Volume 199 — Federal Reporter

Bankruptcy proceedings against the Franklin Dumber Company, Incorporated. On petition to review a decree (187 Fed. 281) affirming a referee’s order denying the application of the D. C. Smith & Bro. Typewriter Company for the return of a typewriter delivered to the bankrupt under a bailment contract.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action at law by Harry Thurston Peck against the Post Publishing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Indictment and Information (§ 140*) — Motion to Quash — Sufficiency and Competency of Evidence Before Grand Jury.</p> <p>Unless in extreme instances to prevent clear injustice, or an abuse of judicial process, a defendant against whom an indictment has been returned cannot require the court to review the evidence before the grand jury to determine its sufficiency or whether incompetent evidence was received.</p> <p>[Ed. Note. — Eor other casos, see Indictment and Information, Cent. Dig. §§ 474, 475; Dee. Dig. § 140.*]</p> <p>2. Post Office (§ 49*) — Prosecution for Using Mails to Defraud — Sufficiency of Evidence.</p> <p>Evidence held sufficient to sustain a judgment of conviction for using the mails to defraud.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. § 49.*</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p> <p>3. Grand Jury (§ 2%*) — Competency of Jurors — District from Which Drawn.</p> <p>It is no objection to the legality of the constitution of a federal grand jury that it was drawn from a district including, but larger in area than, the district as it was constituted at the time the offense was committed.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Cent. Dig. § 2; Dec. Dig. « 2%.*]</p> <p>4. Grand Jury (§ 42*) — “Presentment.”</p> <p>A “presentment” is an accusation made by grand jurors upon personal knowledge or observation of the facts instead of upon the testimony of witnesses.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Cent. Dig. § S8; Dec. Dig. § 42*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5531, 5532.]</p>

Ered D. May and others were convicted of carrying on the business of manufacturing oleomargarine without having paid the special tax therefor, and they bring error.

Joseph G. May and others were convicted of defrauding or attempting to defraud the United States of the tax on colored oleomargarine, and they bring error.

Suit in equity by Morgan Jones and others against the Missouri-Edison Electric Companj'- and others.- Decree for defendants, and •complainants appeal.

<p>3. Limitation of Actions (§ 48*) — County Warrants — Accrual of Right.</p> <p>Limitation does not begin to run against a suit to enforce payment of county warrants, which, under the statule, are payable in the order of their registration, subject to a provision that such warrants shall be receivable for taxes, until there is sufficient money in the treasury applicable thereto to pay such warrant.</p> <p>I Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 259-265, 351; Dec. Dig. § 48.*]</p> <p>2. Counties (§ 170*) — Warrants—Suit to Enforce Payment — Payment?</p> <p>A statutory provision which is in force at the time county warrants are issued, that they shall be paid in the order of their presentation and registration, creates a contract for precedence with a warrant holder which cannot be impaired by subsequent legislation providing that only a certain part of the tax collected each year for current expenses shall be applied to the payment of outstanding warrants; and a warrant holder may maintain a suit in equity to enjoin the county from refusing to apply the taxes in accordance with the contract.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 256-259; Dec. Dig. § 170.*]</p> <p>3. Words and Phrases — “But.”</p> <p>The word “but” is defined as “except”; “on the contrary”; “yet” or “still,” as a word of limitation (citing Words and Phrases, vol. 1, p. 926).</p>

Claim of Gilbert T. Rafferty for taxes and water rents, presented in the interest of M. D. Roth, purchaser of the bankrupt’s property, to which A. C. Ellis, trustee of the Boyd Clothing & Suit Company, filed objections. From a decree overruling the referee’s finding disallowing the claim, and allowing the same, the trustee appeals.

Action by Charles A. Otis and others against the PittsburghWestmorcland Coal Company to recover damages for alleged breach of a contract for the sale of bonds. Judgment for defendant, and plaintiff brings error.

Action at law by Edward Reiter against the Standard Scale & Supply Company. Judgment for plaintiff, and defendant brings error.

In the matter of Emerson, Marlow & Co., bankrupts. From an order of the District Court, George D. Mansfield appeals. Appellant, hereinafter called “petitioner,” filed his amended petition in the District Court for an order on the appellee, hereinafter termed “receiver,'’ to pay over to him the sum of ,85.717.39, alleged to be a trust fund belonging to the petitioner, of which the receiver took possession os an asset of the bankrupt’s estate.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of Emerson, Marlow & Co., bankrupts. Prom an order of the District Court, the Continental & Commercial Trust & Savings Bank, as trustee of the estate of Edwin L. McAdam, bankrupt, appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of Utah.</p> <p>Suit in equity by Charlotte Cassidy against the Silver King Coalition Mines Company. Decree for defendant, and complainant appeals.</p>

<p>1. Courts (§ 489*) — Jurisdiction oe Federal Courts — Suits Relating to Probate or Wills.</p> <p>Under Const. Colo. art. 6, § 23, and Rev. St. Colo. 1908, § 7082 et seep, which vest in the county courts exclusive jurisdiction of all probate proceedings, and to decide therein on the genuineness and validity of any writing purporting to be a will, and to admit it to probate or deny its probate, and do not confer on the courts of law or equity of the state-jurisdiction to determine any of such matters, except in’ direct appellate proceedings from the county court, a federal court in that state is without jurisdiction of a suit to prevent the probate of a will or to have it adjudged invalid.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1341, 1372-1375; Dec. Dig. § 4S9.*</p> <p>Probate jurisdiction of federal courts, see note to Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 276.]</p> <p>2. Equity (| 150*) — Pleading—Multifaeiousness of Bill.</p> <p>A bill against tile executors named in a will and the beneficiaries thereunder to have it declared invalid and denied probate, in which another defendant is also joined for the purpose of having a deed from the testator to such defendant adjudged void for fraud, and canceled, is multifarious.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 342, 371-379; Dec. Dig. § 150.*]</p>

Appeals from the District Court of the United States for the Eastern District of Wisconsin. Suit in admiralty by the Kensington Steamship Company against the tugs Starke and Welcome, Sophie Meyer and others, claimants, in which the City of Milwaukee'was impleaded. From the decree (182 Fed. 498), libelant and the city both appeal.

Suit in admiralty by the Goodrich Transit Company, as owner of the steamer City of Racine, against the City of Chicago. Decree for libelant, and respondent appeals.

<p>In the matter of authority to issue writs of error from the Supreme Court to the Circuit Court of Appeals.</p>

Suit in equity by Albert C. Clark against George E. Johnson, R. E. Hunter, Elizabeth E. Chapin, administratrix of A. A. Chapin, deceased, and W. P. Denny. From final decree, complainant appeals.

Two suits in equity by Byron E- Van Auken and by the Consolidated Engineering Company against the Monash-Younker Company. Decree for complainants in one suit, and defendant appeals. Reversed. Decree for defendant in the other, and complainants appeal. Tlio appellants Van Auken and Consolidated.

t Suit in equity by Frederick F. Baldwin against Jacob Bleser. Decree for complainant, and defendant appeals. Appellee was granted two patents for improvements in acetylene gas generating lamps. The prior one was granted August 28, 1900, as number 656,874, and the other was granted May 22, 1906, and numbered 821,580.

Suit in equity by the Charles Boldt Company against the Turner Bros. Company. Decree for defendant, and complainant appeals. Appellant brought suit in the Circuit Court to restrain infringement of ■ design patent No. 39,921, granted April 20, 1909, to Charles Boldt for a design for bottles.

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Suit in equity by De Moulin Bros. & Co. against Lewis E. Alexander. Decree for complainants, and defendant appeals.</p>

Suit in equity by Lewis W. Eggleston against the Milwaukee Heater Manufacturing Company. Decree for defendant, and complainant appeals. Appellant., hereinafter called complainant, filed his application for a patent for a relief device for water systems, which was granted December 11, 1906, as patent No. 838,394. after numerous modifications in its way through the Patent Office.

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

<p>In Equity. Suit by the Macbeth-Evans Glass Company against Rosenbaum Company and the Jefferson Glass Company. On final hearing. Decree for complainant.</p>

In Equity. Suit by the General Electric Company against the Allis-Chalmers Company for infringement of letters patent No. 559,913, for an alternating current system of electrical distribution granted to Charles P. Steinmetz May, 12, 1896. On filial hearing. Decree for defendant.

<p>1. Patents (§ 314*) — Infringement—Preliminary Injunction — Issue.</p> <p>Where a patent has been held valid in prior litigation, and defendant, in a suit for infringement, relies on a prior use to invalidate the patent, and in doing so pleads a defense which was not presented in the eases wherein the patent was sustained, the only matter which can be considered on an application for a preliminary injunction.is the question of infringement and whether the evidence of prior use is such that, had it been before the court in the case in which the patent was sustained, the court would probably have reached a different conclusion.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 550-553; Dec. Dig. § 314.*]</p> <p>2. Patents (§ 312*) — Infringement—Preliminary Injunction — Burden of Proof.</p> <p>Where, in a suit for infringement of a patent, sustained in prior litigation, defendant pleaded prior use not previously presented, the burden was on defendant to show that the prior use was such as, if previously presented, would probably have caused a different decision; every reasonable doubt being resolved against it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 543-549; Dec. Dig. § 312.*]</p>

<p>1. Patkxts (8 328*) — Validity and Infringement — Fire Alarm Apparatus.</p> <p>A preliminary injunction against infringement of the Ruddick patent No. 553,873, for a noninterfering signal apparatus, denied, where the validity and scope of the patent and infringement were all in issue, the patent would expire in six months, and the defendant was financially responsible.</p> <p>2. Patents (§ 303*) — Butts for Infringement — Preliminary Injunction.</p> <p>in an infringement suit, the complainant’s case should be reasonably free from doubt on every question necessary for him to establish in or-den’ to obtain the relief demanded, to entitle him to a preliminary injunction, and should be established other than by ex liarte affidavits, where their essential allegations are controverted by others of the same character and substantially equal credibility.</p> <p>|Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 190 — 198'; Dec. Dig. § 303. *J</p>

<p>In Equity. Suit by the Gamewell Fire Alarm Telegraph Company against the Star Electric Company. On motion by defendant for injunction.</p>

<p>In Equity. Suit by the Browning Hook & Eye Company against the Tri-Eye Hook & Eye Company. On motion for preliminary injunction.</p>

At Law. Action by Charles Fischer against the Automobile Supply Manufacturing Company, Incorporated. On motions by defendant that the complaint be made more definite and certain and for an examination of plaintiff.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Charles Friedrich. On objections to the bankrupt’s petition for discharge. Sustained.</p>

<p>1. Pleading (§§ 194, 354, 355*) — Pleas—Insufficiency—Remedy.</p> <p>Tenn. Code 1858, §§ 2884, 2885 (Shannon’s Code, §§ 4605, 4606), provides that, if any pleading in a civil action is defective in showing a substantial cause of action or defense, this shall be ground for demurrer, and section 2882 (Shannon's Code, § 4603) provides that any irrelevant pleading may be stricken out on motion. Held that, if a plea is of a character entirely inappropriate to the cause of action alleged or constitutes an entire departure therefrom, it may be stricken out on motion, but, it it is appropriate to the cause of action alleged and is not a departure, but fails to state a substantial defense to the declaration, the remedy is by demurrer.</p> <p>TEd. Note. — For other ’ cases, see Pleading, Cent. Dig. §§ 444-446, 449-452, 1092-1095, 1102-1110; Dee. Dig. §§ 194, 354, 355.*]</p> <p>2. Pleading (§§ 194, 355*)' — Pleas—Applicability to Cause of Action — Insufficiency — Remedy.</p> <p>Where plaintiff sued for alleged conspiracy to defraud, pleas of the pendency of a former suit in a state court for the same cause of action, and that plaintiff had elected to maintain a separate suit for the same cause in a state court which was then pending, were not irrelevant or inappropriate to the cause of action alleged, and therefore any deficiency therein must be attacked by demurrer, and not by motion to strike.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 444-446, 449-452, 1102-1110; Dec. Dig. §§ 194, 355.*J</p>

In the matter of bankruptcy proceedings against the Coney Island Lumber Company. On application for an allowance to counsel for the petitioning and intervening creditors.

