant’s bottle was marked in two places with the words “Trade-Mark,” and was covered by a label having the word “Moxie” thereon, and the figure of a woman with bared arms and a shoulder load of grain, specifying the Moxie Company of New York and Boston as proprietors. Defendant put out a competing beverage called “Bo-La” in a similar bottle, in the body of which was blown the word “Registered,” with the word “Bo-La,” in association with an eagle with spreading wings, and the words “Manufactured by Dan Daoust, Manchester, N. H.,” all blown in the bottle on a sunken base surrounded by a circular-line. The labels on the bottle were different in color and design, defendant’s word “Bo-La” in red being surrounded with red ornamental lines, and the nam'e of the manufacturer and place distinctly set out and prominently surmounted by an eagle, with spreading wings, and arrows in its claws. Held that, though the form of the bottles was practically the same, the distinctive markings, supplemented with the pictorial advertising of defendant’s goods, showed - that he was not intentionally building on complainant’s reputation, and was therefore not guilty of unlawful competition.</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; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>In Equity. Bill by the Moxie Company against Hachig John Bagoian.</p>

In the matter of William J. Thompson, bankrupt. On review of referee’s order adjudging the title to Suction Dredge No. 1 to have been in the bankrupt at the time of the filing of the petition.

In Equity. Bill by Alfred Pfqhler against the McCrum-Howell Company; Frank J. Machette intervening. On application by ancillary receivers to remove or dismiss the intervention.' In the above-entitled action ancillary receivers were appointed on March 14, 1912. The primary receivership was instituted in the Eastern District of Pennsylvania upon a hill filed by the complainant as a stockholder of the defendant company.

<p>At Law. Action by Richard S. Patterson against the Corn Exchange of Buffalo and others. On motion for bill of particulars.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by the Schaefer Brokerage Company against Louis Hollweg. Judgment for plaintiff, and defendant brings error.</p>

In the matter of the petition of the Metropolitan Redwood! Lumber Company, as owner of the steam schooner San Pedro, for limitation of liability on account of a collision between such vessel and the steamship Columbia, owned by. the San Francisco & Portland Steamship Company. From a decree holding both vessels in fault and granting the petition for limitation of liability, the Boston Marine Insurance Company and others and John Swift and others appeal.

Action by C. W. Garrett, administrator of T. W. Lewis, Jr., against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. This action was originally brought in the circuit court of Houston county, Tenn., and on petition of the railroad company was removed to the court below.

Two cases, one by Henry L. Brooks, the other by Howard C. By-land, both against the James Griffith & Sons Company, a corporation. Judgments for plaintiffs, and defendant brings error.

Petition to Superintend and Revise Proceedings of the District Court of the United States for the Western District of North Carolina, at Greensboro, in Bankruptcy. Petition by the Virginia Iron, Coal & Coke Company and others against J. Van Vechten Olcott, an involuntary bankrupt, to revise, in matter of law, proceedings of the District Court of the United States for the Western District of North Carolina, in bankruptcy.

Suit in admiralty for collision by Anders Holtung, master of the steamship Caprivi, against the steamship Menominee. From a decree for respondent (190 Fed. 282), libelant appeals.

•Appeal from the Circuit Court of the United States for the District of Maryland, at Baltimore. Suit in equity by Flie W. Labombarde against Lord Baltimore Press, Incorporated. Decree for complainant, and defendant appeals.

<p>Patents (§ 328*) — Validity and Infringement — Electric Elevators.</p> <p>The Rowntree patent, No. 666,699, for a signal system for electric elevators, -held valid and infringed.</p>

<p>X. Patents (§ 328*) — Infringement—Machine for Making Grids.</p> <p>The Madden patent, No. 570,224, for a machine for making grids for secondary-battery plates, claim 2, in view of the machine previously invented by the patentee and covered by patent No. 572,363, application for which was pending at the same time, cannot he given the broad construction its literal wording would imply, but must be construed narrowly and as not covering the machine of the later patent.</p> <p>2. Patents (§ 203*) — Assignment—Operation and Effect.</p> <p>A purchaser of an invention for which an application for a patent is pending, with knowledge that the inventor had assigned a previous invention of a similar character to others by an assignment which was recorded, is put upon inquiry and cannot rely on statements of the assignor as to what was covered by the prior assignment.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 290-294; Dec. Dig. § 203.*]</p>

