Volume 204 — Federal Reporter

Denison, Judge. James H. Worden and Alexander Gustaf Person were convicted of conspiracy to defraud the United States in the purchase of certain public lands, and they bring error.

<p>1. Release (§ 24*) — Miskepeesentation—Feaud—Proof at Law.</p> <p>Where plaintiff, an illiterate widow of one of defendant’s employes, was induced to execute a receipt for $1,000 and for $1, releasing defendant from all liability arising out of the death of her husband, on the misrepresentation that, the instrument was a mere receipt for insurance money and that the dollar was a present to her infant child, such misrepresentation wits a direct fraud in the execution of the document which could be proven at law.</p> <p>LEd. Note. — For other cases, see Release, Cent.- Dig. §§ 41-46; Dec. Dig. § 24.*]</p> <p>2. Release (§ 13*) — Liability for Death — Mutual Benefit Society — Insurance.</p> <p>Defendant company maintained and operated in connection with its business an employes’ mutual benefit society, taking 10 cents a month from the wages of each employe for the benefit of the society, and furnishing the necessary additional funds and clerical force to operate it. The constitution and by-laws provided that the acceptance of benefits for death or permanent disability of ail employe, resulting from accident in the company’s service, should operate as a full satisfaction of any and all claims against the company on the part of the servant or by all who might legally assert such claim, etc. Held, that, where the widow of an employs killed in defendant’s service received $1,000 benefit and executed a release to the society, by which, in consideration of that sum and the further sum of $1 paid by defendant, she released it from all liability on account of the death of her husband, the transaction created a situation which relieved defendant from all liability because of a valuable consideration moving from it to the beneficial association and to its members,-in the absence of fraud or mistake, and was a defense to an action for intestate’s death.</p> <p>[Ed. Note. — ITor other cases, see Release, Cent. Dig. §§ 21-27, 29; Dec. Dig. § 13.*]</p> <p>3. Release (§ 21*) — Feaud—Return of Money — Tendee.</p> <p>Defendant, maintained an employes’ benefit society, under the constitution and by-laws of which relatives of an employe were entitled to a specific benefit in case of a member’s death, the receipt of which should operate to relieve defendant from any liability by reason of such death. After decedent was killed in the course of his employment, his widow was paid $1,000 by the association and $1 by defendant. She executed a receipt for the two sums, releasing defendant from all liability by reason of decedent’s death. The widow subsequently, claiming that she was induced to sign the release by misrepresentation that it was for insurance money and that the dollar was a present for her child, tendered a return of the insurance money to defendant, and sued for damages. Beld, that the tender of the insurance money to defendant, instead of to the beneficial association, was not a valid tender, and that her failure to tender the sum to the association was a bar to recovery.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 41-46; Dee. Dig. I ÜL*]</p> <p>Coxe, Circuit Judge, dissenting.</p>

Amidon, Judge. The John Guild Brewing Company was indicted for having engaged in the business of a wholesale dealer in malt liquors in Dickinson, Stark count}7, N. D., without having paid the license imposed by law on such business; with also engaging in the business of a retail dealer in malt liquors without having paid the government license, and with conspiracy to evade the payment of the internal revenue tax required by persons engaged in the sale of mált liquors, and…

Dyer, Judge. Claim of the Mechanics’-American National Bank against Frank B. Coleman, trustee in bankruptcy of the Embree-McLean Carriage Company. A referee’s order overruling a motion to reduce the claim by the amount of certain attorney’s fees, claimed pursuant to a provision in the notes on which the claim was based, having been disapproved and reversed, the bank appeáls.

<p>1, Removal oe Causes (§ 119*) — Circuit Court oe Appeals — Determination oe Jurisdiction.</p> <p>Where a removed cause is taken to the Circuit Court of Appeals by writ of error, it is the court’s duty on its own motion to determine whether the record exhibits a removable cause, regardless of whether any objection was taken to the jurisdiction of the federal court, either in the trial court or on appeal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 252; Dec. Dig. § 119.*]</p> <p>2. Removal oe Causes (§ 111*) — Federal Jurisdiction — Diversity oe Citizenship — Record.</p> <p>"Where a cause is removed for diversity of citizenship, the record must affirmatively show jurisdiction, and the facts necessary to show diversity of citizenship not be left to argument or inference.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 23T, 239; Dec. Dig. § 111.*]_</p> <p>3. ItaroYAi. of Causes (f 86*) — Record—Diversity of Citizenship — Pleading.</p> <p>In an action against a Lloyds association, mere assertion in a petition to remove tliat defendant is a resident and citizen of -New York and a nonresident of Tennessee, where the suit has been brought, is not necessarily more than a mere conclusion of the pleader, and alone is not sufficiently definite to show diversity of citizenship, relied on as a ground for removal.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-170; Dec. Dig. § 86.*]</p> <p>4. Covets tii 322*) — Federal Courts — Jurisdiction—Diversity of Citizenship — Pleading—Associations—“Citizen.”</p> <p>In an action against a Lloyds association, an allegation that defendant is an “association” is not alone sufficient to show citizenship, since an association, which is not a corporation, is not a “citizen,” within the statutes regulating jurisdiction of the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 876-881, 887 Dec. Dig. § 822.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1164-1174; vol. 8, pp. 7602, 7608.</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 O'. C. A. 298.]</p> <p>5. Removal of Causes (§ 118*) — Diversity of Citizenship — Record—Amendment.</p> <p>Where the record in a state court of a removed cause against a Lloyds association was deficient, in that it failed to show the legal status of the defendant, but nevertheless contained allegations in the language of the statute of the existence of the elements entitling defendant to a removal, it was not so fatally lacking in jurisdictional allegations as to preclude amendment in the federal court by way of correct and definite showing of the a dual status and citizenship of the defendant association and its members.</p> <p>I Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 250; Dec. Dig. | 138.*]</p> <p>6. Insurance (§ 817*) — Fibe Policy — “Continuous Clear Space.”</p> <p>A provision in a ^fire policj', covering lumber in piles, requiring a “continuous clear space” of 100 feet between the property insured and any woodworking or manufacturing establishments, was breached by the maintenance of an oilhouse, barn, and an elevated driveway in the 100-foot space between the lumber insured and plaintiff’s mill.</p> <p>[ Ed. Note. — For other cases, see Insurance, Cent. Dig. § 748; Dec. Dig. § 817.*]</p> <p>7. Insurance (§ 664*) — Evidence—Conditions—Clear Space — Waiver.</p> <p>Where defendant’s inspector made measurements and observations of plaintiffs’ sawmill yard prior to the issuance of the policy sued on, and ascertained the then existing conditions, and defendant association (through its “home office” or general managing officers) had the report of the inspector, showing the existence of a barn, oilhouse, and elevated lumber platform within the 100-foot space required by the policy to be kept clear between the piles of lumber insured and plaintiffs’ sawmill, proof that with such knowledge (and with reason to believe that the continued existence of such structures in their then location during the life of the successor policy was contemplated) defendant issued the policy and retained the premium would be competent to raise an estoppel against defendant’s right to insist on a breach of the clear space provision as a defense to an action on the policy, notwithstanding the provision in the policy that no agent or representative'of the underwriters should have power to waive any provision or condition in the policy, except such as by its terms might be the subject. of agreement, indorsed thereon or attached thereto, and as to such provisions they could not be waived, unless in writing indorsed on or attached to the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1687, 1688, 1699; Dee. Dig. § 664.*J</p> <p>8. Insurance (§ 664*) — Evidence—Conditions—Clear Space — Waivek.</p> <p>Evidence of an alleged waiver of a clear space provision in a fire policy by defendant’s local agent was inadmissible, in the absence of an offer to show ratification of the agent’s act by the company; the same not having been in writing and attached to the policy as required by its terms.</p> <p>[E,d. Note. — For other eases, see Insurance, Cent. Dig. §§ 1555, 1687, 1688, 1699; Dee. Dig. § 664.*]</p>

E. Day, Judge. Actions by Lawrence Lorenski and by Frank Lewandowski against the American Shipbuilding Company. Judgment for plaintiff in each case, and defendant brings error. These two cases were heard together both below and here, and will be disposed of in this opinion. Damages for personal injuries were sought and recovered in each case upon pleadings substantially alike and upon the same evidence, except as to description and extent of the injuries sustained.

Action by Emma M. Fuller, administratrix of the estate of John C. Fuller, deceased, against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. This action was instituted by the administratrix of the estate of John C. Fuller, deceased, to recover datnages under the national Employer’s Liability Act on account of the death of said delcedent, alleged to have been caused by the negligence of the defendant.

<p>Appeal from the District Court of the United Státes for the Northern Division of the Southern District of Illinois; J. Otis Humphrey, Judge. _</p> <p>_ Suit in admiralty by the Tweedie Trading Company against the Par-lin & Orendorff. Company. Decree for respondent, and libelant appeals.</p> <p>The appellant, Tweedie Trading Company, filed their libel in personam against the appellee, Parlin & Orendorff Company, to recover damages for breach of an alleged contract of affreightment, and this appeal is from a decree dismissing the libel on final hearing of the issues.. .</p> <p>The written instrument in suit is dated New Xork, February 6, 1906, partly ■ typewritten and partly printed, on a printed form used by the appellant for affreightment proposals, and reads:</p> <p> </p>

<p>1. INDICTMENT AND INFORMATION (§ 91*) — SUFFICIENCY—FELONIES—NECESSITY of Charging Felonious Intent.</p> <p>Where a crime is made a felony by statute, it is not necessary to charge in the indictment that it was feloniously committed, unless the statute itself makes a felonious intent an element of the offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 261-265; Dec. Dig. § 91.*]</p> <p>2. INTERNAL REVENUE (§ 47*)-PROSECUTION FOB VIOLATION OF STATUTE — INDICTMENT.</p> <p>In an indictment against a distiller for making false entries in a book required to be kept by him as such distiller by Rev.' St. § 3303 (U. S. Comp. St. 1901, p. 2155), it is not necessary to allege that the book was one prescribed by the Commissioner of Internal Revenue, nor to set forth the exact entries alleged to be false, in the absence of a motion for a bill of particulars.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 144-150; Dec. Dig. § 47.*]</p> <p>3. Cbiminal Raw (i 43*) — Prosecution for Violation of Internal Revenue Raw — Effect of Prior Forfeiture of Property.</p> <p>That a distillery owned by a corporation has been forfeited in a proceeding by the United States for a violation of the internal revenue laws is not a bar to the prosecution of a stockholder personally for the same violation, although he is the sole stockholder; nor would it be a bar if the property was in his own name.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 49; Dec. Dig. § *</p> <p>4. Criminal Law (§ 622*) — Trial—Severance.</p> <p>The granting of a severance in a criminal prosecution of two or more defendants rests in the sound discretion of the trial courl.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1880-1383. 1385, 1386, 1388-1890; Dec. Dig. § 622.*]</p> <p>5. Internal Revenue (§ 47*) — Distillery—Prosecution for Violation of Law —Evidence .</p> <p>An indictment for unlawfully carrying on the business of distillers with intent to defraud the United States, or having a still under their superintendence, is supported by proof that the distillery was owned by a corporation of which defendants were the officers and managers.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 144-150; Dec. Dig. § 47.*]</p>

<p>Limitation our Actions (§ 100*) — Discovery or Conspiracy — Anti-Trust Act — Violation.</p> <p>Where plaintiff sued defendants for conspiracy, consisting of an alleged unlawful agreement to injure plaintiff in its business, in violation of the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [IT. S. Comp. St. 1901, p. 3200]), the period of limitation did not begin to run until plaintiff discovered the existence of the conspiracy and its cause of action.</p> <p>I Ed. Note. — Jb’or other cases, see Limitation of Actions, Cent. Dig. §§ 823, 480-193; Dec. Dig. | 100. *J</p>

Mayer, Judge. In the matter of the bankruptcy proceeding of A. O. Brown & Co. From an order overruling specifications of objection of Leonard A. Hochstadter to bankrupt’s discharge, he appeals. Bankrupt’s application granted so far as Albert O. Brown and Lewis G. Young, individually, were concerned, and objector appeals;

Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Suit in admiralty by John Andrews, master of the barge Ella A. Dempsey, against the steam tug Prudence, Charles Gring, claimant, the steam tug Norfolk, and N. Y., P. & N.> R. R. Barge No. 14. Decree against the Prudence for half damages, and libelant and claimant both appeal.

• In Error to the District Court of the United States for the Southern District of New York; Learned Hand, Judge. Action by Charles Hamilton, a's receiver of Evans-Johnson-Sloane Company, against Benno Levison, Jr., to recover an assessment levied by the district court of Ramsey county, Minn., on defendant as a stockholder in the Evans-Johnson-Sloane Company. Defendant was found by such court to be the owner of 30 shares, which were assessed $100 each.

<p>In Error to the District Court of the United States for the Southern District of New York; Walter C. Noyes, Judge.</p> <p>Action by Louis L. Bernier against the Griscom-Spencer Company. Judgment for plaintiff for $2,738.40, and defendant brings error.</p>

<p>GormtACTS (§ 277*) — CoNstructton-—Commencement op Work — Notice.</p> <p>Where a contract provided that plaintiff should have a certain number of days to complete work, and should begin the same on receipt of notice from the engineer in charge, which notice was sent him from Philadelphia on September 4, 1906, but was not received until September 14th, the time began to run only from the date the notice was received.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1217-1232; Dec. Dig. § 277.*]</p>

Petition in admiralty by John Scully, owner of the steam tug Charles B. Sandford, for limitation of liability. From a decree holding the tug solely in fault for the loss of part of her tow, petitioner appeals.

