Volume 198 — Federal Reporter

I Action at law by Anna Maerkl, administratrix, of the estate of George Maerkl, deceásed, against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

Suit in equity by Z. F. Moody against the Eastern Oregon Eand Company to compel specific performance of a contract for the sale of land, in which defendant filed) a cross-bill for cancellation of the contract. Decree by Circuit Court (180 Fed. 532) for complainant, and defendant appeals. Reversed, with instructions.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>Suit in equity by John Windsor, trustee in bankruptcy of the Maple Valley Canning Company, against Brown City Savings Bank. Decree for complainant, and defendant appeals.</p>

, Suit in equity by Theresa L. Rang and others against the Choctaw, Oklahoma & Gulf Railroad Company and others. Decree for complainants for partial relief, and they appeal.

<p> (Syllabus by the Court.) </p> <p>1. Taxation (§ 611*) — Unlawful Tax — Suit to Enjoin — Taxes Justly Due —Averment of Payment or Tender.</p> <p>An averment of payment' or tender of the amount justly due is indispensable to the sufficiency of a hill to enjoin the collection of unjust taxes.</p> <p>But where the allegations of the bill show that all the taxes assailed are void and inequitable, or that the void and inequitable part is so inextricably mingled with the part justly due that the two cannot be approximately separated, no such averment is necessary.</p> <p>Averments upon this subject in a bill that the scheme of taxation is such that the complainant and other public service corporations are deprived of notice of and opportunity to be heard upon, and of appeals from, the assessment of their property, 'and of an equalization of the assessments of their property with those of others, while other taxpayers enjoy these advantages, that the taxing officers have assessed their property at its full value and that of other taxpayers at 63% per cent, of its value, that the levy of taxes for 12 out of 19% months is without authority, and the taxes for this period are so mingled with those of the other 7% months that they cannot be separated, that the complainant has paid under protest more than half the taxes for the 19% months, and is willing to give bond to secure, and that this amount so paid shall stand as security for, the payment of any taxes justly due, are ample to sustain the bill for an injunction.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.*]</p> <p>2. Equity (§ 340*) — Admissions—Hearing on Bill — Answer and Replication.</p> <p>Where a case is set down for hearing on bill, answer, and replication, •only those averments of the answer which are responsive to the bill are taken as true. All allegations in avoidance or justification are denied by the replication and are taken as untrue.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§• 697-701; Dee. Dig. § 340.*]</p> <p>3. Taxation (§ 4461^*) — Oklahoma State Taxes — Statutes — Territorial Laws — Authority to Levy.</p> <p>The board of equalization of the state of Oklahoma was without authority on October 1, 1908, to fix the rate of taxation or to levy taxes for the expenses of the state for the year ending June 30, 1909.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 788; Dec. Dig. § 446%.*]</p> <p>4. Depositions (§ 110*) — Objections.</p> <p>Objections to the introduction of an entire deposition are untenable, if any part of it is admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 323-328%; Dec. Dig. 110.*]</p> <p>5. Taxation (§ 840*) — Penalty—Delinquent Taxes — Interest—Demand.</p> <p>One who would enforce a penalty for a failure to pay a claim, such as 18 per cent, per annum interest on delinquent taxes, must demand the true amount of the claim. No penalty is incurred by a demand of a larger amount.</p> <p>[lid. Note. — For other cases, see Taxation. Cent. Dig. § 1056; Dec. Dig, § 840.*]</p> <p>6. Taxation (§ (ill*) — Partial Invalidity — Injunction—Terms.</p> <p>Subject to the established principles and rules of equity jurisprudence, the terms on which a court of equity will grant its relief, such as the rate of interest on taxes justly- owing to be paid by a complainant as a condition of an injunction against the collection of those that are void, is discretionary with the chancellor.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.*]</p> <p> (Additional SyllaVus Vy Editorial Staff.) </p> <p>7. Evidence. (§ 28*) — Judicial Notice — Federal Courts.</p> <p>The courts of the United States take judicial notice of the Constitutions and laws of the states.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 36, 43; Dec. Dig. § 28.*]</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma.</p> <p>Criminal prosecution by the United States against Eugene Mosier. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Action at law by the Ralston Purina Company against C. B. Gaunt. Judgment for plaintiff, and defendant brings error.</p>

Criminal prosecution by the United States against James O. Brzezinski. From a judgment of conviction, defendant brings error. This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, convicting plaintiff in error under an indictment for perjury.

Suit in equity by the National Washboard Company against Joseph Goldstein. From an order denying a preliminary injunction, complainant appeals. Appeal from an order refusing to grant; a preliminary injunction restraining the defendant from using certain arbitrary numbers in connection with the sale of washboards.

Habeas corpus on petition of Charles Munson against Robert W. McClaughry, Warden of the United States Penitentiary at Leavenworth, Kan. From an order denying the petition, petitioner appeals. Reversed) and remanded, with instructions.

<p>1. Railroads (§ 400*) — Action for Injury to Person — 'Questions for .Turt.</p> <p>Where the fact was undisputed that plaintiff lost his arm by being run over by a train on defendant’s railroad, but tbo evidence was in direct conflict as to whether he was on the train and was thrown off by one of the trainmen, or was walking beside the track and caught hold of a car and attempted to get on, the question was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]</p> <p>2. Railroads (§ 282*) — Liability for Injuries — Acts of Employes.</p> <p>Where a man riding on á freight train at night wore a plate on his cap and carried a lantern with which he gave signals for the movement of the train, the presumption is that he wasi the authorized agent of the railroad company and that his action in throwing plaintiff from the train was done in the due course of his employment, and the railroad company is responsible for such act whether authorized or not.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the Imperial Film Exchange, alleged bankrupt. Appeal from an order dismissing an involuntary petition vacating an order appointing a receiver, approving a report of the master, etc.</p>

<p>Fbaud (§ 86*) — False Representations — Liability.-</p> <p>Tbe complaint, in to action against a corporation to recover damages for false representations made by defendant’s agent as to the value of its property, by which plaintiff was induced to buy stock of defendant and pay par therefor when it was in fact of little or no value, is not dé-mnrrable on the ground that a recovery would enable plaintiff to acquire the stock for less than its full par value in violation of the rights of creditors of defendant and its other stockholders, where it does not appear from such complaint that plaintiff was an original subscriber for the stock, or that it had not been once fully paid for, or that there were any creditors or other stockholders.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 31, 32; Dec. Dig. § 36.*]</p>

Proceedings for deportation of Ngon Kay, alias King Kee, and Yik Jin, alias Yik Chung. From an order affirming the decision of the United States Commissioner deporting defendants, they appeal.

<p>COURTS (§ 384*) — Circuit Court of Aiteals — Determination or Cause.</p> <p>Where facts have been stated by the Circuit Court of Appeals to the Supreme Court as a basis for a question of law certified for decision, it, is to be implied that the court has found such facts, and, after the instruction of the Supreme Court has been received, they will not be reexamined on the same record.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1021; Dec. Dig, i 884.*]</p>

<p>Integral Revenue (§ 11*) — “Manufactuke of Smoking Opium.”</p> <p>The mere mixing of smoking opium with the residue of opium that has been smoked, and heating the same, is not a “manufacture of opium ior smoking purposes” within the meaning of Internal Revenue Act Oct. 1, 1890, c. 1244, §§ 36, 37, 26 81 fit, 620 (TJ. S. Comp. St. 1901, p. 2226), Imposing a tax on smoking opium and regulating the business of its manufacture.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 29, 86-38; Dee. Dig. § 11.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4344-4346; vol. 8, p. 7716.]</p> <p>Noyes, Circuit Judge, dissenting.</p>

Suit in equity by the Moore Carving Machine Company against the Clemons Machine Company for infringement of two patents. Decree for complainant on one patent and for defendant on the other, and both parties appeal. This cause comes here upon cross-appeals from a decree of the District Court, Western District of New York. Complainant filed the usual bill in equity for infringement, declaring upon two patents.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Sundh Electric Company against the Interbor-ough Rapid Transit Company. Decree for complainant, and defendant appeals.</p> <p>This cause comes here upon appeal from a decree granting injunction and accounting in a suit in equity for infringement of a patent. The patent is No. 733,564 granted July 14, 1903, to August Sundh, complainant’s assignor, for an electric controller. The claims with which this appeal is concerned are:</p> <p>“1. An electro magnet, an armature therefor, a shaft, means for rotating said shaft controlled by said armature, a circuit-closing lever, a co.ntact- ' terminal in the path of said lever, and a cam on said shaft constructed to move said lever to close circuit at said terminal.</p> <p>“2. An electro- magnet,- an armature therefor, a shaft, means for rotating said shaft controlled by said armature, a circuit-closing lever, a contact-terminal in the path of said lever, and. a cam on said shaft constructed to move said lever to close circuit at said terminal and to retain said lever in said closed position when the rotation of said shaft is arrested.</p> <p>- *‘3. An electro magnet, an armature therefor, a shaft, means for rotating said shaft controlled by said armature, a plurality of circuit-closing levers, a plurality of contact-terminals in the path of said levers, and cams on sáid shaft constructed to move said levers to close circuit at said terminals ; the aforesaid parts being timed and constructed to operate said levers to close said circuits successively.</p> <p>“17. The combination with the solenoid 13, and its movable core, of the rotary shaft 30, gearing between said core and shaft for causing rotation of said shaft by said core, pivoted circuit-closing levers J/S, 1/9, 30 and cams 5Ji, 55, 56 on said shaft; the said cams being constructed successively to opT erate said circuit-closing lovers 1/S, 1/9, 50.</p> <p>“18. The combination with the solenoid and its movable core, of the rotary, shaft 30, gearing between said core and shaft for causing rotation of said shaft by said core pivoted levers 1/8, 1/9, 50 and 6.Í, circuit terminals in the path of said levers and cams. 51/, 55, 56 and 11/ on said shaft; the said levers and cams being constructed and timed so that said levers 5),55, and 56 are successively actuated by said cams to close circuit and tbe lever 62 to open circuit.”</p>

Suit in equity by the American Street Flushing Company and others against the D. Connolly Boiler Company, impleaded. Decree for complainants, and defendant appeals.

<p>L Patents (§ 165*) — Construction and Validity — Sufficiency of Claims.</p> <p>However valuable, new, and novel the actual discovery and invention of a patentee, and however'accurate the disclosure and description thereof in the specification of his patent, he must claim it, or it is deemed ábandóned' to the public. While that construction should be given to a claim which will uphold it, if it can be done without doing violence to the language used, it is not sufficient to uphold a claim that the court can’.see that the patentee Intended to cover his real invention by the language used, when in fact he did not.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*] "</p> <p>2. Patents (§ 246*) — Infringement—Combinations.</p> <p>If a patentee introduces an unnecessary element into his claim for his invention, another, who discovers that such element is unnecessary or superfluous, and therefore does not use it, is not an infringer, although he makes a structure otherwise identical with that of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 887; Dec. Dig. § 246.*]</p> <p>8i. Patents (§ 328*) — Validity and Infringement — Arc' Lamp.</p> <p>The Carbone patent, No. 975,935, for an arc-lamp globe, specially adapted to the use of impregnated carbons, claims 1 and 3, which cover a globe “divided into a plurality of superposed chambers by suitable configuration of the walls,” the middle or lighting chamber having a transparent wall, which surrounds the arc closely, so that the heat will prevent the condensation of the gases therein and their deposit on the globe to obscure the light, an upper or condensation chamber for such gases, and a lower or settling chamber, contemplates a physical separation of the chambers by the configuration or contraction of the globe, and, while not anticipated and valid, such claims are not Infringed by a globe of conical shape with straight walls, without contractions or other configuration to divide it into chambers.</p>

<p>Tn Equity. Suit by the Sundh Electric Company against the General Electric Company. On final hearing. Decree for complainant.</p>

<p>Paxekts (§ 328*) — Anticipation—-Appabatus foe Making Pneumatic Tibes.</p> <p>The Thropp patent, No. 822,561, for apparatus for manufacturing wheel tires for automobiles, claims 1 and 2, 'held void for anticipation.</p>

<p>In- Equity. Suit by the Lovell-McConnell Manufacturing Company and others against the Waite Auto Supply Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit by Claude A. P. Turner against Morris E. Moore and Edward J. Scriver, copartners as Moore & Scriver. On final hearing. Decree for defendants.</p>

<p>Patents (§ 328*) — Inebingement—Folding Table.</p> <p>The Burrowes patent, No. 766,988, for a folding table, construed in the light of the prior art and the proceedings in the Patent Office, held not infringed.</p>

<p>1. Adverse Possession (§ 7*) — Rateroads—Public Land — Efi-ect or Abandonment.</p> <p>Where a railroad company, which by the construction of its road has acquired a right of way over public land, has abandoned the same by a relocation of its line and the removal of its track, the old right of way becomes subject to the rules governing property privately owned, and title thereto may be acquired by another by adverse possession under color of title.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent Dig. §§ 24-42; Dec. Dig. § 7.*]</p> <p>2. Adverse Possession (§ 70*) — Railroads—Right of Wat Over Public Lands — Effect of Change of Line.</p> <p>The predecessor of defendant railroad company by building its road in 1877 acquired a right of way over public lands which were afterward patented to complainant’s grantors; there being no reservation of the right of way in the patents. In 1899 the railroad company changed its line, purchasing a new right of way from the owners over the lands and removing its track from the old right of way which was then inclosed and thereafter cultivated by the owners with the rest of the land. Held, that the abandonment of the old right of way must be assumed to have been a part of the consideration to the owners of the land for the new one, and that such owners had color of title to such old right of way which after the lapse of the statutory period gave them absolute title .by prescription.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 394-414; Dec. Dig. § 70.*]</p> <p>3. Records (§ 9*) — Suit to Register Title — Persons Concluded — Service bt Publication.</p> <p>Under the Torrens Act (Laws Colo. 1903, p. 311), providing for the adjudication and registration of land titles, a railroad company which by the construction of its road acquired a right of way over a tract of public land under act of Congress, but afterward by a relocation of its line abandoned such right of way, which was inclosed and cultivated by the owner of the land, where there was nothing of record or on the ground to show its ownership, was properly brought into a suit brought by a purchaser of the land for registration of his title by publication as an unknown party and is bound by the judgment therein.</p> <p>[Ed. Note. — For other cases, see Records, Dec. Dig. § 9.*]</p>

<p>In Admiralty. Suit by the Washington Marine Company, as owner of the steamer Washington, against the Rainier Mill & Lumber Company. Decree for libelant.</p>

In Admiralty. Suit by Thomas A. Johnson and others, owners of the pilot boat Jordan, against the steamship Agnella, for collision. Decree for libelants.

<p>In Equity. Suit by the Chicago, Burlington & Quincy Railroad Company against H. R. Oglesby and others.</p>

In Equity. Suit by the Wilmington City Railway Company and others to restrain Henry M. Taylor and others, constituting the Board of Public Utility Commissioners for the City of Wilmington, from enforcing an order requiring defendants to resume the sale of six street railway tickets within the City of Wilmington for twenty-five cents. On application for a temporary injunction.

At Law. Action by the Mutual Benefit Life Insurance Company against Herman C. H. Herold, Collector of Internal Revenue, to recover certain alleged internal revenue corporation taxes imposed on plaintiff and paid under duress. Judgment for plaintiff.

<p>In Equity. Suit by the Washington, Potomac & Chesapeake Railway Company against W. Hampton Magruder, State’s Attorney for Prince Georges County, Robert C. Combs, State’s Attorney for St. Marys County, and Ferdinand C. Cooksey, State’s Attorney for Charles County, Maryland. On final hearing. Decree for complainant.</p>

In Equity. Suit by Nicholas Miller against William Uhlman, William J. Wanmaker, Ferdinand Goebel, and J. M. Kaufman, partners under the firm name of S. & F. Uhlman, and Chin Toy. On final hearing, on bill and cross-bill by Chin Toy. Decree for cross-complainant.