<p>1. Patents (§ 195*) — Assignment—Validity of Contract.</p> <p>A contract, by which a defendant agreed to work for complainant on inventions and to assign to complainant any invention or patentable improvements he might make during his employment, is not invalid because it was left to complainant to fix his compensation, as to any invention he made while he continued the employment, although that may have justified him in terminating the contract at any time.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 272-274; Dec-Dig. § 195.*</p> <p>Right to inventions as between employer and employé, see note tPressed Steel Car Co. v. Hansen, 71 C. C. A. 221.]</p> <p>2. Patents (§ 203*) — Assignment—Rights of Assignee.</p> <p>Evidence considered, and heló, to show that a defendant corporatiOri at the time it toolc an assignment of an application for a patent had such knowledge of complainant’s claim to the ownership of the invention that it acquired no greater rights than the assignor as against such claim.; ■ ■</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 290-294; Dec. Dig. § 203.*]</p> <p>3. Patents (§ 203*) — Assignment of Application — Rights of Assignee.</p> <p>An assignment of an application for a patent does not convey a legal title to the patent prior to its issuance, but only to such rights as the applicant may have, and its record cannot cut off an equitable claim to the invention'and patent wbicb is good as against tbe assignor, and especially where tbe assignee had notice of such claim.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 290-294; Dec. Dig. § 203.*]</p> <p>4. Patents (§ 195*) — Suit to Enfoece Contbact fob Assignment — Pasties.</p> <p>An applicant for a patent assigned his application and rights thereunder to a corporation. At the same time four other later applications, which were in interference with the first, were also assigned to the corporation, and were then abandoned; the five assignors receiving stock-in a new corporation organized to handle the patented device. - that to a suit by complainant to establish and specifically enforce a .contract with the first applicant for the assignment of the patent to complainant,'in which the corporation assignee was joined, the assignors oí the other applications were not necessary parties. ■</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 272-274; Dec.; Dig. § 195.*]</p>

<p>In Equity. Suit by James D. Surd, Consolidated Rubber Tire Company, and the Rubber Tire Wheel Company against James Goold Company. On motion for preliminary injunction.</p>

In Equity. Suit by the Eibel Process Company against the Remington-Martin Company. On motion for inspection of defendant’s alleged infringing machines and to compel defendant to furnish samples of its product.

<p>In Equity. Suit by John G. Elbs against the Rochester Egg Carrier Company. On final hearing.</p>

<p>In the matter of the Canton Iron & Steel Company, bankrupt. On review of an order of the referee disallowing the claim of Joseph Freedman.</p>

<p>1. Aliens (§§ 67, 70*) — Natubalization—Jubisdiotion.</p> <p>rl'lie jurisdiction of courts in naturalizing aliens is conferred by statute and must be exercised in a special and summary manner, and its judgment can only be supported by a record showing facts necessary to confer jurisdiction.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 131-137, 146, 151, 154-160; Dec. Dig. §§ 67, 70.*]</p> <p>2. Aliens (§ 68*) — Naturalization — Declaration of Intention — Sufficiency.</p> <p>A declaration of intention to be a citizen, which contains neither a renunciation, by name, of allegiance to the sovereign of whom declarant is a subject, nor a renunciation, particularly, of allegiance to the state of which he is a subject, does not comply with Rev. St. U. S. § 2165 (U. S. Comp. St. 1901, p. 1329), requiring declarant to renounce allegiance to any foreign sovereignty, and particularly by name the sovereignty of which he may be at the time a citizen or subject.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dee. Dig. § 68.*]</p> <p>3. Aliens (§ 68*) — Naturalization—Statutes—Construction.</p> <p>Though the naturalization laws must be liberally construed to enable those aliens who under the law are entitled to citizenship to acquire it, the prerequisites prescribed by statute in plain language cannot be dispensed with.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p>

<p>In Admiralty. Suit by the John W. Sullivan Company against the steamtug Thomas W. Rodgers.</p>

<p>Petition for writ of habeas corpus by Marie Cardonnel.</p>

<p>At Law. Action' by Thomas S. Lindsey against the Mexican Crude Rubber Company. On motion of the sheriff of New York county for an order fixing and taxing fees and poundage.</p>

<p>1. Courts (§ 351*) — Production of Documents — -Federad Courts — -What Law Governs.</p> <p>The subject of the' production of documents by the adverse party in actions at law in federal courts is governed by the statutes of the United States.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. § 351.*]</p> <p>2. Discovery (§ 82*) — Production of Documents — Federal Courts — Action at Law.</p> <p>Under the federal statutes, a court of law cannot compel a party to an action to produce documents in advance of the trial for the inspection of the other party.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 106; Dec. Dig. § 82.*</p> <p>Persons against whom production and inspection of books or writings may be obtained, see note to Cassatt v. Mitchell Coal & Coke Co., 81 C. C. A. 96.]</p>

<p>Removal of Causes (§ 11*) — Amount or Value in Controversy — Right Incapable of Money Valuation.</p> <p>Under the requirement of the Federal Judiciary Act of March 3, 1875, c. 137, § 1, 18 Stat. 470, as amended by 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. 508), that to give a Circuit Court jurisdiction the matter in dispute must exceed, exclusive of interest and costs, the sum or value of $2,000, such matter must be money or some right, the value of which in money can be calculated and ascertained; and under such rule a suit brought in a state court by a stockholder for a mandatory, injunction to compel the corporation to permit complainant to inspect its books and records is not removable.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 29-31; Dec. Dig. § 11.*]</p>