<p>Public Lands (§ 120*) — Patent—Vacation—Fraud.</p> <p>A mere preponderance of the evidence is insufficient to justify the vacation of a patent to homestead entry for and on account of fraud in the original entry and final proof; but the evidence of fraud must be so clear, unequivocal, and convincing as to necessarily lead to the conclusion that fraud had intervened.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*]</p>

<p>1. Patents (§ 30*) — Invention—What Constitutes.</p> <p>When a desired result is sought by those working in the art and skilled therein, hut not obtained for lack of efficient means, which such persons are unable to devise, that another, by some seemingly simple change or adaptation of an old means or element of a combination, accomplishes the desired result or a better one, and his device proves commercially successful and largely displaces all others; it constitutes patentable invention. - *</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 34; Dec. Dig. I 30.*1</p> <p>2. Patents (§ 328*) — Validity and Inebingement— Incandescent Lamp Sockets.</p> <p>Tiie Weber patents, No. 743,206 and No. 916,812, each for an improvement in incandescent electric lamp sockets, construed, and held not anticipated, valid, and infringed.</p>

<p>In Equity. Suit by- Thomas Conley against George P. Thomas, trading as the Standard Bridge Tool Company. On final hearing.</p>

<p>In Equity. vSuit by the Patents Selling & Exporting Company, Aktieselskab, against Elias B. Dunn, doing business under the name of Dunn’s Improved Vacuum Systems, for infringement of letters patent No. 854,670, for an apparatus for extraction of dust from carpets and other articles, granted to F. V. Schiodt on May 21, 1907. On final hearing.</p>

<p>In Equity. Suit by the Terry Steam Turbine Company against the B. F. Sturtevant Compatiy. On motion by defendant for leave to file supplemental answdr.</p>

<p>1. Monopolies (§ 31*) — Sherman xAntt-Trust xAct — Violation—Indictment —“Engace in Conspiracy.”</p> <p>Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, i). 3200), provides that every contract, combination, or conspiracy in restraint of trade or commerce among the several states is illegal, and that every person who shall make any such contract or engage in any such combination or conspiracy shall he guilty of a misdemeanor. Section 2 declares that every person who shall monopolize,, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce within the several states, or with foreign nations, shall be guilty of a misdemeanor. Held, that the phrase “engage in such combination or conspiracy,” in section 1, was used in a broad sense, and included, not only such persons as initiated such a conspiracy, but also those who after-wards engage therein; and hence an indictment, charging that defendants were engaged in a conspiracy among themselves to control and monopolize interstate commerce in the manufacture and sale of coaster brakes among the several states, followed by an allegation of overt acts tending lo effectuate the conspiracy, was not defective for failure to-charge directly the formation and existence of the conspiracy, the words-“engage in,” as so used, signifying to embark in, take part in, or enlist in, meaning substantially the same thing as to conspire.</p> <p>I'Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>2. Monopolies (§ 31*) — Combination in Restraint op Trade — Indictment —Ijawpul Purpose.</p> <p>Where an indictment for violation of Sherman Anti-Trust Act July 2. 1890, c. 047, M 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p, 3200), charged that defendants were engaged in a combination and conspiracy to monopolize and control the trade in and manufacture and sale of coaster brakes in the United States, and that for this purpose defendants, in combination with an association, had committed certain specified acts tending to restrain competition among themselves, including the assignment of pretended patent license 3'ights, tending toward the establishment of uniform prices for the products, and an agreement between them for noncompetitive discounts to jobbers, dealers, etc., all of which were alleged to have been done with an unlawful intent to control the market, the indictment was not defective, on the theory that the acts charged were in perfect harmony with a lawful purpose.</p> <p>[Ed. Note. — For other cases, see Monopolies, Gent. Dig. § 20; Dec. Dig. § 33.*]</p> <p>3. Monopoiues (§ 31*) — Sherman Anti-Trust Act — Combination in Restraint of Trade — Patent Rights — -Indictment.</p> <p>In a prosecution of manufacturers of coaster brakes for combination in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 3, 2, 20 Stat. 209 (U. S. Comp. St. 390L, p. 3200), certain counts of the indictment alleged that defendant, the N. 1). Company, was the owner of a basic patent for making such brakes, and issued licenses to manufacture thereunder, charging, however, that the defendant corporations were separately the owners of pnients and patent rights for improvements in the coaster brake and other bicycle and motor cycle accessories, but that the defendants, to effectuate their plan to restrain trade, feigned the making of a license agreement ostensibly covering a part, but not. the whole, of the coaster brake manufactured by the N. 1). Company, charging that the pretended license agreements, which were to be entered into simultaneously by the N. D. Company as ostensible licensor with the remaining corporation defendants as ostensible separate licensees, were to be in all respects uniform in character, were to contain schedules of uniform and noncompetitive prices, restrictions upon all sales, etc. Held, that such averments negatived an inference that the licenses were for a basic patent, but that the conditions were imposed on competitors in good faith and without an intention to violate the statute, since the fact that patents are issued to various persons or corporations, does not entitle them to combine to restrain the manufacture or sale of the patented article or to enhance prices in restriction of commerce.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>4.Statutes (§ 47*) — Validity-—Definiteness—Sherman Anti-Teust Act.</p> <p>Sherman Anti-Trust Act July 2, 189Ó, c. 647, §§ 1, 2, 26 Stat. 209 (TJ. S. Comp. St. 1901, p. 3200), providing that every contract, combination, or conspiracy in restraint of trade or commerce among the several states, or with foreign nations, is illegal, and that every person who shall make such contract or engage in such combination or conspiracy shall be guilty of a misdemeanor, and that every person or persons who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or comr merce among the several states, shall be guilty of a misdemeanor, is not unconstitutional because of indefiniteness.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.*]</p> <p>5. Indictment and Information (§ 87*) — Dime of Offense — Limitations.</p> <p>Where an indictment, charging a conspiracy in restraint of interstate trade or commerce in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), alleged -that defendants continuously, during the period from July 1, 1907, to January 8, 1912, committed the unlawful acts specified, it sufficiently alleged that an offense was committed within the three-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 244-255; Dee. Dig. § 87.*]</p> <p>6. Indictment and Information (§ 99*) — Counts—Incorporation of Previous Counts — Deference.</p> <p>It is proper to incorporate in a'subsequent count by reference facts alleged in a previous one.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 270, 270%; Dee. Dig. § 99.*]</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of Halstead & Go., bankrupt. On petition to review a referee’s order allowing part and disallowing part of the claim of James E. Ware & Sons.

<p>Pood (§ 7*) — Meat Products — Sale—Deceptive Name — Secretary of Agriculture — Regulations—Authority—“Sausage.”</p> <p>Act Cong. June 30, 1906, c. 3913, 34 Stat. 674, declares that no meat or meat product shall be sold or offered for sale by any person in interstate or foreign commerce under a false or, deceptive name, and' that the Secretary of Agriculture from time to time shall make such rules and regulations as are necessary for the efficient execution of the act. Held, that the term “sausage” being defined by lexicographers as an article of food composed of meat, salt, and spices, the Secretary of Agriculture had authority to prescribe that meat products sold under the name of “sausage” should not contain cereal in excess of 2 per cent., nor water or ice in excess of 3 per cent., and if water and cereal are added the substance should be labeled “Sausage, water, and cereal.”</p> <p>[Ed. Note.---For other cases, see Food, Cent. Dig. § 1; Dec. Dig. § 7.*]</p>

A. Iv. Herrigg was indicted for making alleged false entries in a report of a national banking association to the Comptroller.

<p>In Bankruptcy. In the matter of Joseph A. Hurley, alleged bankrupt.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of J. E: Beard. On petition to review an order overruling objections of a trustee to priority of a crop mortgage held by J. O. and N. B. Che-nault.

In Bankruptcy. In the matter of bankruptcy proceedings of E. A. Walker & Co., bankrupts. On petition of creditors to review a referee’s order disallowing a right to vote on election of trustee.

<p>At Law. Action by Dolin Collins against the Twin Falls North Side Land & Water Company. On motion to remand.</p>

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and others, with two other causes.

In Bankruptcy. In the matter of Max Diamond, bankrupt. On objections to the bankrupt’s discharge. Objections are made to the discharge of the bankrupt upon two specifications: First, that he concealed, secondly, that he made a false oath in his schedules respecting the ownership of, property. The facts, in brief, are: The bankrupt came to Milwaukee in September, 1910. Prior thereto lie had been in business at Pontiac, Ill., and Tama, Iowa.

In Bankruptcy. In the matter of bankruptcy proceedings of Christian J. Hassler. Application for order staying execution sale of the bankrupt’s homestead on judgments recovered against him for repairs.

<p>In Equity. Suit by the Missouri, Kansas & Texas Railway Company against Leo Meyer, State Auditor of the State of Oklahoma. On demurrer to bill and exceptions to answer.</p>

<p>In Equity. Suit by Robert H. Ingersoll & Bro. against Henry Mc-Coll. On final hearing.</p>

<p>Action by the United States against the Military Construction Company. Judgment for plaintiff.</p>

Actions by the United States against the Acorn Roofing Company, against the Broadway Bowling Academy, against J. Dessner & Co., against the Fein-Ball Realty & Construction Company, and against M. A. Finkel & Co. to recover penalties for defendants’ failure to file returns under the Corporation Tax Act (Act Cong. Aug. 4, 1909, c. 6, § 38, 36 Stat. 112). A verdict having been returned in favor of the government for $1,000 in each case, defendants moved to set the same aside.

<p>Appeal from the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge.</p> <p>Suit in equity by John W. Peale against the Marian Coal Company. From a decree for complainant (190 Fed. 376), defendant appeals.</p>

Appeals from the Circuit Court of the United States for the District of Utah; John A. Marshall, Judge. Bill by the Silver King Consolidated Mining Company of Utah against the Silver King Coalition Mines Company of Nevada. Decree for complainant, and both parties appeal.

Burns, Judge. Action by R. C. Conn against Joe S. Rice and others, as receivers, etc. Judgment for plaintiff for less than relief demanded, and he appeals.

Pritchard, James E. Boyd, and Henry G. Connor, Judges. .Action at law by A. Louisa M. Gilbert and others, heirs at law of L. W. Gilbert, against W. R. Hopkins and others. Judgment for defendants, and plaintiffs bring error.

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Asheville; James E. Boyd, Judge.</p> <p>Action at law by A. Louisa M. Gilbert and Ida Isabella K. Gilbert, heirs at law of Lyman W. Gilbert, deceased, Mary H. P. Lowe and her husband, Edward Lowe, William E. Bixby, Josiah P. Bixby, Maria S. Hopkins, Frederick G. Sawtelle, Franklin J. Sawtelle, and William E. Sawtelle, heirs at law of W. H. Peet, deceased, against W. R. Hopkins. Judgment for defendant, and plaintiffs bring error.</p>

Young, Judge. Action at law by Thomas C. Razear and Jesse T. Razear, executors of the will of Alice C. Razear, deceased, against the American Steel Foundries. Judgment for plaintiffs, and defendant brings error.

<p>1. Trade-Marks and Trade-Names (§ 68*) — Unlawful Competition — Infringement — Prior Use.</p> <p>Infringement of a trade-mark is inseparably involved in a suit for unlawful competition; the right to protection against the latter depending on first and exclusive use.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. S 70; Dec. Dig. § 68.*]</p> <p>2. Trade-Marks and Trade-Names (§§ 53. 68*) — “Infringement”—“Unfair Competition” — What Constitutes.</p> <p>“Infringement” of a trade-mark is the wrongful copying of a- mark and sending forth thereunder an article well calculated to be taken for one already established in the trade, being regarded in the law as analogous-to a trespass; while “unfair competition” consists in placing on the established trade of another an article or commodity dressed so as to be very like the other, and palming off the imitation as the original.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 61, 79; Dee. Dig. §§ 53, 68.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3590-3594; vol. 8, p. 7174.]</p> <p>3. Trade-Marks and Trade-Names (§ 81*) — Protection—Requisites.</p> <p>Right to protection of a trade-mark primarily depends on first invention or prior adoption and original exclusive use; this entitling the appropriator to common-law protection against similar and deceptive dressing coupled with fraudulent misrepresentation.</p> <p>[Ed. Note.- — For other cases, see Trade-Marks and Trade-Names, Cent.. Dig. § 91; Dec. Dig. § 81.*]</p> <p>4. Trade-Marks and Trade-Names (§ 81*) — Unfair Competition.</p> <p>To invoke the jurisdiction of equity to prevent infringement and unfair competition in the use of a trade-mark by another, it is incumbent upon complainant to show that he has a property right in the mark or thing which indicates the ownership or origin of the article, and that, its use has been fraudulently invaded by the defendant, which property right is acquired chiefly by prior adoption and exclusive use of the mark or symbol relied on to distinguish complainant’s proprietorship.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent,. Dig. | 91; Dec. Dig. § 81.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>5. Trade-Marks and Trade-Names (§ 93*) — Unlawful Competition.</p> <p>In a suit for infringement of complainant’s “Tea Rose” trade-mark on flour and for unlawful competition, evidence held to require a finding that complainant was not the originator or first appropriator of such name and mark as applied to flour, but that both defendant and another milling concern had used the mark and name in that connection long prior to complainant’s adoption thereof, and that it was therefore not entitled to relief.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.*]</p> <p>6. Tbade-Marks A!fD Tbade-Names (§ 32*) — Abandonment—Evidence.</p> <p>Abandonment o i a trade-mark will not be found, unless supported by proof of a clear intention of the owner to entirely discontinue its use.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 36; Dec. Dig. § 32.*]</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 at law by the United Press Associations against the Star-Chronicle Publishing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts (§ 260*) — Jurisdiction op Federal Courts — Probate and Administration Proceedings.</p> <p>A federal court is without jurisdiction of a suit to determine matters purely of administration with respect to the estate of a decedent, such as to revise the allowance of claims by the probate court, read-jucjicate the necessity and propriety of orders authorizing the sale of real estate for the payment of debts made by such coui;t, or to revise the .accounting of executors.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 792; Dee. Dig. § 260.*</p> <p>Probate jurisdiction of federal courts, see note to Quarries Co. v. Thomlinson, 36 C. C. A. 276.)</p> <p>2. Executors and Administrators (§ 513*) — Accounting—Conclusiveness of Adjudication.</p> <p>A decree of a probate court, approving and settling the accounts of executors and -granting their discharge, is conclusive as against collateral attack, unless impeached for fraud.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2267-2291; Dec. Dig. § 513.*]</p> <p>3. Equity (§ 71*) — Laches—Inexcusable Delay.</p> <p>A petition by executors to a probate court for an order to sell real estate to pay debts is an adversary proceeding, and a. legatee of the testator, who made no objection thereto, and took no steps to question any of the proceedings until six years after the last of such orders was made, when he commenced a suit, which was allowed to lie dormant for six years more, was chargeable with such laches as will debar him from the right to equitable relief.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 201-211; Dec. Dig. § 7.1.*]</p> <p>4. Equity (S 67*) — Laches—Failure to Prosecute Suit.</p> <p>The mere institution of a suit does not relieve a person of the charge of laches, if he fails in its diligent prosecution.</p> <p>|Eel. Note. — For other cases, see Equity, Cent. Dig. §§ 101-196; Dec. Dig. § 67.*]</p> <p>5. Executors and Administrators (§ 118*) — Ditty to Sell Personal Property — CoxsTitrcuos op Statute. ■ .</p> <p>Pudor Gen. St. Kan. 1900, § 9504, which requires executors and administrators to sell the personal property of the decedent within three months, except; such as is specifically bequeathed, which shall not be sold until it is found that the remaining personalty is insufficient to pay the debts, executors cannot he charged with personal liability by a residuary legatee because of their failure to sell within such time bank stock which subsequently became worthless, where the will of the testator requested that it be not sold, and disposed of the dividends thereon until the expiration of the bank’s charter.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. 472-482; Dec. Dig. § 118.*]</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin P. Keller, Judge.</p> <p>Action at law by John M. Wright against the Warren Bros. Company. Judgment for plaintiff, and both parties bring error.</p>

Appeal fronr the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge. Petition by the United States against Jacob Ivolodner for cancellation of certificate of naturalization. Petition dismissed, and the United States appeals.

<p>Judgment (§ 828*) — Res Judicata — Grounds or Liability.</p> <p>Plaintiff, while employed by defendant, was injured by the breaking of a wagon, and brought suit in the state court to recover damages, alleging a cause of action under the Massachusetts Employer’s Liability Act (Rev. Laws Mass. c. 106), charging a defect in defendant’s ways and works, in that the wagon was rickety, unsafe, overloaded, and unsuitable. Judgment having been rendered for defendant in that case, plaintiff sued in the federal courts, stating a canse of action for the same injuries for violation of defendant’s common-law duty to furnish plaintiff with a reasonably safe place to work. Tfeld that, since both of such alleged grounds of liability might have been pleaded and relied on by plaintiff in the state court, the Massachusetts judgment for defendant was res judicata, and a bar to the proceeding in the federal court.</p> <p>[Ed. Note.- — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dec. Dig'. § 828.*</p> <p>Conclusiveness of judgment as between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 4T8; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 18 C. C. A. 215.1</p>

Chatfield, Judge. Proceedings in admiralty by 1’. Sanford Ross, Incorporated, for limitation of liability. From a decree granting such limitation, Ida Wend-elin, administratrix of Frithof Wendelin, deceased, appeals. The claimant’s intestate was employed upon the pile driver belonging to tile petitioner, which is a corporation, and while so employed received injuries from which he died.

These causes come here upon appeals from decrees of the District Court, Southern District of New York, which held the Hamburg-American Dine solely liable for damages sustained by three barges, which lay at the end of the Hamburg pier No. 1, Hoboken, N. J., by collision with the North German Lloyd steamship Rhein. The pier in question was the upper one of three occupied by the Hamburg Line.