In Equity. Suit by the Emery, Bird, Thayer Realty Company against the United States of America. Judgment for plaintiff.

Proceedings by Drainage District No. 19, Caldwell County, Missouri, for assessment of benefits. Motion to remand the proceedings as affecting the Chicago, Milwaukee & St. Paul Railway Company denied. This ease was removed to this court from the county court of Caldwell county. It involves a proceeding for the construction of a drainage ditch in Caldwell and Livingston counties, Mo., and the assessment of benefits and damages incidental thereto.

<p>At Law. Action by Mary C. Keatley against the Grand Fraternity. Demurrers to pleas sustained, 'and to replications overruled!.</p>

<p>1. Insurance (§ 723*) — Fraternal Insurance — Warranties—Misrepresentations — Effect.</p> <p>■ Under Act Pa. June 23, 1885 (P. L. 134), providing that, where an application for a life policy contains a warranty of the truth of the answers therein contained, no untrue statement or misrepresentation in the application made in good faith shall effect a forfeiture, unless the mis- .' representation or untrue statement relates to a matter material to the risk, a breach of warranty of the truth of answers in an application does not work a forfeiture of the policy where the misrepresentation or untrue statement is made in good faith and does not relate to a matter-material to the risk, but, to.permit a recovery notwithstanding, a breach of warranty, good faith, and absence of materiality to the risk must coexist.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dee. Dig. § 723.*]</p> <p>2. Pleading (§ 205*) — Form of Pleading — General Demurrer.</p> <p>. .A general demurrer .does not challenge ■ merely formal defects in the 1 pleading, but only its substance.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ -491-510; Dec. Dig. § 205.*]</p> <p>3. Insurance (§ 723*) — Fraternal Insurance — Application—Warranties— Misrepresentations — “Brother."</p> <p>An applicant for fraternal insurance declared that his personal and family history were clearly and truthfully set forth in the questions and answers in the application. It contained the following questions: “Brothers?” “Age of living?” “Age at death?” “Year of death?” “Specific cause of death?” “Duration of last illness?” The applicant answered only the first question, his answer being in the negative. He had a brother who had died prior .to the application and the cause of his death was diabetes, and the applicant, knew such fact.. Held, that the question “Brothers?” applied, to brothers living or dead, and was also applicable to one brother as well as several brothers, and his answer was a fraudulent concealment, misleading the insurer.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1859-1865; • Dee. Dig. § 723.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 884, 885.]</p> <p>4. Insurance (§ 724*) — Fraternal Insurance — Application—Warranties-^-Misrepresentatíons.</p> <p>The fact that insurer did not require answers to the questions excepting the first did not show a waiver by it of its rights to full and truthful disclosures of the history of the family of the applicant.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1837, 1866-'1868Dec. Dig. § 724.*]</p>

<p>In Equity. Bill by N. Coy against the Title Guarantee & Trust Company and others; Myrtle McMahon intervening. Decree for in-tervener.-</p>

Condemnation proceedings by the United States against Paul Beaty “and others, against William Brown and others, against Alma Jackson and others, against S. E. Macatee and others, against Lucretia Thompson and others, against Carrie P. Kuser and others, against Lucy E. Barber and others, against Ella S. Kenny and others, against Newton Garrett and others, and against Martha Pomeroy and others. On exceptions to awards of commissioners.

<p>In Bankruptcy. In the matter of bankruptcy proceedings against Iv. K. Dicks. On petition to review a referee’s decision refusing to order the trustee to pay to the widow and minor children a year’s support under Code Ga. 1910, ■§ 4041.</p> <p>On appeal, questions certified to Supreme Court by divided court.</p>

<p>1. Courts (§ 328*) — Jurisdiction—Federal Courts — Amount in Controversy.</p> <p>Where a suit is brought by owners of landholders’ shares in a cemetery on behalf of themselves and all other owners of such shares similarly situated to protect the interests of the lands as against a proposed sale, the aggregate interest of the whole class constitutes the matter in dispute, and, when that is more than $2,000, the federal court has jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. § 328.*</p> <p>Jurisdiction of circuit courts as determiued 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. 459; O. J. Lewis Mercantile Co. v. Klep-ner, 100 C. C. A. 288.]</p> <p>2. Injunction (§ 118*) — Restraining Sale of Cemetery Lots — Pleading— Sufficiency.</p> <p>A bill to restrain a sale of cemetery lands, which alleges that a eon- • tract provided that proceeds from a sale of the use of lots in the cemetery should be divided into equal shares, distributed among persons named according to their several interests, that the cemetery, pursuant to the contract, issued shares to persons named, that the shares were fully paid and are outstanding, and that complainants own a specified number of shares, sufficiently alleges the ownership of the shares as against a demurrer averring that the complainants do not' appear as shareowners of record.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. |§ 223-242; Dec. Dig. § 118.*]</p> <p>3. Equity (§ 219*)- — Pleading—Surplusage.</p> <p>Where complainants request the striking out of matters in a bill, demurrers to the parts stricken out are no longer available.</p> <p>[Ed. Note.- — For other cases, see Equity, Cent. Dig. §§ 496, 498-500; Dec. Dig. § 219.*]</p> <p>4. Injunction (§ 114*) — Restraining Sale of Cemetery Lands — Parties.</p> <p>Where a trustee under a mortgage executed by a cemetery corporation is a party to a suit to restrain a sale of cemetery lands, the bondholders need not be made parties, for they are represented by the trustee.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p> <p>5. Injunction (§ 114*) — Restraining Sale of Cemetery Lands — Parties.</p> <p>Where, in a suit by owners of landowners’ shares in a cemetery, on their own behalf and on behalf of all others similarly situated, to restrain a sale of cemetery lands, the issue was between the class of shareholders in whose behalf the bill was brought, on one hand, and the cemetery and a class of shareholders represented by a shareholders’ committee, on the other, the shareholders’ committee, or such members as may be presumed to represent the interests of such class of shareholders, must be made parties to the bill, since the interests of such class will, be affected by a decree in favor of complainants.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p>

<p>1. Receivers (§ 173*) — Leave to Sot — Effect.</p> <p>That a receiver of a railroad company was authorized by the court to sue the State Treasurer at law or in equity to recover assets of the railroad company in his custody was not a final determination by the court in advance of the jurisdictional validity, propriety, or legality of any particular proceeding- at law or in equity which might be instituted in consequence of such authority.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 327-332; Dec. Dig. § 173.*</p> <p>Actions by or against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49.]</p> <p>2. Assumpsit, Action of (§ 4*) — Right to Sue.</p> <p>Assumpsit lies only to recover damages for breach of a parol contract, and to sustain it it must appear that: there was a valid contract, express or implied, on the part of the defendant and a breach by him.</p> <p>LEd. Note. — For other cases, see Assumpsit, Action of, Cent. Dig. § 13; Dec. Dig. § 4.*]</p> <p>3. Corporations (§ 20*) — Organization — Funds — Deposit with State Treasurer — Recovery.</p> <p>Delaware {Jenera.1 Corporation Law (22 Del. Laws, e. 394) § 108, provides for the filing of articles of association of railroad corporations organized in that state with the Secretary of State only after $500 of stock for every mile proposed to be constructed is subscribed and paid in in good faith to the directors, who shall hare deposited such sum with the State Treasurer, to be repaid to the directors or treasurer of the railroad in sums of $500 for each mile constructed, etc. Section 117 declares that any corporation created under the act to construct a railway shall commence its proposed construction within six months from organization. and shall complete at least one track within two years from the date of its commencement, provided that, if it fails to do so, it shall forfeit the franchises given by the act Held, that where a railroad company and its predecessor had each deposited $7,000 with the State Treasurer under such act, and, after consolidation, the latter company forfeited its franchise, and was dissolved for failure to construct any part of its road, the treasurer’s obligation to repay the money so deposited did not arise out of contract, and therefore assumpsit would not lie to recover the same.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 27; Dec. Dig. § 20.*]</p>

Action by J. N. Chase and another against Fannie D. Erhardt, brought in the Rutland County Court of Vermont, and removed :tq the federal court on petition of defendant. Plaintiff moves that the case be remanded to the state court.

<p>Action by the Carson Lumber Company, a corporation, against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for defendant.</p>

In the matter of the Pittsburg Lead & Zinc Company, Consolidated, a corporation, bankrupt. Ruling and order was made by the Referee, overruling a motion and petition of H. S. Rosenbaum and another to expunge the claim of F. R. Dutton, and petitioners appeal and petition for review.

In the matter of the J. S. Appel Suit & Cloak Company, Bankrupt. 'Referee denied the petitions of the Fabian Manufacturing Company, S. J. Jackson, doing business under the style of the S. J. Jackson Manufacturing Company, and the Lamson Consolidated Store Service Company.

In Admiralty. Suit by Joseph McCaldin, managing owner of the steamship Cassell, against a cargo of lumber; Philadelphia & Gulf Steamship Company, claimant. Suit by said McCaldin against the Philadelphia & Gulf Steamship Company in personam. Decree for libelant.

<p>Counties (§ 167*) — Ceetiitoate or Indebtedness — "Negotiability.”</p> <p>Under the Negotiable Instrument Act of Iowa (Acts 1902, c. 130, § 2; Code Supp. Iowa 1907, § 3060a2), which provides that the sum payable by an instrument shall be a sum certain within the meaning of the act, “although it is to be paid * * * with exchange, whether at a fixed rate or at the current rate,” an obligation of a county, negotiable In form and Issued, under a statute permitting it to be made negotiable, is not nonnegotiable because it is made payable “in New York or Chicago exchange.”</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 249; Dec. Dig. § 167.*]</p>

<p>In the matter of the Dancy Hardware & Furniture Company, Bankrupt. On petition of the Stoughton Wagon Company to reclaim certain property.</p>

<p>Trade-Marks and Trade-Names (§ 84*) — Validitt op Trade-Marks — Nonresident Aliens — Unfair Competition.</p> <p>Complainants, who were all citizens and residents oí Italy, as partners, established a cigar factory in the United States, adopting a label for their boxes and also a trade-mark, which they registered under Act Feb. 20, 1905, c. 592, §§ 1, 2, 33 ¡Stat. 724 (U. S. Comp. St. Supp. 1911, p. 1459). The label was printed almost entirely in Italian, and did not show where the cigars were made; but a cut of a building thereon showed a sign in English giving the firm name of complainants, with the words “Italian Cigar Manufacturers.” Held, that complainants were not entitled to the protection of a court of equity against infringement of their trade-mark or unfair competition by simulation of their label by a citizen of the United States, first, because, the manufacture of tobacco being a government monopoly in Italy, neither complainants nor an American citizen could secure a similar trade-mark in that country, which was essential to a valid registration of their trade-mark under the statute; second, because their label was calculated to deceive purchasers into the belief that their cigars were made in Italy; third, because upon the building shown in the cut on the label there were two Italian flags, which, under section 5 (b) of the statute would render it ineligible to registration as a trade-mark, and, as evidenced by such provision, contrary to the public policy of the United States.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 93, 97; Dec. Dig. § 84.*</p> <p>Unfair competition in use of trade-marks and trade-names, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>1. Carriers (§ 4*) — [Distinction Between Common and Private Cabeieb.</p> <p>A “common carrier” is one who openly professes to carry for hire the-goods of all who choose to employ him, and whose duty it Is to carry for all who comply with the terms as to freight, etc.; while a “private carrier” is one who, without being engaged in the business generally, undertakes to carry goods for hire in a particular case.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1; Dec. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1313-1319; vol. 8, p. 7607.</p> <p>Who are common carriers of goods, see note to Wade v. Dutcher & Moore Cypress Dumber Co., 20 C. C. A. 521.]</p> <p>2. Shipping (§ 120*) — Private Carrier — Liability foe Injury to Cargo-Act op God.</p> <p>Claimant undertook as a private carrier to carry for libelant on his schooner a quantity of corn, and hay and straw in bales, to be delivered at various life-saving stations on the coast of North Carolina. The time was winter, and libelant understood that the hay was to be carried on the deck and covered with canvas. Claimant signed receipts or bills of lading on printed forms containing conditions which, inter alia, exempted him from liability for loss or damage caused by act of God. While in the sound the schooner encountered a heavy snowstorm, with wind which blew the snow under the canvas, and although the canvas was kept down as well as possible, and the snow brushed off after the storm, the hay was damaged. Bela, that the damage was due to act of God, and not to any negligence of claimant which rendered him liable under his contract.</p> <p>[Ed. Note. — For other cases, see Shipping, Gent. Dig. §§ 225, 226, 440-448, 466; Dec. Dig. § 120.*]</p>

<p>1. Bankruptcy (§ 210*) — Jurisdiction or Bankruptcy Court — Adverse Claims to Property.</p> <p>A court of bankruptcy has ancillary and exclusive jurisdiction to hear and determine all adverse claims to property in the possession of a trustee in bankruptcy as a part of the assets of the estate which he is administering, but not to determine conflicting claims to a water right.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 321-323; Dec. Dig. | 210.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. O. A. 313.J</p> <p>2. Bankruptcy (§ 212*) — Petition by Adverse Claimant — Land Taken by Bankrupt por a Public Use — Power oi- Court to Award Damages Instead op Property.</p> <p>Under the statutes of Montana, by which property taken for mining and milling ores is l'or a public use, and may be condemned by an individual or corporation for such use, where a bankrupt mining company had built an electric light and power plant for use in its business on the land of another, and the plant has come into possession of its trustee, on the filing of a petition by the owner of the land in the bankruptcy court to recover the land and the plant thereon, the trustee may defend on the ground that the taking was for a public use, and the court may permit him to retain the property for the estate, and may fix the compensation to be paid petitioner for the land.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 236; Dec. Dig. § 212.*] __</p> <p>3. Eminent Domain (§ 133*) — -Taking of Property Without Condemnation —Pule op Damages.</p> <p>Where property is taken for a public use without condemnation and the payment of compensation, hut in good faith and in reliance on negotiations or condemnation proceedings then pending, the rule of damages is the same as in cases of condemnation before taking, and the improvements made thereon áre not to he taken into consideration, and especially is such the rule where the owner of the land appeals to equity for relief.</p> <p>[Ed. Note. — For other- cases, see Eminent Domain, Cent. Dig. §§ 358-361% ; Dee. Dig. § 133.*]</p>

<p>INTERNAR REVENUE (§ 20*)-IVAR REVENUE ACT — LEGACY TAXES — TiTEN.</p> <p>Tlie legacy tax Imposed by the Revenue Act -Tune 18, 1898, c. 448, § 29, 80 Slat. 464 (TI S. Comp. St. 1901, p. 2307), on “legacies or distributive shares arising from personal property,” construing said section in connection with section 30, providing for the collection of such tax, is not a lien upon the real estate of the decedent.</p> <p>FEd. Note. — For other cases, see Internal Revenue, Cent. Dig. § 74; Dec. Dig. § 26.*</p> <p>Internal revenue tax ou legacies, inheritances, and transfers, see note to Ward v. Sage, 108 O. C. A. 417.1</p>

<p>IjriEItAI'. v PROPERTY (§ 6*) — It IGIIT TO CONTROL - USE-REPRODUCTION OF Sketch in Form of Doll.</p> <p>An agreement by the artist who produced the sketches of “The Newlyweds,” by which he licensed complainants to “use an exact reproduction of Napoleon, the Newlyweds’ baby, in the shape of a doll,” conferred no exclusive right, in the absence of any copyright covering such reproduction.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 5; Doe. Dig. § 6.*</p> <p>Rights of authors to control of publication, disposition, or use of their productions independent of statutory copyright, see note to Bobbs-Merrill Co. v. Straus, 97 O. O. A. 620.1</p>

<p>At Law. Action by Ellsworth C. Irvine, receiver, against Julius H. Blackburn. On motion by defendant for judgment notwithstanding the verdict.</p>

In Equity. Suit by J. D. Benner as trustee of the Wynkoop-Vaughan Company, bankrupt, against the Blumauer-Erank Drug Company. On exceptions by defendant to report of special master. Exceptions sustained, and decree for defendant. This is a suit brought by the trustee in bankruptcy to set aside an alleged preference, within the four-months period, consisting of the payment of 8900 to the defendant, Blumauer-Erank Drug Company.