<p>1. Courts (§ 312*) — Jurisdiction of Federal Courts — Suits by “Assignee.”</p> <p>A suit by a corporation, to rescind a contract for the building of a steamship by defendant, made between defendant and complainant’s promoters, acting as trustees for complainant, and assumed by complainant on its organization, on the ground that the contract was fraudulent and procured by defendant by paying a secret commission to the promoters, is not one in which complainant sues as assignee within the meaning of Judiciary Act March 3, 1875, c. 137, § 1, 18 Stat. 470, as amended by 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. 508), which provides that no federal court shall have cognizance of any suit to recover the contents of any chose in action “in favor of any assignee * * * unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.” In such case complainant is asserting no right derivéd from its promoters or which they could have asserted, and such statute has no application.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ S65-875; Dec. Dig. § 312.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 562-564; vol. 8, p. 7584.]</p> <p>2. Corporations (§ 448*) — Contracts Before Organization — Fraud of Promoters.</p> <p>A bill in equity filed by a steamship company alleged that it was organized by certain persons as promoters; that such persons had previously procured from defendant an option for a contract under which defendant was to build a steamship for a price stated therein; that the promoters represented that they had large experience in such matters and that the option was very favorable as to price, etc.; that on securing subscribers to the stock they entered into a contract with defendant for building the vessel, and complainant on its organization assumed the contract, received and paid for the vessel, partly in cash and partly by the issuance of bonds, and also paid the promoters for their services in procuring the contract and superintending the building of tbe vessel in its behalf; that in fact the contract was fraudulent in that defendant, with knowledge of their purpose to organize a corporation to take over the contract, agreed to-and did pay to the promoters a secret commission thereon. Held, that on the facts alleged the promoters in the transactions with defendant acted as trustees and agents for complainant and its stockholders, and the payment to them by defendant of a secret commission was in effect a bribery of its agent which vitiated the contract for fraud and entitled complainant to its rescission in equity, and on surrender of the vessel to recover the consideration paid therefor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789 - 1792; Dec. Dig. § 448.*]</p> <p>8. Cancellation of Instruments (§ 15*) — Remedy at Daw — Damages.</p> <p>Where an agent has been bribed or paid a secret commission to enter into a contract, it is the absolute right of the principal on discovering the fraud to promptly rescind the contract, and he cannot be required to resort to an action at law for damages, especially where a hill for rescission requires an accounting which could not be had in an action at law.</p> <p>[Ed. Note. — For other eases, see Cancellation of Instruments, Cent. Dig. §§ 14, 21; Dec. Dig. § 15.*]</p> <p>4. Corporations (§ 448*) — Contract of Promoter — Suit for Rescission— Defenses.</p> <p>It is not a defense to such a suit for rescission by a corporation that thq agent through whose bribery the contract was procured by defendant is a stockholder of complainant.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.*]</p> <p>5. Courts (§ 312*) — Federal Courts — Assignees—Validity of Assignment —Daw Governing.</p> <p>The question whether a cause of action was assignable, so as to entitle the assignee to maintain a suit thereon in a federal court, is to be determined by the law of the state where all the transactions took place.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 805-875; Dee. Dig. § 312.*]</p> <p>6. Corporations (§ 591*) — Consolidation—Right of Action- — Validity Under Ohio Statutes.</p> <p>Under the law of Ohio, by which all causes of action which are survivable are assignable, and Gen. Godo Ohio, § 11,235, which provides that causes of action for deceit or fraud shall survive, the consolidation of two corporations, and the transfer by one to the other of all of its property and assets of every kind and description under sections 8710-8713 of said Code, vests the assignee corporation with the right to maintain a suit in equity for rescission of a contract made by the merged corporation on the ground that it was induced by the fraud of the defendant.</p> <p>[Ed. Note. — -For other cases, Corporations, Cent. Dig. §§ 2034, 2368-2372; Dec. Dig. § 591.*]</p>

In Equity. Suits by the Commonwealth Steamship Company against the American Shipbuilding Company. On final hearing. Statement of Facts — 8,210. It appears from the record in this case that William A. Hawgood and Arthur II.

