Volume 203 — Federal Reporter

<p>1. Trial (§ 177*) — Questions of Law or Fact — Direction oe Verdict — Motion by Both Parties.</p> <p>A motion by both parlies for a directed verdict constitutes a stipulation that there are no issues of fact for the jury and authorizes the court to determine both issues of fact and law.</p> <p>[Ed. Note. — For other' cases, see Trial, Cent. Dig. § 400; Dee. Dig. § 177.*</p> <p>Operation and effect of motions by both plaintiff and defendant for direction of verdict, see note to Love v. Scatcherd, 77 C. C. A. 8.J</p> <p>2. Appeal and Error (§ 927*) — Review-Inferences.</p> <p>Where both parties moved for a directed verdict, and the court directed a verdict for plaintiff, the Court of Appeals, on a writ of error, would adopt that view of the facts expressly proved or reasonably inferable which was most favorable to the plaintiff.</p> <p>I Ed. Not e. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 374S, 3758, 4021; Dec. Dig. § 927.*]</p> <p>S. Master and Servant (§ 310*) — Injuries to Servant — Independent Contractor.</p> <p>The doctrine of independent contractor is that one who lets work to be done by another according to the methods of the latter, and without being subject to the employer’s control except as to the result of the work, is not liable to third persons for injury resulting from the negligence of the contractor or his servants.</p> <p>[Ed. Note.- -For other eases, see Master and Servant, Cent. Dig. §§ 1242, 1243: Dec. Dig. § 310*</p> <p>Who are independent contractors, see note to Atlantic Transport Co. v. Coneys, 28 O. O. A. 392.J</p> <p>4. Master and Servant (§ 31.8*) — Servant oe Subcontractor-Liability oe Principal Contractor.</p> <p>Where defendant principal contractor for the construction of a building controlled the work as it progressed through a superintendent, and permitted a subcontractor to pile marble in one of the uncompleted rooms in such a manner as to be dangerous to employes of subcontractors, who were in the habit of eating their lunches in the room, he was not relieved from liability for injury to one of sucli servants while in the room during the lunch hour because the danger was caused by the negligence of the servants of the subcontractor in improperly piling the marble.</p> <p>I Ed. Note. — Dor other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]</p> <p>5. Master and Servant (§ 318*) — Independent Contractor — Care Required.</p> <p>Defendant general contractor, through a superintendent, retained general control of the construction of a building while different parts of the work were being performed by subcontractors. The subcontractor for the marble work was permitted to store marble in a room where the employes generally ate their lunches, and so negligently piled certain of the marble that, as an employe from a different building not connected with defendant was walking through the room during the lunch hour, he so jarred a pile of marble that it fell on plaintiff, a servant of another subcontractor, and injured him. Held, that plaintiff was a licensee, and that defendant, having intrusted the subcontractor with the performance of its duty to see that the marble was safely stacked for the protection of the persons working in the building, was responsible for the discharge thereof, and that defendant was negligent in failing to see that the marble was properly stacked, or that the workmen were warned.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]</p> <p>6. Master and Servant (§ 322*) — Dangerous Premises — Cause or Injury.</p> <p>The admission of strangers into the building not having been forbidden, and visitations by workmen from another building having been frequent and with defendant’s knowledge, it was not relieved from liability because the fall of the slab that caused plaintiff’s injury resulted from the act of such servant in walking’ along tlje plankway in the building in which plaintiff was employed.</p> <p>[Ed. Note. — Ebr other eases, see Master and Servant, Cent. Dig. § 1203; Dec. Dig. § 322.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.</p> <p>In the matter of Lancelot M. Berkeley, alleged bankrupt. Appeal by James C. Bushby from a decree dismissing petition.</p>

McPherson, Judge. In the matter of bankruptcy proceedings of Bahls Ice Cream & Baking Company. From an order sustaining a referee’s determination, awarding certain fixtures to the landlord under the lease (195 Fed. 986), J. Howard Reber, trustee, appeals.

Sanborn, Judge. Bill in equity by Fred J. Marks and others against the Merrill Paper Company and others. From a decree (Marks v. Merrill Paper Mfg. Held: was a matter of form, and not of substance, to enable the stockholders to make a better showing for loaning purposes and otherwise. Complainants did not participate in the foregoing enumerated proceedings, though advised that such propositions were to be acted on.

<p>Shipping (§ 143*) — Discharge or Vessel — Injury to Cargo — Failure to Furnish Covers — Persons Ihable.</p> <p>Where the agent oí a steamship company, in order to facilitate discharge, employed a lighter without covers, and agreed on behalf of himself and tho steamship company to furnish covers, which he failed to do, resulting in injury to the cargo from rain, the lighter was not liable in rem, but the agent was primarily, and the1 steamship company secondarily, liable.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. § 489; Dec. Dig. § 143.*]</p>

Landis, Judge. Habeas corpus by Seu Reung against P. R. Prentis, immigrant inspector in charge at Chicago. From an order discharging petitioner from custody, the inspector appeals.

<p>1. Bankruptcy (§ 408*) — Discharge—Opposition—Transfer ok Concealment with Intent to Hinder, Delay, or Defraud Creditors.</p> <p>A bankrupt, within four months prior to bankruptcy paid S4,500 to his wife in settlement of a debt for money borrowed from her, from which she returned íj¡l,250 to Mm to enable him to go to Europe to raise further capital to put into the business. Reid, that such transfer did not constitute a transfer or concealment with intent to hinder, delay, or defraud creditors, and was therefore insufficient. to bar the bankrupt’s discharge on that ground.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 732-736, 759, 762, 763; Dec. Dig. § 408.*]</p> <p>2. Bankruptcy (§ 408*) — Discharge—False Oath.</p> <p>That a bankrupt in the course of an extended examination made a misstatement concerning his want of knowledge of his insolvency at a particular time was insufficient to warrant a denial of a discharge on the ground that ho made a false oath.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-736, 759, 762, 763; Dee. Dig. § 408.*]</p> <p>3. Bankruptcy (§ 409*) — Discharge—Failure so Keep Books.</p> <p>A bankrupt’s stock consisted in part of a stock of goods which he had brought over from a former business, and, the partners in the new business being unable to agree on the discount to be made from the cost price, the items of such stock were valued at cost and set down in lead pencil in the inventory, so that by making a proper discount from the items so entered the exact status of the firm could be determined at any particular time. Reid, that the failure to take stock and inventory the value of all the assets at the end of each year did not show that the firm’s books were improperly kept, for the purpose of concealing its true financial condition, so as to bar the bankrupt’s discharge.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent;. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p> <p>4. Bankruptcy (§ 409*) — Discharge—Failure to Keep Books.</p> <p>Where the books of a firm were kept by a competent bookkeeper, who was not interfered with by either member of the firm, and there was no showing of an intent on the part of the bankrupt to conceal his financial condition, the fact that the books were inaccurate on account of misunderstanding, inadvertence, or mistakes was not ground for the denial of a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p>

<p>1. Bankruptcy (§ 51*) — Voluntary and Involuntary Proceedings.</p> <p>Where, after the institution of an involuntary bankruptcy proceeding, the bankrupt filed a voluntary application for adjudication, under which he was adjudged a bankrupt and his estate settled, the proceedings taken in the voluntary proceeding could not be attributed to the involuntary proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 49; Dec. Dig. § 51.*]</p> <p>2. Bankruptcy (§§ 44, 81*) — Proceedings—Voluntary and Involuntary.</p> <p>In an involuntary petition in bankruptcy, the creditors must allege, in addition to jurisdictional facts, that the defendant is insolvent, and has committed an act of bankruptcy within the preceding four months, while a voluntary petitioner need only aver that he owes debts which he is unable to meet and that he desires to take the benefits of the bankruptcy act; he not being required to admit that he is insolvent, or that he has committed any act of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 43-46, 59, 113-118, 125; Dec. Dig. §§ 44, SI.*]</p> <p>3. Bankruptcy (§ 99*) — Discharge—Res Judicata — Involuntary Proceeding — Dismissal.</p> <p>If an alleged bankrupt resists an involuntary proceeding, a Judgment of dismissal is not res judicata of the right of the bankruptcy court to administer his estate, and is not a bar to a voluntary proceeding which is founded on a different right.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 136, 146; Dec. Dig. § 99.*]</p> <p>4. Bankruptcy (§ 47*) — Nature of Proceeding — Involuntary PetitionPendency — Effect.</p> <p>Mere pendency of an involuntary bankruptcy petition does not deprive the court of jurisdiction to receive and consider a voluntary petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 165-1S3, 257; Dec. Dig. § 47.*]</p> <p>5. Bankruptcy (§ 100*) — Voluntary Petition — Pending Involuntary Proceeding.</p> <p>The filing of a voluntary petition in bankruptcy cannot be made a lawful basis for entering an adjudication or taking any other step in a pending involuntary proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dec. Dig. § 100.*]</p> <p>6. Bankruptcy (| 49*) — Involuntary Petition — Voluntary Proceedings.</p> <p>It is only where, by reason of the time elapsed between the filing of an involuntary bankruptcy petition and the filing of a voluntary petition, creditors, through the trustee, might not be able to recover property and avoid preferences, that the court will suspend the voluntary petition or set aside proceedings based thereon in order that the involuntary proceeding might be expedited.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 49.*]</p>

Willard, Judge. Action by Lute A. Stacy against the City of St. James. Judgment for plaintiff, and defendant brings error. •Plaintiff below, while walking along on one of the public sidewalks in tins city of St. James, encountered an iron grating extending transversely across substantially all of the sidewalk.

<p>1. Bankruptcy (§ 105*) — Pending Actions — Stay.</p> <p>Tlio power to stay actions pending in the state courts against a bankrupt is given only for the benefit of the bankrupt’s estate, and, if the estate has no interest in the suit, it cannot properly be stayed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 156-158,162; Dee. Dig. § 105.*]</p> <p>2. Bankruptcy (§ 217*) — Actions in State Court — Attachment—Stay.</p> <p>An attachment suit having been instituted in the state court against a bankrupt within four months prior to adjudication, the attachment was discharged by a surety bond. A director of the bankrupt company to procure the bond executed an indemnity agreement with the surety company, and to secure him against loss the bankrupt conveyed as a part of the same transaction certain real property to be held in trust for him. Held that such conveyance, being in good faith, was neither fraudulent nor a preference, and hence, as the prosecution of the attachment suit would operate indirectly as an appropriation of the bankrupt’s estate, the trustee was entitled to a stay.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 323, 330, 340; Dec. Dig. § 217.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Learned Hand, Judge.</p> <p>. Suit by the Greater New York Film Rental Company against the Biograph Company, impleaded with the General Film Company. From an order granting complainant a preliminary injunction against defendant Biograph Company, it appeals.</p>

<p>1. Patents (§ 32,8*) — Validity and Infringement — Machine for Stuffing Horse Collars.</p> <p>The Collett and Rennie patent. No, 949,293, for a machine for stuffing horse collars with tangled straw, was not anticipated, discloses patentable invention, and possesses great utility; also, hold infringed.</p> <p>2. Patents (§ 238*) — 'Infringement—Utilization of Material for Accomplishment of Result.</p> <p>In an action for infringement of a patented machine for stuffing horse collars with tangled straw, a contention by defendant that in its machine it had no means for rotating its hopper, and that to accomplish that result it utilized the straw — the material on which the machine operated — • and that the material cannot be considered a part of the mechanical means of the combination which constituted the machine, held unsound.</p> <p>ri-M. Note. — For other cases, see Patents, Cent. Dig. § 376; Dee. Dig. § 238.*)</p>

Petition by Arthur K. Beckwith for writ of mandamus to the Judge of the District Court.

<p>In Equity. Suit by Maurice L. Knight against Henry P. Rieger, John Drobisch, Henry P. Rieger & Co., Incorporated, Raura Praeger, and Christian B. Ohrenschall. On final hearing. Decree for defendants.</p>

<p>In Equity. Suit by the 'United Electric Company against the Creamery Package Manufacturing Company and others, On petition by defendant company for an injunction.</p>

Petition by the Atchison, Topeka & Santa Fe Railway Company and others against the United States, and the Interstate Commerce Commission, and the Arlington Heights Fruit Company and others, intervening respondents, to enjoin the enforcement of a rate on lemons from the Pacific to Atlantic Coast points of one dollar a hundred, as confiscatory. On motion to strike out evidence taken before the Interstate. Commerce Commission and on final hearing.

<p>At Law. Action by Charles K. Hart, trustee of John F. Reece, bankrupt, against the Emmerson-Brantingham Company. Judgment for defendant.</p>

<p>Customs Duties (§ 133*) — Seizure and Sale oe Property Through Mistake oe Fact — Proceeding eor Review- — Laches.-</p> <p>Where an imported article was seized, forfeited, and sold by the United States for undervaluation, under a mistake of fact which was not known for some years, a delay of five years thereafter is not such laches as should debar the importer from maintaining a libel of review to reclaim the net proceeds of the property, which still remain in the registry of the court, the government having suffered no loss because of the delay.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 316-331; Dec. Dig. § 133.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Morris Rosett and Max Rosett individually and composing the firm of M. Rosett. On review of referee’s order providing for distribution of a fund deposited by the bankrupts with the Comptroller of the state of New York and denying a motion for declaration of a dividend.</p>

<p>In Equity. Suit by John A. S. Brown and Frank E. Schermerhorn, as trustee under the will of Thomas Cunningham, deceased, against Austin B. Fletcher, as testamentary trustee of Conrad Morris Braker, under the will of Conrad Braker, Jr., deceased. Decree for defendant.</p>

<p>In Admiralty. Suit for collision by Arthur P. Brayton, owner of the sloop Hitgi, against the launch Yankee, Robert F. Chambers, claimant, and cross-libel. Decree against the Yankee.</p>

<p>Indemnity (§ 13*)' — Joint Wrongdoers — Defenses—Conditions Precedent.</p> <p>Libelant chartered a steamship from respondent, which was to deliver the vessel completely fitted for service, and pay and provision the officers and crew, while libelant was to load and discharge. One of the stevedores employed by libelant in loading was injured by the giving way of a strongback crossing a batch by reason of a defective fastening. lie brought an action in a state court against both charterer and owner which libelant settled for $5,000, receiving a general release, while respondent settled for $1,000, receiving a similar release. Held that, conceding the right of libelant to recover contribution from respondent in a-proper case, it could not do so without having given respondent notice before seitlement and an opportunity to contest libelant’s liability in the original action.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dee. Dig. 1 13.*]</p>

In Bankruptcy. In the matter of William Zitron, bankrupt. On review of order of referee.

At Law. Action by Ellsworth C. Irvine, receiver for the benefit of creditors, appointed in an action of F. M. Marriott, Consolidated, against the Columbus, Sandusky & Hocking Railroad Company and others, against Alfred S. Elliott. On demurrer to declaration.

<p>In Bankruptcy. Suit by C. J. Faulkner,' as trustee in bankruptcy of Moses Kaplon, against Saul Kaplon and wife. Decree for complainant.</p>

In Admiralty. In the matter of petition of the Pere Marquette Railroad Company, as owner of the car ferry steamer Pere Marquette 18, for limitation of liability: On exceptions to answers. The xietitioner, Pere Marquette Railroad Company, has filed a libel and petition, alleging its ownershix) of a car ferry steamer Pere Marquette IS, a duly, enrolled and licensed merchant vessel employed in navigation upon the Great Lakes.

<p>Commerce (§ 89*) — Actions to Recover Excessive Charges — Interstate Commerce Act — Jurisdiction of Courts.</p> <p>A consignee of property shipped in interstate commerce cannot maintain an action against tire carrier to recover because of excessive freight charges1 exacted on such shipments, except for the enforcement of an award of damages made by the Interstate Commerce Commission under Interstate Commerce Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 384 (U. S. Coinp. St. 1901, p. 3105), as amended by Act June 29, 1906, c. 3591, § 5, 34 Stat. 590 (U. S. Comp. St. Supp. 1911, p. 1301), in favor of plaintiff, and a court is not given primary jurisdiction of such an action by the fact that the Commission, on complaint of the shippers, to which proceeding plaintiff was not a party, has made a finding that the rate was excessive, and an award of damages to such shippers.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 89.* Jurisdiction of federal courts of suits under Interstate Commerce Act, see note to Bailey v. Mosher, 11 C. C. A. 318.]</p>

Action by H. B. Williams, Incorporated, against the Western Union Telegraph Company. On motion for a new trial and for judgment non obstante veredicto.

Action by the United States, for the use of the Brading-Marshal Dumber Company and others, against Mark P. Wells and others. On application for reference to a master. This is an action at law commenced by the United States for the use and benefit of the Brading-Marshal Lumber Company and others, against Mark P. Wells and the Empire State Surety Company.