In the matter of J. G. Brown and others, individually and as partners under the name of the Globe Laundry, bankrupts. On petition of trustee for review of order of referee. Petition in involuntary bankruptcy against J. G. Brown and others, individually and as partners engaged in business under the name of the Globe Laundry. A claim of the American Paper Box Company, by note signed by Brown and another partner, was filed and allowed against the individual estate of Brown.

In Equity. Suit by the Ames Realty Company against the Big Indian Mining Company and others. In the matter of administrative orders relating to the use of waters after final decree adjudicating priorities therein. Prior orders vacated for want of jurisdiction. ‘

<p>1, Lis Pendens (§ 25*) — Bab of Judgment — Persons in Privity.</p> <p>Whore, pending a suit for unfair competition, another purchased and continued the business of the defendant, he became from that time in effect the defendant, and is bound by and entitled to the advantages of the decree; and where the court refused the complainant an accounting, he cannot be required to account in a subsequent suit against himself for any acts of his prior to the decree.</p> <p>[Ed. Note. — For other cases, see Lis Pendens, Cent. Dig. §§ 47-57; Dec. Dig. § 25.*]</p> <p>2. Trade-Marks and Trade-Names (§ 98*) — Unfair Competition — Accounting for Promts.</p> <p>Where unfair competition is established, an accounting should be ordered, unless it is made clearly and certainly to appear that neither upon the existing record nor upon any record which complainant can make before the master could there be any substantial recovery.</p> <p>Hid. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]</p> <p>S. Trade-Marks and Trade-Names (§ 58*) — Infringement—Nature of Injury.</p> <p>The entire substantive law of trade-marks, excepting statutory provisions and their construction, is a branch of the broader law of unfair competition; the ultímale offense in infringement suits being that defendant lias passed off his goods as and for those of complainant.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 61; Dec. Dig. § 53.*]</p> <p>4. Trade-Marks and Trade-Names (§§ 11, 13*) — Unfair Competition — Expired Patent or Copyright — Subsequent Use of Name.</p> <p>On the expiration of a patent or copyright, the situation arising with respect to the use by others of the name of the patented article or copyrighted book cannot be differentiated from that arising with respect to the use of any other descriptive word. While any subsequent maker of the article or publisher of the book has the right to use the name, because it has come to be a word of apt description, if by reason of its long and exclusive use by the original maker or publisher it has come to be indicative of his product, and he continues its use, he is entitled to protection against unfair competition in such use, and the right of another to use it is qualified by the requirement that he must accompany it with an explanation which will unmistakably inform the public that the article or hook is of his production.</p> <p>[Ed. Note. — For .other cases, see Trade-Marks and Trade-Names, Gent Dig. §§ 15, 16; Dec. Dig. §§ 11, 13.*]</p> <p>5. Trade-Marks and Trade-Names (§§ 66, 78, 98*) — Unfair Competition-Damages and Profits Recoverable.</p> <p>The right to protection in the exclusive use of a trade-mark or against unfair competition, unlike that to protection from infringement of a patent, is incidental only to an existing business, and there can be no damage in connection with the violation of such right, except as there is injury to the business and good will through loss of sales or damage to the reputation of the goods. Hence complainant in a suit for unfair competition can only recover profits on the ground of such loss of sales; but it may be presumed that the simulation of complainant’s goods by defendant was one of the canses which induced his sales and prevented sales by complainant, and where it is impossible to determine whether that or some other cause induced a sale defendant may be required to account for the profit made.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 88, 112; Dec. Dig. §§ 66, 78, 98*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer y. Muller, 20 O. O. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

Suit in equity by Samuel W. Rushmore against the Badger Brass Manufacturing Company. Decree for complainant, and defendant appeals. Appeal from a decree holding the defendant guilty of unfair competition in making motor lamps in imitation of similar lamps designed by the complainant and granting an injunction and an accounting.

In the matter of Thomas A. Ennis and Charles E. Stoppani, bankrupts. On appeal by Frederick D. Sherwood from an order denying his petition to reclaim certain stocks. This cause comes here upon appeal from an order of the District Court, Southern District of New York, denying the petition of the appellant for an order directing the trustee in bankruptcy to turn over certain certificates of stock now in the possession of the trustee. The petition was filed June, 1911.

Suit in' admiralty for collision by John H. Butler as owner of the barge Jack Butler, against the steamtug Aurora, Lehigh Valley Transportation Company, claimant, and the steamtug Coleraine, Thomas Tracy, claimant. Decree against both tugs, and the claimant of the Aurora appeals.

Suit in equity by the National Electric Signaling Company against the United Wireless Telegraph Company and others. Decree for complainant, and defendants appeal. On petition by appellee for prohibition of sale.

' Suit in equity by the National Electric Signaling Company against the United Wireless Telegraph Company, Selden Bacon, receiver, and others. Decree for complainant, and defendants appeal. Reversed.

<p>Appeal from the District Court of the United States for the'Southern District of New York.</p> <p>Suit in equity by the Parsons Non-Skid Company, Limited, against the Atlas Chain Company. Defendant appeals from an order granting a preliminary injunction.</p>

<p>Patents (§ 328*) — Invention—Diamond Polishing Dop.</p> <p>The Loesser and Loesser patent, No. 573,072, for a dop to hold a diamond, in position for polishing, is void for lack of invention; also, as limited by the prior art, held not infringed if conceded invention.</p>

<p>PATENTS (§ 328*) — iNVEVrrON-PROCESS OF DIVIDING DIAMONDS.</p> <p>The Wood patent. No. 839,356. for a process of dividing diamonds, is void for lack of patentable invention.</p>

<p>1. Patents (§ 202*) — Assignment—Covenants—Validity—Disclosure of Fu-tuke Inventions.</p> <p>A covenant by the assignor of a patent covering stencil paper to disclose all future inventions relating to stencil paper and processes or methods for- preparing, reducing, and using same, construed as covering suck processes as bear some relation to the patents or processes already discovered, is valid.</p> <p>[Ed. Note. — For .other cases, see Patents, Cent. Dig. §§ 281-289; Dec. Dig. § 202.*]</p> <p>2. Equity (§ 223*) — Bill—Demurrer.</p> <p>A bill containing a general prayer for relief under defendant’s covenant with complainant to disclose future inventions is good as against demurrer if the facts show that complainant is entitled to some relief, and the question whether the relief asked against defendant is so broad as to affect a third party cannot be raised by demurrer.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 502; Dee. Dig. § 223.*]</p>

<p>In the matter of the National Boat & Engine Company, bankrupt. On petition by Carl G. Fisher to reclaim property.</p>

<p>In Equity. Suit by Charles Deitsch and Edward J. Deitsch, trading under the firm name of Deitsch Bros., against George R. Gibson. On final hearing. Decree for defendant.</p>

In Equity. Suit by the George W. Signor Tie Company against the Monett & Southwestern Construction Company and others.

In Equity. Suit by Miriam Drennen against Erank A. Heard and R. E. Clements, as executors of the last will of W. L. Tillman, deceased. On exceptions to master’s report. The bill was filed January 10, 1910, by Miriam (Minnie) Drennen, a citizen of the state of Arkansas, against Frank A. Heard and R. E. Clements, as executors of the last will of W. E. Tillman, who 'died June 3. 1906. The following findings are taken from the report of the master: Conclusions on Demurrers.

<p>Removal or Causes (§ 103*) — Procedure—Notice or Application.</p> <p>The provision of the federal Judicial Code (Act March 3, 1911, c. 231, § 29, 36 Stat. 1095 [Ü. S. Comp. St. Supp. 1911, p. 142]) that in proceedings instituted in a state court for the removal of a cause “written notice of said petition and bond for removal.'shall be given the adverse party or parties prior to filing the same,” while not jurisdictional in the strict sense, nor intended to change the established procedure by vesting in the state court the power to pass on the right of removal if the papers are formally sufficient, is nevertheless one of substance, and, if not complied with and objection is duly made, the federal court cannot ignore it and retain jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 221; ' Dec. Dig. § 103.*]</p>

<p>1.Statutes (§ 113*) — Subjects and Titles — Statute Authorizing Co-op-•ekative Associations.</p> <p>Act Pa. June 7, 1887 (P. L. 365), entitled “An act to encourage and authorize the formation of co-operative associations, productive and distributive, by farmers, mechanics, laborers, or other persons,” sufficiently expresses the purpose and subject-matter of the act in such title, which is sufficient to put any one reading it on inquiry as to the provisions contained therein with respect to the formation, government, and management of the associations authorized.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 141-144; Dec. Dig. § 113.*]</p> <p>2. Constitutional Law (§ 205*) — Corporations (§ 6*) — Special Privileges —Acts Authorizing Co-operative Associations.</p> <p>A statute authorizing the formation of co-operative associations, productive and distributive, by “farmers, mechanics, laborers, or other persons,” is not invalid as conferring special privileges or immunities because of a provision therein that “no credit shall either be given or taken” by such associations, and that any credit given it in violation of such provision shall “cause a forfeiture of any credit thus illegally given.”</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 591-624; Dec. Dig. § 205 ;* Corporations,' Cent. Dig. §§ 30-34; Dec. Dig. § 6.*]</p> <p>3. Constitutional Law (§ 89*) — Corporations (§ 6*) — Due Process op Law —Deprivation op Liberty to Contract.</p> <p>A statute authorizing the formation of a particular kind of corporation for specific purposes is not unconstitutional, as interfering with the right of contract, because of a provision that such corporations shall neither give nor receive credit.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. § 89;* Corporations, Cent. Dig. §§ 30-34; Dec. Dig. § 6.*]</p> <p>4. Bankruptcy (§ 76*) — Involuntary Proceedings — Petitioning Creditors.</p> <p>Persons - who extended credit to a corporation, in violation of the express provisions of the statute under which it was organized that it should neither give nor receive credit, have no claims which could be proved in bankruptcy against it, and cannot maintain a petition to have it adjudged an involuntary bankrupt.</p> <p>[E<1. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 50, 56, 97,' 99, 100; Dec, Dig. § 76.*]</p>

<p>In Equity. Suit by the Union Oil Company against the City of Portland. On final hearing. Decree for defendant.</p>

<p>At Raw. Action by Charles E. Hamilton, as receiver, against Benno Eevison, Jr. On motion by plaintiff for directed verdict.</p>

<p>Master and Servant (§ 92*) — Master’s Ltabimty tor Injury to Servant— Medicar Treatment of Injured Employ!:.</p> <p>An employer, who from motives of charity had an injured employé taken to a public hospital for treatment, cannot be held liable for the negligence of the physician or surgeon who treated him, and who is not shown to have been selected by the employer.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § IR}; Dec. Dig. § 92.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Wyoming.</p> <p>Suit in equity by the United States against Samuel Brandt, William II. Bonsell, and Sarah R. Henry. Decree for complainant, and certain defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal akd Error (§ 323*) — Necessary Parties — Interest.</p> <p>All parties to joint judgments and decrees alike interested in their reversal must join in an appeal or writ of error, or be detached from the right to review them by some proper proceedings, or by their renun- . eiation.</p> <p>But. when the interest of a defendant is separate from that of other defendants he may appeal or sue out a writ of error without them.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1798-1805; Dec. Dig. § 323.*]</p> <p>2. Appeal and Error (§ 323*) — Dedtors in Affirmed Judgment for Attorney’s Bond — Sureties—Joinder Without Notice — Necessary Parties to Appear op Each Other.</p> <p>The interest of the original debtors in a judgment which affirms a judgment below against them and, without suit on their Supersedeas bond, joins the sureties on that bond with them in the affirming judgment without legislative authority so to do, is so separate and different from the interest of the sureties in that affirming judgment that the latter are not necessary parties to the writ of error to review it.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1798-1805; Dec. Dig. § 323.*]</p> <p>3. Principal and Agent (§§ 99, 103*) — Apparent Authority — Sale of Machinery — -Promise to Operate.</p> <p>A principal is as conclusively bound to innocent third parties by the acts of his agent in the exercise of the apparent, authority within the scope of his agency with which his master clothes the agent as he is by the actual authority he confers upon him.</p> <p>B., the agent of A. to sell a cotton gin 'plant and appurtenant machinery, agreed with the purchaser, in order to make the sale, to set it up and put it in running order.</p> <p>Held, upon a consideration of the evidence, that there was substantial testimony for the consideration of the jury of the apparent authority of the agent to make the promise and of the fact that he made it.</p> <p>[Ed. Note. — Eor other eases, see Principal and Agent, Cent. Dig. §§ 25A-2C1, 278-293, 353-359, 367; Dec. Dig. §§ 99, 103.*]</p> <p>4. Damages (§ 23*) — Breach of Contract — ’Remoteness.</p> <p>In the absence of proof aliunde of knowledge by the defaulting party at the time the contract is made of special circumstances which make damages other than those that are the natural and probable effect of the breach likely to flow, such damages only as are implied by the contract itself, such as would naturally flow from its breach in the usual course of things, such as would reasonably be anticipated by the parties to such contracts in the great multitude of such cases, and such damages only, may be recovered.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 58-62; Dee. Dig. § 23.*]</p>

Suit in equity by Frank R. Williams against John Molther and Robert Chestnut, as local inspectors of steam vessels. Decree for defendants, and complainant appeals.

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York. In the matter of Henry W. Fishcl andi another, bankrupts. On petition by the National Discount Company to review, and on appeal by the company from an order of the District Court modifying an order allowing a claim of said petitioner.

In 'Error to the Circuit Court of the United States for the Southern District of New York. Actions at law by Kline Bros. & Company against the Royal Insurance Company, Limited, of Liverpool, England, and same against the London & Lancashire Lire” Insurance Company. Judgments for plaintiff, and defendants bring error.

Suit in admiralty by Thomas Monk, Jr., as owner of the coal boat George T. Monk, against the Cornell Steamboat Company. Decree for libelant (175 Fed. 271), and respondent appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Julius Marqusee against the Hartford Eire Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings against Martin J. Condon. On petition of Martin J. Condon, Jr., to revise an order denying his application for a delivery of certain stock in the possession of a receiver as the property of the alleged bankrupt.

Suit in admiralty for collision by George W. Elzey as master of the schooner George W. Truitt, and the Atlantic Mutual Insurance Company, petitioners, against the steamship Texas, the Scandinavian-American Dine, claimant, and' the tug Maria Hoffman, Wilbur C. Fisk, claimant, and cross-libel by the claimant of the steamship against the other vessels. Decree against the tug Hoffman alone, and libelant and cross-libelant both appeal.

<p>Petition to Revise Order of District Court of the United' States for the Eastern District of Missouri.</p> <p>In the matter of one Abell, bankrupt. Petition by Nat M. Lacy,trustee, to revise ail order of the District Court.</p>

<p>1. PaMXIS (§ 328*)-INVENTION-FlEEPEOOV WINDOW.</p> <p>Tile Yoigtmann patent, No. 600,186, for a fireproof window, is void for lack of patentable invention, in view of the prior art.</p> <p>2. Costs (§ 68*) — Half Costs — Grounds.</p> <p>Where the prevailing party flagrantly violated the rules of evidence by requiring the examiner to copy into the record evidence which was ob- ' viously incompetent and in other ways, he will not be allowed in full the costs to which he would otherwise be entitled.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 287-289; Dec. ' Dig. § 68.*]</p>

In Equity. Suit by the Perforated Plate Company and the New England Enameling Company, Incorporated, against James F. Connolly, doing business as J. F. Connolly & Co., and the J. E. Connolly ■Manufacturing Company. On final hearing. Decree for complainants.