<p>1. Levees (§ 5*) — Levee District — Status.</p> <p>A levee district created by statute, with authority to construct levees along the bank of the Red river and to condemn land for that purpose, is an agency of the state.</p> <p>[Ed. Note. — For other cases, see Levees, Cent. Dig. §§ 14, 15; Dee. Dig. § 5*]</p> <p>2. Eminent Domain (§ 2*) — Levees—1Construction—Railroad Bridge — ■ Change.</p> <p>A levee district having been expressly authorized by Aet Ark. March 3, 3911 (Sp. & Priv. Laws 1911, p. 89), to construct certain levees along the banks of Red river, in M. county, the fact that, on account of the construction of such levees, the plaintiff railroad company, which had previously, at great expense, built a bridge across the river, may be compelled to change the same, at its own expense, in order to raise it above the new high-water mark resulting from the confinement.of the waters by the levees, does not constitute a taking, appropriating, or damaging of the railroad company’s property without compensation, in violation of the Constitution of the United States or of the state of Arkansas.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2 ;* Constitutional Law, Cent. Dig. § 888.]</p> <p>3. Commerce (§ 48*) — Interstate Commerce — Interference—Obstruction or Mails.</p> <p>The construction of a levee across a railroad’s right of way under statutory authority, which could be constructed without interfering with the movements of complainant’s trains, does not constitute an illegal interference ’ with complainant as an interstate carrier of freight, passengers, and mail.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 36-44, 46; Dec. Dig. § 48.*]</p> <p>4. Eminent Domain (§ 47*) — Railroads—Condemnation.</p> <p>It is within the power of the state to authorize the condemnation of a railroad right of way for the construction of a levee across the same.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig § 47.*] _ ,</p> <p>5. Eminent ' Domain (§ 266*) — Remedies of Owners of Property — Inade-' quate Damages.</p> <p>' Where a part of a right of way of a railroad company was taken for the construction of a levee, an objection that .the amount allowed ' for the portion of the right of way so taken was inadequate could not be rectified in a. suit in a federal court to restrain the construction of . 1 the levee above a certain height and across the right of way.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Gent. Dig. §§ 694— 696, 702,. 703, 705; Dee. Dig. § 266.*]</p>

At Law. Action by Monica Cruz and others against Michael William O’Boyle on a Mexican judgment. On motion for judgment for want of a sufficient affidavit of defense.

<p>1. Courts (§ 367*) — State Laws as Rules of Decision in Federal Courts.</p> <p>A wharf built by an owner of shore land into navigable waters is an extension of the shore and a part of the real estate of the shore owner, and rights therein are governed by the laws of the state, as construed by its highest court, which will be adopted and followed by the federal courts.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.*</p> <p>State laws as rules of decisions 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. Wharves (§ 16*) — Public Wharf — Right to Collect Wharfage — Tenants in Common.</p> <p>. The owner of shore land and a steamboat company procured a license from the town as authorized hy state law to build a wharf from such shore, and did so under an oral agreement between themselves. Held, on the evidence, that it was intended to be and became a public wharf; that, as to the portion of it below low-water marii, the parties were tenants in common with equal interests, each having the right to use it or to permit others to use it; and that a vessel owner who contracted for its use with one of the cotenants and paid him the customary wharfage could not be held liable to- the other for such use.</p> <p>[Ed. Note. — For' other cases, see Wharves, Cent. Dig. §§ 13-18; Dec. Dig. § 16.*]</p>

<p>In Admiralty. Suit by Fields S. Pendleton against the steamer Golden Rod; Eastern Bay Steamboat Company, claimant.</p>

<p>1. Aliens (§ 66*) — Naturalization—Seamen-—Certificates.</p> <p>Rev. St. U. S. § 2174 (U. S. Comp. St. 1901, p. 1334), provides that every seaman, being a foreigner, who declares his intention of becoming a citizen, and shall thereafter serve three years on board of a merchant vessel of the United States, on his application to any competent court and the production of a certificate of discharge and good conduct during that time, together with the certificate of his declaration of intention, may be admitted as a citizen. Held, that where petitioner, a seaman on the Great Lakes, offered, together with his declaration of intention made April 15, 1907, five certificates of discharge, all of which were made and signed by masters of American vessels, showing service on lake-going steamers for three years and nineteen days after his declaration, and showing good conduct during such period, they were sufficient.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 130; Dec. Dig. i 66.*]</p> <p>2. Aliens (§ 66*) — Naturalization—Seamen—Statutes—Repeal.</p> <p>Act June 7, 1872, c. 322, § 29, 17 Stat. 268 (U. S. Comp. St. 1901, p. 1334; Naturalization Laws, tit. 30), provided that foreign seamen having declared their intention to become citizens, and having served three years on a merchant vessel of the United States subsequent thereto, on application and producing certificates of good conduct, with the certificate of declaration, may be admitted to citizenship. Act Cong. June 9, 1874, C. 260, 18 Stat. 64 (U. S. Comp. St. 1901, p. 3064), provided that none of the provisions of an act entitled “An act to authorize the appointment of shipping commissioners,” etc. (Act June 7, 1872), should apply to vessels engaged in coasting trade, except between the Atlantic and Pa- . cific Coasts, or in the lake-going trade touching foreign ports or otherwise, etc. ■ Act June 22, 1874, enacted the first revision of the federal statutes, by which section 29 of the act of 1872 became section 2174 (U. S. Comp. St. 1901, p. 1334), and was placed under the title “Naturalization,” the other provisions of the act of 1872 being carried into the statutes under the title “Merchant Seamen” (title 53), and Kev. St. § 5590 (U. S. Comp. St. 1901, p. 3750), provided that all acts passed prior to December 1, 1873, any portion of which was embraced in any section of the revision, were repealed, and the sections applicable should be in force in lieu thereof. Held, that the effect of the revision was to repeal the act of 1872 as it existed at the date of the act of 1S74, leaving section 2174 of the revision as an independent enactment, and, such section not being inconsistent with the act of June 9, 1874, it was not limited by that act, and hence seamen serving three or more years on American vessels, plying the Great Lakes, after declaring their intention to become citizens and producing the requisite certificates, were entitled to naturalization under that section.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. § 130; Dec. Dig. § 66.*]</p>