<p>Habeas corpus by the United States, on relation of Edward F. Mylius, to obtain his discharge from the custody of Byron H. Uhl, Acting Commissioner of Immigration.</p>

<p>1. Ataevs (§ 44*) — Right to Enter.</p> <p>Aliens are entitled to enter the United States except so far as the rigiit is restricted by statutes defining the excluded classes; the burden being on the immigration authorities to show that any alien denied the right to enter falls within one of the exceptions to the general privilege.</p> <p>FErt. Note. — For other cases, see Aliens, Cent. Dig. §§ 102-104; Dee. Dig. § 41.*]</p> <p>2. Alievs (§ 40*) — Application to Enter — Rights.</p> <p>Although an alien who has not yet entered tlie United States may not enjoy the constitutional guaranties of citizens, he nevertheless has rights under the immigration laws which the immigration authorities are bound to respect.</p> <p>FKd. Note. — For other cases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 40.*]</p> <p>3. Aliens (§ 40*) — Right to Enter — Exclusion—Persons Having Committed a Felony or Other Crime oh Misdemeanor Involving Moral Tur-PITU DE — E Vil 1ENCE.</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, § 2, 34 Stilt. 898 (U. S. Comp. St. Supp. 1911, p. 500), providing for the exclusion of persons who have been convicted of or admit having committed a felony, or other crime, or misdemeanor involving moral turpitude, where there is no proof that an alien has ever been convicted of an alleged crime in the country where it was committed, the only proof that is competent for the immigration authorities to receive, on which to base an order of exclusion, is the alien’s own admission, nor can this be presumed by his refusal to answer questions put to liim by tbe immigration authorities with reference to such alleged crime.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 105; Dec. Dig. § 46.*]</p> <p>4. Aliens (§ 46*) — Exclusion—Immigration Act — Construction.</p> <p>Immigration Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898 (D. S. Comp. St. Supp. 1911, p. 500), providing that nothing contained in the act shall exclude an alien if otherwise admissible because of his having committed an offense purely political, had no application to an alien who has not been actually convicted of an offense, for the alleged commission of which he is sought to be excluded.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent.1 Dig. § 105; Dec. Dig. § 46.*]</p>

<p>Master and Servant (§ 17*) — Hours ok Service Act — Reports by Carrier —Failure to Make — Penalties.</p> <p>Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, as amended by Act. .'June 18, 1910, c. 309, § 14, 36 Stat. 556 (U. S. Comp. St. Supp. 1911, p. 1305), alter authorizing the commission to require certain reports from carriers touching income, expense, and indebtedness, and to lix the time and manner in which the reports shall be made, provides that, in case of failure to file such reports within 30 days after they may be lawfully required, the carrier shall forfeit to the United States $100 for each day’s default. It then authorizes the commission, by general or special order, to require carriers to file monthly reports concerning any matters about which the commission is authorized to inquire, and for a failure to file such reports the carrier is made ’‘subject to the forfeitures last above provided.” ITeld that, the commission having required carriers to report all instances where employés had been on duty for a longer period than 16 consecutive hours in violation of Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. Supp. 1911, p. 1321), the act was mandatory as to the carrier’s liability in case of a failure to make such reports; and hence the court, in an action to enforce the penalty for such failure, could not consider matter in mitigation as ground for reduction of the penalty.</p> <p>IEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. § 17.*J</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of T. P. Reynolds. Ou petition to review a referee’s order in favor of the Bird-sell Manufacturing Company to reclaim certain goods in the possession of the bankrupt.</p> <p>The following is a copy of the contract referred to in the opinion:</p> <p>Birdsell Manufacturing Company, of South Bend, St. Joseph county, Indiana, hereinafter designated as “Company,” and T. F. Reynolds of Cynthia ua, in the county of Harrison, state of Kentucky, hereinafter designated as “Agent” hereby agree as follows:</p> <p>First. Said Company hereby grants said Agent the privilege of handling its wagons on consignment in Cynthiana, county of Harrison, state of Kentucky, until such time as this contract may be terminated as hereinafter provided.</p> <p>Second. Said Agent shall transact all business pertaining to the sale of said wagons, and shall pay all taxes, freight, storage and other expenses on same, and keep the same fully protected from the weather, and in good, order, all at the Agent’s own expense. Company agrees to keep said goods properly insured against loss by fire at its own expense. Agent’s right to dispose of such goods as may be shipped him shall extend only to actual sales made in the regular course of trade, for a sum in no instance less than invoice price with freight added, and until so sold the title and property rights in said goods shall remain in the Company. All orders for goods, given by Agent to the Company under this contract, shall he subject to the approval of the Company.</p> <p>Third. The entire proceeds from the sale of such goods shall be the sole property of the company, and shall be kept by the Agent separate and apart from his other funds, and shall be accounted for as hereinafter provided.</p> <p>Fourth. Agent shall, oil the first day of each month, and when requested to do so by 1he company, or its duly authorized representative, render a statement showing a 11 goods on hand, and all goods sold during the preceding month, and shall at once settle for goods sold, in cash, at the invoice price thereof, loss a discount of five per cent. Tn case Agent shall sell any wagons on time, he may settle with Company for same by executing his note duo in four months, without interest, for the invoice price of goods sold, and in such case shall not receive five per cent, discount; but the amount of unpaid notes owing by Agent to the Company shall not, at any time exceed the sum of §100.00.</p> <p>Fifth, if any goods delivered by the Company to the Agent shall remain unsold and in the possession of the Agent at the exxiiration of twelve months from the dote of invoice of such goods, the Agent shall, if required by the Company, surrender said goods to the Company; or if the Company shall require it, Agent shall irarehase said goods from the Company, at the invoice price thereof, less five per cent, discount.</p> <p>Sixth. Should the Agent die or disptose of the business in which he is engaged at the time of making this agreement, or should he for any reason desire to terminate this contract, he shall, if requested by the Company, surrender all goods on hand to the Company; or if required by the Company, he shall purchase said goods of the Company, and pay the invoice price of same less five per cent, discount.</p> <p>Seventh. The .said company reserves the right to revoke this agreement whenever it may, in its judgment, deem it necessary for the protection of its interests, and receiving notice of such revocation, the Agent shall surrender to the Company all goods and property in the possession of Agent at the time, the goods to be in as good condition as when received by the Agent, and Agent shall pay for all damage to same and all charges, except freight only, and in such case Company will pay the Agent for such freight as Agent may have paid on goods so surrendered to the Company; no freight shall be repaid by the Company, if Agent becomes a bankrupt or insolvent.</p> <p>Eighth. As compensation for all services and all outlays made by him under .this contract, the Agent shall receive the five per cent, discount specified in clauses fourth, fifth and sixth, and also the surplus received by him over and above the invoice price of each article sold.</p> <p>Ninth. All repairs shall be settled for by Agent in thirty days from date of shipment, whether sold by him or not, by remitting to the company the full invoice price for same, no five per cent, discount being allowed on repairs.</p> <p>Tenth. All goods sold by Agent shall be sold under the warranty contained in the Company’s current catalogue and none other.</p> <p>Eleventh. Said Agent shall be governed by instructions of. said Company, and shall reimburse' said Company for any loss or expense resulting from any departure by him from the terms and conditions of this agreement, including all attorney fees, costs, and expenses incurred by the Company iu enforcing .this contract.</p> <p>Twelfth. The failure of the’Company to enforce at any time any provision of this contract, or the failure of the Company to exercise any of the options herein granted it, shall not affect or impair the validity of any part of this contract; and the Company may at any time exercise such options or enforce such provisions.</p> <p>Thirteenth. This agreement embodies the entire understanding between the parties, and cannot be modified except by writing, duly executed by both parties. It shall be binding on both parties when signed by said Agent, and also by the Company at South Bend, Indiana, by one of the officers thereof,</p>

<p>Courts (S 289*) — .'Jurisdiction ot- Federal Courts — Suit Arising Under Interstate Commerce xYct.</p> <p>An action by a railroad company against a shipper to recover the difference between the freight paid on an interstate shipment and the amount due under the legally established and published rate schedules in force is within the jurisdiction of a District Court of the United States, regardless of the citizenship of the parties or the amount in controversy, under Judicial Code, § 24, par. 8 (xYct March 3, 1911, c. 231. 3(> Stat. 1092 [IT. S. Comp. St. Supp. 1911, p. 130]), which gives such court jurisdiction “of all suits and proceedings arising under any law regulating' commerce except those suits and proceedings exclusive jurisdiction of which has been conferred on tlio Commerce Court.”</p> <p>I Ed- Note. — For other eases, see Courts, Cent. Dig. § 830; Dec. Dig. § 289.*]</p>

<p>In Equity. Suit by the Title Guaranty & Surety Company against William Dutcher and others. Decree for complainant.</p>

<p>Suit by the Title Guaranty & Surety Company against William Duteher and others. Decree for complainant.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Isaac Miller, formerly doing business as the Brooklyn Glass Works. On petition for discharge.</p>

<p>In Equity. Suit by the California-Oregon Power Company against the City of Grants Pass and others. Decree for complainant.</p>

Suit by Matilda R. Aubry Schwahn and another, trading as Aubry Sisters, against E. A. Miele and others to restrain alleged unlawful competition. On final hearing. Decree for complainants.

<p>In the matter of the Tygarts River Coal Company, alleged bankrupt. On ancillary petition by receivers.</p>

In the matter of Samuel Scliimmel, individually and trading as the Central Gas Appliance Company, bankrupt. On rule to dismiss proceedings for review of order of referee.

<p>At Law. Action by Alex Raphaer against Moses Leader. On motion to direct verdict for defendant.</p>

<p>In Admiralty. Suit by the Brothers Valley Coal Company against Charles V. Minott, Jr., and others. Decree for libelant.</p>

<p>In Admiralty. Suit for salvage by the Propeller Towboat Company and others against the steamship Craster Hall and cargo. Decree for libelants.</p>

<p>Salvage (§ 30*) — Nature of Service — Action for Compensation.</p> <p>An ocean steamer, not engaged in the towing business, but on a voyage with a valuable cargo on board, which, at the request oí a lightship and at considerable risk to herself and cargo, went to the rescue oí a schooner stranded on Frying Pan Shoals, and skillfully released her without injury from a dangerous position, in which she had lain all night signaling for assistance, MU entitled to a salvage award of §6,500.</p> <p>[Fxl. Note. — For other cases, see Salvage, Cent. Dig. §§ 72-74: Dec. Dig. § 30.*]</p>

<p>Bankruptcy (§ 399*) — Exemptions—E’orpeittjre op Eight.</p> <p>A bankrupt who made a grossly false statement of Ms financial condition to a mercantile agency only 10 months prior to his bankruptcy, in which he claimed assets of several thousand dollars, for which he has not accounted, is not entitled to his exemption from property not paid for, and which he presumably obtained on credit by reason of such statement.</p> <p>[Ed. Note — For other cases, see Bankruptcy, Gent. Dig. § 669; Dec. Dig. § 399.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. B. McPherson, Judge.</p> <p>Action by Annie E. Bunting against the Pennsylvania Railroad Company. Judgment for defendant (189 Fed. 551), and plaintiff brings error.</p>

<p>1. Seuppirg (§ 58*) — Charters—Loss of Vessel. — Liability of Charterer.</p> <p>Libelant, as managing owner, chartered a vessel to respondent, a corporation operating a fishing station in Alaska for a voyage from San Francisco to such station and return for a monthly -hire for tlie “bare vessel,” respondent to furnish the crew and pay all expenses. The vessel was to be delivered in good seaworthy condition and returned in the same condition in San Francisco, reasonable wear and tear excepted. It was intended she shonld bring a return cargo of fish at the close of the season. Libelant' was hired as master, and the crew were to work as fishermen at the station, and to be paid a stated sum as “run money” for the voyage up and back. The vessel suffered some damage to her masts on the outward voyage, but nothing to affect her practical efficiency. She entered the lagoon on which the station was situated in charge of a pilot furnished by respondent, and was stranded, but not seriously injured. She was floated, anchored at the station, and her cargo discharged in good' condition. Respondent’s superintendent then ordered all the crew off except libelant, and gave Mm a notice of cancellation of the charter on the ground of the unfitness of the vessel to carry a return cargo. He afterward had her insufficiently anchored at a different place, and she finally dragged her anchors, and was stranded and lost. There were no men at the place except respondent’s employes, and when libelant attempted to hire some of the crew to help take’ the vessel hack, offering a bonus of $150 each, the superintendent refused to settle, and allow them run money on the return trip, and they would not go. Held, that the loss of the vessel was not due to a peril of the sea or an accident of navigation within the exceptions of the charter, but to the fault and negligence of respondent’s agents, for which it was responsible as charterer.</p> <p>FEd. Note. — For other cases, see Shipping, Cent. Dig. §§ 233-244, 314, 327; Dee. Dig. § 58.*]</p> <p>2. SiniTING (§ 53*)- -OirABTBES — Coxs'nurcTiosr.</p> <p>While such charter was a demise of the vessel for the voyage, under which respondent became the owner pro hac vice as to third persons, it remained a charterer as to the general owners, and as between them the acts of negligence of its agents and servants were not attributable to such owners, but to respondent as charterer.</p> <p>rKd. .Mole. — For other cases, see Shipping, Cent. Dig. §§ 214-218, 225; Doc. Dig. § 53.*]</p>

<p>1. Bankruptcy (§ 116*) — Receivers—Rights and Powers — Jurisdiction of District Court.</p> <p>A marshal appointed to take charge of the property of an alleged bankrupt under Bankr. Act July 1, 1898, c. 541, § 2 (3), 30 Stat. 545 (U. S. Comp. St. 1901, p. 3421), has the right, and it is his duty, to seize and hold property which there is reason to believe belongs .to the estate of the bankrupt, although it is in the possession of a third person who claims ownership, and the District Court has jurisdiction to determine the title thereto. •</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p> <p>2. Bankruptcy (§ 116*) — Adverse Claim — Jurisdiction op Bankruptcy Court — Consent.</p> <p>An adverse claimant of property in the possession of a marshal as receiver in bankruptcy who files a petition for its recovery in the bankruptcy court consents to the jurisdiction of such court to summarily determine his rights.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p> <p>3. Bankruptcy (§ 107*) — Receivers—Seizure op Property.</p> <p>That property was unlawfully taken from one in possession by state authorities through an unreasonable search and seizure affords no réason why it may not be lawfully seized while in possession of such authorities by a marshal as receiver in bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 149, 151; Dec. Dig. § 107.*]</p>

Dayton, Judge. _ _ Criminal prosecution by the United States against M. E. Toothman. Judgment of conviction, and defendant brings error. This is a criminal action, tried at the June term, 1910, of the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg. The plaintiff in error, M. E>. Toothman (hereinafter referred to as the defendant), was charged with the violation of section 3S93, Revised Statutes (U. S. Comp.

<p>1. Master and Servant (§ 265*) — Death of Servant — Negligence—Presumption- — Proximate Cause.</p> <p>A servant’s death raises no presumption of his master’s negligence, but such negligence, to be actionable, must be affirmatively shown, and must also b.e shown to have been the proximate cause of the death.</p> <p>[Ed. Note.- -For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p> <p>2. Master and Servant (§ 129*) — Death of Servant — Proximate Cause— Negligence.</p> <p>Decedent was killed'while working as a brakeman in the underground operations in defendant’s mine. A -train of cars had been drawn into the mine by an electric motor, and as the traifl approached a junction a flying switch was made to run the cars upon a sidetrack to the point where they were to be loaded. When the ears left the .-junction, decedent was alive, and on or inside the rear car. In the immediate neighborhood of a second switch which it would have been his duty to turn, the trolley wire crossed the gallery at a height of five feet eight inches above the rails, which might have shocked him or thrown him off. There was no stationary light at the second switch, and the headlight on the motor was ineffective. As the motor overtook the cars, it ran over something on the rail, which was afterwards discovered to be decedent’s body. Decedent was accustomed to the work, had passed along the gallery 10 times a day for several months, and had helped put up the traction system. Hold, that the cause of decedent’s death was uncertain, and that the facts did not warrant a conclusion that defendant’s negligence w]is the proximate cause thereof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-2G3; Dec. Dig. § 129.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Intervention by the First National Bank of Middletown, Ohio, against H. H. Haines, receiver of the New Decatur Buggy Company. Judgment for plaintiff, and defendant appeals.</p>

In Bankruptcy. Petition by William B. Holden, trustee of Jay A. Haring, bankrupt, to revise an order of the District Court (193 Fed. 168) dismissing the proceeding to punish the bankrupt for contempt in failing to pay over $4,000 alleged to have been unlawfully retained by the bankrupt from his trustee.

I. Grubb, Judge. In the matter of bankruptcy proceedings of Knight, Yancey & Co. From a decree (190 Fed. 893) rejecting proofs of debt of Boden & Haac and others, foreign creditors of the bankrupt, on objection of W. S. Lovell, trustee, the creditors appeal.

S. Maxey, Judge. Action at law by P. E. Kern against C. O. Coffin, and cross-action by Coffin against Kern. Judgment for Coffin in the cross-action, and Kern brings error.

In’Error to the District Court of the Ünited 'States for the Eastern District of Pennsylvania; J. B. McPherson, Judge. Action at law by Leonard G. Paine against the Standard Plunger Elevator Company. Judgment (192 Fed. 75) for defendant, and plaintiff brings error.

<p>Muntcipat. Corporations (§ 225*) — Property—Conditions Subsequent in Deed — Unauthorized Acts of Officers.</p> <p>The city of Pittsburgh, which, under the law of Pennsylvania governing cities of the second class (Act March 7, 1901; P. L. 20), can lease or sell and convey real estate only by action of the mayor and councils, cannot be deprived of the title to valuable property donated to it for market purposes, on condition that title should revert if it was used for any other purpose, by the unauthorized action of administrativo officers in permitting a part of the property to he used in certain seasons as a playground, and in paying a part of the expense of maintaining such playground from general appropriations made by councils for such purposes.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 626-641, 643; Dec. Dig. § 225.*]</p>

<p>1. Corporations (§ 308*) — Omiceks—Right to Compensation.</p> <p>A promoter of a corporation, who was also a stockholder and director, cannot recover from the corporation for personal services rendered to it, in the absence of any contract therefor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. | 308.*]</p> <p>2. Corporations (§ 189*) — Stockholders—Claims Against Corporation— Set-Oee.</p> <p>An assessment made on the stock of a corporation, for which the stockholders are not personally liable, cannot be set off by the corporation against a debt due from it to a stockholder.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 706-722; Dec. Dig. § 189.*]</p> <p>3. Corporations (•* 99*) — Issue oe Stock — Consideration.</p> <p>The ownership of stock by a stockholder, to whom it was issued by the corporation in part consideration for a loan made to it, cannot be questioned for want of consideration by a third person.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 441- 446; Dec. Dig. § 99.*]</p>

Dandis, Judge. Action at law by Adolpho Dupouy, trading as A. Dupouy & Co., against the Mills Novelty Company.