<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 the New York & Porto Rico Steamship Company against the 2Etna Insurance Company. Decree for libelant, and respondent appeals.</p>

<p>ADMiBAi/rr (§ 103*) — Appeal—Decisions Re viewable.</p> <p>An order, made in a proceeding for limitation of liability, enjoining the bringing of actions by damage claimants, is a final order, and reviewable o„n appeal by a claimant, where it appears that the question of petitioner’s right to a limitation of liability cannot be determined before such claimant’s canse of action will be barred by limitation.</p> <p>[Ed. Note. — For other eases, see Admiralty, Cent. Dig. §§ 712-719; Dee. Dig. § 103.*]</p>

Hough, Judge. In the matter of the petition of the Oceanic Steam Navigation Company, as owner of the steamship Titanic, for limitation of liability. From an order denying a motion to modify an order, entered in limitation of liability proceedings, restraining the bringing and prosecution of suits, the Long Island Loan & Trust Company, as executor, appeals.

Connor, Judge. Suit in admiralty by Howard S. Roberts, the York Foundry & Machine Company, J.' K. Petty & Co. and the Earle Gear & Machine Company against the Steam Dredge A, Edmund H. Mitchell, trading-as Mitchell & Co., claimant, and others. From the decree, certain of the libelants appeal.

<p>Collision' (§ 95*) — Steam Vessels — Violation oe Bules.</p> <p>A finding affirmed that a transfer tug, with a car float on each side, proceeding from Greenville channel, N. J., across Upper New York Bay to a point on East River, was solely in fault and liable for a collision between one of her tows and an outbound steamship on the west side of the ship channel, on the ground that she turned up the wrong side of the channel with the steamship in plain view, and also answered the steam-eliip’s proper passing signal with a cross-signal and attempted to cress her bows.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 93.*]</p>

Chatfield, Judge. Proceeding in admiralty by the Erie Railroad Company, as owner of the steam ferryboat Passaic, for limitation of liability. From the decree Frederick Zahn, administrator of the estate of one Wilson, deceased, claimant, appeals.

<p>Collision (§ 95*) — Meeting Tugs with Tows — Change of Course.</p> <p>Tlie tug Wyoming, with three barges in tow abreast, was proceeding up East River at about 4 o’clock in the morning, while the tug Packer was coming down further to the westward, with three barges in tow tandem. By signal agreement a transfer tug with a car float crossed toward the Brooklyn shore ahead of the Wyoming, after which passing signals were exchanged between the latter and the Packer; but the Wyoming had in the meantime changed her course toward the Manhattan shore, and was unable successfully to execute her maneuver to starboard, and her port tow came into collision with one of the tows of the Packer. Held, it .appearing that it was not necessary for the Wyoming to go to the westward to avoid the transfer tug, .that she was solely in fault for changing her course when the approaching Packer should have been seen.</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>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, adjudging the respondent in' fault for damage to the barge Morna, lying at Pier 36, East River, caused by swells from a passing steamer. The barge was loaded with 330 tons of scrap iron, and the libel charges that the steamers Richard Peck and Providence, both owned by respondent, came down the river, about 6:30 a. m., December 5, 1909, at so high a rate of speed as to raise high swells and cause the Morna to surge and roll. The testimony showed that three steamers, the Georgia, the Peck, and the Providence, came down one after the other, at intervals of about a mile. On the trial two witnesses for libelant undertook to identify the Peck as the vessel which caused the trouble, and the 'charges against the Providence were abandoned.</p>

<p>Shipping (§ 16*) — Regulation of Steam Vessels — Number of Passengebs— Violation of Statute.</p> <p>A libel against a steam vessel by the United States to recover the penalty prescribed by Rev. St. § 4499 (XT. S. Comp. St. 1903, p. 3000), for carrying a greater number of passengers than allowed by her certifícate, in violation of sections 4405, 4406 (U. S. Comp. St. 1901, p. 3046), held not sustained by the evidence.</p> <p>ritd. Note. — For other cases, see Shipping, Cent. Dig. §§ 30-44; Dec. Dig. § 16.*]</p>

<p>Raimoads (| 350*) — Tn.iury to Persons at Crossing — Action—Evidence.</p> <p>Evidence in an action to recover for the death oí a person hilled at a railroad crossing held insufficient to warrant the submission to the jury of the question of the negligence of the company in failing to give special protection to the crossing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. S 330.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>Suit in equity by Susan S. C. Higgins against Harvey E. Eaton, as executor of the will of Elizabeth S. Eaton, deceased. Decree for complainant on defendant’s appeal was reversed. 202 Fed. 75. On petition for rehearing.</p>

<p>1. Patents (§ 327*) — Suits foe Infringement — Stabe Decisis.</p> <p>Where a patent has been the subject of extensive and hard-fought litigation, and has been uniformly sustained, another court should follow such decisions on substantially the same evidence, unless clearly of a different opinion.</p> <p>[Ed. Note. — -For other eases, see Patents, Cent. Dig. §§ 620-625; Dec. Dig. § 327.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Filtering- Process foe Beer. .</p> <p>The Stockheim patent, No. 378,379, for a filtering process for beer, claims 1, 2, and 4, held valid, and a verdict and judgment finding infringement sustained.</p>

This cause comes here upon appeal from a decree of the District Court. Northern District of New York, holding two patents to be valid and infringed. The first patent, No. 744,773, was issued November 24, 1903, to David L. Lindquist, for an electric magnet; the claims involved are 1, 2, 3, and 4. The second or junior patent, No. 764,608, was issued to Lindquist July 12, 1904, for an electromagnet; the claims involved are 1, 2, and 3.

<p>This cause comes here upon appeal from a decree of the District Court, Western District of New York, dismissing a bill in equity. The suit is for infringement of letters patent 570,224, issued October 27, 1896, for machine for making grids for secondary battery plates, to Albert F. Madden, assignor to complainant. The specification states that the mode of operation of the machine is such that portions of a lead blank held against edgewise expansion are gradually displaced by repeatedly imbedding devices (rotary punches or disks) into it, thereby increasing its density and. squeezing up face-hardened ribs above the original surface of the plate. The claim relied on is:</p> <p>"2. A machine for making secondary battery grids, comprising the combination of a blank holder, cutters on each side of the holder, means for recipro-catin,a one of sairl parts in respect to the other, devices for rotating the cul-tors, and mechanism for feeding the sets of cutlers towards each other substantially as described.”</p> <p>This patent was applied for January 11, 1896. On November 19, 1895, Madden had applied for a patent for a “battery grid and machine for producing same,” in which a suitable blank was subjected to the spinning action of rollers provided with cutting disks. Upon this application, patent issued (No. 572,363) 'December 1, 1896, to Albert F, Madden, assignor to Van Winkle and Chamberlain. The assignment was filed with the application.</p> <p>The opinion of the District Court will be found in 197 Fed. 745. Reference may also be had to a decision of this court in Gould Co. v. Electric Storage Co., 192 Fed. 28, 112 C. C. A. 416, where testimony as to the various assignments and the title to the two patents was considered.</p>

This canse comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered against plaintiff in error, who was defendant below, upon a verdict for six cents directed by the court. The action was brought to recover $60.000 damages for infringement of United States patent No. 728,982, granted May 26, 1903, to plaintiff, for a printing machine.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill of complaint.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a bill for infringement of patent. The patent is No. 603,406, issued May 3, 1898, to Jackson McClellan for a bookbinding machine. It deals with that part of the process which covers the sides of a book, stitched and assembled, with glue and then places the cover of the book upon the sides after they are glued.

Suit in equity by the Johns-Pratt Company against the E. H. Freeman Electric Company for patent infringement. Decree for complainant (201 Fed. 356), and defendant appeals.

<p>1. TRUSTS (§ 103*) — Constructive Trust — Attorney and Client — Conveyance.</p> <p>Where attorneys having a claim for fees against complainant settled an attachment on certain other land of the defendant in the litigation by receiving a conveyance to themselves of a half interest in the land for the sole purpose of securing their fees, which had subsequently been paid, they would be decreed to hold their interest in trust for complainant, under the rule that equity, looking to the substance rather than the form of the transaction, will effectuate the intention of the parties by' declaring the nominal iiarties to hold in trust for the person entitled to the beneficial interest.</p> <p>[Ed. Note.- — For other cases, see Trusts, Cent. Dig. § 184; Dec. Dig. § 103*J</p> <p>2. Compromise and Settlement (§ 12*) — Effect—Payment of Judgment.</p> <p>Where: after complainant had obtained a personal judgment against a corporation on certain purchase-money notes secured by a mortgage aft-erwards foreclosed, other real property not covered by the mortgage was attached, and pending the litigation a settlement was arrived at to obtain a release of the attachment, which settlement agreement referred exclusively to the attached property and contained no stipulation that the principal judgment against the corporation should also be satisfied, such stipulation and a transfer thereunder of one-half of the attached property to complainant’s attorneys for the benefit of themselves and of complainant did not satisfy the original judgment.</p> <p>LEd. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 54-74; Dee. Dig. § 12.*]</p> <p>8. Mortgages (§ 417*) — Assignment—Transfer of Debt — Necessity.</p> <p>Assignment of a mortgage without a transfer of the debt is a nullity, and vests in the assignee no right to foreclose.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1227-1236; Dec. Dig. § 417.*]</p> <p>4. Mortgages (§ 270*) — Assignment—Validity—Transfer of Debt.</p> <p>Complainant, having secured a judgment against the corporation on certain purchase-money notes secured by a mortgage, transferred the mortgage, without a formal transfer of the debt, to his attorneys in 1893 or 1894 to secure tlieir fees. Other property having been attached, the attorneys settled the attachment proceedings by taking a conveyance of a half interest in the attached property in their own names, but intending the same to be merely as security. In 1891 complainant made a general assignment for the benefit of Ms creditors, who sold complainant’s interest to A. in 1900, who thereafter retransferred it to complainant in May, 1911. Held Unit, in the absence of proof that the transfer of the mortgage to the attorneys was subsequent to complainant’s general assignment, there was no showing of an outstanding title at the time the mortgage was foreclosed by tbe assignees, and there being no necessity for a written transfer of the debt secured by the mortgage it would be presumed that the attorneys had full title to the debt and mortgage at the time of the foreclosure, and that the same was therefore valid.</p> <p>[Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 60S, 009; Dec. Dig. § 270.*]</p>

In Admiralty. Petition by the Oceanic Steam Navigation Company, Limited, as owner of the steamship Titanic, for limitation of liability. On motions to modify injunction. A petition for limitation having been filed, and an ex parte (though temporary) appraisement having been had, the usual monition and injunction order went forth.

<p>Shipping (§ 209*) — Proceedings for Limitation of Liability — Procedure.</p> <p>In a proceeding by the British owner of a British vessel lost at sea for a limitation of liability as against claims sued in the United States, the right of a claimant to invoke the English law, by which the measure of the limitation is based on the tonnage of the vessel, will not be determined on a motion to direct the commissioner to make findings as to matters wholly irrelevant under the law of the United States, but must be directly presented by proper pleadings.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 646-655, 659, 661, 662; Dec. Dig. § 209.*]</p>

'In Equity. Suit by John F. Cubbins against the Mississippi River Commission and others. On demurrer to bill.

In Bankruptcy. In the matter of bankruptcy proceedings of J. M. Hawks. On petition to review a referee’s decision disallowing the claim of the Allen-West Commission Company. The Allen-West Commission Company, referred to hereinafter as the Commission Company, presented its claim against the bankrupt estate, amounting to ¡5254,490.40, after allowing all credits which it claims the bankrupt is entitled to.

Petition by William W. Dickey for a writ of habeas corpus to review the validity of his imprisonment under a judgment of a naval court-martial on a charge of scandalous conduct tending to the destruction of good morals.

In Bankruptcy. In the matter of the bankruptcy proceedings of J: & M. Schwartz. On petition of the trusted that one Harry Colton, a resident of New Jersey, be declared the partner of the bankrupt firm and adjudged a bankrupt. On objections by Colton to the proceedings and to the jurisdiction.

In Bankruptcy. Action by Edward Butcher, Jr., as trustee in bankruptcy of one Morris Werksman, against Abel Werksman and others, to set aside a second mortgage on certain property of the bankrupt for fraud.

In Bankruptcy. In the matter of the Automatic Musical Cpm-pany. On return of an order to show cause, and on certificate of a referee in bankruptcy, acting as special master, pursuant to an order to punish a witness, Edwin Link, for contempt in refusing to answer questions during his examination, which he was directed by the special master to answer, after objections taken thereto had been overruled.

<p>1. TAXATION (§ 852*) — ENTRY OF LAND-DUTY TO OWNER-EFFECT OF FAILURE — FORFEITURE'—-VOID 8aIJS.</p> <p>Cinder Const. W. Va. art. 13, § 6,† making it the duty of every landowner to have his land entered on the land books of the county and pay taxes thereon, and providing that a failure to have the same so entered and to pay taxes for five successive years shall forfeit the land to the state, such failure works an absolute forfeiture of all the owner’s right, title, and interest in and to the land, so that he has no standing to maintain an action to recover the same from a purchaser at a void judicial sale, who has had the land entered in his own name and paid the taxes.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1668, 1669; Dec. Dig. § 852.*]</p> <p>2. Taxation (§ 848*) — Land—Duty to Enter — Nonresidents.</p> <p>The fact that land in West Virginia is owned by nonresident heirs does not excuse them for failing to see that the land is entered for taxes on the land books of the county in which it is located and the taxes paid by them thereon, under Const. W. Va. art 13, § 6, providing that an owner’s failure to so enter land and pay the taxes for five successive years shall constitute an absolute forfeiture thereof to the state.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1664; Dec. Dig. § 848.*]</p> <p>3. Taxation (§ 852*) — Forfeiture of Land — Void Sale — Right to Sue— Laches.</p> <p>Proceedings having been instituted in 1892 for the sale of a tract of more than 1,000 acres in West Virginia, which belonged to the heirs of a nonresident owner, to sell the same, the land was duly sold and the sale confirmed, after which the purchaser entered the land for taxes in his name and paid taxes thereon continuously thereafter. Const. W. Va. art. 13, § 6, provides that, where the owner of a tract consisting of more than 1,000 acres for five successive years fails to enter his land for taxes in the county where it is located and to pay taxes thereon, he shall forfeit the land to the state. Meld, that the heirs, having failed to enter the land for taxes in their own name subsequent to the judicial sale and having paid no taxes thereon, were barred by laches to recover the land from the purchaser by suit in equity instituted in October, 1910, to cancel such sale for invalidity.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. §§' 1668, 1669; Dec. Dig. § 852.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings against Louis Farkas. Proceedings to punish the bankrupt and certain witnesses, for contempt in refusing to appear at an adjourned date for examination before the referee.

<p>Master and Servant (§§ 286, 288*) — Injuries to Servant — Negligence— Assumption op Risk — Question por Jury.</p> <p>In an action for injuries to a servant, by being caught on the end of a revolving shaft hung from the ceiling of a room, as he was cleaning the ceiling, evidence held to require submission of the question of defendant’s negligence in operating the shaft without warning while plaintiff was so engaged, and the question of plaintiff’s assumed risk, to the jury.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1016, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-10S8; Dee. Dig. §§ 286, 2SS.*]</p>

At Law. Action by Samuel ,R. Rosoff and others against the Gilbert Transportation Company to recover unpaid stock subscriptions. Cases suspended pending assessment of the amount necessary to pay debts and expenses.