In Equity. Suit by the Etowah Light & Power Company against John Yancey for the condemnation of certain water rights. On demurrer to petition. This suit was commenced in the Circuit Court of Monroe County, Tennessee, by a petition filed by the Etowah Water & Eight Company, chartered and organized as a Tennessee corporation, against John Yancey, a citizen and resident of North Carolina.

In Equity. Action by Henry A. Hitner and another against the Diamond State Steel Company. To report of special master denying its petition for an order requiring the receivers of defendant company to pay it certain damages, the Allegheny Forging Company excepts.

<p>Maritime Liens (§ 31*) — Right to Lien — Advances Made by Part Owner. A partnership cannot assert a maritime lien for advances made against a vessel of which one of the partners is part owner.</p> <p>LEd. Note. — For other cases, see Maritime Liens, Cent. Dig. § 40; Dec. Dig. § 31 *1</p>

<p>1. Corporations (§ 401*) — Contracts—Common Officers — Validity.</p> <p>Contracts between corporations having a common director, while not prohibited, are voidable, imposing the burden, on those' who would sustain them, to prove by clear and satisfactory evidence that they are en- . tirely fair and free from wrong.</p> <p>[Ed. Note. — For other'cases, see Corporations, Cént. Dig. §§ 1363, 1364, 1595; Dec. Dig. § 401.*]</p> <p>2. Corporations (§ 189*) — Sale of Assets — Minority Stockholders — Right to Injunction.</p> <p>Where two corporations had a common director who largely controlled their management, a proposition to sell all the assets of one of them to the other in consideration of $1,300,000 of the buying corporation’s capital stock was prima facie voidable at the instance of minority stockholders of the selling company who were entitled to an injunction restraining the completion of the transaction until it was proved by the buying company’s officers that the transaction was fair and free from fraud after a disclosure of all their knowledge concerning the selling company’s property.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 706-722; Dec. Dig. § 189.*</p> <p>' Rights of minority stockholders as to management of corporate affairs, see note to Wheeler v. Abilene Nat. Bank Bldg. Co., 89 C. C. A. 482.]</p>

In Admiralty. Olaf Lie, master of the Norwegian steamship Selja, against the steamship Beaver; San Francisco & Portland Steamship Company, claimant. Two suits for collision. Also, suit by Portland & Asiatic Steamship Company against San Francisco & Portland Steamship Company.

In the matter of Ernest H. Beihl, bankrupt. On petition of trustee for restraining order, and exceptions to report of referee.

At Law. Action by J. R. Gray against the Louisville & Nashville Railroad Company. On plaintiff’s motion for a new trial.

<p>At Law. Action by Thomas Veariel against the United Engineering & Foundry Company. On motion by plaintiff to remand the cause to a state court.</p>

<p>At Eaw. Action by G. A. Eaubscher, as administrator of the estate of Frederick Treichel, deceased, against W. H. Fay. On motion for a new trial.</p>