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; C. H. Hanford, Judge. .</p> <p>Suit in admiralty for collision by the Kitsap County Transportation' Company, owner of the steamer Kitsap, against the steamship Indianapolis, the International Steamship Company, claimant, and cross-libel against the Kitsap. Decree dividing damages.</p> <p>The Kitsap County Transportation Company, owner of the steamer Kitsap, libeled the steamship Indianapolis, her engines, boilers, tackle, apparel, and furniture, for damages growing out of a collision in the waters of Puget Sound between the Kitsap and the Indianapolis, and praying, among other things, that the latter be condemned to pay the damages alleged to have been sustained by the Kitsap and the costs of the libel. Process having been issued and served upon the steamship, the International Steamship Company a’s owner and claimant of the Indianapolis filed an answer to the libel and also a cross-libel against the steamer Kitsap, in which answer and cross-libel the claimant and cross-libelant asked that the original libel be dismissed with costs, and that the steamer Kitsap, her engines, boilers, tackle, apparel, and furniture lie condemned to pay the demands of the crosslibelant, with costs. Proofs haying been taken on behalf .of the .respective parties and submitted to the trial court, the judge thereof found and decreed that the collision mentioned in the pleadings was caused by the mutual fault of the steamer and steamship, and accordingly adjudged a division of the damages resulting from such collision, that the damages sustained by the Kitsap amounted to $32,666.87, and that the damages sustained by the Indianapolis amounted to $5,451.50, and, dividing the damages, that the claimant and cross-libelant pay to the libelant the sum of $13,607.68, but that neither party to the action should recover costs against the other, and that no interest should be allowed to either. The trial court further found and adjudged that the libelant was entitled to damages in the nature of demurrage for a period of 139 days, consumed in making temporary and permanent repairs to the Kitsap, which damages the court in its decree fixed at the rate of $50 a day. Both the libelant and tlio cross-libelant appealed from the decree.</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge.</p> <p>Suit in equity by the United States against Wright, Blodgett & Co., Limited, and others. Decree for complainant, and defendants appeal.</p>

<p>Public Lands (3 120*) — Suit fob Cancellation on Patents — Fbaud.</p> <p>Evidence held to .support decrees canceling land patents for fraud as against; vendees of the original patentees.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dee. Dig. § 120.*]</p>

<p>1. Patents (§ 328*) — Infringement—Drawing Instrument.</p> <p>The Starr patent, No. 533,095, for a drawing instrument for drawing ellipses, claim 3, the main feature of which, and that which distinguishes it from the prior art, is the guide bar shown, held not infringed by an instrument which does not use such guide bar but the old substitute therefor.</p> <p>2. Patents (§ 165*) — Claims.</p> <p>That the patentee may have been enti.tled to a claim he did not make is immaterial. Courts cannot make claims for him.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>3. Patents (§ 167*) — Construction—Use of Term “Substantially as Described.”</p> <p>The specification, claim, and drawings of a patent are a unit. Whatever parts of the device are named in a claim are of necessity intended to be named with reference to the specification and drawings, and the reference cannot be made narrower by saying “as described” nor broader by saying “substantially.”</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dec. Dig. S 167.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6741, 6742.]</p> <p>4. Patents (§ 328*) — Validity and Infringement — Cutting Instrument.</p> <p>The Starr patent, No. 683,809, for a cutting instrument, especially adapted to cutting beveled picture mats in curved forms, claims 1-10, are void for lack of invention. Claims 11, 19, and 20 held valid and infringed, and claims 16 and 17 not infringed.</p> <p>5. Patents (§ 27*) — Double Use.</p> <p>Where the thought of adapting a machine to a new use is not new, the mere use of common expedients for the adaptation is not invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*]_</p> <p>6. Patents (§ 25*) — Aggeegation.</p> <p>Where the action of one part modifies the action of the other part, there is more than a mere aggregation.</p> <p>[Ed. Note. — -For other cases, see Patents, Gent. Dig. §§ 27-29; Dec. Dig. § 25.*]</p> <p>7. Patents (§ 17*) — Invention—Adjustability.</p> <p>There usually can be no invention in making a tool adjustable on its carrier in four directions, instead of two.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 16, 17; Dec. Dig. § 17.*]</p> <p>8. Patents (§ 328*) — Validity—Machine foe Gutting Cubves.</p> <p>The Starr patent. No. 766,158, for a machine for cutting curves, claims 9, 10, 12, and 13, held void for lack of invention over a prior patent to the same patentee.</p> <p>9. Patents (§ 153*) — Disclaimer—Costs.</p> <p>Where some claims are invalid, they must be disclaimed before a decree is entered on the valid claims. No costs can be allowed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent, Dig. § 226; Dee. Dig. § 153.*]</p>

Kohlsaat, Judge. Suit in equity by the Commercial Acetylene Company and the PrestO-Lite Company against the Searchlight Gas Company, George F. Schroeder, and Oscar Bauer. Decree for defendants, and complainants appeal.

Kohlsaat, Judge. Suit in equity by the Exchange Scrip Book Company against Rand, McNally & Co. Decree for defendant, and complainant appeals. This appeal is from a decree dismissing for want of equity the appellant’s bill filed against the appellees, averring infringement of letters patent No. 669,489. It arises under the same bill and charge of infringement which was upheld by decree of the trial court on a previous hearing, affirmed by this court on appeal therefrom.

<p>Patents (§ 828*) — Vamdtty and Infringement — Lifting Jack.</p> <p>The Cox patent, No. 688,591, for a lifting Jack, claims 2 to 5, inclusive, are void for anticipation in the prior art. Claim 1, if conceded validity, held not infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement- — Electric Meter.</p> <p>The Merz patent, No.- 722,030, for a combined electric measuring and indicating apparatus, was not anticipated, discloses patentable invention, and is entitled to a broad construction of its claims; also held infringed.</p>

<p>Patents (§ 328*) — Invention—Geii Setting.</p> <p>The Lawson patent No. 983,295, for a gem setting, having such ornamental extensions as may be made in box settings of the usual type constructed integrally with such setting, is void for lack of patentable invention.</p>

<p>1. Judgment (§ 599*) — Suit fob Infringement — Prior Judgment as Bar.</p> <p>A judgment at law for infringement of a patent is not a bar to a subsequent suit in equity against the same defendant for other acts of infringement committed prior to the commencement of the law action, but not known to complainant at that time, and not included in the judgment. •</p> <p>(IOd. Note. — For other eases, see Judgment, Cent. Dig. § 1114; Dee. Dig. § 599.*]</p> <p>2. Judgment (§ 720*) — Suit for Infringement — Prior Judgment — Res Judicata.</p> <p>A judgment for plaintiff in an action at law for infringement of a patent is conclusive of the questions of validity of the patent and infringement in a subsequent suit in equity against the same defendant for infringement by devices identical with those involved in the law action.</p> <p>TEd. Note. — For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Switching Device.</p> <p>The Cheatham patents, No. 612,702 and Éo. 917,541, for switching devices, held valid and infringed.</p>

<p>Trial (§ 340';-) — Verdict—Power to Amend.</p> <p>A court! is without power to change the record of a verdict after the discharge oí the jury, to show special iindings, where it was entered as a general verdict only.</p> <p>I Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795-799; Doc. Dig. I :M0.*]</p>

<p>Removal of Causes (§ 36*) — Diversity of Citizenship — Joinder of Resident Defendant.</p> <p>An allegation, in the petition in an action by a servant against his nonresident corporate employer and a resident foreman for a personal injury, that the injury resulted from the failure of the foreman to maintain the place where plaintiff was required to work and the appliances in a reasonably safe condition, docs not state a cause of action against the foreman personally, and his joinder does not deprive the corporation defendant of the right to remove the cause.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 79: Dec. Dig. § 36.*]</p>

<p>At Baw. Habeas corpus by the United States, on relation of Blume SchJeiter, to obtain a release from custody of William Williams, Commissioner of Immigration, under a deportation warrant.</p> <p>This is a proceeding brought on behalf of an alien immigrant held for deportation as being within one of the excluded classes. She arrived at the port of New York on the steamship America on February 2, 1913. The return shows that upon arrival she was examined before a board of special inquiry, three sitting, and that there was also before the board a certificate of three examining medical officers, Drs. Grubb, Mullan, and Gwynn, which stated that she had been examined and found to be “feeble-minded.” The act (Act Fel). 20, 1907, c. 1134, § 2, 34 Stat. 80S [U. S. Comp. St. Supp. 1911, p. 500]) excludes all aliens who are “idiots, imbeciles, feeble-minded,” etc. She was therefore excluded.</p>

<p>Bankruptcy (§ 188*) — Diens-—Effect of Failure to Record.</p> <p>The mother of a bankrupt, who furnished the money with which he bought land and built a house thereon for a home, taking an agreement by which he pledged the property to her as security, held to have a right therein superior in equity to that of his creditors, although the contract was not recorded until he became insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 270, 286-289, 291-295; Dec. Dig. § 188.*]</p>

<p>1. Monopolies (§ 16*) — Anti-Trust Act — Combination Between Coal Cab-eying Railroads.</p> <p>Coal carrying railroads extending into the same coal fields, although reaching different mines, or extending into different fields where competing coal is produced. which traverse generally parallel lines and reach either directly or through their connections the same markets in other states, must be regarded as natural 'competitors in interstate commerce, and any arbitrary methods between them or between them and the coal companies, by which such natural competition is eliminated, is in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 12; Dec. Dig § 16.*]</p> <p>2. Monopolies (§ 16*) — Anti-Trust A ot — Combination Between Coal Carrying Railroads.</p> <p>The combination of a number of coal carrying railroads, which were natural competitors, and the acquiring by them of largo coal mining interests tributary to their several lines, so that both railroad and mining interests wore under a single controlling power, the result being a division of the traffic and the elimination of competition as to interstate as well as domestic shipments, and a discrimination against all new and independent mines, was one in restraint of interstate commerce, and created a monopoly of a part of such commerce in violation of Sherman Anti-Trust Act of July 2, 1800, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — -For other cases, see Monopolies, Cent. Dig. § 12; § 16.* Dec. Dig.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4574.]</p> <p>3. Monopolies (§ 21*) — Persons Liable —Joinder After Conspiracy is Formed.</p> <p>One who learns of a conspiracy or unlawful combination after it is formed, and then joins it or knowingly aids in the execution of the scheme and shares in its profits, becomes from that time as much a co-conspirator as if he were one of those who originally designed it.</p> <p>• [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*]</p> <p>4. Monopolies (§ 24*) — Anti-Trust Act — Suit to Restrain Violation — Evidence.</p> <p>In considering the legality of a contract between railroad companies ■ claimed to be in restraint of interstate commerce, and in violation of Sherman Anti-Trust Act July 2, 1S90, c. 647, §§ 1, 2, 26 Stat. 209 (17. S. Comp. St. 1901, p. 3200), evidence to show the relations between the parties and the previous conduct of the business affected is competent.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dee, Dig. § 24.*]</p> <p>5. Monopolies (§ 16*) — Anti-Trust Act — Combinations in Restraint of and to Monopolize Interstate Commerce.</p> <p>The Hocking Valley Railway Company and the Toledo & Ohio Central Railway Company each owns and operates a line of road in Ohio from Toledo into the Hocking coal fields in the southeastern part of the state, .and from a connection with such lines the Kanawha & Michigan Railway Company owns and operates a line across the riyer into the Kanawha coal fields in West Virginia. The principal freight business of all the roads is the carriage of coal mined in such fields and destined for lake ports or points further to the north and west. About 1899 the Hocking Valley Company, through stock purchases and otherwise, acquired control of both the other roads, and also of a large number of coal companies owning land and mines tributary thereto. Five trunk lines, again, together purchased a controlling stock interest in the Hocking Valley Company, and the entire combination was practically managed and controlled by a committee appointed by them. In an action by the state against the Hocking Valley Company, which is an Ohio corporation, such combination was adjudged illegal, and the defendant was required to dispose of its controlling interest in the other roads and also in the mines. To meet this situation, a contract was entered into between two of the trunk line stockholders, viz., the Chesapeake & Ohio Railway Company, operating a line from the coast on the south side of the Ohio river to Cincinnati and a subsidiary line from there to Chicago, its main line touching th.at of the Kanawha & Michigan Company, and the Lake Shore & Michigan Southern Railway Company, operating a line from Buffalo, through Toledo, to Chicago, pursuant to which the Chesapeake & 'Ohio Company acquired the controlling interest in the Hocking Valley Company and the Lake Shore Company in the Toledo & Ohio Central Company, while the controlling interest in the Kanawha & Michigan Company and the coal companies was divided between them, the contract providing that each should have the right to use the road, and that its north-bound coal trafiic should be fairly divided between the Hocking Valley Company and the Toledo & Ohio Central Company. Held, that such contract did not change the essential character of the previous arrangement, but was inconsistent with the established rule requiring freedom of competition in interstate commerce, and in violation of Sherman Anti-Trust Act July 2, 1S90, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 12; Dee. Dig. § 16.*]</p> <p>6. Monopolies (§ 24*) — Anti-Trust Apt-Suit to Enjoin Violation.</p> <p>There is a clear distinction between the power to grant relief respecting the past failure to construct one of two projected parallel lines of railroad and the power to prevent the elimina lion of one of two parallel roads in actual existence and operation.</p> <p>Hid. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 21.* ¡</p> <p>Denison, Circuit Judge, dissenting in part.</p>

In Admiralty. Suit for collision by the Strathleven Steamship Company, owner of the steamship Strathleven, against the steam tug Margaret J. Sanford and the scow S. 11. Decree for respondents.

At Law. Action by Jeff L. Burgie against Knowlton V. Hicks for breach of a contract of sale. On defendant’s motion to set aside a verdict for plaintiff for $2,384.44.

In Admiralty. Suit for collision by the Lambert’s Point Tow Boat Company, owner of the steam tug Triton, against the steamer Virginia. 'Decree dividing damages.

<p>In Equity. Suit by the American Bonding Company of Baltimore, Md., against S. G. Reynolds, as receiver of the First Trust & Savings Bank of Billings, Mont. Decree for complainant.</p>

<p>1. Shipping (§ 121*) — Damage to Cargo — Liability—Unseaworthiness op Vessel.</p> <p>On tbe voyage of a sailing vessel with a cargo of cement from Antwerp to Puget Sound ports around Cape Horn, occupying more than six months, the cargo under the main hatch was damaged by sea water. The hatch was caulked between the cover and coaming and between the sections of the cover, but the seams between the planks forming the sections were not caulked, and there was evidence that they were open. The hatch was also covered with three tarpaulins, which were not removed during the voyage, although at one time they blew partially off and the evidence tended to show that at that time the water entered through the seams in the cover. The weather was not worse than was to have been anticipated. Held, that the damage was not due to a peril of the seas, or other cause within the exceptions of the bill of lading, but to the unseaworthiness of the vessel at the beginning of the voyage because of the defective hatch cover, and to the negligence of those in charge in not properly caring for the cargo by removing the tarpaulins during the voyage and renewing them if necessary, for both of which the owner was responsible;</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 225, 449-451, 466; Dec. Dig. § 121.*]</p> <p>2. Shipping (§ 132*) — Damage to Cargo — Breakage—Burden op Proop.</p> <p>Under a bill of lading exempting the carrier from liability for loss by breakage, unless occasioned by improper stowage, the burden of proof rests on the shipper to establish such liability.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; ‘Dec. Dig. § 132.*]</p>

In Equity. Bill by the United States against Samuel W. Morrison and another to restrain the diversion of water from a government •irrigation project to irrigate land claimed by Morrison.

In Bankruptcy. In the matter of bankruptcy proceedings of George C. Hall. Petition to review a referee’s order sustaining a motion to expunge the claim of the Commercial City Bank of Americus.

Petition for Revision of Proceedings of the District Court of the United States for the Southern Division of the Eastern District of Michigan; Alexis C. Angelí, Judge. In Bankruptcy. In the matter of bankrupt procéedings of H. H. H. Crapo Smith. Petition of Lucy C. Smith to revise an order of the District Court allowing a claim of a firm of attorneys for legal services rendered to the trustee.