<p>Patents (§ 328*) — Validity and Infringement — Annealing Furnace.</p> <p>The Swindell patent, No. 624,401, for an annealing furnace, in which gas is used as the fuel, was not anticipated, and discloses patentable invention; also held infringed.</p>

<p>Patents <§§ 262, 280*) — Judgment (§ 592*) — Suit for Infringement — Accounting — Prior Judgment as Bar,</p> <p>The owner of a patent may bring either an action at law to recover damages for its infringement or a suit in equity for an injunction, with incidentally a right to an accounting for damages and profits; but he is not entitled to split up his cause of action, and a judgment for damages in an action at law, while conclusive on the parties on the questions of validity and infringement, is a bar to' the right to an accounting in a subsequent suit in equity against the same defendant for other sales prior to the commencement of the law action.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 403, 439; Dee. Dig. §§ 262, 280;* Judgment, Gent. Dig. § 1107; Dec. Dig. § 592.*</p> <p>Accounting by infringer of patent for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 O. C. A. 8..I</p>

<p>In Equity. Suit by the Edison Manufacturing Company against the Banks Electric & Manufacturing Company. On final hearing. Decree for complainant.</p>

At Taw. Action by the Cheatham Electric Switching Device against the American Automatic Switch Company. On motion by plaintiff for an order requiring defendant to produce its books before trial.

<p>In the matter of the Nevada-Utah Mines & Smelters Corporation, bankrupt. On report of a sale.</p>

<p>In Equity. Suit by the Kansas City Gas Company against the City of Kansas City, Mo., Darius A. Brown, Mayor, John G. Park, City Counselor, Jay Lee, Assistant City Counselor, Jacob Harzfeld, E. E-Parker, and C. A. Sumner, Public Utility Commissioners of said Kansas City, and Clyde Taylor, counsel and attorney for said commissioners. On demurrer to bill and motion for preliminary injunction.</p> <p>By ordinance passed September 27, 1906, and approved September 27, 1906", the city of Kansas City authorized Hugh J. McGowan, Charles E. Small, and Randal Morgan, the survivors or survivor of them, and their or his assigns, to lay, acquire, and maintain pipes in Kansas City, for the purpose of supplying natural gas to said city and its inhabitants. This ordinance was duly accepted in writing, as therein required, and thereupon became a contract between the city and said grantees. This contract was for a full period of 30 years, and provided that the grantees might convey all their rights and privileges therein granted to a corporation, its successors or assigns, to be organized by them under the laws of the state of Missouri for the purpose of acquiring, building, constructing, and operating a gas plant authorized under that ordinance. The complainant is such corporation, and has succeeded to all the rights conferred upon the original grantees.</p> <p>The ordinance, by section 5 thereof, further provided that “said grantees shall at all times keep and maintain such pressure of gas in all places where the same may be furnished to Kansas Gity and its inhabitants as may be required by ordinance; provided the pressure so required shall be reasonable an'd practicable.” This provision was contained in two prior ordinances known as “model ordinances,” passed by the common council of Kansas City, and duly approved, which were intended to operate as a guide in the preparation of any ordinance-contract thereafter to be entered into authorizing the actual' supplying of natural gas to the city.</p> <p>Section 30 provided that: “For the purpose of enforcing the provisions of this ordinance and securing the correct measurement of gas furnished under the same and the proper pressure of said gas to produce the best obtainable results with least consumption of gas, with due regard to the reasonableness and practicability of such pressure, and to prevent the waste thereof and to protect the city in its corporate rights, and to protect the consumers in their rights, the city shall have the right to provide, by ordinance, for the appointment of one or more inspectors or measurers of gas, and to prescribe their duties by ordinance, and to pass such ordinances as may be necessary to enforce the provisions of this ordinance.”</p> <p>Section 13 provided that: “The said grantees shall be entitled to charge and collect from consumers of such gas, during the period of five years from and after natural gas is first furnished hereunder at the rate of not to exceed twenty-five cents per thousand cubic feet, and during the period of five years next thereafter at the rate of not to exceed twenty-seven cents per thousand cubic feet, and thereafter during the period of the aforesaid grant at the rate of not exceeding thirty cents per thousand cubic feet.” And further that: “Under the permission and authority hereby granted, the grantees shall furnish natural gas for illuminating, heating and mechanical purposes, which shall at all times be of the same character and quality as when it comes from the earth; and it shall not be mixed with air or otherwise adulterated.”</p> <p>Section 14 provided that: “Should the supply of natural gas, obtainable by grantees reasonably accessible, he, at any time hereafter during the life of this ordinance, inadequate to warrant them in continuing to supply natural gas under the terms of this ordinance, or should the common council of Kansas City so find at any, time (and in the event of a disagreement as to the facts in this respect either party or a gas consumer may have recourse to the courts to establish the facts), they shall not be longer required to do so, but shall manufacture and furnish manufactured gas to said city and its inhabitants through said mains and pipes under the provisions of this ordinance as far as applicable and subject to all the terms and provisions contained In the ordinance number 6,658 granted to Milton J. Payne and others, passed August 24, 1805, and the ordinance number 6,125 granted to Robert M. Snyder and others, passed January 10, 1895, and ordinance number 8,083, entitled: ‘An ordinance granting the consent of Kansas City to the consolidation of the Missouri Gas Company and the Kansas City Gas Company/ until the expiration of said ordinance and no longer, except as to price which shall bo settled by arbitration (as thereafter provided). The grantees shall not discontinue furnishing natural gas without serving at least six (6) months' written notice upon the mayor of Kansas City of their intention so to do.”</p> <p>Section 37 provided that: “If the said grantees shall do or cause to be done any act or thing by this ordinance prohibited, or shall fail, refuse or neglect to do any act by this ordinance required, they shall forfeit all rights and privileges granted by this ordinance, and this franchise and all rights thereunder granted shall ipso facto cease, terminate and become null and void, provided such failure to comply with the conditions of this ordinance shall continue unroctifiod for sixty (60) days after written notice thereof from the board of public works of said city, or the common council of said city.”</p> <p>By section 20 it was provided that the grantees might acquire the ownership or use or control, by purchase, lease, agreement, or otherwise, of the pipes and property of the Kansas City Missouri Gas Company aforesaid, subject to the right of the city to purchase the same under the special provisions of the several ordinances under which said company was then operating, as set out above. Such pipes and property were subsequently acquired under this provision. By said section 20 it was further provided that: “Grantees covenant that their contract for gas supply is with the Kaw Gas Company and the Kansas City Pipe Line Company (corporations), that under the terms thereof, after two years from the time natural gas is first furnished to Kansas City thereunder, the division of the gross income received for said gas between the distributing company and the supply company shall he in the proportion of thirty-seven and one-half cents out of each dollar to the former, and sixty-two and one-half cents to the latter; and covenant for themselves, their successors and assigns, that none of the terms of that contract agreement shall be changed without consent of Kansas City expressed by ordinance; and grantees agree for themselves, their successors and assigns, that if Kansas City shall acquire said plant and property they will on demand transfer free of cost to Kansas City all their rights under said contract; and grantees further agree to procure from said two corporations and file with the city clerk within ninety days from the time this ordinance becomes a law, a written agreement in form to be approved by the city counselor, agreeing that they (said two corporations) will, if Kansas City shall acquire said plant as aforesaid, upon demand, furnish and continue to furnish during the remaining period of this franchise gas to Kansas City on the same tdrrn as they have agreed to furnish it to the grantees, their successors and assigns.” Kansas City further agreed not to exercise its right to purchase for the period of .10 years, unless grantees shall before that time have “ceased to furnish natural gas as required by this ordinance.”</p> <p>The written agreement referred to, in form approved by the city counselor, was duly filed. The city counselor also approved the form of contract between the grantees and the supplying corporations. All the rights of the supplying corporations have been acquired and are now owned and controlled by the Kansas Natural Gas Company, a foreign corporation. This supply contract between the supplying companies of the first part and the grantees, now the Kansas City Gas Company, of the second part, in so far as it bears upon this controversy, provides as follows: “The party of the first part hereby agrees that it will during the period of such ordinance, or any extension or renewal thereof, or of any ordinance which may be obtained, either in the interest of the party of the second part, or of its property, supply and deliver through its said pipe line or lines, to said party of the second part, or any successor in the ownership of the property for the distribution of gas for Kansas City, Missouri, at a pressure of twenty (20) pounds at the point of delivery above mentioned, natural gas in such amount as will at all times fully supply the demand for all purposes of consumption, as provided in this contract, for the consideration hereinafter mentioned. However, as the production of gas from the wells and the conveying of it from long distances is subject to accidents and interruptions and failures, the party of the first part does not under this contract undertake to furnish the party of the second part with an uninterrupted supply of gas for the period named herein, but only to furnish such supply for such a period of time as the wells and pipe lines of the party of the first part and such other resources as the party of the first part shall be able to command are capable of supplying. And it is expressly understood and agreed by the party of the second part that the party of the first part shall not be liable for any loss, damage or injury that may result either directly or indirectly from such shortages or interruptions, but said party of the first agrees to use diligence to supply the party of the second part with a constant and sufficient quantity of merchantable gas for all consumers. So long as the party of the first part is able to supply the same, the party of the second part agrees to buy from the party of the first part all the gas it. may need to fully supply the demand for domestic consumption in the said city and to pay to the party of the first part for the natural gas which it shall receive from said party of the-first part for all purposes during the first two years a sum equal to sixty per cent, of its gross receipts from the sale of such natural gas in said city of Kansas City, Missouri, and thereafter a sum equal to sixty-two and one-half per cent, of such gross receipts.”</p> <p>This was the form of contract submitted to and approved by the then city-counselor of Kansas City just prior to and in view of the adoption of the franchise ordinance in question.</p> <p>Section 21 of the ordinance provides that: “Nothing in this ordinance shall be construed as granting to said grantees any exclusive franchise, rights or privileges.”</p> <p>In section 22 it is provided that: “It being the purpose to safeguard and make sure that there may always be competition in the matter of supplying gas and that gas will be supplied within the city, the grantees and assigns agree that any action on their part impairing or limiting or preventing such competition, or any substantial and continued failure for a period of sixty days to furnish gas in compliance with the provisions of this ordinance, shall constitute a violation of this ordinance, and the city shall have the right to repeal this ordinance by ordinance, and shall have the right to purchase the plant under the same terms and provisions stated in sections 18 and 14 of ordinance, of Kansas City, No. 6,658, passed August 24, 1895, commonly known as the ordinance of the Kansas City, Missouri, Gas Company, but the statement'of these particular remedies shall not be construed as taking away from the city any of its rights in law or equity. * * * Kansas City retains to itself the right to itself own and operate a plant or plants for supplying the city, or the inhabitants thereof, with natural or artificial gas (if it shall at any time see fit so to do) for lighting and heating and manufacturing purposes, and to own and operate a plant or plants for supplying the city, or the inhabitants thereof, with any other sort of light.”</p> <p>Under this franchise ordinance the grantees and their assignee, the complainant company, have been furnishing natural gas to Kansas City, and its inhabitants, since the late fall of 1906 and the winter of 1907. The service, at first more restricted, has been continuously increased to meet the demand of increased consumption and the varying supply of the fields. At various periods the supply has proved unequal to the demand of consumption in unusually cold weather, ranging somewhere about what is usually denominated zero weather. It was originally contemplated and understood by both parties that the supply should be taken from Kansas fields-as nearest and most accessible to Kansas City. Prior to and also, perhaps, contemporaneously with the passage of this ordinance, the supply company had made contracts with other towns and cities in Kansas and Missouri for the supply of natural gas; and whether from the great increase of consumption, or from natural cansos, or both, the supply of natural gas in the Kansas fields and the accompanying pressure became greatly diminished, and in some pools practically exhausted, so that it became necessary to extend the mains of the supply company to other fields, notably in the state of Oklahoma. This was attended, with great expenditure and with many legal difficulties, particularly in the case of procuring transportation of gas from the state of Oklahoma, trat final appeals to the Circuit Court of Appeals and the Supreme Court of the United States resulted in throwing open these fields of supply to the Kansas City consumers. With all such diligence and effort on the part of the complainant and its supply company, it was found, more particularly during the winter of 1910-11 and 1911-12, that the supply was unequal to the demand during periods of unusually low temperature as stated. This led to negotiations between the city authorities and the gas company with a, view to bettering conditions and providing for future supplies.</p> <p>On or about October 24, 1911, the city gas inspector’s department, by di- ■ reetion of the mayor, issued a booklet of Information to the consumers of natural gas setting before them the conditions existing, together with certain recommendations of the Public Utilities Commission. This booklet, among other things, contained the following:</p> <p>“Last year after such investigation as could be made, without the employment of gas experts to visit the fields, the Commission recommended' to the gas company that storage tanks should be erected in the city, of sufficient capacity to enable the company to carry the demand over the ‘peak’ load, by supplementing the quantity coming direct from the field by the amount stored therein. In response to this recommendation, the company is erecting a tank of 5,000,000 cubic feet capacity for this purpose.</p> <p>“While this will not solve the difficulties, still the danger of suffering from lack of gas will not be as great this winter.</p> <p>“Upon instructions from Mayor Darius A. Brown, the city gas inspector and the gas company officials were instructed to equalize the gas pressure at tiie different distributing stations within the city, so that all parts of thte city would get approximately the same service.</p> <p>“The results from this suggestion were immediately beneficial.</p> <p>“It is the belief of the Commission that except in seasons of prolonged cold weather or in case of an unavoidable breakdown at the pumping stations the service of the gas comxiany will be fairly satisfactory. In either of the above contingencies the facilities of the service will not be adequate. If the report of Prof. Haworth shows gas in sufficient quantity in the field to warrant the expenditures, the Commission will insist that an additional pipe line be laid during the coming summer, which will be ample to take care of the demand in Kansas City for some time.</p> <p>“The accompanying suggestions of the gas inspector, Mr. Kobt. W. Good-now, are commended to the people of Kansas City as being well worth their attention.</p> <p>“We advise that if you use the gas for fuel that you have some coal or wood on hand to fall back upon, should there he some interruption in the service.</p> <p>“Last winter the service was better than in the past; at the same time some interruptions did occur, that seemed almost unavoidable.”</p> <p>November 21, T911, the examining expert, Prof. Haworth of the University of Kansas, and state geologist of that state, made his report upon the condition of the gas fields of Kansas and Oklahoma, and shortly thereafter another expert employed by the city, Mr. B. F. Walker, professor of mechanical engineering in the""University of Kansas, made report upon the pipe lines, works, and facilities for supply and distribution of the complainant company and its supply company. The former reported that under present conditions two more winters, or three at most, is as long as we may expect natural gas to be delivered to Kansas City in sufficient quantity to equal present domestic consumption unless new developments of gas far exceed present indications; that the pipe lines and pumping stations of the company are about as much as the known gas supply would warrant the company in installing, or as there is any need of installing. Prof. Walker found that so far as the supply is concerned the present equipment is sufficient to meet the needs of the territory served during all excepting a very few weeks of the year; that to increase the capacity of the system will only use up the available gas in a shorter'time; that, unless the supply of gas is largely augmented by the discovery of new fields, it is impracticable to attempt to increase the supply of gas consumers, except by cutting down its use in commercial plants. He says: “Speaking now of the feasibility of the extensive, additions to equipment mentioned above on the condition of more gas being available at lowered pressure, with the purpose of increasing the capacity of the system, we have to bear in mind the report of Prof. Haworth to the effect that, unless fields now unknown are discovered, the supply of gas will be exhausted in two or three years at the present rate of consumption. To make the additions mentioned would require fully half of that time, if not more, with an expenditure running into millions of dollars. No sane man would invest his money in such a project.”</p> <p>The substance of the reports of the two experts taken in connection with the other testimony was that the gas supply is rapidly diminishing so that its life is but two or three years at the most, or perhaps from five to seven, provided commercial users be cut off. In a subsequent report to the city council Prof. Haworth said he thought his estimate was too sanguine and should be somewhat reduced. The supply cannot be increased other than by the opening of new fields,, and no new fields are in sight, and there is every reason to believe that they do not exist to any remedial extent. The present equipment is reasonably sufficient to handle the present supply, and the equipment of the complainant company is sufficient to supply the wants of the city when gas is supplied to its mains at contract pressure, which means in sufficient quantity, because the pressure depends almost entirely upon the quantity of gas; that to supply additional gas to the complainant company would require the investment of millions of dollars, and a long period of time for installationthat the quantity of gas to be procured would not justify any sane man in making such investment in view of the results obtainable. In other words, that it would be entirely unreasonable. These reports were accepted by the city, by the gas company, and by the public generally, as reliable and accurate. The instrumentalities of the complainant company are so constructed that when the volume of gas is insufficient the pipes and mains are opened automatically, and all gas obtainable is admitted and distributed; so that the complainant constantly distributed all the gas it could obtain from its supply company. There is no other supply of natural gas obtainable by complainant whether reasonably accessible or otherwise, and in the absence of sufficient volume it has no means appreciably to augment its pressure. Consequently, at no time during the period covered by this controversy has the complainant, in point of fact, been able by the exercise of diligence or by expenditures, reasonable or otherwise, appreciably to increase the volume of gas or the pressure at which it has been delivered. Even the contemplated holder, with a capacity of 5,000,000 cubic feet, if it could have been filled, would not have been able to increase the pressure to five inches during periods of extreme cold. It is'further shown that all practicable storage is affected by packing the gas in the pipes. Holders are not needed when there is gas to fill them, and there is no gas to fill them when they could be used to advantage. Under the provisions of the contract ordinance that the city might, ‘by ordinance, prescribe a pressure that was reasonable and practicable, the common council on January 12, 1909, passed an ordinance that the pressure should not be less than 5 inches water pressure for a period of 24 consecutive hours, nor exceed 13 inches of water pressure for a like period. On the 23d day of May, 1910, this ordinance was amended by striking out the words “for a period of twenty-four consecutive hours”; thereby providing for a constant pressure of not less than 5 nor more than 13 inches. No penalties were provided, and it is in evidence that this was done at the insistence of the gas company that no penalty could be imposed for failure to furnish a pressure of gas that was impossible. This was the condition during the remainder of 1910 and during the year 1911, until some time after the report of the experts in November. In view of, and with full knowledge of, the conditions then existing, the common council on the 14th day of December, 1911, -passed an ordinance, approved December 15, 1911, amending the ordinance of May 23, 1910, aforesaid, by adding a new section which provided that: “Any person, firm or corporation supplying natural gas to this city, or its inhabitants, who shall violate any of the provisions of section 1 hereof, shall be deemed guilty of a violation hereof, and shall, upon conviction thereof, be fined in a sum of not less than one hundred dollars, or not more than five hundred dollars, for every such violation, and for each and every day during the whole or part of which any such person, firm, company or corporation shall fail to comply with the terms hereof, he, it, or they shall be deemed guilty of a separate violation hereof.”</p> <p>Section 1, as has been stated, provided that the complainant should “so control its source of supply and adjust Its mains for the distribution of natural gas that the minimum pressure of said gas at every point in this city, where natural gas is supplied for consumption, shall not be less than five Inches water pressure.” Unusually cold weather prevailed in Kansas City during December and January. The city sought, whether effectively or not, to institute two prosecutions under this amended ordinance, and threatened to bring many others. Upon this state of facts the complainant exhibited its bill to this court seeking relief on the ground that the ordinance was unreasonable, impracticable, and'impossible to be obeyed by the complainant; that it impaired the obligations of its contract with the city, took its property without due process of law, and was therefore void. A temporary restraining order was issued. The defendants appeared and contended in opposition: First, that the ordinance was a valid exercise of the police power of the city, and was intended to protect the health and general welfare of the community ; second, that, the ordinances being valid police regulations, property rights must yield to them; third, that the difficulty of procuring gas does not render the ordinances unconstitutional; fourth, that complainant has an adequate remedy at law, it can present its defenses in the state court or sue for damages, and an injunction will not lie; fifth, that the ordinances do not violate the Constitution. Meantime, before the hearing in this court, the city, on behalf of itself and ail gas consumers, filed In the stale court .its Dili in equity declaring that the gas furnished by complainant by reason of inadequacy and insufficiency of pressure was not of the value of Ihe contract price and praying an accounting. The complainant thereupon contended in this court that this action on the part of the city was in disobedience of the restraining order heretofore issued by this court, and that this court had full jurisdiction of the entire subject-matter involving the pressure in controversy.</p> <p>The hearing upon the temporary injunction was held on the 26th, 27th, and 29th days of January, 1912. The complainant on its part filed numerous affidavits to sustain the contentions, substantially as heretofore recited. The defendants filed many affidavits, none of which sought appreciably to controvert such contentions respecting supply and impossibility of performance. Their affidavits establish that on certain days of unusually low temperature, during the period complained of, the pressure did not reach the minimum prescribed by ordinance. These facts are undisputed. Other affidavits sought to establish the necessity of a five-inch pressure for the uniform and proper distribution of natural gas throughout the distributing syslem for gas as it now exists in Kansas City; that gas furnished at a less pressure than five inches Is worth less than that furnished at five inches or over; that practically- all the apparatus that is used by all persons resorting to the use of natural gas for heating and lighting in Kansas City is so designed ns to operate more satisfactorily and safely at a pressure above the five-inch water pressure; that there is danger from asphyxiation and fires when the pressure fluctuates from a point considerably below five inches to one above and increasing to thirteen inches; that fires have thus resulted, and death by asphyxiation has been narrowly averted; that from five to seven inches is recognized as the reasonable and most effective pressure for the practical use of natural gas. On February 3, 1912, several days after the arguments," defendants, by consent, filed their joint and several demurrer to the bill upon the grounds: First, that said bill does not state any matter of equity entitling plaintiff to the relief prayed for; second, the facts stated are not sufficient to entitle plaintiff to any relief against these defendants; third, the facts stated show that complainant has an adequate remedy at law; fourth, the facts stated show that this is not a controversy arising under the Constitution or laws of the United States.</p>