<p>1. Navigable Waters (§ 46*) — Beaoh Land — Ordinary High-Water Mark —Question for Jury.</p> <p>In ejectment to recover land along an ocean beach, evidence field to justify submission to the jury of the question, of the location of ordinary high-water mark with respect to certain lots conveyed to defendant’s grantor.</p> <p>LEd. Note. — For other eases, see Navigable Waters, Cent. Dig. §§ 283-291, 293; Dec. Dig. § 46.*]</p> <p>2. Estoppel (§ 22*) — By Deed — Maps Referred to.</p> <p>Where a map or plat of land is referred to in a deed as containing a description of the land, the map or plat may become in law a part of the deed, and the parties be estopped from denying the correctness of such portions of the map or plat as are involved in or essential to the description of the property.</p> <p>[Ed. Note. — For other eases, see Estoppel, Cent. Dig. §§ 27-51; Dec. Dig. § 22.*]</p> <p>8. Estoppel (§ 22*) — By Deed — Map Referred to.</p> <p>A map referred to in a deed may serve as evidence of the location and surroundings of the property to be conveyed, without operating as an estoppel.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 27-51; Dec. Dig. § 22.*]</p> <p>4. Estoppel (§ 22*) — By Deed — Reference to Plat — High-Water Mark— Estoppel.</p> <p>Where a deed of certain beach lands referred to a plat as showing the general location of the land hut did not refer to certain curved lines thereon as indicating the lines of high and low water, the grantee and his successors in title were not estopped by the plat to claim that the lands conveyed extended to high-water mark, and were therefore riparian or littoral.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 27-51; Dec. Dig. § 22.*]</p> <p>5. Deeds (§ 119*) — Shore Lines — Map—Question for Jury.</p> <p>Where a deed to certain shore lands referred to a map containing curved lines apparently indicating the lines of high and low water, but no reference was made in the deed to such lines nor were they necessarily connected with the description of the premises conveyed, such lines could at most serve as presumptive, but rebuttable, evidence that at the time of the execution of the deeds the ordinary high-water mark of the ocean did not encroach on any of the lots described therein; what the lines indicated, and, if intended to show the lines of high and low water mark, how far they were reliable, being for the jury.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 342, 343; Dee. Dig. § 119.*]</p> <p>6. Estoppel (§ 32*) — By Deed — Extent.</p> <p>Where certain deeds described the land as beginning at an avenue and running hack 130 1’eet to a 15-foot street, and the description, the habendum, and special warranty indicated an intention that the grantee should acquire from the grantor and hold the whole of the lots as described and specially warranted, the deeds, at most, operated to estop the grantee and his successors from claiming that the ordinary high-water mark of the ocean encroached on any part of the lands described therein, and did not operate as an estoppel to bar them from claiming that the ocean at ordinary high tide touched the northwesterly side of the avenue in front of the lots, although not crossing the boundary line.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 81; Dec. Dig. § 32.*]</p> <p>7. Navigable Waters (§ 44*) — Accretion.</p> <p>Where the ocean at ordinary high tide touched certain lots belonging to defendant along their entire front, it was immaterial on the question of defendant’s right to land formed in front of the lots by accretion to what extent the ocean encroached upon the lots.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 266-278, 281, 282; Dec. Dig. § 44.*]</p> <p>8. New Trial (§ 49*) — Jury—Misconduct.</p> <p>The fact that, after the rendition of a verdict in favor of defendant, he' invited the jurymen or caused them to be invited to dine with him at a small supper partaken of openly in a public restaurant at an early hour of the evening, and without any drink stronger than tea or coffee, while blameworthy, did not constitute ground for a new trial.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. § 49.*]</p>

Appeals frbm the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by Lorentz W. Hansen, managing owner of the steamship Otta, against the steamship S. V. Luckenbach, Edgar F. Luckenbach, and others, claimants, and cross-libel by such claimants against the Otta. Decree dividing the damages, and libelant appeals.

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

In Equity. Suit by Farbenfabriken of Elberfeld Company against Albert C. Smith. Defendant appeals from an order granting a preliminary injunction. On motion to dispense with clerk’s supervision fee.

In the matter of Morris Glasberg, Samuel Glasberg, and Darcy Devine, individually and as members of the firm of Glasberg Bros. & Devine, bankrupts. Appeal by Samuel Glasberg from an order dismissing his application for discharge.

<p>1. Patents (§ 327*) — Suits fob Infbingement — Pkiob Decisions.</p> <p>While the obligation of comity as applied to patent cases is not imperative, it is something more than courtesy, since it has a substantial value in securing uniformity of decision.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 620-625; Dec. Dig. § 327.*]</p> <p>2. Patents (§ 328*) — Validity and Infbingement — Amendment of Application.</p> <p>The Wilfley patent, No. 590,675, for an ore concentrator, discloses patentable novelty and invention and a very high degree of utility, and is not invalid because of amendments made to the specification and claims while the application was pending in the Patent Office not shown to have been verified; such amendments having been well within the original invention as shown by the drawings and therefore within the scope of the original oath and by way of amplification of description. Claims 1, 2, and 7 also held infringed.</p> <p>3. Patents (§ 109*) — Validity—Amendment of Application.</p> <p>In determining whether matter introduced into an application for a patent by way of amendment is new matter, the original drawings are to be understood with such variations in form, shape, and proportions as common sense and mechanical skill in the art would suggest.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 152; Dec. Dig. § 109.*</p> <p>Amendment of application for patent, see notes to Cleveland Foundry ' Co. v. Detroit Yapor Stove Co., 68 C. C. A. 239; Hestonville, M. & F. Pass. Ry. Co. v. McDufCee, 109 C. C. A. 613.]</p>

<p>In Equity. Suit by the Commercial Acetylene Company and the Prest-O-Eite Company, against the Searchlight Gas Company, George ' F. Schroeder, and Oscar Baur. On final hearing.</p>

<p>In Equity. Suit by the Equitable Asphalt Maintenance Company against the Parker-Washington. Company. On final hearing.</p>

In Equity. Suit by Alfred P. Roth and another, doing business as Roth & Engelhardt, against Louis H. Harris, doing business as the Automatic Musical Company, and the Automatic Musical Company. On exceptions by defendants to master’s report finding profits derived from infringement of the Hobart patent, No. 765,240, for a tune sheet attachment for piano players, to be $282,884.76, and damages nominal.