<p>In the matter of bankruptcy proceedings of R. E. Duke & Son. A report of a special master advising an adjudication in bankruptcy was filed, and the bankrupts bring exceptions.</p>

<p>Estoppel (§ 72*) — Persons Equally Blameless — Wronoí’ül Payment — Liability oe Payor.</p> <p>Where defendant paid over money in its hands belonging to the United States, without legal authority, to a third person having no right to receive the same, defendant was liable therefor to the government, under the rule that, when' one of two innocent persons must, suffer by the act of a third, he who puts it in the power of the third person to inflict the injury must hear the loss.</p> <p>LEd. Note. — For other cases, see Estoppel, Cent Dig. § 188; Dec. Dig. § 72.*]</p>

<p>Bankruptcy (§ 311*) — Preferences—Mortgage.</p> <p>Claimant Trust Company loaned a bankrupt $1,500 on Ms own indorsement, the note being renewed several times, until it finally fell due November 3, 1909; and five days thereafter the bankrupt executed a bond and mortgage to the Trust Company for a like amount, .which was recorded on the following day. An officer of the Trust Company testified that the consideration for the mortgage was delivered and paid in money to the bankrupt November 20th, as indicated by a notation on a teller’s slip from an adding machine; but how or when the note was paid, if at all, was not satisfactorily explained. At the time the mortgage was made, it was quite generally known that the bankrupt was in financial straits. Held, that the giving of the mortgage constituted a preference, obtained by the Trust Company with at least constructive knowledge of the debtor's insolvency; and that it was therefore not entitled to an allowance of the mortgage debt as a secured claim.</p> <p>¡Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-500; Dec. Dig. § 311.*]</p>

<p>In Equity. Suit by the Des Moines Gas Company against the City of Des Moines and others. On exceptions to master’s report.</p>

<p>1. Commee ce (§■ 58*) — Employees’ Liability act — Constitutionality.</p> <p>Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), being expressly limited by its terms to common carriers while engaged in interstate or foreign commerce and to injuries received by their employés while “employed by such carriers in such commerce,” is within the constitutional powers of Congress and valid.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 77-86; Dec. Dig. § 58.*]</p> <p>2. Death (§ 10*) — Employees’ Liability Act — Action fob Death of Em.ployé — Damages.</p> <p>The right of action for injury to an employé given by the federal Employers’ Liability Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), prior to its amendment by Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (TJ. S. Comp. St. Supp. 1911, p. 1325), did not survive the death of such employé, and in an action for his death recovery is limited to the pecuniary injury or loss sustained by the beneficiaries, excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors, and suffering of the deceased, although the value of a father's services in attention to and care and superintendence of his children and family, in the education of his children, of which they are deprived by his death, may be considered as an element of pecuniary damages.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. §■ 10.*]</p> <p>3. Death (§ 99*) — Employees’ Liability Act — Action foe Death of Employé — Damages.</p> <p>A verdict for damages returned in an action against a railroad company for the death of an employe, brought under Employers’ Liability Act April 22, .1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), held excessive under the evidence.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p>

In the matter oí John B. Thomas, bankrupt. Review of order and decision of referee directing and refusing to direct certain payments.

<p>In Equity. Suit by the Central Railroad Company of New Jersey against the Mayor and Aldermen of Jersey City and others. On final hearing. Decree for complainant.</p>

In Bankruptcy. In the matter of Michael Doyle, doing business under the name of Michael Doyle & Co., bankrupt. On specifications of objection to a bankrupt’s discharge.

<p>1. Reformation of Instruments (§ 19*) — Grounds—Mutual Mistake.</p> <p>Wliere a preliminary contract by which defendant was to execute to complainant a series of notes, some of which were to run a number of years, clearly provided that they should contain a provision making the entire debt due on default in the payment of any note or interest, but such provision was omitted by mutual mistake, complainant is entitled to have the notes reformed by its insertion.</p> <p>[Ed. Note. — Eor other cases, see Reformation of Instruments, Cent. Dig. §§ 74-7S; Dec. Dig. § 19.*]</p> <p>2. Reference (§ 99*) — -Reference by Consent — Findings of Master.</p> <p>Where an entire case is referred to a master by consent of the parties, his findings of fact are entitled to the weight of the verdict of a jury.</p> <p>[Ed. Note. — Eor other cases, see Reference, Cent. Dig. §§ 14S-156; Dee. Dig. § 99.*]</p> <p>3. Action {§ 62*) — Premature Commencement — Extension of Debt.</p> <p>Pledges of additional collateral by a debtor after defaults in meeting partial payments held, ymder the evidence, not to have been made under an agreement, express or implied, for - an extension of the time of payment, so as to render a suit brought by the creditor several months afterward premature.</p> <p>[Ed. Note. — Eor other cases, see Action, Cent. Dig. §§ 718-723; Dee. Dig. § 62.*</p> <p>Premature commencement of actions, see note to American Bonding & Trust Co. v. Gibson County, 76 C. C. A. 159; City of Trinidad v. I-Iokasona, 102 C. C. A. 424.]</p>

<p>1. Specific Performance (§ 101*) — Repudiation of Contract — Tender— Excuse.</p> <p>It is not a prerequisite to specific performance of a contract for tbe sale of real property that a tender be made of property or money where tbe opposite party has expressed a purpose not to comply with, but to repudiate tbe contract.</p> <p>[Ed. Note. — For other eases, see Specific Performance, Cent. Dig. §§ 290, 295, 311-317; Dee. Dig. § 101.*</p> <p>Necessity of tender of performance of contract, see note to ITosmer v. Wyoming Ry. & Iron Co., 65 C. O. A. 91.]</p> <p>2. Specific Performance (§ 60*) — Right of Vendor.</p> <p>Where a vendee may maintain a suit in equity for specific performance of a contract for tbe sale of land, tbe vendor may also maintain a bill for specific performance of tbe vendee’s agreement to pay tbe. purchase money.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 197; Dee. -Dig. § 66.*]</p> <p>3. Specific Performance (§ 58*) — Contract—Construction—“Retained.”</p> <p>A contract for tbe sale of certain real property provided for payment of $500 cash on tbe making of tbe contract and tbe balance on a specified date, when the deal was to be closed. It then declared that, if tbe vendee should make default in paying tbe balance as provided, tbe $500 payment should be forfeited to the vendors and “retained” by them as liquidated damages for breach of tbe contract, and for the failure ef tbe vendee to pay tbe balance of tbe consideration. Held, that the word “retained” could not be construed to mean “accepted,” and that tbe $500 payment should be regarded as security only for the performance of the contract by the vendee, and its retention by the vendors on the vendee’s refusal to perform did not preclude them from maintaining a suit for specific performance of the vendee’s obligation to pay the balance of the price.</p> <p>LEd. Note. — -For other cases, see Specific Performance, Gent. Dig. §§ 179, 180; Dec. Dig. § 58.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6196.]</p>

<p>1. Courts (§ 292*) — Unfair Competition — Use of Corporate Name — Suit by Foreign Corporation.</p> <p>A fraternal beneficiary society incorporated under tbe laws of a state may maintain a suit in equity in-a federal court in another state to enjoin citizens of tbe latter state from forming a corporation under its laws for conducting tbe same business of insuring tbe lives of its members, and having a name similar to complainant’s for the fraudulent purpose of deceiving complainant’s members and tbe public and unlawfully appropriating complainant’s business and good will.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 834; Dec. Dig. § 292.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Seheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Insurance (§ 692*) — Benefit Insurance Societies — Incorporation—Kansas Statute.</p> <p>Gen. St. Kan. 1909, §§ 4303-4318, governing tbe organization of fraternal beneficiary societies, which in section 4309 provides that on the filing with the Superintendent of Insurance of a certificate stating the names of the applicants, and, inter alia, the “proposed corporate name of the association, which shall not too closely resemble the name of any similar association,” if he shall find that its provisions are in accordance with section 4303, he shall indorse his approval thereon, and the certificate, when recorded, shall constitute the articles of association, do not vest in the superintendent a discretionary power to determine whether or not the name too closely resembles that of another association, but that question is one which may be determined by the courts in the first instance.</p> <p>[Ed. Note. — For other eases, see Insurance, Gent. Dig. § 1832; Dec. Dig. § 692.*]</p>

In Bankruptcy. In the matter of R. Crosby Fairlamb and others, copartners trading as the P. H. Fairlamb Company, bankrupts. On certificate of referee relating to order allowing amendment of claim by the Western National Bank.

Petition by Chin K. Shue for an order compelling William H. Tighe, customs inspector for the Massachusetts district, and Richard Taylor, an inspector of the Department of Commerce and Tabor, to return certain letters and documents taken from petitioner’s place of business pursuant to a search warrant, and to punish them for alleged abuse of process.

W. A. Ridgway and another were indicted for using the post office in furtherance of a lottery, and they demurred to the indictment.

<p>At Law. Action by Mary Baldwin against the Pacific Power & Light Company and another. On motion to remand.</p>

<p>1. Bankruptcy (§ 404*) — Partnership—Petition for Discharge — Failure to Apply — Conclusiveness—Subsequent Proceedings.</p> <p>Involuntary proceedings having been instituted in New York in September, 190S, against a partnership of which petitioner was a member and against the members of the firm individually, petitioner failed to apply for discharge within the time required, on which failure creditors having provable debts which had been proved in such proceedings brought suit against petitioner thereon in North Carolina and obtained judgment, whereupon petitioner filed a voluntary bankruptcy proceeding in December, 1911. Held that, the proceeding in New York having been against the firm and partners as well, petitioner’s failure to obtain a discharge therein was a bar to his discharge in the subsequent proceeding as to the debts provable in the former one.</p> <p>LEd. Note — For other cases, see Bankruptcy, Cent. Dig. §§ 079, 681, 691; Dec. Dig. § 4Q4.*]</p> <p>2. Bankruptcy (§ 404*) — Partnership—Adjudication Against Partners.</p> <p>A partnership may commit an act of bankruptcy mid be adjudged a bankrupt on its own petition or the petition of its creditors without proceeding against or joining the partners individually, though both the partnership and the individual partners may in the same proceeding be adjudged bankrupts, and in such case the partners may receive a discharge both individually and as members of the firm.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 679, 681, 691; Dec. Dig. § 404.*</p> <p>VVliat persons are subject to bankruptcy law, see note to Mattoon Nat. Bank of Mattoon, 111., v. First Nat. Bank of Mattoon, 111., 42 C. C. A. 4J</p>

<p>In Admiralty. Suit for collision by L. Furman Smith and others, as owners of the schooner Eugene Cathrall, against the steam tug Philadelphia.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Harold G. Meadows and Clarence De Witt, as individuals and as copartners of the firm of Meadows, Williams & Co. On exceptions to the report of the trustee.