In the matter of the application of Frederick Perkins to amend his application to become a citizen and the order thereon admitting him to be a citizen of the United States, by changing the name of Frederick Persky to Frederick Perkins.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Boris Fogelman. On petition to commit the bankrupt and one Daniel Svi-gals for contempt.</p>

In Knot to the District Court of the United States for the Western District of Pennsylvania; Joseph Buffington, Judge. Action at law by John Cheko against the Pittsburgh-Buffalo Company. From an order denying defendant’s motion for judgment (199 Fed. o25), it brings error.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Bill by W. E. Evans against S. G. Victor, United States Marshal, for the Eastern District of Oklahoma, and Henry A. Earsen, Special Officer of the Indian Service. Judgment (199 Fed. 504) for defendants, and complainant appeals.</p>

T. Newman, Judge. Claim of Frank G. Lumpkin against the bankrupt estate of the Walden Bros. Clothing Company. P'rom an order (199 Fed. 315) sustaining objections of Frank D. Foley, as trustee, to the claim as secured on the ground that the mortgage securing the same had been made to hinder, delay, and defraud creditors of the bankrupt, claimant appeals.

T. Newman, Judge. Claim of Cliff R. Johnson against the estate in bankruptcy of one Thweatt. From an order (199 Fed. 319) affirming a referee’s order disallowing the claim as preferred on objections filed by R. F. Dis-mukes, trustee, plaintiff appeals.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia; Benjamin F. Keller, Judge.</p> <p>Suit by J. B. Harrison against J. S. Gillespie and others. Decree for defendants, and plaintiff appeals.</p>

<p>In Error to the District Court oí the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.</p> <p>Action by the United States of America, for the use of Joseph W. Pennock and others, against the Baker Contract Company and sureties on the bond, pursuant to a contract for the construction of public works. Judgment for plaintiffs, and defendants bring error.</p> <p>Tiiis is an action of debt, instituted in the United States District Court for the Northern District of West Virginia by the United States of America, in behalf of and for the use of Joseph AV. Pennock, against the Baker Con-traer Company, a corporation, Philip At. Pfiel. and Geo. E. Uoreh. The action is based upon a contractor’s bond given by the Baker Contract Company. with the said Pfiel and Loreh as sureties, in the penal sum of 875,000, payable to the United States of America. In said bond it appears that the Baker Contract Company had entered into a contract of May 18, .1905, for building dam No. IS on the Ohio river, which contained the usual conditions as to the carrying out of said contract, and was also conditioned for ..the prompt and full payment; to all persons supplying the said Baker Contract Company with labor or materials in the prosecution of the work provided for in said contract. The said bond was given under the terms of the act of Congress passed February 24, 1903 (33 Stat. Sil, c. 778), amending the act of August 33, 1891 (28 Slat. 278, e. 280 [U. S. Comp. St. 1901, p. 2523]), providing for bond of contractors for public buildings or works, and defining the rights of persons furnishing labor and material, and the remedies on bonds and proceedings in actions thereon, as found in the Supplement of 3905, U. S. Compiled Statutes, page 493. The declaration alleges the execution of the bond, that the Baker Contract Company entered upon the building of the dam mentioned in said contract, and that the relator, Joseph W. Pennock, sold and delivered to the said Baker Contract Company certain lumber for use in the prosecution of said work and filed an itemized statement for the same. The declaration contains the usual allegations common in suits upon bond with conditions, and alleges the full performance of the said contract by the receiver of the Baker Contract Company and the final settlement with the United States February 11, 1910, and that sis months had elapsed since the completion and final settlement of said contract, and that no suit had been brought by the United States within said six months against the said Baker Contract Company and the sureties on said bond. These allegations are made pursuant to the requirements of the act of Congress of February 24, 1905, as giving the right of action to the plaintiff as a person who had furnished material for the prosecution of said work. The action was brought in the Northern district of West Virginia, because the act provides that such suit shall be brought in the district in which the contract was to be performed and executed, and not elsewhere. The contract was to be performed in the district in which the suit was brought. The process, as appears by the returns of the officers, was served in the Western district of Pennsylvania.</p> <p>On November 7, 1910, the defendant Joseph M. Pfiel filed his demurrer to the declaration, and at the same time filed his pleas Nos. 1 and 2, being the.plea of nil debet and plea of performance. From time to time other firms and persons who had furnished material or rendered services to the Baker Contract Company for the prosecution of such work were permitted to file their petitions and present their claims in the action, under the terms ,of the act of Congress of February 24, 1905, which provides that only one action shall be brought, and any creditor may file his claim in said action and be made a party thereto. On the 13th day of January, 1911, the defendant George E. Torch appeared by attorney, and appeared specially for the purpose of moving to quash the summons, for the reason, as claimed by the defendant, that said summons was illegally and irregularly issued and directed to the marshal of the Western district of Pennsylvania, and illegally served and returned by said marshal. The motion, being heard,, was overruled. Torch then demurred to the declaration, and the demurrer of Torch and the dqmurrers previously entered by Pfiel, being argued, were overruled.</p> <p>One of the objections raised by the demurrer was that the Colonial Trust Company, receiver of Baker Contract Company, had been made a defendant io the action. On the overruling of the deifiurrers, counsel appeared for the Colonial Trust Company, and moved to dismiss the action as to it, claiming misjoinder of parties defendant. The court sustained this motion, and dismissed the Colonial Trust Company from further appearance in the cause.</p> <p>On the 14th day of June, 1911, an order was entered referring the case to Abijah Hayes as master commissioner, to state an account between the relator and the defendants, and between the intervening petitioners and the defendants. This order was entered in the action under a special provision relating to actions at law, found in Code W. Va. 1906, c. 129, § 10: “At law in any case in which it may be deemed necessary, the court may direct any such commissioner or other competent person, either before or at the .time of trial, to take and state an account between the parties, which account, when thus stated, shall be deemed prima facie correct, and may be giveju in evidence to the court or jury trying the case, and the commissioner or other person shall be allowed for such services the same fees that would be allowed a commissioner for similar services, to be taxed in the bill of costs.”</p> <p>After entering said order of the 14th of June, 1911, and being at the same term of court at which said order of reference was entered, and before the execution of said order of reference, the Parkersburg & Marietta 'Sand Company filed its petition asking the permission to intervene and file its claim in the said action, and the order allowing it to do so was entered on- said 21st day of June, 1911.</p> <p>There was the taking of evidence on various claims by the said Abijah Hayes, master commissioner, and on the 5th day of January, 1912, he filed his report. It is unnecessary for us to refer to the action of the commissioner as to other claims, but as to the claim of Parkersburg & Marietta Sand Company the said commissioner found against the claim of the said company and refused to allow said claim.</p> <p>On the 10th day of January, 1912, the exception of the Parkersburg & Marietta Sand Company to the master’s report was filed. Upon a hearing of then! the court sustained said exceptions as to that portion of said report; which found against the right of Parkersburg & Marietta Sand Company to file its petition and prove its claim in said action, and permission was given to the Parkersburg & .Marietta Sand Company to offer the necessary proof and evidence to sustain its claim set up in its petition.</p> <p>On the 20th day of January. 1012. there was a trial of the action and of the several claims which had been tiled in the action, under the said act of Congress, ?)efore a jury, and a verdict rendered, and the jury brought in their verdict, making a finding as to said several claims, and as to the Parkers-burg & Marietta Sand Company the .jury found in its favor the sum of $!,- 422.22, the debt in the petition of intervention mentioned, and the court rendered its judgment In accordance with said verdict, and as to the claim of the Parkersburg & Marietta Sand Company it was that the United States of America, for the use of the Parkersburg & Marietta Sand Company, a corporation, do have and recover of and from the defendants, the Baker Contract Company, a corporation, Philip M. Plicl, and George E. Porch, ttie sum of .$4,422.22 with interest and costs, and provided that separate executions might issue on said judgments for the benefit of the respective plaintiffs. The case comes here on writ of error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by Street & Smith, a copartnership, against the Atlas Manufacturing Company and another. Decree for complainants, and defendants appeal.</p>

M. Smith, Judge. Ejectment by Mary R. Trimble and others against W. G. Rice, Jr., and another. Judgment for defendants, and plaintiffs bring error. Two ejectment suits were instituted in the United States District Court for the District of South Carolina by Mary Trimble and others, children of Willis Boyd and William Downs Calhoun, late of that state, against one W. G. Rice and the Coronaca Oil Mill.

<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 admiralty by the Union Steamboat Company for limitation of liability. libelant appeals from decree allowing damage claims.</p> <p>On July 11, 1890, the si earner Tioga, owned by appellant (herein termed libelant), was seriously damaged by an explosion of gas of some character while lying alongside libelant’s dock in the Chicago river, causing injury to certain of the defendants hereto, and the death of the decedents of the several administrator respondents hereto and others, as well as destroying a considerable portion of her cargo.</p> <p>On Hay 27, 1S93, libelant filed its libel herein, setting out the pendency of numerous suits by the several administrator defendants hereto and others, for damages growing out of the injury to certain defendants, and Die death of said administrators’ decedents caused by said explosion, which, it alleges, took place without its fault, privity, or knowledge, and alleging that the claims and liabilities made against libelant, and alleged to have been caused by said explosion, exceed the value of libelant’s interest in said steamer, including its outfit and pending freight, and asking that its liability in the premises be limited to the amount of its interest as owner in said wrecked steamer after said loss and her freight then pending, pursuant to the provisions of sections 4283 — 1285 of the Revised Statutes (U. S. Comp. St. 1901, pp. 2943, 2944), adopted March 26, 1851, and the Acts of Congress approved June 26. 1884, and June 19, 1886. The libel prays that the steamer lie appraised and that libelant may give stipulation for her value as provided by statute, or pay into court a sum sufficient to satisfy claims presented, and to be presented, that a monition issue according to the court’s rules of practice, requiring all claimants to prove up their claims in that court, which it reserves the right to contest, and asking for the usual restraining order.</p> <p>Such proceedings were had upon the libel that the steamer was appraised at the sum of $111,560 and a stipulation in due form with surety was filed, as provided by statutes, on January 23, 1894. Said stipulation was duly approved by the court on January 9. 1894, and the issuance of a monition to certain of tile claimants was ordered returnable May 1, 1894, with directions as to the publication of notice thereof, together with a restraining order enjoining the institution and prosecution of suits. The record shows that the appraised value of the steamer largely exceeded the amount of claims allowed. From the libel it appears that some 2L suits were pending in this jurisdiction and elsewhere, and that a number of other claims were likely to be, presented; but in many cases the names of the decedents are nor given in ihe libel.</p> <p>No order of record directing the presentation of claims in this proceeding within three monihs is set out save as above noted, nor does the monition itself, apart from the decree ordering it, appear in the record, nor any evidence of the publication thereof.</p> <p>Respondents named in the libel or petition for an order of limited liability, and others, filed their respective answers to said libel on July 7, 1894, and on other dtites, denying that ihe accident was incurred without fault, etc., of libelant, and that libelant was entitled to have its liability limited, and setting out Ihe circumstances attending the explosion. The answers also set up ihe character of injuries inflicted, and allege the damages claimed in each case. They also set out ihe federal statutes, sections 4475 and 4476 (U. IS. Com]). St. 1901, p. 3052), having reference to the transportation of gasoline, naphtha, etc., and the Illinois statute giving a right of action. They also set up the circumstances attending the explosion, the negligence of libelant, to which the accident is attributable. On December 21, 1900, respondent Holliday filed his claim herein by leave of court, and on or about January 26, 1903, by order of court claims were filed on behalf of tlie other respondents who had answered. The grounds of negligence alleged are: (1) The receiving for transportation by libelant of dangerous explosives which it knew, or by due care might have known, to he such; (2) storing the same, whether supposed to be only kerosene or otherwise, in the same compartment with cotton waste; and (3) delay in unloading until such time as artificial light became necessary.</p> <p>To the said claims, libelant filed answers, but made no reply to respondents’ answers. It traversed the charges of negligence and knowledge of dangerous character of its cargo, and set up laches and the Illinois limitation with regard to the beginning of suits for personal injuries and causing death to two years.</p> <p>The cause was referred to the Commissioner under two separate orders to report his findings of law and fact. No objection was made to the ref-•erenee, which was upon libelant’s motion. The Commissioner completed his report on December 1, 1906, and notified the parties to that effect. No objections were filed thereto. The report was filed in the office of the clerk of the District Court on December 15, 1910. On December 23, 1910, libelant filed its 36 exceptions thereto. The Commissioner found “that none of the general officers or agents of libelant had actual knowledge that benzine, gasoline, or naphtha were being shipped in said steamship Tioga” prior to said explosion, and that for that reason all liability of the libelant must be limited to the value of the steamer and freight pending after the explosion; “that the general officers of said company were guilty of such negligence as to make said company liable for all damages caused by said explosion, within the limited liability as above set forth, for the following reasons, viz.: Said general officers had notice that said Genesee Kefining Company and the Brights were large dealers in benzine, gasoline, and naphtha. That said Brights applied to the general agents of said petitioner at Chicago for a rate on shipment of benzine, gasoline, and naphtha. That nothing was said about these products of petroleum when the contract was made in Buffalo. That every barrel shipped by the Brights and the Genesee Refining Company was shipped in open violation of section 4475 of the Revised Statutes of the United States as hereinbefore set forth. That the shipment upon the Tioga was placed in a closed hold and the remaining space filled with cotton waste, a most dangerous combination and one well known to lead to •spontaneous combustion. That the shipments prior to those on the Tioga while remaining in the custody of petitioner had repeatedly been marked by the State Oil Inspector ‘condemned for illuminating purposes,’ and no effort had ever been made to ascertain why such shipments had been so marked by inquiry in proper quarters. For the reason that said Broekley had repeatedly seen the shipments prior to that on the Tioga stenciled ‘Benzine,’ ‘Gasoline,’ and ‘Naphtha,’ presumably knew that such shipments violated the rules of said petitioner, and clearly knew that gasoline was a dangerous explosive, and although it thereupon clearly became his duty to communicate what he had seen to his superior officer, failed so to do. That said general officers and agents, although well aware that said Brights and Genesee Refining Company were openly violating said section 4475 of the Revised Statutes, failed to cause any inspection to ascertain what said shipments contained or what the meaning of ‘B,’ ‘G,’ and ‘N’ were, and this although the shipments must have been many thousand pounds lighter than kerosene oil, which they claimed to have believed was being shipped. For the further reason that all of the persons killed or injured as hereinbefore set forth were at the time of said explosion employes of said petitioner and were then and there engaged in the performance of their respective labors as such employes, and were observing due and ordinary care for their own safety, and it thereupon became the duty of said petitioner to furnish said employes a reasonably safe place in which to perform such labors.”</p> <p>The report further finds: That respondents’ intestates and said Holliday, save one, were stevedores, and that all were servants of libelant. That each of the following decedents left him surviving persons who were, in a proper case, entitled to recover damages, in the manner provided by statute of Illinois, against one wrongfully causing their death, respectively, to wit, Walter Chapin, Jacob Cherry, Henry Witherspoon, Albert Smith, John Watkins, Henry Alexander, Louis Alexander, Alexander Smith, James Perkins, Thomas Williams, Ogden Polk, Center Amis, David Amis, Clarence Le Yalley, William Cuthbert, and William Smith. That the claims of the ad-ministrutors oí the foregoing intestates be allowed for Oie following- amounts, respectively:</p> <p>Walter Chapin.....§2,500</p> <p>Jacob Cherry... 3,500</p> <p>Henrv Witherspoon. 5,000</p> <p>Albert Smith...... 3,500</p> <p>John Watkins... 5,000</p> <p>Henry Alexander. 2.000</p> <p>Louis Alexander... 5,000</p> <p>William Cuthbort. 2,000</p> <p>Alexander Smith.§3,500</p> <p>James Perkins.2,000</p> <p>Thomas Williams. 3,500</p> <p>Ogden Polk. 3,500</p> <p>(’enter Amis.,. 3,000</p> <p>David Amis. 2,000</p> <p>Clarence lx; Talley. 2,000</p> <p>William Smith.2,000</p> <p>(By the decree “Chapin” is corrected to read “Cliafin.”)</p> <p>That the claim oí Robert Holliday for injuries suffered by him through said explosion be allowed for §7,500. That the claim of the administrator of the estate of John Neil or O’Neil, deceased, be disallowed for the reason that it does not appear that the intestate left any one dependent upon him. That the claim of the administrators of the estate of William Porter, deceased, and William Roberts, deceased, not having been put in suit within two years iron» the date of their several decedents’ deaths, were outlawed, and that no recovery could be had thereon; and that, in a suit brought by the administrators of the estate of Carter Braxton, deceased, in the Circuit Court of the United States for this district, the libelant was found “not guilty,” and that said several allowed- claims should stand against the said amount covered by ihe stipulation filed in pursuance of said petition to limit libelant's liability.</p> <p>Libelant’s exceptions, in brief, are: (1) That the claims allowed were barred by the se-veral claimants’ laches in failing to present them within the time fixed by the court by its order of May 26, 1893, and for not filing or prosecuting them until after ten years had expired from the entry of said order; (2) that they were outlawed for failure to present them within two years under the Illinois statute; (3) that the report fails to find that claimants and their decedents were fellow servants of those unloading the steamer, and does not apply the fellow-servant rule of liability; (4) that the report fails to find that decedents and Holliday were advised or charged with knowledge of conditions on the boat as fully as was libelant; (5) that the report finds that libelant was chargeable with knowledge of the conditions existing on the steamer; (6) that the report finds the general officers of the steamer guilty of such negligence as makes libelant guilty of negligence and liable (giving the ground relied on by the report); that the report accounts for the explosion upon the theory of spontaneous combustion; (8) that the report falls to find that the action of the shipper, the Genesee Oil Works, at Buffalo, in loading the naphtha, etc., ns oil, was the immediate cause of the accident; (9) that the amounts of iiie several claims allowed In the report are excessive and inconsistent; (10) time the report allowed Holliday §2,500 for loss of wages and §5,000 for injuries, pain, etc., making in effect a double allowance.</p> <p>Hearing upon the exceptions was had before the court on August 1, 1911, and the same were overruled, and the report was approved, whereupon the court proceeded to decree that the claims as reported by the commissioner be paid by libelant; that the latter pay to claimants or into the registry of the court by October 21, 1911, sufficient to satisfy the sums so awarded, together with costs and interest from December 1, 1906, to July 31, 1911, at the rate of 5 per cent., said decree specifying in each case the amount awarded. From this order libelant prayed this appeal. The errors assigned are:</p> <p>(1) The court erred in its decree entered herein as of the 1st day of August, 1911, in overruling each of the several exceptions filed by the petitioner to the report of Wirt K Humphrey, Commissioner.</p> <p>(2) The court erred in its decree entered herein as of the 1st day of August, 1911, iu confirming said commissioner’s report.</p> <p>(3) Bald court erred in its said decree entered as of the 1st day of August, 1911, in direefing pelitioner, appellant, to pay to the respective claimants therein mentioned, the several sums of money therein unified, or to cause to be paid into the registry ol said court moneys sufficient to discharge and pay in full the. said sums so awarded.</p> <p>(4) Said court erred in its decree entered herein as of the 1st day of August, 1911, in allowing interest from the 1st day of December, 1906, to July 31, 1911, upon each of the said several claims allowed by said decree.</p> <p>(5) Said decree is contrary to the evidence.</p> <p>(6) Said decree is contrary to the law.</p> <p>(7) Each of the said several amounts awarded said respective claimants are excessive.</p> <p>IPurther facts appear in the opinion.</p>