<p>In Equity. Suit by the International Mausoleum Company against H. S. Sievert and others. On demurrer to bill.</p>

Suit in 'equity by the National Casket Company against Julius W. Stolts, as president and treasurer of J. & J. W. Stolts, an unincorporated joint-stock association, for infringement of reissue patent No. 12,750, dated February 11, 1908, for face plate for burial caskets, issued to the National Casket Company, as assignee of William Hamilton, deceased. On final hearing.

<p>Patents (§ 328*) — Suit fob Infringement — Preliminary Injunction.</p> <p>' A preliminary injunction against infringement of the Forsythe patent, No. 862,897, for expanded sheet metal, unadjudicated, denied on conflicting expert testimony as to its validity and scope, and on the question of infringement.</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>In Equity. Suit by the Strause Gas Iron Company, Otto Spahr, and Charles Stichler against Julius Weil and Joseph Powdermaker, copartners doing business as the Marion Manufacturing Company. On final hearing.</p>

<p>In Equity. Suit by the Bryant Electric Company against the David Killoch Company. On final hearing.</p>

<p>In Equity. Suit by Smith Incandescent Eight Company against the Welsbach Gaslight Company for infringement of reissued letters patent No. 13,033 (original No. 759,037) issued to TIarper E. Smith November 2, 1909. On final hearing.</p>

<p>L Infants (§ 12*) — Custody—Juvenile Delinquents.</p> <p>Acts La. 1908, No. 83, creating the juvenile court, and providing that proceedings therein shall be instituted by affidavit against the child, is not invalid on the theory that a child of tender years cannot stand in judgment.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 13; Dec. Dig. § 12.*]</p> <p>2. Infants (§ 66*} — r resumptions — Incapacity for Crime — Children.</p> <p>The presumption at common law that a child of tender years was incapable of crime only extended to children under seven.</p> <p>[Ed. Note. — Eor other cases, see Infants, Cent. Dig. § 172; Dee. Dig. § 66.*]</p> <p>3. Infants (§ 12*) — -Custody—Juvenile Court Act.</p> <p>Since Civ. Code La. art. 305, provides that a father may be excluded from the tutorship of his child for notoriously bad conduct and for other reasons, Louisiana Juvenile Court Act (Acts 1908, No. 83), providing that a parent may forfeit his right to the custody of a child if he is derelict in his duty toward the child, is not in conflict with the Code, or unconstitutional as impairing the inalienable right of a parent to the custody of a child.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 13; Dec. Dig. § 12.*]</p>

In Equity. Suits by Western Railway of Alabama against the Railroad Commission of Alabama and others, and by Central of Georgia Railway Company… Held: by a divided court, that the evidence presented in the shape of ex parte affidavits, in which manner both sides without hint of objection from either submitted the question, did not so strongly overcome the presumption indulged in favor of the reasonableness of rate statutes as to justify an injunction against the freight and…

<p>1. Corporations (§ 506*) — Actions—Parties—Joinder—Officers of Corporation.</p> <p>Where, in a suit against a corporation and certain of its officers to enjoin tbe use of complainant’s corporate name and insignia in the sale of merchandise, the cause of action, if any, alleged against the individual defendants arose solely from their official relation to the corporation, and no separate individual acts were charged against them, they were improperly joined as individual parties.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1958-1970; Dec. Dig. § 506.*]</p> <p>2. Injunction (§ 96*) — Personal Privacy — Rights of Corporation.</p> <p>Vassar College, being a public institution, depending on and inviting-wide-spread publicity for the fullest return from the exercise of its functions as an institution of learning, had no right of privacy which it could preserve by injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. § 167; Dec. Dig. § 96.*]</p> <p>3. Injunction (§ 98*) — Jurisdiction—Libel.</p> <p>A court of equity is without jurisdiction to restrain the publication of , a libel.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 169-171; Dec. Dig. § 98.*]</p> <p>4. Injunction (§ 98*) — Corporations—Special Damages.</p> <p>Where a publication concerning the name and insignia of a corporation did not appear to be defamatory or libelous per se, the corporation, if entitled to recover at all therefor, could only recover on pleading and proving special damages.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 169-171; Dec. Dig. § 98.*]</p> <p>B. Trade-Marks and Trade-Names (§ 31*) — Use of Corporate Name and Insignia — Advertisement of Merchandise — Damages.</p> <p>Defendant, a Missouri corporation, manufactured and sold a variety of candy called “Vassar Chocolates,” which it advertised widely, employing the name “Vassar” together with a likeness of a young lady in scholastic garb and wearing a mortarboard hat, also using an imitation of the college pennant, a college yell, and imitation of the college seal, with the words “Vassar Chocolates” and “Always fresh” substituted for the words “Vassar College” and “Purity and Wisdom.” Held, that Vassar College, as a public corporation, had no such property right in its name and insignia displayed by defendant in its advertisement as would entitle the college to restrain defendant’s use thereof in bis advertisements; the injury, if any, being psychological, rather than real.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 35; Dec. Dig. § 31.*]</p> <p>6. Equity (§ 46*) — Jurisdiction—Extent of Right.</p> <p>Equity does not assume the burden of preventing all the contemplated legal wrongs on the theory that subsequent remedies at law may prove inadequate or less satisfactory.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 151, 152,157,159 163; Dee. Dig. § 46.*]</p>