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>In the matter of the Fostoria Undermuslin Company, bankrupt. From an order denying his petition for the disallowance in part of the claim of Carl F. Steinle, Alexander Kiskadden, trustee, appeals.</p> <p>The trustee sought to have a claim of Steinle re-examined and diminished, which had been allowed December 4, 1909. The claim was for $16,549, with interest from October 23, 1909. The claim was based upon five promissory-notes, two for $6,500 each and three for $1,000 each, bearing date March 26, 1909, and falling due on different dates between that time and October 26th following, with 6 per cent, interest. The notes were executed by the O. O. Anderson Manufacturing Company (whose name was changed to the Fostoria Undermuslin Company) to the order of A. Y. Bauman, and were indorsed by Bauman, Henry Hughes, and C. O. Frick. Bauman discounted the paper and turned the money over to the Fostoria Company. When the notes matured, the company was unable to pay them, and they were taken up by Bauman and held by him until November 2, 1909, when they were assigned to Steinle. The facts alleged in support of the right to have the claim diminished were, in substance, that Bauman subscribed for 300 shares, of the par value of $100 each, of the capital stock of the company, but did not fully pay for the shares, and so is indebted to the company for the balance remaining due upon his subscription; that Bauman was the real owner of the notes and the claim, but that, if it should be found that they were in fact owned by Steinle, since he obtained the notes after maturity, the claim in his hands was subject to a set-off to the extent of such balance.</p> <p>In June, 1904, C. C. Anderson and Bauman formed a copartnership for the purpose of manufacturing muslin underwear, acquiring a factory, with goods and stock, and conducting the business at Fostoria, Ohio. They also purchased and removed to this factory certain equipment and goods of a company in Saginaw, Mich. In October, 1904, they incorporated a company under the laws of Ohio, with an authorized capital stock of $100,000; Anderson and Bauman each subscribing for 44 shares, J. J. Anderson for 10 shares, and Anna Bose G. Bauman and Helen May Anderson for 1 share each, these five persons being also the incorporators and directors. The company, through these directors, thereupon purchased the partnership property, business, and good will of Anderson and Bauman, and assumed the firm’s obligations for the ■ consideration of 602 shares ($60,200 par value) of what-was characterized as “the fully paid and nonassessable stock” of the newly incorporated company. This was to include the shares subscribed, “and the issue of which was in full satisfaction of the obligations assumed by them and each of them by said subscription.” In the summary of the evidence it appears that the real estate turned over to the corporation was purchased by Anderson and Bauman for $5,000; that the purchase of the articles at Saginaw was from a company that had gone into liquidation, which, after disposing of part of its property to others, sold the remainder to Anderson and Bauman for $7,500. The referee found that the property and articles of every kind turned over by the copartnership to the company in payment of the 602 shares of stock cost the firm from $27,500 to $32,500. The company sold 200 shares of its so-called treasury stock to Henry Hughes, one of the indorsers of the notes in dispute, at $67.50 per share. This price was made and accepted on the representation of Anderson and Bahman that they had invested $40,000 in the property turned over to the company, and the declared purpose was to sell the stock to Hughes at a price “that would let him in on the same basis as Anderson and Bauman,” because “Hughes had originally intended to join the partnership.” The referee found that the fair and reasonable value of all of the property, which Anderson and Bauman sold to the company, “did not exceed the sum of forty thousand ($40,000) dollars,” and that the overvaluation of the property “was not due to error of judgment on the part of O. C. Anderson and A. Y. Bauman and other directors of the corporation at the time of the transaction. * * * ”</p> <p>Of the 602 shares of stock received for the sale of the property, Bauman received 300 shares ($30,000 par value), and is still the owner of the stock. The finding of the referee respecting these shares is as follows: “That at the time of the issue to him of the said three hundred shares of stock” of the company “Bauman was aware of the overvaluation of the property of Anderson and Bauman, and that his half interest in the partnership, for which he received the three hundred shares of stock of the par value of one hundred ($100) dollars each, was worth not to exceed twenty thousand ($20,000) dollars.”</p> <p>The referee ordered Steinle’s claim of $16,549 to be reduced in the sum of $10,000, letting it stand as “allowed against the bankrupt” for $6,549, with interest. The court below reversed the referee’s order, denied the petition of the trustee to disallow the claim, and dismissed the petition with costs. The case was brought to this court upon appeal prayed and allowed within 10 days of the date of the order made by the court below.</p>

Petition by A. R. Cooper, trustee in bankruptcy of the New Galt House, against W. Scott Miller, to expunge certain claims because of an alleged preference. From a decree affirming a referee’s order denying the claimant’s right of subrogation and lien, but reversing so much of the order as disallowed a certain balance as a general claim, etc., the trustee appeals, and files a petition for review.

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by the United States against the Exploration Company, Limited, and Philip L. Foster. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert F. Fewis, Judge.</p> <p>Suit in equity by the United States against the American Smelting & Refining Company and others. Decree for defendants, and the United States appeals.</p>

<p>Limitation of Actions (§ 100*) — Suit to Cancel Patents — Limitation.</p> <p>Tbe limitation of six years prescribed by Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (U. S. Comp. St. 1901, p. 1521), for suits by tlie United States to annul patents' to lands, in case of suits based on fraud, where the fraud has been purposely concealed, does not begin to run until it is discovered.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.*]</p>

Sanborn, Judge. Action at law by the Maryland Steel Company against the Wisconsin Steel Company. Judgment for plaintiff, and defendant brings error. Maryland Company recovered judgment against Wisconsin Company for a balance alleged to be due for work done by Maryland Company at its shops on three engines for Wisconsin Company. Work on two of the engines was admittedly covered by a written contract between these parties.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by the United States against H. U. Bartlett and Theo. G. Lashley. Decree for the United States, and defendants appeal.</p>

<p>aliens (§ 54*) — Proceedings for Deportation — Fairness oit Hearing.</p> <p>Under the rules of the Department of Commerce and Labor, of November 30, 1911, governing hearings in case of aliens arrested for deportation as being unlawfully in the United States, which carefully provide that the alien shall be advised of his right to have counsel and his reply entered on the record, that if he selects counsel the latter shall have t.lie right to be present, and to introduce evidence, and that any written argument filed by him shall be forwarded with the record to tlie Department, a woman so arrested, who did not speak English, and whose friends, although she was told of her right to have counsel, were advised by the inspector that it was not necessary, and led to believe that the case was not serious, in consequence of which she did not employ counsel, and as a result of the hearing was ordered deported, was not accorded the full and fair hearing intended by the rules; and the order based thereon is invalid.</p> <p>[Ed. Note. — -For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 51.* ¡</p>

<p>1. Insurance (§ 539*) — Employer’s Liability Insurance — Time for Notice of Injury- — Notice “At Once.”</p> <p>In a provision of a policy of employer’s liability insurance requiring the assured, on the occurrence of an accident as to which a claim might be made under the policy, to "at once” give notice thereof to the insurer, the words "at once” are synonymous with “immediately,” and mean, within the intendment of the policy, within a reasonable time, having in view all of the circumstances of the case; and whether notice is so given is a question of fact.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. SS 1328-1336" Dec. Dig. § 539.*</p> <p>For other deünitions, see Words and Phrases; vol. 1, pp. 610-611: vol. 4, pp. 3403-3110.]</p> <p>2. Insurance (§ 66S*) — Employer’s Liability Insurance — Action on Policy —Defenses—Failure to Give Notice.</p> <p>A lumber company holding an employer’s liability policy, which required it to give notice to the insurer “at once” on the occurrence of an accident which might give rise to a claim under the policy, had an employe injured at a logging camp in charge of a foreman, who took the injured man to a, hospital, where he remained 11 months, and then commenced an action against the company. Neither the superintendent in general charge of the mill and the camps, nor the other officers of the company, who were at a distance, had any knowledge of the injury until service of the summons, and they then notified the insurer, which defended the suit under a stipulation that it should be without prejudice to its right to object to want of notice. There was a judgment which the company paid and then brought suit on the policy. Held, that the court could not say as matter of law that the notice was not given in compliance with the requirement of the policy, but that the question was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases,' see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*]</p> <p>Boss, Circuit Judge, dissenting.</p>

<p>Appeal and Cross-Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Suit in equity by the United States against the Booth-Kelly Dumber Company, Stephen A. Da Raut, Alice Da Raut, Ethel M. Da Raut, and Ducy Da Raut. From the decree, both the United States and defendant Dumber Company appeal.</p> <p>On May 24, 1910, the¡ United States brought a suit in the court below to cancel five patents of land which had been issued under the Timber and Stone Act, on the ground that the initial applications of the patentees hart been fraudulently made by them for the use and benefit of the Booth-Kelly Lumber Company, and with the understanding at the time when they were made that the entrymen should each convey the laud so entered by him to said company. The bill alleged that that company paid and advanced all of the fees, costs, and expenses and purchase price of said land, and paid to each entryman $100, and received from each a deed. The entrymen were Edward Jordan, Stephen A. La Rant, Alice La Raut, Ethel M. La Raut (now Ethel M. Lewis), and Lucy La Raut, and they were made eodofendants with the Booth-Kelly Lumber Oompanj*. A decree was taken pro eonfesso against Jordan. On September 21, 1910, all the other defendants answered the bill, denying that the Lumber Company furnished any of the purchase money, fees', costs, or expenses of acquiring the land, and denying the allegations of fraud on the Timber and Stone Act. The answer alleged i that on or about July 22, 1902, the Lumber Company purchased the land entered by Jordan for the sum of $550, which was actually advanced and paid to and for his use and benefit, and received a warranty deed from him therefor, relying upon the final receipt for said land, and believing that all the proceedings anterior thereto were bona fide, etc.; that on May 7, 1907, Stephen, Alice, Ethel, and Lucy La Raut, by virtue of the patents issued to them, wereseised and possessed of full legal and equitable ownership of the land granted by said patents, and that on said day the Lumber Company purchased the land described in said patents, and each of the patentees received therefor the sum of $600, which sum was actually advanced and paid to and for each of them, relying upon the patents, etc. And there is in the answer this allegation by the Lumber Company: “That this defendant is informed and believes, and therefore alleges, that after the said entries mentioned in said bill were made by said several entrymen, charges were made and filed with the complainant’s officials in the Interior Department, whose duty it was to investigate and determine the same, that said entries were fraudulent in character, and were made for the benefit of this defendant, and that said charges were fully investigated by the Inferior Department for the purpose of ascertaining the truth or falsity of said charges, and to determine whether patents should be issued upon said entries, or whether the same should be canceled, and that such proceedings were had in said matters that said several entries were fully investigated, by complainant’s officials charged with that duty, and testimony and affidavits were taken upon said investigation, and the complainant and said entrymen were duly represented at said hearing and investigation, and that upon a full investigation and hearing upon said charges, and with full knowledge of all the facts, it was found and determined by the said officials that said entries were not fraudulent, and that the irregularities in said entries, if any, were not of sufficient gravity to require or justify the cancellation of said entries, and ordered that patents issue upon said entries for said land, and that patents were thereupon issued therefor, as alleged in said bill of complaint.” After a replication had been filed, and at the beginning of the taking of testimony before an examiner, on December 19, 1910, the Lumber Company, Lucy La Raut, and Ethel M. La Raut obtained permission to amefid their answer, “so as to admit that the defendant the Booth-Kelly Lumber Company is the holder of the legal title to the lands entered by and patented to Ethel M. La Raut and Lucy La Raut, but denying that it is the equitable owner of said land, and alleging affirmatively that said Ethel M. La Raut, now Ethel M. Lewis, and Lucy La Raut, ever since said patents were issued to them, have been and now are the equitable owners of said land, and that the deeds made by them to the Booth-Kelly Lumber Company were intended to be and were in fact mortgages to secure the payment of certain advances made and to be made to them by said company, to enable them to enter and pay for said land •and for other purposes.” On the issues so made, and the teotimony, tne court below entered a decree canceling the patent which had been issued to Jordan and dismissing the bill as to the other entries. From that decree both the complainant and the Lumber Company have appealed.</p>

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Salisbury; James É. Boyd, Judge.</p> <p>Bill by Lewis B. Froneberger against the First National Bank of Charlotte. Decree dismissing the bill, and complainant appeals.</p> <p>Lewis B. Froneberger, a citizen of Tennessee, on December 2, 1911, filed in the court below his bill against the First National Bank of Charlotte, wherein he charges substantially: That, prior to October 14, 1869, D. Froneberger, C. Froneberger, and R. Froneberger, under the firm names of D. & R. Froneberger & Co., D. & C. Froneberger, and D. Froneberger & Co., were engaged in mercantile and manufacturing enterprises, were the owners in possession of large and valuable .tracts of land situate near Shelby, N. C., were largely indebted, and were unable to pay the same. That actions were brought by creditors, judgments secured, executions issued, and the lands and personal property of these partners were exposed for sale. That the First National Bank of Charlotte, among others, secured judgment against D. Froneberger, and on October 14, 1869, the sheriff sold under execution the lands and personal property of the partners to the bank for $12,500, when the same was at the time reasonably worth $40,000, and that it secured the same at such inadequate price by unlawfully, fraudulently, and collusively suppressing bidding at the sale. That afterwards Crews, a creditor, issued another execution and caused the lands to be again exposed for sale, became the purchaser thereof, and then instituted action against the bank, the first purchaser, to secure possession, which action was tried in 1877 in a state court of competent jurisdiction, and certain issues submitted to the jury on trial were found for the plaintiff, to the effect that the bank, by its president, did fraudulently suppress the bidding at the sale at which the bank purchased the lands at $12,500, and that its cash value at the time was $40,000. That complainant has purchased for valuable consideration, and had transferred to him certain specified judgments against these debtors, aggregating $35,818.45, exclusive of interest. That the bank has sold the lands and personal property, and-realized immense profit therefrom.</p> <p>It is thereupon charged that the bank, by reason of its fraudulent conduct in obtaining the property at such sale, became and is a trustee for the creditors of said firms to the extent of the price realized by it out of the sale of the property, or, at least, to the extent of $27,500, the difference between $12,500, its purchase price, and $40,000, cash value of the property when sold. The bill then sets forth the reasons for the delay in its filing, to the effect that two of the Fronebergers became voluntary bankrupts in 1872; that most of the creditors were nonresidents of the state and had no knowledge of the fraud; that in 1898 and 1899 he first discovered facts and information that led him to believe that the sale was fraudulent and void, which facts and information he communicated to the nonresident creditors; that they declined to institute proceedings themselves, but entered into negotiations with him for the sale and transfer of their judgments and equities in the premises; that these negotiations were continued and not consummated until 1905; that complainant, himself a nonresident of the state, was hampered in his investigations, and, although diligent, did not succeed until within a week before suit brought in obtaining such full knowledge and evidence of the fraud as satisfied his solicitors that he could sustain such legal proceeding.</p> <p>The prayer of the bill is that the bank be decreed to be a trustee for creditors and an accounting be had. On September 11, 1912, an amendment, by leave of court and with the consent of the defendant bank, was made to this bill, alleging in effect that the creditors who had assigned their judgments to complainant were, at the time such assignments were made, nonresidents of the state of North Carolina, and therefore competent to sue in the federal court if no such assignments had been made by them. To the bill a demurrer was filed, alleging substantially that on its face is shown want of equity; that the matters alleged touching the purchase by Crews at the second sale under execution, the suit instituted by him, and the matters alleged to be shown by the record thereof are irrelevant; that the judgments purchased by complainant were dormant, stale, and barred by limitation; that the same and all equities arising thereunder had been abandoned by their original owners; that complainant’s cause of action, if any. he had, had accrued to him more than three years prior to the institution of suit; that the judgment creditors had been guilty of laches and want of diligence; that complainant, since the assignments to him, had, after full knowledge of the facts, been guilty of laches; and that the trustee in bankruptcy of D. Froneberger and the judgment creditors were necessary parties.</p> <p>The court below sustained the demurrer, and this appeal was taken.</p>

<p>In Error to the District Court of the United States for the Southern District of New York; James L. Martin, Judge.</p> <p>Action by the United States against James B. Regan. Judgment for defendant, and the United States brings error.</p>

Day, Judge. Action by P. C. O’Brien against the Illinois Surety Company. Judgment for defendant, and plaintiff brings error. O’Brien, as owner, leased to one Nolan, for 97 years from January 1, 1907, a vacant business lot in Cleveland. The agreed rent was 83,600 for the first two years, and thereafter 82,000 per year, all payments to be made quarterly in advance, and the lessee was also to pay all taxes imposed.

Foster, Judge. ■ Habeas corpus by the United States, on relation of Alfred Ruiz, to procure relator’s discharge from the custody of the United States Commissioner of Immigration at the port of New Orleans. From an order discharging relator on his own recognizance, the government appeals.

<p>1. Fixtures (§ 15*) — Trade Fixtures — Landlord and Tenant.</p> <p>Whether valuable machines jiiaced 0n premises leased for a term of years were trade fixtures, and removable as between the landlord and the tenant’s trustee in bankruptcj'-, depended on whether the various machines could be removed without substantial injury to the building; and this, notwithstanding a clause in the lease providing that all additions and improvements which might be made by either party to qr upon the premises should be the property of the- landlord, as such provision should be construed to' apply to permanent additions to the building, and not to personal property which, for business purposes, is temporarily and detachably fastened to the floor or ceiling of the building.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 23-29; Dec. Dig. § 15.*]</p> <p>2. Fixtures (§ 32*) — Trade Fixtures — Removal—Restoring Condition of Property.</p> <p>Where an engine resting on a brick foundation two feet higher than the floor level was held to be a trade fixture, and removable, as against the landlord, by the tenant’s trustee in bankruptcy, the landlord was entitled to have the foundation removed and the floor made level, if she desired it, at the expense of the estate.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 63, 65; Dec. Dig. § 32.*)</p> <p>3. Bankruptcy (§ 110*) — Title to Property — Plenary Suit — Waiver.</p> <p>Where an issue was raised between a landlord and her tenant’s trustee in bankruptcy as to the ownership of certain machinery placed on the rented property by the ■ bankrupt, the landlord was entitled to waive her right to háve such issue determined in a plenary suit, and did so by appearing without objection and submitting her right to the master and the court, and was estopped thereafter to claim that the 'bankruptcy court had no jurisdiction thereof.</p> <p>[Ed.. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p>

<p>Appeal and Error (§ 1178*) — Review—Disposition of Cause.</p> <p>Where, in a suit between a tenant and a devisee of the landlord, the tenant relied on the effect of her sworn answer largely as testimony, both as to the existence of the lease and ownership of certain, personal property claimed by her, while the devisee relied on the presumption arising from the large amounts paid by her ancestor for taxes, etc., and both parties in argument of an appeal expressed their ability to produce additional testimony which would substantiate their respective contentions, the court would modify the decree to the extent of opening the question of the ownership of the personal property and permitting each side to introduce additional testimony, subject to the condition that the answer of the tenant in the future consideration of the case should not be given any further force than if the bill had waived an answer under oath, and been so amended as to pray for an accounting.</p> <p>!Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*]</p>

Petition to Review and Revise an Order in Bankruptcy of the United States District Court for the Eastern District of Wisconsin; Arthur E. Sanborn, Judge. In the matter of bankruptcy proceedings of the Britannia Mining Company. Original petition to review and revise an order (197 Eed. 459) reversing a referee’s order denying the petition of a creditor to set aside a sale of certain of the bankrupt’s real estate in - Montana subject to a mortgage.