<p>1. Injunction (§ 137*) — Preliminary Injunction — Conflicting Evidence.</p> <p>Whore an application for a in'eliminary injunction is based on conflicting affidavits as to the material facts, and the case may be tried on its merits, without great delay, a preliminary injunction will not be granted except in cases of pressing necessity, as when it appears that great, and irreparable damage is being done and that defendant is unable to respond in damages.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 307, 309; Dec. Dig. § 137.*]</p> <p>2. Injunction (§ 13G*) — Preliminary Injunction — Right to Writ.</p> <p>Where, in a suit by a trading stamp concern against a competitor to restrain defendant’s interference with complainant’s customers by inducing them to break their contracts, defendants denied that they were doing any of the acts charged, tending to induce the merchants with whom • complainant had contracted to break or violate such contracts, it was proper for the court to grant a temporary injunction restraining defendants from inducing complainant’s customers to break their contracts by false statements or illegal means.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 186.*]</p> <p>3. Injunction (§ 142*) — Preliminary Injunction — Parties.</p> <p>Where complainant furnished trading stamps to merchants who furnished the same to customers as premiums as a reward for paying cash, and complainant claimed that defendant engaged in a similar business, unlawfully induced claimant’s customers, by false statements and unlawful means, to break tbeir contracts, the court would not restrain defendant from furnishing its stamps to merchants at the suit of complainant to which the merchants were neither parties nor afforded an opportunity to be heard.</p> <p>[Ed. Note. — For other cases, éee Injunction, Cent. Dig. § 314; Dec. Dig. § 142.*]</p> <p>4. Injunction (§ 99*) — Competition.</p> <p>The right to compete in any legitimate business in lawful ways-and by lawful means is sacred and cannot be interfered with by injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 172; Dec. Dig. § 99.*]</p> <p>5. Injunction (§ 9*) — Peeliminaby Injunction — Right to Writ.</p> <p>A preliminary injunction will be granted only in cases where the right thereto is plain and the necessity is both apparent and pressing.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § S; Dec. Dig. § 9.*]</p> <p>6. Injunction (§ 63*) — Unlawful Competition — Breach of Contract.</p> <p>Where defendants had maliciously interfered with lawful and valid contracts between complainant and its customers, and are liable to continue so to do, and the damages suffered by complainant will be difficult of ascertainment, and a multiplicity' of actions will be necessary to remedy such threatened wrongs, a permanent injunction will be granted without proof of express malice.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 03.*]</p> <p>7. Torts (§ 12*) — Unlawful Competition — Inducing Breach of Contract.</p> <p>The right to compete in business does not justify unfair competition or misrepresentations, which tend to induce one party to a legal contract to refuse to perform it to the damage, of the other party, or the giving of any form of consideration as an inducement to his violation of a valid contract.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 13; Dec. Dig. §12.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 G. C. A. 165; Lare v. Harper & Bros., 30 O. O. A. 376.J</p>

<p>1. Bankruptcy (§ 410*) — Referee’s Findings — Review.</p> <p>Findings by a referee in bankruptcy on questions of fact will not be disturbed, unless clearly and manifestly erroneous.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Gent. Dig. § 929; Dec. Dig. § 440.®</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.J</p> <p>2. Bankruptcy (§ 178*) — Bbkfebences—Frauduj.ent Mortgage.</p> <p>Where a bankrupt, with knowledge of insolvency, mortgaged its entire stock of goods and pledged its c-hoses in action for a large loan secured by a demand note, and used the proceeds to pay three creditors, leaving a considerable number unprotected, and the lender bad reasonable grounds for1 suspicion that the transfer was made with intent to delay the bankrupt’s other creditors, it was invalid, under Code Ga. 1910, § 3221, providing that every conveyance made with intention to delay or defraud creditors, known to the party taking the same, or in case tile latter shall have ground for reasonable suspicion thereof, shall be fraudulent and void against creditors; and was therefore unsustainable in bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 264-274, 283, 281; Dec. Dig. § 178.®]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of L. M. Thweatt. Objections by R. E. Dismukes, as trustee, to proof of a claim by Cliff R. Johnson as a secured and preferred claim. On petition to review a referee’s order sustaining the objections.

The American Express Company and the Adams Express Company were indicted for violating the interstate commerce act, and they move to quash the indictments.

In Bankruptcy. In the matter of bankruptcy proceedings of Whatley Bros., bankrupts. Proceedings by the David Adler Sons Clothing Company to reclaim certain goods. On certificate to review a referee’s order denying the relief prayed.

In Bankruptcy. In the matter of bankruptcy proceedings of Augustus S. Downing. Application by Barbara Troutwine and George F. Troutwine for an order revoking a discharge granted to the bankrupt,

<p>1. Bankruptcy (§ 316*) — Claim—Maturity.</p> <p>Where a bank at the time of a bankrupt’s assignment for benefit of creditors and subsequent bankruptcy held four notes against the bankrupt none of which were due at the time of the assignment, the bank’s claim on each note was a debt provable in bankruptcy proceedings, whether they were due or not when the petition was filed.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 474^476; Dec. Dig. § 316.*]</p> <p>2. Bankruptcy (§ 164*) — Set-Off—Bank Deposit — Indebtedness.</p> <p>The bankrupt, having a deposit account with the claimant bank, and indebted to ■ it on certain notes not yet due, applied to its creditors for an extension January 26, 1911. On January 30th, in consequence of the request for extenskfh, it made an arrangement with the bank, providing for the issuance of cashier’s checks to the bankrupt’s treasurer. On February 6th it assigned for the benefit of creditors, and was petitioned into bankruptcy February 16th, on which date $1,977.82 stood to its credit on the bank’s books in the cashier’s check account, there balancing certain cashier’s checks which had been- issued to the bankrupt’s treasurer, but left by him in the bank’s custody and control. This sum was part of a total amount transferred from the bankrupt’s deposit account to the cashier’s cheek account since January 30th, and made up of deposits made by the bankrupt, some of them before and some of them after January 30th. The bank had paid as usual, since January 30th, checks drawn by the bankrupt on its deposit account. Held, that such facts did not require a conclusion that the $1,977.82, though not originally received by way of preference, had since been so treated by the bank as to create a preference in its favor, and thus preclude the bank from offsetting it against the bankrupt’s debt on the notes.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 267; Dec. Dig. § 164.*]</p>

In Bankruptcy. Proceedings against the Adams Cloak, Suit & Fur House. On petition to review a referee’s order allowing the landlord’s claim of $33,500 fór the receiver’s use and occupation of petitioner’s premises.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Regealed Ice Company. On petition of the Great Lakes Engineering Works for cancellation of an indemnifying bond.</p>

In Equity. Action by George C. Rankin, receiver of the First National Bank of Alma, Kan.,'against Charles R. Miller and another, as executors, and others. On motion to reopen the case for further evidence.

In Bankruptcy. In the matter of the bankruptcy proceedings of the A. G. Crosby Company. On petition for review of referee’s order allowing the claim of the Saginaw Milling Company.

<p>In Equity. Suit by the Mackay Telegraph & Cable Company against the City of Texarkana, Ark. On application for temporary injunction.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Peerless Finishing Company. Applications for a sale of assets and for dismissal of an involuntary petition.

<p>In Equity. Suit by the Firth Sterling Steel Company against the Bethlehem Steel Company. On motion to expunge certain exhibits from the record.</p>

<p>Bankruptcy (§ 409*) — Grounds por Refusing Discharge — Failure to Keep Books.</p> <p>The mere failure of a bankrupt to keep books in his business does not authorize the court to refuse, him a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1003, c. 487, § 4, 32 Stat. 797, and Act June 25, 1910, e. 412, § 6, 3G Stat. 830 (U. S. Comp. St. Supp. 1911, p. 1490), but the burdén rests on an objecting creditor to further show that such failure was “with intent to conceal his financial condition,” and, in the absence of any declaration or statement by Mm tending to show his intent, where Ms acts were as consistent with an honest as with a dishonest intent, a finding by a referee in favor of bis honesty of purpose will not be reversed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p>

In Bankruptcy. Petition by Schumert & Warfield, Limited, and others for an adjudication in bankruptcy against the Security Brewing Company. A/erdict having been rendered for defendant, petitioners move for a new trial, and to enter judgment non obstante.

<p>1. Aliens (§ 60*) — Citizenship--Terms.</p> <p>Every state in general Inis tlie right to prescribe the terms on which it will "admit aliens to citizenship, and compliance with'those terms is a condition precedent to the power of the court to enter its decree.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 117, 118; Dec. Dig. § 60.*]</p> <p>2. Aliens (§ 62*) — Naturalization—Citizenship—‘'Good Moral Character.”</p> <p>Petitioner's application for citizenship was verified by a saloonkeeper, and declared on oath that petitioner’s occupation was that of clerk. An investigation disclosed that lie was a bartender for one of the witnesses verifying the application. Petitioner admitted that in 1908, within five years prior to the filing of the petition, he had been convicted in Kansas of violating the liquor law, and was arrested for selling liquor illegally in violation of an injunction; that lie was sentenced to 30 days in jail and to pay a fine of $100, but that he was paroled; and that the parole had terminated. Held, that such conduct showed a willful disregard, not. only of the laws of the state, but of tlie orders of the court, and that lie was therefore not entitled to citizenship, under Naturalization Act .Tune 29, 1906, e. .'1592, § 4, 34 Stat. 596 (TJ. S. Comp. St. Supp. 1911, p. 529), requiring that the applicant for five years shall have behaved as a man of good moral character, attached to the principles of- the Constitution of the United States, and well disposed to- the good order and happiness of tlie same.</p> <p>[E'd. Note. — For other cases, see Aliens, Cent. Dig. §§ 123-125; Dec. Dig. § 62.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3124.</p> <p>Citizenship under state and federal laws, see note to City of Minneapolis v. Reuní, 6 C. O. A. 37.]</p>

<p>1. Bankruptcy (§ 67*) — Aot or Bankruptcy — Excepted Persons.</p> <p>Tinder Bankr. Act July 1. 1898, c. 541, 30 Stilt. 545 (U. S. Comp. St. 1901, p. 3418), excepting certain persons from adjudication, sucb persons cannot commit an act of bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 17, 18. 86, 87; Dec. Dig. § 67.*</p> <p>What persons are subject to bankruptcy law. see note to Mattoon Nat. Bank of Mattoon v. First Nat. Bank of Mattoon, 42 C. C, A. 4.]</p> <p>2. Bankruptcy (§ 56*) — Act of Bankruptcy — Time.</p> <p>An act of bankruptcy is sucb when it is committed, or not at all: and if the act is committed by one who then is not of the class that the law permits to be adjudicated an involuntary bankrupt, It can furnish no subsequent basis for involuntary proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 61-65, 67, 68; Dec. Dig. § 56.*]</p> <p>3. Bankruptcy (§ 68*) — Act oe Bankruptcy-Exempt Occupations.</p> <p>One who contracts debts while engaged in a nonexempt occupation. and thereafter changes to an exempt occupation, and commits an act which in a nonexempt occupation would be an act of bankruptcy, is not subject to adjudication as an involuntary bankrupt.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 18, 86, 87; Dec. Dig. § 68.*]</p>

Petition for writ of habeas corpus by Dusan Yabucanin. Writ granted. Petitioner discharged, unless a new warrant is issued within 10 days.

<p>In the matter of one Kreuger, bankrupt. On review of order of referee.</p>

Action by Charles AT. Bush against B'rank S. Dusk. Judgment for plaintiff, and defendant appeals. The substance of the appellee’s bill against the appellant is that early in the year 1907 D. D. Streeter and the appellant.

Action by John Eucid against the E. I. Du Pont De Nemours Powder Company, a corporation. Judgment for defendant, and plaintiff brings error.

<p>1. Admiralty (§ 118*) — Appeal—Review.</p> <p>Act Eeb. 16, 1875, c. 77, 18 Stat. 315 (U. S. Comp. St. 1901, p. 525), which provided that Circuit Courts in admiralty eases on their instance side might impanel a jury, whose verdict, unless set aside, should be conclusive on the issues of fact submitted, on review by the Supreme Court, has no application to appeals from the District Court to (he Circuit Opurt of Appeals in admiralty, in which the decree is reviewable both as to the law and facts; and where in such cases the District Court has directed a jury trial under Rev. St. § 566 (U. S. Comp. St. 1901, p. 461), their verdict is not eouclnsive on the appellate court, although as a general rule it will not lie reversed when tlic evidence is conflicting.</p> <p>TEd. Note. — E'or other cases, see Admiralty, Cent. Dig. §§ 758-775, 791; Dec. Dig. § 118.*]</p> <p>2. Seamen (§ 29*) — Injury in Service — Liability of Vessel.</p> <p>Libelant, who was chef on a lake steamer, was injured by slipping and falling in a passageway, the floor of which was wet because of leakage from ] lipes and water spilled by seamen when washing their clothes on the deck, as they were permitted to do. The vessel had recently been inspected and given a certificate of seaworthiness by a federal inspector, and (here was no rule nor custom which required her to furnish equipment for washing clothes other than that used in this case. So far as shown by. the evidence, the leakage from pipes may have been due to the negligent failure to close faucets, and not to any defect; in the pipes. Held, on the evidence, that the injury was caused by the negligence of members of the crew, who were libelant’s fellow servants; and it appearing that the vessel was in no way nnseawortliy, or lacking or defective in equipment, she was liable in rem only to the extent of furnishing to libelant maintenance and proper treatment for his injury, and for his wages to the end of the voyage.</p> <p>[ISd. Note. — B’or other cases, see Seamen, Cent. Dig. §§ ISO, 1SS-19-1; Dec. Dig. §■ 29.*]</p>

Action by T. C. Thompson against the Great Northern Railway Company. Judgment for plaintiff, and defendant brings error. The defendant in error recovered a judgment against the plaintiff in error for damages for personal injuries received on October T6th in the town of Leavenworth, Wash. At the time of the accident Leavenworth had a population of 1,200 or 1,300.