In Equity. Suit by the Jewel Tea Company against Tee’s Summit, Mo., and others to enjoin the enforcement of a municipal ordinance. On final hearing. Decree for complainant.

<p>Felipe Sandoval was indicted for introduction of liquor into the Indian country, in violation of Act Jan. 30, 1897, c. 109, 29 Stat. 506. Demurrer to indictment sustained.</p>

<p>1. Towns (§ 52*) — Bond Issues — Excess of Debt Limit — Validity.</p> <p>That an issue of bonds by a town in aid of railroad construction exceeds the 5 per cent, debt limit prescribed by Const. Me. art 22, an amendment passed February 9, 1877, does not prevent a court in equity from enforcing liability to the extent that the town could legally borrow; no difficulty of accounting or in applying the proceeds of the bonds appearing.</p> <p>[Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 90-94; Dec. Dig. I 52.*]</p> <p>2. Towns (§ 52*) — Constitutional Debt Limit — Innocent Purchasers.</p> <p>No one is presumed to be ignorant of the invalidity of bonds issued by a city or town in violation of the 5 per cent, debt limit prescribed by Const. Me. art. 22, passed February 9, 1877, and a holder of such bonds cannot recover on the ground that he is an innocent purchaser.</p> <p>[Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 99-94; Dec. Dig. § 52.*]</p> <p>3. Towns <§ 46*) — Debts—Authority to Incur.</p> <p>A town’s right to borrow money depends upon the Constitution and laws of the state.</p> <p>[Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 81-84; Dec. Dig. § 46.*]</p> <p>4. Towns (§ 52*) — Bonds—Validity—Pleading.</p> <p>A bill for equitable relief by a holder of an excessive issue of bonds by a town, so far as the bonds were within the debt limit, is sufficient as against demurrer, though the bonds recite that they were issued at a meeting at which there was an invalid vote, where the bill shows that the bonds were legally voted, except as to the excess above the debt limit, at a previous meeting not recited in the bonds.</p> <p>[Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 90-94; Dee. Dig. $ 52.*]</p>

<p>Proceeding by the United States against the Thomson & Taylor Spice Company.</p>

<p>Tbade-Maeks and' Tbade-Names (§§ 59, TO*) — Infringement—Unfair Competition.</p> <p>Some two years after complainants commenced the manufacture of automobile tires having the name “Imperial” and the words. “Made by the McGraw Tire & Rubber Company, E. Palestine, O.,” moulded thereon, a large number of which were contracted for and purchased by defendants, the latter organized a corporation under the name “Imperial Tire Company,” and began the sale of tires made for them by others with the name “Imperial” and the words, “Made by Griffith Tire & Rubber Company,” or, “Made by the Imperial Tire Company,” moulded thereon in obvious similarity to complainants’ moulding. Held, that the use of the name was an infringement of complainants’ common-law trade-mark, and its use in the name of the corporation constituted unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72, 81; Dec. Dig. §§ 59, 70.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Seheuer v. Muller, 20 O. C. A. 165; Dare v. Harper & Bros., 80 C. C. A. 376.]</p>

<p>Collision (§ 95*) — Steam Vessels — Violation or Rules.</p> <p>A collision to the westward of the main ship channel in New York Bay between the steamship Calvo, passing out to sea, and a ear float on the side of Transfer Tug No. 19, which had just passed out from the channel extending from the Pennsylvania Terminal at Greenville, N. J., held due solely to the fault of the tug in not assenting to the Calvo’s signal of one blast, and either keeping her course and speed, if she was then coming into the ship channel and on a crossing course, or if she had straightened out, and on a meeting course, in not keeping to starboard, as required by the rules, instead of which she answered with two blasts and starboarded, keeping up the west side of the channel, in violation of the narrow channel rule.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*</p> <p>Signals of meeting vessels in collision, see note to The New York, 30 C. C. A. 630.]</p>

<p>In Equity. Suit by the New York Mackintosh Company against Isaac Flam and others. On final hearing. Decree for defendants.</p>

<p>1. Bankruptcy (§ 396*) — Exemptions—Title to Property Claimed.</p> <p>That a bankrupt purchased property claimed as exempt without intending to pay for it affords no ground of objection to the exemption by his trustee, since the purchase rested title in the bankrupt, subject only to the personal right of the seller to reclaim the íu'operty.</p> <p>[Ed. Note.. — For other cases, see Bankruptcy, Cent. Dig. §§ 659-668, ' 670; Dec. Dig. § 396.*]</p> <p>2. Bankruptcy (§ 396*) — Exemption—Property Purchased with Nonexempt Property.</p> <p>A bankrupt's right to hold as exempt personal property specifically exempted from execution by the laws of the state, without qualification, is not affected under the law of Kentucky by the fact that he purchased such property with nonexempt property on the eve of the bankruptcy, and with the intention of claiming the exemption.</p> <p>[Ed. Note.. — Eor other eases, see Bankruptcy, Cent. Dig. §§ 659-668, 670; Dec. Dig. § 396.*]</p>

<p>Aliens (§ 32*) — Chinese Exclusion- — -Pboceedings—Evidence.</p> <p>Evidence considered, and hold insufficient to establish the claim that defendant, admittedly a person of the Chinese race, bom in China, was the son of a father who was born in San Francisco, and for that reason a citizen and entitled to enter and remain in the United States, conceding that such fact, if established, would give Mm that right.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 93-95; Dee. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 5ci8.]</p>

In the matter of T. A. McIntyre & Co. and Thomas A. McIntyre, Jr., bankrupts. On review of order of referee expunging claim of Anna Knox McIntyre against the estate of Thomas A. McIntyre, Jr.

<p>Landlobd and Tenant (§ 109-'*') — Provable Claims — Kent—Re-entry by Landlobd.</p> <p>Where, on the bankruptcy of tenants, their trustee refused to assume the lease, but sold the property on the premises, to be removed, by the end of a month, for which he paid rent, and at the expiration of that time the purchaser by his direction delivered the keys to the authorized agent of the landlords, who accepted the same, and further agreed that the purchaser might leave certain fixtures in the building for a time without rent, such acts constituted a re-entry, which terminated the lease and released the estate from the further payment of rent.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent Dig. §§ 350-305, 368, 369; Dec. Dig. § 109.*]</p>

<p>Iii Admiralty. Suit for collision by the New York, New Haven & Hartford .Railroad Company, owner of Car Float No. 52, against the steam tug Wrestler, the River & Harbor Transportation Company, claimant; and cross-libel against the tug Transfer No. 22, New York, New Haven & Hartford Railroad Company, claimant. Decree for libelant.</p>

In Admiralty. Suit for collision by Henry Gillen, owner of the steam tug Henry Gillen, against the City of New York, owner of the ferryboat Bay Ridge. Decree for libelant for half damages.

<p>Seamen (§ 29*) — Personae Injuries — Liability of Vessel.</p> <p>A seaman cannot recover from the ship, for an injury received through the negligence of the master, beyond the expense ol: his maintenance and cure and his wages to the end of the voyage.</p> <p>[Ed. Note. — Eor other, cases, see Seamen, Cent. Dig. If 186, 188-194; Dec. Dig. § 29.*]</p>

<p>In Admiralty. Suit by the Baltimore & Ohio Railroad Company, owner of the tug Narragansett, against the Transfer No. 16; New York, New Haven & Hartford Railroad Company, claimant. Decree for libelant.</p>

<p>Collision (§ 105*) — Vessels Entering asd Leaving Slips — Negligence of Watchmen. '</p> <p>Libelant’s steamer approached her slip on North River, with the intention of backing in, which maneuver, owing to her length, necessitated her covering a large part of the entrance to the adjoining slip beyond. Respondent’s tug, with a car float on each side, was backing out of the latter slip, and a collision occurred between the steamer and one of the floats, although both vessels did what they could to prevent it after the situation was known. The steamer signaled by a long blast when a quarter of a mile away to give notice of her approach to the two watchmen maintained by libelant on the pier between the two slips, which was covered; but the signal was not heard on the tug, nor was the slip signal given by the latter heard by the steamer. Held, that libelant failed to sustain the burden of proof resting upon it to show fault on the part of the tug or floats, and entitle it to recover, and, further, that its own watchmen were negligent in failing to note the movement of the tug and prevent the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Dee. Dig. § 105.*]</p>

<p>In Admiralty. Suit by O’Brien Bros., owners of the tug O’Brien, against the lighter Loyal, the F. W. Jarvis Company, claimant, and the Apollinaris Company, Limited. Decree against the Jarvis Company.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p> <p>Suit in equity by Royal Bosworth Young and others against United Zinc Companies and others. Decree for defendants, and complainants appeal.</p>

Chinese deportation proceedings by the United States against Guan Lee, Guan Hen Lun, Moy Ah Toy, Chin Kong Poy, Lum Seong, and Jew Sam. From a decree ordering deportation, each of the defendants appeal.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Chinese deportation proceedings by the United States against Toy Dip. From a decree of deportation, defendant appeals.</p>

Suit in equity by the National Surety Company against Otto IT. Arosin and others. Decree for defendants, except defendant W. R. Johnson, and complainant appeals.