<p>1. Stipulations (§ 14*) — Equity Suit — Taking Testimony.</p> <p>Where counsel agree to take testimony by consent, regardless of the equity rule as to time, the court will apply such agreement to all the testimony so taken.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 2#-37; Dec. Dig. § 14;* Depositions, Cent. Dig. § 6.]</p> <p>2. Courts (§ 328*) — Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Where holders of bonds of a corporation sued to restrain strikers from interfering with the operations of the corporation, on the ground that the strikers’ acts were operating to decrease the security, the amount in controversy was the value of the bonds held by the complainants, which were being so jeopardized.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. § 328.*</p> <p>Jurisdiction of Circuit Court as determined by amount in controversy, ■see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. r. Roper, 36 O. C. A. 459; O. J. Lewis’ Mercantile Co. v. Klepner, 100 C. C. A. 288.]</p> <p>3. Injunction (§ 114*) — Right to Sue — Bondholders—Strikes.</p> <p>Bondholders of a corporation, having an independent personal right to protect their interests in the security, were entitled to sue to restrain strikers from interfering with the operations of the corporation to the injury of the corporation’s property mortgaged to secure the bonds, and-it was therefore immaterial whether the corporation as such aided them in the prosecution of their suit or not.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p> <p>4. Injunction (§ 101*) — Strikes—Misconduct oe Strikers.</p> <p>Where striking employes of a coal company conspired to prevent the employment of miners by the company, to compel those at work to quit, and to prevent the operation of the mines, and for this purpose insulted the company’s employfs by* opprobrious epithets, fired guns at them, threw stones at their houses, where their wives and children were living, sent threatening letters, and went masked at night, and threatened to kill, etc., and the peace officers of the town were either members of the strikers’ organization or in full sympathy with them, the bondhold- ‘ ers of the corporation were entitled to an injunction to restrain the continuance of such acts.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 174, 175; Dee. Dig. § 101.*</p> <p>Restraining boycotts, strikes, and other combinations by employes interfering with commerce or business, see note to Shine v. Fox Bros. Mfg. Co., 86 C. C. A. 313.]</p>

Wright, Judge. Action by James D. Telford and another, doing business as Telford & Schwartz, against the Jennings Producing Company. Judgment for. defendant, and plaintiffs bring error. Plaintiffs in error, hereinafter termed plaintiffs, procured a written option from one l.yfonl and wife for the purchase by plaintiffs from the defendant in error, hereinafter called defendant, of a tract of 16A% acres of land in Marion county, ill., for the price of 840 per acre.

Chatfield, Judge. Action by the J. H. Sullivan Company against Charles Wingerath. Judgment for defendant on a counterclaim, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Western District of Arkansas; F. A. Youmans, Judge.</p> <p>Action by Frank Rogers against the Kansas City Southern Railway Company and another. Judgment for plaintiff, and defendant Railroad Company brings error.</p>

<p>1. Master and Servant (§ 153*) — Injuries to Servant1 — Duty to Warn.</p> <p>Where defendant operated a dangerous machine in its factory, used to tear old bagging and rope into shreds, and plaintiff, an inexperienced employe, was ordered to take the material from the machine with his hands, without warning or instructions as to the danger involved, and was injured by having his hand drawn into the machine, defendant was negligent in failing to warn.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Big. §§ .814-317; Bee. Big. | 153.*]</p> <p>2. Appeal and Error (§ 1002*) — 'Review—Verdict—Conflicting Evidence.</p> <p>A verdict based on conflicting evidence will not 'be set aside on writ of error, as against the weight of evidence on an issue properly submitted to the jury.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Big. §§ 3985-39,87; Bee. Big. § 1002.*]</p>

<p>In Error to the District Court of the United States for the Southern District of New York; James L. Martin, Judge.</p> <p>Action by Joseph M. Royce against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiff brings error.</p> <p>This cause comes here upon appeal from a judgment of the District Court, Southern District of Now York^ entered upon the verdict of a jury in favor of defendant in error, who was defendant below. It has been twice before in this court on writs of error to review prior judgments, and our opinions (176 Fed. 331, 99 C. C. A. 256; 180 Fed. 879) may be consulted for a detailed statement of the facts. Briefly summarized, they are as follows: Plaintiff the front brakeman on a freight train, while sitting in the cab of the engine, was scalded by steam escaping from the boiler. This was caused by the driving rod on the left side, which flew np, striking the bottom of the cab, jamming the doors and windows, and breaking a stud from the boiler. This accident occurred near the entrance to the Port Morris yard, and was itself induced by a prior accident, which occurred about two hours before on a siding at Waterloo Station. The top guide on the left side had been lost in some way, and had carried away with it a part of the steel block or yoke which held the guide. The loss of the top guide thus left no support, except the lower guide, to the crosshead to which the driving rod and piston rod on that side were attached. It would have been an easy matter', with the ordinary kit of tools carried on the engine, to disconnect the driving rod on that side, thus putting it out of commission. This would not have interfered with the operation of the driving mechanism on the right side. The train remained an hour and a half at Waterloo Station after the loss of the guide was discovered. The conductor telephoned to the train dispatcher at Hoboken, and told him they had lost the top guide and that' they wanted a pusher sent to Waterloo Station. To this there came a reply, stating merely that a pusher engine would be sent. The pusher arrived in due course, and after it was attached they proceeded towards Port Morris, using the train engine, without disconnecting the left driving rod.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Henry Dietz against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of House of Fashion, bankrupt. From an order denying a petition of Bernard J. Ludwig, reducing his claim from $6,100 to $2,400, and expunging and rejecting the claim except to that amount, an appeal is taken.

<p>Municipal Corporations (§ 809*) — Structures in Street — Liability of Contractor.</p> <p>A general contractor, who lias occasion to build a temporary bridge over an excavation in a crowded thoroughfare for use by the public, may build it himself, or he may employ some one else to build it, but in either case lie is responsible for tlie manner in which the work is done; nor does his duty end when a suitable and safe structure has been furnished, but he musv see that it remains so, and is liable if he fails to discover and remedy an obvious defect, and injury results therefrom.</p> <p>LEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 168S-169t; Dec. Dig. § 809.*]</p>

In the matter of the Schwab-Kepner Company, bankrupt. Petition by J. E. Dockendorff for the delivery to him of the proceeds of certain assigned accounts collected by the trustee. From an order allowing the petition, Arthur Greey, as trustee in bankruptcy, appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge.</p> <p>Suit in equity by the Farbenfabrikeu of Elberfeld Company against Albert C. Smith. From an order granting a preliminary injunction, defendant appeals.</p>

Sanborn, Judge. Suit in equity by the Imperial Brass Manufacturing Company against Alexander Nelson, doing business under the name of A. Nelson Manufacturing Company. Decree for defendant, and -complainant appeals.

Anderson, Judge. Suit in equity by the Morgan Gardner Electric Company against the Buettner & Shelburne Machine Company. Decree for defendant, and complainant ajipeals. One Edward P. Rauscher made application to the Patent Office for a patent for improvements in coal-mining machines, which application was filed April 23, 1896, and numbered 588,747. Of the six claims asked for, all were rejected by the examiner.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge.</p> <p>Suit in equity by the Winchester Repeating Arms Company against Leon A. Olmsted. From order denying preliminary injunction, complainant appeals.</p>

<p>In. Equity. Suit by the Morgan Construction Company and Alexander Laughlin against the Forter-Miller Engineering Company, Dilworth, Porter & Co., Limited, and Lawrence Dilworth, Chairman. On final, hearing. .Decree for defendants.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Asphaltic Fluxes.</p> <p>The Culmer & Culmer patents, No. 635,429, for a .process of making asphaltic fluxes by dehydrating petroleum residuum and simultaneously passing an air blast through the charge, and No. 635,430, for the product of such process, were not anticipated by the Byerley patent, No. 524,130, and must be conceded patentable novelty and invention, in view of the presumption arising from the grant, the large use of the product in pavement construction, and the difference between the two products, especially when considered in connection with the paving art; also held infringed.</p> <p>2. Patents (§ 250*) — Anticipation — Chemical Processes — Identity op Products.</p> <p>In comparing chemical processes, the lack of identity in the products is evidence of lack of identity in the processes.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. §§ 390, 392, 393; Dec. Dig. § 250.*]</p>

<p>Patents (§ 328*) — Infringement—Radiator.</p> <p>The Fowler patent, No. 609,800, for a radiator, construed, and held, not infringed, in a suit against a licensee, in which the validity of the patent was not involved.</p>

<p>In Equity. Suit by the Fowler & Wolfe Manufacturing Company gainst the National Radiator Company. Decree for defendant.</p>

<p>Patents (§ 328*) — Validity and Infringement — Machine for Intimately Mixing Milk.</p> <p>The Gaulin patent, No. 756,953, for a machine for intimately mixing milk, by which all the butter globules are broken up and the milk homogenized, was not anticipated, and covers a pioneer invention; also held infringed.</p>

Action by the D. B. Martin Company against H. T. Shannonhouse. On plaintiff’s motion for an order for payment to him of money in the registry of the court.

<p>In Equity. Suit by the Continental Securities Company against the Interborough Rapid Transit Company and others.</p> <p>This cause comes here upon motion for a preliminary injunction to restrain the Interborough-Metropolitan Company, one of the defendants which holds stock of the Interborough Rapid Transit Com-: pany, from voting on such stock at a stockholders’ meeting of the latter company.</p>

In Admiralty. Suit for collision by the Columbia Contract Company, owner of the steamer Daniel Kern, against the steamer George W. Elder, Charles P. Doe, claimant. Decree for libelant. The Columbia Contract Company was at the time of the collision herein complained of the owner of the Daniel Kern, and was engaged in conveying rock from Fisher’s Quarry, situate on the north bank of the Columbia river-above Vancouver, Wash., to the government jetty below Ft.

<p>In Equity. Suits by the Ohio River & Western Railway Company against Robert M. Dittey, Frank E. Munn, and Christian Pabst, as the Tax-Commission of Ohio, and the Tax Commission of Ohio, and by the Marietta, Columbus & Cleveland Railroad Company against David 5. Creamer, Treasurer of the State of Ohio, Edward M. Fullington, Auditor of the State of Ohio, Timothy S. Hogan, Attorney General of the State of Ohio, Robert M. Dittey, Frank E. Munn, and Christian Pabst, as the Tax Commission of Ohio, and the Tax Commission of Ohio. On complainants’ application for preliminary injunction and demurrers to bills. Injunction</p>

<p>In Bankruptcy. In the matter of Elisha Wilmer Truitt, alleged bankrupt. On demurrer to involuntary petition.</p>

<p>1. Judgment (§ 831*) — Foreign Judgments — Validity—Process—Service-Necessity.</p> <p>A judgment obtained in France without proper service on defendant in that country is a nullity.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.*]</p> <p>2. Insurance (§ 684*) — Reinsurance—Liability on Policy.</p> <p>A French brokers’ society insured each of its members against three-fourths of any loss through embezzlement by an employs, not exceeding 1,333,333 francs. Reinsurance was effected in plaintiff company, which, in turn, obtained reinsurance in several companies, including defendant, for shares of the risk. From time to time during the carrying of.the original risk there were substitutions of plaintiff’s reinsurers; defendant, among others, withdrawing. A member of tbe brokers’ society sustained loss through embezzlements by an employs; the dates when the various amounts were taken being ascertainable. Held, that defendant was not relieved from liability to plaintiff on the theory that the total amount embezzled while defendant was a coinsurer did not equal 333,333 francs, which had to be taken before liability attached under tbe policy issued by plaintiff; tbe uninsured portion of tbe loss being properly deducted once for all from tbe total loss when ascertained and as of the date . of its ascertainment, and each successive reinsurer benefiting by such deduction in proportion to the total amount embezzled during the time he was on the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1817; Dec. Dig. § 684.*]</p> <p>3. Insurance (§ 679*) — Reinsurance—Construction oe Policies.</p> <p>The rule that rights under a plain contract are to be enforced, however unwise the agreement may appear to be, and that general terms and phrases will be construed in the light of the circumstances surrounding the parties, applies to reinsurance contracts.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1811, 1812, 1818, 1819; Dec. Dig. § 679.*]</p> <p>4. Insurance (§ 686*) — Reinsurance—Liability oe Reinsurer.</p> <p>An insurer may recover from a reinsurer before the former has actually paid the insured. .</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1823; Dec. Dig. § 686.*]</p>

<p>1. Removal of Causes (§ 86*) — Time for Filing Petition.</p> <p>tyiiere a cause in a state court, was not removable when commenced, but becomes so by a substitution of plaintiffs, which creates a diversity of citizenship between the parties, the defendant may then exercise his right of removal, although the time for filing his petition as fixed by the terms of the statute has expired.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 182, 166-179; Dec. Dig. § 80.*]</p> <p>2. Removal of Causes (§ 102*) — Grounds for Remand — Doubt as to Jurisdiction.</p> <p>Where, owing to a general order of a state court extending the time to plead in a cause, without fixing any definite time, it is doubtful whether a petition for removal was filed within the time required by the statute, the federal court will decline to take jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 218-220, 228, 224; Dec. Dig. § 102.*]</p>

<p>In Equity. Suit by John K. Campbell against the Farmers’ Manufacturing Company. Decree for defendant.</p>

In Bankruptcy. In the matter of the Zephyr Mercantile Company. On certificate of a referee to review an order denying the claim of the Krum Mill & Elevator Company for reclamation of goods or the proceeds of their sale.

At Law. Action by Ronald J. Rice against the Boston & Maine Railroad, involving a cause of action for injuries under the federal Employer’s Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). On motion to remand cause, oame having been removed to the federal court from the Supreme Court of the state of New York, where commenced.

In Bankruptcy. In the matter of bankrup’tcy proceedings of Frank Greenberger. Application by Samuel Cohen, a creditor, to review a referee’s order allowing his claim of $198 as a general claim, but denying its priority, and also by certain creditors asking to review the same order allowing the claim as a general one; they claiming that it should not he allowed, because the claimant received a preference and refused to surrender the same.

In Bankruptcy. In the matter of bankruptcy proceedings of the Keith-Gara Company. On certificate of a referee presenting for review an order allowing a landlord’s claim for priority in the payment of rent.

In Equity. Bill by H. Clark & Sons, Incorporated, against the Southern Express Company, for a temporary restraining order in a suit for mandatory injunction restraining defendant from refusing to transport liquor in interstate commerce from Virginia to South Carolina.

In Bankruptcy. In the matter of bankruptcy proceedings of August Schneider. On certificate of a referee to review an order directing a delivery of certain personal property to the trustee, as against the holder of an alleged lien under a conditional sale.

<p>Equity (§ 352*) — Appointment of Examinees — Grounds.</p> <p>That the trial of an equity case will occupy several days docs not show such “good and exceptional cause for departing from the general rule,” as authorizes appointment of an examiner to take evidence out of court of witnesses residing within the jurisdiction, within federal equity rules 46, 47 (198 Fed. xxxi, 115 C. C. A. xxxi), effective February 1, 1913, which require testimony to be taken orally in open court, except for good and exceptional cause, etc.</p> <p>(Ed. Note. — For other cases, see Equity, Cent. Dig. § 736; Dec. Dig. § 352.*]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Action by Giovanni Tommaso Ribetti against Jacob Doll & Sons, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

Lewis, Judge. Bill in equity by Lisi Westerlund and others against the Black Bear Mining Company and others. From a decree for defendants, complainants appeal.

Condemnation proceedings by the United States against Paul Beatty and others. From a decree confirming the report of commissioners, awarding damages to defendants, they bring error.

