Volume 202 — Federal Reporter

Rud-kin, Judge. Action by E. U. Casey against the Barber Asphalt Paving Company. A judgment (192 Fed. 432) for defendant non obstante was entered, and plaintiff brings error.

Rose, Judge. Action at law by George B. Lewis, receiver of the Slingluff & Glacken Chemical Company, against Victor G. Bloede and the Victor G. Bloede Company of Baltimore City.

<p>In Error to the Circuit Court of the United States for the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit by the St. Paul, Fire & Marine Insurance Company against Hachiroyemon Mitsui and others, doing business under the name of Mitsui & Co., sometimes known as Mitsui Bussan Kaisha. Judgment for plaintiff, and defendants bring error.</p>

E. Boyd, Judge. Action at law by the United States against the Hiawassee Lumber Company. Judgment for defendant, and plaintiff brings error. This was an action of ejectment, brought by the United States against the Hiawassee Dumber Company, in the District Court of the United States for the Western District of North Carolina, to recover 5,000 acres of land embraced in grant No. 3,110, situate in Clay county, N. C., as set out in the complaint.

Petition for Revision of Proceedings of and Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg, in Bankruptcy; Alston G. Dayton, Judge. In the matter of Creed Collins, bankrupt. From a judgment allow-' ing a claim in favor of the Deckers Valley Dumber Company, Homer Adams, trustee, files a petition for revision, and also appeals.

Petition for Revision of Proceedings and Appeal from the District Court of the United States for the Eastern District, of Virginia, at Norfolk, in Bankruptcy; Edmund Waddill, Judge. In the matter of Isaac Kirsner, bankrupt; W. C. D. Taliaferro, C. Vernon .Spratley, and Allan D. Jones, trustees. From an order requiring bankrupt to turn over property, he appeals and also files petition for revision.

Otis Humphrey, Judge. Bill by Philip Allen, Jr., and another against Calvert Spensley, as trustee, and Christopher Ú Williams, as receiver, of the First National Bank of Mineral Point. From a decree dismissing the bill, plaintiffs appeal.

Landis and George A. Carpenter, Judges. Habeas corpus by the United States, on the relation of Toy Gwok Chee, to secure relator’s release from the custody of P. L. Prentis and ■ another under a deportation warrant. From an order denying the writ and remanding relator to custody, “to be dealt with in accordance with the law,” relator appeals.

<p>1. Courts (§ 365*) — Federal Courts — Duty to Follow State Court Decision.</p> <p>The obligation of a federal court to follow the decisions of state courts does not arise, unless the state court is a court of last resort, particularly where the opinions of the lower courts are not unanimous or numerous and old enough to show a settled rule.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dec. Dig. § 365.*</p> <p>Conelusiveness- of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co..v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Monopolies (§ 10*) — Public Policy — Federal and State Policy.</p> <p>In general, the policies of the state of Ohio and. of the United States regarding monopolies and restrictions of competition are the same; the rule being that of the common law, declared for Ohio by the Valentine Act (Rev. St. 1908, § 4427 — 1), and for the United States by the Sherman Act (Act July 2, 1S90, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent Dig. § 9; Dec. Dig. i 10*</p> <p>Monopolistic contract, validity as affected by public policy, see note to' Cravens v. Carter-Crume Co., 34 C. C. A. 4S6.]</p> <p>3. Monopolies (§ 20*) — Combinations Prohibited — Telephone Companies — Local and Long-Distance Companies — Connections — Exclusive, Rights.</p> <p>A contract between a local telephone company and a long-distance company for a connection between their lines and the use of the local lines •for the sending and receiving of long-distance messages, binding the local company not to permit any similar connection by any other long-distance company for a term of 99 years, thereby disabling it from giving its subscribers the benefit of competition in long-distance service and from extending its own sendee as authorized by its charter, was invalid, as tending to create a monopoly.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>4. TELEGRAPHS AND TELEPHONES (§ 28*) — POWERS-EXTENSION OF LINES.</p> <p>Under Rev. St. Ohio 1908, § 3455, conferring on telephone companies the power to extend their lines whenever and wherever the needs of the service and good business policy may dictate, the duty of a company to furnish reasonably adequate service is not confined to the date of its organization, but it is bound to keep pace with changing conditions as they may occur from year to year; and a contract disabling it from furnishing what may be adequate service is invalid.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 16, 17; Dec. Dig. § 28.*]</p> <p>5. Telegraphs and Telephones (§ 36*) — Long-Distance Sebvice — Adequacy.</p> <p>Long-distance telephone service is not necessarily reasonably adequate because it reaches the city or district of residence of the person with whom communication is desired.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 26, 31; Dec. Dig. § 36.*]</p> <p>0. Monopolies (§ 20*) — Consolidation Between Public Sebvice Corporations.</p> <p>Statutory power to consolidate with or purchase another company will not justify a general system of contracting -with a great number of other companies for exclusive mutual relation.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>T. Monopolies (§ 20*) — Restraining Competition — Exclusive Contracts.</p> <p>A general system of exclusive contracts prima facie restraining competition, might be justified if they are for a term not beyond any such necessity, as a 99-year contract for exclusive'interchange of telephone business.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p>

Ray, Judge. Suit by Susan S. C. Higgins against Hervey E. Eaton, as executor of the will of Elizabeth S. Eaton, deceased. Decree for complainant (188 Fed. 938), and defendant appeals. Elizabeth S. Eaton was domiciled in Ann Arbor, Mich., and died there in 1906 leaving two instruments purporting to be a will and its codicil.

<p>1. Judgment (§ 828*) — Judgments Operative as Bar — State and Federal Courts.</p> <p>A final judgment on the merits in the courts of a state is conclusive in the federal courts between the parties or their privies whether the question determined was one of federal, general, or local law.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dec. Dig. g 828 *</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 408.]</p> <p>2. Judgment (§ 572*) — Judgments Operative as Bar — Judgment on Demurrer.</p> <p>A judgment sustaining a demurrer to a bill to enjoin enforcement of a state statute on the ground of its unconstitutionality is as conclusive as one rendered on proof, and is a bar to a subsequent suit to have the statute declared invalid upon any ground which might have been litigated in the prior suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1047-1049; Dec. Dig. § 572.*]</p> <p>3. Licenses (§ 7*) — Tax on Occupations — Validity.</p> <p>Where a license tax on an occupation or a business is imposed by one provision of an act comprising a complete tax code for a state, an intention to prohibit such particular business cannot properly be imputed to the Legislature because of .the amount of the tax.</p> <p>• [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. § 7.*]</p> <p>4. Constitutional Law (§ 70*) — Judicial Power — Validity oe Statutes.</p> <p>It is not within the province of the federal courts to declare an act of a state Legislature, passed in the exercise of its lawful taxing power, invalid on the ground that the power was in the particular case exercised for an unlawful purpose, so long as there is no discrimination against citizens of other states nor interference with interstate commerce.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-130, 137; Dec. Dig. § 70.*]</p>

M. Smith, Judge. Actions at law by the National Bank of Savannah against the Kershaw Oil Mill and against the Lancaster Cotton Oil Company, respectively. Consolidated and tried together. Judgments for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Ryland C. Bruce and R. C. Prewitt were convicted of mailing non-mailable matter, and they bring error.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge. Suits in equity by Joseph F. Guffey and others against James A. Smith and others .and against Susannah Smith and others. Decrees for complainants, and defendants appeal.

D. Sanborn, Judge. Suit in admiralty by the Barnett & Record Company against the barge Aurora; Henry Wineman, Jr., owner. Decree for respondent, and libelant appeals.

B. Sheppard, Judge. Action by D. Hilton-Green and another, as executors of the estate of C. L. Wiggins, deceased, against the Mutual Fife Insurance Company of New York. Judgment for plaintiffs, and defendant brings error. This cause conies to this court upon a writ of error to review the judgment of the District Court of the United States fpr the Northern District of Florida in favor of the defendants in error, who were the plaintiffs in the District Court.

In the matter of C. B. .Wilcox, bankrupt;‘H. W. Lanz, trustee. From an order disallowing its claim as a secured claim, the First National Bank of Lake Charles appeals.

Petition to Superintend and Revise an Order of tiie District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge. In the matter of C. B. Wilcox, bankrupt; H. W. Lanz, trustee. The First National Bank of Lake Charles petitions to revise an order of the District Court.

Wright, Judge. Action at law by the Watson Coal Company against the Mississippi Valley Fuel Company and the American Surety Company of New York. Judgment for plaintiff, and defendants bring error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York; Learned Pland, Judge. In the matter of bankruptcy proceedings of Nevada-Utah Mines & Smelters Corporation. Petition by Francis P. McManus to revise an order (198 Fed. 497) directing and confirming a sale of the bankrupt’s assets.

<p>1. MASTER AND SERVANT (§ 3*)-CONTRACT OE EMPLOYMENT — CONSIDERATION.</p> <p>Where defendant orally agreed -that, if plaintiff would enter the employ of a corporation of which defendant was president, plaintiff should receive from the corporation $12,000 a year, and in addition 200 shares of the stock of the company from defendant at the end of each year’s service, the contract was not nudum pactum as to the plaintiff’s right to stock after the first year.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.*]</p> <p>2. Pleading (§ 430*) — Variance—Waiver oe Objections.</p> <p>Plaintiff having orally agreed to enter the employment of an electric company at a salary of $12,000 per year and a bonus of 200 shares of the corporation’s stock from defendant, defendant wrote plaintiff a letter so stating the arrangement as to provide that plaintiff should receive 200 shares of the stock at the-end of each year’s service. Plaintiff, in reply, called defendant’s attention to the difference, and stated that he did not desire to accept defendant’s letter beyond the oral arrangement, unless defendant was quite satisfied to'have him do so, to which defendant replied that his letter was in accordance with his understanding of the matter, and trusted that it was satisfactory to plaintiff, to which plaintiff did not reply, but entered the employment and received stock in accordance with the substituted arrangement for the years 1905 and' 1906. Held that, even if the correspondence made a new contract, different from that alleged, the letters having been introduced in evidence without objection, plaintiff was entitled to recover according to the proof made by them, since, in case an objection had been made, he could have amended the complaint to conform to the proof.</p> <p>[Ed. Note. — For other cases, see Pleading, Gent. Dig. §§ 1438-1441; Dee. Dig. § 430.*]</p> <p>3. Master and Servant (§ 73*) — Contract oe Employment — Disloyalty.</p> <p>Defendant induced plaintiff to enter the employ of a corporation at a salary of $12,000 a year, to be paid by the corporation, and 200 shares of stock, to be delivered to plaintiff each year by defendant. The contract was complied with and. stock delivered for the years 1905 and 1906; but, on request for the stock for the year 1907, defendant wrote plaintiff, merely asking for more time in which to make delivery, but making no objection that plaintiff had been disloyal, though there had been differences of opinion as to management. Held, that it was plaintiff's duty to differ from defendant with reference to the corporation’s management, if plaintiff honestly disagreed with defendant in respect thereto, and that plaintiff by reason of such difference was not chargeable with disloyalty, so as to deprive him of his right to the stock for the year 1907.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 90-102; Dee. Dig. § 73.*]</p>

<p>1. Internal Revenue (§ 38*) — War Revenue Act — Stamp Tax — Chemicals —Voluntary Payment.</p> <p>Where plaintiff prior to being advised of a decision that a preparation known as iehthyol was an uncompounded chemical hot subject to the war revenue stamp tax, purchased and affixed stamps without protest or objection, the payment was voluntary, and he could not recover the value of stamps, so used.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. § 38.*]</p> <p>2. Internal Revenue (§ 3S*) — Stamp Tax — Voluntary Payment.</p> <p>Plaintiff manufactured and sold a medicinal preparation known as iehthyol, on which prior to December 1, 1898, he had paid a stamp tax under War Revenue Act June 13, 1898, c. 448, 30 Stat. 448 (U. S. Comp. St. 1901, p. 2286); but on that date, ascertaining that it had been determined that the substance was an uncompounded chemical and not taxable, he omitted to affix stamps to containers of the preparation sold between that date and December 13, 1899. This being discovered, revenue officers insisted that the material was taxable, and that plaintiff should pay a sum equivalent to the face value of stamps which the government claimed should have been affixed, which plaintiff subsequently did. Held, that the payment was voluntary, and not under duress, and therefore could not be recovered.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. § 38.*]</p> <p>3. Internal Revenue (§ 38*) — Stamp Tax — Payment Under Dttress — Protest.</p> <p>Plaintiff put out a chemical substance, known as iehthyol, on which the government insisted on the payment of a war revenue stamp tax, notwithstanding it had been. determined that the substance was uncompounded and not taxable. Plaintiff purchased stamps, which were later affixed to containers, and, being compelled to pay the tax on sales of the chemical sent out without stamps, did so after filing a protest against the imposition of the tax, past and future, on the- ground that it was exempt from taxation as an uncompounded chemical, and notified the government that plaintiff at different times had affixed stamps, and was still affixing.the same, to the articles under duress. Held, that such notice was a sufficient protest to entitle plaintiff to recover the value of stamps affixed subsequent to the same; the tax not having been actually paid until the stamps were actually affixed to the containers.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dee. Dig. § 38.*]</p>

<p>Courts (§ 344*) — Federal Courts — Rules—Forms ox Process.</p> <p>The form of original writs in the federal courts in the District of Massachusetts, fixed by Act Sept. 29, 1789, c. 21, § 2, 1 Stat. 93, and made returnable on the first day of some term fixed by statute in accordance with the then practice in the courts of the state of Massachusetts, remains, notwithstanding a subsequent statute of Massachusetts modifying the form of writs; and, as the statutory return day of writs is the first day of some term appointed by statute, the District Court may refuse to direct the issuance of a writ returnable at another day.</p> <p>|Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dee. Dig. § 344.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Gall, 27 C. C. A. 392.]</p>

<p>CORPORATIONS (§ 156*)-PROFITS-RIGHTS OP COMMON AND PREFERRED STOCKHOLDERS.</p> <p>Preferred stockholders of a corporation, where the certificate of incorporation provides, as permitted by the law of the state, that the preferred’ stock should “receive interest or dividends of 8 per cent, per annum and be preferred as to capital as well as to dividends,” who have for years received their dividends, have no interest in surplus profits which have been allowed to accumulate during such years; but such earnings belong to the common stockholders, and may be distributed among them as cash dividends, or in the form of stock dividends.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 581-583, 593-603; Dec. Dig. § 156.*]</p> <p>Ward, Circuit Judge, dissenting.</p>

Dayton, Judge. Suit in equity by Harriet Elizabeth McBride against Emma Jane Kirkpatrick. Decree for complainant, and defendant appeals. This is an appeal from a decree entered in the District Court of the United States for the Northern District of West Virginia.