<p>In Error to the District Court of the United States for the District of South Dakota.</p> <p>Charles L. Hyde was convicted of using the mails to defraud, and brings error.</p>

The Hall-Baker Grain Company was convicted of misbranding •a car load of mixed wheat and of adulterating it by mixing with inferior wheat, and brings error.

<p>S. Bankruptcy (§ 410*) — Discharge, of Bankrupt — Application—Laches.</p> <p>Conscience, good faith, and reasonable diligence are requisite to call a court of equity into activity in one’s behalf.</p> <p>The debtor was adjudged a bankrupt on January 4, 1906. In June, 1906, she signed an application for her discharge and left it with her attorney. He did not file it until April 26, 1907, when he procured a permissive order of the bankruptcy court on an affidavit which failed to show that he or the bankrupt had been unavoidably prevented from filing it within the year. Between April 26, 1907, and September 12, 1911, neither the bankrupt nor her attorney took any action to bring the application to a hearing. On the latter day they procured an order for a hearing on October 16, 1911, which was met by creditors by a motion to dismiss the application for the discharge for want of prosecution.</p> <p>Sold, the motion should have been granted. The bankrupt failed to exercise that reasonable diligence requisite to call a court of equity into action on her behalf.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. § 694; Dec. Dig. § 410.*]</p>

Action by Mary A. Conant, as administratrix of the estate of Carroll E. Conant, deceased, against the People’s Telephone Company and the Superior Water, Light & Power Company. Judgment for plaintiff, and defendants bring error.

Action by George F. Harding against the Corn Products Manufacturing Company. From an order denying plaintiff’s motion to remand a cause to the state court, awarding costs against'him, and directing that execution issue therefor, he appeals.

Appeals from the District Court of the United States for the District of Kansas. Suits in equity by Warren White, trustee in bankruptcy of C. E. Lockwood, against the Fowler State Bank, of Fowler, Kan., and against the Ridenour-Baker Grocery Company: Decrees for complainant, and defendants appeal.

<p>Appeal from the District Court of the United States for the District of Colorado.</p> <p>In the matter of the Economic Gold Extraction Company, bankrupt. From an order requiring him to pay taxes to Teller County, Colo., Roy C. Hecox, trustee, appeals.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the United States of America against the Atchison, Topeka & Santa'Fé Railway Company. Judgment for plaintiff, and defendant brings error.</p>

, In the matter of the bankruptcy of Samuel Haskell. From an order granting a discharge to the bankrupt, McKibbon, Driscoll & Dorsey and others appeal.

Action by Max Stern, as trustee in bankruptcy of the estate of Dave Naftalin, against Sam Paper and another, copartners under the firm name and style of Fargo Iron & Metal Company. From a decree (183 Fed. 228) for plaintiff, defendants appeal.

<p>1. Indians (§ 18*) — Lands—Death of Indian Before Allotment.</p> <p>AThere an Indian, whose name appeared on the rolls of the Ohippewas residing on the AA^hite Earth reservation in Minnesota, made under Nelson Act Jan. 14, 3889, c. 24, 25 Stat. 642, died, not having received his allotment, there was no right to an allotment in his name, and a trust patent issued for such an allotment on an application made after his death is void.</p> <p>I Ed. Note. — For other eases, see Indians, Cent. Dig. § 49; Dec. Dig. § 18.*]</p> <p>2. Indians (§ 18*) — Lands—Cancellation of Patent — Sun by Untied States.</p> <p>The United States may maintain a suit for the cancellation of a trust patent to an Indian allotment issued without authority of law.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p> <p>3. Indians (§ 13*) — Suit fob Cancellation of Trust Patents — Limitation.</p> <p>Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (U. S. Comp. St. 1901, p. 1521), which limits the time within which the United States may bring suits to annul land patents to six years from the date of issuance, does not apply to so-called trust patents for Indian allotments, under Act Feb. 8, 1887, c. 119, 24 Stat. 388.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p> <p>4. Indians (§ 13*) — Suit foe Cancellation of Trust Patent — Right of United States to Maintain.</p> <p>Act April 23, 1904, c. 1489, 33 Stat. 297, which, authorizes the Secretary of the Interior to correct errors in or cancel Indian trust patents in certain cases at any time during the trust period, does not affect the jurisdiction of the courts to entertain a suit by the United States to cancel such a patent on any well-recognized ground.</p> <p>[Ed. Note. — For other cases, see Indians, Cent Dig. § 30; Dee. Dig. § 13.*]</p>

. Rill by the Commercial Acetylene Company and others against the Fireball Gas Tank & Illuminating Company and others. Decree for complainants, and defendants appeal.

<p>In-Eqüity. Suit by Jos.eph Beifeld against the Dodge Publishirig Company. On motion for preliminary injunction.</p> <p>Prior to November, 1910, Maxfield Parrish made a contract with complainant to paint for complainant a picture entitled, “Sing a Song of Sixpence,” to be placed in the barroom of the Hotel Sherman in Chicago. The contract provided that Parrish should make the picture, and sell the jiicture and the copyright to the complainant. This was done, and in November, 1910, copyright of the picture was procured by Parrish in the name of complainant. Subsequently defendant published, without permission from complainant, pictures which were substantial copies of the complainant’s painting, and a suit for infringement of copyright was brought, and on motion for preliminary injunction the defendant asserted that the pictures published by it were not copies of the painting, but were copies of a sketch for the painting, completed by Parrish before the completion of the painting.</p>

At Law. Action by Miriam McAllister, administratrix of A. J. McAllister, deceased, against the Chesapeake & Ohio Railway Company and the Maysville & Big Sandy Railroad Company. On motion to set aside order overruling motion to remand to state court.

<p>Condemnation proceedings by the United States against Jesse O’Neill and James O’Neill. On motion by plaintiff for an order for possession.</p>

In Admiralty. Suit for collision by the Saginaw Bay Transportation Company, as owner of the barge Bottsford, against the steamer Fayette Brown and Pittsburgh. Steamship Company, brought in by the claimant of the Brown. Decree against the Brown.

<p>1. ALIENS (§ 61*) — NATURALIZATION—STATUTES-REPEAL.</p> <p>Rev. St. § 2169 (U. S. Comp. St. 1901, p. 1333), providing that the naturalization law shall apply to aliens who are free white persons and aliens of African nativity or descent, was not repealed by Naturalization Act (Act June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. 1911, p. 528]).</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § 61.*]</p> <p>2. Aliens (§ 61*) — Naturalization—Military Service.</p> <p>Service in and honorable discharge from military service of the United States does not extend the right of naturalization to those persons who are neither free white persons nor persons of African nativity or descent, and therefore not entitled to naturalization under Rev. St. § 2109 (U. S. Comp. St. 1901, p. 1333).</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § 61.*]</p> <p>3. Aliens (§ 61*) — Naturalization—Philippines.</p> <p>Rev. St. § 2169 (U. S. Comp. St. 1901, p. 1333), limiting naturalization to. aliens who are free white persons and aliens of African nativity or descent, was applicable to Naturalization Act (Act June 29, 1906, c. 3592, 34 Stat. 606 [U. S. Comp. St. Supp. 1911, p. 544]), § 30, providing that the naturalization laws shall apply to authorize the admission to citizenship of all persons not citizens who owe allegiance to the United States, and who may become residents of any state or organized territory of the United States on certain conditions; and hence a citizen of the Philippine Islands who ethnologically was one-fourth white and three-fourths brown or Malay could not be naturalized.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § 61.*]</p>

<p>In Equity. Suit by John W. Thompson against the Railroad Commission of Louisiana and others. Decree rendered. ■</p>

<p>In Equity. Suit by William Starr Miller against the Chicago & Alton Railroad Company. On final hearing. Provisional decree for complainant.</p>

<p>In Equity. Suit by the Northern Pacific Railway Company against A. J. Littlejohn, Angie St. John, and George St. John. Decree for complainant.</p>

In Equity. Suit by Louise E. Tilton and Mary A. Balfe, adminis-tratrix of the. estate of Myra Tilton, deceased, against Genieve E. Tilton, individually and as executrix of the will of Charles E. Tilton, deceased. On application by complainants for discovery and accounting. Denied pending hearing on other issues.

<p>Proceedings for contempt against Walter B. Grant, an attorney at law, for refusing to produce documents as a witness. Finding against respondent’s claim of privilege.</p>

■ In the matter of bankruptcy proceedings against Charles Churchill. A referee’s order having been entered, directing the bankrupt to turn over to his trustee a certain policy of life insurance, he applies for review. The bankrupt scheduled a policy of insurance in the New York Life Insurance Company for the sum of $2,000, issued to him December 20, 1S92.

<p>Aliens (§ 61*) — Naturalization—“White Person.”</p> <p>The son of a German fattier ana a Japenese mother is not a “white person,” within the meaning of Rev. St. § 2109 (U. S. Comp. St. 1901, p. 1333), and not, eligible to naturalization.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent Dig. §s 119-122; Dec-Dig. § 61.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7446, 7i47.|</p>

In Admiralty. -Suit for collision by the Great Lakes Dredge & Dock Company, owner of the dredge Napoleon against the steamer Philip ■ Minch, Kinsman Transit Company, claimant, with petition by such claimant against the tugs Chris Grover and Alva B., the Great Lakes Towing Company, claimant. Decree against the tugs.

Appeals from the District and Circuit Courts of the United States for the Southern District of New York in the New York City Railway Company and Metropolitan Street Railway Company Receivership… Held: in substance, that expenditures for the entire period should be charged against the Metropolitan estate.

Suit in equity by the Pennsylvania Steel Company and another against the New York City Railway Company and others. From an order of the District Court (195 Fed. 614), the receivers of the Metropolitan Street Railway Company and the New York Railways Company appeal.

Suit in equity by the Pennsjdvania Steel Company and another against the New York City Railway Company and the Metropolitan Street Railway Company. From an order denying its _ application for an order on receivers of the Metropolitan Street Railway Company, the New York Railways Company appeals.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suits by the Pennsylvania Steel Company and another against the New York City Railway Company and others and by the Central Trust Company of New York against the Third Avenue Railroad Company and others. From orders (193 Fed. 286) denying its applications for orders directing receivers for defendants to make returns under corporation tax law, the United States appeals.</p> <p>An order entered February 7, 1912, denied the motion, made by the United' States, for an order directing the receivers of the various railway corporations operating in the city of New York to make a true and accurate return of net income for the years 1909 and 1910, for each of 'the said corporations, respectively, to the collector of internal revenue, pursuant to the provisions of section 38 of the act of Congress of August 5, 1909 (36 Stat. 112). The questions in each of these actions are identical and, to save unnecessary repetition, may be considered in the case of the Metropolitan Street Railway Company.</p>

<p>Appeal from the District Court of the United’ States for the’ Southern District of New York.</p> <p>Suit in equity by the Pennsylvania Steel Company and another, against the New.-York City Railway Company, the Metropolitan. Street Railway Company, and others. From an order (196 .Fed.., 661) apportioning a fund in the hands.q£ the receiver of .the New York City Railway Company, appeals^ were taken by. Adriap .II. Joline and Douglas Robinson, receivers of the Metropolitan Company, John D. Crimmins and others, as a committee of contract creditors, Charles Benner and others, as a committee of tort creditors, the Pennsylvania Steel Company and another, the Farmers’ Doan & Trust Company, and the Guaranty Trust Company of New York.</p>

Appeals from the Circuit Court of the United States for 'the Southern District of New York., Suits in equity by -the Pennsylvania Steel Company and another against the New York City Railway Company, the Metropolitan Street Railway Company, and others, and by the Central Trust Company of New York against the Third Avenue Railroad Company and others.

<p>1. Appeal and Error (§ 184*) — Avoidance—Mode of Trial — Waiver.</p> <p>Where plaintiff, in an action at law, replied that a release set up by defendant as a defense was invalid because of plaintiff’s incapacity to execute it at the time it was' executed, and the reply was not assailed in any manner, or objection made in the circuit court to the mode of trial, defendant waived the right to claim that, as the release was at most only voidable, it was binding on plaintiff until he was relieved therefrom by a court of equity.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1150, 1179-1183; Dec. Dig. § .184.*]</p> <p>2. Appeal and Error (§ 183*) — Review—Questions Not Raised at Trial.</p> <p>Where the trial court had jurisdiction of the subject-matter of the action, an objection to the form of the action or theory of the cause, not urged at the trial, would not be reviewed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1161-1165; Dec. Dig. § 183.*]</p> <p>3. Release (§ 24*) — Invalidity—Vacation—Law or Equity.</p> <p>Where, in reply to a defense setting up a release in bar, plaintiff alleged that at the time the release was executed he was mentally incapable of making it, such objection raised the issue of its legal existence, and was therefore available in the action at law without first proceeding to have the release set aside in equity.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 41 — 46; Dec. Dig. § 24.*]</p> <p>4. Relea.se (§ 59*) — Vacation'—Mental Incapacity — Instructions.</p> <p>Where plaintiff pleaded mental incapacity in avoidance of a release pleaded in bar; an instruction that the release was of the highest significance, and if it was entered into with an understanding of the rights of the parties either party was at liberty to deny its force and effect, or to say he did not understand it, but, “when it appears that either party was in a situation as to his physical condition, or as to his state of mind, which makes it probable that he acted without an understanding of the act with which he is charged, the instrument itself may be disregarded,” was proper.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. g 115; Dee. Dig. § 59.*]</p> <p>5. Damages (§ 173*) — Damage—Materiality—Post Office Regulations.</p> <p>In an action for permanent injuries to a postal clerk, he testified that he received $800 a year from the government and, in addition, about $75 a month as a musician and carpenter, when not on duty; that he made a trip every three days, and was off duty for three days — his time being so arranged as to enable him to play in an orchestra in the evening, whether he was on duty or not. Held, that a section of the post office regulations, providing that the compensation of postal clerks is for daily service, whether on or off duty, that their entire time is subject to the control of the Post Office Department, and that lay-off periods were granted for rest and study, and should not be utilized for engaging in other business, and evidence that the usual requirements would prevent any railway mail clerk from engaging in other occupations, was properly excluded as immaterial.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 490-492, 501; Dee. Dig. § 173.*]</p> <p>& Carriers (§ 821*) — Injury to Passengers — Postal Clerks — Care Required.</p> <p>Plaintiff, a postal clerk, was injured while on his run by the falling of a beam or support for cots, placed in the car by defendant railroad company for the use of the clerks, the fall of which was alleged to have been caused by defendant’s failure to furnish and maintain suitable supports for the cots. The car on which plaintiff was employed ran through from Council Bluffs to Ogden; plaintiff’s run beginning at Cheyenne, where the car arrived about 1 o’clock a. m., having started from Council Bluffs about 7 o’clock the previous morning. Held, that it was defendant's continuous duty to furnish and keep the car in a reasonably safe condition for the use of the postal clerks while they were employed therein, without reference to whether it was rendered defective by postal clerks employed on the run before the ear arrived at the place where plaintiff was to take up his work therein, or by employés of defendant, or others not in defendant’s employ; and hence an instruction, that if the car was rendered unsafe by the negligence of some one other than a railroad employé, “after the car started on its run,” defendant would not be liable, did not impose on defendant as great a duty as it was bound to bear, and was therefore not error.</p> <p>] Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1836, 1343; Dec. Dig. § 321.*</p> <p>Liabilities to employés of others carried under contract with carrier, see note to Clough v. Grand Trunk Western Ry. Co., 85 O. C. A. 5.]</p> <p>7. Release (§ 58*) — Ratification—Repudiation—Time.</p> <p>Plaintiff was injured by defendant’s alleged negligence May 3, 1007, and on the next day, while suffering from his injuries and under the influence of drugs, was induced to settle with defendant for $66 and executed a release. On November 4, 1909, before commencing suit, plaintiff offered to return the money', with interest, which offer was refused, and the tender kept good by depositing the amount with the clerk for defendant’s use. Held, that plaintiff’s delay in rescinding the release was not so great as to bar his right as a matter of law; but the question whether the offer to return was seasonably made was for the jury.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*]</p> <p>Smith, Circuit Judge, dissenting in part.</p>