<p>In Error to the District Court of the United States for the District of Connecticut; Julius M. Mayer, Judge.</p> <p>Action by John Murphy, administrator of the estate of Charles J. Murphy, against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in admiralty by P. Horne, master of’ the steamship Edward Dawson, against the steam tug John I. Brady and barge Harry Morse; the Texas Company, claimant. Decree for respondents, and libelant appeals.

<p>Internal Revenue (§46*) — Proceeding foe Forfeiture foe Violation of Law by Distiller — Measure of Proof.</p> <p>In a proceeding in rein for the forfeiture of distillery property for violation of the internal revenue laws, the government is required to prove such violation by a preponderance of the evidence only.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 117-141; Dec. Dig. § 46.*]</p>

<p>Banks and Banking (§ 15*) — Private Banker — Securities—Deposit—Persons Entitled ' to Securities.</p> <p>General Business Law (Consol. Laws N. Y. 1909, e. 20, as amended by Laws 1911, c. 393) § 25, declares that, except as provided in section 29d. no individual or partnership shall receive bank deposits without license from the comptroller, which shall authorize the transaction of business at any place other than that described in the certificate, except with the comptroller’s written approval. Section 29d provides that the foregoing provisions shall not apply to any individual or partnership who would otherwise bo required to file a bond with the comptroller, where the business is conducted in a city having a population of 1,000,000 or over. Held, that where the bankrupt transacted a private banking business in New York City, and maintained branches in other states, each of which was subject to the laws of the state in which it was located, and not to the laws of New York, the New York depositors were exclusively entitled to the benefit of the $100,000 deposit made by the banker with the comptroller in New York, in the administration of his affairs in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 12-17; Dec. Dig. § 15. *</p>

<p>Monopolies (| 28*1 — Civil Damages — Evidence—Question eor Jury.</p> <p>In an action by a private individual to recover threefold damages, authorized by Sherman Anti-Trust Law July 2, 1890, c. 647, § 7, 26 Stat. 210 (TJ. S. Comp. St. 1901. p. 3202), against an alleged combination of coal dealers in a city, engaged in interstate commerce, to force plaintiff out of business and into bankruptcy, which they were successful in doing, evidence held to entitle plaintiff to submission to the jury of the question whether a combination and conspiracy among defendants existed, whether they maintained a secret organization to keep up prices and to boycott dealers who did not enter the organization, and whether plaintiff was injured as the result of such conspiracy.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; George C. Holt, Judge.</p> <p>Suit by William Starr Miller against the Chicago & Alton Railroad Company. From a decree dismissing the bill (198 Fed. 695), complainant appeals.</p>

Dayton, Judge. In the matter of bankruptcy proceedings of Herman Schoenfield, bankrupt. Heard on appeal and on petition by Jacob Salsburg to superintend and revise in matter of law proceedings .denying his right to certain property of the bankrupt claimed by the trustee and found by the court to have been fraudulently transferred (190 Fed. 53).

Southern District of Alabama; Harry T. Toulmin, Judge.- Suit in admiralty by Thomas A. Johnson and others, owners of the pilot boat Eben D. Jordan, against the steamship Agnella; A. Walaas, claimant. Decree for libelants, and claimant appeals.

<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 Edward H. Swindell and Bessie Swindell, as executors of William Swindell, deceased, and John C. Swindell, against George J. Hagan. Decree for plaintiffs, and defendant appeals.</p>

Colt, Judge. Suit in equity by the Pratt & Whitney Company against the Union Twist Drill Company. Decree for defendant, and complainant appeals. The following is the opinion of the District Court, by Colt, Circuit Judge: This is a suit for infringement of the Hanson patent, No. 703,577, dated July 1, 1902, for improvements in milling entters.

<p>1. Patents (§ 328*) — Validity and Infringement — Reinforced Last.</p> <p>The Baker patent, No. 870,760, for a reinforced last having a fiber-topped heel, with an under cushion of leather or other yielding material to enable the last to be used without injury during the heeling operation, was not anticipated, and discloses invention of a meritorious character ; the device being one of great practical value. Also, held valid as against a claim that the patentee was not the real inventor, and infringed.</p> <p>2. Patents (§ 237*) — Invention—Substitution of Material.</p> <p>While as a general rule the substitution of one material for another does not involve invention, it may do so if some new and useful result is thereby attained.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 374, 375; Dec. Dig. § 237.*]</p> <p>3. Patents (5 35*) — Evidence of Invention — Commercial Success.</p> <p>The success of a patented device, which met a general demand that many others had tried unsuccessfully to supply, is true indication of invention.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 39; Dec. Dig. S 35.*]</p> <p>4. Patents (§ 36*) — Validity—Evidence of Invention by Others.</p> <p>Testimony that others than the patentee were the real inventors of the thing patented, adduced in an infringement suit to defeat the patent, should be of such dignity and weight as to satisfy the court beyond a reasonable doubt, or it should be unhesitatingly rejected.</p> <p>[Ed. Note.---For other cases, see Patents, Cent. Dig. § 40; Dee. Dig. § 36.*]</p>

<p>In Equity. Suit by the Stromberg Motor Devices Company against Leonard A. Parker. On final hearing.</p>

<p>Patents (§ 328*) — Validity and Infringement — Bottle Opener.</p> <p>The Vaughn patent, No. 1,029,(545, for a bottle opener, for opening bottles having crown caps, held not anticipated, valid, and infringed.</p>

Suit by the Southern Railway Company, the Atlantic Coast Line Railroad Company, the Seaboard Air Line Railway, the Norfolk & Western Railway Company, and the Norfolk Southern Railroad Company, as petitioners, against the United States, as respondent, and the Interstate Commerce Commission and the Chamber of Commerce of Newport News, as interveners.

<p>At Law. Action by the Southern Cotton Oil Company against the Central of Georgia Railway Company.</p>

In Bankruptcy. In the matter of bankruptcy proceedings against Daniel Connelly, alleged bankrupt. Proceeding to compel one Weiss-man, brother-in-law of the bankrupt, to turn over to the trustee an automobile truck, or the proceeds of a sale thereof.

<p>In Bankruptcy. In the matter of the bankruptcy of Norman D. Mc-Lellan. On application for confirmation of a composition.</p>

<p>In Equity. Suit by the United States against the Northern Pacific Railway Company and others.</p>

In Equity. Suit by the Greeuleaf Johnson Lumber Company against the United States. On application by defendant for a mandatory injunction. The complainant, Greeuleaf Johnson Lumber Company, is the owner in fee-of certain property bordering on the Southern branch of the Elizabeth river, opposite the government navy yard at Norfolk, Va.

In Equity. Suit by the Investment: Registry, Limited, against the Chicago & Milwaukee Electric Railway Company and others.

<p>1. Courts (§ 276*) — Jurisdiction or Federal Courts — District or Suit— Waiver.</p> <p>A defendant in a suit in a federal court may waive the objection that the suit is not brought in the district of his residence or that of the plaintiff, as required by Judicial Code (Act March 3, 1911, c. 231) § 51, 36 Stat. 1101 (U. S. Comí). St. Supp. 1911, p. 150), and does waive it by entering a general appearance.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*]</p> <p>2. Courts (§ 328*)- — Jurisdiction or Federal Courts — Amount in Controversy.</p> <p>Where the interests of the plaintiffs or complainants in a suit are separate and distinct, as shown by their pleading, although of. the same general character, their claims cannot he aggregated to make the requisite amount to gire a federal court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. § 328.*]</p> <p>3. Courts (§ 282*) — Jurisdiction of Federal Courts — Suits for Protection of Civil Rights — “Civil Rights.”</p> <p>The “civil rights” protected by section 1 of the fourteenth amendment to the Constitution, and to redress deprivation of which the federal courts are given jurisdiction by Judicial Code (Act March 3, 1911, c. 231) § 24, par. 14, 36 Stat. 1092 (U. S. Comp. St. Supp. 1911, p. 137), are only such rights as are derived from the Constitution or some statute of the United States, and rights not so derived are left exclusively to the protection of the states.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-824; Dec. Dig. § 282.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1199, 1200; vol.. 8, p. 7603.]</p> <p>4. Constitutional Daw (§ 206*) — Railroads (§ 230*) — Privileges and Immunities — Train Crews.</p> <p>The provision of Act Ariz. May 7, 1912 (Sess. Laws 1912, c. 16) § 8, requiring all flagmen on railroad trains to have at least one year’s experience as brakemen, is not in violation of section 1 of the fourteenth constitutional amendment, as abridging the privileges or immunities of citizens, but is a valid exercise of the police powers of the state.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 625-648; Dec. Dig. § 206;* Railroads, Cent. Dig. § 744; Dec. Dig. § 230.*]</p>

<p>Street Raieroads (| 4.9*) — Leases — Insolvency — Interest on Ronds ot Lessor Company.</p> <p>A iease of the property of a street railroad company to an insolvent provided that the lessee from time to time should pay all rents and other sums of money that might become due under or by reason of the lease and other contracts to which the lessor was a party, or to which any of the demised property was or might be subject, and that the lessee assumed all obligations of the lessor under such lease and contracts, and agreed to pay all interest and fixed charges on the lessor’s funded debt, provided that the lessee should not be required to pay the principal of the lessor’s funded obligations, except as provided in the contract, and that all rentals or other payments so made should be proportioned between the period preceding and succeeding the date of the lessee’s taking possession under the lease. Held that, while a payment of interest on the lessor’s funded obligations by the lessee was in the nature of rent, the lease did not constitute an absolute obligation on the part of the lessee to assume and pay such interest, without limit as to time, and it was only bound to pay the same up to the date of the termination of the lease.</p> <p>[Ed. Note. — For other eases, see Street Railroads, Cent. Big. §§ 125, 120; Dec. Dig. § 49.*]</p>

<p>1. Eminent Domain (§ 29*) — Irrigation Companies — Right of Eminent Domain.</p> <p>L. O. L. § 6525, provides that the use of water of lakes and streams of the state “for general rental, sale and distribution” for the purposes of irrigation, etc., is a public use, and that “a use shall be deemed general within the purview of this act when the water appropriated shall be supplied to all persons whose lands lie adjacent to or within the reach of the line of the ditch or canal or flume in which said water is conveyed without discrimination other than priority of contract upon payment of charges therefor as long as there may be water to supply.” Section 6526 gives to a corporation organized to make an appropriation of water for such general use the right to condemn lands for reservoirs, ditches, right of way, etc. Held, that the fact that a corporation which meets all the requirements of the statute also has lands of its own which it purposes to irrigate from its system does not deprive it of the right to exercise the power of eminent domain thereby conferred.</p> <p>[Ed. Note.- — For other cases, see Eminent Domain, Cent. Dig. § 76; Dec. Dig. § 29.*]</p> <p>2. Eminent Domain (§ 29*) — Irrigation Companies — Right of Eminent Domain.</p> <p>Nor is such a corporation debarred from that right because it purposes, when all of its water shall have been sold, to turn its system over to an operating corporation, the shareholders of which are to be the owners of the water rights, one share to be issued for each acre for which the right is purchased.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 76; Dec. Dig. § 29.*]</p> <p>3. Eminent Domain (§ 186*) — Irrigation Companies — Condemnation Proceedings — Conditions Precedent — Oregon Statute.</p> <p>The failure of an irrigation company in Oregon, which instituted proceedings for the appropriation of water in 1908 to file a map with the county clerk showing the general route of its canal or ditch, as required by Ij. O. Tj. § 0529, then in force, was a defect in procedure which was cured by section 7 of the Water Code of February 24, 1909 (Laws 1909, p. 242; L. O. L. § 6595), which provides that “where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder has been in good faith, commenced and diligently prosecuted, such appropriations shall not be set aside or avoided in proceedings under this act, because of any irregularity or insufficiency of the notice by law, or in the manner of posting, recording or publication thereof,” where the condemnation proceedings were commenced after such act went into effect and there was no question of the good faith or diligence of the company.</p> <p>LEd. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 500--504; Dec. Dig. § 186.*]</p> <p>4. Eminekt Domain (§. 181*) — Irrigation Companies — Condemnation Proceedings — Conditions Precedent — Oregon Statute.</p> <p>By the provisions of L. O. L. §§ 6528, 6529, requiring an irrigation company intending to appropriate water to post a notice containing “a general description of the course of said ditch or canal or flume,” and to file for record a map “showing the general route of said ditch or canal or flume,” it is not intended that the appropriator shall define the precise line of its ditch in either notice or map 1o sustain condemnation proceedings, when it is for the first time required to be definitely fixed, and it is sufficient if the line as so fixed follows substantially that described in the notice and shown by the map.</p> <p>[Ed. Note.--For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-492; Dec. Dig. § 181.*]</p> <p>5. Eminent Domain (§ 181*) — Irrigation Companies — Proceedings for Appropriation of Water — Notice.</p> <p>Such a notice is not invalidated by a manifestly clerical error.</p> <p>FKd. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-492; Dee. Dig. § 181.*]</p> <p>Horrow, Circuit Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio; William E. Day, Judge.</p> <p>Action by George B. Norcross against the Carpenter Steel Company. Judgment for plaintiff, and defendant brings error.</p>

Mayer, Judge. Action by the Havana Central Railroad Company against the Central Trust Company of New York. From a judgment in favor of defendant on the verdict, plaintiff brings error.