<p>1. Food (§ 12*) — Food and Drugs Act — Offenses— Shipment of Adulterated Food.</p> <p>Under Food and Drugs Act June 30, 1906, c. 3915, § 2, 34 Stat. 708 (U. S. Comp. St. Supp. 1911, p. 1354), which prohibits “the introduction into any state * * * of any article of food * * * which is adulterated,” and makes it an offense for any person to “ship or deliver for shipment” from one state to another such adulterated food, it is not a defense to a prosecution for making such a shipment that the articles were not shipped for sale, where the shipment was for any business purpose which constituted interstate commerce.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 12.*]</p> <p>2. Food (§ 12*) — Food and Drugs Act — Offenses—Shipment of Adulterated Food.</p> <p>Defendant shipped an adulterated tomato paste from its place of business in New Jersey to itself at its other place of business in Pennsylvania, for the purpose of having it there tested with a view to its export to England if it conformed to the English standard, which would have been lawful under the proviso in Food and Drugs Act June 30, 1906, c. 3915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1011, p. 1354). It failed to meet the test and was destroyed, not being used nor sold. Hold, that its shipment was in interstate commerce, and constituted an offense under said section of the act.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 12.*</p> <p>What constitutes a violation of pure food regulations, see note to Brina v. United States, 105 C. C. A. 559.]</p>

McPherson, Judge. Suit in equity by Alexander E. Redlich and Otto- Redlich, trading as the Redlich Manufacturing Company, and another, proceeding to judgment only as to plaintiffs named, against John H. Rice & Co. From an order granting a preliminary injunction, defendants appeal.

<p>In Error to the District Court of the United States for the District of Oregon; Chas. E. Wolverton, Judge.-</p> <p>Action by Thomas Evans against the Southern Pacific Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Suit by Electa A. Chapman against the Newmarket Manufacturing Company. From a decree granting relief, both parties appeal.</p>

Killits, Judge. Action by the D. E. Waterman Company against the Standard Drug Company. From an order dismissing a rule entered against defendant and one Sol. Teller, as its alleged agent, to show cause why a writ of attachment should not be issued against them as for contempt for violating an injunction previously granted in favor of complainant, it appeals.

Anderson, Judge. Suit by George A. Fernald and others against the Chicago, Cincinnati & Louisville Railroad Company, in which James P. Goodrich was appointed receiver of the company, and in which the Old Colony Trust Company of Boston and others were made parties. From decrees denying priority to the Carbon Fuel Company and the Hewitt Manufacturing Company, supply claimants, they appeal.

<p>1. 'COUBTS (§ 37*) — JUKISDICTION-OBJECTIONS—WAIVES.</p> <p>It is a general rule in the federal courts that an objection once taken to the jurisdiction is not waived by defendant’s subsequently answering and taking part in the trial.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 147-149, 151, 156; Dec. Dig. § 37.*]</p> <p>2. Judgment (§ 828*) — Fokeign Judgment — Jubisdiction—Attack.</p> <p>A defendant may attack a judgment of a court of another state for lack of jurisdiction, either appearing on the face of the record or proved by testimony.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dee. Dig. § 828.*]</p> <p>3. Judgment (§ 828*) — Fokeign Judgment — “Full Faith and Credit” — Usages.</p> <p>The full faith and credit which federal courts are required by Rev. St. § 905 (U. S. Comp. St. 1901, p. 677), to give to judgments of state courts, means the same faith and credit the judgment would have by law or usage within the state; and hence a usage, established by decision of the highest courts of Kentucky, that an appeal to the state Court of Appeals by a defendant, against whom judgment has been rendered, constitutes a waiver of an objection to the trial court’s jurisdiction, based on alleged insufficient sen-ice of process, must be'enforced in an action on the judgment in the federal courts.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1504-1509; Dee. Dig. § S28.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 2998, 2999; vol. 8, p. 7667.</p> <p>Giving full faith and credit, jurisdiction of federal courts, see note to Bailey v. Mosher, 11 O.- 0. A. 318.]</p> <p>4. Constitutional Law (§ 309*) — Due Process os' Law — Objections to Jurisdiction — Waives.</p> <p>The Kentucky rule, that an appeal by a defendant from a judgment against him to the state Court of Appeals operates as a waiver of objections to the jurisdiction of the trial court for insufficient service, is not invalid, as depriving the defendant of his property without due process of law.</p> <p>TEd. Note. — For other eases, see Constitutional Law, Cent. Dig.§§ 929, 930; Dec. Dig. § 309.*]</p>

M. Hough, Judge. Bill in equity by the Old Dominion Copper Mining & Smelting Company against Frederick Lewisohn and others. From a decree disr missing the hill (195 Fed. 637), complainant appeals.

<p>Appeal from the District Court of the. United States for the Southern District of New York; C. M. Hough, Judge.</p> <p>Suit in admiralty by the North Atlantic Dredging Company against the McAllister Steamboat Company. Decree for libelant, and respondent appeals.</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Western Division of the' Southern District of Ohio; J. E. Safer, Judge. Suit by the American Bridge Company of New York against the Cincinnati & Columbus Traction Company and others. Decree for plaintiff for less, than- the relief demanded, and both parties appeal.

<p>X. Trial (§ 252*) — INSTRUCTIONS—Applicability to Evidence.</p> <p>Where, in an action for injuries to a passenger, there was no evidence .of explanation on the part of the surgeon that attended plaintiff and operated on him after the accident, a request to charge that if the operation was performed in a negligent and unskillful manner, and by reason thereof additonal injuries were inflicted, plaintiff could not recover damages for the injuries inflicted by the unskillful operation, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-012; Dec. Dig. § 252.*]</p> <p>2. Trial (§ 260*) —Instructions — Requests to Charge — Instructions Given.</p> <p>It is not error to refuse requests to charge, the substance of which has been given in other instructions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Van Vechten Veeder, Judge.</p> <p>Suit in admiralty for collision by Ferdinand Gildersleeve, Oliver Gildersleeve, and Alfred Gildersleeve, copartners as S. Gildersleeve & Sons, owners of the barge Elheurah, against the steamboat Cetus; the Iron Steamboat Company, claimant. Decree for claimant, and libelants appeal.'</p> <p>A decree of the District Court for the' Southern District of New York dismissed the libel filed by the owners of the barge Elheurah for damages alleged to have been caused by the negligence of the steamboat Cetus in colliding with' the barge in the Hudson river at about 8 o’clock on the evening of August 31, 1908. The testimony was not taken until January, 1912. The collision occurred about 500 feet off the New York shore and in the vicinity of the New Jersey Central Ferry slip.</p>

<p>BANKRUPTCY (§ 116*) — ADVERSE CLAIM TO PROPERTY — PROCEEDING BY TRUSTEE eor Summary Order — Procedure.</p> <p>An order by a District Judge, referring a petition by a trustee for a summary order requiring a third person to turn over money as a part of the bankrupt’s estate to a special master, to take testimony ana report his opinion, was not a final determination that the claim of .such third person was merely colorable, which deprived the court of jurisdiction to subsequently direct the litigation of the matter in a plenary action, as recommended by the master.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Dec. Dig. § 116.*]</p>

Suits between Cecelia Lukins Pooler and another and Silas Hyne and Jennie Hyne. From decrees for the latter, the former appeal.

Company, bankrupt. From a decree rejecting a claim of the Traders’ National Bank against the bankrupt’s estate, it appeals, and Romney R. Wilson, trustee in bankruptcy, moves to dismiss the appeal.

Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy; Kenesaw M. Landis, Judge. In the matter of bankruptcy proceedings of Joseph Zinner.

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York; Learned Hand, Judge. In the matter of the Brockton Ideal Shoe Company, bankrupt. Ancillary petition by Thomas P. Dolan, trustee, to require Ignatz Roth to turn over property. On petition by the trustee for revision of an order sustaining a demurrer to his said petition.

<p>1. Public Lands (§ 120*) — Homestead—Female Claimant — Residence— FORFEITURE.</p> <p>Where, after entry of a homestead by a single woman, she married the entryman of the adjoining- claim, and from the time of her marriage until her final proof lived with her husband on his claim, and never returned to or resided on her own as a homestead, though it was improved and cultivated in connection with the claim of her husband, her proof of residence was false, and the claim subject to forfeiture.</p> <p>[Ed. Note. — For other cases-, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p> <p>2. Domicile (§ 5*) — Residence of I-Iusband — Residence of Wife. A husband’s residence is in law the residence of his wife.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. §§ 24-35; Dec. Dig. § 5.*]</p> <p>3. Public Lands (§ 30*) — Homestead—Entry—Husband and Wife.</p> <p>The homestead law neither permits nor contemplates that both husband and wife shall take advantage thereof.</p> <p>[Ed. Note. — Eor other eases, see Public Lands, Cent. Dig. §§ 48-50; Dec. Dig. § 30.*]</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Bill in equity by the Twin City Separator Company against the American Grain Separator Company and another. From an order refusing to dissolve an interlocutory injunction, defendants appeal.</p>

<p>1. Perjury (§ 9*) — Patents—Application—Verification—Authority to Administer Oath — Notary Public — “Authorized by Law.”</p> <p>A notary public of one of the states is an officer “authorized by law” to administer oaths-, within Rev. St. § 4S92, as amended by Act March 3, 1903, e. 1019, § 2, 32 Stat. 1226 (U. S. Comp. S-t. Supp. 1911, p. 1454), providing that an applicant for a patent shall make oath that he verily ■ believes himself to be the original inventor or discoverer of the art, etc., for which he solicits a patent, which oath may be made before any person within the United States “authorized by law” to administer oaths, etc.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 27-35; Dec. Dig. § 9.*]</p> <p>2. Perjury (§ 32*) — False Affidavit — Application eor Patent — ORIGINAL Inventor — Delay.</p> <p>In a prosecution for perjury, .based on the affidavit of an applicant for a patent that he verily believed himself to be the first inventor or discoverer of the art, etc., the fact that a prior inventor had unreasonably de-laj^ed the making and prosecuting of an application for a patent for himself, and had failed to use due diligence in reducing his idea to practice and making application for a patent, was immaterial.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.*]</p>

<p>Patents (§ 328*) — Validity and Initeingement- — Bedstead.</p> <p>The Hall and Tilley patent, No. 625,164, for bedstead fastenings, is of narrow scope, and must be limited to the precise device described and shown. As so limited, held not infringed by the device of the Frank patent, No. 650,311.</p>

Ray, Judge. Suit in equity by the Loraine Development Company against the General Electric Company. Decree for defendant, and complainant appeals. This cause comes here upon appeal from a decree dismissing complainant’s bill. The suit was the usual one in equity for alleged infringement of United States patent No. 975,935, granted November 15, 1910, to T. L. Carbone, for an arc lamp. The claims in controversy are the first and third.