<p>1. Master and Servant (§ 2S6*) — Injuries to Servant — Dangerous Employment -Save Place to Work — Question for Jury.</p> <p>Where it was part of plaintiff’s duty as an employe in defendant’s quarry to cut and cap fuses, and he was injured by the explosion of a box of fulminate caps with which he was working, caused by a spark irom a blacksmith's anvil located in the same room where plaintiff was required to work, whether defendant provided a reasonably safe place for plaintiff to do such work in requiring that it be done in the same room in which the blacksmith’s shop was located was for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 1001, 1006, 1010-1050; Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§ 229*) — Injuries to Servant — “Contributory Negligence.”</p> <p>“Contributory negligence,” as applied to an injury to a servant, is the omission of the servant to use those precautions for his own safety which ordinary prudence requires. It is not synonymous with assumption of risk.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 674, 683; Dec. Dig. § 229.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.]</p> <p>3. Master and Servant (§ 289*) — Injuries to Servant — Dangerous Place —Contributory Negligence.</p> <p>Plaintiff, a careful workman 25 years of age, at the time of the injury had been employed in defendant’s quarry for six months. It was part of his duty to cut and cap fuses for use in defendant’s blasting operations, which he was required to do in a shop where blacksmithing operations were also carried on during a part of the day. He first did the work at a bench known as the south bench, but, fearing that the fail of irons hung over this bench might be dangerous, moved his work to the north bench, which was slightly nearer the blacksmith’s forge. While at work at tills bench, a spark flew from a piece of steel which was being welded into a box of fulminate caps, which immediately exploded, causing the injury. Plaintiff had been working at the north bench for 15 or 16 days prior to the accident with tlio knowledge and acquiescence of his superior officer, and it appeared that neither knew how far the sparks would fly, or how long they would live. Bold, that plaintiff was not negligent as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>4. Master and Servant (§ 286*) — Injuries to Servant — Safe Place — Duty of Master — Instructions.</p> <p>In an action for injuries to a servant, the court charged that the master was required to furnish tho servant with a reasonably safe place to work. Other instructions defined the term “safe place to work” as meaning a place so made and surrounded as to be safe when all the safeguards and protection which ordinary experience, prudence, and foresight would suggest have been taken to prevent injury to the employe, while himself exercising reasonable care in the service he undertakes to perform, and that it did not mean a place so made or surrounded as to exclude all possibility of danger, that defendant was required to act as a prudent man, or as one who acts with due care for his own safety and the safety of others under all circumstances within the vicinity, or surrounding the parties as a reasonable man would have acted under like circumstances, and, if defendant so acted, plaintiff could not recover. Held, that the charge as a whole was not objectionable as misleading the jury to believe that defendant was bound to furnish a reasonably safe place at all events.</p> <p>[Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1010-1050; Dec. Dig. § 286.*]</p>

Orr, Judge. Action at law by the First National Bank of Beaumont, Tex., against ■ the Security Investment Company of Pittsburgh. Judgment for plaintiff, and defendant brings error. Reversed. Also suit in equity by M. K. McMullin, doing business as M. K. McMullin & Co., against the First National Bank of Beaumont, Tex., and the Security Investment Company. Decree for defendants, and complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Intervention by the Clyde Iron Works against H. J. Frerichs and another, as receivers of the Greenlaw Lumber Company, Limited. Decree for defendants, and plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>In the matter of the Star Spring Bed Company, bankrupt. Mendel Makowsky was adjudged guilty of contempt, and brings error.</p>

Keller, Judge. Action by W. E, Lee, as administrator of the estate of Charles WelL man, deceased, against the New River & Pocahontas Consolidated Coal Company. Judgment for defendant, and plaintiff brings error.

M. Smith, Judge. Action by I\ I imite H. Miller against L. B. Owens to recover cer~ tain real property. Judgment for defendant, and plaintiff brings error. This is an action at law, Instituted in the District Court of the United.

<p>Bankruptcy (§ 165*) — Preference—Creditor.</p> <p>Bankrupt was a 'milling company, engaged in blending flour which it purchased from various sellers, who shipped it consigned to themselves in care of defendant, which was a warehouse company. They made drafts on the bankrupt for the price, which they sent, with bills of lading attached, to a bank for collection. Defendant received the flour, stored it in numbered compartments, and held it for the shippers until the drafts were paid, and then for the bankrupt, which withdrew it in .quantities as needed in its business. Within four months prior to the bankruptcy, without the knowledge of defendant, bankrupt made various withdrawals of flour from compartments containing shipments for which it had not paid, and on discovery, being unable to replace it, an arrangement was made by which defendant took up the drafts covering such shipments and immediately took indorsements of the bills of lading from the bankrupt, transferring what remained of such shipments as eollateral to a note taken from the bankrupt. Some other property was also so transferred as security. HeW, that at the time of such transaction defendant was not a creditor of the bankrupt, since it held the flour stolen merely as bailee, and that the transfers did not constitute a preference, voidable at suit of the trustee.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. § 165.*]</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller, Judge.</p> <p>Action by Hilda Norvell Edgar against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Suit by Edward H. Titus against the Granite Brick Company. From a decree granting a preliminary injunction, defendant appeals.</p>

Platt, Judge. In the matter of the Monarch Corporation, bankrupt. Norman Deeds, trustee, appeals from an order of the District Court dismissing the petition of the trustee of the bankrupt, a Connecticut, corporation, for an assessment on unpaid capital stock of the corporation issued to and standing in the names of the several stockholders named in the petition.

In Krror to the District Court of the United States for the Southern District of AVest Virginia, at Bluefield; Benjamin F. Keller, Judge. Action by Lee Holly, as administrator of Oscar Holly, deceased, against the McDowell Coal & Coke Company. Judgment for defendant, and plaintiff brings error.

<p>1. Assignments (§ 23*) — Chose in Action — Common Law.</p> <p>> A cliose in action for money due or to become due a subcontractor for performance of his contract was not assignable at common law.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 40, 41; Dec. Dig. § 23.*]</p> <p>2. Assignments (S 117*) — Chose in Action — Right to Sue — Statutes.</p> <p>Code Va. 1904, § 2860, provides that the assignee of a chose in action may maintain any action thereon in his own name which the original obligee, payee, or contracting party might have brought subject to discounts against the obligee, payee, or contracting party before the defendant had notice of the assignment, etc. Held that, where money due a subcontractor was assigned by him to creditors pursuant; to an order to pay which was accepted by the contractors, the only effect of such statute was to enable the assignee to sue in the name of the assignor taking the assigned claim subject to all equities of the assignor in whom the legal title still remained, and it was therefore error to refuse to permit the assignor to sue thereon for his own beneflt and for the use of his assignees to the extent of their interest.</p> <p>[Ed. Note--For other eases, see Assignments, Cent. Dig. §§ 341, 342; Dec. Dig. § 117.*]</p> <p>3. Assignments (§ 121*) — C-hose in Action — Form of Action.</p> <p>Under Code Va. 1904, § 2860, authorizing an assignee of a nonnegotiaWe chose in action to sue thereon in his own name, suit may he brought on an assigned chose in action either in the name of the original obligee or payee, in his name for the use of the assignee, or in the name of the assignee alone.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 200-205; Dec. Dig. § 121.*]</p> <p>4. Assignments (§ 94*) — Order to Pay — 'Effect—New Debt.</p> <p>Where a subcontractor executed an order on his contractor to pay the amount due or to become due on the subcontract to certain others, the contractor’s acceptance of the order did not create a new debt between the original contractor and the assignees for the whole amount of the assignor’s claim, nor bar all the assignor’s rights therein.</p> <p>[Ed. Note. — For other eases, see Assignments, Cent. Dig. §§ 303-305; Dec. Dig. § 94.*]</p> <p>5. Assignments (§ 88*) — Absolute in Form — Security for Debt.</p> <p>An assignment absolute in form of all moneys due a subcontractor for work under his contract could be shown, in an action by the assignor thereon, to have been to secure a debt due to the assignees in an amount less than that due from the debtor. *</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 299-302; Dec. Dig. § 88.*]</p>

McPherson, Judge. Action at law by Mary Genevieve Pennell, administratrix of the estate of Jay Allen Pennell, deceased, against the Philadelphia & Reading Railway Company. Judgment for defendant, and plaintiff brings error.

<p>Brokers (§ 46*) — Contract of Employment — 'Performance—Right to Commissions.</p> <p>Where defendant agreed to pay plaintiff a commission of 5 per cent, of the purchase price of certain corporate stocks in case plaintiff found a purchaser at a price satisfactory to defendant, and after plaintiff had obtained a prospective purchase!-, who had submitted offers that had been declined, a third person, with whom plaintiff had no relations, offered a subs)antially higher price, to .whom defendant sold the stock in good faith, they were not liable to plaintiff for commissions. -</p> <p>|Kd. is ote.--For other cases, see Brokers, Cent. Dig. § 47; Dec. Dig. § -lO.*l</p>

<p>1, Negligence (§ 83*) — Contributory Negligence — Discovered Peril.</p> <p>Where the plaintiff in an action for a personal injury was chargeable with contributory negligence, and it is sought to recover on the ground of the. subsequent negligence of defendant, it must be shown that defendant, after actual discovery of plaintiff’s peril, failed to exercise ordinary care to prevent the injury.</p> <p>[Ed. Note. — -For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*]</p> <p>2. Railroads (§ 274*) — Injury to Person at Station — Negligence.</p> <p>A locomotive engineer, entering a station with a train and seeing plaintiff, a station employs, wheeling a truck near the edge of the platform, where he might be struck by tbe engine, had a right to suppose that he would step further away, and was not chargeable with negligence for not acting to prevent plaintiff’s injury until he discovered that plaintiff probably would not do so.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 868-872; Dee Dig. § 274.*]</p>

Pl'att, Judge. Suit in equity by Alfred S. Brown, executor and trustee, against the Greenfield Congregational Society and others. From an order denying a preliminary injunction, complainant appeals.

<p>Collision (§ 95*) — Tugs with Tows Meeting — Passing Signals.^</p> <p>A collision between car floats in tow of two transfer tugs in East River at night held due solely to the fault of one of the tugs, which, when they were nearing each other substantially head on, gave a signal for passing starboard to starboard and kept on without assent to it</p> <p>[Ed. Note. — For other cases, see Collision; Cent. Dig. §§ 200-202; Dec. Dig. § 95.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]'</p>

<p>Shipping (§ 49*) — Time Charter Construed — Charter eor “About 12 Months.”</p> <p>Under a charter of a vessel for “about 12 months” at a monthly hire, where a voyage terminated 29 days before the expiration of that time and another could have been made in 43 days, average time, the charterer was not entitled to redeliver the vessel; but where he refused to make another voyage, but rechartered her for a longer voyage at a smaller hire, the owner is entitled to recover under the first charter only the difference between the amount she would have earned thereunder to the expiration of the 12 months and the amount she did earn to that time under the new charter.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 187-200, 202; Dee. Dig. § 49.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 24.]</p>

Suit in admiralty by the Merritt & Chapman Derrick & Wrecking Company against the steamer Hendrick Hudson (the Hudson River Day Tine, claimant) and the Erie Railroad Company. Decree for both respondents, and libelant appeals.

<p>On Transfer from the Supreme Court of the State of New Mexico, under Act Cong. June 20, 1910.</p> <p>On motion for allowance of costs on appeal.</p>

<p>Shipping (§ 320*) — Injury to Cargo — Liability op Carrier as Warehouseman.</p> <p>A steamship company, which, on discharging goods of libelant which were subject to injury by. water, left them in an exposed position without proper covering, so that they were subjected to a 36-hour rain and seriously damaged, held liable for the injury.</p> <p>LEd. Note. — For other cases, see Shipping, Cent. Dig. §§ 461-464; Dec. Dig. § 126.*]</p>

Pritchard and Henry A. M. Smith, Judges. Action between D. C. Boyce and others and Southern National Bank of Wilmington, N. C., and others. From a decree for the latter, the former appeal.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by Nellie C. Aiken and Nellie C. Aiken, Jr., against the Riter-Conley Manufacturing Company. Decree for complainants, and defendant appeals.</p>

Hazel, Judge. Suit in equity by John G. Elbs against the Rochester Egg-Carrier Company. From a decree (197 Fed. 764) dismissing the bill based upon letters patent No. 722,512, on the ground that the two claims involved, the second and the sixth, are not infringed by the defendant’s device, complainant appeals.

<p>Appeal from District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge.</p> <p>Suit in equity by the Yale & Towne Manufacturing Company against Frank J. Ford. Decree for defendant, and complainant appeals.</p>

In Bankruptcy. In the matter of Keystone Press. Proceedings to determine the amount of a mortgage debt owing by the bankrupt to the John Leslie Paper Company, and whether the latter had received a preference.

<p>In Equity. Suit between the American Bank Protection Company and the City National Bank of Johnson City. On defendant’s motion to retax costs.</p>

<p>Corporations (§ 82*) — Contract with Subscriber to Repurchase Stock — , Validity.</p> <p>Under Penal Law N. Y. (Consol. Laws 3909, p. 40) § 664, wbicb prohibits a corporation from purchasing its own stock, except out of surplus, a contract by a corporation with a subscriber to its stock, where the stock is issued and paid for, to repurchase the same after a stated time on notice of the subscriber’s election, is invalid, and not enforceable as against a trustee in bankruptcy of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations. Cent. Dig. §§ 285+295 • Dec. Dig. § 82.*]</p>

In Equity. Action by the Redlich Manufacturing Company against John H. Rice & Co. On motion for appointment of a special master to assess damages for the wrongful issuance of an injunction.

<p>Quieting Title (§ 38*) — Suit to Remove Cloud — Disclaimer—Answer.</p> <p>Where, in a suit to remove a cloud on title, defendant S. was charged with having conspired and confederated with the other defendants to create the cloud sought to be removed and which prevented the quieting of title in complainant, S. was not entitled to answer merely by disclaiming any interest, right, or title in or to the lands, but, in addition, was required to answer the bill so as to determine the fact as to the alleged conspiracy to defraud.</p> <p>[Ed. Note. — For other cases, see Quieting .Title, Cent. Dig. § 79; Dec. Dig. § 38.*]</p>

In Equity. Suit by Vivan E. Collins and others against the Penn-Wyoming Copper Company and others, in which the Continental & Commercial Trust & Savings Bank filed) its cross-bill to foreclose a

<p>In Equity. Suit by Tilghman Johnston against Kramer Bros. & Co. and another, to remove a cloud on title. Decree for complainant.</p>

<p>1. Courts (§ 262*) — Jurisdiction of Federal Courts — Equity—Adequate Remedy at Law.</p> <p>The adequate remedy at law which will exclude the equity jurisdiction of a federal court is that which existed when the Judiciary Act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 73) was adopted, unless subsequently changed by Congress, and a matter which was then cognizable in equity is so still notwithstanding enlargement of legal remedies by the states; but, unless it comes within some of the then recognized heads of equitable jurisdiction, it cannot be entertained.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 797, 798; Dec. Dig. 8 262.*j</p> <p>2. Quicrora Title (§ 35*) — Suit to Remove Cloud — Equity Jurisdiction.</p> <p>A bill in equity, alleging that complainant is the owner and in possession of certain land, but without setting out Ms title, and that defendant repeatedly commits trespass thereon under some claim of rigid; and interest in the land, the nature of which is unknown to complainant, does not state a cause of action for removal of a cloud on title, since such a suit will not lie where there is a mere verbal assertion of ownership by defendant, and it does not appear that complainant has not an adequate remedy at law.</p> <p>[Ed. Note.- For other cases, see Quieting Title, Cent. Dig. §§ 73, 74; Dee. Dig. § 35.*)</p> <p>3. Injunction (§ 11S*) — Sufficiency of Bill.</p> <p>Such bill also held insufficient to state a cause of action within the equity jurisdiction to avoid a multiplicity of suits, or for an injunction to prevent continued trespasses or waste, the only allegation as to the effect of defendant’s acts being that they would create ruts, beaten tracks, and roadways on the land, which does not constitute waste in a legal sense, and the bill furthermore, taken as a whole, leaving it open to inference that the question involved is one of title which should be determined in an action at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]</p> <p>4. Discovery (§ 19*) — In FiQuity — Sufficiency of Bill.</p> <p>It is essential to a bill of discovery that it set forth a title in the complainant which is sufficient to support or defeat a suit, and that it , pray a discovery pertinent to that title and nothing beyond.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 20-26; Dec. Dig. § 19.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Arthur M. Signor. Petition to review a referee’s order holding certain chattel mortgages void as to creditors for omission on refiling to correctly state the amount due or due and unpaid thereon on the ground that the amount was materially overstated. Remanded for rehearing.</p>

In Equity. Bill by William A. Lawrence and another, doing business under the name of W. A. Lawrence & Son, against the P. E. Sharpless Company to- restrain infringement of a trade-mark and unfair competition. Decree for complainants.

In Bankruptcy. In the matter of bankruptcy proceedings against William R. Ward. A petition having been dismissed, the guardian ad litem and the general guardiatis of the bankrupt apply for compensation, reimbursement, etc.