<p>1. Trade-Marks and Trade-Names (§ 85*)' — Validity of Trade-Mark — False Statement for Registration.</p> <p>A trade-mark, consisting of a word registered on a statement that it had been continuously used as a trade-mark by the applicant and its predecessors in business since a date more than 35 years previously, is not invalidated by the fact that during a part of that time the word was used as a part of a more extended trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*]</p> <p>2. Trade-Marks and Trade-Names (§ 59*) — Infringement—Imitation of Name.</p> <p>Complainant and its predecessors for many years have sold a brand of whisky in bottles bearing a label with the trade-name “Hermitage" printed conspicuously thereon in large script, and under such name the whisky has acquired a wide and favorable reputation. Defendant commenced tbe salo of a different and cheaper brand of whisky in bottles having the name “Golden Heritage” on the labels: the word “Heritage” being printed in large script closely similar to complainant’s, while the word "Golden” was in much smaller script in an oblique position. If aid, that there was such similarity between tlie two labels as was calculated to deceive the public, and as to constitute an infringement of complainant’s trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 68-72; Dee. Dig. § 59.*</p> <p>Misleading or false labels, see notes to Raymond v. Royal Raking Powder Co., 29 C. C. A. 250; Holeproof Hosiery v. Wallach Bros., 97 O. C. A. 265.]</p> <p>3. Trade-Marks and Trade-Names (§ 65*) — “Infringement”—Evidence to Establish.</p> <p>To constitute an “infringement” of a trade-mark that will entitle the owner to relief by injunction, it is not necessary that willful intent to deceive be shown; but it will be presumed that defendant intended the natural consequences of its acts, and where it has put its goods on the market under a name so nearly like complainant's as to enable dealers to palm them off as complainant’s, and at a price which makes it an object to do so, an invasion of complainant’s rights is shown.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 64; Dec. Dig. § 65.*</p> <p>For other deiinitions, see Words and Phrases, vol. 4, pp. 3590-3594.] ,</p> <p>4. Trade-Marks and Trade-Names (S 85*) — Right to Protection — Fraudulent Representations on Label — “Purity” of Whisky.</p> <p>A statement on the label of whisky bottled in bond that its “purity” was guaranteed by tbe United States government, while not technically true, was not such a fraudulent misrepresentation as should bar'the distiller from relief in equity against infringement of its trade-mark, since the stamp may be taken as a guaranty that it is such as is permitted to lie bottled by the statute, that it has not been subjected to adulteration or admixture, but is in tiie same condition as when manufactured, except for the process of aging_ and reduction to -100 proof, and in such condition it may be considered" pure for bottling purposes.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*]</p> <p>5. Trade-Marks and Trade-Names (§ 85*) — Infringement—Bight to Belief — False Bebresentations on Label.</p> <p>Untrue statements on labels that the whisky contained in the bottles was manufactured ’“in the sour mash fire copper way, being singled and doubled in copper stills over open wood fires,” and untrue or misleading statements on labels on “bonded” whisky that “this bottling in bond * * * insures to the customer the highest grade of wMsky made in this country,” are material and misleading representations which under the rule of “unclean hands” deprive the distiller of the right to relief in equity against infringement of its trade-mark used on such labels, until such practice is discontinued.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. § 85.*]</p>

Brown, Judge. Writ of entry by the United States against Henry H. Eay and others., Judgment for the United States, and the tenants bring error.

Connor, Judge. Suit in admiralty by the Manchester Diners, Dimited, owner of the steamship Manchester Miller, against the Virginia-Carolina Chemical Company, claimant of the cargo of the said Manchester Miller. Decree for respondent, and libelant appeals.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Smith McPherson, Judge.</p> <p>In the matter of the Lincoln Mining & Milling Company, bankrupt. The Home Powder Company and others appeal from an order of adjudication.</p>

<p>1. Appeal and Ekror- (§ 537*) — Bilí, op Exceptions — Recobd.</p> <p>An alleged bill of exceptions, printed in the record on writ of error, cannot be considered, where it does not appear lhat it was ever presented to the trial judge for any purpose, or that he settled, signed, of allowed it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2404, 2405; Dec. Dig. § 537.*]</p> <p>2. Appeal and Kkroh (§ 701*) — Review—Instructions—Necessity of Evidence.</p> <p>Action of the trial court in giving and refusing instructions cannot be reviewed on a writ, of error, without a x'roperly settled bill of exceptions containing the evidence in the record.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. 2933-2935; Dec. Dig. § 701.*]</p> <p>3. Appeal and Erbob (§ 193*) — Objections to Complaint — Review—Necessity of Objection at Teial.</p> <p>An objection to a complaint, first made on a writ of error, will only bo sustained if it. fails to allege the substance or foundation of a good cause of action, and is so insufficient that it is impossible to cure the defect by amendment or by verdict, since otherwise the court is required to allow7 an amendment to cure the defect by Rev. St. | 954 (U. S. Comp. St. 1901, p. 090).</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1220-1238, 1240; Dec. Dig. § 193.*]</p>

Petition to Revise Order of the District Court of the United States for the District of Minnesota; Chas. A. Willard, Judge. Petition by Allen C. Dodge to revise an order of the District Court1 for the District of Minnesota, denying an application to annul an adjudication of bankruptcy, entered on the voluntary petition of the Kenwood Ice Company. 189 Fed. 525.

Holt, Judge. In the matter of bankruptcy proceedings of Louis J. Kahn and William J. Kahn, alleged bankrupts. The order adjudged Louis J. Kahn guilty of contempt' of court in having -willfully and deliberately neglected to give proper testimony on behalf of the receiver, and particularly for giving the testimony set forth in the petition, and further ordered: \ “Second.

<p>1. Cakbiebs (§ 286*) — Movable Ticket Booth — Negligence.</p> <p>It was not negligence for a railroad company to maintain a movable ticket booth and a movable sign on a standard on the pier of a steamship company for the convenience of passengers intending to continue their journey inland by land, so as to entitle a passenger to recover for injuries sustained by falling over the sign as sh.e stepped back from the ticket window.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1142-1148, 1150-1152; Dec. Dig. § 286.*]</p> <p>2. Gabblers (§ 286*) — Dangerous Premises — Movable Sign — Location.</p> <p>Defendant railroad company, for the convenience of passengers landing from steamships, maintained a movable ticket booth on the steamship company’s pier, designated by a movable sign constructed on a standard placed from four to six feet from the booth. Plaintiff applied for a ticket at the window, but the agent in charge, being unable to change her money immediately, asked her to step back, and as she did so her foot came in contact with the sign standard, g.nd she was thrown and injured. Sold, that it was not negligence to place the-sign on a standard near the booth, nor was it negligently placed too near the booth, and, being easily avoidable, plaintiff could not recover.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1142-1148, 1150-•1152; Dec. Dig. § 286.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Julius M. Mayer, Judge.</p> <p>. Suit by the New York Times Company against the Sun Printing . & Publishing Association. From a decree dismissing the amended bill on demurrer, complainant appeals.</p>

<p>Petition by the R. S. Starrett Company for writ of mandamus against Arthur R. Brown, District Judge for the District of Rhode Island.</p>

<p>1. Collision (§ 71*) — Coaling Vessel — Negligent Maneuvers.</p> <p>A boat loaded with, coal having been sent to coal a steamship that was properly moored, breast out, from a pier, the servants of an independent contractor,' bound to perform the work of coaling, so negligently moved the coal boat between the bow of a boat moored inside the slip and the stern of the steamship that she struck the steamship’s starboard propeller and sustained considerable damage. The steamship was not moving her propellers, and none of her officers or crew had anything to do with the maneuver performed exclusively by the coaling company. Held, that the steamship was not at fault, though no notice was given that she had twin screws, the blades of which were near the surface, and had failed to provide a floating fender.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p> <p>2. Indemnity (§ 13*) — Implied Contracts — Coaling Vessel — Negligence.</p> <p>A contract between a steamship line and a coaling company provided for service charge of 20 cents a ton in transferring coal from boats alongside to the ship’s bunkers, the steamship line furnishing and placing coal alongside the ships in boats and removing the boats as required by the coaling company. Held, that the servants of the coaling company, in bringing a coal ship alongside a steamship to be coaled, were not loaned to the steamship line, but were doing something which the steamship line ought to have done, and therefore the coaling company could not claim indemnity from the. steamship line for the negligence of its own servants in doing the work, causing injury to the coal ship.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.*]</p>

<p>Bankruptcy (§ 407*) — Discharge—Grounds—Fraudulent Transfer.</p> <p>" Bankr. Act, July 1, 1898, c. 541, § 14(b), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), provides that a bankrupt may be denied a discharge if at any time subsequent to the first day of the four months immediately preceding the filing of the petition he shall transfer, remove, destroy, or conceal, or permit to be removed, destroyed, or concealed, any of his property with intent to defraud his creditors. A bankrupt, six years before the filing of his petition, transferred certain insurance to his wife, leaving himself penniless. In March, 1906, he organized a jewelry business, and certified that it was carried on by his wife, by himself as manager; she having surrendered the insurance, receiving therefor $1,000, part of which went into the business. Held that, since the transfer of the policy was not within the four-months period, it was not in itself a ground for refusing the bankrupt a discharge, which could be refused on the ground of fraudulent transfer only, on proof that the jewelry business, which was claimed to be her property and not scheduled, was started by the insurance money, and was continued as the bankrupt’s property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy,' Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*J</p>

Chatfield, Judge. Suit in admiralty by James F. Dwyer and others, owners of the brig Ryder, against the steamship American and the steam tug St. Patrick, for collision. From a decree against the American (196 Fed. 147), the American-Hawaiian Steamship Company, claimant, appeals. Appeal by the owner of the steamship American from a final decree of the District Court, Eastern District of.

Munger, Judge. Action by John D. MacRae against the Parlin & Orendorff Plow Company of Omaha. From a judgment for plaintiff for less than the relief demanded, he brings error.

<p>In Equity. Suit by the Wright Company against the Herring-Cur-tiss Company and Glenn H. Curtiss. On final hearing. Decree for complainant.</p>

Mayer, Judge. Suit in equity by Edward T. Burrowes and the E. T. Burrowes Company against the Ferguson Bros. Manufacturing Company. Decree for defendant (198 Fed. 136), and complainants appeal. Appeal from a decree of the District Court, Southern District of New York, dismissing the bill in a suit to restrain the alleged infringement of letters patent No. 7(K>,988, issued August 9, 1904, to Frank T. Burrowes, assignor, for an improvement in folding tables.

<p>1. Patents (§ 318*) — Suit fob Infringement — Accounting foe Profits.</p> <p>On an accounting for profits in an infringement suit, where the infringing article sold by defendant was that of the patent, with a patented improvement on which defendant paid royalties, the, amount so paid does not of itself constitute such a segregation of profits attributable to the use of the improvement as to leave all the remaining profits necessarily attributable to the invention infringed.</p> <p>[Ed. Note.' — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p> <p>2. Patents (§ 318*) — Suit foe Infringement — Accounting for Profits.</p> <p>Whether the fact that the entire structure made and sold by an infringing defendant is included in the combination claims of the patent requires it to account for all of the profits made thereon, without proof and a finding of rile fact that the sales were due to the presence of the feature which distinguished the patented device from the prior art — quaere? ■</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*</p> <p>Accounting by infringer for profits, see note to Brickill v. Mayor, etc.,, of City oí New York, 50 C. C. A. 8.J</p> <p>3. Patents (§ 328*) — Infringement—Computing Cheese Cutter.</p> <p>The Drain patent, No. 800,431, .for a computing cheese cutter, held not infringed by a device made and sold by defendant, as changed after a decree holding its former device to be an infringement, and the bearing of the fact that such change avoided infringement on the computation of profits recoverable for the former infringement considered.</p> <p>4. Patents (§ 27*) — Invention—Double Use. , ,</p> <p>Where a given mechanical structure is devoted to a new manner of use, employing a function which is distinct from its old function, though inchoate in and developable therefrom, this may show invention, rather ttíáíi mere double use, although the only physical change is appropriate remarking.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dee. Dig. § 27.*]</p> <p>5. Patents (§ 322*) — Accounting—Damages and Profits.</p> <p>i f, upon au accounting, no established royalty, appears, should the master ascertain and report what a reasonable royalty would be — quaere?</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. §§ 590-595; Dec. Dig. $ 322.*]</p>

<p>Patents (§ 312*) — Suit for Infringement — Plea op Ownership — Practical Construction op Contract.</p> <p>A plea filed by the defendant in an infringement suit, alleging ownership in itself of the patent in suit by virtue of a contract requiring complainant and others to assign to it patents relating to a certain subject, held not sustained by the evidence; it appearing that, as construed by the parties, all of the patents called for by the contract had been assigned and the full purchase price paid.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 544-519; Dec. Dig. § 312.*]</p>

<p>In Equity. Suit- by the Free Sewing Machine Company against the Bry-Block Mercantile Company. On motion by complainant for preliminary injunction.</p>

<p>Patents (8 328*) — Validity ash Infringement — Bowling Pin.</p> <p>The Sawyer patent, No. 1,030,834, for a bowling pin having a ring of indurated fiber set in a groove in the bottom to prevent splitting or chipping, was not anticipated and discloses patentable invention; also held infringed.</p>

<p>Petition by the Kansas City Southern Railway Company to vacate certain accounting orders entered by the Interstate Commerce Commission, in which the Commission intervened.</p>

Petition by the Atchison, Topeka & Santa Fé Railway Company, the Southern Pacific Company, and the San Pedro, Los Angeles & Salt Lake Railroad Company against the United States of America, in which the Interstate Commerce Commission, the Arlington Heights Fruit Company and others, intervene. On final hearing.