<p>Appeal from the Circuit Court of the United States for the Western District of New York; John R. Hazel, Judge.</p> <p>Suit in equity by Albert Krauth and Christian Benninghofen against the ,CarterTCrume Company, Limited. Decree for defendant, and complainants appeal.</p> <p>The following is the opinion of the Circuit Court, by Hazel, District Judge:</p> <p>The patent in suit, No. 611,259, dated September 27, 1898, granted to Albert Krauth and Christian Benninghofen, relates to improvements in automatic registers, generally used in stores for the purpose of making on paper duplicate records of retail purchases. The writing paper is placed taut on the tablet and held by the machine, and after the purchase is recorded is withdrawn or detached at the end of the machine, while the carbon paper, which enables the reproduction of the original record, extends transversely from a roll-bearing device at one side of the casing across the tablet and is cut or torn off at the opposite side thereof. .Claim 8 only is alleged to be infringed by the defendant. It reads as follows :■</p> <p>“8. In an autographic register, the combination, substantially as set forth, of a casing, a tablet supported thereby, a holder for a roll of carbon paper disposed at one side of the top of the casing, a margin frame over said tablet and hinged at said carbon paper holder, and a flexible flange upon the free edge of said margin frame and arranged to cap down over the side wall of the casing opposite said carbon paper holder and form a flexible clamp and tearing blade.”</p> <p>The elements claimed to be new are a margin frame hinged at the carbon paper holder and a flexible flange upon the free edge of the margin frame. In its original phrasing the eighth claim was rejected by the examiner of patents as too broad, in view of the patentee’s prior patent, No. 538,264. It was pointed out by the examiner that the different elements were old, and in his-estimation it made no patentable difference that it showed the feature of hinging the margin frame at the side. Thereupon the patentee amended his claim, and substituted the feature of a flexible flange upon the free edge of the margin frame. His acquiescence in the rejection of the claim in its original form, and substitution of an element which palpably was narrower, precludes him from now insisting that his claim should be construed to cover the feature which the patent office rejected. This well-known rule calls for no citation of authorities; but, if one is necessary, the recent ruling on the subject by the Circuit Court of Appeals of the Second Circuit in Victor Talking Machine Co. v. American Graphophone Co., 151 Fed. 601, 81 C. C. A. 145, will undoubtedly be sufficient.</p> <p>However, I am reasonably satisfied by the evidence that neither the disclaimed feature nor the feature which was added to the combination, in view of the state of the art at the date of the invention, involved patentability. In the prior patent to Shoup, No. 561,350, is shown a flexible flange and the other elements of claim 8, save the hinging of the margin frame at the carbon holder. The Dick patent, No. 525,449, is for an autographic register similar in appearance to the Krau-th register in suit. The specification and claims describe a casing, a tablet supported by the casing, a holder for carbon paper at the side of the casing, and a margin frame overlying the tablet. In the Kirby patent, No. 469,665, for an autograph register, practically all -the elements in suit are shown. In his structure there is no carbon paper holder, but the carbon feeds from the carbon roll, and is drawn over to the opposite side of the roll, where it is held in place.</p> <p>The expert witnesses do not agree whether the margin frame of the structure is hinged at one of the ends or at the side, but an examination of the patent would seem to indicate that it is hinged at one end of the easing. But, in my mind, to hinge the margin frame at the side of the roll-containing trough, as in the patent in suit, instead of at the end of the easing, as in the prior art, does not disclose the exercise of invention. The mechanic skilled in the art of making automatic registers would readily have selected the carbon paper holder as a more suitable point for hinging the margin frame. With the trough containing the carbon roll attached to the tablet at the side, it became obvious that the margin frame should cover the trough and be hinged at the carbon roll. While, of course, it was necessary to consider the different co-operative parts affected by hinging the frame in locating such hinging, yet the structures and separate parts of the prior art tended to make the alteration or improvement in question a simple thing. The modification practically followed on the heels of Krauth’s prior patent, and very likely expediency and greater convenience in holding the carbon in place on the tablet made it advisable to hinge the frame at the side of the carbon roll. That such modification added to the utility of the device is immaterial, in view of its obviousness. The change in location of the hinging of the frame did not involve the exercise of inventive skill, and no advance was made in the art.</p> <p>Neither, in my judgment, was the substitution of the so-called flexible flange within the exercise of the inventive faculty. Flexible flanges to -facilitate cutting the carbon'paper were not discovered by the patentee. In the Shoup, Diclr, Farmer, and Kirby patents flexible flanges were used in connection with the margin frame. It is enough to specialize the Diels patent, in which the carbon paper is clamped in position by the lateral flanges of the frame.® The record abundantly shows, I think, that there was no novelty, at the date of the invention in suit, to use a margin frame having a flexible flange so arranged as to enable clamping the carbon at the side of the casing. What the patentee has done was in principle disclosed by the anterior art, and the modification or improvement made by him produced no new result, and falls within the field of the skilled mechanic.</p> <p>For the foregoing reasons, claim 8 is void for want of patentable invention, and infringement need not be considered. The bill is dismissed, with costs.</p>

<p>Patents (§ 308*) — Suit fob INFRINGEMENT — PRELIMINARY Injunction — En-FOBCEMENT.</p> <p>Where a preliminary injunction was granted restraining deféndant, which was an association of automobile owners, from selling to its members horns covered by complainant’s patents at a discount from the prices fixed by the license contracts under which they were sold by complainant, a scheme by which defendant charged the full price, but returned to the purchasing members a check for the amount of the discount previously given, payable to some charity designated by the purchaser, was a palpable device for evading obedience to the injunction, and required its modification.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 50-t-506; Dec. Dig. § 80S.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.</p> <p>Suit in equity by the American Optical Company against the Bay State Optical Company and another. Decree for defendants, and complainant appeals.</p>

<p>Patents (§ 328*) — Validity and Infringement — Voltaic Battery.</p> <p>Tie Dodge patent, No. 894,487, for a voltaic or primary battery, was not anticipated, and, although, the elements are old, covers a novel and patentable combination; the result being a battery which is stronger and cheaper, and can be more readily renewed, than those in prior use. Also held infringed.</p>

Hough, Judge. Suit in equity by the Electro-Dynamic Company against the Westinghouse Electric & Manufacturing Company. Decree for defendant, and complainant appeals. The bill was based on letters patent No. 775,310, granted to Mathias Pfatiseher November 22, 1904, for improvements in variable speed motors. Claims 1, 2, 5, 6, and 7 are involved.

<p>In Equity. Suit by the Waltham Watch Company against Charles A. Keene. On final hearing.</p> <p>Suit in equity to restrain alleged infringement of certain letters patent; the alleged infringement consisting of the violation of a certain so-called license agreement or restriction as to the resale of watch movements, and which fixes the price at which such movements shall be sold by dealers.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Harrison Bros. Petition to review referee’s order expunging the claim of Schloss Bros. & Co., on the ground that the claimants had received a… Held: the sale of the Delta store was necessary.. That in March, 1911, Dun & Oo. gave bankrupts a rating of but $20,000 and good credit.

In Equity. Suit by William Forse Scott, official or general assignee in bankruptcy for the Southern district of New York under the Bankruptcy Act of August 19, 1841, as assignee in bankruptcy of Tilly Allen, bankrupt, against the George’s Creek Coal & Iron Company.

<p>1. Bankruptcy (§ 288*) — Courts .op Bankruptcy — Summary Proceeding.</p> <p>A petition to have a trustee in bankruptcy decreed to hold certain real estate standing in the name of the bankrupt in trust for petitioner, and required to convey the same, is a summary proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. § 288.*]</p> <p>2. Bankruptcy (§ 302*) — “Summary Proceeding” — Procedure.</p> <p>“Summary procedure,” in bankruptcy, implies a single hearing in each tribunal, at which the merits of the controversy are investigated and decided, without much regard to formal pleadings, and such a controversy should not be disposed of on a demurrer, unless the facts are undisputed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 456, 457; Dee. Dig. § 302.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6786.]</p>

In the matter of the bankruptcy of S. Rodman Snelling. Petition by Anna L. Snelling to compel the trustee in bankruptcy to convey real estate to the petitioner.

<p>In Equity. Suit by the Puget Sound Traction, Eight & Power Company against Bob Lawrey and others. On plea to the court’s jurisdiction.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Emma G. Cuthbertson. Application to set aside an order of discharge.</p>

<p>Deuggists (§ 2*) — -Insecticide Act — Inteestate Cohmekce — “Inert.”</p> <p>Insecticide Act April 26, 1910, c. 191, § 8, par. 4, cl. 3, 36 Stat. 333 (U. S. Comp. St. Supp. 1911, p. 1372), provides that an insecticide shall be deemed misbranded, except in case of paris greens and lead arsenates, if it consists partially or completely of “an inert substance or substances ■which do not prevent, destroy, repel or mitigate insects,” unless the names and percentage amounts of such inert ingredients are stated on the label, or the names and percentage amounts of every ingredient having insecticidal properties and the total percentage of all inert ingredients are so stated. Held, that the word “inert,” as so used, is not limited in meaning to a substance which serves no useful purpose in the compound, but includes any substance which is not in itself capable of killing or repelling insects, although it may be useful and used for the purpose of attracting them.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 1; Dec. Dig. § 2.*]</p>

<p>In the matter of the bankruptcy of the East End Mantel & Tile Company. Question certified by the referee.</p>

<p>In Equity. Suit by Charles H. McCauley and others against Herman K. McCauley and another, administrator.</p>

<p>1. Public Lands (§ 106*) — Contest—Decision oe Land Department — Conclusiveness.</p> <p>Decision of a contest for public land by the Land Department is cón-clusive on the courts in the absence of any claim of mistake in the Department’s finding of facts, or that such finding was induced by fraud of the successful party.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ ÍL04, 301, 302; Dec. Dig. § 106 *</p> <p>Decisions of Land Department, their eonclusiveness and effect, see notes to Hartman v. Warren, 22 C. C. A. 38; Carson City Gold & Silver Min. Co. v. North Star Min. Co., 28 C. C. A. 344; Uinta Tunnel Min. & Transp. Co. v. Greede & Cripple Creek Min. & Mill. Co., 5T C. C. A. 207.]</p> <p>2. Public Lands (§ 89*) — Purchase erom Railroad — Homestead Claimant —Contest—Award by Land Department.</p> <p>Certain land having been patented to the state of Iowa for the benefit of the Sioux City & St. Paul Railroad Company, a part of the grant was sold by the railroad company before patent in June, 1888, to defendant’s ancestor. Notwithstanding the land was never patented to the railroad company, defendant’s ancestor was awarded a patent therefor under the Adjustment Act (Act Cong. March 3, 1887, c. 376, § 4, 24 Stat. 557 [U. S. Comp. St. 1901, p. 1596]). It having been determined that the railroad company was not entitled to the land, complainant sought to enter it as a homestead; but on a contest it was awarded to defendant’s ancestor, who had had actual possession for some seven years under his purchase from the railroad company and had cultivated more than 60 acres thereof. Held, that the land was not subject to homestead entry.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 270-272; Dec. Dig. § 89.*]</p>

In Equity. Suit by the Board of Trade of the City of Chicago against Henry C. Tucker and another. On order to show cause why an order for the taking of testimony before a special examiner should not be modified.

Habeas corpus by Charles A. Dunakin and Eliza H. Dunakin, his mother, to obtain a release of Charles A. Dunakin from the custody of civii officers on the charge of desertion from the United States army.

<p>Removal of Causes (§ 45*) — Actions Removable — Action Against Alien.</p> <p>Under Removal Act March 3, 1875, e. 137, 18 Stat. 470, as amended in 18S7 (Act March 3, 1S87, c. 373, 24 Stat. 552) and corrected in 1888 (Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), authorizing the removal of suits involving a controversy between citizens of a state and foreign states, citizens, or subjects, an action brought in the courts of one state by a corporation of another state against an alien corporation is removable; the alien’s right not being limited, by the provision that no civil suit shall be brought before either a Circuit or District Court of the United States against any person by any original process or proceedings in any other district than that whereof he is an inhabitant, to cases where the suit is brought against an alien in the district of plaintiff’s residence.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § S9: Dee. Dig. § 45.*]</p>

<p>In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and another, with three other causes. On motion to consolidate and refer to special master.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Niagara Bead & Battery Company.. On review of a referee’s decision awarding certain after-acquired property to the mortgagee.</p>

Application by Mathias Friedl for naturalization. On the 13th day of July, 1912, the petitioner filed his application to be admitted as a citizen, alleging therein his allegiance, his birth in Eisenberg, Austria-Hungary, March 20, 1866, and the other facts required by law to be set forth.

<p>CONSPIRACY (§ 28*) — Escape—Nature of Offense — “Any Prisoner” — “Another.”</p> <p>Pen. Code, § 37 (Act March 4, 1909, c. 321, 35 Stat. 1096 [U. S. Comp. St. Sapp. 1911, p. 1600]), provides that if two or more persons conspire ' to commit an offense against the United States, and one or more of them do any act to effect the object of the conspiracy, each shall be fined and imprisoned, -etc. Section 138 declares that whenever any marshal, deputy marshal, ministerial officer, or other person has in his custody any prisoner by virtue of process issued under the laws of the United States, and such marshal or other officer voluntarily suffers such prisoner to escape, he shall be fined or imprisoned etc. Held, that the words “any prisoner,” in section 138, were sufficiently broad to include a prisoner conspiring with his official custodian to permit him to escape, though' the word “another” excludes from its meaning oneself, and hence an indictment charging petitioner with conspiring with his guard and another to permit petitioner to escape from custody stated an offense against the United States.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. § 28.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 406, 407, 412-433; vol. 8, pp. 7575-7577.]</p>

<p>PRINCIPAL AND AGENT (§ 183*) — CONTRACT MADE BY AGENT — ACTION BY PRINCIPAL por Breach.</p> <p>A corporation, whose property was sold by another corporation as its agent, together with property owned by the agent, where the agency was disclosed to the purchaser and a separate price agreed on for each property, may maintain an action on the contract to recover its own share of such price, and especially where the purchaser under the contract has accxuired all of the capital stock of the agent.</p> <p>[Ed. Note. — -For other cases, see Principal and Agent, Cent. Dig. §§ 091-700; Dec. Dig. § 183.*]</p>

In Admiralty. Suit for collision by the Pittsburg Steamship Company, owner of the steamship John Ericsson, against the steamer Henry W. Oliver, the Wilson Transit Company, claimant, with cross-libel by claimant against the Ericsson and the barge Manila.