Suit in admiralty by Pope & Talbott, a corporation, and others, owners of the schooner Mary E- Foster, against the tug Fearless; J. D. Spreckels &kBros. Company, claimant. Decree for libelants, and claimant appeals. The appellees were libelants in the court below, bringing the original libel against the tug Fearless and the dredge Pacific to recover damages alleged to have been sustained by the schooner Mary E. Foster while in tow of the tug in Honolulu harbor.

Suit in admiralty by Alex Zugehoer and K. J. Johannson against the gasoline launch Bainbridge; the Inland Navigation Company, claimant. Decree for respondent, and libelants appeal.

<p>Master and Servant (§ 73*) — Contract or Employment — Enforcement.</p> <p>Plaintiff contracted with certain insurance companies to turn over all Ms insurance business, in consideration of receiving from them as full compensation for his services SI ,000 for each month, which the contract provided should cover plaintiff’s services, and also the clerical services of plaintiff’s employes. Soon after the contract was made it \vas repudiated by defendants, owing to the San Francisco earthquake and lire, and at the end of the first year i)laintiff sued for and recovered a judgment for the total amount then due under the contract which was paid. During the second year, however, he continued to deliver business to defendants under the contract, but retained 15 per cent, of the premiums for alleged “office expenses.” Held, that the retention of such percentage constituted a breach of the contract by plaintiff, and precluded him from recovering the contract compensation for the second year.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 90-102; Dec. Dig. § 73.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 43*) — Marks Subjects of Appropriation' — Drawings of Expired Patent.</p> <p>On the expiration of a patent, any one has the "right to make the patented article, and to describe it in advertisements not only in the language of the patent, but also by the use of a drawing therein, and the patentee cannot, by registering such drawing as a trade-mark, secure the right to its continued exclusive use, since it becomes free to the public, along with the article which it describes.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 48, 49; Dec. Dig. § 43.*]</p> <p>2. Trade-Marks and Trade-Names (§ 93*) — Unfair Competition.</p> <p>Evidence considered, and held insufficient to sustain a claim of unfair competition by imitation of complainant’s labels and boxes containing, belt lacings.</p> <p>LEd. Note. — Eor other cases, see Trade-Marks and Trade-Names, Gent. Dig. §§ 104-106; Dec. Dig. § 93.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Sckeuer v. Muller, 20 G. G. A. 165; Lare v. Harper & Bros., 30 G. G. A. 376.]</p>

<p>Bankruptcy (§ 143*) — Change of Beneficiaries — “Dependent”—Sister of Insured.</p> <p>Act Pa. April 15, 1868 (P. L. 103), provided that all life policies which might thereafter mature, and which had been or should be taken out for the benefit of, or bona fide assigned to, the wife or children, or other ' relative “dependent” on the insured, should be vested in such wife, children, or other relative, free from the claim of insured’s creditors. Shortly before the bankruptcy of a firm of which insured was a member, he directed a policy on his life, payable to his executors, administrators, or assigns, to be so changed as to be made payable to his sister as beneficiary. The sister at one time had lived with her father and brothers, including the insured, and had been their housekeeper; but there was no evidence that she was “dependent” on insured at any time. Held, that the attempted change of benepciary to such sister was ineffectual to entitle her to the proceeds of the policy as against insured’s trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1991-1993.</p> <p>Change of beneficiary of insurance, see note to Hopkins v. Northwestern Life Assur. Co., 40 O. C. A. 4.]</p>

<p>Appeal and Error (§ 1009*) — Equity Suit — Findings—Review.</p> <p>Findings of tbe trial judge in an equity suit, based on tbe evidence of witnesses before him and resulting in a substantial conflict with respect to tbe material issues, will not be set aside on appeal.</p> <p>.[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*]</p>

<p>1. Commerce (§ 47*) — White Slave Traffic Act — Constitutionality.</p> <p>The act of Congress known as the “White Slave Traffic Act” (Act June 25, 1910, c. 395, 36 Stat, 825 [U. S. Comp. St. Supp. 1911, p, 1343]), is constitutional.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 26; Dee. Dig. § 47.*]</p> <p>2. Commerce (§ 82*) — Offenses—Transportation fob Prostitution — Evidence — Sufficiency.</p> <p>Evidence in prosecution under the “White Slave Traffic Act” (Act June 25, 1910, c. 395, 36 Stat. 825 [U. S. Comp. St. Supp. 1911, p. 1343]), hold to sustain a finding that accused transported women for the purpose of prostitution.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 47; Dec. Dig. § 82.*]</p>

Suit in equity by the American Radiator Company against the Shirley Radiator & Foundry Company. Decree for defendant, and complainant appeals. Bill for infringement of design patent No. 36,607, issued to Clarence M. Woolley, October 27, 1893, for an ornamental design for a steam radiator for use in dwelling houses.

Cross-Appeals from the District Court of the United States for the Western District of Pennsylvania. Suit by the Penn Klectrical & Manufacturing Company against John M. Conroy and others. Prom a decree assessing damages in a suit for patent infringement, both parties appeal.

In Bankruptcy. -In the matter of bankruptcy proceedings against the Percy Ford Company. Proceedings to review a referee’s order disallowing a claim of the Auto Spring Repairer Company.

<p>In Equity. Suit by the W. H. Coe Manufacturing Company and others against the American Roll Gold Leaf Company and others. On final hearing.</p>

<p>In Equity. Suit by the Perfection Cooler Company against Henry G. Cordley and others. On final hearing.</p>

<p>At Eaw. Action by the Boston Towboat Company against the John H. Sesuon Company. On demurrer by plaintiff to defendant’s second affirmative defense.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Nicholas W. Hoffman. On review of referee’s order adjudging that the title of certain bonds in the possession of the bankrupt’s wife was in the trustee, and directing her to turn them over to him.

In Equity. Suit by Constantine Stephano and another against Stamatis D. Satmatopoulos and others. On motion for preliminary injunction to restrain infringement of a trade-mark.

<p>1. Bankruptcy (§ 414*) — Discharge—Objections—Specifications.</p> <p>AVhere objections to a bankrupt’s discharge were based entirely on the ground that the bankrupt had been guilty of a conveyance with intent to defraud creditors, the fact that he was guilty of concealment of property was immaterial.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p> <p>2. Bankruptcy (§ 407*) — Discharge—Preferential Payment.</p> <p>The fact that a bankrupt made a preferential payment is not ground for denial of a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 7.38, 740-751, 758, 700, 761; Dec. Dig. § 407.*]</p>

<p>In Equity. Suit by the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company against William A. Wright, Comptroller General of the state of Georgia. On final hearing.</p>

William D. Kelson was indicted for making a false affidavit of residence with reference to an application to enter certain forest reserve lauds. On demurrer to the indictment.

Petition to Review Order of the District Court of the United States for the Northern Division of the Southern District of Alabama, in Bankruptcy. In the matter of bankruptcy proceedings of the Marengo County Mercantile Company. Reclamation proceeding by the Page Woven Wire Pence Company. Petition to review a referee’s order denying the relief prayed.

<p>At Law. Action by the Spokane Valley Land & Water Company against the County of Kootenai, ’Idaho. On demurrer ta amended complaint.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Ernest Stolp and another. Petition by Eeo Torbe to review proceedings before a referee for re-examination of a transaction with reference to an advance payment of fees by the bankrupts to petitioner as their attorney.</p> <p>The bankrupts were copartners. An involuntary petition was filed against them on June 21, 1911, which was pending until July 13, 1911, when they filed a voluntary petition, upon which an adjudication followed. It appears that on June 9th, or 12 days before the filing of the involuntary petition, one-of the bankrupts executed and delivered to the petitioner, Torbe, an attorney, a promissory note for ¡51,000. secured by a mortgage upon real estate owned by said bankrupt individually. The trustee filed a petition, representing that said mortgage was executed to said Torbe. and that the transaction was valid to tile extent only of a reasonable amount which might become due to said attorney for services to bo rendered, and praying for a re-examination of tile transaction pursuant to section GOd of the Bankruptcy Act.</p> <p>Pome time in May, 1911, the bankrupts, fioin'g pressed by their creditors, sought the advice of Torbe, who immediately endeavored to effect a compromise or composition. His services consisted of conferences and consultations with the bankrupts and their creditors. Many of the creditors were agreeable to the composition, but it became appa'rent, at or about the time of the execution of the mortgage, that the effort to induce all creditors to accept would be fruitless. During this time no money had been paid to said attorney, excepting an amount to defray the expenses of a trip to Michigan, finch being tire situation, and at the time when the necessity of resorting to bankruptcy proceedings had apparently been definitely determined by the bankrupts and the attorney, the note and mortgage above specified were given. The attorney, when asked respecting the arrangement, under which such mortgage was given to him, stated that it was “to secure such fees as I had already earned and would earn, and also to secure the payment of counsel fees in the matter.” He further stated, in answer to the question whether it was given in contemplation of bankruptcy, that it was given in contemplation “that there would not be any bankruptcy,” and, further, that the bankrupts contemplated such proceedings as a possibility “to procure a better settlement of their affairs.” Said attorney also produced before the referee a statement of liis account covering services rendered from May 1, 1910, to June 17, 1911, which, including a claim on behalf of associate counsel, aggregates $1,475.</p> <p>The referee held the mortgage void as preferential, but that said attorney had rendered services to tifie bankrupts in the hankrvptcy proceeding since Die filing of the petition, the reasonable value of which iatter is $100, and adjudged that the mortgage was valid to secure such sum. This ruling is brought here .for review.</p>

In Equity. In the matter of the determination of the relative rights to the waters of the Silvies river and its tributaries. An alleged separable controversy between petitioners and the Pacific Live Stock Company having been removed to the federal courts, the Attorney General of Oregon, in his official capacity, and as representing the -petitioners and other claimants, moved to remand.

<p>In Equity. Suit by W. E. Evans against S. G. Victor, United States Marshal, Eastern District of Oklahoma, and Henry A. Larsen, Chief Special Officer, United States Indian Service. On motion for preliminary injunction.</p>

<p>1. Colleges and Universities (§ 10*) — State Board m’ Regents — Contracts — Liability to Slit.</p> <p>The Regents of the University of Idaho, created by an act of the territorial Legislature of January 30, 1889 (Laws 1888-89, p. 17), and made a body corporate, with power to make contracts, may be sued on its contracts in a court of general jurisdiction.</p> <p>[Ed. Note. — For other cases, see Colleges and Universities, Cent. Dig. §§ 29-31; Dec. Dig. § 10.*]</p> <p>2. Courts (§ 303*) — Jurisdiction op Federal Courts — Suit Against State Board.</p> <p>A state may waive the privilege given it by the eleventh constitutional amendment of not being subject to suit in a federal court, and does so as to a state board, where it creates it a body corporate, with power to sue and be sued generally.</p> <p>[Ed. Noie.' — For other cases, see Courts, Cent. Dig. §§ 844, 844% ; Dec. Dig. | 303.*</p> <p>IVhat are suits against states within the meaning of Const. U. S. Amend. 11, see note to Murray v. Wilson Distilling Go., 92 O. O. A. 25.]</p> <p>3. States (§ 208*) — Complaint—Siipeiciency.</p> <p>The complaint in an action against a state board on a contract which was within the scope of its general authority is not required to anticipate a defense of ultra vires.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. § 199; Dee. Dig. § 208.*]</p>

In Admiralty.. Suit by Alexander Watson, owner of the schooner M. D. S., against the schooner Evolution, for salvage and' collision damages; also petition for salvage by the Mariners’ Towboat Company, owner of the tug Eveleth.

Arnulfo Chavez was indicted for violating Joint Resolution March 14, 1912, relating to the .exportation of munitions of war from any place in the United States to a country in which "conditions of domestic violence existed. On demurrer to indictment. The question to be decided is whether the indictment in this case charges an offense under the law.