<p>1. Collision (§ 61*) — -Tug witii Tows and Overtaking Schooner — Negligence oe Tug.</p> <p>A lug which, with a tow of seven barges on a hawser, the entire length being about 2,000 feet, in the daytime, stopped and directed the barges to lengthen their hawsers to double their former length when an overtaking schooner was approaching on a tack, heading almost directly toward the rear barge, and within a quarter of a mile, was solely in fault for a collision between the schooner and such barge, both for failure to exercise ordinary care under the circumstances, and for violation of article 21 of the Inland Hules (Act June 7, 1897, e. 4, 30- Stat. ,101 LIT. S. Comp. St. 1901, p. 2883J), which required her to keep her course and speed.</p> <p>TEd. Note. — For other cases, see Collision, Gent. Dig. § 78; Dec. Dig. § 61.*]</p> <p>2. Collision (§ 59*) — Observaros oe Hules — Tugs with Long Tows.</p> <p>Tows of 2,000 feet or more in length, when navigating frequented waters, are held to an extremely strict observance of all precautionary requirements to prevent collisions.</p> <p>[E(l. Note.- — For other eases, see Collision, Cent. Dig. § 72; Dec. Dig. § 59.*]</p>

<p>Action by the United States against the General Inspection & Loading Company. Trial to the court,</p>

<p>1. Mixes and Minerals (§ 24*) — Location—“Abandonment.”</p> <p>The term “abandonment,” as used in mining law, includes both the intention to abandon and the act by which the abandonment is carried into effect. There must be a concurrence of intention to abandon and actual relinquishment of the property, so that it may be appropriated by the next comer.</p> <p>(Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 60; Dec. Dig. § 24.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 4-13; vol. 8, p. 7559.]</p> <p>2. Mines and Minerals (§ 26*) — Claims—Abandonment—Relocation.</p> <p>Plaintiff in ejectment to recover certain unpatented mining claims alleged that defendant’s predecessors in 1907 conspired to do no work for that year and to relocate the claims as abandoned; that they agreed to abandon the same on December 31, 1907, and on January 1, 1908, relocated them, plaintiff claiming that after such abandonment defendant’s predecessors wore incompetent to lawfully relocate them. Defendant’s answer alleged that its predecessors in title, in preparing the notices of relocation, had not been advised and did not know of a change in the-state law by which it was no longer necessary in cases of relocation to state the land located was abandoned ground; that they, without any intention of abandoning the claims, inserted snch statement in their notices, believing it to be necessary to make a valid relocation, and for no other reason, but they did not then or thereafter or ever abandon the claims or intend to abandon them or any part thereof; and that between January and March, 1908, they caused to be sunk on the ground embraced within tho claims a shaft of specified dimensions which disclosed mineral-bearing rock, and that this was sufficient to save the claims for forfeiture for failure to perform the assessment work for 1907, as provided by Oiv. Code Arizona 1901, par. 3241, as amended by Act March 12, 1.907 (Laws 1907, c. 22), without reference to the question of abandonment. Held, that the declaration of abandonment inserted in the notices of relocation, under the allegations in the answer, was 1m sufficient to show as a matter of law that the claims had been in fact abandoned.</p> <p>[Ed. Note. — For other cases, see Hines and Hiñerais, Cent. Dig. §§ 61-63; Dec. Dig. § 26.*]</p> <p>3. Judgment (§ 949*) — Conclusiveness—Bar.</p> <p>Where a former judgment is pleaded as a bar, it is essential that it be alleged, not only that the issues were the same, but it must also be alleged that the cause of action was the same; but, where a judgment is only pleaded as res judicata of certain issues previously determined, it is sufficient that the pleading allege that the issues were the same.</p> <p>[Ed. Note. — -For other cases, see Judgment, Cent. Dig. §§ 1794, 1795-1803; Dec. Dig. § 949.*]</p> <p>4. Judgment (§ 720*) — Res JuUicata — Issues.</p> <p>A fact or question which was actually and directly in issue in a former suit, and was there judicially passed on and determined by a domestic court of competent jurisdiction, is conclusively settled by . the judgment therein so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same or any other court .of the same jurisdiction on the same or a different cause of action.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p>

<p>1. Insurance (§ 211*) — Life Policy — 'Assignment—Delivery.</p> <p>Where insured executed an assignment of a life policy to his daughter in duplicate, as required by the insurer’s rules, and both copies were sent to the insurer’s home office, after which one copy was retained by the insurer and the other returned to the insured, who kept it with the policy in his possession, the formal execution and sending of the assignment to the insurance company was presumptively for the benefit of the assignee, and, as between her and the assignor, in the absence of anything to evince a contrary intention, constituted a sufficient delivery.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 480; Dee. Dig. § 211.*]</p> <p>2. Insurance (§ 211*) — Assignment to Infant — Delivery.</p> <p>Where a father executed an assignment of a policy on his life to a minor daughter, who was living with him, he being her natural guardian and the custodian of her property and effects, no actual physical delivery of the assignment to her was necessary to render it effective.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 480; Dec. Dig. § 211.*]</p> <p>3. Insurance (§ 212*) — Assignment—Effect—Continued Payment of Premiums.</p> <p>Where a father assigned a policy on his life to his minor daughter, who was living with him, the fact that he continued to pay the premiums was not evidence that he did not regard the assignment as absolute, or that he intended it should be conditional and ineffective unless he died before the policy matured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 481, 482; Dec. Dig. § 212.*]</p> <p>4. Insurance (§ 219*) — Policy—Assignment—Mistake.</p> <p>Where a father executed an absolute assignment of a policy on his life to his minor daughter, the fact that he directed the insurance company’s agent who drew the assignment, to make it conditional on his dying before the policy matured, which the agent failed to do, and that insured signed the assignment without reading it, relying on the agent’s assurance that it was all right, was ineffective to defeat the rights of the daughter as assignee.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 488, 489, 494r-490; Dec. Dig. § 219.*]</p> <p>5. Judgment (§ 17*) — Service Without the State — Jurisdiction.</p> <p>Plaintiff’s father having assigned a tontine insurance policy on his life to her while she was a resident of Pennsylvania, judgment was recovered by a creditor against her in that state in 1907. In 1909, after plaintiff had removed to California, a writ of execution attachment was issued on the judgment and served in Pennsylvania on the local agent of the insurance company and on plaintiff’s father; plaintiff being served only by delivery of a copy of the process to her without the state. She did not appear, and on a feigned issue to determine the ownership of the fund, which the insurance company paid into court, it was determined that it belonged to plaintiff’s father, and not to her. Held that, while the Pennsylvania court acquired jurisdiction by its garnishee process to determine, as between plaintiff and her creditors, the rights of the latter to subject to their judgment any debt due plaintiff or other property of plaintiff in Pennsylvania to the extent of the judgment, it had no jurisdiction, without plaintiff’s personal presence, to try her rights in the policy as between her and her father and the insurance company, the feigned issue raising such question being independent of the garnishment proceeding; and hence the judgment therein was not conclusive on plaintiff against her right to recover the amount of the policy on its maturity, as against the insurance company and her father.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33, 157, 422; Dec. Dig. § 17.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings against Wenatchee Heights Orchard Company. On exceptions to a master’s report, advising that petitioners were entitled to an adjudication in bankruptcy.

<p>At Raw. Action by the Real Estate Trust Company of Philadelphia against the Washington-Virginia Railway Company. On rule to vacate service of writ.</p>

<p>1. Equity (§ 117*) — Bill—Motion to Dismiss — Demurrer.</p> <p>Under equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), abolishing demurrers, and providing that every defense arising on the face of the bill,, which might previously have been made by demurrer or plea, shall be' made by motion to dismiss or in the answer, an objection that a corporation not joined was an indispensable party to the bill was properly taken by motion to dismiss.</p> <p>I'lfld. Note. — For other cases, see Equity, Cent. Dig. §§ 240, 285-292; Dee. Dig. § 117.*]</p> <p>2. Equity (§ 117*) — Biuns—Parties—Bums.</p> <p>Equity rule 89 (198 Fed. xxix, 115 O. C. A. xxix), providing that in all cases where it shall appear to the court that persons who might otherwise be deemed parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, the court in its discretion may proceed in tile ease without making such persons parties, did not change the principles of law or equity, or authorize the court to proceed in the case without having indispensable parties before it, to authorize a decision of the whole controversy involved and to make an adequate decree.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. §§ 246, 285-292; Dec. Dig. § 117.*]</p> <p>8. Judgment (§ 16*) — Absent Parties — Rights.</p> <p>The federal courts enforce the rule that the court cannot adjudicate directly on rights of a person not actually or constructively before it.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 22, 24; Dec. Dig. § 16.*]</p> <p>4 Corporations (§ 190*) — Management—Stockholder’s Suit — Parties.</p> <p>Complainant, a minority stockholder in a New Jersey mining company, sued defendant, a Maine corporation, alleging that defendant owned the majority stock in the New Jersey company and was undertaking to dissipate a part of the New Jersey company’s capital by unlawful payment of dividends, that it had acquired wrongful dominion of the New Jersey company by means of its control of the stock of a third corporation, and had caused great and irreparable injury to the stock owned by complainant and to the New Jersey company as a corporation, and that such acts and conduct, if continued, would cause great and irreparable injury, both to complainant as a stockholder in such corporation and to the corporation itself, which injury and damage could not be computed and estimated, and prayed that defendant be enjoined from voting its stock in the New Jersey company, and from electing any person as director thereof who was a director or officer of defendant company. Held, that the New Jersey company was an indispensable party to the* suit, and, being beyond the court’s jurisdiction, the bill could not be maintained.</p> <p>[Ed. Note. — Eor other eases, see Corporations, Cent. Dig. §§ 723-731; Dec. Dig. § 190.*]</p>

At Law. Action by B. L. Lyden against the Western Life Indemnity Company. On motion to quash service of summons on State Insurance Commissioner, on the ground that the action was not based on an insurance contract.

In Bankruptcy. In the matter of bankruptcy proceedings of the Quaker Drug Company. On review of a referee’s decision allowing a claim of the Damson Consolidated Store Service Company for rental of a cash carrier system.

In Admiralty. Suit by Martin Jenkins against the sloop Virginia Belle to enforce a maritime lien for' wages as a seaman. The libel in this case was filed on the 15th day of July, 1912, to recover the sum of $170, $50 of which was claimed for supplies furnished the sloop, and $120 for services rendered by libelant ás a seaman on the Virginia Belle, at $30 per month, from the 18th of January to the 18th of May, 1912.

<p>1. Master and Servant (§ 185*) — Injuries to Servant — Fellow Servants.</p> <p>Complainant, a stevedore, while engaged in stowing timber in the hold of a vessel, was injured by the fall of a stick of timber, due to his effort to escape another stick of timber being lowered into the hold in a sling. He alleged that he was injured by reason of the superintendent’s negligence in giving orders to rush the work of loading, causing the stick to be carried into the hold by the sling before the timber he carried had been stowed away; that plaintiff, while bearing another stick, was compelled to make an effort to escape the stick in the sling, and was thereby caused to fall, and was injured by the stick he was carrying falling on him. Held, that plaintiff could not recover for any negligence of the men in executing the order of the superintendent to hurry the work; such negligence, if any, being that of plaintiff’s fellow servants.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]</p> <p>2. Master and Servant (§ 96*) — Injuries to Servant — Proximate Cause.</p> <p>Plaintiff’s injury not being the probable or natural result of the superintendent’s order, it could not be regarded as the proximate cause of plaintiff’s injury, so as to make the superintendent’s negligence in giving such order, if any, actionable. .</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 157, 158, 162; Dee. Dig. § 96.*]</p>

<p>In Admiralty. Suit by the Sicula Americana di Navigazione a Vapore, owner of the steamship San Giorgio, against Frederick B. Dalzell and W. Freeland Dalzell, doing business as Frederick B. Dal-zell & Co.</p>

<p>Shipmkg (§ 58*) — CHARTERS—Ltaisii.ity of Charterer for INJURY to Vessel.</p> <p>Evidence considered, and held not to sustain the allegation of the owner that injuries to a barge resulted from the negligence of a charterer, but to indicate that they probably wore received after the barge had been redelivered to a master sent by the owner to receive her.</p> <p>[Ed. Note —For other cases, see Shipping, Cent. Dig. §§ 283-244, 314, 32T; Dec. Dig. § 58.*]</p>

<p>Application by Frederick George Buck for naturalization.</p>

<p>Aliens (§ 57*) — Deportation—Carbieb’s Expense — Statutes—Retroactive Operation.</p> <p>Act Oong. March 26, 1910, c. 128, § 1, 36 Stat. 263 (U. S. Comp. St Supp. 1911, p. 500), abrogating the three-year time limit for deportation of immoral aliens at the expense of the carrier by which they were unlawfully entered, does not operate retroactively, and hence did not entitle the United States to recover from the steamship company, by which an alien prostitute was brought to the United States, the expense of her deportation; the three-year limit having expired in September, 1908, and she not having been ordered deported until July, 1910.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. § 114; Dec. Dig. § 57.*]</p>

<p>In Admiralty. Suit by Amalfitano Paugrazio against the bark Maren.</p>

Action by the United States against the Lehigh Valley Railroad Company to recover a penalty for knowingly and willfully violating the Twenty-Eight Hour Law. From an order sustaining defendant’s motion for judgment non obstante veredicto, the United States brings error. The following is the opinion of Cross, District Judge: This action is based upon what is popularly known as the Twenty-Eight Hour Law (Act June 29, 1906, c. 3594, 31 Stat. 607 [U. S. Comp.

Petition for Revision of Proceedings of the District Court of the United States for the Middle District of Alabama; Thomas Goode Jones, Judge. In the matter of C. W. Reynolds, bankrupt. On petition by George Stuart, trustee, to superintend and revise an order of the District Court. Tliis petition for review results from the following proceedings: ! C. W. Reynolds, engaged in the general merchandise business at Clanton, Ala., was adjudged a voluntary bankrupt.

Rose, Judge. Action by George B. Wilson against John V. Ee Moyne. Judgment for defendant, and plaintiffs executor, George B. Wilson, Jr., brings error. This is an action at law. The plaintiff in error was the plaintiff below. On March 26, 1906, John Y. Le Moyne, a retired lawyer, then about 76 years old, executed and delivered at Baltimore, Md., in consideration of the payment to him of .$14,000 cash, a deed releasing and quitting claim unto one George 15.

<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 Board of Levee Commissioners of the Tensas Basin Levee District against the Tensas Delta Land Company, Limited. Decree for defendant, and plaintiff appeals.</p>

Action between E. W. Rector and another, as surviving executors, and May Yates Alcorn and another. On motion to set aside an order dismissing the appeal and for leave to docket the cause.

In Krror to the District Court of the United States for the District of Maryland, at Cumberland; John C. Rose, Judge. Action at law by George H. Darr against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.

Hunger, Judge. Action by the Missouri Pacific Railway Company against the Union Stockyards Company. From a judgment for plaintiff for part of the relief demanded, it brings error, and defendant prosecutes a cross-error.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, which found that a bridge along the property of the Turnpike Company was' an obstruction to the navigable capacity of the water flowing through the cut over which it was built and ordered its removal. The opinion of the District Judge will be found in 183 Fed. 598.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel to recover damages for a collision between libelant’s barge and a car float in tow of á New Haven transfer tug, which latter two boats were broken away from a pier to which they were moored by a collision with the ferryboat Pierrepont. The facts are set forth with great fullness in the opinion of the District Judge, which will be found in 189 Fed. 809.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, in favor of libelant for $350 maintenance and cure and $5,000 damages, with costs.

Court of the United States for the First Division of the Northern District of California; John J. De Haven, Judge. Petition for habeas corpus by Mary Henn, on behalf of Mabel Henn, a minor, to obtain a discharge of the minor from custody of the Children’s Agency in San Francisco, pursuant to a commitment of the juvenile division of the superior court of the city and county of San Francisco. From an order sustaining a demurrer to the petition, relator appeals.

<p>In Error to the District Court of the' United States for the District of Nebraska; William H. Munger, Judge.</p> <p>Action by Jane Baldwin, administratrix of Henry D. Baldwin, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

This cause comes here upon a petition to revise an order of the District Court, Southern District of New York, which denied the motion of petitioners, partners, who are judgment creditors of the bankrupt, for stay of proceedings on his application for discharge. No specifications oi objections to the discharge have been filed.