<p>Petition by the New York & Oriental Steamship Company, Limited, against the United States.</p>

<p>In Admiralty. Libels by the Reid Wrecking Company and the Reid Wrecking Company, Dimited, against the United States. Motion to quash the monition in each case.</p>

<p>1. Public Lands (§ 51*) — School Lands — Grant—Passing or- Title — Time.</p> <p>Oregon Enabling Act Feb. 14, 1859, c. 33, 11 Stat. 383, provides that sections 16 and 36 in every township of public lands in the state, and where such sections, or any part thereof, have been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the state for school purposes. Held, that such provision was not a grant of the lands in prsesenti, and that the title did not pass to the state until the lands were identified by official survey and location.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 138, 146; Dee. Dig. § 51.*]</p> <p>2. Public Lands (§ 51*) — School Lands — Identification—Survey.</p> <p>Since Surveyors General are forbidden to file duplicate plats in the local land offices until after the plats have been examined in the General Land Office and approved, a field survey of public land in a township is not sufficient to designate the location of school sections, so as to vest title thereto in the state; such designation not being complete until the duplicate plats approved by the land office have been duly filed.</p> <p>[Ed. Note. — For other cases', see Public Lands, Cent. Dig. §§ 138, 146; Dec. Dig. § 51.*]</p>

<p>In Admiralty. Suit by the Pocahontas Coal Company against the steamship Rokeby and the Munson Steamship Company, charterer.</p> <p>This is a libel in admiralty against tbe steamship Rokeby, brought by the Pocahontas Coal Company for the loss of part of a deck cargo of coke on the 7th of December, 1908, in the Gulf of Mexico, on a voyage from Newport News to Tampico, Mexico. The Munson Steamship Company was the charterer of the steamship Rokeby, and had accepted a cargo of coke from the libelant to occupy the whole of the vessel upon the voyage in question; the bill of lading especially providing that tbe coke should be stored both under and on deck. The Rokeby is what is known as a “three-island ship.” She has two wells, forward and aft, upon which the deck cargo may be stored. The method adopted in the case at bar was as follows: Along the side of each well were located stanchions of gumwood, 4 by 6 inches in width and thickness and about 18 feet in height. These were 2 feet 6 inches apart; the longer dimension of the section of the stanchion being set athwartships. The base of each stanchion was set some 6 inches inboard from the inner side of the bulwark, and the stanchion was fastened by a wooden cleat to the top of the bulwark at a height of 3 feet from the deck; the remainder going free into the air. Inch planking was nailed horizontally on the inside of the stanchions, so that two sides of a bin were formed on either side of the ship. The forward and aft sides of the bin were made in the same way, thus inclosing the whole space of the well. The winches and mast in the forward and after wells were protected by a smaller bin inclosed within, the larger, and the coke was piled into a space between the outer and inner bins so made. The total deck cargo was 1,120 tons, piled to a height of about 15 feet above the deck. The stanchions were held at the base by the weight and compactness of the coke itself, and the whole side was kept from going overboard by the steel bulwarks of the ship. The bulwarks were secured by braces, 3 feet 6 inches long, which were of steel, about 5 feet apart, or less, riveted into the steel deck.</p> <p>The vessel had fair weather after leaving Newport News until Sunday, the 6th of December, when she was in the Gulf of Mexico on a course somewhat south of west, at which time she encountered a moderate breeze and heavy beam seas from the north. This caused her to roll heavily in the trough of the sea, and some of the stanchions on the port side of the after well began to bulge over the bulwark to the amounFóf 6 inches at the top. In order to prevent this from going any further, these were lashed with wire lashings across the top athwartships, using the winches to make them tight. On Monday the breeze freshened into a gale, and on the evening of that day, at about 8 o’clock, the wind became a whole gale, causing the steamer still more to roll. At about 8:30 the port bulwark on the after deck gave way altogether, and let overboard about 30 per cent, of the coke, carrying away the stanchions and coke together, and tearing the entire bulwark, so that it was .well over the side of the vessel. This caused the vessel to list heavily to starboard, which broke the bulwark on the forward starboard well, throwing out about the same proportion of coke on that side. The steamer then righted herself and proceeded to Tampico, where she discharged the rest of her cargo.</p>

In Bankruptcy. In the matter of the Benwood Brewing Company, bankrupt. The bankrupt corporation issued bonds for $60,000, and secured the same by deed of trust upon all its real estate plant and fixtures. Nineteen thousand dollars of these bonds were sold for value. The remainder of them were hypothecated to secure sums borrowed at 50 cents on the dollar. The company became largely indebted to unsecured creditors, who were threatening suits.

Action for condemnation of property by the West Side Railroad Company against the California Pacific Railroad Company, the Southern Pacific Company, and others. On motion to remand to state court. This is a motion to remand.

<p>At Law. Action by 'N. Ford Brent, doing business under the firm name of Charles S. Brent & Bros., against the Charles H. Lilly Company.</p>

At Law. Action by Margaret C. Hawkins, as administratrix of the estate of Delford S. Hawkins, deceased, against the Barber Asphalt Paving Company. On demurrer to the complaint on the ground of another action pending.

In Admiralty. Suit for collision by the Duluth Steamship Company, owner of the steamship Sonoma, against the steamship Empire City, the Pittsburgh Steamship Company, claimant, and cross-libel by such company against the Sonoma.

<p>Criminal prosecution by the United States against Carter Thompson. On motion by defendant to amend judgment.</p>

<p>Dennis Healy was convicted of selling intoxicants to an Indian.</p>

In Equity. Suit by Louis E. Card against the Standard Coal & Coke Company. On demurrer to bill. This suit was brought by the complainant by bill in equity against the defendant for the alleged infringement of letters patent No. 794,587, issued to-the complainant July 11, 1905, for improvements in car handling apparatus.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; George Don-worth, Judge.</p> <p>Action by John P. Johnson against the Katalla Company. Judgment for plaintiff, and defendant brings error.</p> <p>This is an action for damages for personal injuries received by the plaintiff while employed as a laborer on the construction work of the Copper River & Northwestern Railroad, near Copper river, Alaska, in which the defendant company was engaged. Plaintiff’s injuries were caused by the premature explosion of dynamite furnished by the defendant.</p> <p>It is alleged in the complaint that, the defendant negligently and carelessly furnished the men working with the plaintiff and in his immediate neighborhood dapgerous and unsafe, defective, and extrahazardous dynamite for use by them in blasting the rock in a tunnel in which they were working; that the dynamite furnished was more than two years old, and by reason thereof unsafe to use and liable to explode prematurely, though' handled carefully; that the dynamite furnished by the defendant had further been exposed to the air, wind, rain, snow, heat, and cold before it was given to the men for use, thereby rendering it extrahazardous, unsafe to úse, and liable to explode, though handled carefully; that the age of said dynamite and its exposure to the elements and its extrahazardous condition by reason thereof were well known to the defendant and unknown to the plaintiff and the men using the dynamite, and to whom it was furnished by the defendant; that the defendant negligently and carelessly failed to inform plaintiff and the men using said dynamite of the extradangerous condition of the same; that while the men working with the plaintiff were loading a hole in the rock with the dynamite so furnished by the defendant, in a proper and careful manner, the dynamite exploded prematurely by reason of its extradangerous, unsafe condition, and -without warning and near the place where the plaintiff was working, causing the injuries received by the plaintiff ; that the force of the explosion caused a large rock to fall on the plaintiff, by which he was injured, cutting his head, fracturing several ribs, and crushing his right foot; that by reason of these injuries plaintiff had been unable to earn any money or do any work, and, it is alleged, would remain a cripple and unable to do any -work the remainder of his life. The defendant’s answer put in issue the material allegations of the complaint.</p> <p>The evidence on behalf of the plaintiff tended to establish the allegations of the complaint, and at the conclusion of the trial defendant moved the court to direct a verdict of the jury in favor of the defendant, upon the ground that the testimony was insufficient to entitle plaintiff to recover. This motion was denied. The jury returned a verdict in favor of the plaintiff for $7,500; but on motion of the defendant for a new trial the court held that the evidence did not sustain a verdict for $7,500, giving the plaintiff the option of reducing the verdict to $5,700 or accepting a new trial. Plaintiff thereupon filed his consent that the verdict be reduced to $5,700, -and a judgment was accordingly entered for that amount.</p>

C. Van Fleet, Judge. Bill in equity by George Wykes, as successor to the Holland Trust Company of New York, as trustee against the City Water Company of Santa Cruz and the City of Santa Cruz to foreclose a mortgage given by the water company to secure bonds issued by it. Judgment (184 Fed. 752) for complainant, and defendant city appeals.

<p>In Error to the District Court of the United States for the Southern Division of the District of Idaho; R. S. Bean, Judge.</p> <p>William" F. Kettenbach and George H. Kester were-convicted of violating the National Bank Act, and they bring error.</p>

<p>1. Contracts (§ 305*) — Modification—Contract to Build Railroad — Extension of Time.</p> <p>Complainant contracted to build a railroad for defendant to be completed by a certain date, unless delayed by causes beyond its control. During the progress of the work disagreements arose between the parties, especially as to the provisions of the contract with respect to ballasting, and the work was delayed, so that completion by the time fixed was impossible. It was of great importance to defendant that the road should be completed to a certain town.by that date, and its president made a proposition to complainant that it should lay the track to such town without ballast, and that defendant would do the ballasting for a stated reduction from the contract price, also stating that, if accepted, it should “close all minor questions, if any, unsettled, time of completion,” etc. A counter proposition somewhat differing in terms was accepted and carried out, and the work was thereupon completed and accepted. Held, that such modification of the original contract was a waiver by defendant of all claims for damages for failure to complete the, work by the time agreed, and that all that was required of complainant thereafter was to prosecute the work with due diligence.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1398, 1399, 1407-1475; Dee. Dig. § 305.*]</p> <p>2. Contracts (§ 246*) — Modification—Construction and Effect.</p> <p>A supplemental contract modifying a contract for the building of a railroad, made after the work had been partially completed, for the purpose of settling differences and controversies wMcU liad arisen respecting tlie provisions of the original contract, construed, and its effect on the rights of the parties determined.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1131-1138; Dec. Dig. § 246.*]</p>

<p>1. Indictment and Information (§ 15*) — Second Indictment — Federal Grand Jury — Jurisdiction—State Law.</p> <p>Under Rev. St. U. S. § 800 (U. S. Comp. St. 1901, p. 623), providing that federal jurors shall have the same qualifications as jurors of the Highest courts of law in the state, where they are to serve, and Cal. Penal Code, § 1008, as amended in 1905 (St. 1905, p. 773), providing that, if a demurrer is sustained to an indictment, it is a bar to another prosecution for the same offense, unless the court directs the case to be submitted to the same or another grand jury, a federal grand jury sitting in California, after having once found an indictment which is discovered to be defective, may return a second indictment for the same offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 83-88; Dec. Dig. § 15.*]</p> <p>2. Indictment and Information (§ 137*) — Motion to Quash — Pendency of Two Indictments.</p> <p>Pendency of two indictments against the defendant for the same offense is not ground for motion to quash the second.</p> <p>[Ed. Note. — For other cases, sefe Indictment and Information, Cent. Dig. §§ 480-487; Dee. Dig.' § 137.*]</p> <p>3. Post Office (§ 48*) — Receiving Stolen Mail Matter — Indictment.</p> <p>Rev. St. § 5470 (U. S. Comp. St. 1901, p. 3693), provides that any person who shall receive or conceal, or aid in receiving or concealing, any bank note, bank post bill, bill of exchange, etc., knowing any such article or thing to have been stolen or embezzled from the mail or out of any post office, shall be punishable. Held, that an indictment charging that defendant did willfully, etc., receive from A. certain described bank notes of a specified value which had been knowingly, etc., stolen from the mails, and that defendant at the time and place of receiving and concealing, etc., knew the same to have been unlawfully and feloniously stolen and carried away from the mails of the United States, imported that the concealment by defendant was done with an unlawful intent, and was therefore not objectionable for .failure to charge the intent or the name of the owner.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 66-80; Dec. Dig. § 48.*]</p> <p>4. Post Office (§ 44*) — Offenses Against the Mails.</p> <p>In prosecuting offenders for violating Rev. St. U. S. §§ 5467, 5469, 5470 (U. S. Comp. St. 1901, pp. 3691-3693), prohibiting the receiving of articles stolen from the mails, opening of letters and fraudulently obtaining mail, etc., it is not necessary that the indictment allege, or that the government prove, all the essential ingredients of the crime of larceny.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 60, 61; Dec. Dig. § 44.*]</p> <p>5. Criminal Law (§1120*) — Writ . of Error — Rulings on Evidence — Bill of Exceptions.</p> <p>Alleged wrongful admission of certain testimony cannot be reviewed, where the bill of exceptions does not-contain the testimony given by the witness after the overruling of the objections urged.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.*]</p> <p>6. Ckiminal Law (§ 413*) — Evidence—Self-Serving Declarations.</p> <p>Evidence that, after plaintiff was indicted for receiving or aiding in receiving or concealing money stolen from the mails, he went to witness, who was an attorney, and sought his advice as to whether he. could institute a suit to ascertain who the money belonged to, and was informed that he could not as that would be betraying the secrets of his client, was inadmissible as' self-serving declarations.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*]</p> <p>7. Witnesses (§ 78*) — Competency—Conviction of Felony — Pardon—Identity.</p> <p>Where one who had been convicted of a felony was offered as a witness for the government against accused, and on objection produced a pardon bearing the same name as the witness, who testified that he had received the pardon and had accepted it, the próof sufficiently identified the witness as the person pardoned.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. § 78.*]</p> <p>8. Witnesses (§ 49*) — Competency—Pardon.</p> <p>Where one convicted of certain felonies was offered by the government as a witness against accused and on objection produced pardons which were full and complete, they were effective to remove the penalties and disabilities and restore the witness to his rights, and were not objectionable as pardoning the offender, and not the offense, nor for failure to set forth the indictment and judgment of conviction for the offenses pardoned.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 116-118; Dec. Dig. § 49.*]</p> <p>9. Criminal Law (§ 1144*) — AYrit of Error — Presumptions—Foundation for Evidence.</p> <p>AVhere certain pardons were produced to qualify a witness who had been convicted of felonies against the United States, it would be presumed on writ of error, in the absence of anything appearing in the record to the contrary, that the court took judicial notice that the pardons related to the particular judgments under which the witness had been convicted, each pardon having stated the date of the conviction and sentence, and named the court in which the judgment was rendered.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dee. Dig. § 1144.*]</p> <p>’ 10. Criminal Law (§ 1122*) — Writ of Error — Instructions—Review.</p> <p>The Circuit Court of Appeals may refuse to review instructions objected to where the bill of exceptions does not contain all the instructions or the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945 ; Dec. Dig. § 1122.*]</p> <p>11. Criminal Law (§ 1137*) — Appeal—Instructions—Right to Allege Error.</p> <p>AVhere accused requested an instruction in which certain witnesses were designated as accomplices, he could not object that an instruction given referred to the same witnesses as accomplices, in that the determination of the question whether they were accomplices or not was for the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*]</p> <p>12. Criminal Law (§ 1038*) — Trial—Request to Charge.</p> <p>An objection that, an instruction given should have been qualified would not be reviewed, where plaintiff in error failed to call the trial court’s attention to the omission.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2999; Dec. Dig. § 1038.*]</p>

Denison, Judge. Suit by David-R. Shaw against the Goebel Brewing Company, Limited. Judgment for defendant, and complainant - appeals. This was a suit in equity to establish ownership in appellant of 60 shares of the capital stock of the appellee company; to compel the company “to reissue said stock” to appellant and to pay him all dividends that have accrued or may accrue thereon; and meanwhile to enjoin payment of accruing dividends.