<p>1. Collision (§ 94*) — Overtaking Vessel — Neglect to Keep Lookout.</p> <p>A steamship which overtook and ran down a tug, which was preceding her in San Francisco Bay for the purpose of docking her at the city, field solely in fault for not keeping out of the way as required by the rules, and for not keeping a lookout forward; it appearing from the evidence that the tug maintained her course and speed as was her duty.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 197-199; Dee. Dig. § 9-t.*J</p> <p>2. Collision (§ 105*) — Fault—Evidence.</p> <p>Where one vessel was guilty of a clear violation or the rules sufficient to account for a collision, she cannot escape liability by raising a mere doubt as to the conduct of the other vessel.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 105.*]</p> <p>8. Collision (§ 52*) — Overtaking Vessels — Duty of Overtaken Vessel.</p> <p>An overtaken vessel is under no duty to keep a lookout aft to prevent being run down by the overtaking vessel, but has a right to act on the presumption that the latter will keep out of her way.</p> <p>[Ed. Note. — For other cases, see Collision, Gent. Dig. § 62; Dec. Dig. § 52.*</p> <p>Collision with overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p>

<p>At Law. Action by John Cheko against the Pittsburgh-Buff alo Company. On motion by defendant for judgment.</p>

In Equity. Suit by Clarence O. Newcomb, as trustee in bankruptcy of the estate of John Biwer, bankrupt, against Mary M. Biwer and another. On plea to the jurisdiction of the court.

In Bankruptcy. In the matter of bankruptcy proceedings of the New Galt House Company. On petition for review of a refereeV. order denying the Mutual Benefit Life Insurance Company priority under a mortgage with reference to after-acquired property.

<p>Courts (§ 264*) — Jurisdiction of Federal Courts — Infringement Suits— Joinder of Separate Causes of Action.</p> <p>The fact that a federal court, under Judiciary Act: March 3, 1911, c. 231, § 48, 36 Stat, 1100 (IT. S. Comp. St. Supp. 1911, p. 1491 has jurisdiction of a suit between citizens of different states for Infringement of a patent, because charged to have been committed witty the district, where defendant has a regular and established place o. business, although neither party is a citizen or resident of the district, does not give it incidental or ancillary jurisdiction of a separable cause of action for unfair competition, not growing out of the same acts, as to which, under section 51, defendant could not bo separately sued, except in the district of the residence of either the plaintiff or the defendant.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 801; Dec. Dig. § 264.*]</p>

In ■ Admiralty. Suit by Cornelius A. Davis and others, owners of the schooner Gov. Ames, against the schooner Eejok; Charles L. Smith, claimant. On appeal from clerk’s taxation of costs.

Action by Francesco De Benedetto, an infant, by Peter Santees, his guardian ad litem, against the Alpha Portland Cement Company. Application by the attorney for a guardian ad litem appointed in another action to vacate the appointment of a guardian ad litem in the pending action and to discontinue the same.

In Admiralty. Suits by W. Irving Adams and others against the schooner Alert, and by Almon D. Malloch, owner of the Alert, against said Adams and others. On petition of Cyrus R. Tupper, foreign trustee in bankruptcy of Adams and others, complainants in the first suit and respondents in the second, for leave to intervene in the place of the bankrupts, without giving security for costs or damages.

Iii Error to the Circuit Court oí the United States for the District of Massachusetts. Action by the Metropolitan Stock Exchange against James D. Gill, Collector of Internal Revenue. Judgment for defendant, anil plaintiff brings error.

Action at law by Sallie Bilger against Jeremiah Nunan and O. Harbaugh. Judgment for defendants, and plaintiff brings error. This is an action in ejectment, brought by Sallie Bilger to recover possession of an undivided one-sixth interest in and to a tract of land in Jackson county, Or., described as containing 292 acres, but excepting therefrom a small tract of 3 acres deeded to a third party, with respect to which there is no issue.

Ernest Schraubstadter and Emile A. Groezinger were convicted of violating the Pure Food and Drugs Act, and they bring error. Plaintiffs in error were indicted under tlie Pure Food and Drugs Act, convicted, and lined each $300, from which judgment this writ of error is prosecuted. The indictment contains three counts.

Action by J. D. Drake and E. R. Drake, doing business under the name and style of Drake Bros., against the Journal Publishing Company, to recover the penalty provided by law for the infringement of a copyright. Judgment for plaintiffs, and defendant brings’ error.

Suit by the Physicians’ Defense Company against E. C. Cooper, Insurance Commissioner of the State of California. Judgment for defendant (188 Fed. 832), and complainant appeals. The Physicians’ Defense Company is a corporation of Indiana.

<p>1. Hastes and Servant (§ 170*) — Injuries to Servant — Competent Fellow Servants — Duty to Employ.</p> <p>A master’s duty to employ reasonably prudent and competent fellow servants is discharged when the master has exercised ordinary care, prudence, and circumspection to that end, such as a person of ordinary judgment and discernment, inured to that kind of business, would ordinarily exercise, having in mind the safety and security of the coemployés from harm and accident while engaged in their work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*]</p> <p>2. Master and Servant (§ 286*) — Injuries to Servant — Selection of Fellow Servants.</p> <p>In an action for injuries to a servant by the negligence of a coemployé, whether defendant was negligent in selecting the latter held for the jury.</p> <p>[Ed. Note.- — For other eases,' see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>3. Master and Servant (§ 88*) — Injuries to Servant — Termination of Employment — Returning from Work.</p> <p>Where an employé was permitted to ride on defendant’s engine from the place of his work to camp after the termination of the work for the day, and was injured while so doing, the master was not freed from liability because the servant at the time of his injury was not acting within the scope of his employment, because the relation of master and servant had temporarily ceased to exist; defendant being still under obligation to observe reasonable care for plaintiff’s protection while on his way to camp.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*</p> <p>Injuries to servant while not on duty, see note to Ellsworth v. Metheney, 44 C. C. A. 489.]</p> <p>4. Master and Servant (§§ 288, 289*) — Injuries to Servant — Contributory Negligence — Assumed Risk.</p> <p>In an action for injuries to a servant while riding on defendant’s engine from his place of employment to camp, whether plaintiff was negligent, and whether he assumed the risk of injury, held for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088, 1089, 1090, 1092-1132; Dec. Dig. §§ 288, 289.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

In Admiralty. Suit for collision by Charles L. Smith, as owner of the schooner Lejok, against the schooner Gov. Ames; Cornelius A. Davis and others, claimants. On appeal from clerk’s taxation of costs.

In Bankruptcy. In the matter of bankruptcy proceedings of I. SVickerman & Co., a copartnership, and Charles H. Vickerman and Irma S. Vickerman as individuals. On review of a decision of a referee allowing exemptions to the firm out of the partnership property, and directing a sale and proceeds applied to the satisfaction of tire debt Of an alleged lien creditor.

<p>Bankruptcy (§ 279*) — Action by Trustee — Conspiracy to Hinder and Delay Creditors.</p> <p>Under Bankr. Act July 1. 1898, c. 541; § 47a, 30 Stat. 557 (U. S. Comp. St. 1901, p. 3439), as amended by Act Cong. June 25, 1910, e. 412, § 8, 30 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), giving to a bankrupt's trustee, as to all property not in tbe custody of tbe bankruptcy court, tbe rights, remedies, and powers of a judgment creditor bolding an execution duly returned unsatisfied, a creditor being entitled to sue in trespass on tbe case for conspiracy, prior to bankruptcy, to fraudulently secrete and transfer tbe debtor’s property, such action may be maintained by tbe trustee.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p>

In Equity. Suit by the Trust Company of America against the Chicago, Peoria & St. Eouis Railway Company of Illinois. On intervening petition of John P. Ramsey and IT M. Merriam, receivers of defendant, against W. H. Stead, Attorney General, of Illinois, and others. On final hearing on exceptions to master’s report.

In Bankruptcy. In the matter of bankruptcy proceedings of F. M. & S. Q. Carlile. On petition to review a referee’s order setting aside a transfer of certain choses in action made by the bankrupts to the receiver of the Bank of Tarboro.

In Equity. Suit by the Northern Pacific Railway Company against George A. Lee, Jesse S. Jones, and Harry E. Wilson, members constituting the Public Service Commission of Washington, W. V. Tanner, Attorney General of Washington, and J. E. Car-man and C. H. Hyde; also suit by the Great Northern Railway Company against said Commission' and Attorney General and Fred Sylvester and George F. Sylvester. On demurrers to bills.

<p>In the matter of bankruptcy proceedings of the Wright-Dana Hardware Company. Application to review referee’s order dismissing the petition of John A. Cantwell, as trustee, to expunge the claim of the Warren Paint Company, on the ground that it was too great, and that plaintiff had received preferences from the bankrupt and had not surrendered the same.</p>

<p>Navigable Waters (§ 26*) — Obstruction by Pier Crib under Construction-Injury to Vessel by Collision — Liability.</p> <p>Evidence considered, in a suit by the owner of a steamer to recover damages for ber injury by coming into collision with a stone crib being built' by respondents as a government contractor in tlie barbor of Cleveland, when the steamer was entering the barbor at night, and held insufficient to sustain the burden resting on libelant to show that the injury arose through some fault or negligence of respondent, or even to show that the steamer struck the crib, rather than some other obstruction incident to the improvement work being carried on.</p> <p>[Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p>

Four actions by the United States against J. D.. Hamaker and others. Judgment for complainant in two of the cases, and order for dismissal in the other two.

<p>1. Criminal Law (§ 276*) — Jurisdiction—Plea.</p> <p>Where defendant, a corporation located in the Southern district of New York, was indicted in the Eastern district for violating the Pure Food and Drugs Law (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1911, p. Í3541), an objection that it could only bo prosecuted in the district where its principal place of business was located could not be raised by plea based on the wording of the information.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 636, 637; Dec. Dig. § 276.*]</p> <p>2. Food (§ 18*) — .Pure Food and Drugs Law — Interstate Commerce — Jurisdiction.</p> <p>Pure Food and Drugs Law June 30, 1906. c. 3915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), prohibits the Introduction into any state of any article of food or drugs adulterated and misbranded, and provides that any person who shall ship or deliver for shipment from any state to any other state any such adulterated article shall be guilty of a misdemeanor. Held that, since the statute relates solely to interstate commerce, no jurisdiction to prosecute for violation of the act can be acquired, except through the existence of interstate commerce.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 20; Dec. Dig. § 18.*J</p> <p>3. Food (§ 19*) — Adulteration—Pure Food and Drugs Law — Proceedings of Secretary of Agriculture — Certification.</p> <p>Pure Food and Drugs Law June 30, 1906, c. 3915, §> 4, 34 Stat. 769 (U. S. Comp. St. Supp. 1911, p. 1355), provides that the Secretary of Agriculture, after an investigation of the alleged violation of the law, shall at once certify the fact to the United States district attorney. Held, that such section requires the certification to the district attorney in whose _ district prosecution for the offense charged should be had.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 19.*]</p> <p>4. Criminal Law (§ 113*) — Pure Food and Drugs Law — Violation—Venue —Statutes.</p> <p>Pure Food and Drugs Law June 30, 1906, c. 3915, § 10, 34 Stat. 771 (U. S. Comí). St. Supp. 1911, p. 1360). providing for seizure of adulterated or misbranded goods within any district where they may be found, relates to civil proceedings against the goods only, and does not determine jurisdiction of a criminal prosecution.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. s 232; Dec. Dig. § 113.*]</p> <p>5. Criminal Law (§ 113*) — Pure Food and Drugs Act — Violation--Prosecution — Venue.</p> <p>Pure Food and Drugs Law June 30, 1906, e. 3915, § 2,34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), prohibits the introduction into any state of any article of food or drugs, adulterated or misbranded, and declares that any person who shall ship or deliver for shipment, from any state to any other state, any such adulterated article, shall be guilty of a misdemean- or. Held, that the gist of the offense is the shipping or delivering for shipment of adulterated or misbranded goods, to be introduced into another state by interstate commerce, and hence jurisdiction exists in the federal court of the district from which the goods were shipped, though defendant did not reside in such district.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §■ 232; Dec. Dig. § 113.*</p> <p>What constitutes a violation of pure food regulations, see note to Brina v. United States, 105 C. C. A. 559.]</p> <p>6. Criminal Law (§ 146*) — Pure Food and Drugs Law — Violation—Limitations.</p> <p>The general three-year statute of limitations applicable to crimes was not repealed by Pure Food and Drugs Law June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), containing no specific limitation on prosecutions thereunder, so as to require immediate prosecution on the theory that in case of delay, the right to prosecute would be barred by laches.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 258%, 259; Dec. Dig. § 146.*]</p>