<p>1. United States (§ 60*) — Contracts—Validity—Breach by Contractor.</p> <p>Rev. St. § 3744 (U. S. Comp. St. 1901, p. 2511), requiring the Secretary of War, Secretary of the Navy, and Secretary of the Interior to cause all contracts made by them on behalf of the government, or by officers under them appointed to make such contracts, to be reduced to writing and signed by the parties and a copy of every such contract to be filed in the returns office of the Department of the Interior, is not a statute of frauds, but an enactment for the protection of the government, and cannot be invoked by one whose bid for a contract has been accepted hut who refuses to sign the formal contract when tendered to relieve him from liability for damages sustained by the government by reason of such refusal to perforin the contract made by his bid and its acceptance.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. ,§ 49; Dec. Dig. § 66.*]</p> <p>2. United States (§ 142*) — Breach of Contract — Damage.</p> <p>Where defendant was unable to fulfill its contract with the Navy Department to transport two cargoes of coal of 4,000 tons each from Atlantic ports to San Francisco, and the department at its request diverted two other cargoes which had been sent to Honolulu to take their place at a cost per ton in excess of the contract price, defendant is liable in damages for all the extra cost to the government of such diversion, although the two cargoes somewhat exceeded 8,000 tons.</p> <p>[Ed. Note. — For other cases, see' United States, Cent. Dig. § 140; Dee. Dig. § 142.*]</p> <p>3. United States (§ 141*) — Action for Breach of Contract — Evidence.</p> <p>Where defendant, being unable to fulfill a contract with the Navy Department to transport two cargoes of coal, requested the department to procure transportation of the coal by diverting other tonnage under charter to other ports, which was done, in an action by the United States to recover damages for breach of the contract, its correspondence with other contractors resulting in such diversion was admissible to show what it had done pursuant to such request and the additional cost it incurred in procuring the transportation.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 136-139; Dec. Dig. § 141.*]</p>

<p>In Admiralty. Suit by the .Italian-Swiss Colony, a corporation, against the French barque Jean Bart.</p>

At Law. Action by the United States against Mary E. Fitts and William B. Fitts, as executrix and executor of the last will of Friend P. Fitts, deceased. On motion by defendant Mary F. Fitts for directed verdict.

In the matter of Cameron Currie and Louis H. Case, as partners and individually, bankrupts. On petition of Alice H. Du Charme and others for the appointment of a separate trustee for Currie.

<p>In Equity. Suit by the Weyman-Bruton Company against the Old Indian Snuff Mills. On exceptions to supplemental answer.</p>

In Equity. Suit by Myron W. Andrus against the Berkshire Power Company, John A. Griffith against the same, and Patrick Hughes against the same. On exceptions by both parties to master’s report in each case.

In Admiralty. Suit for collision by the Shaver Transportation Company against the steamer Samson; Columbia Contract Company, claimant. And supplemental libel against the Standard Oil Company as owner of Oil Barge No. 93. On motion to strike supplemental libel from files.

<p>On application by Luigi Talarico for naturalization.</p>

<p>In the matter of Roy Hutchinson, bankrupt. On review of order of referee.</p>

<p>Shipping (§ 121*) — Loss or Cargo — Unsea worthiness — Improper Loading.</p> <p>The overturning of the after section of a jointed coal barge loaded with coal, on encountering the ordinary swells from other vessels while being towed in the' harbor of Philadelphia in fair weather and -smooth water, raises a presumption that it was unseaworthy for the carriage undertaken when it started, and the loss of the cargo must be attributed to that cause, where it was -shown in addition that it was overloaded, and the load was not properly trimmed, and that the forward section, not so heavily loaded, carried its cargo in safety.</p> <p>[Ed. Note. — For other cases, s.ee Shipping, Cent. Dig. §§ 449-451; Dec. Dig. § 121.*</p> <p>Liability of vessel owners for loss or injury from improper storage, see note to The Gualala, 102 C. C. A. 553.]</p>