<p>Railroads (§ 229*) — Regulation—Safety Appliance Act — •“Train.”</p> <p>Where defendant railroad company hauled certain cars from Buffalo to Bridgeburg, in Canada, a distance of about two miles over a drawbridge crossing a Barge Canal and the International Bridge across Niagara river, not in pursuance of switching operations nor in defendant’s yards, but that they might be delivered to another crew at Bridgeburg and continued on their journey to destination, such cars and locomotives, though without a caboose, constituted a “train,” within Safety Appliance Act of Marc-h 2, 1893, c. 190, § 2, 27 Stat. 031 (U. S. Comí). St. 1901, p. 3174), requiring all cars to be equipped with power brakes, to be operated by the engineer, the word “train” being used in its ordinary sense as a connected, line of cars or carriages on a railroad; and hence a failure to have the air brakes connected so that they could be operated from the engine constituted a violation of- the act.</p> <p>[Ed. Note.- — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*</p> <p>For other definitions, see Words and I’hrases, vol. 8, pp. 7050, 7057.]</p>

<p>1- Principal and Agent (§ 123*) — General or Special Agent — Evidence.</p> <p>Evidence held to require a finding that a sale of certain goods by petitioners to a bankrupt through an agent was made after the agent had terminated Ills contract as petitioners’ general local representative, and while he was acting as a special agent only.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 42C-429; Dec. Dig. § 123.*]</p> <p>2. Bankruptcy (8 110*) — -Property oe Bankrupt — Sale by Special Agent-Violation of Authority.</p> <p>Whore petitioners’ special agent, authorized only to make a sale oí certain goods to a bankrupt on receiving notes secured by indorsement, attempted to make the sale, receiving the bankrupt’s unindorsed notes, which petitioners disapproved and caused to be returned to the bankrupt, the sale was not effective to pass title to the property.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §8 198, 199, 2)9 225; Dee. Dig. § 140.*]</p> <p>3. Principal and Agent (§ 148*) — General Agent — Ostensible Authority.</p> <p>Petitioners’ local representative having severed his connection with them to take effect March 1, 1912, they determined to close their loca! business, and for this purpose directed that he sell the goods belonging to petitioners in the local warehouse, accepting for any unpaid part of tlio price only the purchaser's notes with good personal indorsement. He sold the goods to bankrupts, accepting their unindorsed notes for the unpaid portion of the price, which petitioners refused to accept, and returned to the bankrupts through petitioners’ attorney. Hold, that such sale was not in the usual course of business of the agent; and hence the bankrupts were not entitled to claim that he had ostensible authority to accept the unsecured notes and complete the sale, but they were charged with notice of his instructions with reference to the particular transaction.</p> <p>[Ed. Note.- — For other cases, see Principal and Agent, Cent. Dig. §§ 534-552; Dee. Dig. § 148.*]</p>

<p>At Law. Action by John F. Carberry against the Acme Transit Company. Verdict for plaintiff. On defendant’s motion for-new trial.</p>

<p>1. Bankruptcy (§ 302*) — Action by Trustee — Pleading.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 47a (2), 30 Stat. 557 (U. S. Comp. St. 1901, p. 3439), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), which vests a trustee with the rights of a judgment creditor holding an execution duly returned unsatisfied as to property not in possession of the court, it is not necessary for a trustee, in an action to recover property alleged to have been preferentially or fraudulently transferred, to allege that the assets are not sufficient to pay creditors in full.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 456, 457; Dec. Dig. § 302.*]</p> <p>2. Pleading (§ 64*) — Duplicity—Action .by Trustee in Bankruptcy.</p> <p>A statement of claim in an action by a trustee in bankruptcy to recover property transferred by the bankrupt is not multifarious, because it seeks to recover on the alternative grounds that the transfer was either fraudulent or preferential.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. § 64.*]</p> <p>3. Bankruptcy (§ 293*) — Action by Trustee — Jurisdiction.</p> <p>Under Bankr. Act July 1, 1898, e. 541, §§ 60b, 67e, 30 Stat. 562, 564 (U. S. Comp. St. 1901, pp. 3445, 3449), as amended by Act Feb. 5, 1903, c. 487, §§ 13, 16, 32 Stat. 799,.800 (U. S. Comp. St. Supp. 1911, pp. 1506, 1509), which vests courts of bankruptcy with jurisdiction of suits by trustees to recover property transferred either preferentially or fraudulently, a District Court of the United States, which is a court of bankruptcy under the act, has jurisdiction of such a suit, although it is brought as an action at law, since it is not in any case a proceeding in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. § 293.*]</p>

Appeals from the Circuit Court of the United States for the District of Massachusetts; Le Baron B. Colt, Judge. Suit in equity by ’the Western Union Telegraph Company and others against the. American Bell Telephone Company. From a decree (187 Fed. 425) confirming a master’s report, both parties appeal.

Lewis, Judge. Action at law by the Smuggler-Union Mining Company against the Liberty Bell Gold Mining Company. Judgment for plaintiff, and defendant brings error. For convenience the defendant in error, who was the plaintiff in the court below, will be referred to herein as the plaintiff, aud the plaintiff in error as the defendant. This action is to recover damages for a willful and intentional trespass of mining property.

<p>In Error to the District Court of the United States for the District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Action by the Bank of Brunson against the JEtna Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Druggists (§ 12*) — Drugs—Misbranding—-“Package”—“Original Unbroken Package.”</p> <p>Where defendant was accused of shipping misbranded medicines in interstate commerce, in violation of the Pure Food and Drugs Act (Act .Tune 30, 1900, c. 3915, 34 Stat 768 FU. S. Comp. St. Supp. 1911, p. 1.354]), it was not necessary ihat the information allege that the boxes of packages containing the bottles of medicine were misbranded, it being sufficient that it charge that each of the bottles contained in the packages was misbranded; the word “package” as used in the act, having reference to the package which passes into the possession of the public, or the real consumer, and the words “original unbroken package” to the package in the form in which it is received by the vendee or consignee.</p> <p>[Ed. Note. — for other cases, see Druggists, Cent. Dig. § 11; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5059-5063, 5154.]</p> <p>2. Druggists (§ 12*) — Drugs—Misbranding—Prescription.</p> <p>Where defendant company operating a sanatorium where persons addicted to the drug and liquor habits were treated shipped boxes of misbranded medicines in interstate commerce to a patient, it was no defense to a prosecution for violating the Pure Food and Drugs Act (Act .lime 30, 1906. c. 3915, 34 Stat. 70S ID. S. Comp. St. Supp. 1911, p. 1354]) that the sending of the medicine was a mere incident of defendant’s employment, the primary object of which was the diagnosis of the patient’s ailment and the preparation of a prescription for the needs of his particular case.</p> <p>[Ed. Note. — for other cases, see Druggists, Cent. Dig. § 11; Dec. Dig. § 12.*</p> <p>What constitutes a violation of pure food regulations, see note to Brina v. United States, 305 C. C. A. 559.]</p>

Newman, Judge. William E. Breese and another were convicted of conspiracy to embezzle and misapply the funds and credits of the First National Bank of Asheville, N. C., and they bring error.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action by W. J. Lewis against the Western Union Telegraph Company. From a judgment for plaintiff, defendant brings error.</p>

Van Valkenburgh, Judge. In the matter of bankruptcy proceedings of the Pittsburg Lead & Zinc Company, Consolidated. P'rom a decree sustaining a referee’s order overruling a motion and petition of H. S. Rosenbaum and another to expunge the claim of F. R. Dutton, petitioners appeal.

Petition for Revision of Proceedings of the District Court of the United States for the Western District of North Carolina; Tames K. Boyd, Judge. In the matter of bankruptcy proceedings of the Eagle Furniture Company and another. On petition by E. A. Snow and others to superintend and revise in matter of law proceedings of the District Court confirming a referee’s order entitling W. H. Ragan to participate in certain securities for indebtedness of the bankrupt corporation.

<p>1. Shipping (§ 58*) — Charters—Guaranty op Cargo Capacity — Damages por Breach.</p> <p>Where a vessel chartered for a voyage' for a lump sum to carry a cargo of railroad rails proved to have less capacity than was guaranteed by the charter, the charterers, who tendered the full cargo, are entitled to recover as damages the difference between what they would have paid under the charter for the carriage of the cargo shut out and what they would have received from the cargo owner under its bill of lading, if it had been carried.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 233-244, 314, 327;. Dec. Dig. § 58.*]</p> <p>2. Shipping (§ 39*) — Charters—Cesser Clause.</p> <p>The cesser clause in a charter party, that “charterer’s liability to cease on cargo being shipped and freight paid,” where the freight is paid on loading, relieves the charterer from liability for the acts or omissions of others at the port of discharge, but not from liability for failure to perform his own engagements under the charter.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 141-148; Dec. Dig. § 39.*]</p> <p>• 3. Shipping (§ 47*) — Charters—Construction—Time and Place pob Discharging.</p> <p>Where a charter party does not provide for lay days for discharging, the charterer is required to discharge with reasonable diligence; and ' what constitutes such diligence depends on the circumstances of the case, among others, the character, condition, and customs of the port. Where it is not provided that the vessel shall go to a berth as ordered, the charterer has the right to name the discharging place; hut, if he does not do so within a reasonable time, the master may choose one for him- : self.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. §§ 182, 183; Dec. Dig. § 47.*]</p> <p>4. Shipping (§ 177*) — Demurrage—Construction op Charter.</p> <p>A charter party (lift not provide the lay days for discharging, but that “the cargo be discharged Lby the charterer] with all possible speed according to the custom of the port of discharge,” and that “any time lost in * * * discharging through riots, fire, * * * or any causes beyond the personal control of the said charterers not to be computed as part of the said lay days.” It further provided, “Charterers to provide lighters, if necessary, to enable steamer to go alongside any safe dock, wharf, or anchorage, as ordered, where steamer shall discharge always afloat,” and also authorized the owners to use lighters at the risk of the cargo owner. At the port of discharge there were berths where the steamer with her cargo could safely lie afloat; but when she arrived all such berths were occupied, and it was several days before she could get one, when she was discharged with all due speed. Meld, that the charterer was not bound to lighter her until she could reach one of the berths which were open, and was not liable for demurrage for the time she was delayed in reaching the berth designated.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 576-582, 584; Dec. Dig. p 177.*</p> <p>Demurrage, see note to Harrison v. Smith, 14 C. O. A. 657; Randall v. Sprague, 21 C. C. A. 337; llagerman v. Norton, 46 O. O. A. 4.]</p> <p>5. Shipping (§ 39*) — Charters—Agency Fees.</p> <p>A provision of a charter party that the steamer should be consigned to charterers’ agents at port of loading and discharge “on usual terms, say £10.10 at each port,” did not bind the steamer to employ such agent, if he refused to act for the fixed charge or the usual charge; and where, in such case, he was employed and paid a larger sum than that named, the owner is entitled to recover from the charterer the excess paid over the usual charge only, the sum named being merely an estimate of such charge.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 141-148; Dec. Dig. p 39.*]</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>Suit in equity by Neis O. Hultherg against Peter IT-. Anderson and others. From a decree for defendant Axel Chytraus, complainant appeals. On motion to dismiss appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Learned Hand, Judge.</p> <p>Suit in admiralty by William Beard and another against the steamship Campania; , the Cunard Steamship Company, claimant. Decree for respondent, and libelants appeal.</p>

Mayer, Judge. Suit in equity by William M. Maguire against the Mortgage Company of America and another. From an order denying a motion to vacate an order appointing a receiver, Louis G. Hart appeals.

<p>Appeal from the District Court of the United States for the District of New York; George B. Adams, Judge.</p> <p>Suit in admiralty by Owen J. McWilliams and others against the Philadelphia & Reading Railway Company. Decree for libelants, and respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; George O. Holt, Judge.</p> <p>'Suit in equity by Aubry Sisters against the Creme de Mohr Company, Incorporated, and Siegfried Mohr. Decree for defendants, and complainants appeal.</p>

Sanborn, Judge. - Suit in equity by the Parsons Non-Skid Company, Limited, the Weed Chain Tire Grip Company, and Harry D. Weed against the H. Channon Company. From an order granting a preliminary injunction, defendant appeals.

<p>1. Carriers (§ 12*) — Regulation—Railroad Commission Act — Rates—“Reasonable.”</p> <p>The Michigan Railroad Commission Act (Pub. Acts 1909, No. 300) authorizes the Commission to fix and determine reasonable rates. Section 26 (a) provides that any common carrier or person in interest, who is dissatisfied, within 30 days from the issuance of the order, may sue in the circuit court in chancery against the Commission to vacate the rates as unlawful or unreasonable, and section 26 (e) declares that in all such actions the burden of proof shall be on complainant to show that the order complained of is unlawful or unreasonable, as the case may be. Held, that the word “reasonable,” as used in section 26, means nonconfiscatory; that from a judicial standpoint a rate is unreasonable only when it yields less than that minimum return which invested capital has a right to demand, that increment which is so inherently incidental to the investment that destroying the increment is a confiscation of the property; while from the legislative standpoint a rate may be reasonable which is not unfair to the shipper and at the same- lime is large enough to meet the demands 'of the legislative policy in encouraging railroad investments, contemplating a return much beyond the legal rate of interest on the money invested.</p> <p>[Ed, Note. — For other cases, see Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 5953J-</p> <p>2. Judgment (§ 828*) — Res Judicata — Judgment Sustaining Railroad Rates — Railroad Commission.</p> <p>The Michigan Railroad Commission Act (Pub. Acts 1909, No. 300) authorizes the Railroad Commission to fix. rates, and provides by section 26 (a) that any carrier or person dissatisfied with a rate fixed may sue the Commission in a circuit court to set aside the rates as unlawful or unreasonable, that the evidence taken in such action shall be transmitted to the Commission for its consideration, and, if the original order be not rescinded or changed, judgment shall be rendered thereon; section 26 (e) places the burden of proof on the complainant to show that the Commission’s order is unlawful or unreasonable, as the ease may be; and section 26 (d) authorizes an appeal to the Supreme Court. Held that, under Const. Mich. art. 4, §§ 1, 2, dividing the powers of government into legislative, executive, and judicial departments, and providing against infringement, the authority of the court in a suit to vacate a rate order of the Railroad Commission did not involve legislative action and was essentially judicial; and hence, where a judgment confirming a Commission’s order had been affirmed on appeal to the Supreme Court, and a writ of error from the Supreme Court of the United States had been denied, the rate was res judicata, precluding a further contest thereof in the federal courts.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dee. Dig. § 828.*]</p>

In Bankruptcy. In the matter of the Anson Mercantile Company. On certificate of referee to review an order allowing a claim of the John Deere Plow Company to the proceeds of certain property sold to the bankrupt under a conditional sale contract.

Action by the Parkview Building & Loan Association against Herman G. H. Herold, Collector of United States Internal Revenue for the Fifth District of New Jersey, to recover certain corporation taxes alleged to have been wrongfully imposed on and collected from plaintiff. Judgment for plaintiff.

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>On petition of Charles Anderson for habeas corpus against William H. Moyer, warden of the United States penitentiary at Atlanta, Ga. The district court having granted the writ and discharged petitioner, the warden appeals.</p> <p>An indictment containing five counts was returned May 7, 1907, in the United States District Court for the District of Oregon against Charles Anderson and three others. The first count charged them with unlawfully and forcibly breaking into the Sellwóod post office, in the city of Portland, Or., with intent to commit a larceny therein, on January 18, 1907; the second count charged them with larceny of postage stamps from said post office on' that date; the third with larceny of $3 from that post office on the same date; the fourth with receiving and concealing on the same date the postage stamps stolen by them from the post office; and the fifth with receiving and concealing on the same date the money that they had stolen from the post office.</p> <p>The defendant, Charles Anderson, having filed his plea of not guilty, was tried by a jury, and on October 11, 1907, the jury returned a verdict finding him guilty as charged in the first, second, and third counts, and not guilty as charged in the fourth and fifth counts of the indictment. Whereupon. he was sentenced to pay a fine of S100 and to imprisonment at hard labor in the United States penitentiary at McNeil’s Island for a term of 5 years on the first count, 2% years on the second count, and 2% years on the third count. After serving part of said sentence at McNeil’s Island, he was transferred to the United States penitentiary at Atlanta, Ga.</p> <p>After serving his term of imprisonment on the first count, deducting the usual allowance for good time, and 30 days additional time in lieu óf the fine imposed, he applied to the District Court of the United States for the Northern District of Georgia, where he is now confined in the federal i>rison at Atlanta. Ga., for a writ of habeas corpus, on the ground that the acts charged in the three counts of the indictment on which lie was convicted and sentenced constituted but one offense, and that, therefore, the additional sentence on counts 2 and 3 are void. The application was denied by the court for the reasons stated in Anderson v. Móyer, Warden (D. 0.) 193 Fed. 499. The application for the writ was made on the strength of the decision of the Circuit Court of Appeals for the Ninth Circuit in the case of Halligan, Warden, v. Wayne, 179 Fed. 112, 102 C. C. A. 410.</p> <p>Later, the Circuit Court of Appeals for the Eighth Circuit, in the case of Munson v. McClaughry, Warden, 198 Fed. 72, 117 C. C. A. 180, followed the decision in the Wayne Case. On the strength of the decision in the Mun-son Case, the appellee herein renewed his application for a writ of habeas corpus on the ground that the criminal acts charged in the indictment constituted but one offense, to wit, the crime of breaking into a building used as a post office with intent to commit larceny therein, in violation of section 5478 of the Revised Statutes of the United States as charged in the first count of the indictment, and that the sentences upon the second and third counts of the indictment for larceny were ultra vires and void. The writ was allowed, served, due return made, and upon the hearing the court below held that the Wayne and Munson Cases were controlling in this case, and discharged the appellee herein.</p>

Rudkin, Judge. Action at law by John Chervenak, a minor, by his guardian ad litem, John Piper, against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

Rudkin, Judge. Ejectment by Thomas Christianson against the County of King to recover possession of certain real property, and to quiet title to the same. Judgment for defendant (196 Fed. 791), and plaintiff brings error. The complainant is a subject of the kingdom of Norway. The defendant is a municipal corporation organized under the laws of the state of Washington. The action is in ejectment.

Willard, Judge. Action at law by M. N. Goss and A. K. Sleeger, copartners as Goss &'Sleeger, against the Northern Pacific Railway Company. From the judgment both parties bring error.

Connor, Judge. Suit by Clarence Camp, and others, as executors of W. N. Camp, deceased, against W. R. Bonsai and another. From a decree dismissing the bill, complainants appeal. Affirmed as to defendant R. E. Brewer, and reversed as to defendant W. R. Bonsai.

<p>1. Specific Performance (§ 128*) — Nature of Relief — Performance of Work — Allowance of Damages.</p> <p>Where, after the filing of a bill by a municipal contractor against a city to compel specific performance of an alleged contract and for an injunction to restrain the performance of a contract made with a competitor, the work contracted for liad been completed, so that no decree for specific performance or for an injunction could be granted, equity nevertheless had jurisdiction, if complainant was entitled to recover, to allow damages under the prayer for general equitable relief.</p> <p>[Ed. Noto. — For other eases, see Specific Performance, Cent. Dig. 412-119: Dec. Dig. § 128.*]</p> <p>2. Municipal Corporations (§ 335*) — Public Improvements — Bids—Written Con tract — Necessity.</p> <p>Where a city, on advertising for bids for a municipal improvement, both in 1he specifications and in the advertisement stated that the successful bidder must enter into a written contract to perform the work, and complainant knew from past experience that ho would be required , to enter into a written contract according to an adopted form in case his bid was accepted, a mere vote of the city council to accept one of complainant’s bids and award a contract to him, which was thereafter reconsidered, no written contract ever having been executed, was insufficient to show the execution of a contract for the work between the city and complainant pursuant to his bid.</p> <p>[Ed. Note. — -For other cases, see Municipal Corporations, Cent. Dig. §§ . 860, 861, 863; Dec. Dig. § 335.*]</p>

Bean, Judge. Stewart Rooney was convicted of feloniously introducing liquor into ' the Indian country, and he brings error.