<p>1. Licenses (§ 16*)' — Occupation Tan — Statutes—Application.</p> <p>Act Ala; March 31, 1911 (Acts 1911, p. 180) § 32, provides that each person,, firm, or corporation selling sewing machines in person or through agents shall pay $50 annually for each county in which they may sell or deliver such machines, and for each team used in delivering or displaying them in each county an additional sum of $25 annually, but that the section shall not apply to merchants selling sewing machines at their regularly established places of business. Held, that wrhere complainant sewing machine company, a foreign corporation, maintained places of business throughout the state where machines and parts were sold, and also sent out agents theréfrom, who traveled with sample machines through the rural districts of the state, selling the same 'by means of teams, in some instances the sale and delivery of machines occurring at the same time, it was subject to the tax, in so far as its business was conducted by means of such teams.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 36-40; Dec. Dig. § 16.*]</p> <p>2. Constitutional Law (§ 230*) — Licenses (§ 7*) — Equal Protection op Laws — License Tax — “Itinerant Dealers.”</p> <p>Such.section was not unconstitutional, as denying equal protection of the laws, since complainant’s agents, who traveled through the county with teams, were “itinerant dealers”; the occupation of selling machines in regularly established places of business, and by means of such teams going through the country, being sufficiently different to form proper subjects for legislative classification.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 687; Dec. Dig. § -230;* Licenses, Cent. Dig. §§ 7-15; Dec. Dig. § 7.*</p> <p>' For Other definitions, see Words and Phrases, vol. 4, p. 3798.]</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of William N. Crowell. On petition for review of referee’s order dismissing petition of the A. Homer Skinner Lumber Company for an order requiring the trustee to pay certain taxes.

<p>1. Bankruptcy (§ 384*) — Composition—False Statement — Fraudulent Intent.</p> <p>Fraudulent intent on the part of a bankrupt must be shown to sustain the charge of obtaining money on credit on materially false statements in wilting, made to the lender for the purpose of obtaining such credit, urged as an objection to confirmation of a composition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. g 3S4.*]</p> <p>2. Bankruptcy (§ 384*) — Composition—Defenses—False Statements.</p> <p>Bankrupt’s husband conducted her business as manager. In 1908 and 1910 he made false statements concerning the bankrupt’s assets and liabilities to obtain money for the bankrupt on credit from a trust company. The bankruptcy petition was not filed until June 29, 1911. During the interval the notes taken by the trust company had been repeatedly renewed or paid, and there had been a succession of transactions involving the giving of credit by the trust company. Held, that the facts were insufficient to show that the trust company extended credit on the faith of the statement of 1910, and that the statement .given in 1908 did not constitute a continuing representation, and was not one to which Bankr. Act June 25, 1910, e. 412, § 14b (3), 36 Stat. 839 (ü. S. Comp. St Supp. 1911, p. 1496), providing that a discharge shall not be granted where the bankrupt has obtained money on credit on materially false statements in writing, etc., applied, and hence the making of such statements was not a valid objection to confirmation of a composition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. § '384.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Simon Goldstein, bankrupt. On petition for review of referee’s orders allowing claim of the Salem Safe Deposit & Trust Company in the sum of $1,700, permitting it to vote on the claim as allowed, and refusing to adjourn the creditors’ meeting on failure to choose a trustee.

<p>1. Removal op Causes (§§ 11, 26*) — Causes Removable — Judicial Code— Construction.</p> <p>¡Under Judicial Code (Act March 3, 1911, c. 231) §§ 24, 28, 51, 36 Stat. 1091, 1094, 1101 (U. S. Comp. St. Supp. 1911, pp. 135, 140, 150), providing for the removal of causes from, state to federal courts, no cause may be removed that might not have been originally commenced in the federal court, and where jurisdiction depends solely on diversity of citizenship, only the court in the district in which either plaintiff or defendant resides obtains jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 29-31, 60-63; Dec. Dig. §§ 11, 26.*]</p> <p>2. Removal or Causes (§ 34*) — Federal Courts — Jurisdiction-AssionMENT.</p> <p>Where plaintiff claims as an assignee, the residence of the assignor, and not that of plaintiff, determines the question whether diverse citizenship exists, so as to justify a removal of the cause.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 70; Dec. Dig. § 34.*</p> <p>Diverse citizenship as.a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. G. A. 249; Mason v. Dullagham, 27 O. C. A. 298.]</p>

In Bankruptcy. In the matter of bankruptcy proceedings óf the Marble Products Company, Inc. On application for payment of counsel fees to certain attorneys rendered to voluntary trustees representing creditors before bankruptcy.

In Bankruptcy. In the matter of bankruptcy proceedings of the Reliable Bottle Box Company. On motion for an order compelling a former receiver to pay $1,583.40, with which his account was surcharged.

<p>1. Removal of Causes (§ 102*) — Defendants—Fraudulent Joinder — Non-liability of One Defendant.</p> <p>Where, in an action for libel against two defendants, the cause was removed by one of them on the ground of diverse citizenship, and that the other defendant was not liable, but it appeared that the law was locally unsettled and fairly debatable, the complaint could not be said to show fraudulent joinder on Its face, and, the exercise of the right to join being a matter to be settled on the trial, the cause would be remanded.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. |§ 218-220, 223, 224; Dec. Dig. § 102.*</p> <p>Fraudulent joinder of parties to prevent removal of causg, see note to OlTner v. Chicago & K. R. Co., 78 C. C. A. 362.]</p> <p>2. Removal of Causes (§ 36*) — Defendants—Fraudulent Joinder.</p> <p>Fraudulent joinder of defendants, in order to justify removal of the, cause, must in general essentially consist in a willful or negligent misstatement of fact.</p> <p>{Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*]</p>

Action by William Eraser Newberry against Clara Wilkinson, as administratrix of the estate of B. C. Van Houten, deceased, and others. Judgment for defendants (190 Eed. 62), and complainant appeals. The plaintiff, appellant here, was born September 8, 1885, and is the son of Arthur A. and Pauline B. Newberry. Pauline died intestate August 4, 1890. Her husband and son and a daughter survived her.

Suit by Nellie Mae Moore against John M. Smith and others. Decree for complainant, and defendánts appeal. This is the second time this case has been brought here. On the first occasion the present appellee was the appellant, and the present appellants the appellees.

<p>Bankruptcy (§ 140*) — Deposits—Special Purpose — Ownership.</p> <p>While B. was insolvent, and a month before his adjudication, defendant bank and the S. Company agreed with him to advance money to compromise with his creditors at 50 per cent. During the effort to compromise it was agreed that B. should retain custody of his goods, should sell Ohe same at retail, retaining $12 a week for his services, hold the balance of the proceeds In lieu of the goods, together with the goods unsold, for the benefit of all parties and creditors, and deposit the cash balances in the bank for safe-keeping for the purposes aforesaid. Held, that the depositing of the funds was sufficient consideration for the bank’s agreement to hold them for the purposes stated, and that the trustee in bankruptcy was entitled both to the deposit and to the unsold goods.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 221, 225; Dee. Dig. § 140.*]</p>

Action by the Chicago Title & Trust Company, as trustee in bankruptcy of Earl II. Held: and that the same are payable upon the return of the certificate or the duplicate thereof duly indorsed by the parties to the contract, or on the order of the president of the Board of Trade.

Action by Nellie Perkins against the Northern Pacific Railway Company. From a judgment for defendant non obstante veredicto (193 Fed. 219), plaintiff brings error. This was an action brought by the surviving widow and sole heir of H. C. Perkins, deceased, for the recovery of damages sustained by the alleged negligent killing of her husband by the defendant in error, defendant also in the court below.

<p>1. Contracts (§ 56*) — Consideration—.Sufficiency.</p> <p>Agreement upon a settlement of accounts between the two principal stockholders of a corporation on the retirement of , one of them was sufficient consideration to sustain the other’s agreement to account for any</p> <p>■ loss to the retiring stockholder that might be discovered within one year, resulting from the other party’s misrepresentation concerning the financial condition of the corporation.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 344; Dec. Dig. . § 56.*]</p> <p>2. Corporations (§ 121*) — Retirement of Stockholder — Contract with Successor.</p> <p>In an action. on a contract whereby defendant agreed to account to plaintiff for any loss resulting to the latter from any misstatement by defendant as to the financial condition of a corporation, stock in which plaintiff sold to defendant, evidence hold to sustain a finding as to the amount of loss so arising.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 504, 505; Dee. Dig. § 121.*]</p>

Action by the Kellogg-Mackay Company, a corporation, against the Havre Hotel Company and others. Judgment for defendants, and plaintiff brings error. The complaint contains the usual allegations of the incorporation of the Havre Hotel Company, of the Broadwater-Pepin Company, and of the co-partnership of Simon Pepin and E. T. Broadwater; the .defendants E. T. Broadwater and E. C. Carruth being sued in their individual capacity.

<p>1. Evidence (§ 116*) — Changed Conditions Subsequent to Accident— TjUIITATION.</p> <p>"Where, in an action for injuries at a railroad crossing, both parties introduced photographs of the location, is was not error for the court to admit evidence that the alleged obstruction to a view of the track from the public road had been cut away by the railroad company subsequent to the accident; it being limited by an instruction that the jury should consider it only to explain the photographs.</p> <p>I Ed. Note. — If or other cases, see Evidence, Cent. Dig. §§ 13d, 135; Dec. Dig. § 116.*]</p> <p>2. Raixeoads (§ 327*) — Crossing Accident — Cake Required.</p> <p>Travelers on a public highway, approaching a railroad crossing, are required to use their senses of sight and hearing to detect the approach of trains, and, when ihe track is obscured to the sigiit, greater care is devolved on them in the use of the sense of hearing, and in listening they must l>e so disposed as probably to listen effectively; otherwise, stiil greater care should be observed by not venturing on the track until it is ascertained that it will be clear, especially if trains are frequently passing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Doc. Dig. § 327.*]</p> <p>S. Railroads (§ 350*) — Crossing Accident — Contributory Negligence.</p> <p>Tn an action for injuries in a railroad crossing accident, whether plaintiffs were negligent in approaching the crossing held for the jury.</p> <p>[Ed. Note.. — For other cases, see Railroads, Gent. Dig. §§ 1152-1192: Dee. Dig. § 350.*]</p> <p>4. Railroads (§ 350*) — Crossing Accident — Question for Jury — Photographs.</p> <p>in an action for injuries at a railroad crossing, photographs taken at various points along the highway approaching the crossing, showing the view of the track in the direction from which the train approached, were not conclusive evidence that the situation was one of unobstructed view, since, without proof showing the viewpoint of the photographer, his distance from the scene, and the direction in which the camera was pointed the photographs were valueless for evidential purposes, and, such proof having been given, its weight was for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*</p> <p>Photographs as evidence in civil actions, see note to Porter v. Buckley, 78 C. C. A. 145.]</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington.</p> <p>Action at law by John Anderson against the Potlatch Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

Habeas corpus by Tsuji Suekichi. From an order discharging petitioner, the United States appeals. This is a proceeding hy writ of habeas corpus, on the petition of Tsuji Suekichi, the appellee, a subject of the Emperor of Japan. The petitioner migrated, and was admitted to the territory of Hawaii July 27, 1906.

Foster, Judge. John Ira Warren was convicted of willfully concealing certain property from his trustee in bankruptcy, and he brings error.