<p> (Syllabus by the, Court.) </p> <p>1. Ranks and Banking (§ 251*) — National Banks — Officers-—'Term. •</p> <p>Subject to the free exercise by its board of directors of its power to remove him at its pleasure at any time, a national bank may, by its articles of incorporation and by-laws, fix the term of office of its president, or of any other ministerial officer, and the term so fixed becomes his legal term of office, although during that term he is subject to recall by the board under section 5136, U. S. Revised Statutes (U. S. Comp. St. 1901, 1). 3455).</p> <p>LEd. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 940-943; Dec. Dig. § 251.*]</p> <p>2. Principal and Surety (§ 71*) — National Banks — Officers—Term—Liabilities on Bonds.</p> <p>When a term has been so fixed, sureties on the bond to answer for the breaches of duty of a president during his legal term are not liable for his breaches under a subsequent appointment after the expiration of bis term current when tbeir bond was given.</p> <p>[Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. §§ 117-119; Dee. Dig. § 71.*]</p> <p>3. Banks and Banking (§ 251*) — National Banks — Officers—Restricting Choice to Members of Board.</p> <p>The board of directors of a national bank may by a by-law restrict their choice of a president to its own members, even if others are eligible under the national banking law.</p> <p>[Ed. Note.- — For other cases, see Banks and Banking, Cent. Dig. §§ 940-943; Dec. Dig. § 251.*]</p> <p>4. Banks and Banking (§ 251*) — National Banks — Officers—Removal.</p> <p>A national bank provided by its articles of association and by-laws that its board of directors should elect one of its members president of the association who should hold his office, unless sooner removed by a two-thirds vote of all the members of the board, for the term for which he was elected a director.</p> <p>Held, if the restriction of the power of removal to a two-thirds vote was ultra vires and void under section 5136, United States Revised Statutes (U. S. Comp. St. 1901, p. 3455), the other terms of the provision were valid.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 940-943; Dec. Dig. .§ 251.*]</p> <p>5. Statutes (§ 64*) — Effect of Partial Invalidity.</p> <p>Where a part of a law is void and a part is valid and the void part is readily separable from the valid part, the latter may be sustained and the former disregarded, unless the void part is so connected with the general scope of the law as to make it impossible, if it is stricken oat, to give effect to the apparent intention of the legislative body that enacted it.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-60, 195; Dec. Dig. § 64.*]</p> <p>6. Banks and Banking (§ 262*) — National Banks — President—Breach of Duty.</p> <p>Where a president of a national bank in actual management of its daily business made a note for $3,000, without authority, in the name of the H. Company by himself, its treasurer, placed it among the bills receivable of the bank, credited the I-I. Company with $3,000, and paid $2,000 of it to the H. Company and $250 to another party, the proximate cause of the conversion of the funds of the bank was his act as its president, and not his individual act, or his act as treasurer of the H. Company, and that act was a breach of his duty lawfully to administer the office of president and faithfully to account for the moneys and funds of the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1001-1006; Dqc. Dig. § 262.*]</p> <p>7. Banks and Banking (§ 262*) — National Banks — President — Authority.</p> <p>Where the board of directors of a national bank has by resolution expressly authorized, or for a reasonable length of time permitted the president of the bank to participate in the actual management of its daily business affairs, his authority to discount commercial paper and to do other acts within the scope of the authority of its other ministerial officers is ample.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1001-1006; Dec. Dig. § 262.*]</p> <p>8. PRINCIPAL AND SURETY (§ 101*)-P.ANKS AND BANKING-NATIONAL BANKS —Officers—Release of Sureties.</p> <p>An immaterial alteration of the contract of sureties without their knowledge after they have signed, an alteration which neither _ changes the legal identity of the contract nor the liabilities of the parties to it. does not release the sureties.</p> <p>After a bond to indemnify a national bank against the delinquencies of its president, which recited in its first line that he was the principal, had been signed by the president over the word “principal” and by the first surety below that word, and over the word “securities,” the principal inserted the name of the surety before the word “principal” in the first line of the bond. While it was in that condition, two other sureties signed below the signature of the first surety and above the word “securities,” and thereafter the name of the first surety was erased where it had been inserted in the first line of the bond before the word “prin cipal.”</p> <p>Held, these alterations were immaterial, and did not relsea.se the sureties.</p> <p>[Ed. Note. — ITor other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. § 101.*]</p> <p>8. Alteration of Instruments (§ 27*) — Materiality — Presumption an» Burden of Proof.</p> <p>The legal presumption is that an alteration apparent on the face of a written instrument was made before its execution, and is therefore immaterial, and the burden is not on the party who offers the instrument in evidence to explain the alteration, but it is on him who assails the instrument to prove that the alteration -was made after its execution, and that it is material.</p> <p>¡Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-217; Dec. Dig. § 27.*]</p> <p>10. Banks and Banking (S 262*) — National Banks — Liabilities on Bonds.</p> <p>A bond to a bank was conditioned to take effect commencing on the date of its approval by proper authority.</p> <p>Held, its approval by all the directors of the bank, though not by a majority thereof at a meeting of the board, its receipt, and preservation by an officer of the bank was sufficient to put it in operation.</p> <p>[Ed. Note.' — For other cases, see Banks and Banking, Cent. Dig. §§ 1001-1006; Dec. Dig. § 262.*]</p> <p>11. Election of Remedies (§§ 5, 11*) — Finality of Election — Mistake as to Remedies.</p> <p>Where a wrong lias been inflicted, and the victim is doubtful which of two inconsistent remedies is the right one, he may pursue both until he recovers through one.</p> <p>His prosecution of the wrong remedy to a judgment of defeat will nor, in the absence of facts creating an equitable estoppel, bar him from subsequently pursuing the right remedy to victory.</p> <p>It was no defense to the action on the bond on the theory that the principal had made a note of $3,000, without authority from the II. Company that the receiver sued the II. Company on the note on the theory that the principal had authority to make it. He could lawfully pursue ' each remedy until the loss of the hank was restored.</p> <p>[Ed. Note.' — For other cases, see Election of Remedies, Cent. Dig. §§ 6, 14; Dec. Dig. §§ 5, 11.*]</p>

<p>1. MORTGAGES (§ 659*)-'-FORECLOSURE SALE-PURCHASE OR PROPERTY BY Mortgagee — Enforcement or Deficiency Judgment.</p> <p>“Where a mortgagee buys in the mortgaged property at the foreclosure sale, fairly conducted, for less than the mortgage debt, and takes judgment for the deficiency, the mortgagor is not entitled to have a profit subsequently made by the mortgagee on the purchase credited on the deficiency judgment.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1592, 1600-1608; Dec. Dig. § 559.*]-</p> <p>2. Corporations (§ 225*) — Action to Enforce Double Liability of Stockholder — Interest.</p> <p>In an action against a stockholder in an insolvent Kansas corporation to enforce his statutory double liability, interest is recoverable only from the commencement of the action.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 864, 865, 867-869, 871-873; Dec. Dig. § 225.*]</p> <p>3. Corporations (§ 249*) — Action to Enforce Double Liability of Stockholder — Equitable Defenses — Limitation.</p> <p>In an action to enforce the constitutional and statutory double liability of a stockholder in an insolvent Kansas corporation, an equitable defense existing in favor of the stockholder, in the nature of a set-off, is not affected by the statute of limitations.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1002-1010, 1012, 2273; Dec. Dig. § 249.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Petition in equity by William B. Strang against J. A. Edson, as Receiver. Petition dismissed, and petitioner appeals.</p>

<p>ReoexvioRS (114*) — Liability ok Rond.</p> <p>A receiver cannot be held personally liable to the corporation, whose property was in ills custody, because of contracts or payments which were expressly authorized by the court before they were made.</p> <p>[Ed. Note. — Eor other cases, see Receivers, Cent. Dig. §§ 201, 202; Dec. Dig. § 114.*]</p>

Suit in equity by the Niagara Fire Insurance Company of New York and another against Alma H. Adams and others. Decree for defendants, and complainants appeal. The following are the opinions of Dodge, District Judge, in the lower court. On Demurrer to Bill.

<p>Sales (§ 72*) — Contract for Sale oe Grain — Construction—“Country Run” Oats.</p> <p>Evidence considered, and held to sustain a finding that “country run” oats, according to the usage and understanding of the grain trade, means the grain as it comes from country stations in car load lots, with the identity of the contents of the several cars preserved, and that a contract for the sale of such oats was not complied with by furnishing oats which had been in a terminal elevator.</p> <p>[Ed. Note. — For other cases, see Bales, Cent. Dig. §§ 197-202; Dec. Dig. § 72.*]</p>

Suit by the Red River Lumber Company against the Maxwell Bros. Company, in which the American Trust & Savings Bank of Chicago, subsequently changed to the Continental & Commercial Trust & Savings Bank, having been appointed receiver of all defendant company’s property, sold the same to Sidney A. Horner, and he, not having obtained possession of all of the property purchased, applies for an order requiring the receiver to turn over the property not delivered.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma.'</p> <p>Suit in equity by Fred D. Closser against A. A. Truskett and W. O. Truskett. Decree for complainant, and defendants appeal.</p>

In the matter of the Radies’ Cash Store, a partnership, bankrupt. From an order allowing a claim in favor of H. E. Munson and T. E. Munson, E. M. Kelsey, as trustee, appeals.

■ Appeal from the District Court of the United States for the District of Colorado. Suit in equity by Albert B. Meservey, trustee in bankruptcy of Flora Waycott and Ernest Waycott, against Elizabeth S. Roby and others, executors of the will of W. H. Roby, deceased. Decree for defendants, and complainant appeals.

Action at law by A. Louisa M. Gilbert and Ida Isabella K. Gilbert, heirs at law of L- W. Gilbert, deceased, against W. R. Hopkins, George Reeves, E. I. Leighton, John Matthews, and B. P. Bole. Judgment for defendants, and plaintiffs bring error. On motion of plaintiffs for leave to amend writ of error, and, on motion of defendants to dismiss writ of error.

<p>1. Master and Servant (§ 217*) — Master’s Liability for Injury to Servant — Risks Assumed.</p> <p>A servant assumes only those extraordinary rislcs of his employment which he knows and appreciates or which are obvious, and not those which, by the exercise of ordinary care, he should have known but did not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Master and Servant (§ 281*) — Master’s Liability for Injury to Servant — Contributory Negligence.</p> <p>Plaintiff had been employed for several months in defendant’s mill in operating a circular saw in sawing barrel heads from bolts cut of the required lengths from logs, and mounted in an upright position on the carriage, which was pushed against the saw by means of a lever. When the foreman was operating the saw, he asked plaintiff to assist by pushing on the carriage, and in doing so plaintiff’s hand was caught by the saw and injured. In an action to recover for the injury, plaintiff alleged negligence in that the saw Vas dull and that the bolt being sawed was of unusual length, but he testified that he knew both of such facts and that both added to the danger because the bolt in such ease was more likely to slip. There was no evidence that the bolt did slip, and it did not touch plaintiff’s hand. Meld, that both such risks were assumed, and that, under the evidence, the proximate cause of the injury was plaintiff’s own negligence which barred his recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dee. Dig. § 281.*]</p>

<p>Pleading (§ 204*) — Declabation—Counts—Demukbek.</p> <p>If any count in a declaration, is good, a general demurrer to the whole declaration is unsustainable, unless the court sustains it in part and overrules it in part; and this is also true where matter divisible in its nature is alleged by different para graphs in the same count, which states an additional cause of action of the same nature.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 486-490; Dec. Dig. § 204.*]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Illinois. In the matter of bankruptcy proceedings of Hamilton Automobile Company. Action by E. H. Johnson, trustee, against C. P. Kimball & Co. to recover an alleged preference. Judgment was rendered for plaintiff, and defendant filed a petition for-revision and review. On motion to dismiss.

In Equity. Suit by the Star Bucket Pump Company against the Butler Manufacturing Company for infringement of letters patent No. 616,394, for a pump-curb reservoir, granted to Charles A. Bart-liff December 20, 1898, and design patent No. 28,190, for a design for a pump-curb, granted to the same patentee January 18, 1898. On final hearing. Decree for defendant.

In Equity. Suit by the Vacuum Cleaner Company against the Waldorf-Astoria Hotel Company for infringement of letters patent Nos. 847,947 and 847,948 to Kenney' for vacuum cleaner. On motion for preliminary injunction.

<p>In Equity. Suit by the Vacuum Cleaner Company against the Waldorf-Astoria Hotel Company. On motion for preliminary injunction. Denied.</p>

<p>In Equity. Suit by the T. B. Wood’s Sons Company against the Valley Iron Works, for infringement of a patent. On motion to dismiss.</p>

In Equity. On the question of the right of the public and press to be present during the taking of testimony before an examiner.

In Bankruptcy. In the matter of bankruptcy of Fred M. Smith. On proceedings to review a referee’s order denying an application of John Bartram. From an order directing the trustee to sell certain property covered by a chattel mortgage held by Bartram, and to apply the proceeds on a mortgage debt. On March 17, 1908, the bankrupt executed and delivered to the petitioner, Bartram, a chattel mortgage upon property and to secure an indebtedness therein described.

, In the matter of bankruptcy proceedings against Max Pickhardt. Application by trustee for an allowance of the services of a custodian. From a referee’s decision, denying the application, the trustee applies for review. Review of referee’s decision on application of trustee for allowance of charge incurred for services of a custodian. The petitioning trust company, a corporation thereto duly authorized, was appointed receiver prior to, and trustee after, adjudication.