<p>Appeal ard Error (§§ 690, 701*) — Review—Record—Bill or. Exceptions— Omissions.</p> <p>Where, in an action on a note payable to bearer, defendant pleaded that plaintiff was not a bona fide holder for value before maturity, and was therefore bound to meet certain defenses against the original owner that would otherwise be barred, and plaintiff’s case consisted only of the note in suit and his own testimony, but the bill of exceptions contained only a few meager extracts of plaintiff’s testimony, the court could not review assignments of error relating to rulings on evidence and instructions of the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908, 2933, 2935; Dec. Dig. §§ 690, 701.*]</p>

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error, who was defendant below.

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought to recover for the death of Rehtohncr, who was struck by a locomotive while crossing defendant’s tracks. This is the second time the case has come before us.

This cause comes here upon appeal from a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury for six cents in favor of plaintiff in error, who was plaintiff below. 195 Fed. 349.

<p>On appeal from an order of the District Court for the Southern District of New York denying a motion by the complainant for a preliminary injunction restraining the defendant from using, the word “Wonderfoot” in connection with hosiery manufactured by it; the complainant insisting that such use constitutes unfair competition in trade and is an infringement of complainant’s trade-mark “Wunder-hose.”</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the C. H. Venner Company against the Central Trust Company of New York and others. Decree for defendants, and complainant appeals.</p>

<p>On writ of error to review a judgment of the District Court for the Southern District of New York dismissing the complaint, with costs.</p>

Action between William Edenborn and James Sim. Erom a judgment in favor of the latter, entered on report of a referee, the former brings error. On motion to strike parts of the record.

Otis Humphrey, Judge. Suit in equity by William H. Stockham and the Roberts & Schafer Company against James Duncan, George D. Duncan, and William M. Duncan, copartners doing business as the Duncan Foundry & Machine Works, the American Coal Washer. Company, James Duncan, and the Dumaghi Coal Washing Company. Decree for complainants, and defendants appeal.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York. The suit was brought upon four patents; the District Court held that two of them were valid, against defendants, and had been infringed. The appeal brings up these two patents only for consideration.

<p>In Equity. Suit by Herbert E. Hildreth against the Eauer & Suter Company. On final hearing.</p>

Separate petitions by the Prairie Oil & Gas Company, by the Uncle Sam Oil Company, by Robert D. Benson and others, by the Ohio Oil Company, by the Standard Oil Company, and by the Standard Oil Company of Louisiana against the United States of America; the Interstate Commerce Commission intervening in each case. On motions for preliminary injunction.

<p>In Bankruptcy. In the matter of William A. Oxley and Thomas R. White, individually and as partners doing business as Oxley & White and as the McKinley Park Drug Company, bankrupts. On review of order of referee.</p>

<p>Habeas corpus by the United States, on the relation of Benjamin Goldberg, against William Williams, Commissioner of Immigration, to obtain petitioner’s release from custody under a deportation warrant. Writ granted.</p>

<p>In Equity. Suit by the Southern Lumber Corporation against George A. Doyle, H. J. Thielter, Julia Doyle, and J. A. Thrall, copart-ners as the Winyah Lumber Company, with a cross-bill. On final hearing.</p>

In the matter of the Selman Heating & Plumbing Company, bankrupt. On petition of the Peck-Williamson Heating & Ventilating Company to review order of referee disallowing a part of its claim.

<p>Habeas corpus to review exclusion of immigrant.</p>

<p>Habeas Corpus (§ 23*) — Deportation oe Aliens — Board of Special Inquiry — BINDINGS.</p> <p>Findings of a board of special inquiry that aliens applying to enter, none of whom had sufficient money to take them to their destination and. pay their passage back to the country from whence they came, were liable to become public charges, and excluding them for that reason, were conclusive, and could not be reviewed on habeas corpus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 17; Dec. Dig. § 23.*</p> <p>Scope of review on habeas corpus to procure release of persons sought to be extradited, see note to Bruce v. Rayner, 62 C. C. A. 506.]</p>

<p>Habeas carpus and certiorari to review action of the immigration authorities.</p>

<p>' Habeas .corpus to .review exclusion of immigrant.</p>

Hollister, Judge. Suit in equity by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against I. C. Hirsch. Decree for defendant, and complainant appeals. This was a suit in equity to set aside a lease under which Hirsch occupies 'certain of the company’s land, and to require him to deliver up the premises and render an accounting.

Dayton and John C. Rose, Judges. Action by Peter W. Reherd, as receiver of the late firm of Walton, Purcell, Moorman & Co., against the Coal & Iron Railway Company. Judgment for plaintiff, and defendant brings error. This action was commenced by service of summons on tlie 21st of March, 1904, and the declaration was filed on the 4th of April, 1904.

A. Willard, Judge. Action at law by the United States, for the use and benefit of the First National Bank of Belle Fourche, S. D., against Adolph O. Eber-liart and others. Judgment for the use plaintiff, and defendants bring error. Action by the United States against the same defendants. Judgment for defendants, and the United States brings error.

Appeal' from the District Court of the United States for the District of South Dakota; James D. Elliott, Judge. Suit in equity by the United States against Louis Hemmer and others. From an adverse decree (195 Fed. 790), defendants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Charles Sykes was convicted of burglary, and brings error.</p>

for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Action by Etta Teel, as administratrix of the estate of Lake Teel, deceased, against the Chesapeake & Ohio Railway Company of Virginia. Judgment for defendant, and plaintiff brings error. Case held for amendment of writ of error.

M. J. Cochran, Judge. Action at law by Etta Teel, administratrix of the estate of Lake Teel, deceased, against the Chesapeake & Ohio Railway Company of Virginia. Judgment for defendant, and plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Suit by Prentiss M. Woodman against the Lydiard-Peterson Company. Judgment for plaintiff, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Action at law by the Virginia-Carolina Chemical Company against D. J. Knotts, C. B. Dowling, and C. H. Corbitt, copartners as Knotts, Dowling & Co. Judgment for plaintiff, and defendants bring error.</p>

Holt, Judge. Suit in admiralty by O’Brien Bros., owners of the tug O’Brien, against the lighter Royal and her cargo, Apollinaris Company, limited, cargo claimant, and J. W. Jarvis Company, impleaded. Decree against the Jarvis Company, and it appeals.

<p>In Error to the Circuit Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by J. C. Rosenberger against Dee Shubert and another. Judgment for plaintiff, and defendants bring error.</p>

Smith, Judge. Suit by the Christmas Gold Mining Company to quiet title as against the Golden Cycle Mining Company to a vein of ore extending on its dip into the mining claims of defendant to recover the value of extracted mineral and damages, and to enjoin defendant from further operations. From an order granting a temporary injunction, defendant appeals.

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by the United States against W. H. Aaron and another. From judgment for plaintiff, defendants appeal. Affirmed.</p>

J. Cochran, Judge. Action by Dan H. Holton against the Job Iron & Steel Company. Judgment for defendant, and plaintiff brings error. Plaintiff: sued to recover a commission claimed to nave been earned under a contract for procuring a bonus in aid of the building and installation of a manufacturing plant. Upon the trial verdict was directed for defendant. The propriety of this direction is the principal question presented here.

Libel in admiralty by the Newport News Shipbuilding & Dry Dock Company against the Saratoga to enforce an alleged lien for repairs. From a judgment for libelant, the New York, Albany & Troy Transportation Company, claimant, appeals.

<p> (Syllabus by the Court.) </p> <p>1. Indians (§ 15*) — Allotment to Mj nor — Restrictions on Alienation— Removal.</p> <p>The restrictions on the alienation of their allotments by Creek minors imposed by the Creek agreements and acts of Congress were not subject to removal or modification, either in duration or effect, in March, 1908, by decrees of the district courts of Oklahoma, pursuant to section 4955a, Snyder’s Comp. Laws of Oklahoma, 1909, that such minors might transact general or specific business, or make general or specific contracts or conveyances with the same effect as if they were of age. That law of the state of Oklahoma was inapplicable to such restrictions and to the rights of such minors and of their grantees.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §| 17, 29, 34, 37-44; Dec. Dig. § 15.*]</p> <p>2. Statutes (§ 162*)- — Construction—General and Special.</p> <p>Specific legislation upon a particular subject is not affected by a general law upon the same subject unless it clearly appears that the provisions of the two laws are so repugnant that the legislators must have intended by the later to modify or repeal the earlier legislation. The special act and the general law must stand together, the one as the law of the particular subject and the oilier as the general law of the land.</p> <p>|F.d. Note. — For other cases, see Statutes, Cent. Dig. §§ 235-237; Dec. Dig. § 162.*]</p> <p>3. Mines and Minerals (§ 81*) — Ejectment (§ 9*) — Right to Maintain— Oil and Gas Lease.</p> <p>A grantee who has never been in possession, under a lease of the oil and gas in a specific tract of land, of the right to prospect for, extract, and appropriate them and of the right to occupy and use so much of the surface of the land only as may be necessary to find and remove the oil and gas, may not maintain ejectment thereon, because the lease grants no corporeal interest or hereditament.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 211; Dec. Dig. § 81;* Ejectment, Cent. Dig. §§ 16-29; Dec. Dig. § 9.*]</p> <p>4. Mines and Minerals (§ 73*) — Oil and Gas Lease — Ownership—Nature oe Grant.</p> <p>Oil and gas in tlie earth are, unlike ore and coal, fugacious and incapable of ownership distinct from the land, and a grant of the oil and gas in a tract of land is a grant of that part of the oil and gas therein which the grantee may find and capture, no title vests until the oil or gas is reduced to possession by extracting the same from the earth, and • hence the lease is a grant of an incorporeal hereditament.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 201, 210; Dec. Dig. § 73.*]</p>

<p>In Error to the District Court of the United States for the Northern District of Iowa; Henry Thomas Reed, Judge.</p> <p>Action at law by the Hampton Electric Eight & Power Company against the Iowa Central Railway Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of Oscar M. Hartzell, bankrupt. Prom an order entered on issues joined between the Century Savings Bank, Robert Moody & Son, and R. A. Crawford, administrator of the estate of Emma G. Johnson, deceased, the Century Savings Bank appeals.

Hollister, Judge. Suit by the Central Trust & Safe Deposit Company against Mary M. Emery and the Girard Trust Company, as trustee, etc. From a decree dismissing defendants’ cross-bill, they appeal.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by Louis F. Partee, administrator, etc., against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>A. C. Thompson was convicted of violating the White Slave Traffic Act (202 Fed. 346), and he brings error.</p>

Munger, Judge. Action by Thirza Henderson against Edgar F. Snavely, trustee, etc. From a decree of the District Court, affirming an allowance by the referee of plaintiff’s claim against the estate of Roscoe E. Henderson, who was adjudged a bankrupt, defendant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by the Central Union Stockyards Company against the steam tug Flemington, the Central Railroad Company of New Jersey, claimant, in which the steam tug Arthur W. Palmer, the Moran Towing & Transportation Company, claimant, was impleaded. Decree against the Flemington, and her claimant appeals.</p> <p>The following is the oral opinion of Van Vechten Veeder, District Judge:</p> <p>The witnesses for the Flemington and for the Palmer give accounts of this collision that cannot be reconciled, because each boat claims that the other was going away from it at the time of the collision, under which circumstances no collision would have been possible. The determination of this issue depends largely upon the credibility of witnesses, and in that respect I think that the witnesses for the Palmer give an account that is more coherent and more consistent, and therefore more convincing, than the witnesses on behalf of the Flemington.</p> <p>I am disposed to accept as a fact the account given by the captain of the Palmer, supported as it is by the testimony of other witnesses on behalf of .the Palmer, and particularly by the only disinterested witness in the case. The clear preponderance of all the testimony, including that of some of the witnesses for the Flemington, shows beyond a doubt that the collision took place far out in the middle of this navigable channel. I have no doubt from the testimony that the Palmer, with her tow, was pursuing the usual and customary course through this narrow channel, and, as it is a busy channel, that course must have been well known to this tug, which berthed alongside of Pier 8. I could not reach any other determination if I were disposed to accept the testimony of the man who says he was on the lookout on the stern of the Flemington, because his testimony shows, as indeed the testimony or the report of the captain of the Flemington to the local inspectors sliows. that although he saw the rainier coming down with the. tow a long distance away he did not give a signal to his captain until they were out in the channel.</p> <p>I think the preponderance .of the credible testimony in this case shows that the Flemlngton backed out without taking proper precautions. She evidently came out under a momentum that she was unable to check when, at last, an effort was made to avoid this collision,</p> <p>I find no fault on the part of the Palmer. Decree accordingly.</p>

<p>Collision (§ 95*)- — Tugs with Tows — Fault.</p> <p>Under uncontradicted evidence that such is the practice, a tug passing through Hell Gate into East River with two tows tandem on an ebb tide, which prevented her from stopping or slowing, field entitled to make her turn down East River, while it was the duty of another tug coming down Harlem River with tows alongside to hold back and keep out of the way; and the latter vessel held solely in fault for a collision between two of the tows.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*</p> <p>Collision witli or between towing vessels and vessels in tow, see note to The John Englis, 100 O. C. A. 581.]</p>

<p>Petition to Revise Order of the-District Court of the'United States for the Southern District of New York; Learned Hand, Judge.</p> <p>On rehearing.</p>

Bill by the National Casket Company against Julius W. Stolts, as president and treasurer of J. & J. W. Stolts, an unincorporated joint-stock association. From a decree dismissing the complaint (197 Fed. 940), complainant appeals. On appeal from a decree of the United States District Court for the Southern District of New York dismissing the bill in an action based upon reissued letters patent No. 12,750, dated February 14, 1908.

Petition by the pehigh yalley Railroad Company against the United States, in which the Interstate Commerce Commission and Henry E. Meeker have intervened. On motions to dismiss.

In Admiralty. Suit for collision by the United New York Sandy Hook Pilots’ Association, as owner of the pilot boat Ambrose Snow, and others, against the steamship Delaware, the Clyde Steamship Company claimant, and cross-libel against the Ambrose Snow. Decree for cross-libelant.

<p>1. Removal op Causes (§ 19*) — Jurisdiction op Federal Court — Suit Arising under Interstate Commerce Act.</p> <p>A suit by a shipper against a railroad company to recover for damage or injury to property while being transported in interstate commerce is one arising under Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29, 1906, e. 3591, § 7, 34 Stat. 593 (IT. S. Comp. St. Supp. 1911, p. 1307), of which a federal District Court is given original jurisdiction by Judicial Code (Act March 3, 1911, c. 231) § 24, par. 8, 36 Stat. 1092 (U. S. Comp. St. Supp. 1911, p. 136), which confers jurisdiction on such courts of all suits and proceedings arising under any law regulating commerce, except those of which the Commerce Court is given exclusive jurisdiction, and such a suit is removable under section 28, without regard to the amount involved.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 37-46, 48, 52, 53; Dec. Dig. § 19.*]</p> <p>2. Courts (§ 284*) — Jurisdiction op Federal Courts — Suit Arising Under Federal Law.</p> <p>Whenever federal law grants a right of property or of action, and a suit is brought to enforce that right, it is one which may properly turn upon a construction of that law, and such suit arises under the law for the purposes of federal jurisdiction, notwithstanding the defendant may raise only issues of 'fact by his answer.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Ui$ §§ 820-826, 831; Dec.'Dig. § 284.*]</p>

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

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; William O. Van Fleet, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Application to admit plaintiff in error, who was defendant below, to bail pending disposition of the writ of error.</p>

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

<p>In Error to the District Court, of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action at law by F. A. Williams, trustee in bankruptcy of Harry D. Brown, against George G. Friedrichs. Judgment for defendant, and plaintiff brings error.</p>