<p>1. Courts (§ 489*) — Jurisdiction op Federal Courts — Remedy in- State Court.</p> <p>Hurd’s Rev. St. 111. 1909, c. 24, § 267f, after authorizing city councils, by ordinance, to fix maximum water rates, provides that, in case the corporate authorities fix unjust and unreasonable charges, the same may be reviewed and determined by the circuit court of the county in which the city is located. HeJd that such section, in so far as it attempted to confer powers on the courts to review the reasonableness of rates so fixed, was in violation of Const. 111. art. 3, relative to the distribution of powers of government, that the legislative function of rate-making ended in the city council; and hence, alleged confiscatory rates having been adopted by a city ordinance, the water company, subject thereto, was not bound to apply to the local court for review before instituting injunction proceedings in a federal court of concurrent jurisdiction to restrain the enforcement of the ordinance,- on the ground t<hat it amounted to a taking of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1341, 1372-1375; Dec. Dig. § 489.*</p> <p>Conflict of jurisdiction of federal courts with state courts, see note to Louisville Trust Co. V. City of Cincinnati, 22 C. C. A. 356.]</p> <p>2. Waters And Water Courser (§ 203*) — Water Rates — Right to Relief— Review by Courts.</p> <p>Where complainant water company claimed that a city ordinance fixing water rates was confiscatory, and, if enforced, would constitute a taking of complainants’ property without due process of law, it was not bound to delay injunction proceedings until the ordinance had .been in fact carried into effect and its confiscatory character demonstrated by actual operation, but was entitled to sue at once, assuming the burden of proving that the operation of the ordinance would necessarily be so confiscatory as to violate the federal Constitution.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299;, Dec. Dig. § 203.*]</p> <p>3. Injunction (§ 151*) — Temporary Injunction — Trial.</p> <p>A full trial on the merits is not required on the hearing of an application for a temporary injunction.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. § 336; Dec. Dig. § 151.*]</p> <p>4. Appeal and Error (§ 954*) — Injunction (§ 135*) — -Review—Matters of Discretion — Issuance of Temporary Injunction.</p> <p>Issuance of a temporary injunction is largely within the discretion of the trial court, the exercise of which will not be reversed unless a clear abuse of discretion appears.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3818-3821; Dec. Dig. § 954 ;* Injunction, Cent. Dig. § 303; Dec. Dig. § 135.*]</p> <p>5. Injunction (§ 144*) — Issuance—Verified Bill.</p> <p>Where a water company filed a verified bill for an injunction restraining the enforcement of an alleged confiscatory ordinance fixing water rates, and there was no claim that the hill did not state facts sufficient to constitute a cause of action, the city having made no countershowing, it was not an abuse of the trial court’s discretion to issue a temporary injunction on the verified bill without supporting affidavits.</p> <p>[Ed. Note. — For otfier cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*]</p>

<p>1. Physicians and Surgeons (§ 16*) — Malpractice—Surgeons Jointly Engaged — Division of Work.</p> <p>Where two surgeons are independently engaged by a patient, and serve together by mutual consent, they are entitled, in the absence of instructions to the contrary, to make such division of service as in their honest judgment the circumstances may require; each being required, not only to bring to the case the ordinary knowledge and skill of the profession, but also to give his best personal attention and care thereto.</p> <p>[Kd. Note. — For other eases, see Physicians and Surgeons, Cent. Dig. I 31; Dec. Dig. § 16.*]</p> <p>2. Physicians and Surgeons (§ 16*) — Joint Service — Liability.</p> <p>Where two surgeons, independently engaged by a patient, serve together by mutual consent, each, in serving with the other, is answerable-for his own conduct and for all the wrongful acts or omissions of the other, which he observes and lets go on without objection, or which in tho exercise of reasonable diligence tinder the circumstances he should have observed.</p> <p>[Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 31; Dec. Dig. § 36.*]</p> <p>3. Physicians and Surgeons (§ 16*) — Joint Service — Scope oe Diability.</p> <p>I^laintiff independently employed defendant and It. as surgeons to attend her in child birth. Before removing the child with instruments, it was agreed between them that defendant should administer the ansestheiic and that R. should do the operating. Thereafter plaintiff charged defendant with malpractice, in that the instruments used were unsterilized, that all of the afterbirth was not removed, and that R. left plaintiff so badly lacerated that sewing was necessary, and that the lacerations were not sewed. Hold, that defendant was not liable for such acts, unless he, in the exercise of reasonable diligence under the circumstances, should have known of them, or that anything occurred to lead him to believe that R., a skillful surgeon, would have so performed the operation.</p> <p>[Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 31; Dec. Dig. § 16.*]</p>

<p>1. Action (§ 32*)- — Form of Action — Abolition—Statutes—Actions Ex Contractu and Ex Delicto.</p> <p>Act Pa. May 25, 1887 (P. E. 271; Pepper & Lewis’ Dig. pp. 5819, 5825), abolishing the distinctions theretofore existing between actions ex contractu and ex delicto, so far as relates to procedure, did not affect the distinction existing between such actions as to the legal rights of the parties; and hence a money demand, recoverable in assumpsit, could not be recovered in trespass for conversion.</p> <p>[Ed. Note. — Por other cases, see Action, Cent.- Dig. §§ 257-261, 316; Dec. Dig. § 32.*</p> <p>Forms of action in federal courts, following state practice, see note to O’Connell v. Reed, 5 O. C. A. 598.J</p> <p>2. Action (§ 27*) — Form op Action — Assumpsit—Trespass.</p> <p>Plaintiff alleged that defendants were brokers, and as such, had sold certain stocks for plaintiff, and received $5,527.71, which it was defendants’ duty to immediately pay over to plaintiff on or without demand, that defendants wholly disregarded their duties to plaintiff, as previously mentioned, to keep the proceeds of such stock solely and entirely applicable to carry out plaintiff’s particular transactions, but, with intent to defraud plaintiff, converted the fund to their own use on November 12, 1909, and continued, from that time until the present, refusing and neglecting to deliver or pay over to plaintiff such balance so illegally misappropriated. Held, that plaintiff’s cause of action was in assumpsit, and that the declaration in trespass was unsustainable.</p> <p>[Ed. Note. — For other cases, see Action, Gent. Dig. §§ 160-195; Dec. Dig. § 27.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by John J. Quirk against the Vilter Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in admiralty by Alex Zueghoer and others against the steamship Columbia; James Barron, claimant. Decree for libelants, and claimant appeals.

<p>Contracts (§ 348*) — Assumption of Contract — Presumption.</p> <p>Where defendant purchased the mine of the Morris Coal Company which had a contract for the sale of coal to plaintiif, the fact that such contract with a written assignment indorsed thereon by the coal company was left by it, together with the deed, abstracts, and other eon-tracts, In the office of defendant’s attorney at the time the sale was closed, raised a presumption that defendant assumed the contract, which, however, was rebuttable by proof to the contrary.</p> <p>pad. Note. — For other cases, see Contracts, Cent. Dig. §§1754-1780; Dec. Dig. § 348.*]</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Suit in equity by the Marshall & Stearns Company and Charles R. Jordan against the Murphy Manufacturing'Company and William U. Murphy. Decree for defendants, and complainants appeal.</p>

<p>1. Patents (§ 330*) — Suit for Infringement — -Demurrer.</p> <p>If there is obviously no patentable invention in a patented device, it is within the power and is the duty of the court to sustain a demurrer to a hill for infringement; hut such power should be exercised wifh the utmost caution, and all doubts should be resolved against the defendant.</p> <p>[Ed. Note. — B^or other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*</p> <p>Pleading in infringement suits, demurrer for want of novelty and invention, see note to Caldwell v. Powell, 19 C. C. A. 595.]</p> <p>2. Patents (§ 328*) — Invention—Steering Wheel for Autovehicles.</p> <p>The Towne patent, No. 848,144, for a steering wheel for autovehieles, having a rim with a smooth outer surface, and an inner surface with scallops or indentations, to prevent thejSngers of the operator from slipping, is void on its face for lack of invention.</p>

<p>In Hquity. Suit by the Fischer Manufacturing Company against James Lawrence, doing business as the Williams-Lawrence Shoe Company. On final hearing. Decree for complainant.</p>

In Equity. Suit by the Winchester Repeating Arms Company against H. • Buengar and Reon A. Olmsted. On motion for preliminary injunction. The complainant has moved for a preliminary injunction upon a bill, supported by affidavits, charging defendants with infringing five letters patent, owned by the complainant, relating to gnn improvements capable of conjoint use, and embodied in the gun known as “Winchester Repeating Shotgun 1897,” made by the complainant.

<p>Patents (§ 32S*) — Invention—Dumping Wagon.</p> <p>The Leonhardt patent, No. 709,716, for a dumping wagon, held void for lack of patentable invention.</p>

<p>In Equity. Suit by the Northern Insulating Company against the Union Fibre Company and James E. Lappen. On motion for preliminary injunction.</p>

<p>1. Patents (§ 283*) — Validity—Knowledge by Patentee of Principle of Operation.</p> <p>A patentee -should not be deprived of the benefit of his invention, if meritorious, 'because he may not understand the principle o-f its operation.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-450, 452; Dec. Dig. § 283.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Toastee.</p> <p>The Andrews patent, No. 897,513, for a toaster, was not anticipated, and discloses invention; also held infringed.</p>

<p>At Law. Action 'by the Empire Rice Mill Company, Limited, against K. & E. Neumond. On exceptions to the jurisdiction of the court.</p>

<p>1. Bankrttftoy (§ 107*) — Proceedings—Findings of Special Commissioner</p> <p>—Conflicting Evidence.</p> <p>A finding of fact by a special commissioner in bankruptcy proceedings, based on conflicting evidence, will be sustained by the court, unless entirely erroneous.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. $ 107.*]</p> <p>2. Bankruptcy (§ 317*) — Service of Attorney Before Bankruptcy — Fees.</p> <p>Where, prior to bankruptcy, the debtor employed an attorney to prosecute a suit to foreclose a mechanic’s lien without any specified contract for the attorney’s services, the attorney, having prosecuted the suit to conclusion and turned over the proceeds, amounting to $541.92, and $147.85 costs, was entitled to an allowance of $200 for his services.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 493-495; Dee. Dig. § 317.*]</p> <p>3. Bankruptcy. (§ 314*) — Claims—Attorney’s Fees — Services Before Bankruptcy:</p> <p>Claimant, an attorney, had- rendered services to the bankrupt more than four months before the bankruptcy, the value of which amounted to $249.50. He had no express contract for fees, but both he and the insolvent expected that he would be paid.for such services out of the proceeds of a mechanic’s lien, which he later foreclosed. Held, that such acknowledgment was equivalent to an equitable assignment, and that he was entitled to allowance for such services out of the proceeds in the lien case.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 469-473, 478, 483-487, 489, 490; Dec. Dig. § 314.*]</p>

<p>1. Bankruptcy (§ 57*) — Acts of Bankruptcy — Bonus to Lender.</p> <p>An alleged bankrupt executed a chattel mortgage for $475, covering a stock of goods, receiving from the lender $450 in cash; the balance being a bonus of extra interest demanded by the lender for making the loan. Of the amount received, the borrower paid $300 to cancel and discharge a prior mortgage existing on the same property, and of the remainder $50 was paid to a bank to take up a note previously given by him for money with which to pay a merchandise account to another creditor. Held, that the payment of the bonus did not constitute an act of bankruptcy, on the theory that it was a conveyance of the debtor’s property with intent to hinder, delay, or defraud creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 232-236; Dec. Dig. § 57.*]</p> <p>2. Bankruptcy (§ 58*) — Acts of Bankruptcy — Preferences.</p> <p>The payment of a $50 note to a bank did not constitute an act of bankruptcy, as a payment in full to one creditor with intent to prefer it.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 263-277; Dee. Dig. § 58.*]</p> <p>3. Bankruptcy (§ 81*) — Involuntary Proceedings — Petition.</p> <p>An involuntary bankruptcy petition alleged that the debtor was insolvent, that he had committed acts of bankruptcy, in that, on May 29, 1912, he gave a chattel mortgage covering certain of his assets with intent to hinder, delay, and defraud his other creditors, that on the same date he transferred and conveyed certain of his property to one of his creditors, whose name was unknown, but which could be ascertained by reference to the flies of the village clerk at F., with intent to hinder, delay, and defraud his other creditors, that on the same date he did transfer certain of his property to creditors, whose names were unknown, with intent to prefer such creditors over other creditors of the same class, and that on the same date he did convey certain of his property with intent to hinder, delay, and defraud his creditors. Held that such petition was insufficient, in that it did not set forth any act of bankruptcy with sufficient particularity.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 370-423; Dec. Dig. § 81.*]</p>

<p>Petition by the United States against Jacob Kolodner to cancel a certificate of naturalization.</p>

In Equity. Suits by the United States to set aside a large number of alleged illegal conveyances of lands of the Five Civilized Tribes of Indians, known as the “30,000 Land Suits.” On demurrers to bills raising various questions.