Lewis, Judge. Mortgage foreclosure proceeding by William T. Conley against Fred W. Keitel. From an order denying the right of Edwin H. Park, an alleged creditor, to redeem, except on paying $3,000, with interest, he appeals.

Appeals from the District Court of the United States for the Southern District of New York; Julius M. Mayer, Judge. Petitions by William Steiner and others and by Leon Wagner for writs of habeas corpus. From decrees dismissing the writs, petitioners appeal.

Actions by John Armour, as administrator of the estate of Mira J. Armour, deceased, and by John Armour in his own behalf, against John Wanamaker. Judgment for defendant, and plaintiff brings error in each case.

B. McPherson, Judge. Action at law by Milton C. Elliott, as receiver of the Deposit National Bank of Philadelphia, to the use of the stockholders’ agent,, against F. M. Peet. From a judgment for plaintiff (192 Fed. 699), defendant brings error.

<p>In Error to the United States District Court for the Northern Division of the Western District of Washington; C. H. Hanford, Judge.</p> <p>Action by Eli Melovich against the Stone & Webster Engineering Corporation. Judgment for plaintiff, and defendant brings error.</p>

Rudkin. Judge. Action by Jacob Miller against the Spring Garden Insurance Company. Judgment for plaintiff, and defendant brings error.

Rud-kin, Judge. Action by the McDonough Manufacturing Company against the M. A. Phelps Dumber Company to enforce a lien for certain sawmill machinery. Decree for plaintiff, and defendant appeals. The appellant purchased from the appellee certain machinery and materials for a sawmill.

Rudkin, Judge. ■ Action by the McDonough Manufacturing Company against the M. A. Phelps Dumber Company. Judgment for plaintiff, and defendant brings error. The parties will be designated plaintiff and defendant, as in the court below. The action in the present case was brought by the plaintiff to recover on certain promissory notes executed by the defendant in payment for sawmill machinery and supplies furnished under a contract.

S. Bean, Judge. Action by Christian Luck against-the Otis Elevator Company. Judgment for plaintiff, and defendant brings error. The defendant iu error brought an action against the plaintiff in error to recover damages for personal injuries. For convenience the parties will be designated herein as they were in the court below. The plaintiff was employed by the defendant to assist in installing a plunger elevator in a building.

<p>1. Appeal and Error (§ 954*) — Preliminary Injunction — Discretion—Dissolution.</p> <p>While the granting of a preliminary injunction in the exercise of discretion will not be disturbed on appeal, unless it is violative of the rules of equity, yet it will be set aside, if the appellate court is of the opinion that the complainant was not entitled to an injunction, because the bill was without equity.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3S18-3821; Dec. Dig. § 954.*]</p> <p>2. Commerce (§ 89*) — Shipments or Liquors — Injunction—Necessity of Action by Commission.</p> <p>Where a bill to restrain an express company from transporting intrastate shipments of liquor in Georgia was based on the theory that such shipments were illegal in toto, as violative of the prohibition law of the state, and did not involve any question of regulation of rates, it was immaterial that the District Court had no jurisdiction to pass on a question of difference in rates applicable to such shipments and interstate shipments until the Interstate Commerce Commission had passed on it.</p> <p>[Ed. Note. — For other oases, see Commerce, Dec. Dig. § 89.*</p> <p>Regulations as to transportation of property as interference with interstate commerce, see note to Rupert v. United States, 104 C. C. A. 259.]</p> <p>3. Intoxicating Liquors (§ 261*) — Injunction—Transportation of Liquors — State - Prohibitory Law — Injunction.</p> <p>Where the state of Georgia had practically repealed its prohibitory law by nonenforcement, there was no equity in a bill by citizens of another state to restrain an express company from transporting intrastate shipments of liquor in Georgia.</p> <p>[Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. 400, 401; Dec. Dig. § 263.*]</p> <p>4. Intoxicating Liquors (§ 261*) — Injunction—Prohibition Laws — Aiding Violation.</p> <p>The transportation of liquors in Georgia by a common carrier not being an offense, an injunction restraining an express company from transporting intrastate shipments of liquor in that state, which merely aids others in violating the prohibition law, could not be sustained as within the court’s jurisdiction to enjoin the commission of a crime, where such commission involves the destruction of a private right, in that plaintiffs, who were nonresidents, and were entitled to ship liquor into Georgia in interstate commerce, could not compete with those who illegally sold and shipped the liquor within the state.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 400, 401; Dec. Dig. § 261.*]</p> <p>5. Nuisance (§ 72*) — 'Public Nuisance — Injunction.</p> <p>Equity will not interfere by injunction to restrain a public nuisance, except in cases of special aud serious injury to the complainant, distinct from that suffered by the public.</p> <p>[Ed. Note. — For other cases, see Nuisance, Gent. Dig. §§ 164-169; Dec. Dig. § 72.*]</p> <p>6. Intoxicating Diquors (§ 201*) — Injunction—Public Nuisance. .</p> <p>Where residents of Georgia made illegal sales of liquor in violation of the prohibitory law in that state, and were aided in so doing by defendant express company, which carried the liquor from consignor to consignee, and complainants, who were residents of Florida, legally sold liquor in Georgia in interstate commerce, but could not compete with the illegal intrastate sales so made, a bill by complainants to restrain defendant express company from accepting and transporting liquor within the state, failing to allege any of the parties to such illegal shipments or sales, was unsustainable as a bill to enjoin a nuisance.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, ■ Cent. Dig. §§ 400, 401; Dec. Dig. § 261.*]</p> <p>7. Appeal and Error (§ 117S*) — Reversal—Remand.</p> <p>Where a decree granting a preliminary injunction was reversed on appeal, because tlie complaint did not state facts authorizing equitable relief, the suit would not be dismissed, but would be remanded with leave to amend.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*]</p>

Dandis, Judge. _ _ Criminal prosecution by the United States against Hyman Rosen-feld. Judgment of conviction, and defendant brings error. The indictment herein contained eight counts charging violations of several sections of the Bevised Statutes of 'the United States, having reference to the handling of distilled spirits. Defendant went to trial on the plea of not guilty.

<p>1. Indictment and Infobmation (§ 71*) — Certainty op Allegations.</p> <p>The rule that the facts material to be charged in an indictment must be stated clearly and explicitly, and not left to intendment or reached by way of inference or argument, governs the requisites of an indictment for perjury.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 193, 191; Dec. Dig. § 71.*]</p> <p>2. Bankruptcy d 491*) — False Oath — Indictment—Requisites.'</p> <p>Under Rev. St. § 1025 (U. S. Comp. St. 1901, p. 720), providing that no indictment shall be deemed insufficient for any defect in matter of form not prejudicing defendant, an indictment for perjury in violation of Bankruptcy Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 (U. S. Comp. St. 1901, p. 3433), punishing the making of a false oath in any bankruptcy proceeding, which charges that defendant committed perjury when he swore that his books were burned on April 21, 1907: that instead of being burned on such date they were in existence, and in his possession up to November 7th'following; and that he knew he was making a false oath when he swore they were burned in April, 1907 — sufficiently traverses the sworn statement that the books were burned in April and the indictment is good.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 911; Dec. Dig. § 494.*]</p> <p>3. Bankruptcy (§ 495*) — False Oath — Evidence—Sufficiency.</p> <p>Where accused testified in bankruptcy proceedings that his account books were burned on April 27, 1907, while it conclusively appeared that the books were not destroyed by fire in April, but were in his possession and control as-late as a week and a half afterwards, and that during such week and a half his bookkeeper worked on them and delivered to accused statements therefrom, a conviction of accused for perjury in violation of Bankruptcy Act July 1, 3898, e. 541, § 29b, 30 Stat. 554 (U. S. Comp. St. 1901, p. 3433), punishing the making of a false oath in bankruptcy proceedings, was justified.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. § 495.*]</p> <p>4. Bankbuptcy (§ 494*)' — False Oatii — Indictment—Issues, Proof, and Variance.</p> <p>An indictment for perjury, which alleges that accused gave false testimony before the referee in bankruptcy, is sustained by evidence that the hearing at which accused testified was had in the referee’s office, that tjie referee administered the oath to accused as a witness, and conducted personally a part of the examination, while a part was conducted by counsel, that all the testimony was taken by a stenographer, and that the referee was at all times in the same room, or in one of his suite of offices adjacent to the room, in the absence of anything to show that the referee was not within the hearing of the examination at all times, as against the objection that the perjury was not committed before the referee in person, based on the statement of the stenographer, deduced from signs in her notes, that the referee was out of the room part of the tíme, but without any independent recollection on her part that such was the case.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 911; Dec. Dig. § 494.*]</p> <p>Humphrey, District Judge, dissenting.</p>

B. McPherson, Judge. In the matter of Knowlton & Co., a partnership, bankrupt. From an order of the District Court for distributioa of assets to the First National Bank of Gardner, Mass., and others, William R. Waters and others, creditors, appeal.

Platt, Judge. ■ Action at law by the American Bonding Company of Baltimore against the Alcatraz' Construction Company. Judgment for defendant, and plaintiff brings error.

Action by James Boland against the Great Northern Railway Company. Judgment for defendant, and plaintiff brings error.

<p>1. Public Lands (§ 8*) — Trespass—Unperfected Homestead Entry — Taking Turpentine.</p> <p>The boxing of trees on an unperfected homestead entry by a trespasser and the extracting of crude turpentine therefrom constitutes a willful trespass, especially where the trespasser was warned by the entryman of the condition of his title and the trespasser’s probable liability to the government.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig.. §§ 8, 148; Dec. Dig. § 8.*</p> <p>Rights acquired by homestead settlements and entries, see note to Mc-Cune v. Essig, 59 C. C. A. 434.]</p> <p>2. Trover and Conversion (§ 4S*) — Damages—Public Lands — Unperfected Homestead Entry — Trespass—Taking Turpentine — Bona Fide Purchaser.</p> <p>Defendant contracted to purchase turpentine from R. by an agreement stipulating that R. was not to box trees on uncompleted homesteads. R. nevertheless took turpentine from trees on land which he was warned was held by homestead entrymen under an unperfected entry, and sold the same to defendant, who purchased in good faith. Held, that defendant was a purchaser from a willful trespasser, and was liable to the United States for the value of the turpentine and resin made from the homestead as at the time of its purchase from R.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Dec. Dig. § 48.*]</p> <p>3. Trover and Conversion (§ 9*) — Demand—Resin and Turpentine Taken from Public Land — Sale by Innocent Purchaser.</p> <p>Where defendant innocently purchased resin and turpentine from a willful trespasser, who had obtained the same by boxing trees on an un-perfected homestead entry, defendant’s sale of the turpentine and resin, though no demand had been made on it by the United States, constituted a conversion.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 58-83: Dec. Dig. § 9.*]</p> <p>4. Accession (§ 1*) — Manufacture of Article — Wrongfully Acquired.</p> <p>Tbe doctrine of accession lias no application to the liability of a purchaser of manufactured turpentine and resin from a willful trespasser, who had taken the crude turpentine from trees located on an unperfected homestead entry.</p> <p>[Ed. Note. — For other cases, see Accession, Cent. Dig. §§ 1-10; Dec. Dig. § 1.*]</p> <p>5. Confusion of Goods (§ 7*) — Wrongful Intermixture — Effect.</p> <p>Where a trespasser willfully took turpentine and resin from trees on an unpatented homestead entry, and willfully mixed the same with turpentine and resin unlawfully taken from other lands, and sold the mass to defendant, the United States would be entitled to recover the value of all the turpentine and resin so sold, unless the part derived from the homestead entry was determinable with reasonable certainty.</p> <p>[Ed. Note. — For other cases, see Confusion of Goods, Cent. Dig. §§ 5-10; Dec. Dig. § 7.*]</p> <p>6. Trover and Conversion (§ 53*) — Damages—Interest—Demand.</p> <p>Where defendant purchased resin and turpentine from a willful trespasser, who had taken a part thereof from an unpatented homestead entry, but no demand was made on defendant to account to the United States therefor until suit was brought for conversion, the United States was not entitled to interest, except from the time of suit brought.</p> <p>I Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 254; Dec. Dig. § 53.*J</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action by John Campbell and another against the Baldwin Locomotive Works. Judgment for plaintiffs, and defendant brings error.</p>

<p>Master and .Servant (§ 289*) — Injury to Servant — Contributory Negligence — Question for Jury.</p> <p>Where defendant replaced a saw, which had been used to cut grooves in blocks of wood intended for freight car roof brackets, with a dado-head, without installing a guarding device, required by Act Fa. May 2, 1905 (P. L. 352), and plaintiff, though experienced in working the saw, was inexperienced in using the new appliance, and was injured while doing so, without knowledge of a safety appliance that should have been used, plaintiff was not guilty of contributory negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132 ; Dec. Dig. § 289.*]</p>

W. Morrow, Judge. Action by the Deseret Water, Oil & Irrigation Company against the State of California ,to condemn certain land belonging to the State. From a judgment of dismissal, plaintiff brings error.

Niles, Judge. Action by the United States against W. M. White and others, as executors of J. J. White, deceased. Judgment for the United States, and defendants bring error.

<p>In Equity. Suit by the Union Tank Line Company against the American Car & Foundry Company. On final hearing.</p>

In Equity. Suit by the American Thermos Bottle Company against the American Ever-Ready Company, for infringement of letters patent No. 872,795, for improvement in double-walled vessels, granted December 3, 1907, to Reinbold Burger. On final hearing.