<p>1. Deeds (§ 70*) — Fraud.</p> <p>Where a complainant contracted to sell certain lands lying within a forest reservation for an agreed price per acre, the fact that without her knowledge the conveyances as drawn by the purchaser and signed by her ran to the United States, instead of to himself, and that other papers were presented to and signed by complainant to enable the purchaser to select lieu lands under the statute, did not constitute a fraud which would support a suit in equity to set aside ihe transaction.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.*]</p> <p>2. Principal and Agent (§ 171*) — Ratification.</p> <p>In a suit to recover lands which werte patented to complainant as lieu lands selected in exchange for lands in a forest reservation, which had been conveyed to the United States, but which lien lands had been conveyed to another under a power of attorney alleged to be invalid, the complainant must be considered as having ratified all proceedings and instruments executed by her relating to the exchange of lands.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.*]</p> <p>8. Principal and Agent (§ 103*) — Deeds—Invalid Powers of Attorney.</p> <p>Complainant and another, owners in common of several thousand acres of land within a forest reservation, made a verbal contract to sell the same at a stated price per acre, conveyances for the several tracts to be deposited in escrow and delivered to the purchaser only on payment for the particular tract. The contract was made in the office and presence of a lawyer who was attorney for the other owner and acting, as complainant supposed, as her attorney also. Shortly afterward a num-her of papers were brought by a messenger from the attorney’s office to complainant and her co-owner for their signature, and "were signed without much examination in the belief that they had been prepared or approved by the attorney. Such papers consisted of deeds conveying tlie lands to the United States, applications for lieu lands with the descriptions left blank, and powers of attorney to convey such lieu lands in blank. Such papers were in fact not seen by the attorney personally, but were prepared by the purchaser, and in some manner returned to him after their execution without the attorney’s knowledge or consent. After filing the deeds, he sold certain of the “scrip” to one of the defendants, who filled out and filed the applications, and, after their acceptance, inserted his own name in the powers of attorney, and, acting thereunder, conveyed the lands to his codefendant. Complainant received but a small part of the purchase money; and, after discovering the facts, brought suit to cancel the conveyances made under the powers of attorney and to recover her interest in the lands conveyed, which had lieen patented to her and her co-owner of the reserve lands. IielcL, that the powers of attorney, having been delivered without complainant’s authority or knowledge, carried no implied authority from her to fill the blanks, without which they were void, and the conveyances thereunder did not divest her title; but that, as defendant had purchased the land in good faith and paid' for the same, complainant would be required to convey on payment to her of a just proportion of the sum due her under the contract of sale.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. § 103.*]</p> <p>4. Principal and Agent (§ 10*) — Power op Attorney in Blank. ,</p> <p>A power of attorney to convey land, executed in blank, like a deed with the name of the grantee left blank, is wholly inoperative until the name of a donee is inserted by some one having authority from the donor.</p> <p>[Ed. Note. — -For other cases, see Principal and Agent, Cent. Dig. §§ 21, 22; Dec. Dig. § 10.*]</p> <p>5. 'Escrows ■(§ 14*) — Authority op- Depositary — Unauthorized Delivery.</p> <p>One authorized by a vendor of land to deliver conveyances or powers of attorney to execute conveyances only on receipt of the purchase price is- a special agent or an escrow depositary, and a delivery contrary to such instructions does not bind his principal even in favor of subsequent ' 'purchasers without notice.</p> <p>[Ed. Note. — For other eases, see Escrows, Cent. Dig. §§ 17-20; Dec. Dig.' § 14.*]</p>

<p>PRINCIPAL AND AGENT (§ 177*)-LIABILITIES AS TO THIRD PERSONS — NOTICE to Agent.</p> <p>An agent of a railroad company having no authority to issue bills of lading except for property actually received for shipment cannot ratify, the act of another in issuing such bills in the name of the company, nor will his knowledge of a custom on the part of such another to issue bills in advance of the receipt of the goods charge the company with notice of such custom, so as to render it liable to one defrauded by false bills of lading so issued, where the agent was a party to the fraudulent transactions.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ ' 670-679; Dec. Dig. § 177.*]</p>

<p>In Equity. Suit by Charles S. Hinchman against the Consolidated Arizona Smelting Companjb On final hearing. «Decree for complainant.</p>

In Equity. ' Suit by William R. Stirling, Alexander Smith, Augustus S. Peabody, James L. Houghteling, Jr., and Burton Thomas, copartners under the firm name of Peabody, Houghteling & Co., .against the Seattle, Renton & Southern Railway Company. On petition of William R. Crawford, challenging the jurisdiction of the court and for the discharge of receiver.

<p>Removal of Causes (§ 29*) — Diversity of Citizenship — Alignment of Parties.</p> <p>In a stockholder’s suit in a state court against the corporation and others, where, the allegations of the bill show that the corporation is fully under the control of its codefendants, it is properly aligned with them for the purposes of the removal statute, and, where it is a citizen of the same state as complainant, the suit is not removable.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 69, 72, 74; Dec. Dig. § 29.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

At Law. Action by the United States, for the use of Port Blakely Mill Company, a corporation, and for the use of certain others, against the Massachusetts Bonding & Insurance Company, the John'Douglas Company, the Brunswick-Balke-Collander Company, and the Rogers & Kohler Company, interveners. Judgment ordered for certain of the use plaintiffs and interveners.

<p>At Law. Action by Thomas P. Alder against William Edenborn. On motion to set aside a judgment entered on a referee’s report.</p>

<p>Libel by the United States against Seventy-Live Boxes o'f Alleged Pepper. Libel sustained. Judgment of forfeiture entered.</p>

In Equity. Suit by Gilbert E. Peterson, trustee in bankruptcy of Simon Mettler and Anna Mettler, his wife, against Carl Mettler and Mary Mettler, his wife. On exceptions to report of special master. Exceptions overruled, and decree for complainant.

In Equity. Suit by- Morse S. Duffield and another against the San Francisco Chemical Company. Decree for defendant. This is a suit brought under section 2326, Rev. St. (U. S. Comp. St. 1901,, p. 1430), to determine the conflicting rights of the parties to certain adverse mining locations in the Pruess Mountains, Bear Lake county, Idaho, and to quiet complainants’ title to the premises involved. Defendant in. a cross-bill asks similar relief against complainants.

<p>1. Bankruptcy (§ 396*) — Acts of Bankruptcy — Transfer with Intent to Hinder and Decay Creditors — “Family.”</p> <p>An adult son, for whose support his father is not legally liable, and who does not reside with his father, is not a member of his father’s “family,” within the meaning of Code Civ. Proc. N. Y. §§ 1879, 2463, which exempt the earnings of a debtor for 60 days, where they are “necessary for the use of a family wholly or partly supported by his labor”; and the payment by a father from his earnings to a son living separate from him of $600, when the father was in fact insolvent, and knew such fact, or at least that his solvency was doubtful, was a transfer with intent to hinder or delay creditors, which constituted an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3a (1), 30 Stat. 546 (IT. S.' Comp. St. 1901, p. 3422).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 659-668, 670; Dee. Dig. § 396.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2673-2691 : vol. 8, p. 7661.1</p> <p>2. Bankruptcy (§ 396*) — Acts of Bankruptcy — Transfer with Intent to Prefer.</p> <p>A statute exempting the earnings of a debtor necessary for the support of his family does not authorize an insolvent to use earnings for the payment of bills for supplies previously furnished; and such a payment, if made with knowledge of his insolvency, or that his solvency was doubtful, constitutes a preference, and an act of bankruptcy, undei Bankr. Act July 1, 1898, c. 541, § 3a (2), 30 Stat. 546 (ü. S. Comp. St. 1901, p. 3422).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 659-668. 670; Dec. Dig. § 396.*]</p> <p>3. Bankruptcy (§ 396*) — Acts of Bankruptcy — Transfer with Intent to-Hinder and Delay Creditors.</p> <p>An insolvent, who, although entitled under the exemption laws of the state to use his earnings so far as necessary for the support of his family, with knowledge of his insolvency, or that his solvency was doubtful, furnished his family with $1,600 for a month’s use, committed an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3a (1), 30 Stat. 546 (IT. S. Comp. St. 1901. p. 3422), by transferring property with intent, to Under or delay his creditors; and it is immaterial that he may have thought the payment warranted by the statute.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 659-668, 670; Dec. Dig. § 390.*]</p>

<p>Bankruptcy (§ 407*) — Discharge—Objections—False Statement.</p> <p>A bankrupt, in order to purchase goods on credit, made a statement to the sellers on August 13, 1900, representing that he owed $10,500; that he had stock on hand of the value of $9,000, accounts, notes, and mortgages that were good, valued at $8,000, and real estate valued at $14,000. His petition in bankruptcy was filed December 17, 1906, in which he listed his indebtedness at $16,040.31 and his real property at $6,450. There was 'no explanation of the increase in his indebtedness without any increase in his assets, and the real estate sold at public auction for only $3,000, with the exception of certain land in Georgia, worth about $200. Held, that such statement was materially false, and made for the purpose of obtaining property on credit, and was therefore a bar to the bankrupt’s discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 76Í; Dec. Dig. § 407.*]</p>

<p>1. CONSTITUTIONAL LAW (§ 115*) — OBLIGATION OF CONTRACTS — MUNICIPAL Ordinance.</p> <p>A city ordinance may be considered a law of the state, within the constitutional provision prohibiting the state from passing laws impairing the obligation of contracts.</p> <p>(Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 274-277, 290; Dec. Dig. § 115.*]</p> <p>2. Courts (§ 102*) — Number of Justices — Injunction Proceedings — “Statute” — “Officer of Such State.”</p> <p>Judicial Code (Act March, 3, 1911, c. 231, § 266, 36 Stat. 1162 [IT. S. Comp. St. Supp. 1911, p. 236]) provides that no interlocutory injunction restraining the enforcement of any “statute” of a state, by restraining the action of any officer of such state in the enforcement of the statute, shall be issued by any Justice of the Supreme Court, or by any District Court of the United, States, or any judge thereof, or by any Circuit Judge thereof acting as a District Judge, on the ground of unconstitutionality. unless the application shall be presented to a. Justice of the Supreme Court of the United States, or to a Circuit or District Judge, and shall be heard and determined by three judges, of whom at least one shall he a Justice of the Supreme Court, or a Circuit Judge, and the other two either Circuit or District Judges, and unless a ma-. jority of the three judges shall concur in granting the application, etc. Held, that the words “statute of a state” were used in such act in their ordinary sense as meaning a law directly passed by a state Legislature, and that the words “officer of such state” meant an officer whose authority extended throughout the state; and hence such act was not applicable to a suit by a telephone company to restrain the enforcement of a city ordinance fixing telephone rates to be charged by such company.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 351, 352; Dec. Dig. § 102.*</p> <p>For other definitions, see Words and Phrases, yol. 7, pp. 6635-6638; vol. 8, p. 7804; vol. 7, pp. 6647-6648.]</p>

In Equity. Suit by Chickering & Sons against Clifford C. Chick-ering and others. On motion hy complainants to define and enlarge order granting preliminary injunction.

<p>Tbade-Makks and Trade-Names (§ 59*) — Intringement—Preliminary Injunction.</p> <p>Whore complainant owned a valid irade-mark in the name '‘Paris” as applied to garters, and there was evidence that defendant’s use of the word “French” in the same, connection produced confusion among retail purchasers, and also that defendant’s connection with the defendant in a prior suit relating to similar alleged infringement was such that it might have had the question as to confusion of goods and «s to similarity of names settled in that suit, complainant was entitled to a preliminary injunction restraining defendant’s use of the word “French” as applied to garters in competition with plaintiff’s trade-mark.</p> <p>[Ed. Note. —For other cases. See Trade-Marks and Trade-Names, Cent. Dig. 08-72; Dec. Dig. § 59.*)</p>

In the matter of bankruptcy proceedings of the Tyler-Lowe Mercantile Company! From a judgment of the District Coürt feversing a referee’s order disallowing in part the claim of John W. Lowe, and allowing the claim in the sum of $4,864.12, certain' creditors prosecuted an appeal in the name of Fermor' J. Spencer, trustee.

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

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

In Equity. Suit by Arthur V. H. Smythe against the Supreme Lodge, Knights of Pythias. On final hearing. Decree for complainants. This is an action in equity to enjoin and restrain the defendant from canceling, or attempting to cancel, a policy of insurance issued by it and delivered to the plaintiff, and on which plaintiff has paid assessments for many years, but on which the defendant now demands the payment of increased assessments.

In Equity. Suit by the Montana, Wyoming & Southern Railroad Company against E. A. Morley and others to enjoin the enforcement of an intrastate coal rate fixed by the Board of Railroad Commissioners of Montana.

<p>1. Carriers (§ 11*) — Regulation—Intrastate Car Load Freight — II ait. - road Commission Law.</p> <p>Michigan Railroad Commission Act (Pub. Acts 1909, No. 300, as amended by Pub. Acts 1911, No. 139), providing for the regulation of freight traffic within the state, requires railroads doing business in the state to receive and transport at reasonable rates all intrastate ear load traffic offered for transportation under the usual conditions locally consigned between points in the same city or town, whether received from another railroad or not, and such as is offered at any junction or transfer point or intersection with another railroad within such city for delivery on team tractos or sidings therein, whether the shipment originated within or without such city or town.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 2, 3: Dee. Dig. § 11.*]</p> <p>2. Constitutional Law (§ 297*) — Regulation—Intbacity Service.</p> <p>Pub. Acts Mich. 3911, No. 139, amending Michigan Railroad Commission Act (Pub. Acts 1909, No. 300), provides'(section 7d) that every common carrier operating within the state shall transport - at reasonable rates all car load traffic offered for transportation under usual conditions locally consigned between points in the same city or town, and from any junction or transfer point or intersection with another railroad in such city or town, to team tracks or other sidings on any line operated by the delivering carrier, and shall deliver such car or cars on such team trapks or sidings where the ear or cars are received from the connecting earlier when required to do so, etc. Held, that the service so required in a city having a large number of industries and served by a number of railroads -with many team, “hold,” and industrial sidings used for the delivery of freight is not necessarily a mere switching service, that whether it is transportation is in a given case a question of fact, that a service does not cease to be transportation merely because the movement begins and ends within a city, ■ or is only between an intracity junction or team track or side track, and hence such legislative requirement as to a carrier not incorporated particularly therefor was not objectionable as a deprivation of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 83'2-834; Dec. Dig. § 297.*]</p> <p>3. Carriers (§ 10*) — 'Regulation — Railroad Commission — Quality and Reasonableness of Service — Compensation.</p> <p>Under Michigan Railroad Commission Act (Pub. Acts 1909, No. 300, as amended by Pub. Acts 1911, No. 139), regulating intrastate transportation, questions relating to quality and reasonableness of service and compensation therefor are primarily for the consideration of the Railroad Commission, subject to the statutory right of review conferred by the act on the state courts.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 14 — 20; Dec. Dig. § 10.*]</p> <p>4. Carriers (§ 18*) — Regulation — Terminal Facilities — Intracity Exchange of Freight.</p> <p>Ad ‘^junction would not be granted to restrain the enforcement of an order of the Michigan Railroad Commission to carry out Pub. Acts 1911, No. 139, requiring carriers operating within the state to receive and transport at reasonable rates car load traffic between points in the same city or town, or from a junction or transfer point or intersection with another railroad, to team or other sidings of any line, on the ground that service would entail large expense and require the acquisition of additional lands for additional terminal facilities, and would also result in congestion of traffic, the latter objection being supported only by ex parte affidavits.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 13, 16-1S, 20, 24; Dec. Dig. § 18.*]</p> <p>5. Commerce (§ 58*) — Regulation oe Local Commerce — Interference with Interstate Commerce.</p> <p>A state Railroad Commission’s order intended to enforce a state statute (Pub. Acts Mich. 1911, No. 139), requiring intracity transportation of car load freight between junction, intersection, and transfer points, and delivery sidings, could not necessarily and immediately affect interstate commerce as a matter of law, and was therefore not objectionable as a violation, of the commerce clause of the federal Constitution, in that its enforcement would result in congesting the carrier’s terminal facilities to the detriment of interstate commerce.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 77-86; Dec. Dig. § ;58.*]</p> <p>6. Statutes (§ 64*) — Partial Invalidity — Penalty Clause.</p> <p>Where severe penalties were provided for violation of a statute in a section separate from the substantive part of the act, the balance of the act will not be held unconstitutional in a suit to restrain the enforcement thereof, in which no attempt is made to recover or enforce the penalty provision, on the ground that the penalties are so severe as to be invalid.</p> <p>[Ed. Note. — For other cases, see Statutes, Gent. Dig. §§ 58-66, 195; Dec. Dig. § 64.*]</p> <p>7. Carriers (§ 2*) — Regulation—Statutes.</p> <p>Michigan Railroad Commission Act (Pub. Acts 1909, No. 300) § 7a, de- ' daring that nothing in the act shall require any railroad to give the use of its tracks or terminal facilities to another railroad, engaged in like business, and Pub. Acts 191.1, No. 139, adding to section 7, subd. d, requiring railroads to transport ear load freight consigned locally between points in the same city or town from a junction or transfer point or intersection with another railroad, to team tracks or other sidings of any line operated by the delivering carrier, etc., were consistent with each other, so that the latter subdivision was not in conflict with the former, as requiring a carrier to submit its terminal facilities to the use of another railroad.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. § 2.*]</p> <p>8. Injunction (§ 22*) — Effect.</p> <p>Injunction would not be granted to restrain the enforcement of certain orders of the state Railroad Commission where the action commanded by the orders had already been taken and suspended by order of the Commission.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 20, 21; Dec. Dig. § 22.*]</p>