Prosecutions by the United States against Deweese C. Nevin and others, against Jacob S. Appel and others, and against William Oppenheim. On demurrer to pleas in abatement.

<p>Action by H. Barrielle, Ainé, against Morris L,. Bettman, surviving partner, etc. On motions of plaintiff and defendant for a new 1 rial.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Charles Town Bight & Power Company. On petition to revise an order-of the referee touching certain mortgage bonds and their priority.

In Equity. Suit by the Sperry & Hutchinson Company against the City-of Tacoma and others to restrain the enforcement of an ordinance imposing a license tax on corporations furnishing trading stamps to be used in connection with sales of goods where the stamps are redeemable by others than the sellers of the goods. On plea in bar. Sustained, and findings and decree ordered for defendants.

<p>In Equity. Suit by the United States against Giacinto Cantini. Decree for defendant.</p>

<p>At Law. Action by Charles Thompson against G. S. Ward and the Illinois Central Railroad Company. On motion to remand.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of one Braverman. On motion to confirm report of a master recommending the bankrupt’s discharge, as against objections of the W. I,. Douglas Shoe Company.

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Suit in equity by D. P. Baker against Charles H. Swigart, F. Mc-Colloh, and R. K. Tiffany. Decree for defendants, and complainant appeals.</p>

Summary proceeding by J. S. Hopkins, trustee in bankruptcy of the Montgomery Drug Company, against the First National Bank of Thoma'sville, Ga. From an order requiring the bank to pay over certain deposits to the trustee, it appeals.

<p>Petition to Superintend and Revise Proceedings of the District Court of the United States for the Southern District of Georgia, in Bankruptcy.</p> <p>In the matter of the Montgomery Drug Company, bankrupt. On petition by the First National Bank of Thoiuasville, Ga., to superintend and revise an order made in summary proceedings instituted by J. S. Hopkins, trustee, requiring petitioner to pay over certain deposits.</p>

In the matter of bankruptcy proceedings of the Two Rivers Woodenware Company. From an order allowing the claim of Fred M. Mann as entitled to share in the disposition of money obtained as the result of a sale agreement, the First Savings & Trust Company, successor to the Milwaukee Trust Company, as trustee of the bankrupt, appeals.

<p>1. Courts (§ 365*) — Federal Courts — Following State Decisions.</p> <p>A decision of a state court of last resort that a municipal corporation, acting through a subordinate statutory ■ organization, may be liable for negligence in the construction of public works, is binding on a federal court in a ease subsequently arising, where the circumstances are such as to raise the same question of law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dec. Dig. § 365.*]'</p> <p>2, Master and Servant (§ 125*) — Master’s Liability for Injury to Servant — Defective Appliances.</p> <p>A master is liable for an injury to an employs through the breaking of a hook, furnished for his use, which was made of unsuitable material, where it had been in use for two months, although it was originally put in use through the negligence of a fellow servant of the injured- employs.</p> <p>' [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]</p> <p>3. Master and Servant (§ 201*) — Master's Liability for Injury to Servant — Concurrent Negligence.</p> <p>A master, through, whose negligence a servant is injured, is not relieved from liability because the negligence of a fellow servant concurred in producing the injury.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*]</p> <p>4. Evidencio (§ 514*) — Subjects of Expert Testimony.</p> <p>In an action for injuries to a servant by the breaking of a hook made of steel, instead of malleable iron, the difference in practical operation between hooks made of the different materials was a proper subject for expert testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2319-2323; Dec. Dig. § 514.*]</p>

<p>Petition to Superintend and Revise Proceedings of the District Court of the United States for the Southern District of.Georgia, in Bankruptcy; Wm. B. Sheppard, Judge.</p> <p>Petition by M. V. Kirkpatrick against Wyatt A. Harnesberger, as trustee in bankruptcy of T. W. Kirkpatrick.</p>

Action by the United States against the Galveston, Harrisburg & San Antonio Railway Company to recover penalties for violation of the Safety Appliance Act. Judgment for the United States, and defendant brings error. This action was brought to recover penalties for an alleged violation of the act of Congress, known as the Safety Appliance Act, approved March 2, 1893 (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp.

<p>In Error to the District Court of the United States for the Western District of .Pennsylvania; Charles P. Orr, Judge.</p> <p>Action at law by Roberta I. Fuller against the New York Life Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Carriers (§ 38*) — Interstate Commerce — Prosecution for Granting Rebates — Defenses.</p> <p>Where it was shown that defendant, a transportation company, which had joined with railroad carriers in establishing and filing with the Interstate Commerce Commission a joint through rate on grain from Philadelphia to Jacksonville, Fla., via Savannah, charged and collected less than such rate from certain shippers on grain billed from Philadelphia, defendant eould not show, as a defense to a prosecution for allowing a rebate, under Elkins Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1911, p. 1310), that the rate filed was not intended to apply to shipments originating at certain points further west, when no other or different rate was provided on shipments from such points.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dee. Dig. § 38 *</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p> <p>2. Jury (§ 82*) — Jury List — Revision.</p> <p>An order of a federal trial judge directing the jury commissioners to place in the jury box a certain number of names from the different counties comprising the district, while not expressly authorized by statute, was not so irregular or erroneous that prejudice to a party can be predicated thereon.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 34S, 359, 367, 380; Dec. Dig. § 82.*]</p>

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

In Equity. Suit by the Toledo Computing Scale Company against the Moneyweight Scale Company. Decree for complainant, which was affirmed on appeal. 178 Fed. 557, 187 Fed. 826. On petition in the Circuit Court of Appeals for leave to open decree for the introduction of newly discovered evidence.

In Equity. Suit by the Westinghouse Machine Company and Colo-man De Kando against the General Electric Company and Albert H. Armstrong. Decree for defendants. Suit in equity under the provisions of section 4915 of the Revised Statutes of the United States (U. S. Comp.

<p>In Equity. Suit by the Wollensak Optical Company against the Ilex Optical Company. On final hearing.</p>

Action by Monro Lemon, as trustee, and the Columbia Window Glass Company, against the Imperial Window Glass Company. On motion to quash and set aside the service of the summons, accepted for defendant by the Auditor, on the grounds that neither it nor the plaintiffs are or were citizens of the district at the time of the commencement of the suit.

<p>Libel by the United States for condemnation of 30 cases purporting to be grenadine syrup.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Charles Groezinger. Petition by M. M. Ruddy to reclaim certain machinery under a bill of sale.</p>

In Admiralty. Libels for collision by the Compañía Cubana de Navigacion, owner of the steamship Bayamo, against the steamtug Atkins Hughes and barge Caddo, and by the Texas Company, owner of the Caddo, against the Bayamo and Atkins Hughes. Decree for the Texas Company against both the Bayamo and Hughes.

In the matter of Sam Z. Lorch & Co., a corporation, bankrupt. On petition by trustee to review the referee’s order refusing to reconsider claim of the Louisville Stove Fixture Company, proved as a secured claim.

In the matter of the Weedman Stave Company, bankrupt. On motion for dissolution of restraining order, and to set aside an order requiring a receiver of a state court to turn over property to receiver in bankruptcy.

In Bankruptcy. In the matter of bankruptcy proceedings of Isaac H. Cox. On petition to review a referee’s order allowing two claims for wages filed by Cora E. Cox, the bankrupt’s wife, and to review an order declaring certain real property to be the separate property of said claimant.

<p>In Admiralty. Suit to enforce maritime liens against the steamer City of Milford; Stephen C. Puckette, claimant. Decree for libelants.</p>

<p>In the matter of bankruptcy of the Duran Mercantile Company. On motion to fix fees of attorney for bankrupt.</p>

In Admiralty. Suit by the Constantine & Pickering Steamship Company, owner of the steamship Kingswood, against the West India Steamship Company, for breach of charter party. The S. W. Bonsall Timber Properties, Limited, was impleaded by respondent. On final hearing. Decree for libelant for half damages.

In Admiralty. Suit by the Sea Insurance Company and others against the steamship Newport News for injury to cargo. On final hearing. Decree for claimant.

At Law. Action by Lurene Ople Kaus, a minor, by her guardian and next friend, Annie Kaus, against the American Surety Company of New York. On motion of defendant to dismiss for want of jurisdiction, and motion of plaintiff to strike out petitions of intervention. Motion to dismiss denied.

<p>■ At Law. Action -by the McCabe Construction Company against the Utah Construction Company. On motion by defendant for judgment on the pleadings.</p>

<p>Collision (§ 71*) — Anchobkd Vessels — Dbagging Anchoes in High Wind.</p> <p>A steamship anchored in the morning from one-half to three-quarters of a mile from three loaded coal barges, which had previously anchored alongside each other in Hampton Roads on the western side of the channel into Elizabeth river, during the day the wind was high, and she dragged her anchor, and drifted to within about three ship’s lengths of the barges, which then separated; two moving further up the channel and anchoring some distance apart. The steamship put out another anchor, but during the evening that also dragged, and she drifted again, and came into collision with both the barges which had moved. Held, that the separation and moving of the barges was a proper maneuver to lessen the danger from the drifting vessel, and that the steamship was solely in fault for the collision, it being her duty to give the barges ample and safe berths, and that she had ample warning from the weather conditions, which did not materially change, and from her previous dragging, that there was danger of interfering with the barges, and could not avoid liability on the ground of inevitable accident.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p>

"In Admiralty. Suit for collision by J. F. Burns, master of the gasoline sloop William M. Brittain, against the steam tug John I. Clark. Decree for libelant for half damages. On the morning of the 6th of February, 1912, about 10 o’clock, the gasoline sloop William M, Brittain was in collision with the steam tug John I. Clark, in the waters of the Elizabeth river, in front of the northernmost pier of the Norfolk & Western Railway at Lambert’s Point, Norfolk, Ya.

In Bankruptcy. In the matter of E. J. Kelly, bankrupt. On review of referee’s order disaffirming report of trustee setting aside the bankrupt’s exemption.

In Equity. Suit by Albert O. Smith, conservator, and others, against the Bowker-Torrey Company. On demurrer and exceptions of Grafton Sanderson and the Waltham Trust Company to receiver’s petition for an accounting.

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Wm. B. Sheppard, Judge.</p>

<p>Appeal from the Circuit Court of the United States for the District .of Connecticut; James P. Platt, Judge. This cause comes here upon appeal from a decree dismissing a bill in equity Complainant Grace Fones Copeland on August 14, 1908, executed a conveyance of personal property, which had come to her from her father’s estate, to Staples, as trustee, for certain purposes therein set forth; the object of the conveyance being to safeguard the property for herself and her daughter, and prevent her husband, who had deserted her and was living with another woman, from pressing any claim to such property, or any part of it, in the event of her death. This suit was brought to set aside the conveyance, or, in the alternative, for reformation thereof by inserting a clause of revocation. The opinion of the Circuit Court is found in 189 Fed. 250.</p>

<p>Appeal from and Petition for Revision in Bankruptcy in tile Circuit Court of the United States for the Southern District of Ohio.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

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

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

<p>In Error to the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama; Win. I. Grubb, Judge.</p>

Motion by appellants to amend the petition of appeal, citation, and assignment of errors by substituting for the words and figures “9th of March, 1912,” the words and figures “12th of March, 1912”; the latter being the date of the order which appellants seek to review.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas; Edward B. Meek, Judge.</p>

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

<p>Appeal from the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Thos. S. Maxey, Judge.</p>

<p>Petition to Revise Order of the District1: Court ' of the United States-for. the Eastern District of New York.,</p>

<p>Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p>