<p>In Equity. Suit by the Hitchman Coal & Coke Company against John Mitchell and others. On final hearing.</p>

<p>1. BANKRUPTCY (§ SI*)-INVOLUNTARY PROCEEDINGS — SUFFICIENCY OK PETI TION.</p> <p>The sufficiency of a petition in involuntary bankruptcy in respect to the description of the claim of a petitioner may fairly be tested by the rules governing a declaration or complaint in an action on such claim, and should distinctly, and not inferentially, allege all facts essential to'state a cause of action thereon, and which might be put in issue Dy •the answer in such an action. The existence of claims of sufficient number and amount should also be alleg'ed with such particularity and definiteness as wall enable the court to find from the petition the essential jurisdictional facts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, 125 ; Dec. Dig. § 81. *J</p> <p>2. 'Bankruptcy (§ 81*) — Involuntary Proceedings — Sufficiency' oe Petition. . - ’</p> <p>Such a petition alleging that petitioners own and hold negotiable notes executed by the alleged bankrupt, which are due and owing to them, giving the amount held by each, but without stating the dates of execution or maturity, to whom payable or whether executed by defendant as sole or joint maker, or as principal or surety or indorser, is insufficient as too vague and indefinite.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-11S, 125 ; Dec. Dig. § 81.*]</p> <p>3. Bankruptcy (§ 81*) — Involuntary Proceedings — Sufficiency of Petition.</p> <p>Where the act of bankruptcy alleged in an involuntary petition is the making of a general assignment by the debtor’, nearly four months prior to tlie filing of tlie petition, and which, appears on its face to have been very fair and reasonable, it is especially requisite that the petition should set out fully and particularly all facts with respect to the claims of petitioners, that it may appear whether they were creditors at the time of the assignment or became such afterwards by purchase from creditors who may have assented to the assignment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. .§§ 59, 113-118, 125; Dec. Dig. § 81.*]</p> <p>4. Bankruptcy (§ 60*) — ’‘Act op Bankruptcy” — General Assignment.</p> <p>The making of a general assignment for the benefit of creditors constitutes an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a, 30 Stat. 546 (Tí. S. Comp. St. 1901, p. 3422), as, amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1493), without regard to the solvency or insolvency of the debtor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dee. Dig. § GO.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.]</p> <p>5. Bankruptcy (§ 84*) — Involuntary Petition — Verification—Amendment.</p> <p>The verification of a petition in involuntary bankruptcy on knowledge, information, and belief is insufficient, but the defect is not jurisdictional, and may be cured by amendment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Doc. Dig. § 84.*]</p> <p>6. Bankruptcy (§ 84*) — Involuntary Petition — Amendment—Discretion op Court.</p> <p>An alleged bankrupt owned property valued at about $300,000, consisting chiefly of real estate, and was indebted in nearly that amount, largely as surety for others. With the consent and by tbe advice of a large majority of his creditors who owned 97 per cent, in amount of the claims against him, he executed a deed of assignment conveying all of his property, except his residence, which was conveyed to his wife, to two trustees to be handled and disposed of in their discretion, and the proceeds applied on his debts pro rata. Tbe trustees were competent, and their compensation was fixed by the deed so as to insure an economical administration of the property. The debtor’s wife joined in the deed releasing her right of dower. Nearly four months after the deed, petitioners, representing less than 3 per cent, of the indebtedness, filed a petition in involuntary bankruptcy, alleging the making of the deed as the act of bankruptcy. The petition was fatally defective, but might be validated by amendment. It fairly appeared from the evidence submitted that the property, if administered by tbe trustees under the deed, would pay all indebtedness and probably leave a surplus of several thousand dollars, but that if administered in bankruptcy, subject to the wife’s dower rights, it certainly would not pay the indebtedness. Held, that to permit an amendment of the petition would not be in furtherance of justice, nor in tlie interests of creditors, and that, in the exercise of its discretion, the court would refuse leave to amend, and dismiss the petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig. § 84.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Larkin & Metcalf. Petition by the representatives in bankruptcy of the Hubbard Milling Company for a preferred claim against the estate of the bankrupts for the proceeds of certain flour shipped to the bankrupts and their representative for sale on commission. On petition to review an order denying the claim.

<p>In Equity. Suit by the Ft. Smith Light & Traction Company against the City of Ft. Smith, Fagan Bourland, Mayor, John Harrington, Police Judge, and Vincent M. Miles, City Attorney. On application for temporary restraining order.</p>

<p>1. FRANCHISES (§ 2*)-CONSTRUCTION OF GRANT.</p> <p>A grant of a franchise or privilege is to be strictly construed in favor of the public. Whatever is not unequivocally granted is withheld, and nothing passes by implication.</p> <p>[Ed. Note. — For other cases, see Franchises, Cent. Dig. § 2; Dec. Dig. § 2.*]</p> <p>2. Watebs and Water Coubses (§ 183*) — Franchise to Water Company-Construction.</p> <p>A provision, in an ordinance granting a ir.anclu.se to a water company and contracting for hydrants, that during the term of the grant the city would not “contract with any other person or persons, corporation or corporations, for a supply of water,” does not preclude the city from constructing a water system of its own during the term.</p> <p>[Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§ 277, 278; Dec. Dig. § 183.*]</p> <p>3. Courts (§ 282*) — Jurisdiction ojp Federar Courts — Federal Question.</p> <p>Where a water company alleges in good faith that it has a contract with a city, a federal court has jurisdiction of a suit to enjoin its impairment, and also to decide all other questions arising in the case.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Hig. §§ 820-824; Dec. Dig. § 282.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co, v. Boston & M. Consol. Copper & Silver Min. Co., SB G. C.. A. 7; Barnhart v. Switzler, 105 C. C. A. 262.]</p> <p>4. Waters and Water Courses (§ 183*) — Water Companies — Contract with City.</p> <p>Where an ordinance granting a franchise to a water company gave the city an option to purchase its plant at a value to be flxed by appraisers, ahd provided that in case the city decided to purchase it should serve notice of such determination 6 months prior to the time the purchase was to be made, hut did not specify whether such notice should be given before or after appraisal, a mere request by the city for the appointment of appraisers did not bind it as an election to purchase, after the appraisers had failed to agree</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 277, 278; Dec. Dig. § 1S3 .*]</p>

<p>At Law. Action by Harry E. Cilley against United Shoe Machinery Company. On demurrer to declaration.</p>

<p>At Law. Action by Charles A. Strout, trustee, against the United Shoe Machinery Company and others. On demurrer to declaration.</p>

<p>Action by John H. Stafford, as administrator, etc., against the Norfolk & Western Railway Company. On motion to remand.</p>

<p>Receivers (§ 147*) — Claims—Special Funds — Specification.</p> <p>A street railway company, after coming into possession of a railroad under a lease, purchased from petitioner certain paving gravel at the agreed price of $869.09. Thereafter both the lessor and the lessee companies passed into the hands of separate receivers, who received a fund owned by both companies, in severalty. In certain litigation over the fund, it was determined that the amount due plaintiff should be taken out of the share of the fund due the lessor company, and paid over to the receiver of the lessee company. Held, that such determination earmarked the fund as a special one to use for the payment of petitioner’s claim, and that petitioner was therefore entitled to receive the same from the lessee company’s receiver.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 257-259; Dec. Dig. § 147.*]</p>

Sater, Judge. In the matter of bankruptcy proceedings of the Ironton Door & Manufacturing Company. Intervening petition by First National Bank of Ironton, Ohio, to compel an accounting and surrender of the proceeds of certain securities collected by the bankrupt’s trustee. From an order granting the relief prayed, W. G. Ward, as trustee, and C. Crane & Company, appeal.

Proceeding by the United States by libel for the forfeiture of 625 sacks of hour; Lexington Mill & Elevator Company, claimant. Judgment for libelant, and claimant appeals and brings error.

Lewis, Judge. Suit in equity by the Portland Gold Mining Company and others against Charles Daniels and others. Defendants appeal from an order granting a preliminary injunction.

Swan, Judge. Suit in admiralty for collision by the Hawgood Transit Company, owner of the steamer Etruria, against the Mesaba Steamship Company, owner of the steamer Amasa Stone. See 166 Fed. 697, 92 C. C. A. 369. From a decree of distribution, giving the Detroit Fire & Marine Insurance Company and others priority, the Federal Insurance Company and others appeal.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action at law by Ben C. Moss against the Gulf Compress Company; C. C. Hanson, receiver. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Uynchburg; Henry C. McDowell, Judge.</p> <p>Action at law by Victor A. Wilder against William U. Dennis, John C. McCoy, George H. Stone, Joshua Baisden, and L. C. Bell. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit by the Glenwood Light & Water Company against the Town of Glenwood Springs. Decree for complainant and defendant appeals.</p>

Appeals from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Action by Minnie C. Groff and others against Warner U. Grider and another. From the judgment, both parties appeal.

<p> (Syllabus by the Court.) </p> <p>1. Appear and Error (§ 205*) — Reception op Evidence — Offer 0¾ Proof —Propounding Questions — Necessity.</p> <p>In the federal courts an assignment as error of a rejection of an offer to prove certain facts without propounding any questions to a witness properly raises the issue of the admissibility of competent proof of those facts which will be determined by the appellate courts on its merits and on the presumption that the offer was made in good faith.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1281, 1282; Dee. Dig. § 205.*)</p> <p>2. Chattel Mortgages (§ 267*) — Foreclosure Sale -by Mortgagor — In-termedíate Liens.</p> <p>A sale by a mortgagor of chattels, in whom is the legal title, with the consent of the first mortgagee, without notice to intermediate lienholders, does not foreclose their liens, although the sale is made for the full value of the property, and the proceeds are applied to the payment of the debt secured by the first mortgage.</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 550-552; Dee. Dig. § 267.*]</p> <p>3. Subrogation (§ 27*) — Purchaser of First Lien.</p> <p>A third person, not a volunteer, who pays and procures a release of a first lien upon property under an agreement with the owner that as purchaser or first lienor he shall have the pecuniary benefit of such payment, becomes subrogated in equity, as against an inferior lienor whose burden is not increased by such subrogation, to the rights held by the first lienor before the payment was made.</p> <p>[Ed. Note. — Por other cases, see Subrogation, Cent. Dig. § 68; Dee. Dig. § 27.*]</p> <p>⅜. Courts (§ 842*) — Federal Courts — State Practice — -Daw and Equity— Distinction.</p> <p>In the federal courts the general rule is that the difference between causes of action at law and in equity is sedulously preserved, that a legal cause of action cannot be maintained in equity nor can equitable causes of action or defenses avail in actions at law, and this although they are permissible in the state courts of the district, and the distinction between the forms of actions at law and suits in equity has been there abolished.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 912, 913; Dec. Dig. § 342.*]</p> <p>5. Action (§ 24*) — Equitable—Defenses.</p> <p>One in actual possession of personal property holding the right to that possession and an interest in the property by subrogation to the rights of a superior lienor may prove, in an action at law in the federal courts in defense of his possession and interest against a claim of an inferior lienor, the facts which establish the subrogation.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 153-155; Dec. Dig. § 24.*]</p>

In Error from the Supreme Court of the Territory of New Mexico and on Transfer from the Supreme Court of the State of New Mexico. Appeal from the District Court of the United States for the District of New Mexico; E. R. Wright, Judge. Action by the United States against the Alamogordo Dumber Company. Decree for defendant, and the United States brings error, and also appeals.

C. Van Fleet, Judge._ Action by Chin Quong against the Alaska Fishermen’s Packing Company. Judgment for plaintiff, and defendant brings error. The parties will be designated plaintiff and defendant as they were in the court below. The plaintiff brought an action upon a contract which it had with the defendant to recover $20,240.10. There were three counts in the complaint.

Burns, Judge. Ancillary bill in equity by receiver of the Houston Oil Company of Texas against L,. S. Duff and wife, C. J. Gerlach & Bro., and Frank Dowden and wife, to quiet title to land. Decree for defendants, and the receiver appeals.

<p>In Error to the District Court of the United States for the District of Utah; J. A. Marshall, Judge.</p> <p>Action by the Union Pacific Railroad Company against the American Smelting & Refining Company. From a judgment sustaining a demurrer to the complaint; plaintiff brings error.</p>

<p> (Syllabus by the Court.) </p> <p>J. LIMITATION OF ACTIONS (§ 183*) — CONTINUING- TRESPASS-PLEA OF STATUTE to Entire Complaint Good to Part Though: Bad as to Part.</p> <p>In an action for damages for continuing trespasses, a plea that they were not committed within the time limited by statute is sufficient to invoke the bar of the statute against those committed without the time limit, and there can be no recovery on their account, although some of the trespasses charged were within the time, and damages therefor are recoverable.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent Dig. §? 683-692; Dec. Dig, § 183.*]</p> <p>2. Trial (§ 45*) — Exclusion of Evidence — Necessity of Offer.</p> <p>If a question is in proper form and clearly admits of an answer rele vant to the issues and favorable to the party who propounds it, its exclusion is error, although no offer to prove the fact sought to be established is made.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 110-114; Dec. Dig. § 45.*]</p>

<p>Appeal from the District Court of the United States for the District of Arizona; Julian W. Mack, Judge.</p> <p>Suit by the United States of America against N. C. Bernard and others. From a, judgment of dismissal, the United States appeals.</p>

Lewis, Judge. Action by the United States against the Colorado Midland Railway Company for violation of the safety appliance act. Judgment for defendant, and the United States brings error.

'Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Chas. B. Witmer, Judge. Suit in admiralty by Joseph McCauldin, managing owner of the steamship Eassell, against a cargo of lumber, the Philadelphia & Gulf Steamship Company, claimant, and same against the Philadelphia & Gulf Steamship Company in personam. Decrees for libelant, and respondent appeals.

M linger, Judge. Action by Herman N. Mattley, trustee in bankruptcy of one Parker, against John Giesler, administrator c. t. a. of the estate of Joseph W. Wolfe, deceased. Judgment for defendant, and plaintiff appeals.

Pollock, Judge. S. M. Clark was convicted of mailing a letter giving information where, from whom, and by what means articles designed, adapted, and intended for procuring an abortion could be obtained, and he brings error.

W. Locke, Judge. Suit in equity by the Wilson Cypress Company against Enrique del Pozo y Máseos and others. Decree for defendants, and complainant appeals.