<p>In Error to the District Court of the United States for the District of North Dakota; James D. Elliott, Judge.</p> <p>Action by Charles Kaiser against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Reed, Judge. Action by Henrietta Egan, administratrix of the estate of William J. Egan, deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error.

Action by J. E. Broussard against Frank De Klotz. From a judgment in favor of plaintiff on defendant’s counterclaim, he brings error.

<p>1. Corporations (§ 384*) — Consolidation—Minority Stockholders — Breach or Trust — Character of Stock.</p> <p>Where, in a suit to rescind a consolidation of certain corporations, the court, on a prior appeal, had held that complainants were entitled to relief. and that they should be decreed either a rescission of the contract of consolidation, or the value of their shares of the property of the corporation on the basis of value immediately after the consolidation as enhanced thereby, it was no objection to a decree, fixing the proportion of the property of the consolidated company, that it should be apportioned to the stock of the merged corporation in which complainants were interested, that the difference in the value of the preferred and common stock of that corporation was not considered; that question being determina bio after the share of the value of the consolidated corporation's assets, assignable to the merged company, had been determined.</p> <p>[Ed. Note. — For other eases, see Corporations, Gent. Dig. §§ 2343-2347; Dec. Dig. § 584.*]</p> <p>2. Corporations (§ 584*) — Consolidation—Rescission—Rights of Stockholders — Attorney’s Fees.</p> <p>Where, in a suit by minority stockholders of a merged corporation for rescission of the consolidation, it was held' that they were entitled either to a rescission of the consolidation contract, or the value of their shares of the property of their corporation immediately after the consolidation as enhanced thereby, and the intrinsic value of the consolidated company’s property at that time was not clearly.established, the court, over defendant’s objection, would not deprive either party of the opportunity to present evidence on the question of value by awarding a decree against defendant fixing the value of complainant’s shares to be taken over at a specified sum and rendering judgment for that sum, together with necessary expenses and fees to complainants’ attorney</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2343-2347; Dec. Dig § 584.*]</p>

<p>1. Criminal Law (§ 434*) — Evidence—Documentary Evidence — Books of Corporation.</p> <p>Where, in a prosecution for wrongful use of the mails in furtherance of a scheme to defraud in the sale of corporate stock by false representa- • tions, defendant made representations as to the corporations i'n question, the truth of which could only be determined by the corporate books and records, and part of one of the books contained a summary of defendant’s own reports, the books were admissible on the issue of the truth of such representations, regardless of the fact that defendant’s partici- . pation in the scheme occurred a long distance from .the place where the books were kept and he had no part in their keeping.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023; Dee. Dig. § 434.*]</p> <p>2. Criminal Law (§ 369*) — Evidence—Other Offenses — Intent—Limitation.</p> <p>Where, in a prosecution for use of the mails in furtherance of a scheme to defraud in the sale of stock in a corporation projecting a wireless telegraph, there being evidence that the affairs of a prior company were so interwoven with those of the company in question that proof of defendant’s relations with such former company directly tended to establish his participation in the fraudulent scheme in connection with the latter, such evidence was admissible to prove the offense alleged, and it was not error for the court to omit to limit it to. the question of intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*]</p> <p>3. Post Ofbice (§ 49*) — Misuse of Mails — Evidence—Good Faith.</p> <p>In a prosecution for a misuse of the mails in furtherance of a scheme to defraud in a sale of corporate stock by misrepresentations, evidence of a conversation between defendant and the chairman of the executive committee of the corporation, concerning the company’s earnings subsequent to the making of the representations alleged to be false, was inadmissible on the issue of defendant’s good faith.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86; Dec. Dig. § 49.*</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. G. A. 548.)</p> <p>4. Criminal Law (§ 444*) — Documentary Evidence — Preliminary Proof.</p> <p>In a prosecution. for misuse of the mails in furtherance of a scheme to defraud in the sale of corporate stock, the rejection of bulletins and letters from the corporation’s western manager concerning the Pacific Coast business was not error in the absence of a foundation properly laid for its admission.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.*]</p> <p>5. Post Office (§ 50*) — Question for Jury — Misuse of Mails — Scheme to Defraud.</p> <p>In a prosecution for misuse of the mails in furtherance of a scheme to defraud in the sale of stock of a corporation by misrepresentations, evidence held sufficient to justify a submission of the case to the jury as against defendant P.</p> <p>[Ed. Note. — For other cases, see iPost Office, Cent. Dig. §§ 87-89; Dee. Dig. § 50.*]</p>

<p>L Cashiers (§ 37*) — Transportation op Animals — Twenty-Eight Hour Law — Violation by Connecting Carrier — Knowledge — Burden of Proof.</p> <p>Where defendant carrier received certain horses from a connecting carrier, which had kept them confined for a period longer than that permitted by the Twenty-Eight Hour Law (Act Cong. June 29, 1906, c. 3591, S8 1. 3. 34 Stat. 607, 608 |U. S. Comp. St. Supp. 1911, pp. 1341, 1342]), and continued the transportation to destination without unloading, knowledge of the connecting carrier’s default would be imputed to defendant, in the absence of evidence from it that it made reasonable inquiry and could not ascertain the fact, and that it continued the transportation in good faith.</p> <p>fKd. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*]</p> <p>2. Carriers (§ 37*) — Transportation of Animals — Twenty-Eight Hour Law — Violation—Defendant’s Duty.</p> <p>Where defendant’s line, part of the route over which certain horses were transported by connecting carriers, involved only a distance of seven miles, from a junction point to destination, defendant having received the horses with knowledge that they had already been confined for a period longer than that permitted by the Twenty-Eight Hour Law (Act Cong. .Tune 29, 1906, c. 3594, §§ 1, 3, 34 Stat. 607, 608 [U. S. Comp. St Supp. 1911, pp. 1841, 1342]), it was its duty to transport them to destination as quickly as possible.</p> <p>[Ed. Noto. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*]</p> <p>3. Evidence (§ 574*) — Opinions—Experts—Reasonable Time.</p> <p>Where a terminal carrier, receiving horses for transportation to destination, a distance of only seven miles, with knowledge that they had already boon confined for a period longer than that authorized by the Twenty-Eight Hour Law (Act Cong. June 29, 1906, c. 3594, §§ 1, 3, 34 Stat. COT, 608 [U. S. Comp. St. -Supp. 1911, pp. 1341, 1342]), used 3 hours and 35 minutes to move the cars to destination, evidence of the opinion of two freight conductors that, in view of the condition of the belt line in getting ready for grade crossing improvements, the time actually occupied was reasonable, was insufficient to rebut the prima facie case that such period was unreasonable. *</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2400; Dec. Dig. § 574.*]</p> <p>4. Carriers (§ 37*) — Transportation of Animals — Twenty-Eight Hour Law — Connecting Carriers — Punishment of One — Effect.</p> <p>Where a connecting carrier, after having confined certain horses for a period longer than permitted by the Twenty-Eight Hour Law (Act Cong.</p> <p>June 20, 1906, c. 3594, §§ 1, 3, 34 Stat. 607, 608 [U. S. Comp. St. Supp. 1911, pp. 1341, 1342]), delivered them to defendant for transportation to destination, and defendant did not transport the horses to destination as quickly’ as possible, the fact that a judgment was recovered for a penalty against the connecting carrier for violating such act was no bar to an action to recover a similar penalty against defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*</p> <p>Liability of carrier for failure to feed, wáter, and rest live stock and for violation of Twenty-Eight Hour Law, see note to St. Joseph Stockyards Co. v. United States, 110 C. C. A. 435.]</p>

Reed, Judge. Action by William H. Nelson against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Hazel, Judge. Suit in admiralty by Jeremiah J. McCarthy and James J. McCarthy against the Central Dredging Company, with cross-libel. Decree for libelants, and respondent appeals. The libel was brought to recover compensation, at an agreed price of $35 per day, for the services of a diver, and $26, the agreed value of certain material supplied in connection with the diver’s work.

Martin, Judge. Action by A din F. Miller, as administrator, etc., of J. Arms Miller, deceased, for wrongful death, against the Boston & Maine Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1. Carriers (§ 218*) — Injury to Live Stock — Notice—Condition of Claim.</p> <p>A provision in a live stock bill of lading covering an interstate shipment that it should be a condition precedent to the recovery of any damage for delay, loss, or injury to the stock that the shipper should give notice in writing of the claim therefor to some general officer or nearest station agent of the carrier, or to the agent at destination or some general agent of the delivering line, before the stock is removed from the point of shipment or place of destination and mingled with other stock, such notification to be served within one day after the delivery of the stock at destination, and that a failure to fully comply with such provisions should be a bar to the recovery of any and all such claims, was a reasonable and valid provision, and a failure to comply therewith fatal to the shipper’s claim.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 938 -919; Dec. Dig. § 218.*]</p> <p>2. Carriers (§ 218*) — Interstate Transportation — Live Stock Bill of Ladino; — Carrier’s Agent — Authority to Waive Provisions.</p> <p>A provision of a live stock bill of lading covering an interstate shipment that no agent of the carrier had authority to waive, modify, or amend any of the provisions of the contract was valid; and hence the action of the carrier’s general claim agent in merely negotiating with plaintiff for the settlement of his claim did not constitute a waiver of a provision in the bill requiring service of notice of claim on some general officer or station agent of the delivering carrier within one day after delivery.</p> <p>[Ed. Note.--‘For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]</p> <p>8. Carriers (§ 32*) — Transportation of Live Stock — Interstate Shipment —Agreement to Expedite Transportation.</p> <p>Where an interstate carrier had not established and published a rate for special expedition in the transportation of cattle to market, an oral agreement to expedite a shipment for which the regular established rate for ordinary transportation was charged was void as a discrimination, in violation of Elkins Act Feb. 19, 1903, c, 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1911, p. 1309), and therefore unenforceable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. § 32*1</p>

Burns, Judge. Action by T. L. L. Temple against Carey Shaw and others. A judgment was rendered in favor of defendants, and both parties bring error.,

<p>Collision (§ 85*) — Steam Vessel in Fog- — Fault.</p> <p>A steamer passing down from Mobile to the bay in the daytime in a fog and near the west shore came into collision with a schooner coming up in tow alongside a launch. The steamer was proceeding at half speed, about four miles an hour, and had a lookout, and kept sounding fog signals, and she did not see or hear the other vessels until they were within about 75 feet, and then at once reversed. Held insufficient to show that the steamer was at fault.</p> <p>[Ed. Noie. — For other cases, see Collision, Cent. Dig. §§ 166, 169; Dec. Dig. § 85.*</p> <p>Collision rules, speed of steamers in fog, see note to The Niagara, 28 O. O. A. 532.1</p>

<p>Appeal from the District Court of the United States for the West-‘e'rn District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Suit in equity by the Electric Smelting & Aluminum Company against the Carborundum Company. From the final decree, both par-i)-n-n<aPl</p>

United States for the District of Massachusetts; Arthur L. Brown, Judge. Suit in Equity by the De Easki & Thropp Circular Woven Tire Company and others against the.Fisk Rubber Company. Decree for defendant, and complainants, appeal.

Sanborn, Judge. ■ Suit in equity by the Chadeloid Chemical Company against Samuel C. Johnson and Herbert T. Johnson, doing business under the copartnership name of S. C. Johnson & Son. Decree for defendants, and complainant appeals.’ Appellant filed its bill to enjoin appellees from infringing patent No. 714888, issued December '2, 1902, to Ellis, for a paint and varnish remover.

<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 J. H. Sager Company against the Emil Gross-man Company. From a decree holding valid and infringed the sixth anrl seventh claims of letters patent No. 885,181, granted April 21, 1908, to James H. Sager for improvements in automobile buffers, defendant appeals.</p>

Ray, Judge. _ , _ Suit in equity by Janies D. Hurd, the Consolidated Rubber Tire Company, and the Rubber Tire Wheel Company against the James Goold Company. From an order granting a preliminary injunction; defendant appeals. This cause comes here upon appeal from an order granting á preliminary injunction. The suit is one for infringement of the well-known Grant patent for rubber-tired wheels.

<p>In Equity. Suit by the Turner Brass Works and Ray W. Harroun against the Appliance Manufacturing Company. On final hearing. Decree for complainants.</p>

<p>1. Patents (§ 328*) — Inebingement—Apparatus por Investing Titbulab Fabeics.</p> <p>The Palmer patent, No. 878,995, for an apparatus for inverting tubular . fabrics, held not so clearly infringed by a machine used by defendant as to justify the granting of a preliminary injunction.</p> <p>2. Wonns and Phrases — “Against.”</p> <p>“Against,” as applied to motion, means in an opposite direction to, so as to meet.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, pp. 258, 259.1</p>

<p>In Equity. Suit by the Schmertz. Wire Glass Company ajid the Mississippi Wire Glass Company against the Western Glass Company. On exceptions to master’s report on accounting..</p>

In the matter of the bankruptcy proceedings of M. J. O’Brien. On exceptions of the Blair & Hughes Company to the trustee’s report setting aside certain property to the bankrupt as an exempt homestead.

<p>1. Courts (§ 262*) — Federal Courts — Jurisdiction—Sukjeot-Matter~--Wil.l Contest.</p> <p>A plenary action between citizens of diverse citizenship to set aside the probate of a will within two years after probate, as authorized by Code Civ. Proe. N. Y. § 2653a, is a proceeding which does Mot arise out of probate, and is not related to administration or ancillary to probate, and is therefore within the jurisdiction of the federal courts.</p> <p>Llfid. Note. — For other cases, see Courts, Cent. Dig. §§ 797, 798; Deo. Dig. § 262.*]</p> <p>2. Courts (g 489*) — Federal Courts — Jurisdiction—State Statutes.</p> <p>The fact that Code Civ. Proc. N. Y. § 2658a, authorizing the maintenance of an action to set aside the probate of a will within two years, declares that the action may be in the Supreme Court of the county In which the probate was liad, could not prevent the maintenance of such action in the federal courts, where the parties are of diverse citizenship.</p> <p>]10d. Note. — For oilier cases, see Courts, Cent. Dig. §§ 1324-1330, 1333-1341, 1372-1874; Dec. Dig. § 489.*]</p>

<p>1. Commerce (§ 80*) — Regulation—Federal Statutes.</p> <p>The acts of Congress relating to interstate commerce were not intended to abrogate the attachment laws of the state, but within their proper sphere the federal acts are paramount.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 80.*]</p> <p>2. Carriers (§ 4*) — Sleeping Car Companies — “Common Carrier.”</p> <p>A sleeping car company, by furnishing sleeping cars under contract with a railroad company, to be used by the traveling public, does not acquire the status of a common carrier of goods or passengers unless so declared by constitutional or statutory provision.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 13Í3-1319; vol. 8, p. 7607.]</p> <p>3. Commerce (§ 47*) — Interstate Commerce — Instrumentalities—Sleeping Cars — Attachment.</p> <p>A sleeping car en route from Columbus, Ohio, to Washington, D. C., while waiting at a junction with its passengers, both interstate and intrastate, aboard to be picked up by a through train and carried to destination, was attached under a state writ and detained by the sheriff by force, compelling the passengers to disembark and accept other accommodations. Hold that, under Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Star. 379 [U. S. Comp. St. 1901, p. 3154'J), § 1, as amended by Act June 29, 1906, c. 3591, 34 Stat. 581 (U. S. Comp. St. Supp. 1911, p. 1284), extending the term “common carrier” to include sleeping car companies, the ear, at the time of its attachment:, was an instrumentality of interstate commerce and was not subject to attachment under a state writ which would directly interfere with its operation in such commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 26; Dec. Dig. § 47.*]</p>

At Law. Action by Edward H. Patterson against The Bucknall Steamship Lines, Limited. Plaintiff sued as assignee of ten separate causes of action, the assignors in some instances being citizens of the United States, and in others aliens, and defendant was an alien corporation. On motion to remand.

<p>Appeal from the District Court of the United States, for the Eastern District of Louisiana; Wm. I. Grubb, Judge.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York. On motion for leave- to file agreed statement of facts as record on appeal.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge, Action at law by the Louisville & Nashville Railroad Company against the Western. Union Telegraph Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action between the Mayor and Aldermen of the City of Vicksburg and W. A. Henson, receiver of the Vicksburg Waterworks. From a judgment in favor of the latter, the former appeals.</p>

<p>Appeals from the District Court of the United States for the Eastern District of Douisiana; Rufus E. Foster, Judge. Actions by J. A. E. Pyle as trustee in bankruptcy, etc., against the Texas Transport & Terminal Company and others and the Bank de Mulhouse, against the Texas Transport & Terminal Company and others and the Oomptoir d’Escompte de Mulhouse, against the Texas Transport & Terminal Company and others and Paul Chardin, against the Texas Transport & Terminal Company and others and the Société GSnérale, and against the Texas Transport & Terminal Company and others and the Credit Havrais. From decrees in favor of the defendants (192 Fed. 725), plaintiff appeals.</p>