<p>Appeal and Ebrok (§ 1022*) — Review on Appeal — Questions of Fact.</p> <p>Findings of fact by a referee, who heard the witnesses, confirmed by the 'District Court, will not be disturbed by an appellate court, unless clearly erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018 ; Dec. Dig. § 1022.*</p> <p>Appeal and review in bankruptcy eases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Arthur U. Brown, Judge.</p> <p>Suit in equity by Coldwell-Gildard Company and others against the Stafford Company. Decree for complainants, and defendant appeals.</p>

<p>1. Patents (§ 62*) — Anticipation—Sufficiency of Pkoof.</p> <p>The rule applied that to sustain the defense of anticipation in a patent case, by a prior use by another, where there has been a considerable lapse of time, something more than oral testimony, is ordinarily required to establish the identity of structure as between what is patented aud what is alleged to have anticipated it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 78; Dec. Dig. § 62.*]</p> <p>2. Patents (§ 828*) — 'Validity and Infringement — Process of Making Artificial Stone.</p> <p>The Stevens patent, No. 624,503, for a process of malting artificial stone by the use of a mold of relatively dry sand which absorbs the surplus moisture from the stone compound, held, on the evidence, not anticipated, valid, and infringed.</p>

Hazel, Judge. Suit in equity by August J. Oehring'and the Pratt & Whitney Company against William Gardam & Son. From that part of the decree finding certain claims of the patent in suit invalid, complainants appeal.

<p>Patents (§ 328*) — Pbior Use — Patch fob Rubber Tibes.</p> <p>The Tingley patent, No. 787,010, for a patch for rubber tires, is void for prior use of the device by others.</p>

Holland, Judge. Suit by the Metal Stamping Company against Lena Gerhab, doing business under the name of Jacob Gerhab. Decree for defendant, and complainant appeals.

Orr, Judge. Suit in equity by the Westinghouse Electric & Manufacturing Company against Frederick C. Sutter and others for infringement of letters patent No. 469,809, for a system of electrical distribution granted to William Stanley, Jr., March 1, 1892. Decree for defendants, and complainant appeals.

<p>Patents (§ 32S*) — Validity—Design fob Bathtub Seat.</p> <p>The Robertson design patent, No. 29,993, for a design for a bathtub seat, when compared with the structures of the prior art, does not disclose the exercise of patentable invention, and is also void because the alterations did not result in giving the article any distinctively attractive appearance which is essential to the validity of a design patent.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of H. A. Burnham. Cross-demurrers by the trustee to the petition of Udella B. Burnham, and by Mrs. Burnham to the petition of the trustee.

<p>At Law. Action by Maud M. Thomas, as administratrix of the estate of Ernest H. Thomas, deceased, against the Chicago & Northwestern Railway Company. On motion of plaintiff to remand.</p>

<p>Removal on Causes (§ 44*) — Party Entitled to Remove as Defendant-Condemnation Proceedings — Effect of Cross-Bill.</p> <p>Wliile, on an appeal by a landowner from the award of a sheriff’s jury in condemnation proceedings, under the Iowa statute, the landowner is ■the defendant for removal purposes, the filing by such landowner in the state court of a pleading which is in effect a cross-bill in equity, alleging that the adverse party is a private corporation, without power to maintain the proceedings, and praying for an injunction, makes such corporation the defendant as to the issues raised by such pleading and entitles it to remove the cause, where grounds for removal exist and the requisite amount is involved.</p> <p>[Ed. Note.- — For other eases, see Removal of Causes, Cent. Dig. § 88; Dee. Dig. § 44.*]</p>

<p>In Equity. Bill by Albert Hagerla against the Mississippi River Power Company. Hearing on bill and answer.</p>

In Bankruptcy. In the matter of Augustus K. Stiger, trading as A. K. Stiger & Company and A. K. Stiger Manufacturing Company, bankrupt. On review of referee’s order directing trustee to pay to D. C. Andrews & Company the sum of $4,158.81, proceeds of certain book accounts on the ground that such accounts were assigned to it by parol.

<p>At Law. Action by Annie Middleton against P. Sanford Ross, Incorporated. On demurrer to petition.</p>

<p>Action by the United States against the Nipissing Mines Company to recover additional corporation excise tax under Tariff Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1911, p. 947).</p>

<p>1. CopyRights (§ 82*) — Infringement—Complaint—Ownership.</p> <p>A complaint for infringement of a copyright, merely alleging that complainant’s assignor was the sole and exclusive owner and proprietor of the copyrighted productions, was insufficient without an allegation of the facts showing how complainant became proprietor and his right to sue.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 72, 73; Dec. Dig. § 82.*]</p> <p>2. Copyrights (§ 82*) — Infringement—Bill.</p> <p>A bill for alleged infringement of a copyrighted photograph must show that the photograph was a copyrightable work.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 72, 73; Dec. Dig. § 82.*]</p> <p>3. Copyrights (§ 82*) — Infringement—E&istenoe of Copyright.</p> <p>In a suit to restrain the infringement of certain alleged copyrighted photographs, an allegation that plaintiff’s assignor filed two complete copies of the photographs did not show compliance with the provision of the statute requiring registration by depositing two complete copies of the best edition thereof then published.</p> <p>[Ed. Note. — For other eases, see Copyrights, Cent. Dig. §§ 72, 73; Dec. Dig. § S2 *]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Thomas H. Mitchell and Edward R. Mitchell, individually and as members of the firm, of Thos. H. Mitchell & Brother. _ Petition to review an order requiring the bankrupts to pay over $1,000 as property belonging to the firm.

Bill by Burns & Dickey against J. C. Titzell and others to restrain receivers of the Atlanta, Birmingham & Atlantic Railroad Company 'from paying over a fund on which complainants claimed a lien for labor and materials under state law. On motion to dismiss for want of equity jurisdiction.

<p>1. Bankruptcy (§ 136*) — Concealment of Assets — Contempt Proceedings.</p> <p>Where, in proceedings against two of the individual owners of a bankrupt corporation for contempt for failure to account for the proceeds of a note, it appeared that defendant K. took up the note and relieved his codefendant from payment therefor, K. having furnished evidence of the existence and whereabouts of the note, the contempt proceeding against H, should be dismissed, since, if any claim vested in the trustee as against H., it could be disposed of in a separate action against him, as no punishment for contempt in failing to turn over the note could be inflicted.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233-235; Dec. Dig. § 136.*]</p> <p>2. Bankruptcy (§ 136*) — Corporations—Directors—Withheld Assets.</p> <p>Where certain directors of a bankrupt corporation were ordered to return $822.94 alleged to have been wrongfully received by them from the corporation, they were not entitled to set off against such amount and claim of another corporation controlled by them, against the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of John H. Zimmerman and Furness W. Uibby, bankrupts. On petition to review a referee’s order allowing exemptions to the bankrupt.

In Admiralty. Libel for stevedores’ wages against the steamship Coningsby, in which the owner filed a cross-libel for injury to the ship.

In Bankruptcy. In the matter of Jacob Manneschmidt, Jr. Claim by the bankrupt’s trustee to recover the value of certain tools and other property left by the bankrupt on certain contract work and appropriated or lost by the general contractor.

In Bankruptcy. In the matter of bankruptcy proceedings of Oliver Dowie. On motion to vacate an order staying proceedings on a judgment for costs recovered against the bankrupt in an action by him for slander.

<p>1. Limitation op Actions (§ 32*) — Toets—What Law Governs.</p> <p>An action against a street railway company for -a tortious injury to a city pavement, requiring a paving contractor to repair the same under its contract with the city, was within the Ohio four-year statute of limitations (Gen. Code Ohio, § 11224).</p> <p>[Ed. Note.- — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 143-145; Dec. Dig. § 32.*]</p> <p>2. SUBROGATION (§ 11*)-CONTRACT — REPAIRING PAVEMENT — INDEMNITY.</p> <p>A traction company having agreed in its franchise to keep its tracks in repair, plaintiff paving company made a hid for laying an asphalt pavement on the street with a guaranty to keep the pavement in good repair at all times for a period of ten years. The paving company prepared the foundation for the car tracks, but, this proving insufficient to sustain the track and equipment, the pavement was broken as the result thereof, and plaintiff was required to make extensive repairs under its guaranty. Held, that such guaranty was not a Contract of indemnity imposing a secondary liability only on the paving company, so as to entitle it, on being compelled to pay for such repairs, to subrogation to the city’s right to recover against the traction company for so constructing its road as to cause the defects in the pavement.</p> <p>[Ed. Note — For other cases, see Subrogation, Cent. Dig. § 4; Dec. Dig. § 11.*]</p>

De Haven, Judge. Suit in admiralty by Jay Wai Nam and others, copartners, doing business under the name of Ti Hung Dung & Co. against the Anglo-American Oil Company, Dimited, owner of the British steamship Ap-palachee. Decree for respondent, and libelants appeal.

Campbell, Judge. Action by the United States against the Kansas City Southern Railway Company for violation of the Hours of Service Daw. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Rewis, Judge.</p> <p>Action by John H. Richardson against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by the Elwood Grain Company against the St. Joseph & Grand Island Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Campbell, Judge. Action at law by the United States against the Comet Oil & Gas Company and the Federal Union Surety Company. A demurrer to the petition was sustained in part and overruled in part (187 Fed. 674), and both parties bring error.

<p>Husband and Wipe (§ 252*) — “Community Property” — Land Acquired Under Homestead Laws.</p> <p>When a patent lias been issued by the United States to a homestead entryman, the land becomes subject to the laws of descent and distribution of the state, and under the law of Washington as settled by decision a government homestead acquired by a husband is community property</p> <p>[Ed. Note.' — For other cases, see Husband and Wife, Cent. Dig. §' 895; Dec. Dig. § 252.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1343, 1344; vol. 8, p. 7608.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit by the Des Moines Water Company against Benjamin E. Mann. Decree for complainant, and defendant appeals.</p>

<p>X. Trial (§ 419*) — Waives of Error — Acquiescence in Decision.</p> <p>The right of a defendant to assign error on the denial of his motion for nonsuit at the close of plaintiff’s testimony is waived by his subsequent introduction of testimony and failure to move for a directed verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. § 419.*)</p> <p>2. Mastee and Servant (§ 226*) — Masses's Liability foe Injury to Servant — Bisks Assumed by Servant.</p> <p>The negligence of the master in failing to furnish safe appliances and a safe place in which to work is not a hazard necessarily attendant upon employment, and in legal contemplation it is not a risk which the servant is presumed to assume.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec, Dig. § 226.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. B. Có. v. Hennessey, 38 C. C. A. 314.)</p> <p>3. Mastee and Seevant (§ 120*) — Master’s Liability foe Injuey to Servant — Unsafe Appliances.</p> <p>The owner of a vessel is not absolved from the duty of inspecting dock appliances which it requires its employés to use in loading the vessel, and seeing that they are in reasonably safe condition, because it is not the owner of the same.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 211; Dec. Dig. § 120.*]</p> <p>4. Master and Servant (§ 185*) — Master’s Liability for Injury to Servant-Unsafe Appliances.</p> <p>If a master delegates to a servant the duty of inspecting appliances to be used by his fellow servants, he does not thereby relieve himself from liability for the negligent performance .of such duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge. Ancillary bill in equity by Charles Dillingham, receiver of the Houston Oil Company of Texas and others, against William Green and Mittie Green, his wife. Decree for complainants in part, and both parties appeal.

Sanborn, Judge. Action by the South Side Lumber Company of Chicago against. Henry Fetzer. Judgment for plaintiff, and defendant brings error. Defendant in error, herein termed “plaintiff,” made a contract with the George Pankratz Lumber Company, herein termed the “Pankratz Lumber-Company,” for the purchase of logs and the manufacture of lumber at Sturgeon Bay, Wis.

Petition to review in matter of law an order of the District Court for the Western District of Wisconsin; Arthur L. Sanborn, Judge. In the matter of bankruptcy proceedings of David Blum. Summary proceedings by Walter L. Houser, trustee of the bankrupt’s estate, against Nettie Bevy_ Blum to recover certain money alleged to belong to the estate. An order was entered requiring her to turn over the money to the trustee, and she petitions • for review.

Anderson, Judge. Action by Mattie I. Wene, as administratrix of the estate of William Wene, deceased, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error.

Appeals from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge. In the matter of bankruptcy proceedings of Cora M. Curtis.

Petition to Revise Order of the District Court of the United States for the District of Maine; Clarence Hale, Judge. In the matter of bankruptcy proceedings of the United Wireless Telegraph Company. On petition by Joseph V. Witherbee to revise an order confirming a sale of certain of the bankrupt’s assets to a reorganization committee.

J. Cochran, Judge. Suit in equity by Armour & .Co. against S. Renaker ánd others. From a decree for defendants (191 Fed. 48), complainant appeals. . At the close of extended business dealings between the parties complainant’s (appellant’s) books showed an indebtedness tp.it from defendants (and associates), amounting to about $4,000.

<p>Bankruptcy (§ 391*) — Rights op Creditors — Action on Provable Claim.</p> <p>The pendency of bankruptcy proceedings is not in itself a bar to an action against the bankrupt on a provable debt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 637-655; Dec. Dig. § 391.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Action at law by the National Bank of Commerce against Howard A. Chase. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Action at law by the First National Bank of Englishtown against Howard A. Chase. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Action at law by the First National Bank of Jamesburg against Howard A. Chase. Judgment for plaintiff, and defendant brings error.</p>

Angelí, Judge. In the matter of bankruptcy proceedings of Jesse D. Patterson, doing business as R. S. & J. D. Patterson. . From a decree affirming the referee’s order, and allowing a claim of Evelina E. Patterson, the trustee appeals.

<p>Municipal Cobpobations (§ 706*) — Streets—Use by Taxicabs — Injury to Pedestrians — Contributory Ne&ligence — Instruction^</p> <p>Plaintiff, having alighted from the front right-hand door of a street car at a stréet intersection, was struck by one of defendant’s taxicabs, which was overtaking and passing the street car at a rapid rate, before plaintiff could reach the curb. One side of the taxicab was within two feet of the curb, and there were but eighteen inches between'the other side of the cab and the side of the car. Held, that a request to charge that if plaintiff did not look to see whether there was any vehicle coming, or, looking, saw the taxicab, and nevertheless started to cross in front of it, he was guilty of contributory negligence; was properly refused for failure to take into consideration the fact that plaintiff might have found himself in a place of apparent peril, where a prudent man might have thought the safest thing to do was to attempt to reach the curb.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. 5 1518; Dec. Dig. § 706.*]</p>

<p>Indictment and Information (§ 196*) — Omission—Imperfection in Matter of Form.</p> <p>Where an indictment for conspiracy to conceal assets of a bankrupt from Ms trustee omitted to charge a conspiracy with the bankrupt, and did not allege that defendants had conspired, not only with each other, but with “other persons to the grand inquest unknown,” such defect, when objected to for the first time after conviction, would be regarded as one of form only within Rev. St. § 1025 (U. S. Comp. St. 1901, p. 720), and therefore not fatal.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 628-635; P»'-. Dig. § 196.*]</p> <p>Gray, Circuit Judge, dissenting.</p>

Foster, Judge. ■ Action by C. H. Lawrence & Company against Edward I. Seyburn, as Collector of Internal Revenue for the District of Louisiana, to recover taxes assessed against plaintiffs as wholesale dealers in adulterated butter and paid under protest to avoid threatened prosecution, for penalties. From a judgment in 'favor of defendant, plaintiff brings error.

'Lowell, Judge. Petition for writ of habeas corpus by Guy A. Ham to obtain the release from custody of certain Chinese aliens named Wah Gan, Moy Dep, Woy Sang, and Chin Quon, held by-George B. Billings, United States Commissioner of Immigration, under a deportation warrant. From a decree granting the writ, the commissioner appeals.

Kohlsaat, Judge. Suit in equity by the United States Light & Heating Company against the Safety Car Heating .& Lighting Company. Decree for defendant, and complainant appeals. The appellant is complainant below in a bill filed charging infringement of its patent No. 707,754, issued to W. L. Bliss August 26, 1902, for “brush mechanism for dynamos,” and the appeal is from a decree dismissing the bill for want of equity.

Appeals from the District Court of'the United States for the Southern District of Ohio; Howard C. Hollister, Judge. Suits in equity by the United States Hofliman Company* and others against Edward C. Grever and against August Dasance. Decree for complainants in first case and defendant appeals, and for defendant in second case and complainants appeal.

U. Day, Judge. Suit in equity by the Faultless Rubber Company against the Star Rubber Company. Decree for defendant, and complainant appeals. The Faultless Rubber Company owns patent No. 926,011, issued to it June 22, 1909, as the assignee of Thomas W. Miller. The subject-matter is a nipple for nursing bottles.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by International Curtis Marine Turbine Company and Curtis Marine Turbine Company of the United States against William Cramp & Sons Ship & Engine Building Company. Decree for defendant, pro forma, and complainants appeal.</p>

<p>. In Equity. Suit by Melville Clark against Jacob Doll & Sons, and same against the Behring Piano Company. On final hearing.</p>

<p>1. Patents (§ 2G*) — Invention—Increased Utility oe Device.</p> <p>Doing substantially tbe same thing in the same way, by substantially the same means, but with better results, is not such invention as will sustain a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p> <p>2. Patents (§ 328*) — Invention—Machine eor Peeling Potatoes.</p> <p>The Archer patent, No. 999,478, for a machine for peeling potatoes, consisting of a metal cylinder having a revolving metal disk near the bottom and its inner surface coated with a granulated abradant such as emery, is void for lack of invention; the only change over machines of the prior art being the substitution of the abrading material for metallic brushes, or other means of roughening the surface.</p>

<p>Patents (§ 328*) — Validity—Radtatob.</p> <p>The Fowler patent, No. (309.800, for a radiator, claims 1-1 held void for anticipation and lack of novelty.</p>

<p>1. Patents (§ 79*) — Validity—Previous Use in Foreign Country.</p> <p>Under Rev. St. § 4923 (U. S. Comp. St. 1901, p. 3396), providing that, when a patentee at the time of his application believed himself to be the original and first inventor of the thing patented, the same shall not be held void on account of the invention or discovery “having been known or used in a foreign country before his invention or discovery thereof if it had not been patented or described in a printed publication,” to defeat a patent on the ground of a prior foreign use, the foreign patenting or description in a printed publication must have been prior to the pat-entee’s application.</p> <p>■ [Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 101; Dec. Dig. § 79.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Vacuum Cleaner.</p> <p>The Dunn and Doeke patents, No. 893,853 and No. 919,369, .each for a vacuum cleaner, were not anticipated and disclose invention; also held infringed.</p>

<p>Action by Edwin Baldwin, as sole surviving executor and trustee under the will of John Daniell, deceased, against Elizabeth Eidman, ad-ministratrix of the estate of Ferdinand Eidman, deceased, late Collector of Internal Revenue.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Louis A. Buchner. The referee entered an order determining the priority of liens, and certain creditors filed a petition for review.

<p>1. Tbade-Maeks and Tbade-Names (§ 96*) — Judgment—Conclusiveness— Subsequent Registbation.</p> <p>"Where, in a prior suit for infringement of a trade-mark, complainants were found not to be the rightful owners thereof, it being determined that H. & Co. had previously used the mark and were entitled thereto, such determination was res adjudicata of that issue as between the parties and their privies, and was not affected by complainant’s subsequent ex parte registration of the trade-mark as authorized by Act Cong. Feb. 20, 1905, c. 592, § 6, 33 Stat. 726 (U. S. Comp. St. Supp. 1911, p. 1462), and this though defendant’s cross-bill for affirmative relief in such former proceeding was dismissed; the result being to leave both parties free to use the mark as they pleased.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 109; Dec. Dig. § 96.*]</p> <p>2. Tbade-Maeks and Tbade-Names (§ 73*) — Unlawful Competition — Old Cbow.</p> <p>Where defendant’s right to use the words “Old Crow” as a trade-mark in the sale of whisky had been adjudicated prior to appellant’s attempted ex parte registration of the name as a trade-mark, and it appeared that, while such name had been originally limited to straight whisky, both complainant and defendant had later applied it to “blends,” and that complainant’s registration of the mark did not limit the use of the word to straight whiskies, and defendant’s labels were not such as to mislead the public to believe that the whisky put out under such name was complainant’s, the predecessors of both parties having used the name for over 45 years, complainant was not entitled' to enjoin its use on the theory of unlawful competition.</p> <p>’[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*]</p>

<p>L Chattel Mortgages (§ 6*) — “Conditional Sale Contracts” — Statutes-</p> <p>Conditional contracts for the sale of personal property, reserving title in the seller until paid for, on being filed for record, became chattel mortgages, as provided by Rev. Civ. St. Tex. 1911, art. 5654, and are to be construed as such.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. S 6.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1408-1410.]</p> <p>2. Chattel Mortgages (§ 47*) — Description—Sufficiency.</p> <p>' Where contracts for the sale of farm implements to the bankrupt, reserving title in the seller, which, on being filed, became chattel mortgages, as provided by Rev. Civ. St. Tex. 1911, art. 5654, described the property according to parts, and were sufficient to identify it, they were sufficient to create a lien on so much of the property as remained at .the intervention of bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent Dig. §§ 87, 88, 96-103; Dec. Dig. § 47.*]</p> <p>S. Chattel Mortgages (§ 101*) — After-Acquired Property — What Law Governs.</p> <p>Whether, and to what extent, a chattel mortgage on after-acquired property sold to the mortgagor in Texas is valid is a question to be determined by the Texas law.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent Dig. §§ 185, 186; Dec. Dig. § 101.*]</p> <p>4. Bankruptcy (§ 184*) — Chattel Mortgages — Extent oe Lien — After-Acquired Property — Description.</p> <p>Where a contract for the sale of wagons and farm implements reserved a lien to the seller on the goods sold under the contract and on subsequent orders, such contract though filed as a chattel mortgage, did not confer on the seller, as against the buyer’s trustee in bankruptcy, a lien on implements and parts subsequently shipped to the bankrupt on orders made by letter or telephone during a period of more than 2% years, concerning which there was no adequate identifying description.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 275-277; Dec. Dig. § 184.*]</p> <p>5. Bankruptcy (§ 184*) — Chattel Mortgages — After-Acquired Property-Property Left in the Hands op a Merchant por Sale.</p> <p>Rev. St Tex. 1895, art. 2548, provides that every mortgage or lien to be given by the owner of any stock of goods, wares, or merchandise daily exposed to sale, in parcels, in the regular course of business, and contemplating a continuance of possession of the goods and control of the business by a sale by the owner, shall be fraudulent and void. Held, that a provision in a contract of sale, retaining title, not only on the goods sold, but on all goods subsequently shipped, until all the buyer’s indebtedness to the seller was paid, was an attempted reservation of title to all goods shipped, either under the particular contract or thereafter, and was therefore void as to goods in the hands of the buyer at the time of bankruptcy, not purchased by the particular contract reserving the lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277;' Dec. Dig. § 184.*] ' '</p>

<p>1. Evidence (§ 460*) — Parol Evidence — Chattel Mortgage — Description.</p> <p>Parol evidence is not admissible to aid in tbe description of a chattel mortgage, but is admissible to identify tbe chattels referred to and described in tbe mortgage.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*]</p> <p>2. Chattel Moetgáges (§ 47*) — Description.</p> <p>A contract of sale, reserving title in the seller until the goods were paid for, described the same by using technical and trade terms to describe the various parts comprising a complete wagon, setting out,, in ruled columns, the quantity, catalogue number and size of axle, track, style of tongue, description of wheels as to height, kind, and tire, the width of body, and style of seat and brake, including capital letters, abbreviations, and figures, with a note that there was to be stenciled thereon the words, “Sold by J. R. Raney, Santa Anna, Texas.” There was also evidence that the wagons were so stenciled. Held, that the description was sufficient to sustain the contracts as chattel mortgages.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 87, 88, 96-103; Dec. Dig. § 47.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of J. R. Raney. On certificate to review a referee’s order allowing the claim of lien of the Texas Harvester Company.

In Bankruptcy. In the matter of bankruptcy proceedings of J. R. Raney. On certificate of the referee to review an order allowing the claim of the Texas Moline Plow Company.

<p>In the matter of the Farmers’ Co-operative Company of Barlow, North Dakota, bankrupt. On review of order of referee.</p>

<p>1. Bankruptcy (§ 4*) — Rights and Remedies op Trustees — Construction of Statute.</p> <p>Tbe rights and powers of a trustee in bankruptcy under Bankruptcy Act July 1, 1898, c. 541, § 47a (2), 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), as amended by Act June 25, 1910, e. 412, § 8, 30 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), which vests him “as to all property in the custody or coming into the custody of the bankruptcy court * * * with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon,” are derived from the statute and not from the creditors of the particular estate. The rights so conferred are those of the most favored creditor under the local law, and, although such law invalidates an unrecorded conditional sale contract as to subsequent creditors only, any property held by a trustee by reason of such provision becomes a part of the general estate to be apportioned among all creditors in accordance with the provision of the Bankruptcy Act on that subject.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 3, 4; Dec. Dig. § 4.*]</p> <p>2. Bankruptcy (§ 6*) — Bankruptcy Acts — Construction—Retroactive Operation.</p> <p>Such amendment of the act (Act July 1, 1898, c. 541, § 47a, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438], as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 [U. S. Comp. St. Supp. 1911, p. 1500]) is purely remedial, giving a rule of interpretation rather than a substantive right and as such and as a part of a bankruptcy act, which applies generally to contracts previously made, may properly be given a retroactive effect and applied to a contract of conditional sale made prior to its enactment, which by reason of not having been recorded is void under the state law as to certain classes of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 2; Dec. Dig. § 6.*]</p>

<p>Insubance (§ 404*) — Construction or Marine Policy — “Perils of the Harbor.”</p> <p>Damage to a lighter by concussion when navigating New York Harbor, caused by an explosion of dynamite which was being loaded from a nearby pier on another vessel, was not due to a “peril of the harbor,” within the meaning of a marine policy insuring her against such risk, but excepting loss from boiler explosion, and containing a warranty against her carriage of gunpowder or other explosive.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1092; Dec. Dig. § 404.*]</p>

<p>At Law. Action by the Drovers’ Deposit National Bank against M. H. Tichenor. On piotion to remand to state court.</p>

. In Bankruptcy. In the matter of bankruptcy proceedings of Israel Podolin and others individually and trading as the Franklin Suit & Skirt Company. Held: and has now been settled by the Supreme Court, that books of account which the bankrupt claims contain matter which might tend to incriminate him must, nevertheless, be delivered to his trustee. In the matter of Harris, 26 Am. Bankr. Rep. 302, 221 U. S. 274, 31 Sup.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Co-operative Knitting Mills. On petition to review an order refusing permission to file a claim of the Pennsylvania Yarn Company after the expiration of a year from adjudication.</p>

<p>Receivers (§ 99*) — Appointment of Custodians.</p> <p>A receiver in bankruptcy is authorized only in exceptional cases to appoint custodians. It is ordinarily sufficient if he takes the same care of the assets that a prudent man would of his own property, and, if he appoints custodians not reasonably necessary, the expense will be charged to him.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 183-186; Dec. Dig. § 99. *J</p>

<p>Petition by Morris Camaras for naturalization. On objections of the United States attorney.</p>

<p>In Error to the Circuit Court of the United. States for the Southern District of Ohio; Howard C. Hollister Judge.</p>

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

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohlsaat, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohlsaat, Judge.</p>

<p>Appeal and Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p>

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

<p>Petition to Superintend and Revise in the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.</p>

<p>Appeal in Equity from the Circuit Court of the United States for the Northern District of Ohio; John M. Kil-lits, Judge.</p>

<p>Appeal in Equity from the Circuit Court of the United States for the Northern -District, of Ohio; John M. Killits, Judge.</p>

<p>In Error to tbe District Court of tbe United States for tbe Southern District of New York.</p>

<p>In Error to and Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p>

<p>Appeal and Cross- • Appeal from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p>